Part 23 (1/2)
Fig. 289.--Royal d'Or. Charles VII Fig. 290.--ecu d'Argent a la Couronne. Louis XI.
Fig. 291.--ecu d'Or a la Couronne. Charles VIII.
Fig. 292.--ecu d'Or au Porc-epic. Louis XII.
Fig. 293.--Teston d'Argent. Francis I.
Fig. 294.--Teston d'Argent au Croissant. Henry II.
[Ill.u.s.tration: Fig. 295.--Silver Franc. Henry IV.]
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 Chatelet and the Provost of Paris.--Jurisdiction of Parliament, its Duties and its Responsibilities.--The Bailiwicks. Struggles between Parliament and the Chatelet.--Codification of the Customs and Usages.--Official Cupidity.--Comparison between the Parliament and the Chatelet.
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 Caesar, in his ”Commentaries,”
tells us that ”each year the magistrates and princes a.s.signed portions of land to families as well as to a.s.sociations 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 (_familiae_) and a.s.sociations of men (_cognationes hominum_) spoken of by Caesar, in the barbaric laws, and referred to in the histories of the Middle Ages under the names of _genealogiae, faramanni, farae_, &c.; but the extent of the relations.h.i.+p (_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 relations.h.i.+p 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 va.s.sals (_ministeriales_) or servants of the free cla.s.s; and, thirdly, the servants (_mansionarii, coloni, liti, servi_) of the servile cla.s.s 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 guardians.h.i.+p, 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 a.s.sociation, which held official meetings at stated periods on the _Malberg_ (Parliament hill). These a.s.semblies alone possessed supreme power in its full signification. The t.i.tles 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 a.s.signed 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 t.i.tle 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 const.i.tution gave to sovereigns who were of full age; they confirmed the nominations of the princ.i.p.al 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 amba.s.sadors (_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 cla.s.s of the royal officials, filled inferior though very honourable and lucrative posts of an administrative and magisterial character.
[Ill.u.s.tration: Fig. 296.--The Familles and the Barbarians.--Fac-simile of a Woodcut in the ”Cosmographie Universelle” of Munster: in folio, Basle, 1552.]
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 n.o.bles 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 n.o.bles. 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 n.o.ble 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 p.r.o.nounced 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 a.s.semblies 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 n.o.bility were parties, was in its laws and customs completely at variance with former edicts. In resuming their places in the French const.i.tution, the Merovingian kings, who had been deprived both of influence and authority, were compelled by the Germanic inst.i.tutions to return to the pa.s.sive 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 (_praecepta_) 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 circ.u.mference 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 a.s.sistance 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 n.o.bles 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 t.i.tle of n.o.bles and judges, a.s.sumed the right of protecting fugitive slaves taking shelter in their domains. By an article of the Salie law, the n.o.ble is made to answer for his va.s.sal 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 va.s.sals, 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. .h.i.therto 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 a.s.sistance of the judges of the county, and this was invested with a sort of authority which rendered its decisions binding.
[Ill.u.s.tration: Fig. 297.--The Emperor Charlemagne holding in one hand the Globe and in the other the Sword.--After a Miniature in the Registers of the University of Paris (Archives of the Minister of Public Instruction of the University). The Motto, _In scelus exurgo, sceleris discrimina purgo, _ is written on a Scroll round the Sword.]
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, a.s.sumed 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 a.s.sembly of the nation, was held in the month of March. Persons of every cla.s.s 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 a.s.semblies 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 a.s.semblies 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 va.s.sals, both clerical and lay, to the four princ.i.p.al feasts of the year. It may be a.s.serted that the idea of royalty being the central authority in matters of common law dates from the reign of Charlemagne (Fig. 297).