Chapter 27

The law of the Visigoths speaks of nobles holding local courts, similar to those of the official judge, count, or bishop. King Dagobert required the public and the private judges to act together. In the law of Lombardy landlords are mentioned who, in virtue of the double title of nobles and judges, assumed the right of protecting fugitive slaves taking shelter in their domains. By an article of the Salie law, the noble is made to answer for his vassal before the court of the count. We must hence conclude that the landlord's judgment was exercised indiscriminately on the serfs, the colons, and the vassals, and a statute of 855 places under his authority even the freemen who resided with other persons.

From these various sources we discover a curious fact, which has hitherto remained unnoticed by historians--namely, that there existed an intermediate legislation between the official court of the count and his subordinates and the private courts, which was a kind of court of arbitration exercised by the neighbours (_vicini_) without the assistance of the judges of the county, and this was invested with a sort of authority which rendered its decisions binding.

Private courts, however, were limited in their power. They were neither absolutely independent, nor supreme and without appeal. All conducted their business much in the same way as the high, middle, and lower courts of the Middle Ages; and above all these authorities towered the King's jurisdiction. The usurpation of ecclesiastical bishops and abbots--who, having become temporal lords, assumed a domestic jurisdiction--was curtailed by the authority of the counts, and they were even more obliged to give way before that of the _missi dominici_, or the official delegates of the monarch. Charles the Bald, notwithstanding his enormous concessions to feudalism and to the Church, never gave up his right of final appeal.

During the whole of the Merovingian epoch, the _mahl_ (_mallus_), the general and regular assembly of the nation, was held in the month of March. Persons of every class met there clad in armour; political, commercial, and judicial interests were discussed under the presidency of the monarch; but this did not prevent other special assemblies of the King's court (_curia regalis_) being held on urgent occasions. This court formed a parliament (_parlamentum_), which at first was exclusively military, but from the time of Clovis was composed of Franks, Burgundians, Gallo-Romans, as well as of feudal lords and ecclesiastics. As, by degrees, the feudal System became organized, the convocation of national assemblies became more necessary, and the administration of justice more complicated. Charlemagne decided that two _mahls_ should be held annually, one in the month of May, the other in the autumn, and, in addition, that in each county two annual _plaids_ should meet independently of any special _mahls_ and _plaids_ which it should please him to convoke. In 788, the emperor found it necessary to call three general _plaids_, and, besides these, he was pleased to summon his great vassals, both clerical and lay, to the four principal feasts of the year. It may be asserted that the idea of royalty being the central authority in matters of common law dates from the reign of Charlemagne (Fig. 297).

The authority of royalty based on law took such deep root from that time forth, that it maintained itself erect, notwithstanding the weakness of the successors of the great Charles, and the repeated infractions of it by the Church and the great vassals of the crown (Fig. 298).

The authoritative and responsible action of a tribunal which represented society (Fig. 299) thus took the place of the unchecked animosity of private feuds and family quarrels, which were often avenged by the use of the gibbet, a monument to be found erected at almost every corner. Not unfrequently, in those early times, the unchecked passions of a chief of a party would be the only reason for inflicting a penalty; often such a person would constitute himself sole judge, and, without the advice of any one, he would pass sentence, and even, with his own sword or any other available instrument, he would act as his own executioner. The tribunal thus formed denounced duelling, the pitiless warfare between man and man, and between family and family, and its first care was to protect, not each individual man's life, which was impossible in those days of blind barbarism, but at least his dwelling. Imperceptibly, the sanctuary of a man's house extended, first to towns of refuge, and then to certain public places, such as the church, the _mahlum_, or place of national assemblies, the market, the tavern, &c. It was next required that the accused, whether guilty or not, should remain unharmed from the time of the crime being committed until the day on which judgment was passed.

This right of revenge, besides being thus circumscribed as to locality, was also subject to certain rules as to time. Sunday and the principal feasts of the year, such as Advent, Christmas week, and from that time to the Epiphany, from the Ascension to the Day of Pentecost, certain vigils, &c., were all occasions upon which the right of revenge could not be exercised. "The power of the King," says a clever and learned writer, "partook to a certain degree of that of God and of the Saints; it was his province to calm human passions; by the moral power of his seal and his hand he extended peace over all the great lines of communication, through the forests, along the principal rivers, the highways and the byways, &c. The _Trêve du Dieu_ in 1035, was the logical application of these humane principles."

We must not suppose that justice in those days was dispensed without formalities, and that there were no regular intervals between the various steps to be gone through before final judgment was given, and in consequence of which some guarantee was afforded that the decisions arrived at were carefully considered. No one was tried without having been previously summoned to appear before the tribunal. Under the Carlovingians, as in previous times, the periods when judicial courts were held were regulated by the moon. Preference was given to the day on which it entered the first quarter, or during the full moon; the summonses were returnable by moons or quarter moons--that is, every seventh day. The summons was issued four times, after which, if the accused did not appear, he lost the right of counterplea, or was nonsuited. The Salic law allowed but two summonses before a count, which had to be issued at an interval of forty nights the one from the other. The third, which summoned the accused before the King, was issued fourteen nights later, and if he had not put in an appearance before sunset on the fourteenth day, he was placed _hors de sa parole_, his goods were confiscated, and he forfeited the privilege of any kind of refuge.

Among the Visigoths justice was equally absolute from the count to the tithe-gatherer. Each magistrate had his tribunal and his special jurisdiction. These judges called to their assistance assessors or colleagues, either _rachimbourgs_, who were selected from freemen; or provosts, or _échevins_ (_scabini_), whose appointment was of an official and permanent character. The scabins created by Charlemagne were the first elected magistrates. They numbered seven for each bench. They alone prepared the cases and arranged as to the sentence. The count or his delegate alone presided at the tribunal, and pronounced the judgment. Every vassal enjoyed the right of appeal to the sovereign, who, with his court, alone decided the quarrels between ecclesiastics and nobles, and between private individuals who were specially under the royal protection. Criminal business was specially referred to the sovereign, the _missi_, or the Count Palatine. Final appeal lay with the Count Palatine in all cases in which the public peace was endangered, such as in revolts or in armed encounters.

As early as the time of the invasion, the Franks, Bavarians, and Visigoths, when investigating cases, began by an inquiry, and, previously to having recourse to trials before a judge, they examined witnesses on oath. Then, he who swore to the matter was believed, and acquitted accordingly. This system was no doubt flattering to human veracity, but, unfortunately, it gave rise to abuses; which it was thought would be avoided by calling the family and friends of the accused to take an oath, and it was then administered by requiring them to place their hands on the crucifix, on some relics, or on the consecrated Host. These witnesses, who were called _conjuratores_, came to attest before the judges not the fact itself, but the veracity of the person who invoked their testimony.

The number and respectability of the _conjuratores_ varied according to the importance of the case in dispute. Gregory of Tours relates, that King Gontran being suspicious as to the legitimacy of the child who afterwards became Clotaire II., his mother, Frédégonde, called in the impartial testimony of certain nobles. These, to the number of three hundred, with three bishops at their head (_tribus episcopis et trecentis viris optimis_), swore, or, as we say, made an affidavit, and the queen was declared innocent.

The laws of the Burgundians and of the Anglians were more severe than those of the Germanic race, for they granted to the disputants trial by combat. After having employed the ordeal of red-hot iron, and of scalding water, the Franks adopted the judicial duel (Fig. 300). This was imposed first upon the disputing parties, then on the witnesses, and sometimes even on the judges themselves. Dating from the reign of the Emperor Otho the Great in 967, the judicial duel, which had been at first restricted to the most serious cases, was had recourse to in almost all suits that were brought before the courts. Neither women, old men, children, nor infirm persons were exempted. When a person could not himself fight he had to provide a champion, whose sole business was to take in hand the quarrels of others.

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.