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 customary law (la France coutumière) they The customs. were defined when necessary by the verdict of a jury of practitioners in what was called the enquête par turbes; some of them, however, were, in part at least, authentically recorded in seigniorial charters, chartes de ville 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, which Montesquieu justly quotes as throwing light on those times; also the Très ancienne coutume de Normandie and the Grand Coutumier de Normandie; the Conseil à un ami of Pierre des Fontaines, the Établissements 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 Limited Monarchy.—The 14th and 15th centuries were the age of the limited monarchy. Feudal institutions kept their political importance; but side by side with them arose others of which the object was the direct exercise of the royal authority; others also arose from the very heart of feudalism, but at the same time transformed its laws in order to adapt them to the new needs of the crown. 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 and was replaced by the parlement as to its judicial functions, while to fulfil its deliberative functions there was formed a new body, the royal council (conseil du roi), an administrative and governing council, which was in no way of a feudal character. The number of its members was at first small, but they 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 secrétaires des commandements du roi of the 15th century, who in the 16th century developed into the secrétaires d’état, and were themselves descended from the clercs du secret and secrétaires 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 ecclesiastical peerages existed and continued to exist to the end, together with the archbishopric and bishoprics to which they were attached, not being suppressed; 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 institution; for the new peers held their rank merely at the king’s will, though the rank continued to belong to a great barony and to be handed down with it. 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 (états généraux), which were often convoked, though not at fixed intervals, throughout the whole of the 14th century and the greater part of the 15th. Their States general and provincial estates. power reached its height at a critical moment 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. Of these provincial assemblies some were founded in one or other of the great fiefs, being convoked by the duke or count under the pressure of the same needs which led the king to convoke the states general; others, in provinces which had already been annexed to the crown, probably had their origin in the councils summoned by the bailli or seneschal to aid him in his administration. Later it became a privilege for a province to have its own assembly; those which did so were never of right 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. So far the king’s sole revenues were those which he exacted, in his capacity of feudal lord, wherever another lord did not intervene Royal taxation. between him and the inhabitants, in addition to 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 proportion 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 convoked. 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 vassals a tax levied by his own authority on their subjects. It is in this way that for thirty 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 in the 14th century sanctioned by the states general. Whatever form they took, they were given the generic name of Aids or auxilia, and were considered as occasional and extraordinary subsidies, the king being obliged in principle to “live of his own” (vivre de son domaine). 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 the two chief taxes became permanent: in 1435 that of the aids (a tax on the sale of articles of consumption, especially on wine), with the formal consent of the states general, and that of the taille in 1439. In the latter case the consent of the states general was not given; but only the nobility protested, for at the same time as the royal taille became permanent the seigniorial taille was suppressed. These imposts were increased, on the royal authority, by Louis XI. After his death the states general, which met at Tours in 1484, endeavoured to re-establish the periodical vote of the tax, and only granted it for two years, reducing it to the sum which it had reached at the death of Charles VII. But the promise that they would again be convoked before the expiry of two years was not kept. These imposts and that of the gabelle were henceforth permanent. Together with the taxes there was evolved the system of their administration. Their main outlines were laid down by the states general in the reign of King John, in 1355 and the following years. For the administration of the subsidies which they granted, they nominated from among their own numbers surintendants généraux or généraux des finances, and further, for each diocese or equivalent district, élus. Both had not only the active administration but also judicial rights, the latter constituting courts of the first instance and the former courts of final appeal. After 1360 the crown again adopted this organization, which had before been only temporary; but henceforth généraux and élus were nominated by the king. The élus, or officiers des élections, only existed in districts which were subject to the royal taille; hence the division, so important in old France, into pays d’élections and pays d’états. The élus kept both administration and jurisdiction; but in the higher stage a differentiation was made: the généraux des finances, who numbered four, kept the administration, while their jurisdiction as a court of final appeal was handed over to another body, the cour des aides, which had already been founded at the end of the 14th century. Besides the four généraux des finances, who administered the taxation, there were four Treasurers of France (trésoriers de France), who administered the royal domain; and these eight officials together formed in the 15th century a kind of ministry of finance to the monarchy.
The army also was organized. 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 became the arrière-ban, a term which had formerly The army. applied to the levée en masse of all the inhabitants in times of national danger. Before the 14th century the king had only had the power of calling 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, but in time of peace had to practise archery, and companies of gendarmerie or heavy cavalry, forming a permanent establishment, which were called compagnies d’ordonnance. It was chiefly to provide for the expense of the first nucleus of a permanent army that the taille itself had been made permanent.
The new army led to the institution of the governors of provinces, 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 généraux. There were at first twelve 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 provinces 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 The law courts. 14th century into a body of magistrates who were permanent but as yet subject to removal. During this period were evolved its organization and definitive features (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 Normandy 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 (remontrances) to the king when they refused the registration, giving the reasons for such refusal. The other royal jurisdictions were completed (see [Bailiff], [Châtelet]). 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 (prévôts des maréchaux de France), who were officers of the Maréchaussée (the gendarmerie of the time); they exercised criminal jurisdiction without appeal in the case of crimes committed by vagabonds and fugitives from justice, this class being called their gibier (game), and of a number of crimes of violence, whatever the rank of the offender. Further, another class of officers was created in connexion 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 he had some interest to follow up or to defend. Later they became officers of the crown. In the case of the procureurs du roi this development took place in the first half of the 14th century. Their duty was not only to represent the king in the law courts, whether as plaintiff or defendant, but also to take care that in each case the law was applied, and to demand its application. From this time on the procureurs du roi had full control over matters concerning the public interest, and especially over public prosecution. 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 reverse even the decisions of the courts of final appeal, and in some cases used this means of appealing against the decrees of the parlements (proposition d’erreur, requête civile, pourvoi en révision). In these cases the king was supposed to judge in person; in reality they were examined by the maîtres des requêtes 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 privé or de justice. At the end of the 15th century, Charles VIII., in order to relieve the council of some of its functions, created a new final court, the grand conseil, to deal with a number of these cases. But before long it again became the custom to appeal to the conseil du roi, so that the grand conseil became almost useless. The king frequently, by means of lettres de justice, intervened in the procedure of the courts, by granting bénéfices, by which rules which were too severe were modified, and faculties or facilities for overcoming difficulties arising from flaws in contracts or judgments, cases at that time not covered by the common law. By lettres de grâce he granted reprieve or pardon in individual cases. The most extreme form of intervention by the king 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 officialités was very much reduced, even over the clergy. They ceased to be competent to judge actions concerning the possession of real property, The Church. in which the clergy were defendants. In criminal law the theory of the cas privilégié, which appears in the 14th century, enabled the royal judges to take action against and judge the clergy for all serious crimes, though without the power of inflicting any penalties but arbitrary fines, the ecclesiastical judge remaining competent, in accordance with the privileges of clergy, to try the offender for the same crime as what was technically called a délit commun. The development of jurisprudence gradually removed from the officialités 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 question. For the acquisition of real property by ecclesiastical establishments the consent of the king to the amortizement was always necessary, even in the case of allodial lands; and if it was a case of feudal tenures the king and the direct overlords alone kept their rights, the intermediate lords being left out of the question.
As regards the conferring of ecclesiastical benefices, from the 14th century onwards the papacy encroached more and more upon the rights of the bishops, in whose gift the inferior benefices generally were, and of the electors, who Papal encroachments. usually conferred the superior benefices; at the same time it exacted from newly appointed incumbents heavy dues, which were included under the generic name of annates (q.v.). During the Great Schism of the Western Church, these abuses became more and more crying, until by a series of edicts, promulgated with the consent and advice of the parlement and the clergy, the Gallican 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: the reservations and the gratiae expectativae. For the choice of bishops and abbots, it restored election by the chapters and convents. The Pragmatic Sanction, however, was never recognized by the papacy, nor was it consistently and strictly applied by the royal power. The transformation of the civil and criminal law under the influence of Roman and canon law had become more and more marked. The production of the coutumiers, or livres de pratiques, also continued. The chief of them were: in the 14th century, the Stylus Vetus Curiae Parlamenti of Guillaume de Breuil; the Très ancienne coutume de Bretagne; the Grand Coutumier de France, or Coutumier de Charles VI.; the Somme rural of Boutillier; in the 15th century, for Auvergne, the Practica forensis of Masuer. Charles VII., in an article of the Grand Ordonnance of Montil-les-Tours (1453), ordered the general customs to be officially recorded under the supervision of the crown. It was an enormous work, which would almost have transformed them into written laws; but up to the 16th century little recording was done, the procedure established by the Ordonnance for the purpose not being very suitable.
The Absolute Monarchy.—From the 16th century to the Revolution was the period of the absolute monarchy, but it can be further divided into two periods: that of the establishment of this régime, from 1515 to about Government under the absolute monarchy. 1673; and that of the ancien régime when definitively established, from 1673 to 1789. The reigns of Francis I. and Henry II. clearly laid down the principle of the absolute power of the crown and applied it effectually, as is plainly seen from the temporary disappearance of the states general, which were not assembled under these two reigns. There were merely a few assemblies of notables chosen by the royal power, the most important of which was that of Cognac, under Francis I., summoned to advise on the non-fulfilment of the treaty of Madrid. It is true that in the second half of the 16th century the states general reappeared. They were summoned in 1560 at Orleans, then in 1561 at Pontoise, and in 1576 and 1588 at Blois. The League even convoked one, which was held at Paris in 1593. This represented a crucial and final struggle. Two points were then at issue: firstly, whether France was to be Protestant or Catholic; secondly, whether she was to have a limited or an absolute monarchy. The two problems were not necessarily bound up with one another. For if the Protestants desired political liberty, many of the Catholics wished for it too, as is proved by the writings of the time, and even by the fact that the League summoned the estates. But the states general of the 16th century, 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 only produced a few great ordinances of reform, which were not well observed. They were, however, to be called together yet again, as a result of the disturbances which followed the death of Henry IV.; but their dissensions 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, as we have seen, won for themselves the right of a preliminary discussion of those laws which were presented to them, and of refusing registration, explaining their reasons to the king by means of the remontrances. The royal power saw in this merely a concession from itself, a consultative power, which ought to yield before the royal will, when the latter was clearly manifested, either by lettres de jussion or by the actual words and presence of the king, when he came in person to procure the registration of a law in a so-called lit de justice. But from the 16th century onwards the members of the parlements claimed, on the strength of a historical theory, to have inherited the powers of the ancient assemblies (the Merovingian and Carolingian placita and the curia regis), powers which they, moreover, greatly exaggerated. The successful assertion of this claim would have made them at once independent of and necessary to the crown. During the minority of kings, they had possessed, in fact, special opportunities for asserting their pretensions, particularly when they had been called upon to intervene in the organization of the regency. It is on this account that at the beginning of the reign of Louis XIV. the parlement of Paris wished to take part in the government, and in 1648, in concert with the other supreme courts of the capital, temporarily imposed a sort of charter of liberties. But the first Fronde, of which the parlement was the centre and soul, led to its downfall, which was completed when later on Louis XIV. became all-powerful. The ordinance 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 become politically impotent. They had been sorely tried by the wars of religion, and Richelieu, in his struggles against the governors of the provinces, had crushed their chief leaders. The second Fronde was their last effort (see [Fronde]). At the same time the central government underwent changes. The great officers of the crown disappeared one by one. The office of constable of France was suppressed by purchase during the first half of the 17th century, and of those in the first rank only the chancellor survived till the Revolution. But though his title could only be taken from him by condemnation on a capital charge, the king was able to deprive him of his functions by taking from him the custody and use of the seal of France, which were entrusted to a garde des sceaux. Apart from the latter, the king’s real ministers 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 among them, each of them corresponding by despatches with those which were assigned to him. Any other business (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 16th 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 généraux des finances, who had become too powerful, were substituted the intendants des finances, one of whom soon became a chief minister of finance, with the title surintendant. The généraux des finances, like the trésoriers de France, became provincial officials, each at the head of a généralité (a superior administrative district for purposes of finance); under Henry II. 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 soon Colbert again became practically a minister of finance, under the name of contrôleur général des finances, both title and office continuing to exist up to the Revolution.