Chapter XI: Part 11

On the death of Charles V., in 1380, his eldest son Charles, who was a minor, was put under the guardianship of his uncles, and one of these, the Duke d'Anjou, assumed the regency by force. He seized upon the royal treasury, which was concealed in the Castle of Melun, and also upon all the savings of the deceased king; and, instead of applying them to alleviate the general burden of taxation, he levied a duty for the first time on the common food of the people. Immediately there arose a general outcry of indignation, and a formidable expression of resistance was made in Paris and in the large towns. Mob orators loudly proclaimed the public rights thus trampled upon by the regent and the King's uncles; the expression of the feelings of the masses began to take the shape of open revolt, when the council of the regency made an appearance of giving way, and the new taxes were suppressed, or, at all events, partially abandoned. The success of the insurrectionary movement, however, caused increased concessions to be demanded by the people. The Jews and tax-collectors were attacked. Some of the latter were hung or assassinated, and their registers torn up; and many of the former were ill-treated and banished, notwithstanding the price they had paid for living in the kingdom.

The assembly of the States, which was summoned by the King's uncles to meet in Paris, sided with the people, and, in consequence, the regent and his brother pretended to acknowledge the justice of the claims which were made upon them in the name of the people, and, on their withdrawing the taxes, order was for a time restored. No sooner, however, was this the case than, in spite of the solemn promises made by the council of regency, the taxes were suddenly reimposed, and the right of farming them was sold to persons who exacted them in the most brutal manner. A sanguinary revolt, called that of the _Maillotins_, burst forth in Paris; and the capital remained for some time in the power of the people, or rather of the bourgeois, who led the mob on to act for them (1381-1382). The towns of Rouen, Rheims, Troyes, Orleans, and Blois, many places in Beauvoise, in Champagne, and in Normandy, followed the example of the Parisians, and it is impossible to say to what a length the revolt would have reached had it not been for the victory over the Flemish at Rosebecque. This victory enabled the King's uncles to re-enter Paris in 1383, and to re-establish the royal authority, at the same time making the _Maillotins_ and their accomplices pay dearly for their conduct. The excise duties, the hearth tax, the salt tax, and various other imposts which had been abolished or suspended, were re-established; the taxes on wine, beer, and other fermented liquors was lowered; bread was taxed twelve deniers per pound, and the duty on salt was fixed at the excessive rate of twenty francs in gold--about 1,200 francs of present money--per hogshead of sixty hundredweight. Certain concessions and compromises were made exceptionally in favour of Artois, Dauphiné, Poitou, and Saintonge, in consideration of the voluntary contributions which those provinces had made.

Emboldened by the success of their exacting and arbitrary rule, the Dukes of Anjou, Burgundy, and Berry, under pretext of requiring money for war expenses, again increased the taxes from the year 1385 to 1388; and the salt tax was raised to forty golden francs, about 24,000 francs of present money, per hogshead. The ecclesiastics paid a half décime to the King, and several décimes to the Pope, but these did not prevent a forced loan being ordered. Happily, Charles VI. about this period attained his majority, and assumed his position as king; and his uncle, the Duke of Bourbon, who was called to the direction of affairs, re-established comparative order in financial matters; but soon after the King's brother, the Duke of Orleans, seized the reins of government, and, jointly with his sister-in-law, Isabel of Bavaria, increased the taxation far beyond that imposed by the Duke d'Anjou. The Duke of Burgundy, called John the Fearless, in order to gratify his personal hatred to his cousin, Louis of Orleans, made himself the instrument of the strong popular feeling by assassinating that prince as he was returning from an entertainment. The tragical death of the Duke of Orleans no more alleviated the ills of France than did that of the Duke of Burgundy sixteen years later--for he in his turn was the victim of a conspiracy, and was assassinated on the bridge of Montereau in the presence of the Dauphin (Fig. 283). The marriage of Isabel of France with the young king Richard of England, the ransom of the Christian prisoners in the East, the money required by the Emperor of Constantinople to stop the invasions of the Turks into Europe, the pay of the French army, which was now permanent, each necessarily required fresh subsidies, and money had to be raised in some way or other from the French people. Distress was at its height, and though the people were groaning under oppression, they continued to pay not only the increased taxes on provisions and merchandise, and an additional general tax, but to submit to the most outrageous confiscations and robbery of the public money from the public treasuries. The State Assemblies held at Auxerre and Paris in 1412 and 1413, denounced the extravagance and maladministration of the treasurers, the generals, the excisemen, the receivers of royal dues, and of all those who took part in the direction of the finances; though they nevertheless voted the taxes, and promulgated most severe regulations with respect to their collection. To meet emergencies, which were now becoming chronic, extraordinary taxes were established, the non-payment of which involved the immediate imprisonment of the defaulter; and the debasement of the coinage, and the alienation of certain parts of the kingdom, were authorised in the name of the King, who had been insane for more than fifteen years. The incessant revolts of the bourgeois, the reappearance of the English on the soil of France, the ambitious rivalry of Queen Isabel of Bavaria leagued with the Duke of Burgundy against the Dauphin, who had been made regent, at last, in 1420, brought about the humiliating treaty of Troyes, by which Henry V., king of England, was to become king of France on the death of Charles VI.

This treaty of Troyes became the cause of, and the pretext for, a vast amount of extortion being practised upon the unfortunate inhabitants of the conquered country. Henry V., who had already made several exactions from Normandy before he had obtained by force the throne of France, did not spare the other provinces, and, whilst proclaiming his good intentions towards his future subjects, he added a new general impost, in the shape of a forced loan, to the taxes which already weighed so heavily on the people. He also issued a new coinage, maintained many of the taxes, especially those on salt and on liquors, even after he had announced his intention of abolishing them.

At the same time the Dauphin Charles, surnamed _Roi de Bourges_, because he had retired with his court and retinue into the centre of the kingdom (1422), was sadly in want of money. He alienated the State revenues, he levied excise duties and subsidies in the provinces which remained faithful to his cause, and he borrowed largely from those members of the Church and the nobility who manifested a generous pity for the sad destiny of the King and the monarchy. Many persons, however, instead of sacrificing themselves for their king and country, made conditions with him, taking advantage of his position. The heir to the throne was obliged in many points to give way, either to a noble whose services he bargained for, or to a town or an abbey whose aid he sought. At times he bought over influential bodies, such as universities and other corporation, by granting exemptions from, or privileges in, matters of taxation, &c. So much was this the case that it may be said that Charles VII. treated by private contract for the recovery of the inheritances of his fathers. The towns of Paris and Rouen, as well as the provinces of Brittany, Languedoc, Normandy, and Guyenne, only returned to their allegiance to the King on conditions more or less advantageous to themselves. Burgundy, Picardy, and Flanders--which were removed from the kingdom of Charles VII. at the treaty of peace of Arras in 1435--cordially adopted the financial system inaugurated by the Duke of Burgundy, Philip the Good.

Charles VII. reconquered his kingdom by a good and wise policy as much as by arms. He, doubtless, had cause to be thankful for the valeur and devotion of his officers, but he principally owed the success of his cause to one man, namely, his treasurer, the famous Jacques Coeur, who possessed the faculty of always supplying money to his master, and at the same time of enriching himself (Fig. 284). Thus it was that Charles VII., whose finances had been restored by the genius of Jacques Coeur, was at last able to re-enter his capital triumphantly, to emancipate Guyenne, Normandy, and the banks of the Loire from the English yoke, to reattach to the crown a portion of its former possessions, or to open the way for their early return, to remove bold usurpers from high places in the State, and to bring about a real alleviation of those evils which his subjects had so courageously borne. He suppressed the fraud and extortion carried on under the name of justice, put a stop to the sale of offices, abolished a number of rates illegally levied, required that the receivers' accounts should be sent in biennially, and whilst regulating the taxation, he devoted its proceeds entirely to the maintenance and pay of the army. From that time taxation, once feudal and arbitrary, became a fixed royal due, which was the surest means of preventing the pillage and the excesses of the soldiery to which the country people had been subjected for many years. Important triumphs of freedom were thus obtained over the tyrannical supremacy of the great vassals; but in the midst of all this improvement we cannot but regret that the assessors, who, from the time of their creation by St. Louis, had been elected by the towns or the corporations, now became the nominees of the crown.

Philip the Good, Duke of Burgundy, taxed his subjects but little: "Therefore," says Philippe de Commines, "they became very wealthy, and lived in much comfort." But Louis XI did not imitate him. His first care was to reinstate that great merchant, that clever financier, Jacques Coeur, to whom, as much as to Joan of Arc, the kingdom owed its freedom, and whom Charles VII., for the most contemptible reasons, had had the weakness to allow to be judicially condemned Louis XI. would have been very glad to entrust the care of his finances to another Jacques Coeur; for being sadly in want of money, he ran through his father's earnings, and, to refill his coffers, he increased taxation, imposed a duty on the importation of wines, and levied a tax on those holding offices, &c. A revolution broke out in consequence, which was only quenched in the blood of the insurgents. In this manner he continued, by force of arms, to increase and strengthen his own regal power at the expense of feudalism.

He soon found himself opposed by the _Ligue du Bien Public_, formed by the great vassals ostensibly to get rid of the pecuniary burden which oppressed the people, but really with the secret intention of restoring feudalism and lessening the King's power. He was not powerful enough openly to resist this, and appeared to give way by allowing the leagued nobles immense privileges, and himself consenting to the control of a sort of council of "thirty-six notables appointed to superintend matters of finance." Far from acknowledging himself vanquished, however, he immediately set to work to cause division among his enemies, so as to be able to overcome them. He accordingly showed favour towards the bourgeois, whom he had already flattered, by granting new privileges, and abolishing or reducing certain vexatious taxes of which they complained. The thirty-six notables appointed to control his financial management reformed nothing. They were timid and docile under the cunning eye of the King, and practically assisted him in his designs; for in a very few years the taxes were increased from 1,800,000 écus--about 45,000,000 francs of present money--to 3,600,000 écus--about 95,000,000 francs. Towards the end of the reign they exceeded 4,700,000 écus--130,000,000 francs of present money. Louis XI. wasted nothing on luxury and pleasure; he lived parsimoniously, but he maintained 110,000 men under arms, and was ready to make the greatest sacrifices whenever there was a necessity for augmenting the territory of the kingdom, or for establishing national unity. At his death, on the 25th of August, 1483, he left a kingdom considerably increased in area, but financialty almost ruined.

When Anne de Beaujeu, eldest sister of the King, who was a minor, assumed the reins of government as regent, an immediate demand was made for reparation of the evils to which the finance ministers had subjected the unfortunate people. The treasurer-general Olivier le Dain, and the attorney-general Jean Doyat, were almost immediately sacrificed to popular resentment, six thousand Swiss were subsidised, the pensions granted during the previous reign were cancelled, and a fourth part of the taxes was removed. Public opinion being thus satisfied, the States-General assembled. The bourgeois here showed great practical good sense, especially in matters of finance; they proved clearly that the assessment was illegal, and that the accounts were fictitious, inasmuch as the latter only showed 1,650,000 livres of subsidies, whereas they amounted to three times as much. It was satisfactorily established that the excise, the salt tax, and the revenues of the public lands amply sufficed for the wants of the country and the crown. The young King Charles was only allowed 1,200,000 livres for his private purse for two years, and 300,000 livres for the expenses of the festivities of his coronation. On the Assembly being dissolved, the Queen Regent found ample means of pleasing the bourgeois and the people generally by breaking through the engagements she had entered into in the King's name, by remitting taxation, and finally by force of arms destroying the power of the last remaining vassals of the crown.

Charles VIII., during a reign of fourteen years, continued to waste the public money. His disastrous expedition for the conquest of the kingdom of Naples forced him to borrow at the rate of forty-two per cent. A short time previous to his death he acknowledged his errors, but continued to spend money, without consideration or restraint, in all kinds of extravagances, but especially in buildings. During his reign the annual expenditure almost invariably doubled the revenue. In 1492 it reached 7,300,000 francs, about 244,000,000 francs of present money. The deficit was made up each year by a general tax, "which was paid neither by the nobles nor the Church, but was obtained entirely from the people" (letters from the ambassadors of Venice).

When the Duke of Orleans ascended the throne as Louis XII., the people were again treated with some consideration. Having chosen George d'Amboise as premier and Florimond Robertet as first secretary of the treasury, he resolutely pursued a course of strict economy; he refused to demand of his subjects the usual tax for celebrating the joyous accession, the taxes fell by successive reductions to the sum of 2,600,000 livres, about 76,000,000 francs of present money, the salt tax was entirely abolished, and the question as to what should be the standard measure of this important article was legislated upon. The tax-gatherers were forced to reside in their respective districts, and to submit their registers to the royal commissioners before beginning to collect the tax. By strict discipline pillage by soldiers was put a stop to (Fig. 288).

Notwithstanding the resources obtained by the King through mortgaging a part of the royal domains, and in spite of the excellent administration of Robertet, who almost always managed to pay the public deficit without any additional tax, it was necessary in 1513, after several disastrous expeditions to Italy, to borrow, on the security of the royal domains, 400,000 livres, 10,000,000 francs of present money, and to raise from the excise and from other dues and taxes the sum of 3,300,000 livres, about 80,000,000 francs of present money. This caused the nation some distress, but it was only temporary, and was not much felt, for commerce, both domestic and foreign, much extended at the same time, and the sale of collectorships, of titles of nobility, of places in parliament, and of nominations to numerous judicial offices, brought in considerable sums to the treasury. The higher classes surnamed the king _Le Roitelet_, because he was sickly and of small stature, parsimonious and economical. The people called him their "father and master," and he has always been styled the father of the people ever since.

In an administrative and financial point of view, the reign of Francis I. was not at all a period of revival or of progress. The commencement of a sounder System of finance is rather to be dated from that of Charles V.; and good financial organization is associated with the names of Jacques Coeur, Philip the Good, Charles XI., and Florimond Robertet. As an example of this, it may be stated that financiers of that time established taxes on registration of all kinds, also on stamps, and on sales, which did not before exist in France, and which were borrowed from the Roman emperors. We must also give them the credit of having first commenced a public debt, under the name of _rentes perpetuelles_, which at that time realised eight per cent. During this brilliant and yet disastrous reign the additional taxes were enormous, and the sale of offices produced such a large revenue that the post of parliamentary counsel realised the sum of 2,000 golden écus, or nearly a million francs of present currency. It was necessary to obtain money at any price, and from any one who would lend it. The ecclesiastics, the nobility, the bourgeois, all gave up their plate and their jewels to furnish the mint, which continued to coin money of every description, and, in consequence of the discovery of America, and the working of the gold and silver mines in that country, the precious metals poured into the hands of the money-changers. The country, however, was none the more prosperous, and the people often were in want of even the commonest necessaries of life. The King and the court swallowed up everything, and consumed all the resources of the country on their luxury and their wars. The towns, the monasteries, and the corporations, were bound to furnish a certain number of troops, either infantry or cavalry. By the establishment of a lottery and a bank of deposit, by the monopoly of the mines and by the taxes on imports, exports, and manufactured articles, enormous sums were realised to the treasury, which, as it was being continually drained, required to be as continually replenished. Francis I. exhausted every source of credit by his luxury, his caprices, and his wars. Jean de Beaune, Baron de Semblançay, the old minister of finance, died a victim to false accusations of having misappropriated the public funds. Robertet, who was in office with him, and William Bochetel, who succeeded him, were more fortunate: they so managed the treasury business that, without meeting with any legal difficulty, they were enabled to centralise the responsibility in themselves instead of having it distributed over sixteen branches in all parts of the kingdom, a system which has continued to our day. In those days the office of superintendent of finance was usually only a short and rapid road to the gibbet of Montfaucon.

Fig. 289.--Royal d'Or. Charles VII Fig. 290.--Écu d'Argent à la Couronne. Louis XI. Fig. 291.--Écu d'Or à la Couronne. Charles VIII. Fig. 292.--Écu d'Or au Porc-épic. Louis XII. Fig. 293.--Teston d'Argent. Francis I. Fig. 294.--Teston d'Argent au Croissant. Henry II. ]

Law and the Administration of Justice.

The Family the Origin of Government.--Origin of Supreme Power amongst
the Franks.--The Legislation of Barbarism humanised by
Christianity.--Right of Justice inherent to the Bight of Property.--The
Laws under Charlemagne.--Judicial Forms.--Witnesses.--Duels, &c.--
Organization of Royal Justice under St. Louis.--The Châtelet and the
Provost of Paris.--Jurisdiction of Parliament, its Duties and its
Responsibilities.--The Bailiwicks. Struggles between Parliament and the
Châtelet.--Codification of the Customs and Usages.--Official
Cupidity.--Comparison between the Parliament and the Châtelet.

Amongst the ancient Celtic and German population, before any Greek or Roman innovations had become engrafted on to their customs, everything, even political power as well as the rightful possession of lands, appears to have been dependent on families. Julius Cæsar, in his "Commentaries," tells us that "each year the magistrates and princes assigned portions of land to families as well as to associations of individuals having a common object whenever they thought proper, and to any extent they chose, though in the following year the same authorities compelled them to go and establish themselves elsewhere." We again find families (_familiæ_) and associations of men (_cognationes hominum_) spoken of by Cæsar, in the barbaric laws, and referred to in the histories of the Middle Ages under the names of _genealogiæ, faramanni, faræ_, &c.; but the extent of the relationship (_parentela_) included under the general appellation of _families_ varied amongst the Franks, Lombards, Visigoths, and Bavarians. Generally, amongst all the people of German origin, the relationship only extended to the seventh degree; amongst the Celts it was determined merely by a common ancestry, with endless subdivisions of the tribe into distinct families. Amongst the Germans, from whom modern Europe has its origin, we find only three primary groups; namely, first, the family proper, comprising the father, mother, and children, and the collateral relatives of all degrees; secondly, the vassals (_ministeriales_) or servants of the free class; and, thirdly, the servants (_mansionarii, coloni, liti, servi_) of the servile class attached to the family proper (Fig. 296).

Domestic authority was represented by the _mund_, or head of the family, also called _rex_ (the king), who exercised a special power over the persons and goods of his dependents, a guardianship, in fact, with certain rights and prerogatives, and a sort of civil and political responsibility attached to it. Thus the head of the family, who was responsible for his wife and for those of his children who lived with him, was also responsible for his slaves and domestic animals. To such a pitch did these primitive people carry their desire that justice should be done in all cases of infringement of the law, that the head was held legally responsible for any injury which might be done by the bow or the sword of any of his dependents, without it being necessary that he should himself have handled either of these weapons.

Long before the commencement of the Merovingian era, the family, whose sphere of action had at first been an isolated and individual one, became incorporated into one great national association, which held official meetings at stated periods on the _Malberg_ (Parliament hill). These assemblies alone possessed supreme power in its full signification. The titles given to certain chiefs of _rex_ (king), _dux_ (duke), _graff_ (count), _brenn_ (general of the army), only defined the subdivisions of that power, and were applied, the last exclusively, to those engaged in war, and the others to those possessing judicial and administrative functions. The duty of dispensing justice was specially assigned to the counts, who had to ascertain the cause of quarrels between parties and to inflict penalties. There was a count in each district and in each important town; there were, besides, several counts attached to the sovereign, under the title of counts of the palace (_comites palatii_), an honourable position, which was much sought after and much coveted on account of its pecuniary and other contingent advantages. The counts of the palace deliberated with the sovereign on all matters and all questions of State, and at the same time they were his companions in hunting, feasting, and religious exercises; they acted as arbitrators in questions of inheritance of the crown; during the minority of princes they exercised the same authority as that which the constitution gave to sovereigns who were of full age; they confirmed the nominations of the principal functionaries and even those of the bishops; they gave their advice on the occasion of a proposed alliance between one nation and another, on matters connected with treaties of peace or of commerce, on military expeditions, or on exchanges of territory, as well as in reference to the marriage of a prince, and they incurred no responsibility beyond that naturally attached to persons in so distinguished a position among a semi-barbarous community. At first the legates (_legati_), and afterwards the King's ambassadors (_missi dominici_), the bishops and the dukes or commanders of the army were usually selected from the higher court officials, such as the counts of the palace, whereas the _ministeriales_, forming the second class of the royal officials, filled inferior though very honourable and lucrative posts of an administrative and magisterial character.

Under the Merovingians the legal principle of power was closely bound up with the possession of landed property. The subdivision of that power, however, closely followed this union, and the constant ruin of some of the nobles rapidly increased the power of others, who absorbed to themselves the lost authority of their more unfortunate brethren, so much so that the Frank kings perceived that society would soon escape their rule unless they speedily found a remedy for this state of things. It was then that the _lois Salique_ and _Ripuaire_ appeared, which were subjected to successive revisions and gradual or sudden modifications, necessitated by political changes or by the increasing exigencies of the prelates and nobles. But, far from lessening the supremacy of the King, the national customs which were collected in a code extended the limits of the royal authority and facilitated its exercise.

In 596, Childebert, in concert with his _leudes_, decided that in future the crime of rape should be punished with death, and that the judge of the district (_pagus_) in which it had been committed should kill the ravisher, and leave his body on the public road. He also enacted that the homicide should have the same fate. "It is just," to quote the words of the law, "that he who knows how to kill should learn how to die." Robbery, attested by seven witnesses, also involved capital punishment, and a judge convicted of having let a noble escape, underwent the same punishment that would have been inflicted on the criminal. The punishment, however, differed according to the station of the delinquent. Thus, for the non-observance of Sunday, a Salian paid a fine of fifteen sols, a Roman seven and a half sols, a slave three sols, or "his back paid the penalty for him." At this early period some important changes in the barbaric code had been made: the sentence of death when once given had to be carried out, and no arrangements between the interested parties could avert it. A crime could no longer be condoned by the payment of money; robbery even, which was still leniently regarded at that time, and beyond the Rhine even honoured, was pitilessly punished by death. We therefore cannot have more striking testimony than this of the abridgment of the privileges of the Frankish aristocracy, and of the progress which the sovereign power was making towards absolute and uncontrolled authority over cases of life and death. By almost imperceptible steps Roman legislation became more humane and perfect, Christianity engrafted itself into barbarism, licentiousness was considered a crime, crime became an offence against the King and society, and it was in one sense by the King's hand that the criminals received punishment.

From the time of the baptism of Clovis, the Church had much to do with the re-arrangement of the penal code; for instance, marriage with a sister-in-law, a mother-in-law, an aunt, or a niece, was forbidden; the travelling shows, nocturnal dances, public orgies, formerly permitted at feasts, were forbidden as being profane. In the time of Clotaire, the prelates sat as members of the supreme council, which was strictly speaking the highest court of the land, having the power of reversing the decisions of the judges of the lower courts. It pronounced sentence in conjunction with the King, and from these decisions there was no appeal. The nation had no longer a voice in the election of the magistrates, for the assemblies of _Malberg_ did not meet except on extraordinary occasions, and all government and judicial business was removed to the supreme and often capricious arbitration of the King and his council.

As long as the mayors of the palace of Austrasia, and of that of Burgundy, were only temporarily appointed, royal authority never wavered, and the sovereign remained supreme judge over his subjects. Suddenly, however, after the execution of Brunehaut, who was sacrificed to the hatred of the feudal lords, the mayoralty of the palace became a life appointment, and, in consequence, the person holding the office became possessed almost of supreme power, and the rightful sovereigns from that time practically became subject to the authority of the future usurpers of the crown. The edict of 615, to which the ecclesiastical and State nobility were parties, was in its laws and customs completely at variance with former edicts. In resuming their places in the French constitution, the Merovingian kings, who had been deprived both of influence and authority, were compelled by the Germanic institutions to return to the passive position which their predecessors had held in the forests of Germany, but they no longer had, like the latter, the prestige of military authority to enable them to keep the position of judges or arbitrators. The canons of the Council of Paris, which were confirmed by an edict of the King bearing date the 15th of the calends of November, 615, upset the political and legal system so firmly established in Europe since the fifth century. The royal power was shorn of some of its most valuable prerogatives, one of which was that of selecting the bishops; lay judges were forbidden to bring an ecclesiastic before the tribunals; and the treasury was prohibited from seizing intestate estates, with a view to increasing the rates and taxes; and it was decreed that Jews should not be employed in collecting the public taxes. By these canons the judges and other officers of State were made responsible, the benefices which had been withdrawn from the _leudes_ were restored, the King was forbidden from granting written orders (_præcepta_) for carrying off rich widows, young virgins, and nuns; and the penalty of death was ordered to be enforced against those who disobeyed the canons of the council. Thence sprung two new species of legislation, one ecclesiastical, the other civil, between which royalty, more and more curtailed of its authority, was compelled for many centuries to struggle.

Amongst the Germanic nations the right of justice was inherent to landed property from the earliest times, and this right had reference to things as well as to persons. It was the patronage (_patrocinium_) of the proprietor, and this patronage eventually gave origin to feudal jurisdictions and to lordly and customary rights in each domain. We may infer from this that under the two first dynasties laws were made by individuals, and that each lord, so to speak, made his own.

The right of jurisdiction seems to have been so inherent to the right of property, that a landed proprietor could always put an end to feuds and personal quarrels, could temporarily bring any lawsuit to a close, and, by issuing his _ban_, stop the course of the law in his own immediate neighbourhood--at least, within a given circumference of his residence. This was often done during any family festival, or any civil or religious public ceremony. On these occasions, whoever infringed the _ban_ of the master, was liable to be brought before his _court_, and to have to pay a fine. The lord who was too poor to create a court of sufficient power and importance obtained assistance from his lord paramount or relinquished the right of justice to him; whence originated the saying, "The fief is one thing, and justice another."

The law of the Visigoths speaks of nobles holding local courts, similar to those of the official judge, count, or bishop. King Dagobert required the public and the private judges to act together. In the law of Lombardy landlords are mentioned who, in virtue of the double title of nobles and judges, assumed the right of protecting fugitive slaves taking shelter in their domains. By an article of the Salie law, the noble is made to answer for his vassal before the court of the count. We must hence conclude that the landlord's judgment was exercised indiscriminately on the serfs, the colons, and the vassals, and a statute of 855 places under his authority even the freemen who resided with other persons.

From these various sources we discover a curious fact, which has hitherto remained unnoticed by historians--namely, that there existed an intermediate legislation between the official court of the count and his subordinates and the private courts, which was a kind of court of arbitration exercised by the neighbours (_vicini_) without the assistance of the judges of the county, and this was invested with a sort of authority which rendered its decisions binding.

Private courts, however, were limited in their power. They were neither absolutely independent, nor supreme and without appeal. All conducted their business much in the same way as the high, middle, and lower courts of the Middle Ages; and above all these authorities towered the King's jurisdiction. The usurpation of ecclesiastical bishops and abbots--who, having become temporal lords, assumed a domestic jurisdiction--was curtailed by the authority of the counts, and they were even more obliged to give way before that of the _missi dominici_, or the official delegates of the monarch. Charles the Bald, notwithstanding his enormous concessions to feudalism and to the Church, never gave up his right of final appeal.

During the whole of the Merovingian epoch, the _mahl_ (_mallus_), the general and regular assembly of the nation, was held in the month of March. Persons of every class met there clad in armour; political, commercial, and judicial interests were discussed under the presidency of the monarch; but this did not prevent other special assemblies of the King's court (_curia regalis_) being held on urgent occasions. This court formed a parliament (_parlamentum_), which at first was exclusively military, but from the time of Clovis was composed of Franks, Burgundians, Gallo-Romans, as well as of feudal lords and ecclesiastics. As, by degrees, the feudal System became organized, the convocation of national assemblies became more necessary, and the administration of justice more complicated. Charlemagne decided that two _mahls_ should be held annually, one in the month of May, the other in the autumn, and, in addition, that in each county two annual _plaids_ should meet independently of any special _mahls_ and _plaids_ which it should please him to convoke. In 788, the emperor found it necessary to call three general _plaids_, and, besides these, he was pleased to summon his great vassals, both clerical and lay, to the four principal feasts of the year. It may be asserted that the idea of royalty being the central authority in matters of common law dates from the reign of Charlemagne (Fig. 297).

The authority of royalty based on law took such deep root from that time forth, that it maintained itself erect, notwithstanding the weakness of the successors of the great Charles, and the repeated infractions of it by the Church and the great vassals of the crown (Fig. 298).

The authoritative and responsible action of a tribunal which represented society (Fig. 299) thus took the place of the unchecked animosity of private feuds and family quarrels, which were often avenged by the use of the gibbet, a monument to be found erected at almost every corner. Not unfrequently, in those early times, the unchecked passions of a chief of a party would be the only reason for inflicting a penalty; often such a person would constitute himself sole judge, and, without the advice of any one, he would pass sentence, and even, with his own sword or any other available instrument, he would act as his own executioner. The tribunal thus formed denounced duelling, the pitiless warfare between man and man, and between family and family, and its first care was to protect, not each individual man's life, which was impossible in those days of blind barbarism, but at least his dwelling. Imperceptibly, the sanctuary of a man's house extended, first to towns of refuge, and then to certain public places, such as the church, the _mahlum_, or place of national assemblies, the market, the tavern, &c. It was next required that the accused, whether guilty or not, should remain unharmed from the time of the crime being committed until the day on which judgment was passed.

This right of revenge, besides being thus circumscribed as to locality, was also subject to certain rules as to time. Sunday and the principal feasts of the year, such as Advent, Christmas week, and from that time to the Epiphany, from the Ascension to the Day of Pentecost, certain vigils, &c., were all occasions upon which the right of revenge could not be exercised. "The power of the King," says a clever and learned writer, "partook to a certain degree of that of God and of the Saints; it was his province to calm human passions; by the moral power of his seal and his hand he extended peace over all the great lines of communication, through the forests, along the principal rivers, the highways and the byways, &c. The _Trêve du Dieu_ in 1035, was the logical application of these humane principles."

We must not suppose that justice in those days was dispensed without formalities, and that there were no regular intervals between the various steps to be gone through before final judgment was given, and in consequence of which some guarantee was afforded that the decisions arrived at were carefully considered. No one was tried without having been previously summoned to appear before the tribunal. Under the Carlovingians, as in previous times, the periods when judicial courts were held were regulated by the moon. Preference was given to the day on which it entered the first quarter, or during the full moon; the summonses were returnable by moons or quarter moons--that is, every seventh day. The summons was issued four times, after which, if the accused did not appear, he lost the right of counterplea, or was nonsuited. The Salic law allowed but two summonses before a count, which had to be issued at an interval of forty nights the one from the other. The third, which summoned the accused before the King, was issued fourteen nights later, and if he had not put in an appearance before sunset on the fourteenth day, he was placed _hors de sa parole_, his goods were confiscated, and he forfeited the privilege of any kind of refuge.

Among the Visigoths justice was equally absolute from the count to the tithe-gatherer. Each magistrate had his tribunal and his special jurisdiction. These judges called to their assistance assessors or colleagues, either _rachimbourgs_, who were selected from freemen; or provosts, or _échevins_ (_scabini_), whose appointment was of an official and permanent character. The scabins created by Charlemagne were the first elected magistrates. They numbered seven for each bench. They alone prepared the cases and arranged as to the sentence. The count or his delegate alone presided at the tribunal, and pronounced the judgment. Every vassal enjoyed the right of appeal to the sovereign, who, with his court, alone decided the quarrels between ecclesiastics and nobles, and between private individuals who were specially under the royal protection. Criminal business was specially referred to the sovereign, the _missi_, or the Count Palatine. Final appeal lay with the Count Palatine in all cases in which the public peace was endangered, such as in revolts or in armed encounters.

As early as the time of the invasion, the Franks, Bavarians, and Visigoths, when investigating cases, began by an inquiry, and, previously to having recourse to trials before a judge, they examined witnesses on oath. Then, he who swore to the matter was believed, and acquitted accordingly. This system was no doubt flattering to human veracity, but, unfortunately, it gave rise to abuses; which it was thought would be avoided by calling the family and friends of the accused to take an oath, and it was then administered by requiring them to place their hands on the crucifix, on some relics, or on the consecrated Host. These witnesses, who were called _conjuratores_, came to attest before the judges not the fact itself, but the veracity of the person who invoked their testimony.

The number and respectability of the _conjuratores_ varied according to the importance of the case in dispute. Gregory of Tours relates, that King Gontran being suspicious as to the legitimacy of the child who afterwards became Clotaire II., his mother, Frédégonde, called in the impartial testimony of certain nobles. These, to the number of three hundred, with three bishops at their head (_tribus episcopis et trecentis viris optimis_), swore, or, as we say, made an affidavit, and the queen was declared innocent.

The laws of the Burgundians and of the Anglians were more severe than those of the Germanic race, for they granted to the disputants trial by combat. After having employed the ordeal of red-hot iron, and of scalding water, the Franks adopted the judicial duel (Fig. 300). This was imposed first upon the disputing parties, then on the witnesses, and sometimes even on the judges themselves. Dating from the reign of the Emperor Otho the Great in 967, the judicial duel, which had been at first restricted to the most serious cases, was had recourse to in almost all suits that were brought before the courts. Neither women, old men, children, nor infirm persons were exempted. When a person could not himself fight he had to provide a champion, whose sole business was to take in hand the quarrels of others.

Ecclesiastics were obliged, in the same maimer, to fight by deputy. The champion or substitute required, of course, to be paid beforehand. If the legend of the Dog of Montargis is to be believed, the judicial duel seems to have been resorted to even against an animal (Fig. 301).

In the twelfth century Europe was divided, so to speak, into two vast judicial zones: the one, Southern, Gallo-Roman, and Visigoth; the other, Northern and Western, half Germanic and half Scandinavian, Anglian, or Saxon. Christianity established common ties between these different legislations, and imperceptibly softened their native coarseness, although they retained the elements of their pagan and barbaric origin. Sentences were not as yet given in writing: they were entrusted to the memory of the judges who had issued them; and when a question or dispute arose between the interested parties as to the terms of the decision which had been pronounced, an inquiry was held, and the court issued a second decision, called a _recordatum_.

As long as the King's court was a movable one, the King carried about with him the original text of the law in rolls (_rotuli_). It was in consequence of the seizure of a number of these by the English, during the reign of Philip Augustus in 1194, that the idea was suggested of preserving the text of all the laws as state archives, and of opening authentic registers of decisions in civil and criminal cases. As early as the time of Charles the Bald, the inconvenience was felt of the high court of the count being movable from place to place, and having no special locality where instructions might be given as to modes of procedure, for the hearing of witnesses, and for keeping the accused in custody, &c. A former statute provided for this probable difficulty, but there seems to be no proof that previous to the twelfth century any fixed courts of justice had been established. The Kings, and likewise the counts, held courts in the open air at the entrance to the palace (Fig. 302), or in some other public place--under a large tree, for instance, as St. Louis did in the wood of Vincennes.

M. Desmaze, in his valuable researches on the history of the Parliament of Paris, says--"In 1191, Philip Augustus, before starting for Palestine, established bailiwicks, which held their assizes once a month; during their sitting they heard all those who had complaints to make, and gave summary judgment. The bailiff's assize was held at stated periods from time to time, and at a fixed place; it was composed of five judges, the King deciding the number and quality of the persons who were to take part in the deliberations of the court for each session. The royal court only sat when it pleased the King to order it; it accompanied the King wherever he went, so that it had no settled place of residence."

Louis IX. ordered that the courts of the nobles should be consolidated with the King's court, and succeeded in carrying out this reform. The bailiffs who were the direct delegates of the sovereign power, assumed an authority before which even the feudal lord was obliged to bend, because this authority was supported by the people, who were at that time organized in corporations, and these corporations were again bound together in communes. Under the bailiffs a system was developed, the principles of which more nearly resembled the Roman legislation than the right of custom, which it nevertheless respected, and the judicial trial by duel completely disappeared. Inquiries and appeals were much resorted to in all kinds of proceedings, and Louis IX. succeeded in controlling the power of ecclesiastical courts, which had been much abused in reference to excommunication. He also suppressed the arbitrary and ruinous confiscations which the nobles had unjustly made on their vassals.

The edict of 1276 very clearly established the jurisdiction of parliaments and bailiwicks; it defined the important duties of the bailiffs, and at the same time specified the mode in which proceedings should be taken; it also regulated the duties of counsel, _maîtres des requêtes_, auditors, and advocates.

To the bailiwicks already in existence Louis IX. added the four great assizes of Vermandois, of Sens, of Saint-Pierre-le-Moustier, and of Mâcon, "to act as courts of final appeal from the judgment of the nobles." Philippe le Bel went still further, for, in 1287, he invited "all those who possess temporal authority in the kingdom of France to appoint, for the purpose of exercising civil jurisdiction, a bailiff, a provost, and some serjeants, who were to be laymen, and not ecclesiastics, and if there should be ecclesiastics in the said offices, to remove them." He ordered, besides, that all those who had cases pending before the court of the King and the secular judges of the kingdom should be furnished with lay attorneys; though the chapters, as well as the abbeys and convents, were allowed to be represented by canons. M. Desmaze adds, "This really amounted to excluding ecclesiastics from judicial offices, not only from the courts of the King, but also from those of the nobles, and from every place in which any temporal jurisdiction existed."

At the time of his accession, Hugh Capet was Count of Paris, and as such was invested with judicial powers, which he resigned in 987, on the understanding that his county of Paris, after the decease of the male heirs of his brother Eudes, should return to the crown. In 1032, a new magistrate was created, called the Provost of Paris, whose duty it was to give assistance to the bourgeois in arresting persons for debt. This functionary combined in his own person the financial and political chief of the capital, he was also the head of the nobility of the county, he was independent of the governor, and was placed above the bailiffs and seneschals. He was the senior of the urban magistracy and police, leader of the municipal troops, and, in a word, the prefect (_præfectus urbis_), as he was called under the Emperor Aurelian, or the first magistrate of Lutetia, as he was still called under Clotaire in 663. Assessors were associated with the provost, and together they formed a tribunal, which was afterwards known as the Châtelet (Fig. 303), because they assembled in that fortress, the building of which is attributed to Julius Caesar. The functions of this tribunal did not differ much from those of the royal _châtellenies:_ its jurisdiction embraced quarrels between individuals, assaults, revolts, disputes between the universities and the students, and improper conduct generally (_ribaudailles_), in consequence of which the provost acquired the popular surname of _Roi des Ribauds_. At first his judgment was final, but very soon those under his jurisdiction were allowed to appeal to Parliament, and that court was obliged to have certain cases sent back for judgment from the Châtelet. This was, however, done only in a few very important instances, notwithstanding frequent appeals being made to its supreme arbitration.

In addition to the courts of the counts and bailiffs established in certain of the large towns, aldermanic or magisterial courts existed, which rather resembled the Châtelet of Paris. Thus the _capiloulat_ of Toulouse, the senior alderman of Metz, and the burgomaster of Strasburg and Brussels, possessed in each of these towns a tribunal, which judged without appeal, and united the several functions of a civil, criminal, and simple police court. Several places in the north of France had provosts who held courts whose duties were various, but who were principally charged with the maintenance of public order, and with suppressing disputes and conflicts arising from the privileges granted to the trade corporations, whose importance, especially in Flanders, had much increased since the twelfth century.

"On his return from abroad, Louis IX. took his seat upon the bench, and administered justice, by the side of the good provost of Paris." This provost was no other than the learned Estienne Boileau, out of respect to whom the provostship was declared a _charge de magistrature_. The increase of business which fell to the provost's office, especially after the boundaries of Paris were extended by Philip Augustus, caused him to be released from the duty of collecting the public taxes. He was authorised to furnish himself with competent assistants, who were employed with matters of minor detail, and he was allowed the assistance of _juges auditeurs_. "We order that they shall be eight in number," says an edict of Philippe le Bel, of February, 1324, "four of them being ecclesiastics and four laymen, and that they shall assemble at the Châtelet two days in the week, to take into consideration the suits and causes in concert with our provost...." In 1343, the provost's court was composed of one King's attorney, one civil commissioner, two King's counsel, eight councillors, and one criminal commissioner, whose sittings took place daily at the Châtelet.

From the year 1340 this tribunal had to adjudicate in reference to all the affairs of the university, and from the 6th of October, 1380, to all those of the salt-fish market, which were no less numerous, so that its importance increased considerably. Unfortunately, numerous abuses were introduced into this municipal jurisdiction. In 1313 and 1320, the officers of the Châtelet were suspended, on account of the extortions which they were guilty of, and the King ordered an inquiry to be made into the matter. The provost and two councillors of the Parliament sat upon it, and Philip de Valois, adopting its decisions, prescribed fresh statutes, which were naturally framed in such a way as to show the distrust in which the Châtelet was then held. To these the officers of the Châtelet promised on oath to submit. The ignorance and immorality of the lay officers, who had been substituted for the clerical, caused much disturbance. Parliament authorised two of its principal members to examine the officers of the Châtelet. Twenty years later, on the receipt of fresh complaints, Parliament decided that three qualified councillors, chosen from its own body, should proceed with the King's attorney to the Châtelet, so as to reform the abuses and informalities of that court.