Chapter IV: Part 4

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 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 _maitres des requetes_.

Growth of the royal power.

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. 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 (_prevots_) 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.

Nobles, commons and the Church in the 13th century.

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 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 _officialite_ 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.

Changes in criminal law.

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 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 _procedure a l'extraordinaire_ of the _ancien regime_, 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.

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 coutumiere_) they were defined when necessary by the verdict of a jury of practitioners in what was called the _enquete 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 _Tres ancienne coutume de Normandie_ and the _Grand Coutumier de Normandie_; the _Conseil a un ami of Pierre des Fontaines_, the _Etablissements 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 _secretaires des commandements du roi_ of the 15th century, who in the 16th century developed into the _secretaires d'etat_, and were themselves descended from the _clercs du secret_ and _secretaires 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.

States general and provincial estates.

At the beginning of the 14th century appeared the states general (_etats generaux_), which were often convoked, though not at fixed intervals, throughout the whole of the 14th century and the greater part of the 15th. Their 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.

Royal taxation.

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 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 generaux_ or _generaux des finances_, and further, for each diocese or equivalent district, _elus_. 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 _generaux_ and _elus_ were nominated by the king. The _elus_, or _officiers des elections_, only existed in districts which were subject to the royal _taille_; hence the division, so important in old France, into _pays d'elections_ and _pays d'etats_. The _elus_ kept both administration and jurisdiction; but in the higher stage a differentiation was made: the _generaux 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 _generaux des finances_, who administered the taxation, there were four Treasurers of France (_tresoriers 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.

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 _arriere-ban_, a term which had formerly applied to the _levee 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 generaux_. 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 law courts.

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 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, CHATELET). 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 (_prevots des marechaux de France_), who were officers of the _Marechaussee_ (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, requete civile, pourvoi en revision_). In these cases the king was supposed to judge in person; in reality they were examined by the _maitres des requetes_ 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 prive_ 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 _benefices_, 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 grace_ 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 Church.

The condition of the Church changed greatly during this period. The jurisdiction of the _officialites_ was very much reduced, even over the clergy. They ceased to be competent to judge actions concerning the possession of real property, in which the clergy were defendants. In criminal law the theory of the _cas privilegie_, 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 _delit commun_. The development of jurisprudence gradually removed from the _officialites_ 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.

Papal encroachments.

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 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 _Tres 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.

Government under the absolute monarchy.

_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 regime, from 1515 to about 1673; and that of the _ancien regime_ 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 _generaux 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 _generaux des finances_, like the _tresoriers_ de France, became provincial officials, each at the head of a _generalite_ (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 _controleur general 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'etat_), 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 a 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'etat_). The other important sections of the conseil du roi were the _conseil des finances_, organized after the fall of Fouquet, and the _conseil des depeches_, 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.

Provincial administration.

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 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.

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 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.

Sale of offices.

The sale of royal offices is one of the characteristic features of the _ancien regime_. 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 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 _epices_, 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.

Fundamental laws of France.

In this period of the history of France were evolved and defined the essential principles of the old public law. There were, in the first place, the _fundamental laws of the realm_, which were true constitutional principles, established for the most part not by law but by custom, and considered as binding in respect of the king himself; so that, although he was sovereign, he could neither abrogate, nor modify, nor violate them. There was, however, some discussion as to what rules actually came under this category, except in the case of two series about which there was no doubt. These were, on the one hand, those which dealt with the succession to the crown and forbade the king to change its order, and those which proclaimed the inalienability of the royal domain, against which no title by prescription was valid. This last principle, introduced in the 14th century, had been laid down and defined by the edict of Moulins in 1566; it admitted only two exceptions: the formation of appanages (q.v.), and selling (_engagement_), to meet the necessities of war, with a perpetual option of redeeming it.

There was in the second place the theory of the rights, franchises and liberties of the Gallican Church, formed of elements some of which were of great antiquity, and based on the conditions which had determined the relations of the Gallican Church with the crown and papacy during the Great Schism and under the Pragmatic Sanction of Bourges, and defined at the end of the 16th and the beginning of the 17th century. This body of doctrine was defined by the writings of three men especially, Guy Coquille, Pierre Pithou and Pierre Dupuy, and was solemnly confirmed by the declaration of the clergy of France, or _Declaration des quatres articles_ of 1682, and by the edict which promulgated it. Its substance was based chiefly on three principles: firstly, that the temporal power was absolutely independent of the spiritual power; secondly, that the pope had authority over the clergy of France in temporal matters and matters of discipline only by the consent of the king; thirdly, that the king had authority over and could legislate for the Gallican Church in temporal matters and matters of discipline. The old public law provided a safeguard against the violation of these rules. This was the process known as the _appel comme d'abus_, formed of various elements, some of them very ancient, and definitely established during the 16th century. It was heard before the parlements, but could, like every other case, be evoked before the royal council. Its effect was to annul any act of the ecclesiastical authority due to abuse or contrary to French law. The clergy were, when necessary, reduced to obedience by means of arbitrary fines and by the seizure of their temporalities. The Pragmatic Sanction had been abrogated and replaced by the Concordat of 1515, concluded between Francis I. and Leo X., which remained in force until suppressed by the Constituent Assembly. The Concordat, moreover, preserved many of the enactments of the Pragmatic Sanction, notably those which protected the collation of the inferior benefices from the encroachments of the papacy, and which had introduced reforms in certain points of discipline. But in the case of the superior benefices (bishoprics and abbeys) election by the chapters was suppressed. The king of France nominated the candidate, to whom the pope gave canonical institution. As a matter of fact, the pope had no choice; he had to institute the nominee of the king, unless he could show his unworthiness or incapacity, as the result of inquiries regularly conducted in France; for the pope it was, as the ancient French authors used to say, a case of compulsory collation. The annates were re-established at the time of the Concordat, but considerably diminished in comparison with what they had been before the Pragmatic Sanction. We must add, to complete this account, that many of the inferior benefices, in France as in the rest of Christendom, were conferred according to the rules of patronage, the patron, whether lay or ecclesiastic, presenting a candidate whom the bishop was bound to appoint, provided he was neither incapable nor unsuitable. There was some difficulty in getting the Concordat registered by the parlement of Paris, and the latter even announced its intention of not taking the Concordat into account in those cases concerning benefices which might come before it. The crown found an easy method of making this opposition ineffectual, namely, to transfer to the Grand Conseil the decision of cases arising out of the application of the Concordat.

In the 16th century also, contributions to the public services drawn from the immense possessions of the clergy were regularized. Since the second half of the 12th century at least, the kings had in times of urgent need asked for subsidies from the church, and ever since the Saladin tithe (_dime saladine_) of Philip Augustus this contribution had assumed the form of a tithe, taking a tenth part of the revenue of the benefices for a given period. Tithes of this kind were fairly frequently granted by the clergy of France, either with the pope's consent or without (this being a disputed point). After the conclusion of the Concordat, Leo X. granted the king a tithe (_decime_) under the pretext of a projected war against the Turks; hitherto concessions of this kind had been made by the papacy in view of the Crusades or of wars against heretics. The concession was several times renewed, until, by force of custom, the levying of these tithes became permanent. But in the middle of the 16th century the system changed. The crown was heavily in debt, and its needs had increased. The property of the clergy having been threatened by the states general of 1560 and 1561, the king proposed to them to remit the bulk of the tithes and other dues, in return for the payment by them of a sum equivalent to the proceeds of the taxes which he had mortgaged. A formal contract to this effect was concluded at Poissy in 1561 between the king and the clergy of France, represented by the prelates who were then gathered together for the Colloquy of Poissy with the Protestants, and some of those who had been sitting at the states general of Pontoise. The fulfilment of this agreement was, however, evaded by the king, who diverted part of the funds provided by the clergy from their proper purpose. In 1580, after a period of ten years which had been agreed on, a new assembly of the clergy was called together and, after protesting against this action, renewed the agreement, which was henceforward always renewed every ten years. Such was the definitive form of the contribution of the clergy, who also acquired the right of themselves assessing and levying these taxes on the holders of benefices. Thus every ten years there was a great assembly of the clergy, the members of which were elected. There were two stages in the election, a preliminary one in the dioceses and a further election in the ecclesiastical provinces, each province sending four deputies to the general assembly, two of the first rank, that is to say, chosen from the episcopate, and two of the second rank, which included all the other clergy. The _dons gratuits_ (benevolences) voted by the assembly comprised a fixed sum equivalent to the old tithes and supplementary sums paid on one occasion only, which were sometimes considerable. The church, on her side, profited by this arrangement in order to obtain the commutation or redemption of the taxes affecting ecclesiastics considered as individuals. This settlement only applied to the "clergy of France," that is to say, to the clergy of those districts which were united to the crown before the end of the 16th century. The provinces annexed later, called _pays etrangers_, or _pays conquis_, had in this matter, as in many others, an arrangement of their own. At last, under Louis XV. the edict of 1749, _concernant les etablissements et acquisitions des gens de mainmorte_, was completely effective in subordinating the acquisition of property by ecclesiastical establishments to the consent and control of the crown, rendering them incapable of acquiring real property by bequests.

At the end of the 16th century a wise law had been made which, in spite of the traces which it bore of past struggles, had established a reasonable balance among the Christians of France. The edict of Nantes, in 1598, granted the Protestants full civil rights, liberty of conscience and public worship in many places, and notably in all the royal _bailliages_. The Catholics, whose religion was essentially a state religion, had never accepted this arrangement as final, and at last, in 1685, under Louis XIV., the edict of Nantes was revoked and the Protestant pastors expelled from France. Their followers were forbidden to leave the country, but many succeeded nevertheless in escaping abroad. The position of those who remained behind was peculiar. Laws passed in 1715 and 1724 established the legal theory that there were no longer any Protestants in France, but only _vieux catholiques_ and _nouveaux convertis_. The result was that henceforth they had no longer any regular civil status, the registers containing the lists of Catholics enjoying civil rights being kept by the Catholic clergy.

The form of government established under Louis XIV. was preserved without any fundamental modification under Louis XV. After the death of Louis XIV., however, the regent, under the inspiration of the duc de St Simon, made trial of a system of which the latter had made a study while in a close correspondence with the duke of Burgundy. It consisted in substituting for the authority of the ministers, secretaries of state and controller-general councils, or governmental bodies, mainly composed of great lords and prelates. These only lasted for a few years, when a return was made to the former organization. The parlements had regained their ancient rights in consequence of the parlement of Paris having, in 1715, set aside the will of Louis XIV. as being contrary to the fundamental laws of the kingdom, in that it laid down rules for the composition of the council of regency, and limited the power of the regent. This newly revived power they exercised freely, and all the more so since they were the last surviving check on the royal authority. During this reign there were numerous conflicts between them and the government, the causes of this being primarily the innumerable incidents to which the bull _Unigenitus_ gave rise, and the increase of taxation; proceedings against Jesuits also figure conspicuously in the action of the parlements. They became at this period the avowed representatives of the nation; they contested the validity of the registration of laws in the _lits de justice_, asserting that laws could only be made obligatory when the registration had been freely endorsed by themselves. Before the registration of edicts concerning taxation they demanded a statement of the financial situation and the right of examining the accounts. Finally, by the theory of the _classes_, which considered the various parlements of France as parts of one and the same body, they established among them a political union. These pretensions the crown refused to recognize. Louis XV. solemnly condemned them in a _lit de justice_ of December 1770, and in 1771 the chancellor Maupeou took drastic measures against them. The magistrates of the parlement of Paris were removed, and a new parlement was constituted, including the members of the _grand conseil_, which had also been abolished. The _cour des aides_ of Paris, which had made common cause with the parlement, was also suppressed. Many of the provincial parlements were reorganized, and a certain number of useful reforms were carried out in the jurisdiction of the parlement of Paris; the object of these, however, was in most cases that of diminishing its importance. These actions, the _coup d'etat_ of the chancellor Maupeou, as they were called, produced an immense sensation. The repeated conflicts of the reign of Louis XV. had already given rise to a whole literature of books, pamphlets and tracts in which the rights of the crown were discussed. At the same time the political philosophy of the 18th century was disseminating new principles, and especially those of the supremacy of the people and the differentiation of powers, the government of England also became known among the French. Thus men's minds were being prepared for the Revolution.