French Law and Institutions

FRENCH LAW AND INSTITUTIONS. In the historical evolution of French institutions, those of the Celts of Gaul are of little importance. None of them are known to have survived in later law. It was Roman rule which really formed Gaul. The institutions of Roman Gaul became identical with those of the Roman empire, provincial and municipal government undergoing the same evolution as in the other parts of the empire. The law for the Gallo-Romans was that which was administered by the coventus of the magistrate; there are only a few peculiarities, mere Gallicisms, resulting from usage, which are pointed out by Roman jurisconsults of the classical age. The administrative re forms of Diocletian and Constantine applied to Gaul as to the rest of the empire. The Gallo-Romans became Christian with the other subjects of the empire; the Church extended thither her organiza tion framed on the administrative model, each civitas having a bishop, just as it had a curia and municipal magistrates. The church had the right of acquiring property, of holding councils, subject to the imperial authority, and of the free election of bishops. But only the first germs of ecclesiastical jurisdiction are to be traced in the bishop's powers of arbitration, and in his dis ciplinary supervision of the morals of clergy and laity. After the fall of the Western empire, there was left to the Gallo-Romans a body of written law which consisted of the imperial constitutions and the writings of the five jurists (Gaius, Papinian, Paulus, Ulpian and Modestinus), to which Valentinian III. had in 426 given the force of law.

The invasions and settlements of the barbarians open a new period. The various barbarian kingdoms in Gaul were established under different conditions. Under the Burgundians and Visigoths, the owners of the great estates, which had been the prevailing form of landed property in Roman Gaul, suffered partial dispos session, according to a regular system. It is doubtful whether a similar process took place in the case of the Frankish settlements, for their first conquests in the north and east seem to have led to the extermination or total expulsion of the Gallo-Roman popula tion. In each case, however, the barbarian king wished to use rather than destroy the existing Roman administrative systems. The kings of the Visigoths and Burgundians were at first actually representatives of the Western empire, and Clovis himself was ready to accept from the emperor Anastasius the title of consul.

The Merovingians.

The first administrative change which followed the Merovingian conquest was the replacement of the provincia by the civitas as the fundamental unit. The civitas, generally known under the name pagus, was placed under a count (comes), and several pagi could be united under a dux. The pagus was generally divided into "hundreds" (centenae). But the Roman administrative machinery was too delicate to be handled by bar barians. Thus the Merovingians tried to levy the same direct taxes as the Romans had done, but they ceased to be imposts reassessed periodically and became fixed annual taxes on lands or persons. They disappeared at last as general imposts, continuing to exist only as personal or territorial dues. In the same way the Roman municipal organization survived for a considerable time under the Merovingians but was used only for the registration of written deeds ; under the Carolingians it disappeared, and with it the old senatorial nobility which had been that of the Empire. The ad ministration of justice seems to have been organized on a system borrowed partly from Roman and partly from Germanic institu tions. Justice is administered by the count (comes) or his deputy (centenaries or vicarius), but on the verdict of notables called in the texts boni homines or rachimburgii. This takes place in an as sembly, the mallus, at which every free man is bound to attend a certain number of times a year, and in which are promulgated tY general acts emanating from the king. The latter could issue con mands or prohibitions, the violation of which entailed a fine 6o solidi; he also administered justice, assisted by the officers his household, his jurisdiction being unlimited and undefined. U could hear all causes, but was not bound to hear any, excep apparently, accusations of deliberate failure of justice and breac of trust on the part of the rachimburgii.

But what proved the great disturbing element in Gallo-Roma society was the fact that the conquerors were all warriors, whos normal state was that of war. It is true that under the Roma empire all the men of a civitas had been obliged, in case of nece5 sity, to march against the enemy, and under the Frankish mor, archy the count still called together his pagenses for this object But the condition of the barbarian was very different; he live essentially for fighting. Moreover, this military class, though no an aristocracy (for among the Franks the royal race alone wa noble), was to a large extent independent, and the king had t, attach these leudes or fideles to himself by gifts and favours. A the same time the authority of the king gradually assumed th, personal character which, among the Germans, marked most o the relations between men. The household of the king gained ii political importance, because the chief officers in the palace be came also high public officials and the king's bodyguard, the an trustions, remained a class apart.

The Frankish monarch had also the power of making laws after consulting the chief men of the kingdom, both lay am ecclesiastical, in placita, meetings apparently modelled on thf councils of the Church. But throughout the kingdom in man} places the direct authority of the king over the people ceased tc make itself felt. The immunitates, granted chiefly to the great ecclesiastical landowners, limited this authority in a curious way by forbidding public officials to exercise their functions in the pre cinct of land which was immunis. Judicial and fiscal rights fre quently passed to the landowner, who became of necessity the intermediary between the supreme power and the people. Other principles contributed towards the weakening of the royal power, The monarch considered the kingdom to be his property and this gave rise to the concessions of royal rights to individuals, and later to partitions of the kingdom between the sons of the king, as in the division of an inheritance in land. This proved one of the chief weaknesses of the Merovingian monarchy.

In order to rule the Gallo-Romans, the barbarians had sought the help of the Church, the representative of Roman civilization. Further, the Merovingian monarch and the Catholic Church had come into close alliance in their struggle with the Arians. The Church therefore gained new privileges, but at the same time be came to a certain extent dependent. Under the Merovingians the election of the bishop by clergy and people is only valid if it ob tains the assent of the king, who often directly nominates the prelate. But the Church retains her full right of acquiring prop erty, and her jurisdiction is partially recognized. She not only exercises more freely than ever a disciplinary jurisdiction, but the bishop, in place of the civil power, administers civil and criminal justice over the clergy. The councils had for a long time forbidden the clergy to cite one another before secular tribunals ; they had also, in the 6th century, forbidden secular judges under pain of excommunication to cite before them and judge the clergy, without permission of the bishop. A decree of Clotaire II. (614) acknow ledged, if only partially, the validity of these claims.

Carolingian Period.

The Merovingian dynasty perished amid increasing anarchy. The crown passed, with the approval of the papacy, to an Austrasian mayor of the palace and his family, who had been the last support of the preceding dynasty. Under these conditions there developed a number of institutions, which were in reality the direct precursors of feudalism. One was the royal benefice (beneficium), of which the Church provided both the model and, in the first instance, the material. The model was the precaria, a form of concession by which it was customary for the Church to grant the possession of her lands to free men; this practice she herself had copied from the five-years leases granted by the Roman exchequer. Gradually, however, the precaria had become a grant made, in most cases, freely and for life. As regards the material, when the Austrasian mayors of the palace wished to secure the support of the fideles by fresh benefits, the royal treasury being exhausted, they turned to the Church and took lands from her to give to their warriors. In order to disguise the robbery it was decided that these lands should be held as precariae from the Church which had furnished them. Later, when the royal treasury was reorganized, grants of land made by the kings naturally took a similar form, the beneficium, as a free grant for life. The beneficium inevitably crystallized into a perpetual and hereditary right. Another institution akin to the beneficium was the senioratus. By the commendatio, a form of solemn contract, a man swore absolute fidelity to another man, who became his senior. It became the generally received idea that it was natural and normal for every free man to have a senior. At the same time a benefice was never granted unless accompanied by the commen datio of the beneficiary to the grantor. As the most important seniores were thus bound to the king and received from him their benefices, he expected through them to command their men; but in reality the king disappeared little by little in the senior. The king granted as benefices not only lands, but public offices such as those of count or dux, which thus became possessions, held, first for life, and later as hereditary properties.

Charlemagne, while sanctioning these institutions, reorganized the administration of justice, fixing the respective jurisdictions of the count and the centenaries, substituting for the rachimburgii permanent scabini, chosen by the count in the presence of the people, and defining the relations of the count, as the representa tive of the central authority, with the advocati or judices of immunitates and potestates. He reorganized the army, determin ing the obligations and the military outfit of free men according to their means. Finally, he established those regular inspections by the missi dominici which are the subject of so many of his capitularies and founded two general assemblies in the year, one in the autumn, the other in the spring, which were attended by the chief officials, lay and ecclesiastical. It was here that the capitu laries (q.v.) and all important measures were first drawn up and then promulgated. The revenues of the Carolingian monarch con sisted chiefly in the produce of the royal lands. There were also the free gifts which the great men were bound, according to cus tom, to bring to the conventus, the regular personal or territorial dues into which the old taxes had resolved themselves ; the profits arising from the courts and numberless requisitions in kind, a usage which had without doubt existed continuously since Roman times. The Church added a fresh prerogative to her former privileges, namely, the right of levying a real tax in kind, the tithe. Since the 3rd century she had tried to exact the payment of tithes from the faithful, and from the reign of Pippin the Short onwards the civil law recognized and sanctioned this obligation. Ecclesiastical jurisdiction extended farther and farther, but Charlemagne, the protector of the papacy, maintained firmly his authority over the Church. He nominated its dignitaries, both bishops and abbots, who were true ecclesiastical officials, parallel with the lay officials. In each pagus, bishop and count owed each other mutual support, and the missi on the same circuit were ordinarily a count and a bishop. In the first collection of capitu laries, that of Ansegisus, two books out of four are devoted to ecclesiastical capitularies.

The Law Under the Frank Monarchy.

What then, was the private and criminal law of this Frankish monarchy which had come to embrace so many different races? Men of Roman descent remained under Roman law, and the conquerors could not hope to impose their customs upon them. As to the barbarians, they had hitherto had nothing but customs, and these customs, of which the type nearest to the original is to be found in the oldest text of the Lex Salica, were nothing more than a series of tariffs of compensations, that is to say, sums of money due to the injured party or his family in case of crimes committed against indi viduals. They also introduced barbarous systems of trial, that by compurgation, i.e., exculpation by the oath of the defendant sup ported by a certain number of cojurantes, and that by ordeal, later called judicium Dei. In each new kingdom the barbarians natur ally kept their own laws, and when these men of different races all became subject to the Frankish monarchy, there evolved itself a system (called the personnalite des lois) by which every subject had, in principle, the right to be tried by the law of the race to which he belonged. When the two adversaries were of different race, it was the law of the defendant which had to be applied. The customs of the barbarians had been drawn up in Latin. At this period only these written documents bear the name of "law" (leges romanorum; leges barbarorum), and at least the tacit consent of the people seems to have been required for these collections of laws, in accordance with an axiom laid down in a later capitulary; lex fit consensu populi et constitutione regis. It is noteworthy, too, that in the process of being drawn up in Latin, most of the leges barbarorum were very much Romanized.

In the midst of this diversity, a certain number of causes tended to produce a partial unity. The capitularies, which had them selves the force of law, when there was no question of modifying the leges, constituted a legislation which was the same for all; often they inflicted corporal punishment for grave offences, which applied to all subjects without distinction. The Gallo-Romans, and even the Church itself, to a certain extent, adopted the bar barous methods of trial introduced by the Germans. On the other hand, written acts became prevalent among the barbarians, and at the same time they assimilated a certain amount of Roman law; for these acts continued to be drawn up in Latin, after Roman models. During this period, too, the Gallican Church adopted the collection of councils and decretals by Dionysius Exiguus, which was sent to Charlemagne in 774 by Pope Adrian I.

All the subjects of the Frankish monarchy were not of equal status. There was, strictly speaking, no nobility, both the Roman and the Germanic nobility having died out ; but slavery continued to exist. The Church, however, was transforming the slave into the serf, by giving validity to their marriages, at least, when the master had approved of them, and by protecting the slave's peculium. But between the free man and the slave lay many per sons of intermediate status. There was, to begin with, the Roman colonist (colonus), a class of which there is no clear mention in the laws before the 4th century ; they and their children after them were attached perpetually to a certain piece of land, which they were allowed to cultivate on payment of a rent. There were, further, the liti, a similar class of Germanic origin. Many free men who had fled to the great landowners for protection accepted a similar position. Under the Merovingian regime, and especially under the Carolingians, the occupation of land tended to assume the character of tenure; but free ownership of land continued to exist under the name of clod, and the capitularies contain numer ous complaints and threats against the counts, who endeavoured by the abuse of their power to obtain the surrender of small prop erties held by free men.