VOLUME X SLICE VIII France to Francis Joseph I. (continued 2)

In the second half of the 18th century, the ardour of the Benedictines of St Maur diminished, and scientific work passed more and more into the hands of laymen. The Académie des Inscriptions et Belles-lettres, founded in 1663 and reorganized in 1701, became its chief instrument, numbering among its members Denis François Secousse, who continued the collection of Ordonnances des rois de France, begun (1723) by J. de Laurière; J.-B. de La Curne de Sainte Palaye (Mémoires sur l’ancienne chevalerie, 1759-1781; Glossaire de la langue française depuis son origine jusqu’à la fin de Louis XIV, printed only in 1875-1882); J.-B. d’Anville (Notice sur l’ancienne Gaule tirée des monuments, 1760); and L.G. de Bréquigny, the greatest of them all, who continued the publication of the Ordonnances, began the Table chronologique des diplômes concernant l’histoire de France (3 vols., 1769-1783), published the Diplomata, chartae, ad res Francicas spectantia (1791, with the collaboration of La Porte du Theil), and directed fruitful researches in the archives in London, to enrich the Cabinet des chartes, where Henri Bertin (1719-1792), an enlightened minister of Louis XV., had in 1764 set himself the task of collecting the documentary sources of the national history. The example set by the religious orders and the government bore fruit. The general assembly of the clergy gave orders that its Procès verbaux (9 vols., 1767-1789) should be printed; some of the provinces decided to have their history written, and mostly applied to the Benedictines to have this done. Brittany was treated by Dom Lobineau (1707) and Dom Morice (1742); the duchy of Burgundy by Dom Urbain Plancher (1739-1748); Languedoc by Dom Dominique Vaissète (1730-1749, in collaboration with Dom Claude de Vic; new ed. 1873-1893); for Paris, its secular history was treated by Dom Michel Félibien and Dom Lobineau (1725), and its ecclesiastical history by the abbé Lebeuf (1745-1760; new ed. 1883-1890).

This ever-increasing stream of new evidence aroused curiosity, gave rise to pregnant comparisons, developed and sharpened the critical sense, but further led to a more and more urgent need for exact information. The Académie des Inscriptions brought out its Histoire de l’Académie avec les mémoires de littérature tirés de ses registres (vol. i. 1717; 51 vols. appeared before the Revolution, with five indexes; vide the Bibliographie of Lasteyrie, vol. iii. pp. 256 et seq.). Other collections, mostly of the nature of bibliographies, were the Journal des savants (111 vols., from 1665 to 1792; vide the Table méthodique by H. Cocheris, 1860); the Journal de Trévoux, or Mémoires pour l’histoire des sciences et des beaux-arts, edited by Jesuits (265 vols., 1701-1790); the Mercure de France (977 vols., from 1724 to 1791). To these must be added the dictionaries and encyclopaedias: the Dictionnaire de Moréri, the last edition of which numbers 10 vols. (1759); the Dictionnaire géographique, historique et politique des Gaules et de la France, by the abbé J.J. Expilly (6 vols., 1762-1770; unfinished); the Répertoire universel et raisonné de jurisprudence civile, criminelle, canonique et bénéficiale, by Guyot (64 vols., 1775-1786; supplement in 17 vols., 1784-1785), reorganized and continued by Merlin de Douai, who was afterwards one of the Montagnards, a member of the Directory, and a count under the Empire.

The historians did not use to the greatest advantage the treasures of learning provided for them; they were for the most part superficial, and dominated by their political or religious prejudices. Thus works like that of Père Gabriel Daniel (Histoire de France, 3 vols., 1713), of Président Hénault (Abrégé chronologique, 1744; 25 editions between 1770 and 1834), of the abbé Paul François Velly and those who completed his work (Histoire de France, 33 vols., 1765 to 1783), of G.H. Gaillard (Histoire de la rivalité de la France et de l’Angleterre, 11 vols., 1771-1777), and of L.P. Anquetil (1805), in spite of the brilliant success with which they met at first, have fallen into a just oblivion. A separate place must be given to the works of the theorists and philosophers: Histoire de l’ancien gouvernement de la France, by the Comte de Boulainvilliers (1727), Histoire critique de l’établissement de la monarchie françoise dans les deux Gaules, by the abbé J.B. Dubos (1734); L’Esprit des lois, by the président de Montesquieu (1748); the Observations sur l’histoire de France, by the abbé de Mably (1765); the Théorie de la politique de la monarchie française, by Marie Pauline de Lézardière (1792). These works have, if nothing else, the merit of provoking reflection.

At the time of the Revolution this activity was checked. The religious communities and royal academies were suppressed, and France violently broke with even her most recent past, which was considered to belong to the ancien régime. When peace was re-established, she began the task of making good the damage which had been done, but a greater effort was now necessary in order to revive the spirit of the institutions which had been overthrown. The new state, which was, in spite of all, bound by so many ties to the former order of things, seconded this effort, and during the whole of the 19th century, and even longer, had a strong influence on historical production. The section of the Institut de France, which in 1816 assumed the old name of Académie des Inscriptions et Belles-lettres, began to reissue the two series of the Mémoires and of the Notices et extraits des manuscrits tirés de la bibliothèque royale (the first volume had appeared in 1787); began (1844) that of the Mémoires présentés par divers savants and the Comptes rendus (subject index 1857-1900, by G. Ledos, 1906); and continued the Recueil des historiens de France, the plan of which was enlarged by degrees (Historiens des croisades, obituaires, pouillés, comptes, &c.), the Ordonnances and the Table chronologique des diplômes. During the reign of Louis Philippe, the ministry of the interior reorganized the administration of the archives of the departments, communes and hospitals, of which the Inventaires sommaires are a mine of precious information (see the Rapport au ministre, by G. Servois, 1902). In 1834 the ministry of public instruction founded a committee, which has been called since 1881 the Comité des Travaux historiques et scientifiques, under the direction of which have been published: (1) the Collection des documents inédits relatifs à l’histoire de France (more than 260 vols. have appeared since 1836); (2) the Catalogue général des manuscrits des bibliothèques de France; (3) the Dictionnaires topographiques (25 vols. have appeared); and the Répertoires archéologiques of the French departments (8 vols. between 1861 and 1888); (4) several series of Bulletins, the details of which will be found in the Bibliographie of Lasteyrie. At the same time were founded or reorganized, both in Paris and the departments, numerous societies, devoted sometimes partially and sometimes exclusively to history and archaeology; the Académie Celtique (1804), which in 1813 became the Société des Antiquaires de France (general index by M. Prou, 1894); the Société de l’Histoire de France (1834); the Société de l’École des Chartes (1839); the Société de l’Histoire de Paris et de l’Île-de-France (1874; four decennial indexes), &c. The details will be found in the excellent Bibliographie générale des travaux historiques et archéologiques publiés par les sociétés savantes de France, which has appeared since 1885 under the direction of Robert de Lasteyrie.

Individual scholars also associated themselves with this great literary movement. Guizot published a Collection de mémoires relatifs à l’histoire de France (31 vols., 1824-1835); Buchon, a Collection des chroniques nationales françaises écrites en langue vulgaire du XIIIe au XVIe siècle (47 vols., 1824-1829), and a Choix de chroniques et mémoires sur l’histoire de France (14 vols., 1836-1841); Petitot and Monmerqué, a Collection de mémoires relatifs à l’histoire de France (131 vols., 1819-1829); Michaud and Poujoulat, a Nouvelle Collection de mémoires pour servir a l’histoire de France (32 vols., 1836-1839); Barrière and de Lescure, a Bibliothèque de mémoires relatifs à l’histoire de France pendant le XVIIIe siècle (30 vols., 1855-1875); and finally Berville and Barrière, a Collection des mémoires relatifs à la Révolution Française (55 vols., 1820-1827). The details are to be found in the Sources de l’histoire de France, by Alfred Franklin (1876). The abbé J.P. Migne in his Patrologia Latina (221 vols., 1844-1864), re-edited a number cf texts anterior to the 13th century. Under the second empire, the administration of the imperial archives at Paris published ten volumes of documents (Monuments historiques, 1866; Layettes du trésor des chartes, 1863, which were afterwards continued up to 1270; Actes du parlement de Paris, 1863-1867), not to mention several volumes of Inventaires. The administration of the Bibliothèque impériale had printed the Catalogue général de l’histoire de France (10 vols., 1855-1870; vol. xi., containing the alphabetical index to the names of the authors, appeared in 1895). Other countries also supplied a number of useful texts; there is much in the English Rolls series, in the collection of Chroniques belges, and especially in the Monumenta Germaniae historica.

At the same time the scope of history and its auxiliary sciences becomes more clearly defined; the École des Chartes produces some excellent palaeographers, as for instance Natalis de Wailly (Éléments de paléographie, 1838), and L. Delisle (q.v.), who has also left traces of his profound researches in the most varied departments of medieval history (Bibliographie des travaux de M. Léopold Delisle, 1902); Anatole de Barthélemy made a study of coins and medals, Douët d’Arcq and G. Demay of seals. The works of Alexandre Lenoir (Musée des monuments français, 1800-1822), of Arcisse de Caumont (Histoire de l’architecture du moyen âge, 1837; Abécédaire ou rudiment d’archéologie, 1850), of A. Napoléon Didron (Annales archéologiques, 1844), of Jules Quicherat (Mélanges d’archéologie et d’histoire, published after his death, 1886), and the dictionaries of Viollet le Duc (Dictionnaire raisonné de l’architecture française, 1853-1868; Dictionnaire du mobilier français, 1855) displayed to the best advantage one of the most brilliant sides of the French intellect, while other sciences, such as geology, anthropology, the comparative study of languages, religions and folk-lore, and political economy, continued to enlarge the horizon of history. The task of writing the general history of a country became more and more difficult, especially for one man, but the task was none the less undertaken by several historians, and by some of eminence. François Guizot treated of the Histoire de la civilisation en France (1828-1830); Augustin Thierry after the Récits des temps mérovingiens (1840) published the Monuments de l’histoire du tiers état (1849-1856), the introduction to which was expanded into a book (1855); Charles Simonde de Sismondi produced a mediocre Histoire des français in 31 vols. (1821-1844), and Henri Martin a Histoire de France in 16 vols. (1847-1854), now of small use except for the two or three last centuries of the ancien régime. Finally J. Michelet, in his Histoire de France (17 vols., 1833-1856) and his Histoire de la Révolution (7 vols., 1847-1853), aims at reviving the very soul of the nation’s past.

After the Franco-German War begins a better organization of scientific studies, modelled on that of Germany. The École des Hautes Études, established in 1868, included in its programme the critical study of the sources, both Latin and French, of the history of France; and from the séminaire of Gabriel Monod came men of learning, already prepared by studying at the École des Chartes: Paul Viollet, who revived the study of the history of French law; Julien Havet, who revived that of Merovingian diplomatics; Arthur Giry, who resumed the study of municipal institutions where it had been left by A. Thierry, prepared the Annales carolingiennes (written by his pupils, Eckel, Favre, Lauer, Lot, Poupardin), and brought back into honour the study of diplomatics (Manuel de diplomatique, 1894); Auguste Molinier, author of the Sources de l’histoire de France (1902-1904; general index, 1906), &c. Auguste Longnon introduced at the École des Hautes Études the study of historical geography (Atlas historique de la France, in course of publication since 1888). The universities, at last reorganized, popularized the employment of the new methods. The books of Fustel de Coulanges and Achille Luchaire on the middle ages, and those of A. Aulard on the revolution, gave a strong, though well-regulated, impetus to historical production. The École du Louvre (1881) increased the value of the museums and placed the history of art among the studies of higher education, while the Musée archéologique of St-Germain-en-Laye offered a fruitful field for research on Gallic and Gallo-Roman antiquities. Rich archives, hitherto inaccessible, were thrown open to students; at Rome those of the Vatican (Registres pontificaux, published by students at the French school of archaeology, since 1884); at Paris, those of the Foreign Office (Recueil des instructions données aux ambassadeurs depuis le traité de Westphalie, 16 vols., 1885-1901; besides various collections of diplomatic papers, inventories, &c.). Those of the War Office were used by officers who published numerous documents bearing on the wars of the Revolution and the Empire, and on that of 1870-1871. In 1904 a commission, generously endowed by the French parlement, was entrusted with the task of publishing the documents relating to economic and social life of the time of the Revolution, and four volumes had appeared by 1908. Certain towns, Paris, Bordeaux, &c., have made it a point of honour to have their chief historical monuments printed. The work now becomes more and more specialized. L’Histoire de France, by Ernest Lavisse (1900, &c.), is the work of fifteen different authors. It is therefore more than ever necessary that the work should be under sound direction. The Manuel de bibliographie historique of Ch. V. Langlois (2nd edition, 1901-1904) is a good guide, as is his Archives de l’histoire de France (1891, in collaboration with H. Stein).

Besides the special bibliographies mentioned above, it will be useful to consult the Bibliothèque historique of Père Jacques Lelong (1719; new ed. by Fevret de Fontette, 5 vols., 1768-1778); the Geschichte der historischen Forschung und Kunst of Ludwig Wachler (2 vols., 1812-1816); the Bibliographie de la France, established in 1811 (1st series, 1811-1856, 45 vols.; 2nd series, 1 vol. per annum since 1857); the publications of the Société de Bibliographie (Polybiblion, from 1868 on, &c.); the Bibliographie de l’histoire de France, by Gabriel Monod (1888); the Répertoire of the abbé Ulysse Chevalier (Biobibliographie; new ed. 1903-1907; and Topobibliographie, 1894-1899). Bearing exclusively on the middle ages are the Bibliotheca historica medii aevi of August Potthast (new ed. 1896) and the Manuel (Les Sources de l’histoire de France, 1901, &c.) of A. Molinier; but the latter is to be continued up to modern times, the 16th century having already been begun by Henri Hausser (1st part, 1906). Finally, various special reviews, besides teaching historical method by criticism and by example, try to keep their readers au courant with literary production; the Revue critique d’histoire et de littérature (1866 fol.), the Revue des questions historiques (1866 fol.), the Revue historique (1876 fol.), the Revue d’histoire moderne et contemporaine, accompanied annually by a valuable Répertoire méthodique (1898 fol.); the Revue de synthèse historique (1900 fol.), &c.

(C. B.*)

French Law and Institutions

Celtic Period.—The remotest times to which history gives us access with reference to the law and institutions formerly existing in the country which is now called France are those in which the dominant race at least was Celtic. On the whole, our knowledge is small of the law and institutions of these Celts, or Gauls, whose tribes constituted independent Gaul. For their reconstruction, modern scholars draw upon two sources; firstly, there is the information furnished by the classical writers and by Caesar and Strabo in particular, which is trustworthy but somewhat scanty; the other source, which is not so pure, consists in the accounts found in those legal works of the middle ages written in the neo-Celtic dialects, the most important and the greater number of which belong to Ireland. A reconstruction from them is always hazardous, however delicate and scientific be the criticism which is brought to bear on it, as in the case of d’Arbois de Jubainville, for example. Moreover, in the historical evolution of French institutions those of the Celts or Gauls are of little importance. Not one of them can be shown to have survived in later law. What has survived of the Celtic race is the blood and temperament, still found in a great many Frenchmen, certain traits which the ancients remarked in the Gauls being still recognizable: bellum gerere et argute loqui.

Roman Period.—It was the Roman conquest and rule which really formed Gaul, for she was Romanized to the point of losing almost completely that which persists most stubbornly in a conquered nation, namely, the language; the Breton-speaking population came to France later, from Britain. The institutions of Roman Gaul became identical with those of the Roman empire, provincial and municipal government undergoing the same evolution as in the other parts of the empire. It was under Roman supremacy too, as M. d’Arbois de Jubainville has shown, that the ownership of land became personal and free in Gaul. The law for the Gallo-Romans was that which was administered by the conventus of the magistrate; there are only a few peculiarities, mere Gallicisms, resulting from conventions or usage, which are pointed out by Roman jurisconsults of the classical age. The administrative reforms of Diocletian and Constantine applied to Gaul as to the rest of the empire. Gaul under this rule consisted of seventeen provinces, divided between two dioceses, ten in the diocese of the Gauls, under the authority of the praetorian prefect, who resided at Treves; and the other seven in the dioecesis septem provinciarum, under the authority of a vicarius. The Gallo-Romans became Christian with the other subjects of the empire; the Church extended thither her powerful organization modelled on the administrative organization, each civitas having a bishop, just as it had a curia and municipal magistrates. But, although endowed with privileges by the Christian emperors, the Church did not yet encroach upon the civil power. She had the right of acquiring property, of holding councils, subject to the imperial authority, and of the free election of bishops. But only the first germs of ecclesiastical jurisdiction are to be traced. In virtue of the laws, the bishops were privileged arbitrators, and in the matter of public sins exercised a disciplinary jurisdiction over the clergy and the faithful. In the second half of the 4th century, monasteries appeared in Gaul. After the fall of the Western empire, there was left to the Gallo-Romans as an expression of its law, which was also theirs, a written legislation. It consisted of the imperial constitutions, contained in the Gregorian, Hermogenian and Theodosian codes (the two former being private compilations, and the third an official collection), and the writings of the five jurists (Gaius, Papinian, Paulus, Ulpian and Modestinus), to which Valentinian III. had in 426 given the force of law.

The Barbarian Invasion.—The invasions and settlements of the barbarians open a new period. Though there were robbery and violence in every case, the various barbarian kingdoms set up in Gaul were established under different conditions. In those of the Burgundians and Visigoths, the owners of the great estates, which had been the prevailing form of landed property in Roman Gaul, suffered partial dispossession, according to a system the rules regulating which can, in the case of the Burgundians, be traced almost exactly. It is doubtful whether a similar process took place in the case of the Frankish settlements, but their first conquests in the north and east seem to have led to the extermination or total expulsion of the Gallo-Roman population. It is impossible to say to what extent, in these various settlements, the system of collective property prevailing among the Germanic tribes was adopted. Another important difference was that, in embracing Christianity, some of the barbarians became Arians, as in the case of the Visigoths and Burgundians; others Catholic, as in the case of the Franks. This was probably the main cause of the absorption of the other kingdoms into the Frankish monarchy. In each case, however, the barbarian king appeared as wishing not to overthrow the Roman administration, but to profit by its continuation. The kings of the Visigoths and Burgundians were at first actually representatives of the Western empire, and Clovis himself was ready to accept from the emperor Anastasius the title of consul; but these were but empty forms, similar to the fictitious ties which long existed or still exist between China or Turkey and certain parts of their former empires, now separated from them for ever.

As soon as the Merovingian monarch had made himself master of Gaul, he set himself to maintain and keep in working order the administrative machinery of the Romans, save that the administrative unit was henceforth no longer the provincia but the civitas, which generally took the name of pagus, and was placed under the authority of a count, comes or grafio (Graf). Perhaps this was not entirely an innovation, for it appears that at the end of the Roman supremacy certain civitates had already a comes. Further, several pagi could be united under the authority of a dux. The pagus seems to have generally been divided into hundreds (centenae).

But the Roman administrative machinery was too delicate to be handled by barbarians; it could not survive for long, but underwent changes and finally disappeared. Thus the Merovingians tried to levy the same direct taxes as the Romans had done, the capitatio terrena and the capitatio humana, but they ceased to be imposts reassessed periodically in accordance with the total sum fixed as necessary to meet the needs of the state, and became fixed annual taxes on lands or persons; finally, they disappeared as general imposts, continuing to exist only as personal or territorial dues. In the same way the Roman municipal organization, that of the curiae, survived for a considerable time under the Merovingians, but was used only for the registration of written deeds; under the Carolingians it disappeared, and with it the old senatorial nobility which had been that of the Empire. The administration of justice (apart from the king’s tribunal) seems to have been organized on a system borrowed partly from Roman and partly from Germanic institutions; it naturally tends to assume popular forms. Justice is administered by the count (comes) or his deputy (centenarius or vicarius), but on the verdict of notables called in the texts boni homines or rachimburgii. This takes place in an assembly of all the free subjects, called mallus, at which every free man is bound to attend at least a certain number of times a year, and in which are promulgated the general acts emanating from the king. The latter could issue commands or prohibitions under the name of bannus, the violation of which entailed a fine of 60 solidi; the king also administered justice (in palatio), assisted by the officers of his household, his jurisdiction being unlimited and at the same time undefined. He could hear all causes, but was not bound to hear any, except, apparently, accusations of deliberate failure of justice and breach of trust on the part of the rachimburgii.

But what proved the great disturbing element in Gallo-Roman society was the fact that the conquerors, owing to their former customs and the degree of their civilization, were all warriors, men whose chief interest was to become practised in the handling of arms, and whose normal state was that of war. It is true that under the Roman empire all the men of a civitas were obliged, in case of necessity, to march against the enemy, and under the Frankish monarchy the count still called together his pagenses for this object. But the condition of the barbarian was very different; he lived essentially for fighting. Hence those gatherings or annual reviews of the Campus Martius, which continued so long, in Austrasia at least. They constituted the chief armed force; for mercenary troops, in spite of the assertions of some to the contrary, play at this period only a small part. But this military class, though not an aristocracy (for among the Franks the royal race alone was noble), was to a large extent independent, and the king had to attach these leudes or fideles to himself by gifts and favours. At the same time the authority of the king gradually underwent a change in character, though he always claimed to be the successor of the Roman emperor. It gradually assumed that Character of the Merovingian kingship. domestic or personal character that, among the Germans, marked most of the relations between men. The household of the king gained in political importance, by reason that the heads of the principal offices in the palace became at the same time high public officials. There was, moreover, a body of men more especially attached to the king, the antrustions (q.v.) and the commensals (convivae regis) whose weregeld (i.e. the price of a man’s life in the system of compensation then prevalent) was three times greater than that of the other subjects of the same race.

The Frankish monarch had also the power of making laws, which he exercised after consulting the chief men of the kingdom, both lay and ecclesiastical, in the placita, which were meetings differing from the Campus Martius and apparently modelled principally on the councils of the Church. But throughout the kingdom in many places the direct authority of the king over the people ceased to make itself felt. The immunitates, granted chiefly to the great ecclesiastical properties, limited this authority in a curious way by forbidding public officials to exercise their functions in the precinct of land which was immunis. The judicial and fiscal rights frequently passed to the landowner, who in any case became of necessity the intermediary between the supreme power and the people. In regard to this last point, moreover, the case seems to have been the same with all the great landowners or potentes, whose territory was called potestas, and who gained a real authority over those living within it; later in the middle ages they were called homines potestatis (hommes de poeste).

Other principles, arising perhaps less from Germanic custom strictly speaking than from an inferior level of civilization, also contributed towards the weakening of the royal power. The monarch, like his contemporaries, considered the kingdom and the rights of the king over it to be his property; consequently, he had the power of dealing with it as if it were a private possession; it is this which gave rise to the concessions of royal rights to individuals, and later to the partitions of the kingdom, and then of the empire, between the sons of the king or emperor, to the exclusion of the daughters, as in the division of an inheritance in land. This proved one of the chief weaknesses of the Merovingian monarchy.

In order to rule the Gallo-Romans, the barbarians had had inevitably to ask the help of the Church, which was the representative of Roman civilization. Further, the Merovingian monarch and the Catholic Church had come Position of the Church. into close alliance in their struggle with the Arians. The result for the Church had been that she gained new privileges, but at the same time became to a certain extent dependent. Under the Merovingians the election of the bishop a clero et populo is only valid if it obtains the assent (assensus) of the king, who often directly nominates the prelate. But at the same time the Church retains her full right of acquiring property, and has her jurisdiction partially recognized; that is to say, she not only exercises more freely than ever a disciplinary jurisdiction, but the bishop, in place of the civil power, administers civil and criminal justice over the clergy. The councils had for a long time forbidden the clergy to cite one another before secular tribunals; they had also, in the 6th century, forbidden secular judges under pain of excommunication to cite before them and judge the clergy, without permission of the bishop. A decree of Clotaire II. (614) acknowledged the validity of these claims, but not completely; a precise interpretation of the text is, however, difficult.

The Merovingian dynasty perished of decay, amid increasing anarchy. The crown passed, with the approval of the papacy, to an Austrasian mayor of the palace and his family, one of those mayors of the palace (i.e. chief officer of Carolingian period. the king’s household) who had been the last support of the preceding dynasty. It was then that there developed a certain number of institutions, which offered themselves as useful means of consolidating the political organism, and were in reality the direct precursors of feudalism. One was the royal benefice (beneficium), of which, without doubt, the Church provided both the model and, in the first instance, the material. The model was the precaria, a form of concession by which it was customary for the Church to grant the possession of her lands to free men; this practice she herself had copied from the five-years leases granted by the Roman exchequer. Gradually, however, the precaria had become a concession made, in most cases, free and for life. As regards the material, when Beginnings of the feudal system. the Austrasian mayors of the palace (probably Charles Martel) wished to secure the support of the fideles by fresh benefits, the royal treasury being exhausted, they turned to the Church, which was at that time the greatest landowner, and took lands from her to give to their warriors. In order to disguise the robbery it was decided—perhaps as an afterthought—that these lands should be held as precariae from the Church, or from the monastic houses which had furnished them. Later, when the royal treasury was reorganized, the grants of land made by the kings naturally took a similar form: the beneficium, as a free grant for life. Under the Merovingians royal grants of land were in principle made in full ownership, except, as Brunner has shown, that provision was made for a revocation under certain circumstances. No special services seem to have been attached to the benefice, whether granted by the king or by some other person, but, in the second half of the 9th century at least, the possession of the benefice is found as the characteristic of the military class and the form of their pay. This we find clearly set forth in the treatise de ecclesiis et capellis of Hincmar of Reims. The beneficium, in obedience to a natural law, soon tended to crystallize into a perpetual and hereditary right. Another institution akin to the beneficium was the senioratus; by the commendatio, a form of solemn contract, probably of Germanic origin, and chiefly characterized by the placing of the hands between those of the lord, a man swore absolute fidelity to another man, who became his senior. It became the generally received idea (as expressed in the capitularies) that it was natural and normal for every free man to have a senior. At the same time a benefice was never granted unless accompanied by the commendatio of the beneficiary to the grantor. As the most important seniores were thus bound to the king and received from him their benefices, he expected through them to command their men; but in reality the king disappeared little by little in the senior. The king granted as benefices not only lands, but public functions, such as those of count or dux, which thus became possessions, held, first for life, and later as hereditary properties. The Capitulary of Kiersy-sur-Oise (877), which was formerly considered to have made fiefs legally and generally hereditary, only proves that it was already the custom for benefices of this kind, honores, to pass from the father to one of the sons.

Charlemagne, while sanctioning these institutions, tried to arrest the political decomposition. He reorganized the administration of justice, fixing the respective jurisdictions of the count and the centenarius, substituting for the rachimburgii Reforms of Charlemagne. permanent scabini, chosen by the count in the presence of the people, and defining the relations of the count, as the representative of the central authority, with the advocati or judices of immunitates and potestates. He reorganized the army, determining the obligations and the military outfit of free men according to their means. Finally, he established those regular inspections by the missi dominici which are the subject of so many of his capitularies. From the De ordine palatii of Hincmar of Reims, who follows the account of a contemporary of the great emperor, we learn that he also regularly established two general assemblies, conventus or placita, in the year, one in the autumn, the other in the spring, which were attended by the chief officials, lay and ecclesiastical. It was here that the capitularies (q.v.) and all important measures were first drawn up and then promulgated. The revenues of the Carolingian monarch (which are no longer identical with the finances of the state) consisted chiefly in the produce of the royal lands (villae), which the king and his suite often came and consumed on the spot; and it is known how carefully Charlemagne regulated the administration of the villae. There were also the free gifts which the great men were bound, according Carolingian fiscal system. to custom, to bring to the conventus, the contributions of this character from the monasteries practically amounting to a tax; the regular personal or territorial dues into which the old taxes had resolved themselves; the profits arising from the courts (the royal bannus, and the fredum, or part of the compensation-money which went to the king); finally, numberless requisitions in kind, a usage which had without doubt existed continuously since Roman times. The Church was loaded with honours and had added a fresh prerogative to her former privileges, namely, the right of levying a real tax in kind, the tithe. Since the 3rd century she had tried to exact the payment of tithes from the faithful, interpreting as applicable to the Christian clergy the texts in the Old Testament bearing on the Levites; Gallican councils had repeatedly proclaimed it as an obligation, though, it appears, with little success. But from the reign of Pippin the Short onwards the civil law recognized and sanctioned this obligation, and the capitularies of Charlemagne and Louis the Debonnaire contain numerous provisions dealing with it. Ecclesiastical jurisdiction The Church under Charlemagne. extended farther and farther, but Charlemagne, the protector of the papacy, maintained firmly his authority over the Church. He nominated its dignitaries, both bishops and abbots, who were true ecclesiastical officials, parallel with the lay officials. In each pagus, bishop and count owed each other mutual support, and the missi on the same circuit were ordinarily a count and a bishop. In the first collection of capitularies, that of Ansegisus, two books out of four are devoted to ecclesiastical capitularies.

What, then, was the private and criminal law of this Frankish monarchy which had come to embrace so many different races? The men of Roman descent continued under the Roman law, and the conquerors could not hope to impose their The law under the Frank monarchy. customs upon them. The authorized expression of the Roman law was henceforth to be found in the Lex romana Wisigothorum or Breviarium Alarici, drawn up by order of Alaric II. in 506. It is an abridgment of the codes, of that of Theodosius especially, and of certain of the writings of the jurists included under the Law of Citations. As to the barbarians, they had hitherto had nothing but customs, and these customs, of which the type nearest to the original is to be found in the oldest text of the Lex Salica, were nothing more than a series of tariffs of compensations, that is to say, sums of money due to the injured party or his family in case of crimes committed against individuals, for which crimes these compensations were the only penalty. They also introduced a barbarous system of trial, that by compurgation, i.e. exculpation by the oath of the defendant supported by a certain number of cojurantes, and that by ordeal, later called judicium Dei. In each new kingdom the barbarians naturally kept their own laws, and when these men of different races all became subject to the Frankish monarchy, there evolved itself a system (called the personnalité des lois) by which every subject had, in principle, the right to be tried by the law of the race to which he belonged by birth (or sometimes for some other reason, such as emancipation or marriage). When the two adversaries were of different race, it was the law of the defendant which had to be applied. The customs of the barbarians had been drawn up in Latin. Sometimes, as in the case of the first text of the Salic law, the system on which they were compiled is not exactly known; but it was generally done under the royal authority. At this period only these written documents bear the name of “law” (leges romanorum; leges barbarorum), and at least the tacit consent of the people seems to have been required for these collections of laws, in accordance with an axiom laid down in a later capitulary; lex fit consensu populi et constitutione regis. It is noteworthy, too, that in the process of being drawn up in Latin, most of the leges barbarorum were very much Romanized.

In the midst of this diversity, a certain number of causes tended to produce a partial unity. The capitularies, which had in themselves the force of law, when there was no question of modifying the leges, constituted a legislation which was the same for all; often they inflicted corporal punishment for grave offences, which applied to all subjects without distinction. Usage and individual convenience led to the same result. The Gallo-Romans, and even the Church itself, to a certain extent, adopted the methods of trial introduced by the Germans, as was likely in a country relapsing into barbarism. On the other hand, written acts became prevalent among the barbarians, and at the same time they assimilated a certain amount of Roman law; for these acts continued to be drawn up in Latin, after Roman models, which were in most cases simply misinterpreted owing to the general ignorance. The type is preserved for us in those collections of Formulae, of which complete and scientific editions have been published by Eugène de Rozière and Carl Zeumer. During this period, too, the Gallican Church adopted the collection of councils and decretals, called later the Codex canonum ecclesiae Gallicanae, which she continued to preserve. This collection was that of Dionysius Exiguus, which was sent to Charlemagne in 774 by Pope Adrian I. But in the course of the 9th century apocryphal collections were also formed in the Gallican Church: the False Capitularies of Benedictus Levita, and the False Decretals of Isidorus Mercator (see Decretals).

All the subjects of the Frankish monarchy were not of equal status. There was, strictly speaking, no nobility, both the Roman and the Germanic nobility having died out; but slavery continued to exist. The Church, however, was preparing the transformation of the slave into the serf, by giving force and validity to their marriages, in cases, at least, when the master had approved of them, and by forbidding the latter unjustly to seize the slave’s peculium. But between the free man (ingenuus) and the slave lay a number of persons of intermediate status; they possessed legal personality but were subject to incapacities of various kinds, and had to perform various duties towards other men. There was, to begin with, the Roman colonist (colonus), a class as to the origin of which there is still a controversy, and of which there is no clear mention in the laws before the 4th century; they and their children after them were attached perpetually to a certain piece of land, which they were allowed to cultivate on payment of a rent. There were, further, the liti (litus or lidus), a similar class of Germanic origin; also the greater number of the freedmen or descendants of freedmen. Many free men who had fled to the great landowners for protection took, by arrangement or by custom, a similar position. Under the Merovingian régime, and especially under the Carolingians, the occupation of the land tended to assume the character of tenure; but free ownership of land continued to exist under the name of alod (alodis), and there is even evidence for the existence of this in the form of small properties, held by free men; the capitularies contain numerous complaints and threats against the counts, who endeavoured by the abuse of their power to obtain the surrender of these properties.

Period of Anarchy and the Rise of Feudalism.—The 10th and 11th centuries were a period of profound anarchy, during which feudalism was free to develop itself and to take definitive shape. At that time the French people may be Anarchy and feudal origins. said to have lived without laws, without even fixed customs and without government. The legislative power was no longer exercised, for the last Carolingian capitularies date from the year 884, and the first laws of the Capetian kings (if they may be called laws) do not appear till during the 12th century. During this period the old capitularies and leges fell into disuse and in their place territorial customs tended to grow up, their main constituents being furnished by the law of former times, but which were at the outset ill-defined and strictly local. As to the government, if the part played by the Church be excepted, we shall see that it could be nothing but the application of brute force. In this anarchy, as always happens under similar conditions, men drew together and formed themselves into groups for mutual defence. A nucleus was formed which was to become the new social unit, that is to say, the feudal group. Of this the centre was a chief, around whom gathered men capable of bearing arms, who commended themselves to him according to the old form of vassalage, per manus. They owed him fidelity and assistance, the support of their arms but not of their purse, save in quite exceptional cases; while he owed them protection. Some of them lived in his castle or fortified house, receiving their equipment only and eating at his table. Others received lands from him, which were, or later became, fiefs, on which they lived casati. The name fief, feudum, does not appear, however, till towards the end of this period; these lands are frequently called beneficia as before; the term most in use at first, in many parts, is casamentum. The fief, moreover, was generally held for life and did not become generally hereditary till the second half of the 11th century. The lands kept by the chief and those which he granted to his men were for the most part rented from him, or from them, for a certain amount in money or in kind. All these conditions had already existed previously in much the same form; but the new development is that the chief was no longer, as before, merely an intermediary between his men and the royal power. The group had become in effect independent, so organized as to be socially and politically self-sufficient. It constituted a small army, led, naturally, by the chief, and composed of his feudatories, supplemented in case of need by the rustici. It also formed an assembly in which common interests were discussed, the lord, according to custom, being bound to consult his feudatories and they to advise him to the best of their power. It also formed a court of justice, in which the feudatories gave judgment under the presidency of their lord; and all of them claimed to be subject only to the jurisdiction of this tribunal composed of their peers. Generally they also judged the villeins (villani) and the serfs dependent on the group, except in cases where the latter obtained as a favour judges of their own status, which was, however, at that time a very rare occurrence.

Under these conditions a nobility was formed, those men becoming nobles who were able to devote themselves to the profession of arms and were either chiefs or soldiers in one of the groups which have just been described. The term designating a noble, miles, corresponds also to that of knight (Fr. chevalier, Low Lat. caballerius), for the reason that chivalry, of which the origins are uncertain, represents essentially the technical skill and professional duties of this military class. Every noble was destined on coming of age to become a knight, and the knight equally as a matter of course received a fief, if he had not one already by hereditary title. This nobility, moreover, was not a caste but could be indefinitely recruited by the granting of fiefs and admission to knighthood (see Knighthood and Chivalry).

The state of anarchy was by now so far advanced that war became an individual right, and the custom of private war arose. Every man had in principle the right of making war to defend his rights or to avenge his wrongs. Later Private war. on, doubtless, in the 13th century, this was a privilege of the noble (gentilhomme); but the texts defining the limits which the Church endeavoured to set to this abuse, namely, the Peace of God and the Truce of God, show that this was at the outset a power possessed by men of all classes. Even a man who had appeared in a court of law and received judgment had the choice of refusing to accept the judgment and of making war instead. Justice, moreover, with its frequent employment of trial by combat, did not essentially differ from private war.

It is unnecessary to go further and to affirm, with certain historians of our time, for example Guilhermoz and Sée, that the only free men at that time, besides the clergy, were the nobles, all the rest being serfs. There are many indications which lead us to assume, not only in the towns but even in the country districts, the existence of a class of men of free status who were not milites, the class later known in the 13th century as vilains, hommes de poeste, and, later, roturiers. The fact more probably was that only the nobles and ecclesiastics were exempt from the exactions of the feudal lords; while from all the others the seigneurs could at pleasure levy the taille (a direct and arbitrary tax), and those innumerable rights then called consuetudines. Free ownership, the allodium, even under the form of small freeholds, still existed by way of exception in many parts.

Had, then, the main public authority disappeared? This is practically the contention of certain writers, who, like M. Sée, maintain that real property, the possession of a domain, conferred on the big landed proprietor all rights of taxation, command and coercion over the inhabitants of his domain, who, according to this view, were always serfs. But this is an exaggeration of the thesis upheld by old French authors, who saw in feudalism, though in a different sense, a confusion of property with sovereignty. It appears that in this state of political disintegration each part of the country which had a homogeneous character tended to form itself into a higher unit. In this unit there arose a powerful lord, generally a duke, a count, or a viscount, who sometimes came to be called the capitalis dominus. He was either a former official of the monarchy, whose function had become hereditary, or a usurper who had formed himself on this model. He laid claim to an authority other than that conferred by the possession of real property. He still claimed to exercise over the whole of his former district certain rights, which we see him sometimes surrendering for the benefit of churches or monasteries. His court of justice was held in the highest honour, and to it were referred the most important affairs. But in this district there were generally a number of more or less powerful lords, who as a rule had as yet no particular feudal title and are often given the name of principes. Often, but not always, they had commended themselves to this duke or count by doing homage.

On the other hand, the royal power continued to exist, being recognized by a considerable part of old Gaul, the regnum Francorum. But under the last of the Carolingians it had in fact become elective, as is shown by the elections The royal power. of Odo and Robert before that of Hugh Capet. The electors were the chief lords and prelates of the regnum Francorum. But following a clever policy, each king during his lifetime took as partner of his kingdom his eldest son and consecrated and crowned him in advance, so that the first of the Capetians revived the principle of heredity in favour of the eldest son, while establishing the hereditary indivisibility of the kingdom. This custom was recognized at the accession of Louis the Fat, but the authority of the king was very weak, being merely a vague allegiance. His only real authority lay where his own possessions were, or where there had not arisen a duke, a count, or lord of equal rank with them. He maintained, however, a general right of administering justice, a curia, the jurisdiction of which seems to have been universal. It is true that the parties in a suit had to submit themselves to it voluntarily, and could accept or reject the judgment given, but this was at that time the general rule. The king dispensed justice surrounded by the officers of his household (domestici), who thus formed his council; but these were not the only ones to assist him, whether in court or council. Periodically, at the great yearly festivals, he called together the chief lords and prelates of his kingdom, thus carrying on the tradition of the Carolingian placita or conventus; but little by little, with the appropriation of the honores, the character of the gathering changed; it was no longer an assembly of officials but of independent lords. This was now called the curia regis.

While the power of the State was almost disappearing, that of the Church, apart from the particular acts of violence of which she was often the victim, continued to grow. Her jurisdiction gained ground, since her procedure The Church. was reasonable and comparatively scientific (except that she admitted to a certain extent compurgation by oath and the judicia Dei, with the exception of trial by combat). Not only was the privilege of clergy, by which accused clerks were brought under her jurisdiction, almost absolute, but she had cognizance of a number of causes in which laymen only were concerned, marriage and everything nearly or remotely affecting it, wills, crimes and offences against religion; and even contracts, when the two parties wished it or when the agreement was made on oath, came within her competence. Such, then, were the ecclesiastical or Christian courts (cours d’église, course de chrétienté). The Church, moreover, remained in close connexion with the crown, the king preserving a quasi-ecclesiastical character, while the royal prerogatives with regard to the election of bishops were maintained more successfully than the rights of the crown, though in many of the great fiefs they none the less passed to the count or the duke. It was at this time too that the Church tried to break the last ties which still kept her more or less dependent on the civil power; this was the true import of the Investiture Contest (see Investiture, and Church History), though this was not very acute in France.

The period of the true feudal monarchy is embraced by the 12th and 13th centuries, that is to say, it was at this time that the crown again assumed real strength and authority; The feudal monarchy. but so far it had no organs and instruments save those which were furnished by feudalism, now organized under a regular hierarchy, of which the king was the head, the “sovereign enfeoffer of the kingdom” (souverain fieffeux du royaume), as he came later on to be called. This new position of affairs was the result of three great factors: the revival of Roman Law, the final organization of feudalism and the rise of the privileged towns. The revival of Roman law began in France and Italy in the second half Roman law. of the 11th century, developing with extraordinary brilliance in the latter country at the university of Bologna, which was destined for a long time to dominate Europe. Roman law spread rapidly in the French schools and universities, except that of Paris, which was closed to it by the papacy; and the influence of this study was so great that it transformed society. On the one hand it contributed largely to the reconstitution of the royal power, modelling the rights of the king on those of the Roman emperor. On the other hand it wrought a no less profound change in private law. From this time dates the division of old France into the Pays de droit écrit, in which Roman law, under the form in which it was codified by Justinian, was received as the ordinary law; and the Pays de coutume, The customs. where it played only a secondary part, being generally valid only as ratio scripta and not as lex scripta. In this period the customs also took definitive form, and over and above the local customs properly so called there were formed customs known as general, which held good through a whole province or bailliage, and were based on the jurisprudence of the higher jurisdictions.

The final organization of feudalism resulted from the struggle for organization which was proceeding in each district where the more powerful lords compelled the others to do them homage and become their vassals; the capitalis dominus Final organization of feudalism. had beneath him a whole hierarchy, and was himself a part of the feudal system of France (see Feudalism). Doubtless in the case of lords like the dukes of Brittany and Burgundy, the king could not actually demand the strict fulfilment of the feudal obligations; but the principle was established. The question now arises, did free and absolute property, the allodium, entirely disappear in this process, and were all lands held as tenures? It continued to exist, by way of exception, in most districts, unchanged save in the burden of proof of ownership, with which, according to the customs, sometimes the lord and sometimes the holder of the land was held charged. In one respect, however, namely in the Feudal character of justice. administration of justice, the feudal hierarchy had absolute sway. Towards the end of the 13th century Beaumanoir clearly laid down this principle: “All secular jurisdiction in France is held from the king as a fief or an arrière-fief.” Henceforth it could also be said that “All justice emanates from the king.” The law concerning fiefs became settled also from another point of view, the fief becoming patrimonial; that is to say, not only hereditary, but freely alienable by the vassal, subject in both cases to certain rights of transfer due to the lord, which were at first fixed by agreement and later by custom. The most salient features of feudal succession were the right of primogeniture and the preference given to heirs-male; but from the 13th century onwards the right of primogeniture, which had at first involved the total exclusion of the younger members of a family, tended to be modified, except in the case of the chief lords, the eldest son obtaining the preponderant share or préciput. Non-noble (roturier) tenancies also became patrimonial in similar circumstances, except that in their case there was no right of primogeniture nor any privilege of males. The tenure of serfs did not become alienable, and only became hereditary by certain devices.

Feudal society next saw the rise of a new element within it: the privileged towns. At this time many towns acquired privileges, the movement beginning towards the end of the 11th century; they were sanctioned by a formal Rise of the privileged towns. concession from the lord to whom the town was subject, the concession being embodied in a charter or in a record of customs (coutume). Some towns won for themselves true political rights, for instance the right of self-administration, rights of justice over the inhabitants, the right of not being taxed except by their own consent, of maintaining an armed force, and of controlling it themselves. Others only obtained civil rights, e.g. guarantees against the arbitrary rights of justice and taxation of the lord or his provost. The chief forms of municipal organization at this time were the commune jurée of the north and east, and the consulat, which came from Italy and penetrated as far as Auvergne and Limousin. The towns with important privileges formed in feudal society as it were a new class of lordships; but their lords, that is to say their burgesses, were inspired by quite a new spirit. The crown courted their support, taking them under its protection, and championing the causes in which they were interested (see Commune). Finally, it is in this period, under Philip Augustus, that the great fiefs began to be effectually reannexed to the crown, a process which, continued by the kings up to the end of the ancien régime, refounded for their profit the territorial sovereignty of France.

The crown maintained the machinery of feudalism, the chief central instruments of which were the great officers of the crown, the seneschal, butler, constable and chancellor, who were to become irremovable officials, those at least Great officers of the crown and peers of France. who survived. But this period saw the rise of a special college of dignitaries, that of the Twelve Peers of France, consisting of six laymen and six ecclesiastics, which took definitive shape at the beginning of the 13th century. We cannot yet discern with any certainty by what process it was formed, why those six prelates and those six great feudatories in particular were selected rather than others equally eligible. But there is no doubt that we have here a result of that process of feudal organization mentioned above; the formation of a similar assembly of twelve peers occurs also in a certain number of the great fiefs. Besides the part which they played at the consecration of kings, the peers of France formed a court in which they judged one another under the presidency of the king, their overlord, according to feudal custom. But the cour des pairs in this sense was not separate from the curia regis, and later from the parlement of Paris, of which the peers of France were by right members. From this time, too, dates another important institution, that of the maîtres des requêtes.

The legislative power of the crown again began to be exercised during the 12th century, and in the 13th century had full authority over all the territories subject to the crown. Beaumanoir has a very interesting theory on this subject. Growth of the royal power. The right of war tends to regain its natural equilibrium, the royal power following the Church in the endeavour to check private wars. Hence arose the quarantaine le roi, due to Philip Augustus or Saint Louis, by which those relatives of the parties to a quarrel who had not been present at the quarrel were rendered immune from attack for forty days after it; and above all the assurements imposed by the king or lord; on these points too Beaumanoir has an interesting theory. The rule was, moreover, already in force by which private wars had to cease during the time that the king was engaged in a foreign war. But the most appreciable progress took place in the administrative and judicial institutions. Under Philip Augustus arose the royal baillis (see Bailiff: section Bailli), and seneschals (q.v.), who were the representatives of the king in the provinces, and superior judges. At the same time the form of the feudal courts tended to change, as they began more and more to be influenced by the Romano-canonical law. Saint Louis had striven to abolish trial by combat, and the Church had condemned other forms of ordeal, the purgatio vulgaris. In most parts of the country the feudal lords began to give place in the courts of law to the provosts (prévôts) and baillis of the lords or of the crown, who were the judges, having as their councillors the avocats (advocates) and procureurs (procurators) of the assize. The feudal courts, which were founded solely on the relations of homage and tenure, before which the vassals and tenants as such appeared, disappeared in part from the 13th century on. Of the seigniorial jurisdictions there soon remained only the hautes or basses justices (in the 14th century arose an intermediate grade, the moyenne justice), all of which were considered to be concessions of the royal power, and so delegations of the public authority. As a result of the application of Roman and canon law, there arose the appeal strictly so called, both in the class of royal and of seigniorial jurisdictions, the case in the latter instance going finally before a royal court, from which henceforth there was no appeal. In the 13th century too appeared the theory of crown cases (cas royaux), cases which the lords became incompetent to try and which were reserved for the royal court. Finally, the curia regis was gradually transformed into a regular court of justice, the Parlement (q.v.), as it was already called in the second half of the 13th century. At this time the king no longer appeared in it regularly, and before each session (for it was not yet a permanent body) a list of properly qualified men was drawn up in advance to form the parlement, only those whose names were on the list being capable of sitting in it. Its main function had come to be that of a final court of appeal. At the various sessions, which were regularly held at Paris, appeared the baillis and seneschals, who were called upon to answer for the cases they had judged and also for their administration. The accounts were received by members of the parlement at the Temple, and this was the origin of the Cour or Chambre des Comptes.

At the end of this period the nobility became an exclusive class. It became an established rule that a man had to be noble in order to be made a knight, and even in order to acquire a fief; but in this latter respect the king Nobles, commons and the Church in the 13th century. made exceptions in the case of roturiers, who were licensed to take up fiefs, subject to a payment known as the droits de franc-fief. The roturiers, or villeins who were not in a state of thraldom, were already a numerous class not only in the towns but in the country. The Church maintained her privileges; a few attempts only were made to restrain the abuse, not the extent, of her jurisdiction. This jurisdiction was, during the 12th century, to a certain extent regularized, the bishop nominating a special functionary to hold his court; this was the officialis (Fr. official), whence the name of officialité later applied in France to the ecclesiastical jurisdictions. On one point, however, her former rights were diminished. She preserved the right of freely acquiring personal and real property, but though she could still acquire feudal tenures she could not keep them; the customs decided that she must vider les mains, that is, alienate the property again within a year and a day. The reason for this new rule was that the Church, the ecclesiastical establishment, is a proprietor who does not die and in principle does not surrender her property; consequently, the lords had no longer the right of exacting the transfer duties on those tenures which she acquired. It was possible, however, to compromise and allow the Church to keep the tenure on condition of the consent not only of the lord directly concerned, but of all the higher lords up to the capitalis dominus; it goes without saying that this concession was only obtained by the payment of pecuniary compensations, the chief of which was the droit d’amortissement, paid to these different lords. In this period the form of the episcopal elections underwent a change, the electoral college coming to consist only of the canons composing the chapter of the cathedral church. But except for the official candidatures, which were abused by the kings and great lords, the elections were regular; the Pragmatic Sanction, attributed to Saint Louis, which implies the contrary, is nowadays considered apocryphal by the best critics.

Finally, it must be added that during the 13th century criminal law was profoundly modified. Under the influence of Roman law a system of arbitrary penalties replaced those laid down by the customs, which had usually been Changes in criminal law. fixed and cruel. The criminal procedure of the feudal courts had been based on the right of accusation vested only in the person wronged and his relations; for this was substituted the inquisitorial procedure (processus per inquisitionem), which had developed in the canon law at the very end of the 12th century, and was to become the procédure à l’extraordinaire of the ancien régime, which was conducted in secret and without free defence and debate. Of this procedure torture came to be an ordinary and regular part.

The customs, which at that time contained almost the whole of the law for a great part of France, were not fixed by being written down. In that part of France which was subject to customary law (la France coutumière) they The customs. were defined when necessary by the verdict of a jury of practitioners in what was called the enquête par turbes; some of them, however, were, in part at least, authentically recorded in seigniorial charters, chartes de ville or chartes de coutume. Their rules were also recorded by experts in private works or collections called livres coutumiers, or simply coutumiers (customaries). The most notable of these are Les Coutumes de Beauvoisis of Philippe de Beaumanoir, which Montesquieu justly quotes as throwing light on those times; also the Très ancienne coutume de Normandie and the Grand Coutumier de Normandie; the Conseil à un ami of Pierre des Fontaines, the Établissements de Saint Louis; the Livre de jostice et de plet. At the same time the clerks of important judges began to collect in registers notable decisions; it is in this way that we have preserved to us the old decisions of the exchequer of Normandy, and the Olim registers of the parlement of Paris.

The Limited Monarchy.—The 14th and 15th centuries were the age of the limited monarchy. Feudal institutions kept their political importance; but side by side with them arose others of which the object was the direct exercise of the royal authority; others also arose from the very heart of feudalism, but at the same time transformed its laws in order to adapt them to the new needs of the crown. In this period certain rules for the succession to the throne were fixed by precedents: the exclusion of women and of male descendants in the female line, and the principle that a king could not by an act of will change the succession of the crown. The old curia regis disappeared and was replaced by the parlement as to its judicial functions, while to fulfil its deliberative functions there was formed a new body, the royal council (conseil du roi), an administrative and governing council, which was in no way of a feudal character. The number of its members was at first small, but they tended to increase; soon the brevet of conseiller du roi en ses conseils was given to numerous representatives of the clergy and nobility, the great officers of the crown becoming members by right. Side by side with these officials, whose power was then at its height, there were gradually evolved more subservient ministers who could be dispensed with at will; the secrétaires des commandements du roi of the 15th century, who in the 16th century developed into the secrétaires d’état, and were themselves descended from the clercs du secret and secrétaires des finances of the 14th century. The College of the Twelve Peers of France had not its full numbers at the end of the 13th century; the six ecclesiastical peerages existed and continued to exist to the end, together with the archbishopric and bishoprics to which they were attached, not being suppressed; but several of the great fiefs to which six lay peerages had been attached had been annexed to the crown. To fill these vacancies, Philip the Fair raised the duchies of Brittany and Anjou and the countship of Artois to the rank of peerages of France. This really amounted to changing the nature of the institution; for the new peers held their rank merely at the king’s will, though the rank continued to belong to a great barony and to be handed down with it. Before long peers began to be created when there were no gaps in the ranks of the College, and there was a constant increase in the numbers of the lay peers.

At the beginning of the 14th century appeared the states general (états généraux), which were often convoked, though not at fixed intervals, throughout the whole of the 14th century and the greater part of the 15th. Their States general and provincial estates. power reached its height at a critical moment of the Hundred Years’ War during the reign of King John. At the same time there arose side by side with them, and from the same causes, the provincial estates, which were in miniature for each province what the states general were for the whole kingdom. Of these provincial assemblies some were founded in one or other of the great fiefs, being convoked by the duke or count under the pressure of the same needs which led the king to convoke the states general; others, in provinces which had already been annexed to the crown, probably had their origin in the councils summoned by the bailli or seneschal to aid him in his administration. Later it became a privilege for a province to have its own assembly; those which did so were never of right subject to the royal taille, and kept, at least formally, the right of sanctioning, by means of the assembly, the subsidies which took its place. Hence it became the endeavour of the crown to suppress these provincial assemblies, which in the 14th century were to be found everywhere; from the outset of the 15th century they began to disappear in central France.

The most characteristic feature of this period was the institution of universal taxation by the crown. So far the king’s sole revenues were those which he exacted, in his capacity of feudal lord, wherever another lord did not intervene Royal taxation. between him and the inhabitants, in addition to the income arising from certain crown rights which he had preserved or regained. But these revenues, known later as the income of the royal domain and later still as the finances ordinaires, became insufficient in proportion as the royal power increased; it became a necessity for the monarch to be able to levy imposts throughout the whole extent of the provinces annexed to the crown, even upon the subjects of the different lords. This he could only do by means of the co-operation of those lords, lay and ecclesiastical, who alone had the right of taxing their subjects; the co-operation of the privileged towns, which had the right to tax themselves, was also necessary. It was in order to obtain this consent that the states general, in most cases, and the provincial assemblies, in all cases, were convoked. In some cases, however, the king adopted different methods; for instance, he sometimes utilized the principle of the feudal aids. In cases where his vassals owed him, as overlord, a pecuniary aid, he substituted for the sum paid directly by his vassals a tax levied by his own authority on their subjects. It is in this way that for thirty years the necessary sums were raised, without any vote from the states general, to pay the ransom of King John. But in principle the taxes were in the 14th century sanctioned by the states general. Whatever form they took, they were given the generic name of Aids or auxilia, and were considered as occasional and extraordinary subsidies, the king being obliged in principle to “live of his own” (vivre de son domaine). Certain aids, it is true, tended to become permanent under the reign of Charles VI.; but the taxes subject to the consent of the states general were at first the sole resource of Charles VII. In the second half of his reign the two chief taxes became permanent: in 1435 that of the aids (a tax on the sale of articles of consumption, especially on wine), with the formal consent of the states general, and that of the taille in 1439. In the latter case the consent of the states general was not given; but only the nobility protested, for at the same time as the royal taille became permanent the seigniorial taille was suppressed. These imposts were increased, on the royal authority, by Louis XI. After his death the states general, which met at Tours in 1484, endeavoured to re-establish the periodical vote of the tax, and only granted it for two years, reducing it to the sum which it had reached at the death of Charles VII. But the promise that they would again be convoked before the expiry of two years was not kept. These imposts and that of the gabelle were henceforth permanent. Together with the taxes there was evolved the system of their administration. Their main outlines were laid down by the states general in the reign of King John, in 1355 and the following years. For the administration of the subsidies which they granted, they nominated from among their own numbers surintendants généraux or généraux des finances, and further, for each diocese or equivalent district, élus. Both had not only the active administration but also judicial rights, the latter constituting courts of the first instance and the former courts of final appeal. After 1360 the crown again adopted this organization, which had before been only temporary; but henceforth généraux and élus were nominated by the king. The élus, or officiers des élections, only existed in districts which were subject to the royal taille; hence the division, so important in old France, into pays d’élections and pays d’états. The élus kept both administration and jurisdiction; but in the higher stage a differentiation was made: the généraux des finances, who numbered four, kept the administration, while their jurisdiction as a court of final appeal was handed over to another body, the cour des aides, which had already been founded at the end of the 14th century. Besides the four généraux des finances, who administered the taxation, there were four Treasurers of France (trésoriers de France), who administered the royal domain; and these eight officials together formed in the 15th century a kind of ministry of finance to the monarchy.

The army also was organized. On the one hand, the military service attached to the fiefs was transformed for the profit of the king, who alone had the right of making war: it became the arrière-ban, a term which had formerly The army. applied to the levée en masse of all the inhabitants in times of national danger. Before the 14th century the king had only had the power of calling upon his own immediate vassals for service. Henceforth all possessors of fiefs owed him, whether within the kingdom or on the frontiers, military service without pay and at their own expense. This was for long an important resource for the king. But Charles VII. organized an army on another footing. It comprised the francs-archers furnished by the parishes, a militia which was only summoned in case of war, but in time of peace had to practise archery, and companies of gendarmerie or heavy cavalry, forming a permanent establishment, which were called compagnies d’ordonnance. It was chiefly to provide for the expense of the first nucleus of a permanent army that the taille itself had been made permanent.

The new army led to the institution of the governors of provinces, who were to command the troops quartered there. At first they were only appointed for the frontiers and fortified places, but later the kingdom was divided into gouvernements généraux. There were at first twelve of these, which were called in the middle of the 16th century the douze anciens gouvernements. Although, strictly speaking, they had only military powers, the governors, always chosen from among the great lords, became in the provinces the direct representatives of the king and caused the baillis and seneschals to take a secondary place.

The courts of law continued to develop on the lines already laid down. The parlement, which had come to be a judicial committee nominated every year, but always consisting in fact of the same persons, changed in the course of the The law courts. 14th century into a body of magistrates who were permanent but as yet subject to removal. During this period were evolved its organization and definitive features (see Parlement). The provincial parlements had arisen after and in imitation of that of Paris, and had for the most part taken the place of some superior jurisdiction which had formerly existed in the same district when it had been independent (like Provence) or had formed one of the great fiefs (like Normandy or Burgundy). It was during this period also that the parlements acquired the right of opposing the registration, that is to say, the promulgation of laws, of revising them, and of making representations (remontrances) to the king when they refused the registration, giving the reasons for such refusal. The other royal jurisdictions were completed (see Bailiff, Châtelet). Besides them arose another of great importance, which was of military origin, but came to include all citizens under its sway. These were the provosts of the marshals of France (prévôts des maréchaux de France), who were officers of the Maréchaussée (the gendarmerie of the time); they exercised criminal jurisdiction without appeal in the case of crimes committed by vagabonds and fugitives from justice, this class being called their gibier (game), and of a number of crimes of violence, whatever the rank of the offender. Further, another class of officers was created in connexion with the law courts: the “king’s men” (gens du roi), the procureurs and avocats du roi, who were at first simply those lawyers who represented the king in the law courts, or pleaded for him when he had some interest to follow up or to defend. Later they became officers of the crown. In the case of the procureurs du roi this development took place in the first half of the 14th century. Their duty was not only to represent the king in the law courts, whether as plaintiff or defendant, but also to take care that in each case the law was applied, and to demand its application. From this time on the procureurs du roi had full control over matters concerning the public interest, and especially over public prosecution. In this period, too, appeared what was afterwards called justice retenue, that is to say, the justice which the king administered, or was supposed to administer, in person. It was based on the idea that, since all justice and all judicial power reside in the king, he could not deprive himself of them by delegating their exercise to his officers and to the feudal lords. Consequently he could, if he thought fit, take the place of the judges and call up a case before his own council. He could reverse even the decisions of the courts of final appeal, and in some cases used this means of appealing against the decrees of the parlements (proposition d’erreur, requête civile, pourvoi en révision). In these cases the king was supposed to judge in person; in reality they were examined by the maîtres des requêtes and submitted to the royal council (conseil du roi), at which the king was always supposed to be present and which had in itself no power of giving a decision. For this purpose there was soon formed a special committee of the council, which was called the conseil privé or de justice. At the end of the 15th century, Charles VIII., in order to relieve the council of some of its functions, created a new final court, the grand conseil, to deal with a number of these cases. But before long it again became the custom to appeal to the conseil du roi, so that the grand conseil became almost useless. The king frequently, by means of lettres de justice, intervened in the procedure of the courts, by granting bénéfices, by which rules which were too severe were modified, and faculties or facilities for overcoming difficulties arising from flaws in contracts or judgments, cases at that time not covered by the common law. By lettres de grâce he granted reprieve or pardon in individual cases. The most extreme form of intervention by the king was made by means of lettres de cachet (q.v.), which ordered a subject to go without trial into a state prison or into exile.

The condition of the Church changed greatly during this period. The jurisdiction of the officialités was very much reduced, even over the clergy. They ceased to be competent to judge actions concerning the possession of real property, The Church. in which the clergy were defendants. In criminal law the theory of the cas privilégié, which appears in the 14th century, enabled the royal judges to take action against and judge the clergy for all serious crimes, though without the power of inflicting any penalties but arbitrary fines, the ecclesiastical judge remaining competent, in accordance with the privileges of clergy, to try the offender for the same crime as what was technically called a délit commun. The development of jurisprudence gradually removed from the officialités causes of a purely secular character in which laymen only were concerned, such as wills and contracts; and in matrimonial cases their jurisdiction was limited to those in which the foedus matrimonii was in question. For the acquisition of real property by ecclesiastical establishments the consent of the king to the amortizement was always necessary, even in the case of allodial lands; and if it was a case of feudal tenures the king and the direct overlords alone kept their rights, the intermediate lords being left out of the question.

As regards the conferring of ecclesiastical benefices, from the 14th century onwards the papacy encroached more and more upon the rights of the bishops, in whose gift the inferior benefices generally were, and of the electors, who Papal encroachments. usually conferred the superior benefices; at the same time it exacted from newly appointed incumbents heavy dues, which were included under the generic name of annates (q.v.). During the Great Schism of the Western Church, these abuses became more and more crying, until by a series of edicts, promulgated with the consent and advice of the parlement and the clergy, the Gallican Church was restored to the possession of its former liberties, under the royal authority. Thus France was ready to accept the decrees of reform issued by the council of Basel (q.v.), which she did, with a few modifications, in the Pragmatic Sanction of Charles VII., adopted after a solemn assembly of the clergy and nobles at Bourges and registered by the parlement of Paris in 1438. It suppressed the annates and most of the means by which the popes disposed of the inferior benefices: the reservations and the gratiae expectativae. For the choice of bishops and abbots, it restored election by the chapters and convents. The Pragmatic Sanction, however, was never recognized by the papacy, nor was it consistently and strictly applied by the royal power. The transformation of the civil and criminal law under the influence of Roman and canon law had become more and more marked. The production of the coutumiers, or livres de pratiques, also continued. The chief of them were: in the 14th century, the Stylus Vetus Curiae Parlamenti of Guillaume de Breuil; the Très ancienne coutume de Bretagne; the Grand Coutumier de France, or Coutumier de Charles VI.; the Somme rural of Boutillier; in the 15th century, for Auvergne, the Practica forensis of Masuer. Charles VII., in an article of the Grand Ordonnance of Montil-les-Tours (1453), ordered the general customs to be officially recorded under the supervision of the crown. It was an enormous work, which would almost have transformed them into written laws; but up to the 16th century little recording was done, the procedure established by the Ordonnance for the purpose not being very suitable.

The Absolute Monarchy.—From the 16th century to the Revolution was the period of the absolute monarchy, but it can be further divided into two periods: that of the establishment of this régime, from 1515 to about Government under the absolute monarchy. 1673; and that of the ancien régime when definitively established, from 1673 to 1789. The reigns of Francis I. and Henry II. clearly laid down the principle of the absolute power of the crown and applied it effectually, as is plainly seen from the temporary disappearance of the states general, which were not assembled under these two reigns. There were merely a few assemblies of notables chosen by the royal power, the most important of which was that of Cognac, under Francis I., summoned to advise on the non-fulfilment of the treaty of Madrid. It is true that in the second half of the 16th century the states general reappeared. They were summoned in 1560 at Orleans, then in 1561 at Pontoise, and in 1576 and 1588 at Blois. The League even convoked one, which was held at Paris in 1593. This represented a crucial and final struggle. Two points were then at issue: firstly, whether France was to be Protestant or Catholic; secondly, whether she was to have a limited or an absolute monarchy. The two problems were not necessarily bound up with one another. For if the Protestants desired political liberty, many of the Catholics wished for it too, as is proved by the writings of the time, and even by the fact that the League summoned the estates. But the states general of the 16th century, in spite of their good intentions and the great talents which were at their service, were dominated by religious passions, which made them powerless for any practical purpose. They only produced a few great ordinances of reform, which were not well observed. They were, however, to be called together yet again, as a result of the disturbances which followed the death of Henry IV.; but their dissensions and powerlessness were again strikingly exemplified and they did not reappear until 1789. Other bodies, however, which the royal power had created, were to carry on the struggle against it. There were the parlements, the political rivals of the states general. Thanks to the principle according to which no law came into effect so long as it had not been registered by them, they had, as we have seen, won for themselves the right of a preliminary discussion of those laws which were presented to them, and of refusing registration, explaining their reasons to the king by means of the remontrances. The royal power saw in this merely a concession from itself, a consultative power, which ought to yield before the royal will, when the latter was clearly manifested, either by lettres de jussion or by the actual words and presence of the king, when he came in person to procure the registration of a law in a so-called lit de justice. But from the 16th century onwards the members of the parlements claimed, on the strength of a historical theory, to have inherited the powers of the ancient assemblies (the Merovingian and Carolingian placita and the curia regis), powers which they, moreover, greatly exaggerated. The successful assertion of this claim would have made them at once independent of and necessary to the crown. During the minority of kings, they had possessed, in fact, special opportunities for asserting their pretensions, particularly when they had been called upon to intervene in the organization of the regency. It is on this account that at the beginning of the reign of Louis XIV. the parlement of Paris wished to take part in the government, and in 1648, in concert with the other supreme courts of the capital, temporarily imposed a sort of charter of liberties. But the first Fronde, of which the parlement was the centre and soul, led to its downfall, which was completed when later on Louis XIV. became all-powerful. The ordinance of 1667 on civil procedure, and above all a declaration of 1673, ordered the parlement to register the laws as soon as it received them and without any modification. It was only after this registration that they were allowed to draw up remonstrances, which were henceforth futile. The nobles, as a body, had also become politically impotent. They had been sorely tried by the wars of religion, and Richelieu, in his struggles against the governors of the provinces, had crushed their chief leaders. The second Fronde was their last effort (see Fronde). At the same time the central government underwent changes. The great officers of the crown disappeared one by one. The office of constable of France was suppressed by purchase during the first half of the 17th century, and of those in the first rank only the chancellor survived till the Revolution. But though his title could only be taken from him by condemnation on a capital charge, the king was able to deprive him of his functions by taking from him the custody and use of the seal of France, which were entrusted to a garde des sceaux. Apart from the latter, the king’s real ministers were the secretaries of state, generally four in number, who were always removable and were not chosen from among the great nobles. For purposes of internal administration, the provinces were divided among them, each of them corresponding by despatches with those which were assigned to him. Any other business (with the exception of legal affairs, which belonged to the chancellor, and finance, of which we shall speak later) was divided among them according to convenience. At the end of the 16th century, however, were evolved two regular departments, those of war and foreign affairs. Under Francis I. and Henry II., the chief administration of finance underwent a change; for the four généraux des finances, who had become too powerful, were substituted the intendants des finances, one of whom soon became a chief minister of finance, with the title surintendant. The généraux des finances, like the trésoriers de France, became provincial officials, each at the head of a généralité (a superior administrative district for purposes of finance); under Henry II. the two functions were combined and assigned to the bureaux des finances. The fall of Fouquet led to the suppression of the office of surintendant; but soon Colbert again became practically a minister of finance, under the name of contrôleur général des finances, both title and office continuing to exist up to the Revolution.

The conseil du roi, the origin of which we have described, was an important organ of the central government, and for a long time included among its members a large number of representatives of the nobility and clergy. Besides the councillors of state (conseillers d’état), its ordinary members, the great officers of the crown and secretaries of state, princes of the blood and peers of France were members of it by right. Further, the king was accustomed to grant the brevet of councillor to a great number of the nobility and clergy, who could be called upon to sit in the council and give an opinion on matters of importance. But in the 17th century the council tended to differentiate its functions, forming three principal sections, one for political, one for financial, and the third for legal affairs. Under Louis XIV. it took a definitely professional, administrative and technical character. The conseillers à brevet were all suppressed in 1673, and the peers of France ceased to be members of the council. The political council, or conseil d’en haut, had no ex officio members, not even the chancellor; the secretary of state for foreign affairs, however, necessarily had entry to it; it also included a small number of persons chosen by the king and bearing the title of ministers of state (ministres d’état). The other important sections of the conseil du roi were the conseil des finances, organized after the fall of Fouquet, and the conseil des dépêches, in which sat the four secretaries of state and where everything concerned with internal administration (except finance) was dealt with, including the legal business connected with this administration. As to the government and the preparation of laws, under Louis XIV. and Louis XV., the conseil du roi often passed into the background, when, as the saying went, a minister who was projecting some important measure travaillait seul avec le roi (worked alone with the king), having from the outset gained the king’s ear.

The chief authority in the provincial administration belonged in the 16th century to the governors of the provinces, though, strictly speaking, the governor had only military powers in his gouvernement; for, as we have seen, he Provincial administration. was the direct representative of the king for general purposes. But at the end of this century were created the intendants of the provinces, who, after a period of conflict with the governors and the parlements, became absolute masters of the administration in all those provinces which had no provincial estates, and the instruments of a complete administrative centralization (see Intendant).

The towns having a corps de ville, that is to say, a municipal organization, preserved in the 16th century a fairly wide autonomy, and played an important part in the wars of religion, especially under the League. But under The towns. Louis XIV. their independence rapidly declined. They were placed under the tutelage of the intendants, whose sanction, or that of the conseil du roi, was necessary for all acts of any importance. In the closing years of the 17th century, the municipal officials ceased, even in principle, to be elective. Their functions ranked as offices which were, like royal offices, saleable and heritable. The pretext given by the edicts were the intrigues and dissensions caused by the elections; the real cause was that the government wanted to sell these offices, which is proved by the fact that it frequently allowed towns to redeem them and to re-establish the elections.

The sale of royal offices is one of the characteristic features of the ancien régime. It had begun early, and, apparently, with the office of councillor of the parlement of Paris, when this became permanent, in the second half of the 14th Sale of offices. century. It was first practised by magistrates who wished to dispose of their office in favour of a successor of their own choice. The resignatio in favorem of ecclesiastical benefices served as model, and at first care was taken to conceal the money transaction between the parties. The crown winked at these resignations in consideration of a payment in money. But in the 16th century, under Francis I. at the latest, the crown itself began officially to sell offices, whether newly created or vacant by the death of their occupiers, taking a fee from those upon whom they were conferred. Under Charles IX. the right of resigning in favorem was recognized by law in the case of royal officials, in return for a payment to the treasury of a certain proportion of the price. In the case of judicial offices there was a struggle for at least two centuries between the system of sale and another, also imitated from canon law, i.e. the election or presentation of candidates by the legal corporations. The ordinances of the second half of the 16th century, granted in answer to complaints of the states general, restored and confirmed the latter system, giving a share in the presentation to the towns or provincial notables and forbidding sales. The system of sale, however, triumphed in the end, and, in the case of judges, had, moreover, a favourable result, assuring to them that irremovability which Louis XI. had promised in vain; for, under this system, the king could not reasonably dismiss an official arbitrarily without refunding the fee which he had paid. On the other hand, it contributed to the development of the épices, or dues paid by litigants to the judges. The system of sale, and with it irremovability, was extended to all official functions, even to financial posts. The process was completed by the recognition of the rights in the sale of offices as hereditary, i.e. the right of resigning the office on payment of a fee, either in favour of a competent descendant or of a third party, passed to the heirs of an official who had died without having exercised this right himself. It was established under Henry IV. in 1604 by the system called the Paulette, in return for the payment by the official of an annual fee (droit annuel) which was definitely fixed at a hundredth part of the price of the office. Thus these offices, though the royal nomination was still required as well as the professional qualifications required by the law, became heritable property in virtue of the finance attached to them. This led to the formation of a class of men who, though bound in many ways to the crown, were actually independent. Hence the tendency in the 18th century to create new and important functions under the form, not of offices, but of simple commissions.