Page:EB1911 - Volume 10.djvu/937

Rh 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, ). 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  (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, 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 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 (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  (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 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