TURE and CHURCH HISTORY).
The period of the true feudal monarchy is embraced by the 12th and 13th centuries. It was at this time that the crown again assumed real strength and author ity, but so far it had no organs and instruments save those which were furnished by feudalism, now organized under a regular hierarchy, of which the king was the head. This new position of affairs was the result of three great factors : the revival of Roman Law, the final organization of feudalism and the rise of the priv ileged towns. Roman law spread rapidly in the French schools and universities, except that of Paris, which was closed to it by the papacy; and the influence of this study was so great that it transformed society. On the one hand it contributed largely to the reconstitution of the royal power, modelling the rights of the king on those of the Roman emperor. On the other hand it wrought a no less profound change in private law. From this time dates the division of old France into the Pays de droit ecrit, in which Roman law, under the form in which it was codified by Justinian, was received as the ordinary law; and the Pays de coutume, where it played only a secondary part, being generally valid only as ratio scripta and not as lex scripta. In this period the customs also took definitive form, and over and above the local customs properly so called there were formed customs known as general, which held good through a whole province or bailliage, and were based on the jurisprudence of the higher jurisdictions. (For the privileged towns of France see COMMUNE, MEDIAEVAL.) In the final organization of feudalism, the chief lord, the duke or count, had beneath him a whole hierarchy, and was himself a part of the feudal system of France (see FEUDALISM). Doubtless in the case of lords like the dukes of Brittany and Burgundy, the king could not actually demand the strict fulfilment of feudal obliga tions; but the principle was established. Free and absolute property, the ancient allodium, continued to exist in most dis tricts, though by way of exception. In the administration of justice, the feudal hierarchy had absolute sway. The fiefs them selves became hereditary, and the rules of succession were estab lished. The most salient features of feudal succession were the right of primogeniture and the preference given to heirs-male ; but from the 13th century onwards the right of primogeniture, which had at first involved the total exclusion of the younger members of a family, tended to be modified, except in the case of the chief lords, the eldest son obtaining the preponderant share or preciput. Non-noble (roturier) tenancies followed a similar development, except that in their case there was no right of primogeniture nor any privilege of males.
The chief instruments of the crown in government were its great officers, the seneschal, butler, constable and chancellor, who were to become irremovable offi cials. But this period saw the rise of a special college of dig nitaries, that of the Twelve Peers of France, consisting of six laymen and six ecclesiastics, which took definitive shape at the beginning of the 13th century. We cannot yet discern with any certainty by what process it was formed, why those six prelates and those six great feudatories in particular were selected rather than others equally eligible. But there is no doubt that we have here a normal feudal development ; the formation of a similar assembly of 12 peers occurs also in some of the great fiefs. Besides the part which they played at the consecration of kings, the peers of France formed a court in which they judged one another under the presidency of the king, their overlord, according to feudal cus tom. But the tour des pairs in this sense was not separate from the curia regis, nor yet, later, from the parlement of Paris, of which the peers of France were by right members. From this time, too, dates another important institution, that of the maitres des requetes.
The legislative power of the crown again began to be exercised during the 12th century, and in the 13th century had full authority over all the territories subject to the crown. The kings of this century were able narrowly to limit the custom of private war. But the most appreciable progress took place in the administrative and judicial institutions. Under Philip Augustus arose the royal baillis (see BAILIFF), and sen eschals (q.v.), who were the representatives of the king in the provinces, and superior judges. At the same time the form of the feudal courts tended to change, as they began more and more to be influenced by the Romano-canonical law. Saint Louis had striven to abolish trial by combat, and the Lateran Council of 1216 condemned other forms of ordeal. Of the seigniorial juris dictions there soon remained only the hautes or basses justices (in the i4th century arose an intermediate grade, the moyenne jus tice), all of which were considered to be delegations of the royal power. As a result of the application of Roman and canon law, there arose the practice of appeal from seignorial justice to the royal court. In the 13th century too appeared the theory of crown cases (cas royaux) which were reserved for the royal court. Fi nally, the curia regis was gradually transformed into a regular court of justice, the parlement (q.v.), as it was already called in the second half of the 13th century. At this time the king no longer appeared in it regularly, and before each session (for it was not yet a permanent body) a list of properly qualified men was drawn up in advance to form the parlement, only those whose names were on the list being capable of sitting in it. Its main function had come to be that of a final court of appeal. At the. various ses sions, which were regularly held at Paris, appeared the baillis and seneschals, who were called upon to answer for the cases they had judged and also for their administration. The accounts were re ceived by members of the parlement at the Temple, and this was the origin of the tour or chambre des comptes.
At the end of this period the nobility became an exclusive class. It became an established rule that a man had to be noble in order to be made a knight, and even in order to acquire a fief ; but in this latter respect the king made exceptions in the case of roturiers, who were licensed to take up fiefs, subject to a payment known as the droits de franc-fief. The Church maintained her privileges ; a few attempts only were made to restrain the abuse, not the extent, of her jurisdiction. This jurisdiction was, during the 12th century, to a certain extent regularized, the bishop nominating a special functionary to hold his court; this was the officialis (Fr. official), whence the name of o fjicialite later applied in France to the ecclesi astical jurisdictions. On one point, however, her former rights were diminished. She preserved the right of freely acquiring per sonal and real property, but though she could still acquire feudal tenures she could not keep them ; she must alienate the property again within a year and a day. The reason for this new rule was that the Church is a proprietor who does not die and in principle does not surrender her property; consequently, the lords had no longer the right of exacting the payments on the alienations of those tenures which she acquired. In this period the form of the episcopal elections underwent a change, the electoral college corn ing to consist only of the canons composing the chapter of the cathedral church.
Law.—Finally, it must be added that during the 13th century criminal law was profoundly modified. Under the influence of Roman law a system of arbitrary penalties replaced those laid down by the customs, which had usually been fixed and cruel. The criminal procedure of the feudal courts had been based on the right of accusation vested only in the person wronged and his relations ; for this was substituted the inquisi torial procedure which had developed in the canon law at the very end of the 12th century, and was to become the procedure a l'extraordinaire of the ancien regime, which was conducted in secret and without free defence and debate. Of this procedure torture came to be an ordinary and regular part.
The customs, which at that time contained almost the whole of the law for a great part of France, were not fixed by being written down. In that part of France which was subject to cus tomary law (la France coutumiere) they were defined when neces sary by the verdict of a jury in what was called the enquete par turbes; some of them, however, were, in part at least, authenti cally recorded in seigniorial charters, chartes de vale or chartes de coutume. Their rules were also recorded by experts in private works or collections called livres coutumiers, or simply coutumiers (customaries). The most notable of these are Les Coutumes de Beauvoisis of Philippe de Beaumanoir; the Tres ancienne cou tume de Normandie and the Grand Coutumier de Normandie; the Conseil a un ami of Pierre des Fontaines; the Etablissements de Saint Louis; the Livre de jostice et de plet. At the same time the clerks of important judges began to collect in registers notable decisions; it is in this way that we have preserved to us the old decisions of the exchequer of Normandy, and the Olim registers of the parlement of Paris.
The i4th and 15th centuries were the age of the limited mon archy. In this period certain rules for the succession to the throne were fixed by precedents : the exclusion of women and of male descendants in the female line, and the principle that a king could not by an act of will change the succession of the crown. The old curia regis disappeared. Its judicial functions were discharged by the parlement, while to fulfil its deliberative functions there was formed a new body, the royal council (conseil du roi), an admin istrative and governing council, which was in no way of a feudal character. The number of its members was at first small, but tended to increase ; soon the brevet of conseiller du roi en ses conseils was given to numerous representatives of the clergy and nobility, the great officers of the crown becoming members by right. Side by side with these officials, whose power was then at its height, there were gradually evolved more subservient ministers who could be dispensed with at will; the secretaires des com mandments du roi of the 15th century, who in the 16th century developed into the secretaires d'etat, and were themselves de scended from the clerks du secret and secretaires des finances of the 14th century. The College of the Twelve Peers of France had not its full numbers at the end of the 13th century ; the six ecclesi astical peerages existed; but several of the great fiefs to which six lay peerages had been attached had been annexed to the crown. To fill these vacancies, Philip the Fair raised the duchies of Brittany and Anjou and the countship of Artois to the rank of peerages of France. This really amounted to changing the nature of the insti tution ; for the new peers owed their rank merely to the king's will, though the rank continued to be hereditary. Before long peers began to be created when there were no gaps in the ranks of the College, and there was a. constant increase in the numbers of the lay peers.
At the beginning of the 14th century appeared the States General (etats generaux). Their power reached its height at the crisis of the Hundred Years' War during the reign of King John. At the same time there arose side by side with them, and from the same causes, the provincial estates, which were in miniature for each province what the states general were for the whole kingdom. Later it became a privilege for a province to have its own assembly; those which did so were never right fully subject to the royal taille, and kept, at least formally, the right of sanctioning, by means of the assembly, the subsidies which took its place. Hence it became the endeavour of the crown to suppress these provincial assemblies, which in the 14th century were to be found everywhere ; from the outset of the 15th century they began to disappear in central France.
The most characteristic feature of this period was the institution of universal taxation by the Crown. Hitherto, the king's sole revenues were those which he exacted in his capacity of feudal lord together with the income arising from certain crown rights which he had preserved or regained. But these revenues, known later as the income of the royal domain and later still as the finances ordinaires, became insufficient in pro portion as the royal power increased ; it became a necessity for the monarch to be able to levy imposts throughout the whole extent of the provinces annexed to the Crown, even upon the subjects of the different lords. This he could only do by means of the co operation of those lords, lay and ecclesiastical, who alone had the right of taxing their subjects; the co-operation of the privileged towns, which had the right to tax themselves, was also necessary.
It was in order to obtain this consent that the States General, in most cases, and the provincial assemblies, in all cases, were con voked. In some cases, however, the king adopted different methods ; for instance, he sometimes utilized the principle of the feudal aids. In cases where his vassals owed him, as overlord, a pecuniary aid, he substituted for the sum paid directly by his vas sals a tax levied by his own authority on their subjects. It is in this way that for 3o years the necessary sums were raised, without any vote from the States General, to pay the ransom of King John. But in principle the taxes were sanctioned by the States General in the 14th century. Whatever form they took, they were given the general name of Aids or auxilia, and were considered as occa sional and extraordinary subsidies, the king being obliged in principle to "live of his own." Certain aids, it is true, tended to become permanent under the reign of Charles VI. ; but the taxes subject to the consent of the States General were at first the sole resource of Charles VII. In the second half of his reign two chief taxes became permanent : in 1435 the aids (a tax on the sale of articles of consumption, especially on wine), with the formal con sent of the States General, and the taille in 1439. These imposts were increased, on the royal authority, by Louis XI. and became permanent after his death.
Together with the taxes there was evolved the system of their administration. For the administration of the subsidies which they granted, the States General nominated from among their own numbers surintendants generaux or generaux des finances, and further, for each diocese or equivalent district, elus. Both had judicial as well as fiscal powers, the latter constituting courts of first instance and the former courts of final appeal. After 136o both generaux and e/us were nominated by the king. The elus, or officiers des elections, only existed in districts which were subject to the royal taille; hence the division, so important in old France, into pays d'elections and pays d'etats. The elus kept both admin istration and jurisdiction; but in the higher stage a differentiation was made : the generaux des finances, who numbered four, kept the administration, while their jurisdiction as a court of final appeal was handed over to another body, the tour des aides, which had already been founded at the end of the 14th century. Besides the four generaux des finances there were four treasurers of France (treaoriers de France), who administered the royal do main ; and these eight officials formed in the 15th century a kind of ministry of finance to the monarchy.
The army also was reorganized. On the one hand, the military service attached to the fiefs was transformed for the profit of the king, who alone had the right of making war : it be came the arriere-ban, a term which had formerly applied to the levee en masse of all the inhabitants in times of national danger. Before the 14th century the king had only had the power of call ing upon his own immediate vassals for service. Henceforth all possessors of fiefs owed him, whether within the kingdom or on the frontiers, military service without pay and at their own expense. This was for long an important resource for the king. But Charles VII. organized an army on another footing. It comprised the francs-archers furnished by the parishes, a militia which was only summoned in case of war, and companies of gendarmerie or heavy cavalry, which were called compagnies d'ordonnance. It was chiefly to provide for the expense of this first nucleus of a perma nent army that the taille itself had been made permanent.
The new army led to the institution of the governors of prov inces, who were to command the troops quartered there. At first they were only appointed for the frontiers and fortified places, but later the kingdom was divided into gouvernements generaux. There were at first 12 of these, which were called in the middle of the 16th century the douze anciens gouvernements. Although, strictly speaking, they had only military powers, the governors, always chosen from among the great lords, became in the prov inces the direct representatives of the king and caused the baillis and seneschals to take a secondary place.
The courts of law continued to develop on the lines already laid down. The parlement, which had come to be a judicial committee nominated every year, but always consisting in fact of the same persons, changed in the course of the 14th cen tury into a body of magistrates who were permanent but as yet subject to removal (see PARLEMENT). The provincial parlements had arisen after and in imitation of that of Paris, and had for the most part taken the place of some superior jurisdiction which had formerly existed in the same district when it had been independent (like Provence) or had formed one of the great fiefs (like Nor mandy or Burgundy). It was during this period also that the parlements acquired the right of opposing the registration, that is to say, the promulgation of laws, of revising them, and of making representations to the king when they refused registration. The other royal jurisdictions were completed (see BAILIFF; CHA TELET). Besides them arose another of great importance, which was of military origin, but came to include all citizens under its sway. These were the provosts of the marshals of France (prevots des marechaux de France), who were officers of the marechaussee (the gendarmerie of the time) ; they exercised criminal jurisdic tion without appeal over crimes committed by vagabonds and fugitives from justice, and over a number of crimes of violence, whatever the rank of the offender. Further, another class of offi cers was created in connection with the law courts : the "king's men" (gens du roi), the procureurs and avocats du roi, who were at first simply those lawyers who represented the king in the law courts, or pleaded for him when his interests were involved. From the 14th century onwards the procureurs du roi had full control over public prosecutions. In this period, too, appeared what was afterwards called justice retenue, that is to say, the justice which the king administered, or was supposed to administer, in person. It was based on the idea that, since all justice and all judicial power reside in the king, he could not deprive himself of them by delegating their exercise to his officers and to the feudal lords. Consequently he could, if he thought fit, take the place of the judges and call up a case before his own council. He could re verse even the decisions of the courts of final appeal, and in some cases used this means of appealing against the decrees of the parlements. In these cases the king was supposed to judge in per son ; in reality they were examined by the maitres des requetes and submitted to the royal council (conseil du roi), at which the king was always supposed to be present and which had in itself no power of giving a decision. For this purpose there was soon formed a special committee of the council, which was called the conseil prive or de justice. The king frequently, by means of lettres de justice, intervened in the procedure of the courts, by granting benefices, by which rules which were too severe were modified, and judgments were given in cases not covered by the common law. By lettres de grace he granted reprieve or pardon in individual cases. The most extreme form of royal intervention was made by means of lettres de cachet (q.v.), which ordered a subject to go without trial into a state prison or into exile.
The condition of the Church changed greatly during this period. The jurisdiction of the o ficialitss was very much reduced, even over the clergy. The development of juris prudence gradually removed from the o fcialites causes of a purely secular character in which laymen only were concerned, such as wills and contracts; and in matrimonial cases their jurisdiction was limited to those in which the foedus matrimonii was in ques tion. For the acquisition of real property by ecclesiastical estab lishments the consent of the king was always necessary.
In ecclesiastical patronage, from the 14th century onwards the papacy encroached more and more upon the rights of the bishops over the inferior benefices, and of the electors, who
ferred the superior benefices; at the same time it exacted from newly appointed incumbents heavy dues, which were included un der the generic name of annates (q.v.). During the Great Schism these abuses grew, until by a series of edicts, promulgated with the consent and advice of the parlement and the clergy, the Galli can Church was restored to the possession of its former liberties, under the royal authority. Thus France was ready to accept the decrees of reform issued by the council of Basel (q.v.), which she did, with a few modifications, in the Pragmatic Sanction of Charles VII., adopted after a solemn assembly of the clergy and nobles at Bourges and registered by the parlement of Paris in 1438. It suppressed the annates and most of the means by which the popes disposed of the inferior benefices. For the choice of bishops and abbots, it restored election by the chapters and convents. The Pragmatic Sanction, however, was never recog nized by the papacy, nor was it consistently and strictly applied by the royal power.
From the 16th century to the Revolution was the period of the absolute monarchy. The reigns of Francis I. and Henry II. clearly laid down the principle of the absolute power of the crown. The States General were not assembled under these two reigns, though they reappeared in the second half of the i6th century. They were summoned in 156o at Orleans, in 1561 at Pontoise, and in 1576 and 1588 at Blois. The League even convoked one, which was held at Paris in 1593. But the states general of the i6th cen tury, in spite of their good intentions and the great talents which were at their service, were dominated by religious passions, which made them powerless for any practical purpose. They were, however, to be called together yet again, as a result of the dis turbances which followed the death of Henry IV. ; but their dissentions and powerlessness were again strikingly exemplified and they did not reappear until 1789. Other bodies, however, which the royal power had created, were to carry on the struggle against it. There were the parlements, the political rivals of the States General. Thanks to the principle according to which no law came into effect so long as it had not been registered by them, they had won the right of refusing registration, explaining their reasons to the king by means of the remonstrances. Before the end of the 17th century they had lost this power. The ordi nance of 1667 on civil procedure, and above all a declaration of 1673, ordered the parlement to register the laws as soon as it received them and without any modification. It was only after this registration that they were allowed to draw up remonstrances, which were henceforth futile. The nobles, as a body, had also be come politically impotent. At the same time the central govern ment underwent changes. The great officers of the crown disap peared one by one. Of those in the first rank only the chancellor survived till the Revolution. Apart from him, the king's real min isters were the secretaries of State, generally four in number, who were always removable and were not chosen from among the great nobles. For purposes of internal administration, the provinces were divided between them, each of them corresponding by des patches with the areas which were assigned to him. Any other busi ness (with the exception of legal affairs, which belonged to the chancellor, and finance, of which we shall speak later) was divided among them according to convenience. At the end of the i6th century, however, were evolved two regular departments, those of war and foreign affairs. Under Francis I. and Henry II., the chief administration of finance underwent a change ; for the four generaux des finances, who had become too powerful, were substituted the intendants des finances, one of whom soon became a chief minis ter of finance, with the title surintendant. The generaux des finances, like the tresoriers de France, became provincial officials, each at the head of a generalite (a superior administrative district for purposes of finance) ; under Henry III. the two functions were combined and assigned to the bureaux des finances. The fall of Fouquet led to the suppression of the office of surintendant; but Colbert soon again became practically a minister of finance, under the name of controleur general des finances, both title and office continuing to exist up to the Revolution.
The conseil du roi was an important organ of the central gov ernment, and for a long time included among its members repre sentatives of the nobility and clergy. Besides the councillors of State (conseillers d'etat), its ordinary members, the great officers of the crown and secretaries of State, princes of the blood and peers of France were members of it by right. Further, the king was accustomed to grant the brevet of councillor to a great number of the nobility and clergy, who could be called upon to sit in the council and give an opinion on matters of importance. But in the I7th century the council tended to differentiate its functions, form ing three principal sections, one for political, one for financial, and the third for legal affairs. Under Louis XIV. it took a definitely professional, administrative and technical character. The con seillers a brevet were all suppressed in 1673, and the peers of France ceased to be members of the council. The political council, or conseil d'en /taut, had no ex officio members, not even the chancellor; the secretary of State for foreign affairs, however, necessarily had entry to it ; it also included a small number of persons chosen by the king and bearing the title of ministers of state (ministres d'etat). The other important sections of the Conseil du roi were the conseil des finances, organized after the fall of Fouquet, and the conseil des depeches, in which sat the four secretaries of State, where everything concerned with internal administration (except finance) was dealt with, including the legal business connected with this administration.
The chief authority in the provincial administration belonged in the i6th century to the governors of the provinces. But at the end of this century were created the intendants of the provinces, who, after a period of conflict with the governors and the parlements, became absolute masters of the administration in all those provinces which had no provincial estates, and the instruments of a complete administra tive centralization (see INTENDANT).
The towns having a municipal organization, preserved in the r 6th century a fairly wide autonomy. Under Louis XIV. their dependence rapidly declined. They were placed under the tutelage of the intendants, whose sanction, or that of the conseil du roi, was necessary for all acts of any importance. In the closing years of the i 7th century, the municipal officials ceased, even in prin ciple, to be elective. Their functions ranked as offices which were, like royal offices, saleable and heritable.
The sale of royal offices is one of the characteristic features of the ancien regime. In the i6th century, under Francis I. at the latest, the crown itself began officially to sell offices, taking a fee from those upon whom they were conferred. In the judicial sys tem, the practice had a favourable result, assuring security of office to the judges ; for the king could not reasonably dismiss an official arbitrarily without refunding the fee which he had paid. On the other hand, it contributed to the development of the dues paid by litigants to the judges. The system of sale, and with it irremova bility, was extended to all official functions, even to financial posts. The process was completed by the recognition of the rights in the sale of offices as hereditary, i.e., the right of resigning the office on payment of a fee, either in favour of a competent descendant or of a third party, passed to the heirs of an official who had died with out having exercised this right himself. Through this development there arose a class of men who, though bound in many ways to the crown, were actually independent. Hence the tendency in the i8th century to create new and important functions under the form, not of offices, but of simple commissions.
In this period the essential principles of public law were defined. There were, in the first place, the fundamental laws of the realm, which were true consti tutional principles, considered as binding the king himself ; so that, although he was sovereign, he could neither abrogate, nor modify, nor violate them. There was, however, some discussion as to what rules actually came under this category, except in the case of two series about which there was no doubt. These were, on the one hand, those which dealt with the succession to the crown and for bade the king to change its order, and those which proclaimed the inalienability of the royal domain, against which no title by pre scription was valid. This last principle admitted only two ex ceptions: the formation of appanages (q.v.), and the sale of land to meet the necessities of war, with a perpetual option of redemp tion.
There was in the second place the theory of the rights, franchises and liberties of the Gallican Church. This body of doctrine rested chiefly on three principles : firstly, that the temporal power was absolutely independent of the spiritual power; secondly, that the pope had authority over the clergy of France in temporal matters and matters of discipline only by the consent of the king; thirdly, that the king had authority over and could legislate for the Galli can Church in temporal matters and matters of discipline. The old public law provided a safeguard against the violation of these rules in the process known as the appel comme d'abus, definitely established during the i6th century. It was heard before the parlements, but could, like every other case, be evoked before the royal council. Its effect was to annul any act of the ecclesiastical authority due to abuse or contrary to French law. The Pragmatic Sanction had been abrogated and replaced by the Concordat of
which remained in force until suppressed by the Constituent Assembly, and preserved many of the enactments of the Pragmatic Sanction, notably those which protected the collation of the inferior benefices from the encroachments of the papacy. The parlement of Paris was unwilling to register the Concordat, but the crown easily overcame its resistance.
In the i 6th century also, contributions to the public services drawn from the immense possessions of the clergy were regu larized. Since the second half of the 12th century at least, the kings had in times of urgent need asked for subsidies from the church, and ever since the Saladin tithe of Philip Augustus this contribution had assumed the form of a tithe. Such tithes were fairly frequently granted by the clergy of France. After the con clusion of the Concordat, Leo X. granted the king a tithe (decime) under the pretext of a projected war against the Turks. The concession was several times renewed, until, by force of custom, the levying of these tithes became permanent. But in the middle of the 16th century the system changed. The crown was heavily in debt, and its needs had increased. The property of the clergy having been threatened by the States General of 156o and 1561, the king proposed to them to remit the bulk of the tithes and other dues, in return for the payment by them of a sum equivalent to the proceeds of the taxes which he had mortgaged. A formal contract to this effect was concluded at Poissy in 1561 between the king and the clergy of France. In 158o a new assembly of the clergy renewed the agreement, which was henceforward always renewed every ten years. Thus every ten years a great elective assembly of the clergy became necessary. There were two stages in the election, a preliminary one in the dioceses and a further election in the ecclesiastical provinces, each province sending four deputies to the general assembly, two of the first rank, that is to say, chosen from the episcopate, and two of the second rank, which included all the other clergy. The dons gratuits (benevolences) voted by the assembly comprised a fixed sum equivalent to the old tithes together with supplementary sums levied for some particular occasion. The church, on her side, profited by this arrangement in order to obtain the commutation or redemption of the taxes affect ing ecclesiastics considered as individuals. This settlement only applied to the "clergy of France," that is to say, to the clergy of those districts which were united to the crown before the end of the 16th century. The provinces annexed later, called pays etrangers, or pays conquis, had in this matter, as in many others, an arrangement of their own.
At the end of the i6th century a reasonable balance had been established among the Christians of France. The Edict of Nantes, in 1J98, granted the Protestants full civil rights, liberty of con science and public worship in many places, and notably in all the royal bailliages. The Catholics, whose religion was essentially a state religion, had never accepted this arrangement as final, and at last, in 1685, under Louis XIV., the Edict of Nantes was re voked and the Protestant pastors expelled from France. Their followers were forbidden to leave the country, but many succeeded nevertheless in escaping abroad. The position of those who re mained behind was peculiar. Laws passed in 1715 and
established the legal theory that there were no longer any Protestants in France, but only vieux catholiques and nouveaux convertis. The result was that henceforth they had no longer any regular civil status, the registers containing the lists of Catholics enjoying civil rights being kept by the Catholic clergy.
The form of government established under Louis XIV. was preserved without any fundamental modification under Louis XV. The parlements had regained their ancient rights in consequence of the parlement of Paris having, in 1715, set aside the will of Louis XIV. as being contrary to the fundamental laws of the kingdom, in that it laid down rules for the composition of the council of regency, and limited the power of the regent. This newly revived power they exercised freely, and all the more so since they were the last surviving check on the royal authority. They became at this period the avowed representatives of the nation ; they contested the validity of the registration of laws in the lits de justice, asserting that laws could only be made obli gatory when the registration had been freely endorsed by them selves. Before the registration of edicts concerning taxation they demanded a statement of the financial situation and the right of examining the accounts. Finally, by the theory of the classes, which considered the various parlements of France as parts of one and the same body, they established among them a political union. These pretensions the crown refused to recognize. Louis XV. solemnly condemned them in a lit de justice of Dec. 177o, and in 1771 the chancellor Maupeou took drastic measures against them. The magistrates of the parlement of Paris were removed, and a new parlement was constituted, including the members of the grand Conseil, which had also been abolished. The cour des aides of Paris, which had made common cause with the parlement, was also suppressed and many of the provincial parlements were reorganized. These actions, the coup d'etat of the chancellor Maupeou, as they were called, produced an immense sensation. The repeated conflicts of the reign of Louis XV. had already given rise to a whole literature in which the rights of the crown were discussed. At the same time the political philosophy of the 18th century was disseminating new principles, and especially those of the supremacy of the people. Thus men's minds were being pre pared for the Revolution.
The permanent army was developed and organ ized during the ancien regime. The gendarmerie or heavy cavalry was continuously increased in numbers. On the other hand, the francs archers fell into disuse after Louis XI. ; and, after a fruitless attempt had been made under Francis I. to establish a national infantry, a system of voluntary enlistment was introduced. The system of purchase underlay the whole military organization. Each regiment was the property of a great lord ; the captain was, so to speak, owner of his company, or rather a contractor, who, in return for the sums paid him by the king, recruited his men and gave them their uniforms, arms and equipment. In the second half of the reign of Louis XIV. appeared the militia (milices). To this force each parish had to furnish one recruit. The militia was very rarely raised from the towns. The purpose for which these men were employed varied from time to time. Sometimes, as under Louis XIV., they were formed into special active regiments. Under Louis XV. and Louis XVI. they were formed into regiments provinciaux, which constituted an organized reserve. But their chief use was during the war, when they were individually incor porated into various regiments to fill up the gaps.
Under Louis XV., the duc de Choiseul suppressed what he called the "farming of companies" (com pagnie- f erme) ; recruiting be came a function of the State, and voluntary enlistment a contract between the recruit and the State. Arms, uniform and equipment were furnished by the king. Choiseul also equalized the numbers of the military units, and his reforms, together with a few others effected under Louis XVI., produced the army which fought the first campaigns of the Revolution.
of the most distinctive features of the ancien regime was excessive taxation. The taxes imposed by the king were numerous, and, moreover, hardly any of them fell on all parts of the kingdom. To this territorial inequality was added the inequality arising from privilege. Ecclesiastics, nobles and many of the crown officials were exempted from the heaviest imposts. In the 17th and 18th centuries certain important new taxes were established : between 1695 and 1698 the capitation, and in 1710 the tax of the dixieme, which became under Louis XV. the tax of the vingtiemes. These two imposts had been intended to affect every subject in proportion to his income ; but so strong was the system of privilege, that as a matter of fact the chief burden fell upon the roturiers. The income of a roturier who was not exempt was thus subject in turn to three direct imposts : the taille, the capitation and the vingtiemes, and the apportioning or assessment of these was extremely arbitrary. In addition to indirect taxation strictly so called, France under the ancien regime was subject to the traites, or customs, which were not only levied at the frontiers on foreign trade, but also included many internal custom-houses for trade between different provinces. Their origin was generally due to historical reasons; thus, among the provinces reputees etrangeres were those which in the 14th had refused to pay the aids for the ransom of King John, also certain provinces which had refused to allow customs offices to be established on their foreign frontier. Colbert had tried to abolish these internal duties, but had only succeeded to a limited extent.
The indirect taxes, the traites and the revenues of the royal domain were farmed out by the crown. At first a separate contract had been made for each impose in each election, but later they were combined into larger blocks, as is shown by the name of one of the customs districts, l'enceinte des cinq grosses fermes. From the reign of Henry IV. on the levying of each indirect impost was farmed en bloc for the whole kingdom, a system known as the fermes generates; but the real f erine generale, including all the imposts and revenues which were farmed in the whole of France, was only established under Colbert. The ferme generale was a powerful company, employing a vast number, of men, most of whom enjoyed various privileges. Besides the royal taxes, seig niorial imposts survived under the form of tolls and market dues. The lords also often possessed local monopolies, e.g., the right of the common bakehouse (four banal), which were called the banalites.
The organization of the royal courts of justice underwent but few modifications during the ancien regime. The ecclesiastical jurisdictions survived to the end, but with diminished scope. A series of ingenious legal theories had gradually deprived them of most of the cases which they had formerly entertained. In the 18th century civil suits in which the clergy were defendants were normally taken before secular tribunals, and ever since the first half of the 17th century, for all grave offences, the royal judge could pronounce a sentence of corporal punishment on a guilty cleric without this necessitating his previous degrada tion. The inquiry into the case was, it is true, conducted jointly by the royal and the ecclesiastical judge, but each of them pro nounced his sentence independently. All cases concerning benefices came before the royal judges. Finally, the o,ficialites only pos sessed a very limited jurisdiction over laymen, even in the matter of marriage. The parish priests, however, continued to enter declarations of baptisms, marriages and burials in registers kept according to the civil laws.
The general customs of the pays coutumiers were almost all officially recorded in the i6th century. Drafts were prepared by the officials of the royal courts in the chief town of the district in which the particular customs were valid, and were then submitted to the Government. The king then appointed commis sioners to visit the district and promulgate the customs on the spot. For the purpose of this publication the lords, lay and ecclesiastical, of the district, with representatives of the towns and of various bodies of the inhabitants, were summoned for a given day to the chief town. In this assembly each article was read, discussed and put to the vote. Those which were approved by the majority were thereupon decreed (decretes) by the com missioners in the king's name ; those which gave rise to diffi culties were put aside for the parlement to settle when it registered the coutume. The coutumes in this form became practically written law; henceforward their text could only be modified by a formal revision carried out according to the same procedure as the first version.
Legislation by ordonnances, edits, declarations or lettres patentes, emanating from the king, became more and more fre quent ; but the character of the grandes ordonnances, which were of a far-reaching and comprehensive nature, underwent a change during this period. In the 14th, 15th and i6th centuries they had been mainly ordonnances de reformation (i.e., revising previous laws), which were most frequently drawn up after a sitting of the States General, in accordance with the suggestions submitted by the deputies. The last of this type was the ordinance of 1629, promulgated after the States General of 1614 and the assemblies of notables which had followed it. In the 17th and 18th centuries they became essentially codifications, comprising a systematic and detailed statement of the whole branch of law. There are two of these series of codifying ordinances : the first under Louis XIV., inspired by Colbert and carried out under his direction. The chief ordinances of this group are that of 1667 on civil procedure; that of 1670 on the examination of criminal cases; that of 1673 on the commerce of merchants, and that of 1681 on the regulation of shipping, which form between them a complete code of commerce by land and sea. The second series of codifications was made under Louis XV., through the action of the chancellor d'Aguesseau. Its chief result was the regulation, by the ordinances of 1731, 1735 and 1747, of deeds of gift between living persons, wills, and property left in trust. Under Louis XVI. some mitigation was made of the criminal law, notably the abolition of torture.
The system of land tenure which prevailed in the 18th century preserved many features which descended from the feudal regime. The fief, although it still implied homage from the vassal, no longer involved any service on his part (excepting that of the arriere-ban due to the king) ; but when a fief changed hands the lord still exacted his profits. Tenures held by roturiers were gen erally subject to periodical and fixed contributions for the profit of the lord. Serfdom had disappeared from most of the provinces of the kingdom ; among all the coutumes which were officially codified, not more than ten or so still recognized this institution. An edict of Louis XVI. of 1779 abolished serfdom on crown lands, and mitigated the condition of the serfs who still existed on the domains of individual lords.
The Revolution entirely abolished the ancien regime, and with it whatever remained either of serfdom or of feudal privilege. The Legislative Assembly declared the abolishment, without in demnity, of all feudal rights for which the original deed of con cession could not be produced. The Convention entirely abolished all feudal rights, though it maintained, subject to redemption, those tenures and charges which were solely connected with landed property and not feudal. The Constituent Assembly suppressed nobility ; and forbade any one to bear its titles, emblems and arms. Administrative Reorganization.—The Constituent Assem bly gave to France a new administrative division, into departments, districts, cantons and communes; and this division, which was intended to make the old provincial distinctions disappear, had to serve all purposes, the department being the unit for all public services. Apart from certain changes in detail, this settlement was definitive and exists to the present day. But there was a peculiar administrative organism depending on this arrangement. The con stitution of 1791, it is true, made the king the titulary head of the executive power ; but the internal administration of the kingdom was not actually in his hands. It was deputed, under his orders, to bodies elected in each department, district and commune. The municipal bodies were directly elected by citizens duly qualified ; other bodies were chosen by the method of double election. Each body consisted of two parts : a council, for deliberative purposes, and a bureau or directoire chosen by the council from among its numbers to form the executive. These were the only instruments for the general administration and for that of the direct taxes. The king could, it is true, annul the illegal acts of these bodies, but not dismiss their members; he could merely suspend them from exer cising their functions, but the matter then went before the Legisla tive Assembly, which could maintain or remit the suspension as it thought fit. The king had not a single agent chosen by himself for general administrative purposes. This was a reaction, though a very exaggerated one, against the excessive centralization of the ancien regime, and resulted in an absolute administrative anarchy. The organization of the revolutionary Government partly restored the central authority; the councils of the departments were sup pressed; the Committee of Public Safety and the "representatives of the people on mission" were able to remove and replace the members of the elected bodies ; and also, by an ingenious arrange ment, national agents were established in the districts. The constitution of the year III. continued on these lines, simplifying the organization established by the Constituent Assembly, while maintaining its principle. The department had an administration of five members, elected as in the past, but having executive as well as deliberative functions. The district was suppressed. The communes retained only a municipal agent elected by themselves, and the actual municipal body, the importance of which was con siderably increased, was removed to the canton, and consisted of the municipal agents from each commune, and a president elected by the duly qualified citizens of the canton. The Directory was represented in each departmental and communal administration by a commissary appointed and removable by itself, and could dismiss the members of these administrations.
The Constituent Assembly decided on the complete reorganization of the administration of justice. This was accomplished on a very simple plan, which realized that ideal of the two degrees of justice which, as we have noticed, was that of France under the ancien regime. In the lower degrees it created in each canton a justice of the peace (juge de paix), the idea and name of which were borrowed from England, but which differed very much from the English justice of the peace. He judged, both with and without appeal, civil cases of small importance; and, in cases which did not come within his competency, it was his duty to try to reconcile the parties. In each district was established a civil court composed of five judges. This completed the judicial organization, except for the court of cassation, which had functions peculiar to itself, never judging the facts of the case but only the application of the law. For cases coming under the district court, the Assembly had preserved the right of appeal in cases involving sums above a certain figure. With regard to criminal prosecutions, there was in each department a court which judged crimes with the assistance of a jury; it consisted of judges borrowed from district courts, and had its own president and public prosecutor. Correctional tribunals, composed of juges de paix, dealt with mis demeanours. The Assembly preserved the commercial courts, or consular jurisdictions, of the ancien regime. There was a court of cassation, the purpose of which was to preserve the unity of jurisprudence in France; it dealt with matters of law and not of fact, considering appeals based on the violation of law, whether in point of matter or of form, and if such violation were proved, sending the matter before another tribunal of the same rank for re-trial. All judges were elected for a term of years. The Constit uent Assembly required proof of professional qualifications from all judges except the juges de paix. But the system was really the same as that of the administrative organization. The king ap pointed the commissaires du roi attached to the district courts, criminal tribunals and the court of cassation ; but could not revoke an appointment once made. The Convention did not change this general organization ; but it suppressed the professional guarantees required in the case of candidates for a judgeship, so that hence forth all citizens were eligible ; and it also caused new elections to take place. Moreover, the Convention not infrequently removed and replaced judges without further election. The constitution of the year III. preserved this system, but introduced one consider able modification. It suppressed the district courts, and in their place created in each department a civil tribunal consisting of 20 judges. The idea was a happy one, for it gave the courts more importance, and therefore more weight and dignity.
The Constituent Assembly suppressed the militia and maintained the standing army, essentially according to the old type. The Assembly proclaimed, however, the principle of com pulsory and personal service, under the particular form of the National Guard, to which all qualified citizens belonged, and in which almost all ranks were conferred by election. This was an institution which, with many successive modifications, and after various long periods of inactivity followed by a revival, lasted more than three-quarters of a century, and was not suppressed till 1871. For purposes of war the Convention, in addition to voluntary enlistments and the resources furnished by the National Guard, and apart from the forced levy of 200,000 men in
decided on the expedient of calling upon the communes to furnish men, a course which revived the principle of the old militia. But the Directory drew up an important military law, that of the 6th Fructidor of the year V1., which established compulsory military service for all, under a strict form of conscription. Thus, French men aged from 20 to 25 (de f enseurs conscrits) were divided into five classes, each including the men born in the same year, and were liable until they were 25 years old to be called up for active service, the whole period of service not exceeding f our years. No class was called upon until the younger classes had been exhausted, and the sending of substitutes was forbidden. This law, with a few later modifications, provided for the French armies up to the end of the empire.
The Constituent Assembly abolished nearly all the taxes of the ancien regime except the stamp duty and that on the registration of acts (the old controle and centieme denier). The customs were maintained only at the frontiers for foreign trade. In the establishment of new taxes the Assembly did away with indirect taxation on objects of consumption, and made the prin cipal direct tax the tax on land. Next in importance were the contribution personnelle et mobiliere and the patentes, which, though considerably modified later, are still essentially the basis of the French system of direct taxation. Under the Directory there was a partial reappearance of indirect taxation in the octrois of the towns, which had been suppressed by the Constituent Assembly.
The Constituent Assembly gave the Protestants liberty of worship and full rights; it also gave Jews the status of citizen, and political rights. With regard to the Catholic Church, the Assembly placed at the disposal of the nation the property of the clergy, which had already, in the course of the i8th century, been regarded by most political writers as a national possession ; at the same time it provided for salaries for the members of the clergy and pensions for those who had been monks. It abolished tithes and the religious orders, and forbade the re-formation of the latter in the future. The ecclesiastical districts were next reorganized, the department being always taken as the chief unit, and a new church was organized by the civil constitution of the clergy, the bishops being elected by the elec toral assembly of the department, and the cures by the elec toral assembly of the district. This was an unfortunate piece of legislation, inspired partly by the old Gallican spirit, partly by the theories on civil religion of J. J. Rousseau and his school, and, together with the civic oath imposed on the clergy, it was a source of endless troubles. The constitutional church established in this way was, however, abolished as a state institution by the Con vention. By laws of the years III. and IV. the Convention and the Directory, in proclaiming the liberty of worship, declared that the republic neither endowed nor recognized any form of worship.
The Assemblies of the Revolution, besides the laws which, by abolishing feudalism, altered the char acter of real property, passed many others concerning civil law. The most important are those of 1792, passed by the Legislative Assembly, which organized the registers of the etat civil kept by the municipalities, and laid down rules for marriage as a purely civil contract. Divorce was admitted to a practically unlimited extent ; it was possible not only for causes determined by law, and by mutual consent, but also for incompatibility of temper and character proved, by either husband or wife, to be of a persistent nature. Next came the laws of the Convention as to inheritance, imposing perfect equality among the natural heirs and endeavour ing to ensure the division of properties. Illegitimate children were considered by these laws as on the same level with legitimate children. In criminal law their work was still more important. In 1791 the Constituent Assembly gave France her first penal code. It was inspired by humanitarian ideas, still admitting capital pun ishment, though accompanied by no cruelty in the execution ; but none of the remaining punishments was for life. Long imprison ment with hard labour was introduced. Finally, as a reaction against the former system of arbitrary penalties, there came a system of fixed penalties determined, both as to its assessment and its nature, for each offence, which the judge could not modify. The Constituent Assembly also reformed the procedure of criminal trials, and taking English law as model, introduced the jury, with the double form of jury d'accusation and jury de jugement.
The constitutional changes of the consulate and Empire, though all, either in their full text or in principle, were submitted to popular vote by means of a plebiscite, had all the same object : to assure absolute power to Napoleon, while preserving the forms and appearance of liberty. Popular suffrage became universal; but the citizens in effect merely nominated the candidates, and it was the senate which chose from among them the members of the various so-called elected bodies, even those of the political assem blies. According to the constitution of the year VIII., the first consul possessed the executive power in the widest sense of the word, and he alone could initiate legislation. There were three representative assemblies in existence, but one of them, the corps legislatif, passed laws without discussing them, and without the power of amending the suggestions of the Government. The trib unate, on the contrary, discussed them, but its vote was not necessary for the passing of the law. The senate was the guardian and preserver of the constitution ; its chief function was to annul laws and acts submitted to it by the tribunate as being unconsti tutional. This original organization was naturally modified during the course of the consulate and the empire ; and a whole body, the tribunate, which was the only one which could preserve some in dependence, disappeared, without resort to a plebiscite. The im portance of another body, on the contrary, the conseil d'etat, which consisted of members appointed by Napoleon, continually increased. It was this body which really prepared and discussed the laws ; and it was its members who advocated them before the corps legislatif, to which the tribunate also sent orators to speak on its behalf. The ministers, who had no relation with the legis lative power, were merely the agents of the head of the state, freely chosen by himself. Napoleon, however, found these powers insufficient, and arrogated to himself others, a fact which the senate did not forget when it proclaimed his downfall. Thus he frequently declared war upon his own authority, in spite of the provisions to the contrary made by the constitution of the year VIII. ; and similarly, under the form of decrets, made what were really laws. They were afterwards called decrets-lois, and those that were not indissolubly associated with the political regime of the Empire, and survived it, were subsequently declared valid by the court of cassation, on the ground that they had not been sub mitted to the senate as unconstitutional, as had been provided by the constitution of the year VIII.
This period saw the rise of a whole new series of great organic laws. For administrative organ ization, the most important was that of the 28th Pluviose in the year VIII. It established as chief authority for each department a prefect, and side by side with him a conseil general for deliberative purposes; for each arrondissement (corresponding to the old dis trict) a sub-prefect (sous-prefet) and a conseil d'arrondissement; and for each commune, a mayor and a municipal council. But all these officials, both the members of the councils and the individual agents, were appointed by the head of the state or by the prefect, so that centralization was restored more completely than ever. Together with the prefect there was also established a conseil de prefecture, having administrative functions, and generally act ing as a court of the first instance in disputes and litigation arising out of the acts of the administration ; for the Constituent Assem bly had removed such cases from the jurisdiction of the civil tribunals, and referred them to the administrative bodies them selves. The final appeal in these disputes was to the conseil d'etat, which was supreme judge in these matters. In 1807 was created another great administrative jurisdiction, the cour des comptes, after the pattern of that which had existed under the ancien regime.
Judicial organization had also been funda mentally altered. The system of election was preserved for a time in the case of the juges de paix and the members of the court of cassation, but finally disappeared there, even where it had already been no more than a form. The magistrates were in principle ap pointed for life, but under the empire a device was found for evading the rule of irremovability. For the judgment of civil cases there was a court of first instance in every arrondissement, and above these a certain number of courts of appeal, each of which had within its province several departments. The separate criminal tribunals and the jury d'accusation were abolished in 1809 by the Code d'Instruction Criminelle, and the right of pronouncing the indictment was transferred to a chamber of the court of appeal. The correctional tribunals were amalgamated with the civil tribu nals of the first instance. The tribunal de cassation, which took under the Empire the name of cour de cassation, consisted of magistrates appointed for life, and still kept its powers. The ministere public (consisting of imperial avocats and procureurs) was restored in practically the same form as under the ancien regime.
The former system of taxation was preserved in principle, but with one considerable addition : Napoleon re-established indirect taxation on articles of consumption, which had been abolished by the Constituent Assembly ; the chief of these were the duties on liquor (droits reunis, or excise) and the monopoly of tobacco.
The Concordat concluded by Napoleon with the papacy on the 26th Messidor of the year IX. re-established the Catholic religion in France as the form of worship recognized and endowed by the State. It was in principle drawn up on the lines of that of 1516, and assured to the head of the French State in his dealings with the papacy the same prerogatives as had formerly been enjoyed by the kings; the chief of these was that he ap pointed the bishops, who afterwards had to ask the pope for canonical institution. The territorial distribution of dioceses was preserved practically as it had been left by the civil constitution of the clergy. The State guaranteed the payment of salaries to bishops and cures; and the pope agreed to renounce all claims referring to the appropriation of the goods of the clergy made by the Constituent Assembly. Later on, a decree restored to the fabriques (vestries) such of their former possessions as had not been alienated, and the churches which had not been alienated were restored for the purposes of worship. The law of the i8th Ger minal in the year X., ratifying the Concordat, reasserted, under the name of articles organiques du culte catholique, all the main principles contained in the old doctrine of the liberties of the Gallican Church. The Concordat did not include the restoration of the religious orders and congregations ; Napoleon sanctioned by decrees only a few establishments of this kind.
One important creation of the Empire was the university. The ancien regime had had its universities for purposes of instruction and for the conferring of degrees ; it had also, though without any definite organization, such secondary schools as the towns admitted within their walls, and the primary schools of the parishes. The Revolution suppressed the univer sities and the teaching congregations. The constitution of the year III. proclaimed the liberty of instruction and commanded that public schools, both elementary and secondary, should be estab lished. Under the Directory there was in each department an ecole centrale, in which all branches of human knowledge were taught. Napoleon, developing ideas which had been started in the second half of the i8th century, founded by laws and decrees of 1806, 1808 and 1811 the Universite de France, which provided and organized higher, secondary and primary education ; this was to be the monopoly of the state, carried on by its f acultes, lycees and primary schools. No private educational establishment could be opened without the authorization of the State.
But chief among the documents dating from this period are the codes, which still give laws to France. These are the Civil Code of 1804, the Code de Procedure Civile of 1806, the Code de Commerce of 1807, the Code d'Instruction Criminelle of 1809, and the Code Penal of 181o. These monumental works, in the elaboration of which the conseil d'etat took the chief part, contributed, to a greater or less extent, towards the fusion of the old law of France with the laws of the Revolution. It was in the case of the Code Civil that this task presented the greatest diffi culty (see CODE NAPOLEON). The Code de Commerce was scarcely more than a revised and emended edition of the ordonnances of 1673 and 1681; while the Code de Procedure Civile borrowed its chief elements from the ordonnance of 1667. In the case of the Code d'Instruction Criminelle a distinctly new departure was made; the procedure introduced by the Revolution into courts where judgment was given remained public and oral, with full liberty of defence; the preliminary procedure, however, before the examining court (juge d'instruction or chambre des mises en accusation) was borrowed from the ordonnance of 167o; it was the procedure of the old law, without its cruelty, but secret and writ ten, and generally not in the presence of both parties. The Code Penal maintained the principles of the Revolution, but increased the penalties. It substituted for the system of fixed penalties, in cases of temporary punishment, a maximum and a minimum, between the limits of which judges could assess the amount. Even
in the case of misdemeanours, it admitted the system of extenu ating circumstances, which allowed them still further to decrease and alter the penalty in so far as the offence was mitigated by such circumstances. (See further under NAPOLEON I.)
