Part 23 (2/2)
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 va.s.sals of the crown (Fig. 298).
[Ill.u.s.tration: Fig. 298.--Carlovingian King in his Palace personifying Wisdom appealing to the whole Human Race.--After a Miniature in a Ma.n.u.script of the Ninth Century in the Burgundian Library of Brussels, from a Drawing by Count Horace de Vielcastel.]
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 pa.s.sions of a chief of a party would be the only reason for inflicting a penalty; often such a person would const.i.tute himself sole judge, and, without the advice of any one, he would pa.s.s 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 a.s.semblies, 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 pa.s.sed.
[Ill.u.s.tration: Fig. 299.--The Court of the n.o.bles.--Fac-simile of a Miniature in an old Poetical Romance of Chivalry, Ma.n.u.script of the Thirteenth Century, in the Library of the a.r.s.enal of Paris.]
This right of revenge, besides being thus circ.u.mscribed as to locality, was also subject to certain rules as to time. Sunday and the princ.i.p.al 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 G.o.d and of the Saints; it was his province to calm human pa.s.sions; 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 princ.i.p.al rivers, the highways and the byways, &c.
The _Treve 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 t.i.the-gatherer. Each magistrate had his tribunal and his special jurisdiction. These judges called to their a.s.sistance a.s.sessors or colleagues, either _rachimbourgs_, who were selected from freemen; or provosts, or _echevins_ (_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 p.r.o.nounced the judgment.
Every va.s.sal enjoyed the right of appeal to the sovereign, who, with his court, alone decided the quarrels between ecclesiastics and n.o.bles, 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.
[Ill.u.s.tration: Fig. 300.--The Judicial Duel. The Plaintiff opening his Case before the Judge.--Fac-simile of a Miniature in the ”Ceremonies des Gages des Batailles,” Ma.n.u.script of the Fifteenth Century in the National Library of Paris.]
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, Fredegonde, called in the impartial testimony of certain n.o.bles. 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.
[Ill.u.s.tration: Fig. 301.--Judicial Duel.--Combat of a Knight with a Dog.--Fac-simile of a Miniature in the Romance of ”Macaire,” of the Thirteenth Century (Library of the a.r.s.enal of Paris).]
Ecclesiastics were obliged, in the same maimer, to fight by deputy. The champion or subst.i.tute 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 coa.r.s.eness, 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 p.r.o.nounced, 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 a.s.sizes once a month; during their sitting they heard all those who had complaints to make, and gave summary judgment. The bailiff's a.s.size 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 n.o.bles 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, a.s.sumed 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 n.o.bles had unjustly made on their va.s.sals.
[Ill.u.s.tration: Fig. 302.--The Palace as it was in the Sixteenth Century.--After an Engraving of that Period, National Library of Paris (Cabinet des Estampes).]
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, _maitres des requetes_, auditors, and advocates.
To the bailiwicks already in existence Louis IX. added the four great a.s.sizes of Vermandois, of Sens, of Saint-Pierre-le-Moustier, and of Macon, ”to act as courts of final appeal from the judgment of the n.o.bles.”
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 n.o.bles, 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 a.s.sistance 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 n.o.bility 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 munic.i.p.al troops, and, in a word, the prefect (_praefectus urbis_), as he was called under the Emperor Aurelian, or the first magistrate of Lutetia, as he was still called under Clotaire in 663. a.s.sessors were a.s.sociated with the provost, and together they formed a tribunal, which was afterwards known as the Chatelet (Fig. 303), because they a.s.sembled 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 _chatellenies:_ its jurisdiction embraced quarrels between individuals, a.s.saults, 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 Chatelet. This was, however, done only in a few very important instances, notwithstanding frequent appeals being made to its supreme arbitration.
[Ill.u.s.tration: Fig. 303.--The Great Chatelet of Paris.--Princ.i.p.al Front opposite the Pont-au-Change.--Fac-simile of an Engraving on Copper by Merian, in the ”Topographia Galliae” of Zeller.]
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