Chapter III: Part 3

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 regime_. 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 Academie des Inscriptions et Belles-lettres, began to reissue the
two series of the _Memoires_ and of the _Notices et extraits des
manuscrits tires de la bibliotheque royale_ (the first volume had
appeared in 1787); began (1844) that of the _Memoires presentes 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, pouilles, comptes_, &c.), the _Ordonnances_ and the _Table
chronologique des diplomes_. 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 Comite des Travaux historiques et scientifiques, under the
direction of which have been published: (1) the _Collection des
documents inedits relatifs a l'histoire de France_ (more than 260
vols. have appeared since 1836); (2) the _Catalogue general des
manuscrits des bibliotheques de France_; (3) the _Dictionnaires
topographiques_ (25 vols. have appeared); and the _Repertoires
archeologiques_ 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 Academie Celtique (1804), which in 1813
became the Societe des Antiquaires de France (general index by M.
Prou, 1894); the Societe de l'Histoire de France (1834); the Societe
de l'Ecole des Chartes (1839); the Societe de l'Histoire de Paris et
de l'Ile-de-France (1874; four decennial indexes), &c. The details
will be found in the excellent _Bibliographie generale des travaux
historiques et archeologiques publies par les societes 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 memoires relatifs
a l'histoire de France_ (31 vols., 1824-1835); Buchon, a _Collection
des chroniques nationales francaises ecrites en langue vulgaire du
XIII^e au XVI^e siecle_ (47 vols., 1824-1829), and a _Choix de
chroniques et memoires sur l'histoire de France_ (14 vols.,
1836-1841); Petitot and Monmerque, a _Collection de memoires relatifs
a l'histoire de France_ (131 vols., 1819-1829); Michaud and Poujoulat,
a _Nouvelle Collection de memoires pour servir a l'histoire de France_
(32 vols., 1836-1839); Barriere and de Lescure, a _Bibliotheque de
memoires relatifs a l'histoire de France pendant le XVIII^e siecle_
(30 vols., 1855-1875); and finally Berville and Barriere, a
_Collection des memoires relatifs a la Revolution Francaise_ (55
vols., 1820-1827). The details are to be found in the _Sources de
l'histoire de France_, by Alfred Franklin (1876). The abbe 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 tresor 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 Bibliotheque imperiale had
printed the _Catalogue general 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 Ecole des Chartes produces some
excellent palaeographers, as for instance Natalis de Wailly (_Elements
de paleographie_, 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. Leopold Delisle_,
1902); Anatole de Barthelemy made a study of coins and medals, Douet
d'Arcq and G. Demay of seals. The works of Alexandre Lenoir (_Musee
des monuments francais_, 1800-1822), of Arcisse de Caumont (_Histoire
de l'architecture du moyen age_, 1837; _Abecedaire ou rudiment
d'archeologie_, 1850), of A. Napoleon Didron (_Annales
archeologiques_, 1844), of Jules Quicherat (_Melanges d'archeologie et
d'histoire_, published after his death, 1886), and the dictionaries of
Viollet le Duc (_Dictionnaire raisonne de l'architecture francaise_,
1853-1868; _Dictionnaire du mobilier francais_, 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. Francois
Guizot treated of the _Histoire de la civilisation en France_
(1828-1830); Augustin Thierry after the _Recits des temps
merovingiens_ (1840) published the _Monuments de l'histoire du tiers
etat_ (1849-1856), the introduction to which was expanded into a book
(1855); Charles Simonde de Sismondi produced a mediocre _Histoire des
francais_ 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 regime_. Finally J. Michelet,
in his _Histoire de France_ (17 vols., 1833-1856) and his _Histoire de
la Revolution_ (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 Ecole des Hautes Etudes,
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 _seminaire_ of Gabriel Monod came men of learning, already
prepared by studying at the Ecole 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 Ecole des Hautes
Etudes 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 Ecole du Louvre
(1881) increased the value of the museums and placed the history of
art among the studies of higher education, while the Musee
archeologique 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 donnees aux ambassadeurs
depuis le traite 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 _Bibliotheque historique_ of Pere 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 Societe de Bibliographie (_Polybiblion_, from
1868 on, &c.); the _Bibliographie de l'histoire de France_, by Gabriel
Monod (1888); the _Repertoire_ of the abbe 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 litterature_ (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
_Repertoire methodique_ (1898 fol.); the _Revue de synthese
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_.

Character of the Merovingian kingship.

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 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.

Position of the Church.

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 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.

Carolingian period.

Beginnings of the feudal system.

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 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 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.

Reforms of Charlemagne.

Carolingian fiscal system.

The Church under Charlemagne.

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_ 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 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 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.

The law under the Frank monarchy.

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 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 _personnalite 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 Eugene de Roziere 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 regime, 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.

Anarchy and feudal origins.

_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 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).

Private war.

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 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 See, 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. See, 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.

The royal power.

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 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_.

The Church.

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 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'eglise, course de chretiente_). 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 feudal monarchy.

Roman law.

The customs.

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; 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 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 ecrit_, 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_, 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.

Final organization of feudalism.

Feudal character of justice.

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_ 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 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 _arriere-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 _preciput_. 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.

Rise of the privileged towns.

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 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 juree_ 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 regime_, refounded for their profit the territorial sovereignty of France.

Great officers of the crown and peers of France.