Part 31

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.

In the time of Philippe le Bel there existed in reality but one Parliament, and that was the King's Court. Its action was at once political, administrative, financial, and judicial, and was necessarily, therefore, of a most complicated character. Philippe le Bel made it exclusively a judicial court, defined the territorial limit of its power, and gave it as a judicial body privileges tending to strengthen its independence and to raise its dignity. He assigned political functions to the Great Council (Conseil d'Etat); financial matters to the chamber of accounts; and the hearing of cases of heresy, wills, legacies, and dowries to the prelates. But in opposition to the wise edict of 1295, he determined that Jews should be excluded from Parliament, and prelates from the palace of justice; by which latter proceeding he was depriving justice of the abilities of the most worthy representatives of the Gallican Church. But Philippe le Bel and his successors, while incessantly quarrelling either with the aristocracy or with the clergy, wanted the great judicial bodies which issued the edicts, and the urban or municipal magistrates--which, being subject to re-election, were principally recruited from among the bourgeois--to be a common centre of opposition to any attempt at usurpation of power, whether on the part of the Church, the nobility, or the crown.

The Great Days of Troyes (dies magni Trecenses), the assizes of the ancient counts of Champagne, and the exchequer of Normandy, were also organized by Philipe le Bel; and, further, he authorised the maintenance of a Parliament at Toulouse, a court which he solemnly opened in person on the 10th of January, 1302. In times of war the Parliament of Paris sat once a year, in times of peace twice. There were, according to circumstances, during the year two, three, or four sittings of the exchequer of Normandy, and two of the Great Days of Troyes, tribunals which were annexed to the Parliament of Paris, and generally presided over by one of its delegates, and sometimes even by the supreme head of that high court. At the King's council (Fig. 304) it was decided whether a case should be reserved for the Parliament of Paris, or passed on either to the exchequer or to the Great Days of Troyes.

As that advanced reformer, Philippe le Bel, died before the institutions he had established had taken root, for many years, even down to the time of Louis XI., a continual conflict for supremacy was waged between the Parliament of Paris and the various courts of the kingdom--between the counts and the Parliament, and between the latter and the King, which, without lessening the dignity of the crown, gradually tended to increase the influence which the judges possessed. Immediately on the accession of Louis le Hutin, in 1314, a reaction commenced--the higher clergy re-entered Parliament; but Philippe le Long took care that the laity should be in a majority, and did not allow that in his council of State the titled councillors should be more numerous than the lawyers. The latter succeeded in completely carrying the day on account of the services they rendered, and the influence which their knowledge of the laws of the country gave them. As for centuries the sword had ruled the gown, so, since the emancipation of the bourgeois, the lawyers had become masters of the administrative and judicial world; and, notwithstanding the fact that they were still kept in a somewhat inferior position to the peers and barons, their opinion alone predominated, and their decision frequently at once settled the most important questions.

An edict issued at Val Notre-Dame on the 11th of March, 1344, increased the number of members of Parliament, which from that time consisted of three presidents, fifteen clerical councillors, fifteen lay councillors, twenty-four clergymen and sixteen laymen of the Court of Inquiry, and five clergymen and sixteen laymen of the Court of Petitions. The King filled up the vacant seats on the recommendation of the Chancellor and of the Parliament. The reporters were enjoined to write the decisions and sentences which were given by the court "in large letters, and far apart, so that they might be more easily read." The duties of police in the courts, the keeping of the doors, and the internal arrangements generally for those attending the courts and the Parliament, were entrusted to the ushers, "who divided among themselves the gratuities which were given them by virtue of their office." Before an advocate was admitted to plead he was required to take oath and to be inscribed on the register.

The Parliament as then established was somewhat similar in its character to that of the old national representative government under the Germans and Franks. For centuries it protected the King against the undue interference of the spiritual power, it defended the people against despotism, but it often lacked independence and political wisdom, and it was not always remarkable for its correct appreciation of men and things. This tribunal, although supreme over all public affairs, sometimes wavered before the threats of a minister or of a court favourite, succumbed to the influence of intrigues, and adapted itself to the prejudices of the times. We see it, in moments of error and of blindness, both condemning eminent statesmen and leading citizens, such as Jacques Coeur and Robertet, and handing over to the executioner distinguished men of learning and science in advance of the times in which they lived, because they were falsely accused of witchcraft, and also doing the same towards unfortunate maniacs who fancied they had dealings with the devil.

In the fourteenth and fifteenth centuries all the members of Parliament formed part of the council of State, which was divided into the Smaller Council and the Greater Council. The Greater Council only assembled in cases of urgency and for extraordinary and very important purposes, the Smaller Council assembled every month, and its decisions were registered. From this arose the custom of making a similar registration in Parliament, confirming the decisions after they had been formally arrived at. The most ancient edict placed on the register of the Parliament of Paris dates from the year 1334, and is of a very important character. It concerns a question of royal authority, and decides that in spiritual matters the right of supremacy does not belong more to the Pope than to the King. Consequently Philippe de Valois ordered "his friends and vassals who shall attend the next Parliament and the keepers of the accounts, that for the perpetual record of so memorable a decision, it shall be registered in the Chambers of Parliament and kept for reference in the Treasury of the Charters." From that time "cases of complaint and other matters relating to benefices have no longer been discussed before the ecclesiastical judges, but before Parliament or some other secular court."

During the captivity of King John in England, royal authority having considerably declined, the powers of Parliament and other bodies of the magistracy so increased, that under Charles VI. the Parliament of Paris was bold enough to assert that a royal edict should not become law until it had been registered in Parliament. This bold and certainly novel proceeding the kings nevertheless did not altogether oppose, as they foresaw that the time would come when it might afford them the means of repudiating a treaty extorted from them under difficult circumstances (Fig. 306).

The close connection which existed between the various Parliaments and their political functions--for they had occasion incessantly to interfere between the acts of the government and the respective pretensions of the provinces or of the three orders--naturally increased the importance of this supreme magistracy. More than once the kings had cause to repent having rendered it so powerful, and this was the case especially with the Parliament of Paris. In this difficulty it is interesting to note how the kings acted. They imperceptibly curtailed the various powers of the other courts of justice, they circumscribed the power of the Parliament of Paris, and proportionately enlarged the jurisdiction of the great bailiwicks, as also that of the Châtelet. The provost of Paris was an auxiliary as well as a support to the royal power, which nevertheless held him in its grasp. The Châtelet was also a centre of action and of strength, which counteracted in certain cases parliamentary opposition. Thence arose the most implacable rivalries and dissensions between these various parties.

It is curious to notice with what ingenuity and how readily Parliament took advantage of the most trifling circumstances or of charges based upon the very slightest grounds to summon the officers of the Châtelet before its bar on suspicion of prevarication or of outrages against religion, morals, or the laws. Often were these officers and the provost himself summoned to appear and make amende honourable before the assembly, notwithstanding which they retained their offices. More than once an officer of the Châtelet was condemned to death and executed, but the King always annulled that part of the sentence which had reference to the confiscation of the goods of the condemned, thus proving that in reality the condemnation had been unjust, although for grave reasons the royal authority had been unable to save the victim from the avenging power of Parliament. Hugues Aubriot, the provost, was thus condemned to imprisonment for life on the most trivial grounds, and he would have undergone capital punishment if Charles V. had abandoned him at the time of his trial. During the English occupation, in the disastrous reign of Charles VI., the Châtelet of Paris, which took part with the people, gave proof of extraordinary energy and of great force of character. The blood of many of its members was shed on the scaffold, and this circumstance must ever remain a reproach to the judges and to those who executed their cruel sentences, and a lasting crown of glory to the martyrs themselves.

An edict of King John, issued after his return from London in 1363, a short time before his death, clearly defined the duties of Parliament. They were to try cases which concerned peers of France, and such prelates, chapters, barons, corporations, and councils as had the privilege of appealing to the supreme court; and to hear cases relating to estates, and appeals from the provost of Paris, the bailiffs, seneschals, and other judges (Fig. 307). It disregarded minor matters, but took cognizance of all judicial debates which concerned religion, the King, or the State. We must remark here that advocates were only allowed to speak twice in the same cause, and that they were subjected to fine, or at least to remonstrance, if they were tedious or indulged in needless repetition in their replies, and especially if they did not keep carefully to the facts of the case. After pleading they were permitted to give a summary in writing of "the principal points of importance as well as their clients' grounds of defence." Charles V. confirmed these orders and regulations with respect to advocates, and added others which were no less important, among which we find a provision for giving "legal assistance to poor and destitute persons who go to law." These regulations of Charles also limited the time in which officers of justice were to get through their business under a certain penalty; they also proclaimed that the King should no longer hear minor causes, and that, whatever might be the rules of the court, they forbad the presidents from deferring their judgment or from retarding the regular course of justice. Charles VI., before he became insane, contributed no less than his father to the establishment on a better footing of the supreme court of the kingdom, as well as that of the Châtelet and the bailiwicks.

In the fifteenth century, the Parliament of Paris was so organized as not to require material change till 1789. There were noble, clerical, and lay councillors, honorary members, and maîtres de requête, only four of whom sat; a first president, who was supreme head of the Parliament, a master of the great chamber of pleas, and three presidents of the chamber, all of whom were nominated for life. There were fifteen masters (maistres) or clerical councillors, and fifteen who were laymen, and these were annually approved by the King on the opening of the session. An attorney-general, several advocates-general, and deputies, who formed a committee or college, constituted the active part of this court, round which were grouped consulting advocates (consiliarii), pleading advocates (proponentes), advocates who were mere listeners (audientes), ushers and serjeants, whose chief, on his appointment, became a member of the nobility.

The official costume of the first president resembled that of the ancient barons and knights. He wore a scarlet gown lined with ermine, and a black silk cap ornamented with tassels. In winter he wore a scarlet mantle lined with ermine over his gown, on which his crest was worked on a shield. This mantle was fastened to the left shoulder by three gold cords, in order to leave the sword-side free, because the ancient knights and barons always sat in court wearing their swords. Amongst the archives of the mayoralty of London, we find in the "account of the entry of Henry V., King of England, into Paris" (on the 1st of December, 1420), that "the first president was in royal dress (estoit en habit roial), the first usher preceding him, and wearing a fur cap; the church dignitaries wore blue robes and hoods, and all the others in the procession scarlet robes and hoods." This imposing dress, in perfect harmony with the dignity of the office of those who wore them, degenerated towards the fifteenth century. So much was this the case, that an order of Francis I. forbad the judges from wearing pink "slashed hose" or other "rakish garments."

In the early times of monarchy, the judicial functions were performed gratuitously; but it was the custom to give presents to the judges, consisting of sweetmeats, spices, sugar-plums, and preserves, until at a subsequent period, 1498, when, as the judges "preferred money to sweetmeats," says the Chancellor Etienne Pasquier, the money value of the spices, &c., was fixed by law and made compulsory. In the bills of expenses preserved among the national archives, we find that the first president of the Parliament of Paris received a thousand livres parisis annually, representing upwards of one hundred thousand francs at the present rate of money; the three presidents of the chamber five hundred livres, equal to fifty thousand francs; and the other nobles of the said Parliament five sols parisis, or six sols three deniers--about twenty-five francs--per day for the days only on which they sat. They received, besides, two mantles annually. The prelates, princes, and barons who were chosen by the King received no salaries--ils ne prennent nuls guaiges (law of 27th January, 1367). The seneschals and high bailiffs, like the presidents of the chambers, received five hundred livres--fifty thousand francs. They and the bailiffs of inferior rank were expressly forbidden from receiving money or fees from the parties in any suit, but they were allowed to accept on one day refreshment and bottles of wine. The salaries were paid monthly; but this was not always done regularly; sometimes the King was to blame for this, and sometimes it was owing to the ill-nature of the chiefs of finance, or of the receivers and payers. When the blame rested with the King, the Parliament humbly remonstrated or closed the court. When, on the contrary, an officer of finance did not pay the salaries, Parliament sent him the bailiff's usher, and put him under certain penalties until he had done so. The question of salaries was frequently arising. On the 9th of February, 1369, "the court having been requested to serve without any remuneration for one Parliament, on the understanding that the King would make up for it another time, the nobles of the court replied, after private deliberation, that they were ready to do the King's pleasure, but could not do so properly without receiving their salaries" (Register of the Parliament of Paris).

At the commencement of the fifteenth century, the scale of remuneration was not increased. In 1411 it was raised for the whole Parliament to twenty-five thousand livres, which, calculated according to the present rate, amounted to nearly a million francs. In consequence of financial difficulties and the general distress, the unpleasant question in reference to claims for payment of salaries was renewed, with threats that the course of justice would be interrupted if they were not paid or not promised. On the 2nd of October, 1419, two councillors and one usher were sent to the house of one of the chiefs of finance, with orders to demand payment of the salaries of the court. In October, 1430, the government owed the magistrates two years of arrears. After useless appeals to the Regent, and to the Bishop of Thérouanne, the then Chancellor of France, the Parliament sent two of its members to the King at Rouen, who obtained, after much difficulty, "one month's pay, on the understanding that the Parliament should hold its sittings in the month of April." In the month of July, 1431, there was another deputation to the King, "in order to lay before him the necessities of the court, and that it had for some time been prorogued, and was still prorogued, on account of the non-payment of salaries." After two months of repeated remonstrance, the deputies only bringing back promises, the court assumed a menacing aspect; and on the 11th of January, 1437, it pointed out to the chancellor the evil which would arise if Parliament ceased to hold its sittings; and this time the chancellor announced that the salaries would be paid, though six months passed without any resuit or any practical step being taken in the matter. This state of affairs grew worse until the year 1443, when the King was obliged to plead with the Parliament in the character of an insolvent debtor, and, in order to obtain remission of part of his debt to the members, to guarantee to them a part of the salt duties.

Charles VII, after having reconquered his states, hastened to restore order. He first occupied himself with the System of justice, the Parliament, the Châtelet, and the bailiwicks; and in April, 1453, in concert with the princes, the prelates, the council of State, the judges, and others in authority, he framed a general law, in one hundred and twenty-five articles, which was considered as the great charter of Parliament (Fig. 308). According to the terms of these articles, "the councillors are to sit after dinner, to get through the minor causes. Prisoners are to be examined without delay, and to hold no communication with any one, unless by special permission. The cases are to be carefully gone through in their proper order; for courts are instructed to do justice as promptly for the poor as for the rich, as it is a greater hardship for the poor to be kept waiting than the rich." The fees of attorneys were taxed and reduced in amount. Those of advocates were reduced "to such moderation and fairness, that there should be no cause for complaint." The judgments by commissary were forbidden. The bailiffs and seneschals were directed to reside within their districts. The councillors were ordered to abstain from all communication with the parties in private, and consultations between themselves were to be held in secret. The judgments given in lawsuits were inscribed in a register, and submitted every two months to the presidents, who, if necessary, called the reporters to account for any neglect of duty. The reporter was ordered to draw attention to any point of difficulty arising in a suit, and the execution of sentences or judgments was entrusted to the ushers of the court.

In 1454 the King, in consequence of a difficulty in paying the regular instalments of the usual salaries of the Parliament, created "after-dinner fees" (des gages d'après dînées) of five sols parisis--more than ten francs of our money--per day, payable to those councillors who should hold a second hearing. Matters did not improve much, however; nothing seemed to proceed satisfactorily, and members of Parliament, deprived of their salaries, were compelled to contract a loan, in order to commence proceedings against the treasury for the non-payment of the amount due to them. In 1493, the annual salaries of Parliament were raised to the sum of 40,630 livres, equal to about 1,100,000 francs.