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Originally appearing in Volume V10, Page 930 of the 1911 Encyclopedia Britannica.
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FRENCH LAW AND INSTITUTIONS Celtic Period.—The remotest times to which history gives us access with reference to the law and institutions formerly existing in the country which is now called France are those in which the dominant race at least was Celtic. On the whole, our knowledge is small of the law and institutions of these Celts, or Gauls, whose tribes constituted independent Gaul. For their reconstruction, modern scholars draw upon two sources; firstly, there is the information furnished by the classical writers and by Caesai.and Strabo in particular, which is trustworthy but some-what scanty; the other source, which is not so pure, consists in the accounts found in those legal works of the middle ages written in the. neo-Celtic dialects, the most important and the greater number of which belong to Ireland. A reconstruction from them is always hazardous, however delicate and scientific be the criticism which is brought to bear on it, as in the case of d'Arbois de Jubainville, for example. Moreover, in the historical evolution of French institutions those of the Celts or Gauls are of little importance. Not one of them can be shown to have survived in later law. What has survived of the Celtic race is the blood and temperament, still found in a great many Frenchmen, certain traits which the ancients remarked in the Gauls being still recognizable: bellum gerere et argute loqui. 'Roman Period.—It was the Roman conquest and rule which really formed Gaul, for she was Romanized to the point of losing almost completely that which persists most stubbornly in a conquered nation, namely, the language; the Breton-speaking population came to France later, from Britain. The institutions of Roman Gaul became identical with those of the Roman empire, provincial and municipal government undergoing the same evolution as in the other parts of the empire. It was under Roman supremacy too, as M. d'Arbois de Jubainville has shown, that the ownership of land became personal and free in Gaul. The law for the Gallo-Romans was that which was administered by the conventus of the magistrate; there are only a few peculiarities, mere Gallicisms, resulting from conventions or usage, which are pointed out by Roman jurisconsults of the classical age. The administrative reforms of Diocletian and Constantine applied to Gaul as to the rest of the empire. Gaul under this rule consisted of seventeen provinces, divided between two dioceses, ten in the diocese of the Gauls, under the authority of the praetorian prefect, who resided at Treves; and the other seven in the diaeresis septem provinciarum, under the authority of a vicarius. The Gallo-Romans became Christian with the other subjects of the empire; the Church extended thither her powerful organization modelled on the administrative organization, each civitas having a bishop, just as it had a curia and municipal magistrates. But, although endowed with privileges by the Christian emperors, the Church did not yet encroach upon the civil power. She had the right of acquiring property, of holding councils, subject to the imperial authority, and of the free election of bishops. But only the first germs of ecclesiastical jurisdiction are to be traced. In virtue of the laws, the bishops were privileged arbitrators, and in the matter of public sins exercised a disciplinary jurisdiction over the clergy and the faithful. In the second half of the 4th century, monasteries appeared in Gaul. After the fall of the Western empire, there was left to the Gallo-Romans as an expression of its law, which was also theirs, a written legislation. It consisted of the imperial constitutions, contained in the Gregorian, Hermogenian and Theodosian codes (the two former being private compilations, and the third an official collection), and the writings of the five jurists (Gaius, Papinian, Paulus, Ulpian and Modestinus), to which Valentinian III. had in 426 given the force of law. The Barbarian Invasion.—The invasions and settlements of the barbarians open a new period. Though there were robbery and violence in every case, the various barbarian kingdoms set up in Gaul were established under different conditions. In those of the Burgundians and Visigoths, the owners of the great estates, which had been the prevailing form of landed property in Roman Gaul, suffered partial dispossession, according to a system the rules regulating which can, in the case of the Burgundians, be traced almost exactly. It is doubtful whether a similar process took place in the case of the Frankish settlements, but their first conquests in the north and east seem to have led to the extermination or total expulsion of the Gallo-Roman.. population. It is impossible to say to what extent, in these various settlements, the system of collective property prevailing among the Germanic tribes was adopted. Another important difference was that, in embracing Christianity, some of the barbarians became Arians, as in the case of the Visigoths and Hurgundians; others Catholic, as in the case of the Franks. This was probably the main cause of the absorption of the otherkingdoms into the Frankish monarchy. In each case, however, the barbarian king appeared as wishing not to overthrow the Roman administration, but to profit by its continuation. The kings of the Visigoths and Burgundians were at first actually representatives of the Western empire, and Clovis himself was ready to accept from the emperor Anastasius the title of consul; but these were but empty forms, similar to the fictitious ties which long existed or still exist between China or Turkey and certain parts of their former empires, now separated from them for ever. As soon as the Merovingian monarch had made himself master of Gaul, he set himself to maintain and keep in working order the administrative machinery of the Romans, save that the administrative unit was henceforth no longer the provincia but the civitas, which generally took the name of pagus, and was placed under the authority of a count, comes or grafio (Graf). Perhaps this was not entirely an innovation, for it appears that at the end of the Roman supremacy certain civitates had already a comes. Further, several pagi could be united under the authority of a dux. The pagus seems to have generally been divided into hundreds (centenae). But the Roman administrative machinery was too delicate to be handled by barbarians; it could not survive for long, but underwent changes and finally disappeared. Thus the Merovingians tried to levy the same direct taxes as the Romans had done, the capilatio 'errata and the capitatio human, but they ceased to be imposts reassessed periodically in accordance with the total sum fixed as necessary to meet the needs of the state, and became fixed annual taxes on lands or persons; finally, they disappeared as general imposts, continuing to exist only as personal or territorial dues. In the same way the Roman municipal organization, that of the curiae, survived for a considerable time under the Merovingians, but was used only for the registration of written deeds; under the Carolingians it disappeared, and with it the old senatorial nobility which had been that of the Empire. The administration of justice (apart from the king's tribunal) seems to have been organized on a system borrowed partly from Roman and partly from Germanic institutions; it naturally tends to assume popular forms. Justice is administered by the count (comes) or his deputy (centenarius or vicarius), but on the verdict of notables called in the texts boni homines or rachimburgii. This takes place in an assembly of all the free subjects, called mallus, at which every free man is bound to attend at least a certain number of times a year, and in which are promulgated the general acts emanating from the king. The latter could issue commands or prohibitions under the name of bannus, the violation of which entailed a fine of 6o solidi; the king also administered justice (in palatio), assisted by the officers of his household, his jurisdiction being unlimited and at the same time undefined. He could hear all causes, but was not bound to hear any, except, apparently, accusations of deliberate failure of justice and breach of trust on the part of the rachimburgii. But what proved the great disturbing element in Gallo-Roman society was the fact that the conquerors, owing to their former customs and the degree of their civilization, were all warriors, men whose chief interest was to become practised in the handling of arms, and whose normal state was that of war. It is true that under the Roman empire all the men of a civitas were obliged, in case of necessity, to march against the enemy, and under the Frankish monarchy the count still called together his pagenses for this object. But the condition of the barbarian was very different; he lived essentially, for fighting. Hence those gatherings or annual reviews of the Campus Martius, which continued so long, in Austrasia at least. They constituted the chief armed force; for mercenary troops, in spite of the assertions of some to the contrary, play at this period only a small part. But this military class, though not an aristocracy (for among the Franks the royal race alone was noble), was t0 a large extent independent, and the king had to attach these leudes or fideles to himself by gifts and favours. At the same time the authority of the king gradually underwent a change in character, though he always claimed to be the successor of the Roman emperor. It gradually assumed that Character domestic or personal character that, among the of the Germans, marked most of the relations between Merovin- men. The household of the king gained in political glair importance, by reason that the heads of the principal ki'hip' offices in the palace became at the same time high public officials. There was, moreover, a body of men more especially attached to the king, the antrustions (q.v.) and the commensals (convivae regis) whose weregeld (i.e. the price of a man's life in the system of compensation then prevalent) was three times greater than that of the other subjects of the same race. The Frankish monarch had also the power of making laws, which he exercised after consulting the chief men of the kingdom, both lay and ecclesiastical, in the placita, which were meetings differing from the Campus Martius and apparently modelled principally on the councils of the Church. But throughout the kingdom in many places the direct authority of the king over the people ceased to make itself felt. The immunitates, granted chiefly to the great ecclesiastical properties, limited this authority in a curious way by forbidding public officials to exercise their functions in the precinct of land which was immunis. The judicial and fiscal rights frequently passed to the landowner, who in any case became of necessity the intermediary between the supreme power and the people. In regard to this last point, moreover, the case seems to have been the same with all the great landowners or potentes, whose territory was called potestas, and who gained a real authority over those living within it; later in the middle ages they were called /tontines potestatis (hommes de poeste). Other principles, arising perhaps less from Germanic custom strictly speaking than from an inferior level of civilization, also contributed towards the weakening of the royal power. The monarch, like his contemporaries, considered the kingdom and the rights of the king over it to be his property; consequently, he had the power of dealing with it as if it were a private possession; it is this which gave rise to the concessions of royal rights to individuals, and later to the partitions of the kingdom, and then of the empire, between the sons of the king or emperor, to the exclusion of the daughters, as in the division of an inheritance in land. This proved one of the chief weaknesses of the Merovingian monarchy. In order to rule the Gallo-Romans, the barbarians had had inevitably to ask the help of the Church, which was the repre- sentative of Roman civilization. Further, the Mero- Position vingian monarch and the Catholic Church had come s the Church. into close alliance in their struggle with the Arians. The result for the Church had been that she gained new privileges, but at the same time became to a certain extent dependent. Under the Merovingians the election of the bishop a clero et populo is only valid if it obtains the assent (assensus) of the king, who often directly nominates the prelate. But at the same time the Church retains her full right of acquiring property, and has her jurisdiction partially recognized; that is to say, she not only exercises more freely than ever a disciplinary jurisdiction, but the bishop, in place of the civil power, ad-ministers civil and criminal justice over the clergy. The councils had for a long time forbidden the clergy to cite one another before secular tribunals; they had also, in the 6th century, forbidden secular judges under pain of excommunication to cite before them and judge the clergy, without permission of the bishop. A decree of Clotaire II. (614) acknowledged the validity of these claims, but not completely; a precise interpretation of the text is, however, difficult. The Merovingian dynasty perished of decay, amid increasing anarchy. The crown passed, with the approval of the papacy, to an Austrasian mayor of the palace and his family, Ca oln- one of those mayors of the palace (i.e. chief officer of the king's household) who had been the last support and were in reality the direct precursors of feudalism. One was the royal benefice (beneficium), of which, without'doubt, the Church provided both the model and, in the first instance, the material. The model was the precaria, a form of concession by which it was customary for the Church to grant the possession of her lands to free men; this practice she herself had copied from the five-years leases granted by the Roman exchequer. Gradually, however, the precaria had become a concession made, in most cases, free and for life. As regards the material, when the Austrasian mayors of the palace (probably Charles Begin• Martel) wished to secure the support of the fideles pings by fresh benefits, the royal treasury being exhausted, of the they turned to the Church, which was at that time the "' greatest landowner, and took lands from her to give to their warriors. In order to disguise the robbery it was decided--; perhaps as an afterthought—that these lands should be held as precariae from the Church, or from the monastic houses which had furnished them. Later, when the royal treasury was reorganized, the grants of land made by the kings naturally took a similar form: the beneficium, as a free grant for life. Under the Merovingian royal grants of land were in principle made in full ownership, except, as Brunner has shown, that provision was made for a revocation under certain circumstances. No special services seem to have been attached to the benefice, whether granted by the king or by some other person, but, in the second half of the 9th century at least; the possession of the benefice is found as the characteristic of the military class and the form of their pay. This we find clearly set forth in the treatise de ecclesiis et capellis of Hincmar of Reims. The beneficium, in obedience to a natural law, soon tended to crystallize into a' perpetual and hereditary right. Another institution akin to the beneficium was the senioratus; by the commendatio, a form of solemn contract, probably of Germanic origin, and chiefly' characterized by the placing of the hands between those of the lord, a man swore absolute fidelity to another man, who became his senior. It became the generally received idea (as expressed in the capitularies) that it was natural and normal for every free man to have a senior. At the same time a benefice was never granted unless accompanied by the commendatio of the beneficiary to the grantor. As the most important senores were thus bound to the king and received from him their benefices, he expected through them to command their men; but in reality the king disappeared little by little in the senior. The king granted as benefices not only lands, but public functions, such as those of count or dux, which thus became possessions, held, first for life, and later as hereditary properties. The Capitulary of Kiersy-sur-Oise (877), which was formerly considered to have made fiefs legally and generally hereditary, only proves that it was already the custom for benefices of this kind, honores, to pass from the father to one of the sons. Charlemagne, while sanctioning these institutions, tried to arrest the political decomposition. He reorganized the administration of justice, fixing the respective jurisdictions of the count and the centenarius,,substituting for the rachim- cReh' nva of burgii permanent seabird, chosen by the' count in the 'harle. agnc presence of the people, and defining the relations of the count, as the representative of the central authority, with the advocati or :Indices of immunitates and potestates. He re-organized the army, determining the obligations and the military outfit of free men according to' their means. Finally, he established those regular inspections by the missi dominici which are the subject of so many of his capitularies. From the De ordine palatii of Hincmar of Reims, who follows the account of a con-temporary of the great emperor, we learn that he also regularly established two general assemblies, conventus or placita, in the year, one in the autumn, the other in the spring, which were attended by the chief officials, lay and ecclesiastical. It was here that the capitularies (q.v.) and all important measures were first drawn up and then promulgated. The revenues of the Carolingian monarch (which are no longer indentical with the finances of the state) consisted chiefly in the produce of the royal lands(villae), which the king and his suite often came and period. of the preceding dynasty. It was then that there developed a certain number of institutions, which offered them-selves as useful means of consolidating the political organism, consumed on the spot; and it is known how carefully Charlemagne regulated the administration of the vi tae. There were also the free gifts which the great men were bound, according to custom, to bring to the conventus, the contributions Carolla of this character from the monasteries practically syste 5C81 amounting to a tax; the regular personal or territorial dues into which the old taxes had resolved themselves; the profits arising from the courts (the royal bannus, and the fredum, or part of the compensation-money which went to the king); finally, numberless requisitions in kind, a usage which had without doubt existed continuously since Roman times. The Church was loaded with honours and had added a fresh prerogative to her former privileges, namely, the right of levying a real tax in kind, the tithe. Since the 3rd century she had tried to exact the payment of tithes from the faithful, interpreting as applicable to the Christian clergy the texts in the Old Testament bearing on the Levites; Gallican councils had repeatedly proclaimed it as an obligation, though, it appears, with little success. But from the reign of Pippin the Short onwards the civil law recognized and sanctioned this obligation, and the capitularies of Charlemagne and Louis the Debonnaire contain numerous provisions dealing with it. Ecclesiastical jurisdiction The extended farther and farther, but Charlemagne, the camel, protector of the papacy, maintained firmly his authority under over the Church. He nominated its dignitaries, both Charie- bishops and abbots, who were true ecclesiastical magne. officials, parallel with the lay officials. In each pagus, bishop and count owed each other mutual support, and the missi on the same circuit were ordinarily a count and a bishop. In the first collection of capitularies, that of Ansegisus, two books out of four are devoted to ecclesiastical capitularies. What, then, was the private and criminal law of this Frankish monarchy which had come to embrace so many different races ? The law The men of Roman descent continued under the Roman wader the law, and the conquerors could not hope to impose their Frank customs upon them. The authorized expression of monarchy. the Roman law was henceforth to be found in the Lex romana Wisigothorum or Breviarium Alarici, drawn up by order of Alaric II. in 5o6. It is an abridgment of the codes, of that of Theodosius especially, and of certain of the writings of the jurists included under the Law of Citations. As to the barbarians, they had hitherto had nothing but customs, and these customs, of which the type nearest to the original is to be found in the oldest text of the Lex Salica, were nothing more than a series of tariffs of compensations, that is to say, sums of money due to the injured party or bis family in case of crimes committed against individuals, for 'which crimes these compensations were the only penalty. They also introduced a barbarous system of trial, that by corn-purgation, i.e. exculpation by the oath of the defendant supported by a certain number of cojurantes, and that by ordeal, later called judicium Dei. In each new kingdomthe barbarians naturally kept their own laws, and when these men of different races all became subject to the Frankish monarchy, there evolved itself a system (called the personnalite des lois) by which every subject had, in principle, the right to be tried by the law of the race to which he belonged by birth (or sometimes for some other reason, such as emancipation or marriage). When the two adversaries were of different race, it was the law of the defendant which had to be applied. The customs of the barbarians had been drawn up in Latin. Sometimes, as in the case of the first text of the Salic law, the system on which they were compiled is not exactly known; but it was generally done under the royal authority. At this period only these written documents bear the name of " law " (leges romanorum; leges barbarorum), and at least the tacit consent of the people seems to have been required for these collections of laws, in accordance with an axiom laid down in a later capitulary; lex fit consensu populi et constitutione regis. It is noteworthy, too, that in the process of being drawn up in Latin, most of the leges barbarorum were very much Romanized. In the midst of this diversity, a certain number of causes tended to produce a partial unity. The capitularies, which had in themselves the force of law, when there was no question ofmodifying the leges, constituted a legislation which was the same for all; often they inflicted corporal punishment for' grave offences, which applied to all subjects without distinction. Usage and individual convenience led to the same result. The Gallo-Romans, and even the Church itself, to a certain extent, adopted the methods of trial introduced by the Germans, as was likely in a country relapsing into barbarism. On the other hand, written acts became prevalent among the barbarians, and at the same time they assimilated a certain amount of Roman law; for these acts continued to be drawn up in Latin, after Roman models, which were in most cases simply misinterpreted owing to the general ignorance. The type is preserved far us in those collections of Formulae, of which complete and scientific editions have been published by Eugene de Roziere and Carl 2eumer. During this period, too, the Gallican Church adopted the collection of councils and decretals, called later the Coder canonum ecclesiae Gallicanae, which she continued to preserve. This collection was that of Dionysius Exiguus, which was sent to Charlemagne in 774 by Pope Adrian I. But in the course of the 9th century apocryphal collections were also formed in the Gallican Church: the False Capitularies of Benedictus Levita, and the False Decretals of Isidorus Mercator (see DECRETALS). All the subjects of the Frankish monarchy were not of equal status. There was, strictly speaking, no nobility, both the Roman and the Germanic nobility having died out; but slavery continued to exist. The Church, however, was preparing the transformation of the slave into the serf, by giving force and validity to their marriages, in cases, at least, when the master had approved of them, and by forbidding the latter unjustly to seize the slave's peculium. But between the free man (ingenues) and the slave lay a number of persons of intermediate status; they possessed legal personality but were subject to incapacities of various kinds, and had to perform various duties towards other men. There was, to begin with, the Roman colonist (colonus), a class as to the origin of which there is still a controversy, and of which there is no clear mention in the laws before the 4th century; they and their children after them were attached perpetually to a certain piece of land, which they were allowed to cultivate on payment of a rent. There were, further, the (litus or lidus), a similar class of Germanic origin; also the greater number of the freedmen or descendants of freedmen. Many free men who had fled to the great landowners for protection took, by arrangement or by custom, a similar position. Under the Merovingian regime, and especially under the Carolingians, the occupation of the land tended to assume the character of tenure; but free ownership of land continued to exist under the name of alod (alodis), and there is even evidence for the existence of this in the form of small properties, held by free men; the capitularies contain numerous complaints and threats against the counts, who endeavoured by the abuse of their power to obtain the surrender of these properties. Period of Anarchy and the Rise of Feudalism.—The loth and rrth centuries were a period of profound anarchy, during which feudalism was free to develop itself and to take definitive shape. At that time the French people may be said to have lived without laws, without even fixed customs and without government. The legislative power was no longer exercised, for the last Carolingian capitularies date from the year 884, and the first laws of the Capetian kings (if they may be called laws) do not appear till during the 12th century. During this period the old capitularies and leges fell into disuse and in their place territorial customs tended to grow up, their main constituents being furnished by the law of former times, but which were at the outset ill-defined and strictly local. As to the government, if the part played by the Church be excepted, we shall see that it could be nothing but the application of brute force. In this anarchy, as always happens under similar conditions, men drew together and formed themselves into groups for mutual defence. A nucleus was formed which was to become the new social unit, that is to say, the feudal group. Of this the centre was a chief, around whom gathered men capable of bearing arms, who commended themselves to Anarchy and feudal origins. 910 him according to the old form of vassalage, per manus. They owed him fidelity and assistance, the support of their arms but not of their purse, save in quite exceptional cases; while he owed them protection. Some of them lived in his castle or fortified house, receiving their equipment only and eating at his table. Others received lands from him, which were, or later became, fiefs, on which they lived casati. The name fief, feudum, does not appear, however, till towards the end of this period; these lands are frequently called beneficia as before; the term most in use at first, in many parts, is casamentum. The fief, moreover, was generally held for life and did not become generally hereditary till the second half of the 11th century. The lands kept by the chief and those which he granted to his men were for the most part rented from him, or from their, for a certain amount in money or in kind. All these conditions had already existed previously in much the same form; but the new development is that the chief was no longer, as before, merely an intermediary between his men and the royal power. The group had become in effect independent, so organized as to be socially and politically self-sufficient. It constituted a small army, led, naturally, by the chief, and composed of his feudatories, supplemented in case of need by the rustici. It also formed an assembly in which. common interests were discussed, the lord, according to custom, being bound to consult his feudatories and they to advise him to the best of their power. It also formed a court of justice, in which the feudatories gave judgment under the presidency of their lord; and all of them claimed to be subject only to the jurisdiction of this tribunal composed of their peers. Generally they also judged the villeins (villani) and the serfs dependent on the group, except in cases where the latter obtained as a favour judges of their own status, which was, however, at that time a very rare occurrence. Under these conditions a nobility was formed, those men becoming nobles who were able to devote themselves to the profession of arms and were either chiefs or soldiers in one of the groups which have just been described. The term designating a noble, miles, corresponds also to that of knight (Fr. chevalier, Low Lat. caballerius) , for the reason that chivalry, of which the origins are uncertain, represents essentially the technical skill and professional duties of this military class. Every noble was destined on coming of age to become a knight, and the knight equally as a matter of course received a fief, if he had not one already by hereditary title. This nobility, moreover, was not a caste but could be indefinitely recruited by the granting of fiefs and admission to knighthood (see KNIGHTHOOD AND CHIVALRY). The state of anarchy was by now so far advanced that war became an individual right, and the custom of. private war arose. Every man had in principle the right of making war on, doubtless, in the 13th century, this was a privilege of the noble (gentilhomme); but the texts defining the limits which the Church endeavoured to set to this abuse, namely, the Peace of God and the Truce of God, show that this was at the outset a power possessed by men of all classes. Even a man who had appeared in a court of law and received judgment had the choice of refusing to accept the judgment and of making war instead. Justice, moreover, with its frequent employment of trial by combat, did not essentially differ from private war. It is unnecessary to go further and to affirm, with certain historians of our time, for example Guilhermoz and See, that the only free men at that time, besides the clergy, were the nobles, all the rest being serfs. There are many indications which lead us to assume, not only in the towns but even in the country districts, the existence of a class of men of free status who were not milites, the class later known in the 13th century as vilains, hommes de poeste, and, later, roturiers. The fact more probably was that only the nobles and ecclesiastics were exempt from the exactions of the feudal lords; while from all the others the seigneurs could at pleasure levy the faille (a direct and arbitrary ,tax), and those innumerable rights then called consuetudines.[LAW AND Free ownership, the allodium, even under the form of small freeholds, still existed by way of exception in many parts. Had, then, the main public authority disappeared? This is practically the contention of certain writers, who, like M. See, maintain that real property, the possession of a domain, conferred on the big landed proprietor all rights of taxation, command and coercion over the inhabitants of his domain, who, according to this view, were always serfs. But this is an exaggeration of the thesis upheld by old French authors, who saw in feudalism, though in a different sense, a confusion of property with sovereignty. It appears that in this state of political disintegration each part of the country which had a homogeneous character tended to form itself into a higher unit. In this unit there arose a powerful lord, generally a duke, a count, or a viscount, who sometimes came to be called the capitalis dominos. He was either a former official of the monarchy, whose function had become hereditary, or a usurper who had formed himself on this model. He laid claim to an authority other than that conferred by the possession of real property. He still claimed, to exercise over the whole of his former district certain rights, which we see him sometimes surrendering for the benefit of churches or monasteries. His court of justice was held in the highest honour, and to it were referred the most important affairs. But in this district there were generally a number of more or less powerful lords, who as a rule had as yet no particular feudal title and are often given the name of principes. Often, but not always, they had commended themselves to this duke or count by doing homage. On the other hand, the royal power continued to exist, being recognized by a considerable part of old Gaul, the regnum Francorum. But under the last of the Carolingians it had in fact become elective, as is shown by the elections of Odo and Robert before that of Hugh Capet. The electors were the chief lords and prelates of the regnum Francorum. But following a clever policy, each king during, his lifetime took as partner of his kingdom his eldest son and consecrated and crowned him in advance, so that the first of the Capetians revived the principle of heredity in favour of the eldest son, while establishing the hereditary indivisibility of the kingdom. This custom was recognized at the accession of Louis the Fat, but the authority of the king was very weak, being merely a vague allegiance. His only real authority lay where his own possessions were, or where there had not arisen a duke, a count, or lord of equal rank with them. He maintained, however, a general right of administering justice, a curia, the jurisdiction of which seems to have been universal. It is true that the parties in a suit had to submit themselves to it voluntarily, and could accept or reject the judgment given, but this was at that time the general rule. The king dispensed justice surrounded by the officers of his household (domestici), who thus formed his council; but these were not the only ones to assist him, whether in court or council. Periodically, at the great yearly festivals, he called together the chief lords and prelates of his kingdom, thus carrying on the tradition of the Carolingian placita or convent us; but little by little, with the appropriation of the honores, the character of the gathering changed; it was no longer an assembly of officials but of independent lords. This was now called the curia regis. While the power of the State was almost disappearing, that of the Church, apart from the particular acts of violence of which she was often the victim, continued to grow. Her jurisdiction gained ground, since her procedure The Church, was reasonable and comparatively scientific (except that she admitted to a certain extent compurgation by oath and the judicia Dei, with the exception of trial by combat). Not only was the privilege of clergy, by which accused clerks were brought under her jurisdiction, almost absolute, but she had cognizance of a number of causes in which laymen only were concerned, marriage and everything nearly or remotely affecting it, wills, crimes and offences against religion; and even contracts, when the two parties wished it or when the agreement was made on, oath, came within her competence. Such, then, were the private to defend his rights or to avenge his wrongs. Later war. The royal power. ecclesiastical or Christian courts (tours d'eglise, course de cltretiente) . The Church, .moreover, remained in close connexion with the crown, the king preserving a quasi-ecclesiastical character, while the royal prerogatives with regard to the election of bishops were maintained more successfully than the rights of the crown, though in many of the great fiefs they none the less passed to the count or the duke. It was at this time too that the Church tried to break the last ties which still kept her more or less dependent on the civil power; this was the true import of the Investiture Contest (see INVESTITURE, and CHURCH HISTORY), though this was not very acute in France. The period of the true feudal monarchy is embraced by the 12th and 13th centuries, that is to say, it was at this time that the crown again assumed real strength and authority; The but so far it had no organs and instruments save those monarchy. which were furnished by feudalism, now organized under a regular hierarchy, of which the king was the head, the " sovereign enfeoffer of the kingdom " (souverain fieffeux du royaume), as he came later on to be called. 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 privileged towns. The revival of Roman Roman law began in France and Italy in the second half law. of the 11th century, developing with extraordinary brilliance in the latter country at the university of Bologna, which was destined for a long time to dominate Europe. 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. The final organization of feudalism resulted from the struggle for organization which was proceeding in each district where Final the more powerful lords compelled the others to do martian- them homage and become their vassals; the capitalis lion of dominus had beneath him a whole hierarchy, and was feudalism. 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 the feudal obligations; but the principle was established. The question now arises, did free and absolute property, the allodium, entirely disappear in this process, and were all lands held as tenures? It continued to exist, by way of exception, in most districts, unchanged save in the burden of proof of ownership, with which, according to the customs, sometimes the lord and sometimes the holder of the land was held charged. In one respect, however, namely in the Feudal administration of justice, the feudal hierarchy had character ctJrathx. absolute sway. Towards the end of the 13th century Beaumanoir clearly laid down this principle: " All secular jurisdiction in France is held from the king as a fief or an arriere-fief. " Henceforth it could also be said that " All justice emanates from the king. " The law concerning fiefs became settled also from another point of view, the fief becoming patrimonial; that is to say, not only hereditary, but freely alienable by the vassal, subject in both cases to certain rights of transfer due to the lord, which were at first fixed by agreement and later by custom.' The most salient features of feudal succession were the right of primogeniture and the perference 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 also became patrimonial in similar circumstances, except that in their case there was no right of primogeniture nor any privilege of males. The tenure of serfs did not become alienable, and only became hereditary by certain devices. Feudal society next saw the rise of a new element within it: the privileged towns. At this time many towns acquired privileges, the movement beginning towards the end of the i ith century; they were sanctioned by a formal Rfse ofthe concession from the lord to whom the town was sub- towi~eged wna. ject, the concession being embodied in a charter or in a record of customs (coutume). Some towns won for themselves true political rights, for instance the right of self-administration, rights of justice over the inhabitants, the right of not being taxed except by their own consent, of maintaining an armed force, and of controlling it themselves. Others only obtained civil rights, e.g. guarantees against the arbitrary rights of justice and taxation of the lord or his provost. The chief forms of municipal organization at this time were the commune juree of the north and east, and the consul at, which came from Italy and penetrated as far as Auvergne and Limousin. The towns with important privileges formed in feudal society as it were a, new class of lordships; but their lords, that is to say their burgesses, were inspired by quite a new spirit. The crown courted their support, taking them under its protection, and championing the causes in which they were interested (see COMMUNE). Finally, it is in this period, under Philip Augustus, that the great fiefs began to be effectually reannexed to the crown, a process which, continued by the kings up to the end of the ancien regime, re-founded for their profit the territorial sovereignty of France. The crown maintained the machinery of feudalism, the chief central instruments of which were the great officers of the crown, the seneschal, butler, constable and chancellor, who Great were to become irremovable officials, those at least officers of who survived. But this period saw the rise of a the crown special college of dignitaries, that of the Twelve Peers and Peers of France, consisting of six laymen and six ecclesi- of France. astics, which took definitive shape at the beginning of the 13th century. We cannot yet discern with any certainty bV 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 result of that process of feudal organization mentioned above; the formation of a similar assembly of twelve peers occurs also in a certain number 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 custom. But the cour des pairs in this sense was not separate from the curia regis, and 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. Beaumanoir has a very interesting theory on this subject. The right of war tends to regain its natural equilibrium, the royal power following the Church in the endeavour to check private wars. Hence arose the quarantaine le roi, due to Philip Augustus or Saint Louis, by which those relatives of the parties to a quarrel who had not been present at the quarrel were rendered immune from attack for forty days after it; and above all the assterements imposed by the king or lord; on these points too Beaumanoir has an interesting theory. The rule was, moreover, already in force by which private wars had to cease during the time that the king was engaged in a foreign war. But the most appreciable progress took place in the The customs. Growth of the royal power. administrative and judicial institutions. Under Philip Augustus arose the royal baillis (see BAILIFF: section Bailli), and seneschals (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 Church had condemned other forms of ordeal, the purgatio vulgaris. In most parts of the country the feudal lords began to give place in the courts of law to the provosts (prevots) and baillis of the lords or of the crown, who were the judges, having as their councillors the avocats (advocates) and procureurs (procurators) of the assize. The feudal courts, which were founded solely on the relations of. homage and tenure, before which the vassals and tenants as such appeared, disappeared in part from the 13th century on. Of the seigniorial jurisdictions there soon remained only the hautes or basses justices (in the 14th century arose an intermediate grade, the moyenne justice), all of which were considered to be concessions of the royal power, and so delegations of the public authority. As a result of the application of Roman and canon law, there arose the appeal strictly so called, both in the class of royal and of seigniorial jurisdictions, the case in the latter instance going finally before a royal court, from which henceforth there was no appeal. In the 13th century too appeared the theory of crown cases (cas royaux), cases which the lords became in-competent to try and which were reserved for the royal court. Finally, the curia regis was gradually transformed into a regular court of justice, the Pareement (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 sessions, 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 received by members of the parlement at the Temple, and this was the origin of the Cour 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 Nobles, in order to be made a knight, and even in order to commons acquire a fief; but in this latter respect the king and the ' made exceptions in the case of roturiers, who were church rn licensed to take up fiefs, subject to a payment known the 18th as the droits de franc=fief. The roturiers, or villeins century. who were not in a state of thraldom, were already a numerous class not only in the towns but in the country. 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 officials (Fr. official), whence the name of officialite later applied in France to the ecclesiastical jurisdictions. On one point, however, her former rights were diminished. She preserved the right of freely acquiring personal and real property, but. though she could still acquire feudal tenures she could not keep them; the customs decided that she must vider les mains, that is, alienate the property again within a year and a day. The reason for this new rule was that the Church, the ecclesiastical establishment, 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 transfer duties on those tenures which she acquired. It was t ossible, however, to compromise and allow the Church to keep the tenure on condition of the consent not only of the lord directly concerned, but of all the higher lords up to the capitalis dominus; it goes without saying that this concession was only obtained by the payment of pecuniary compensations, the chief of which was the droll d'amnrtis.vcneml, paid to these different lords. In this period the form of the episcopal elections under-went a change, the electoral college coming to consist only off the canons composing the chapter of the cathedral a church: ^ But except for the official candidatures, which were abused by the kings and great lords, the elections were regular; the Pragmatic Sanction, attributed to Saint-Louis, which implies the contrary, is nowadays considered apocryphal by the best critics. 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 )o crtnrl been ChangC nal fixed and cruel. The criminal procedure of the feudal law. courts had been based on the right of accusation vested only in the person wronged and his relations; for this was substituted the inquisitorial procedure (processus per inquisitionem), which had developed in the canon law at the very end of the 12th century, and was to become the procedure u l'extraordinaire'of the ancient 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 customary law (la France coutumiere they ) Y curtpma were defined when necessary by the verdict of a jury of practitioners in what was called the enqueete par turbes; some of them, however, were, in part at least, authentically recorded in seigniorial charters, diaries de vale or diaries de coutume. Their rules were also recorded by experts in private works or collections called lives coutumiers, or simply coutumiers (customaries). The most notable of these are LesCoutumes de Beauvoisis of Philippe de' Beaumanoir, which Montesquieu justly quotes as throwing light on those times; also the Tres ancienne coutume de Normandie and the Grand Coutumier de Normandie; the Conseil et un ami of Pierre des Fontaines, the Etablissements de Saint Louis; the Livre de jeslice et de plea; 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 Olin 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 (ceased 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 secretaires des commandements du roi of the 15th century, who in the 16th century developed into the secretaires d'etat, and were themselves descended from the dens 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 r3th 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 (etats'generaux), which were often convoked, though not stagy at fixed intervals, throughout the whole of the 14th genera/ century and the greater part of the 15th. Their and pro- power reached its height at a critical moment of the estates. 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 ax dton. of feudal lord, wherever another lord did not intervene between him and the inhabitants, in addition to the in-come 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, endeavouredto 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 generaux or generaux des finances, and further, for each diocese or equivalent district, elus. 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 136o the crown again adopted this organization, which had before been only temporary; but henceforth generaux and elus 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 administration 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 cour des aides, which had already been founded at the end of the 14th century. Besides the four generaux des finances, who administered the taxation, there were four Treasurers of France (tresoriers 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 arriere--ban, a term which had formerly ma 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 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 generaux. There were at first twelve of these, which were called in the middle of the 16th century the douse 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 taw 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, CHATELET). 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 jurisdiction without appeal in the case of crimes committed by vagabonds and fugitives from justice, this class being called their giblet. (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 decree's of the parlements (proposition d'erreur, requite civile, pourvoi en revision). In these cases the king was supposed to judge in person; in reality they were examined by the ma fires 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. 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 Wires de justice, intervened in the procedure of the courts, by granting benefices, 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 letires de grace he granted reprieve or pardon in individual cases. The most extreme form of intervention by the king was made by means of Mitres 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 officialites was very much reduced, even over the clergy. They ceased to be competent to The Church. judge actions concerning the possession of real property, in which the clergy were defendants. In criminal law the theory of the cas privilegie, 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 delit commun. The development of juris- prudence graduallry removed from the gficialites 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 matritnonii 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 pap8l h. usually conferred the superior benefices; at the same meats. 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 theme were: in the 14th century, the Stylus Vetus Curiae Parlamenti of Guillaume de - Breuil; the Tres ancienne coutume'dC Bretagne; the Grand Coutumier de France, or Coutumier de Charles VI.; the Somme rural. of Boutillier; in the 15th century, for Auvergne, the Practica forensic 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 Govern, establishment of this regime, from 1515 to about meat 1673; and that of the ancien regime when definitively under the established, from 1673 to 1789. The reigns of Francis absolute - I. and Henry II. clearly laid down the principle of the monarchy. 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 156o 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 x6th 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 INSTITUTIONS] 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 generaux 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 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 Fouquet915 led to the suppression of the office of surintendant; but soon Colbert again became practically a minister of finance, under the name of contr8leur general des finances, both title and office continuing to exist up to the Revolution. The conseil du roi, the origin of which we have described, was an important organ of the central government, and for a long time included among its members a large number of representatives 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 17th century the council tended to differentiate its functions, forming 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 conseillers d 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 haut, 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 depee,ches, in which sat the four secretaries of state and where everything concerned with internal administration (except finance) was dealt with, including the legal business connected with this administration. As to the government and the preparation of laws, under Louis XIV. and Louis XV., the conseil du roi often passed into the background, when, as the saying went, a minister who was projecting some important measure travaillait seul avec le roi (worked alone with the king), having from the outset gained the king's ear. The chief authority in the provincial administration belonged in the 16th century to the governors of the provinces, though, strictly speaking, the governor had only military powers in his gouvernement; for, as we have seen, he P'O'tn°tat was the direct representative of the king for general aaminis- tration. purposes. 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 administrative centralization (see INTENDANT). The towns having a corps de ville, that is to say, a municipal organization, preserved in the 16th century a fairly wide autonomy, and played an important part in the wars of religion, especially under the League. But under The towns. Louis XIV. their independence 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 17th century, the municipal officials ceased, even in principle, to be elective. Their functions ranked as offices which were, like royal offices, saleable and heritable. The pretext given by the edicts were the intrigues and disseri ions caused by the elections; the real cause was that the government wanted to sell these offices, which is proved by the fact that it frequently allowed towns to redeem them and tore-establish the elections. The sale of royal offices is one of the characteristic features of the ancien regime. It had begun early, and, apparently, with the office of councillor of the parlement of Paris, when this became permanent, in the second half of the 14th sate of offices. century. It was first practised by magistrates who wished to dispose of their office in favour of a successor of their own choice. The resignatio in favorem of ecclesiastical benefices served as model, and at first care was taken to conceal the money transaction between the parties. The crown winked at these resignations in consideration of a payment in money, 916 But in the 16th century, under Francis I. at the latest, the crown itself began officially to sell offices, whether newly created or vacant by the death of their occupiers, taking a fee from those upon whom they were conferred. Under Charles IX. the right of resigning in favorem was recognized by law in the case of royal officials, in return for a payment to the treasury of a certain proportion of the price. In the case of judicial offices there was a struggle for at least two centuries between the system of sale and another, also imitated from canon law, i.e. the election or presentation of candidates by the legal corporations. The ordinances of the second half of the 16th century, granted in answer to complaints of the states general, restored and con-firmed the latter system, giving a share in the presentation to the towns or provincial notables and forbidding sales. The system of sale, however, triumphed in the end, and, in the case of judges, had, moreover, a favourable result, assuring to them that irremovability which Louis XI. had promised in vain; for, under this system, 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 Prices, or dues paid by litigants to the judges. The system of sale, and with it irremovability, 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 without having exercised this right himself. It was established under Henry IV. in 1604 by the system called the Paulette, in return for the payment by the official of an annual fee (droit annuel) which was definitely fixed at a hundredth part of the price of the office. Thus these offices, though the royal nomination was still required as well as the professional qualifications required by the law, became heritable property in virtue of the finance attached to them. This led to the formation of a class of men who, though bound in many ways to the crown, were actually independent. Hence the tendency in the 18th century to create new and important functions under the form, not of offices, but of simple commissions. In this period of the history of France were evolved and defined the essential principles of the old public law. There were, Funda- in the first place, the fundamental laws of the realm, mental which were true constitutional principles, established laws of for the most part not by law but by custom, and France. considered as binding in respect of 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 forbade the king to change its order, and those which proclaimed the inalienability of the royal domain, against which no title by prescription was valid. This last principle, introduced in the 14th century, had been laid down and defined by the edict of Moulins in 1566; it admitted only two exceptions: the formation of appanages (q.v.), and selling (engagement), to meet the necessities of war, with a perpetual option of redeeming it. There was in the second place the theory of the rights, franchises and liberties of the Gallican Church, formed of elements some of which were of great antiquity, and based on the conditions which had determined the relations of the Gallican Church with the crown and papacy during the Great Schism and under the Pragmatic Sanction of Bourges, and defined at the end of the 16th and the beginning of the 17th century. This body of doctrine was defined by the writings of three men especially, Guy Coquille, Pierre Pithou and Pierre Dupuy, and was solemnly confirmed by the declaration of the clergy of France, or Declaration des quatres articles of 1682, and by the edict which promulgated it. Its substance was based 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[LAW AND discipline only by the consent of the king; thirdly, that the king had authority over and could legislate for the Gallican Church in temporal matters and matters of discipline. The old public law provided a safeguard against the violation of these rules. This was the process known as the appel comme d'abus, formed of various elements, some of them very ancient, and definitely established during the 16th 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 clergy were, when necessary, reduced to obedience by means of arbitrary fines and by the seizure of their temporalities. The Pragmatic Sanction had been abrogated and replaced by the Concordat of 1515, concluded between Francis I. and Leo X., which remained in force until suppressed by the Constituent Assembly. The Concordat, moreover, 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, and which had introduced reforms in certain points of discipline. But in the case of the superior benefices (bishoprics and abbeys) election by the chapters was suppressed. The king of France nominated the candidate, to whom the pope gave canonical institution. As a matter of fact, the pope had no choice; he had to institute the nominee of the king, unless he could show his unworthiness or incapacity, as the result of inquiries regularly conducted in France; for the pope it was, as the ancient French authors used to say, a case of compulsory collation. The annates were re-established at the time of the Concordat, but considerably diminished in comparison with what they had been before the Pragmatic Sanction. We must add, to complete this account, that many of the inferior benefices, in France as in the rest of Christendom, were conferred according to the rules of patronage, the patron, whether lay or ecclesiastic, presenting a candidate whom the bishop was bound to appoint, provided he was neither incapable nor unsuitable. There was some difficulty in getting the Concordat registered by the parlement of Paris, and the latter even announced its intention of not taking the Concordat into account in those cases concerning benefices which might come before it. The crown found an easy method of making this opposition ineffectual, namely, to transfer to the Grand Conseil the decision of cases arising out of the application of the Concordat. In the 16th century also, contributions to the public services drawn from the immense possessions of the clergy were regularized. Since the second half of the lath century at least, the kings had in times of urgent need asked for subsidies from the church, and ever since the Saladin tithe (dime saladine) of Philip Augustus this contribution had assumed the form of a tithe, taking a tenth part of the revenue of the benefices for a given period. Tithes of this kind were fairly frequently granted by the clergy of France, either with the pope's consent or without (this being a disputed point). After the conclusion of the Concordat, Leo X. granted the king a tithe (decime) under the pretext of a projected war against the Turks; hitherto con-cessions of this kind had been made by the papacy in view of the Crusades or of wars against heretics. 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, represented by the prelates who were then gathered together for the Colloquy of Poissy with the Protestants, and some of those who had been sitting at the states general of Pontoise. The fulfilment of this agreement was, however, evaded by the king, who diverted part of the funds provided by the clergy from their proper purpose. In 1580, after a period of ten years which had been agreed on, a new assembly of the clergy was called together and, after protesting against this action, renewed the agreement, which was hence-for ward always renewed every ten years. Such was the definitive form of the contribution of the clergy, who also acquired the right of themselves assessing and levying these taxes on the holders of benefices. Thus every ten years there was a great assembly of the clergy, the members of which were elected. 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 and supplementary sums paid on one occasion only, which were sometimes considerable. The church, on her side, profited by this arrangement in order to obtain the commutation or redemption of the taxes affecting 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 strangers, or pays conquer, had in this matter, as in many others, an arrangement of their own. At last, under Louis XV. the edict of 1749, concernant les etablissements et acquisitions des gens de mainmorte, was completely effective in subordinating the acquisition of property by ecclesiastical establishments to the consent and control of the crown, rendering them incapable of acquiring real property by bequests. At the end of the 16th century a wise law had been made which, in spite of the traces which it bore of past struggles, had established a reasonable balance among the Christians of France. The edict of Nantes, in 1598, granted the Protestants full civil rights, liberty of conscience 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 revoked 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 remained behind was peculiar. Laws passed in 1715 and 1724 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. After the death of Louis XIV., however, the regent, under the inspiration of the duc de St Simon, made trial of a system of which the latter had made a study while in a close correspondence with the duke of Burgundy. It consisted in substituting for the authority of the ministers, secretaries of state and controller-general councils, or governmental bodies, mainly composed of great lords and prelates. These only lasted for a few years, when a return was made to the former organization. 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. During this reign there were numerous conflicts between them and the government, the causes of this being primarily the innumerable incidents to which the bull Unigenitus gave rise, and the increase of taxation; proceedings against Jesuits also figure conspicuously in the action of the parlements. They became at this period the avowed representatives of the nation; they contested the validity of the registration of laws in the tits de justice, asserting that laws could only be made obligatory when the registrationhad been freely endorsed by themselves. 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 December 1770, 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 tour des aides of Paris, which had made common cause with the parlement, was also suppressed. Many of the provincial parlements were re-organized, and a certain number of useful reforms were carried out in the jurisdiction of the parlement of Paris; the object of these, however, was in most cases that of diminishing its importance. 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 of books, pamphlets and tracts in which the rights of the crown were discussed. At the same time the political philosophy of the x8th century was disseminating new principles, and especially those of the supremacy of the people and the differentiation of powers, the government of England also became known among the French. Thus men's minds were being prepared for the Revolution. The personal government of Louis XVI. from 1774 to 1789 was chiefly marked by two series of facts. Firstly, there was the partial application of the principles propounded by the French economists of this period, the Physiocrats, who had a political doctrine peculiar to themselves. They were not in favour of political liberty, but attached on the contrary to the absolute monarchy, of which they did not fear the abuses because they were convinced that so soon as they should be known, reason (evidence) alone would suffice to make the crown respect the " natural and essential laws of bodies politic " (Lois naturelles et essentielles des societes politiques, the title of a book by Mercier de La Riviere). On the other hand, they favoured civil and economic liberty. They wished, in particular, to decentralize the administration and restore to the landed proprietors the administration and levying of taxes, which they wished to reduce to a tax on land only. This school came into power with Turgot, who was appointed controller-general of the finances, and laid the foundations of many reforms. He actually accomplished for the moment one very important reform, namely, the suppression of the trade and craft gilds (communautes, jurandes et maitrises). This organization, which was common to the whole of Europe (see Gems), had taken definitive shape in France in the 13th and 14th centuries, but had subsequently been much abused. Turgot suppressed the privileges of the maitres, who alone had been able to work on their own account, or to open shops and workshops, and thus proclaimed the freedom of labour, industry and commerce. However, the old organization, slightly amended, was restored under his successor Necker. It was Turgot's purpose to organize provincial and other inferior assemblies, whose chief business was to be the assessment of taxes. Necker applied this idea, partially and experimentally, by creating a few of these provincial assemblies in various generalites of the pays d'elections. A general reform on these lines and on a very liberal basis was proposed by Calonne to the assembly of notables in 1787, and it was brought into force for all the. pays d'elections, though not under such good conditions, by an edict of the same year. Louis XVI. had inaugurated his reign by the restoration of the parlements; all the bodies which had been suppressed by Maupeou and all the officials whom he had dismissed were restored, and all the bodies and officials cleated by him were suppressed. But it was not long before the old struggle between the crown and parlements again broke out. It began by the conservative opposition offered by the parlement of Paris to Turgot's reforms. But the real struggle broke out in 1787 over the edicts coming from the assembly of notables, and particularly over the two new taxes, the stamp duty and the land tax. The parlement of Paris refused to register them, asserting that the consent of the taxpayers, as represented by the states general, was necessary to fresh taxation. The struggle seemed to have come to an end in September; but in the following November it again broke out, in spite of the king's promise to summon the states general. It reached its height in May 1788, when the king had created a tour pleniere distinct from the parlements, the chief function of which was to register the laws in their stead. A widespread agitation arose, amounting to actual anarchy, and was only ended by the recall of Necker to power and the promise to convoke the states general for 1780. Various Institutions.—The permanent army which, as has been stated above, was first established under Charles VII., The army. was developed and organized 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, the system was adopted for this also of recruiting permanent bodies of mercenaries by voluntary enlistment. First there were the " old bands " (vieilles bandes), chiefly those of Picardy and Piedmont, and at the end of the 16th century appeared the first regiments, the number of which was from time to time increased. There were also in the service and pay of the king French and foreign regiments, the latter principally Swiss, Germans and Scots. The system of purchase penetrated also to the army. 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 uniform, 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, who was at first chosen by the assembly of the inhabitants, later by drawing lots among the bachelors or widowers without children, who were not exempt. 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 war, when they were individually incorporated into various regiments to fill up the gaps. Under Louis XV., with the duc de Choiseul as minister of war, great and useful reforms were effected in the army. Choiseul suppressed what he called the " farming of companies " (compagnieferme) ; recruiting became 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. One 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 system of all parts of the kingdom. To this territorial inequality taxation. was added the inequality arising from privileges. Ecclesiastics, nobles, and many of the crown officials were exempted from the heaviest imposts. The chief taxes were the taille (q.v.), the aides and the gabelle (q.v.), or monopoly of salt, the consumption of which was generally made compulsory up to the amount determined by regulations. In the 17th and 18th centuries certain important new taxes were established: from 1695 to 1698 the capitation, which was re-established in 1701 with considerable modifications, and in 1710 the tax of the dixieme, which became under Louis XV. the tax of the vingtiemes. These two imposts had been established on the principle of equality, being designed to affect every subject in proportion to his income; but so strong was the system of privileges, thatas 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, which was very extensive in the 17th and 18th centuries, 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 century 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 impost in each election, but later they were combined into larger lots, 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 ferme generate, including all the imposts and revenues which were farmed in the whole of France, was only established under Colbert. The ferme generate was a powerful company, employing a vast number of men, most of whom enjoyed various privileges. Besides the royal taxes, seigniorial imposts survived under the form of tolls and market dues. The lords also of ten 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 number of parlements, of cours des aides and of cours des comptes increased; in the 17th century the name of conseil Courts of /awe superieur was given to some new bodies which actually discharged the functions of the parlement, this being the period of the decline of the parlement. In the 16th century, under Henry II., had been created presidiaux, or courts of final jurisdiction, intended to avoid numerous appeals in small cases, and above all to avoid a final appeal to the parlements. Seigniorial courts survived, but were entirely suboYdina:te to the royal jurisdictions and were badly officered by ill-paid and ignorant judges, the lords having long ago lost the right to sit in them in person. Their chief use was to deal with cases concerning the payment of feudal dues to the lord. Both lawyers and people would have preferred only two degrees of justice; and an ordinance of May 1788 realized this desire in the main. It did not suppress the seigniorial jurisdictions, but made their extinction a certainty by allowing litigants to ignore them and go straight to the royal judges. This was, however, reversed on the recall of Necker and the temporary triumph of the parlements. The ecclesiastical jurisdictions survived to the end, but with diminished scope. Their competency had been considerably reduced by the Ordinance of Villers Cotterets of 1539, and by an edict of 1693. But a series of ingenious legal theories had been principally efficacious in gradually :sties/ courts. depriving them of most of the cases which had hitherto come under them. In the 18th century the privilege of clergy did not prevent civil suits in which the clergy were defendants from being almost always taken before secular tribunals, and ever since the first half of the 17th century, for all grave offences, or cas privilegies, the royal judge could pronounce a sentence of corporal punishment on a guilty cleric without this necessitating his previous degradation. The inquiry into the case was, it is true, conducted jointly by the royal and the ecclesiastical judge, but each of them pronounced his sentence independently. All cases concerning benefices came before the royal judges. Finally, the ofcialites had no longer as a rule any jurisdiction over laymen, even in the matter of marriage, except in questions of betrothals, and sometimes in cases of opposition to marriages. INSTITUTIONS) 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 16th century, definite procedure for this purpose having been adopted at the end of the The "cuss 15th century. Drafts were prepared by the officials toms.' ~ 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 commissioners 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 (dailies) by the commissioners in the king's name; those which gave rise to difficulties 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. Throughout the 16th century a fair number of coutumes were thus revised (ref ormees), with the express object of profiting by the observations and criticisms on the first text which had appeared in published commentaries and notes, the most important of which were those of Charles Dumoulin. In the 16th century there had been a revival of the study of Roman law, thanks to the historical school, among the most illustrious representatives of which were Jacques Cujas, Hugues Doneau and Jacques Godefroy; but this study had only slight influence on practical jurisprudence. Certain institutions, however, such as contracts and obligations, were regulated throughout the whole of France by the principles of Roman law. - Legislation by ordonnances, edits, declarations or lettres patentes, emanating from the king, became more and more frequent; 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 16th 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 (code of civil procedure); that of 1670 on the examination of criminal cases (code of penal procedure); 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 ordinance of 167o determined the formalities of that secret and written criminal procedure, as opposed to the hearing of both parties in a suit, which formerly obtained in France; it even increased its severity, continuing the employment of torture, binding the accused by oath to speak the truth, and refusing them counsel save in exceptional cases. 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 173r, 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 feudal regime, in spite of the survival of seigniorial courts and tolls, was no longer of any political importance; but it still furnished the common form of real property. The fief, although it still implied homage from the vassal, no longer involved any service on his part (excepting that of the arrierc-bon due to the919 king); but when a fief changed hands the lord still exacted his profits. Tenures held by roturiers, in' addition to some similar rights of transfer, were generally subject to periodical L qd and fixed contributions for the profit of the lord. This tenaure. system was still further complicated by tenures which were simply real and not feudal,. e.g. that by payment of ground rent, which were superadded to the others, and had become all the heavier since, in the 18th century, royal rights of transfer had been added to the feudal rights. The inhabitants of the country districts were longing for the liberation of real property. Serfdom had disappeared from most of the provinces of the kingdom; among all the centimes which were officially codified, not more than ten or so still recognized this institution. Serfdom. This had been brought about especially by the agency of the custom by which serfs had been transformed into roturiers. 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 nobility still remained a privileged class, exempt from certain taxes. Certain offices were restricted to the nobility; according to an edict of Louis XVI. (1781) it was even necessary to be a noble in The three order to become an officer in the army. In fact, estates. the royal favours were reserved for the nobility. Certain rules of civil and criminal procedure also distinguished nobles from roturiers. The acquisition of fiefs had ceased to bring nobility with it, but the latter was derived from three sources: birth, lettres d'anoblissement granted by the king and appointment to certain offices. In the 17th and 18th centuries the peers of France can be reckoned among the nobility, forming indeed its highest grade, though the rank of peer was still attached to a fief, which was handed down with it; on the eve of the Revolution there were thirty-eight lay peers. The rest of the nation, apart from the ecclesiastics, consisted of the roturiers, who were not subject to the disabilities of the serfs, but had not the privileges of the nobility. Hence the three orders (estates) of the kingdom: the clergy, the nobility and the tiers Nat (third estate). An edict of Louis XVI. had made a regular civil status possible to the Protestants, and had thrown open offices and professions to them, though not entirely; but the exercise of their religion was still forbidden. The Revolution.—With the Revolution France entered the ranks of constitutional countries, in which the liberty of men is guaranteed by fixed and definite laws; from this time on, she has had always (except in the interval between two revolutions) a written constitution, which could not be touched by the ordinary legislative power. The first constitution was that of 1791; the states general of 1789, transformed by their own will, backed by public opinion, into the Constituent Assembly, drew it up on their own authority. But their work did not stop there. They abolished the whole of the old public law of France and part of the criminal law, or rather, transformed it in accordance with the principles laid down by the political philosophy of the 18th century. The principles which were then proclaimed are still, on most points, the foundation of modern French law. The development resulting from this extraordinary impetus can be divided into two quite distinct phases: the first, from 1789 to the coup d'etat of the 18th Brumaire in the year VIII., was the continuation of the impulse of the Revolution; the second includes the Consulate and the first Empire, and was, as it were, the marriage or fusion of the institutions arising from the Revolution with those of the ancien regime. On the whole, the constitutional law of the Revolution is a remarkably united whole, if we consider only the two consitutions which were effectively applied during'this first phase, The con. that of the 3rd of September 1791, and that of the solutions 5th Fructidor in the year III. It is true that between of the ` them occurred the ultra-democratic constitution of the 24th of June 1793, the first voted by the Convention; t1on. but although this was ratified by the popular vote, to which it had been directly submitted, in accordance with a principle pro-claimed by the Convention and kept in force under the Consulate and the Empire, it was never carried into effect. It was first suspended by the establishment of the revolutionary government strictly so called, and after Thermidor, under the pretext of completing it, the Convention put it aside and made a new one, being taught by experience. As long as it existed it was the sovereign assembly of the Convention itself which really exercised the executive power, governing chiefly by means of its great committees. The constitution of 1791 was without doubt monarchical, in so far as it preserved royalty. The constitution of the year III. was, on the contrary, republican. The horror of monarchy was still so strong at that time that an executive college was created, a Directory of five members, one of whom retired every year; they were elected by a complicated and curious procedure, in which each of the two legislative councils played a distinct part. But this difference, though apparently essential, was not in reality very profound,; this is proved, for example, by the fact that the Directory had distinctly more extensive powers than those conferred on Louis. XVI by the Constituent Assembly. On almost all points of importance the two constitutions were similar. They were both preceded by a statement of principles, a " Declaration of the Rights of Man and of the Citizen." They were both based on two principles which they construed alike: the sovereignty of the people and the separation of powers. Both of them (with the exception of what has been said with regard to the ratification of constitutions after 1793) recognized only representative government. From the principle of the sovereignty of the people they had not deduced universal suffrage; though, short of this, they had extended the suffrage as far as possible. According to the constitution of 1791, in addition to the conditions of age and residence, an elector was bound to pay a direct contribution equivalent to three days' work; the constitution of the year III. recognized the payment of any direct contribution as sufficient; it even conferred on every citizen the right of having himself enrolled, without any other qualification than a payment equivalent to three days' work, and thus to become an elector. Further, neither of the two constitutions admitted of a direct suffrage; the elections were carried out in two stages, and only those who paid at a higher rating could be chosen as electors for the second stage. The executive power, which was in the case of both constitutions clearly separated from the legislative, could not initiate legislation. The Directory had no veto; Louis XVI. had with difficulty obtained a merely suspensive. veto, which was overridden in the event of three legislatures successively voting against it. The right of dissolution was possessed by neither the king nor the Directory. Neither the king's ministers nor those of the Directory could be members of the legislative body, nor could they even be chosen from among its ranks. The ministers of Louis XVI. had, how-ever, thanks to an unfortunate inspiration of the Constituent Assembly of 1791, the.right of entry to, and, to a certain extent, of speaking in the Legislative Assembly; the constitution of the year III. showed greater wisdom in not bringing them in any way into contact with the legislative power. The greatest and most notable difference between the two constitutions was that that of 1791 established a single chamber which was entirely renewed every two years; that of the year III., on the contrary, profiting by the lessons of the past, established two chambers, one-third of the members of which were renewed every year. Moreover, the two chambers, the Council of Five Hundred and the Council of Ancients, were appointed by the same electors, and almost the only difference between their members was that of age. The Revolution entirely abolished the ancien regime, and in the first instance whatever remained of feudalism. The Con-Aboptiop stituent Assembly, in the course of its immense work of tae of settlement, wished to draw distinctions, abolishing ""*t' , absolutely, without indemnity, all rights which had "@~e'"amounted in the beginning to a usurpation and could not be justified, e.g. serfdom and seigniorial courts of justice. On the other hand, it declared subject to redemption such feudal charges as had been the subject of contract or of a concession of lands. But as it was almost impossible to discover the exact origin of various feudal rights, the Assembly had proceeded to do this by means of certain legal assumptions which sometimes admitted of a proof to the contrary. It carefully regulated the conditions and rate of repurchase, and forbade the creation in the future. of any perpetual charge which could not be redeemed: a principle that has remained permanent in French law. This was a rational and equitable solution; but in a period of such violent excitement it could not be maintained. The Legislative Assembly declared the abolishment without indemnity of all feudal rights for which the original deed of concession could not be produced; and to produce this was, of course, in most cases impossible. Finally, the Convention entirely abolished all feudal rights, and commanded that the old deeds should be destroyed; it maintained on the contrary, though subject to redemption, those tenures and charges which were solely connected with landed property and not feudal. With feudalism had been abolished serfdom. Further, the Constituent Assembly suppressed nobility; it even forbade any one to assume and bear the titles, emblems and arms of nobility. Thus was established the equality of citizens before the law. The Assembly also proclaimed the liberty of labour and industry, and suppressed the corporations of artisans and workmen, the' jurandes and maitrises, as Turgot had done. But, in order to maintain this liberty of the individual, it forbade all associations between workers. or employers, fearing that such contracts would again lead to the formation of corporations similar to the old ones. It ever forbade and declared punishable, as being contrary to the declaration of the rights of man and the citizen, combinations or strikes, or an agreement between workmen or employers to refuse to work or to give work except on given conditions. Such, for a long time, was French legislation on this point.. The Constituent Assembly gave to France a new administrative . division, that into departments, districts, cantons and communes; and this division, which was intended to make the Adminisold provincial distinctions disappear, had to serve all tratiro purposes, the department being the unit for all public zai on - services. This settlement was definitive, with the exception of certain modifications in detail, and exists to the present day. But there was a peculiar administrative organism depending on this arrangement. The constitution 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 exercising their functions, but the matter then went before the Legislative 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 suppressed; 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 arrangement, national agents were established in the districts. The constitution of the year III. continued in this course, 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 considerably 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 judicial organization. This was accomplished on a very simple plan, which realized that ideal of the two system. sr degrees of justice which, as we have noticed, was system. ,that of France under the ancien regime. In the lower degrees it created in each canton a justice of the peace (juge de pale), 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 not thought fit to abolish the guarantee of the appeal in cases involving sums above a certain figure. But by a curious arrangement the district tribunals could hear appeals from one another. With regard to penal prosecutions, there was in each department a criminal 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 misdemeanours. The Assembly preserved the commercial courts, or consular jurisdictions, of the ancien regime. There was a court of caseation, 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 juges de paix by the primary assembly of the canton, the district judges by the electoral assembly consisting of the electors of the second degree for the district, the members of the court of cassation by the electors of the departments, who were divided for the purpose into two series, which voted alternately. The Constituent Assembly did, it is true, require professional guarantees, by proof of a more or less extended exercise of the profession of lawyer from all judges except the juges de paix. But the system was really the same as that of the administrative organization. The king only appointed he commissaires du roi attached to the district courts, criminal tribunals and the court of cassation; but the appointment once made could not be revoked by him. These commissaries fulfilled one of the functions of the old ministere public, their duty being to demand the application of laws. 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, either directly or by means of one of its committees, 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 twenty judges. The idea was a happy one, for it gave the courts more importance, and therefore more weight and dignity, But this reform, beneficial as it would be nowadays, was at the time premature, in view of the backward condition of means of communication. The Constituent Assembly suppressed the militia and maintained the standing army, according to the old type, the numbers al which were henceforth to be fixed every year by the Legis-lative Assembly. The army was to be recruited by voluntary enlistment, careful rules for which were drawn up.; the only change was in the system of appointment to ranks' The army. promotion went chiefly by seniority, and in the lower ranks a system of nomination by equals or inferiors was organized. The Assembly proclaimed, however, the principle of compulsory and personal service,' but under a particular form, that of the National Guard, to which all qualified citizens belonged, and in which almost all ranks were conferred by election. Its chief purpose was to maintain order at home; but it could be called upon to furnish detachments for defence against foreign invasion. 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 1891. For purposes of war the Convention, in addition to voluntary, enlistments and the resources furnished by the National Guards, and setting aside the forced levy of eoo,000 men in 1993, decided on the expedient of calling upon the communes to furnish, mew, 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 VI., which established compulsory military service for all, under the form of conscription strictly so called. Frenchmen aged from 20 to 25 (defenseurs 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 four 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. Almost the only taxes preserved were the stamp duty and that on the registration of acts Taxation. (the old controle and centieme denier), and these were completely reorganized; the customs were maintained only at the frontiers for foreign trade. In the establishment of new taxes the Assembly was influenced by two sentiments; the hatred which had been inspired by the former arbitrary taxation, and the influence of the school of the Physiocrats. Consequently it did away with indirect taxation on objects of consumption, and made the principal direct tax the tax on land. Next in importance were the contribution personnelle et mobiliere and the patentes. The essential elements of the former were a sort of capitation-tax equivalent to three days' work, which was the distinctive and definite sign of a qualified citizen, and a tax on personal income, calculated according to the rent paid. The patentes were paid by traders, and were also based on the amount of rent. These taxes, though considerably modified later, are still essentially the basis of the French system of direct taxation. The Constituent Assembly had on principle repudiated the tax on the gross income, much favoured under the ancien regime, which everybody had felt to be arbitrary and oppressive. The system of public contributions under the Convention was arbitrary and revolutionary, but the councils of the Directory, side by side with certain bad laws devised to tide over temporary crises, made some excellent laws on the subject of taxation. They resumed the regulation of , the land tax, improving and partly altering it, and also dealt with the contribution personnelle et mobiliere, the patentes, and the stamp and registration duties. It was at this time, too, that the door and window tax, which still exists, was provisionally established; there was also a partial reappearance of indirect taxation, in particular 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, which they had not had under. the ancien regime, together with political rights. With regard to the R)Iber1/ Catholic Church, the Assembly placed at the disposal of the nation the property of the clergy, which had already, in the course of the 18th 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 electoral assembly of the department (the usual electors), and the cures by the electoral 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 Convention. 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. Buildings formerly consecrated to worship, which had not been alienated, were again placed at the disposal of worshippers for this purpose, but under conditions which were hard for them to accept. The Assemblies of the Revolution, besides the laws which, by abolishing feudalism, altered the character of real property, ,illaw 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 endeavouring to ensure the division of properties. Illegitimate children were considered by these laws as on the same level with legitimate children. The Convention and the councils of the Directory also made excellent laws on the ad-ministration of hypotheques, and worked at the preparation of a Civil Code (see CODE NAPOLEON). In criminal law their work was still more important. In 1991 the Constituent Assembly gave France her first penal code. It was inspired by humanitarian ideas, still admitting capital punishment, though accompanied by no cruelty in the execution; but none of the remaining punishments was for life. Long imprisonment 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, taking English law as model. It introduced the jury, with the double form of jury d'accusation and jury de jugement. Before the judges procedure was always public and oral. The prosecution was left in principle to the parties concerned, plaintiffs or denonciateurs civiques, and the preliminary investigation was handed over to two magistrates; one was the juge de paix, as in English procedure at this period, and the other a magistrate chosen from the district court and called the directeur du jury. The Convention, before separating, passed the Code des delfts et des peines of the 3rd Brumaire in the year IV. This piece of work, which was due to Merlin de Douai, was intended to deal with criminal procedure and penal law; but only the first part could be completed. It was the procedure established by the Constituent Assembly, but further organized and improved. Tke Consulate and the Empire.—The constitutional law of the Consulate and the Empire is to be found in a series of documents called later the Constitutions de l'Empire, the constitution promulgated during the Hundred Days being consequently given the name of Acte additionnel aux Constitutions de l'Empire. These documents consist of (1) the Constitution of the 22nd Frimairc of the year VIII., the work of Sieyes and Bonaparte,the text on which the others were based; (2) the senatus consulte of the 16th Thermidor in the year X., establishing the consulate for life; and (3) the senatus consulte of the 28th Floreal in the year XII., which created the Empire. These constitutional acts, which were all, whether in their full text or in principle, submitted to the 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 was maintained, and even became universal; but, since the system was that of suffrage in many stages, which, moreover, varied very much, the citizens in effect merely nominated the candidates, and it was the Senate, playing the part of grand electeur which Sieyes had dreamed of as his own, which chose from among them the members of the various so-called elected bodies, even those of the political assemblies. According to the constitution of the year VIII., the first consul (to whom had been added two colleagues, the second and third consuls, who did not disappear until the Empire) possessed the executive power in the widest sense of the word, and he alone could initiate legislation. There were three representative assemblies in existence, elected as we have seen; but one of them, the Corps Legislatif, passed laws without discussing them, and without the power of amending the suggestions of the government. The Tribunate, 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; in addition to its role of grand electeur, its chief function was to annul laws and acts submitted to it by the Tribunate as being unconstitutional. This original organization was naturally modified during the course of the Consulate and the Empire; not only did the emperor obtain the right of directly nominating senators, and the princes of the imperial family, and grant dignitaries of the Empire that of entering the Senate by right; but a whole body, the Tribunate, which was the only one which could preserve some independence, disappeared, without resort having been had to a plebiscite; it was modified and weakened by senatus consulte of the year X., and was suppressed in 1807 by a mere senatus consulte. The importance of another body, on the contrary, the conseil d'etat, which had been formed on • the improved type of the ancient conseil du roi, and consisted of members appointed by Napoleon and carefully chosen, 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 legislative 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 deecrets, 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 submitted 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 organization, the most important was that of the 28th Pluvi6se in the year VIII. It established as chief authority for each department a Admielrtrative prefect, and side by side with him a conseil general changes for deliberative purposes; for each arrondissement under (corresponding to the old district) a sub-prefect (sous- ccadoawdste prefet) and a conseil d'arrondissement; and for each Brno*, 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 Criminal law. de prefecture, having administrative functions, and generally acting as a court of the first instance in disputes and litigation arising out of the acts of the administration; for the Constituent Assembly had removed such cases from the jurisdiction of the civil tribunals, and referred them to the administrative bodies themselves. 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 fundamentally 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 appointed 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 were abolished in 'Soo by the Code d'Instruction Criminelle, and the magistrates forming the cour d'assises, which judged crimes with the aid of a jury, were drawn from the courts of appeal and from the civil tribunals. The jury d'accusation was also abolished 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 tribunals 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 ministPre 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 Taxation. 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 The Con- and endowed by the state. It was in principle drawn medal. 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 appointed the bishops, who after-wards 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 18th Germinal in the year X., ratifying the Concordat, reasserted, under the name of articles arganiques 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 in-77re'unt- struction and for the conferring of degrees; it had rersi#y. 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 universities and the teaching congregations. The constitution of the year III. proclaimed the liberty ofinstruction and commanded that public schools, both elementary and secondary, should be established. 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 18th 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, carriedon by its facultes, 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 18o6, The the Code de Commerce of 1807, the Code d'Instruction codes. 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 difficulty (see CooE NAPOLEON). The Code de Commerce was scarcely more than a revised and emended edition of the ordonnances of 1673 and 168r; 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 1670; it was the procedure of the old law, without its cruelty, but secret and written, 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 extenuating 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.) The Restored Monarchy.—The Restoration and the Monarchy of July, though separated by a revolution, form one period in the history of French institutions, a period in which the same regime was continued and developed. This cons" was the constitutional monarchy, with a parliamentary tu moaat(oral rrtry body consisting of two chambers, a system imitated - from England. The same constitution was preserved under these two monarchies—the charter granted by Louis XVIII. in 1814. The revolution of 183o took place in defence of the charter which Charles X. had violated by the ordonnances of July, so that this charter was naturally preserved under the °` July Monarchy." It was merely revised by the Chamber of Deputies, which had been one of the movers of the revolution, and by what remained of the House of Peers. In order to give the constitution the appearance of originating in the will of the people, the preface, which made it appear to be a favour granted by the king, was destroyed. The two chambers acquired the initiative in legislation, which had not been recognized as theirs under the Restoration, but from this time on belonged to them equally with the king. The sittings of the House of Peers were henceforth held in public; but this chamber underwent another and more fundamental transformation. The peers were nominated by the king, with no limit of numbers, and according to the charter of 1814 their appointment could be either for life or hereditary; but, in execution of an ordinance of Louis XVIII., during the Restoration they were always appointed under the latter condition. Under the July Monarchy their tenure of office was for life, and the king had to choose them from among twenty-two classes of notables fixed by law. The -franchise for the election of the Chamber of Deputies had been limited by a system of money qualifications; but while, under the Judicial amazes. Restoration, it had been necessary, in order to be an elector, to pay three hundred francs in direct taxation, this sum was reduced in 1831 to two hundred francs, while in certain cases even a smaller amount sufficed. In order to be elected as a deputy it was necessary, according to the charter of 1814, to pay a thousand francs in direct taxation, and according to that of 183a five hundred francs. From 1817 onwards there was direct suffrage, the electors directly electing the deputies. The idea of those who had framed the charter of 1814 had been to give the chief influence to the great landed proprietors, though the means adopted to this end were not adequate: in 1830 the chief aim had been to give a preponderating influence to the middle and lower middle classes, and this had met with greater success. The House of Peers, under the name of tour des pairs, had also the function of judging attempts and plots against the security of the state, and it had frequently to exercise this function both under the Restoration and the July Monarchy. This was a period of parliamentary government; that is, of government by a cabinet, resting on the responsibility of the ministers to the Chamber of Deputies. The only interruption was that caused by the resistance of Charles X. at the end of his reign, which led to the revolution of July. Parliamentary government was practised regularly and in an enlightened spirit under the Restoration, although the Chamber had not then all the powers which it has since acquired. It is noteworthy that during this period the right of the House of Peers to force a ministry to resign by a hostile vote was not recognized. By the creation of a certain number of new peers, a four-nee de pairs, as it was then called, the majority in this House could be changed when necessary. But the government of the Restoration had to deal with two extreme parties of a very opposite nature: the Ultras, who wished to restore as far as possible the ancien regime, to whom were due the acts of the chambre introuvable of 1816, and later the laws of the ministry of Villele, especially the law of sacrilege and that voting compensation to the dispossessed nobles, known as the milliard des emigres; and on the other hand the Liberals, including the Bonapartists and Republicans, who were attached to the principles of the Revolution. In order to prevent either of these parties from predominating in the chamber, the government made a free use of its power of dissolution. It further employed two means to check the progress of the Liberals; firstly, there were various alterations successively made in the electoral law, and the press laws, frequently restrictive in their effect, which introduced the censorship and a preliminary authorization in the case of periodical publications, and gave the correctional tribunals jurisdiction in cases of press offences. The best electoral law was that of 1817, and the best press laws were those of 1819; but these were not of long duration. Under the July Monarchy parliamentary government, although its machinery was further perfected, was not so brilliant. The majorities in the Chamber of Deputies were often uncertain, so much so, that more than once the right of dissolution was exercised in order to try by new elections to arrive at an undivided and certain majority. King Louis Philippe, though sober-minded, wished to exercise a personal influence on the policy of the cabinet, so that there were then two schools, represented respectively by Thiers and Guizot, one of which held the theory that " the king reigns but does not govern" ; while the other maintained that he might exercise a personal influence, provided that he could rely on a ministry supported by a majority of the Chamber of Deputies. But the weak point in the July Monarchy was above all the question of the franchise. A powerful movement of opinion set in towards demanding an extension, some wishing for universal suffrage, but the majority proposing what was called the adjonction des capacites, that is to say, that to the number of qualified electors should be added those citizens who, by virtue of their professions, capacity or acquirements, were inscribed after them on the general list for juries. But the government obstinately refused all electoral reform, and held to the law of 1831. It also refused parliamentary reform, by which was meant a rule which would have made most public offices incompatible with the position of deputy, the Chamber of Deputies being at that time full of officials. The press, thanks to the Charter, was perfectly, free, without either censorship or preliminary authorization, and press offences there judged by a jury. In another respect also the Restoration and the July Monarchy, were at one, the second continuing the spirit of.. the first, viz: in maintaining in principle the civil, legal and adminis The trative institutions of the Empire. The preface to system the charter of 1814 sanctioned and guaranteed most u/the of the legal rights won by the Revolution; even the EmPtre alienation cf national property .was confirmed. It stet°ea was said, it is true, that the old nobility regained their titles, and that the nobility of the Empire kept those which Napoleon had given them; but these were merely titles and nothing more; there was no privileged • nobility, and the equality of citizens before the law was maintained. Judicial and administrative organization, the system of taxation, military organization, the relations of church andstate„remained the same, and the university also continued to exist. The government did, it is true, negotiate a new Concordat with the. papacy in 1817, but did not dare even to submit it to the chambers.. The most important reform was. that of the law concerning recruiting for the army: The charter of 1814 had promised the abolition of conscription, in the form in which it had been created by the law of the year VI. The law of the roth of March 1818 actually established a new system. The contingent voted by the chambers for annual incorporation into the standing army was divided up among all the cantons; and, in order to furnish it, lots were drawn among all the men of a certain class, that is to say, among the young Frenchmen who arrived at their majority that year. Those who were not chosen by lot were definitely set free from military service. The sending of substitutes, a custom which had. been permitted by Napoleon, was recognized. This was the type of all the laws on recruiting in France, of which there were a good number in succession up to 1867. On other points they vary, in particular as to the duration of service, which was six years, and later eight years, under the Restoration; but the system remained the same. The Restoration produced a code, the Code forestier of 1827, for the regulation of forests (eaux et foals), In 1816 a law had abolished divorce, making marriage indissoluble, as it had been in the old law. But the best laws of this period were those on finance. Now, for the first time, was introduced the practice of drawing up regular budgets, voted before the year to which they applied, and divided since 1819 into the budget of expendithre and budget of receipts. Together with other institutions of the Empire, the Restoration had preserved the exaggerated system of administrative centralization established in the year VIII.; and proposals for its relaxation submitted to the chambers had come to nothing. It was only under the July Monarchy that it was relaxed. The municipal law of the 21st of March 1831 made the municipal councils elective, and extended widely the right of voting in the elections for them; the moires and their assistants continued to be appointed by the. government, but had to be chosen from among the members of the municipal councils. The law of the 22nd of June 1833 made the general councils of the departments also elective, and brought the adjonction des capacites into effect for their election. The powers of these bodies were enlarged in 1838, and they gained the right of electing their president. In 1833 was granted another liberty, that of primary education; but in spite of violent protestations, coming especially from the Catholics, secondary and higher education continued to be a monopoly of the state. Many organic laws were promulgated, one concerning the National Guard, which was reorganized in order to adapt it to the system of, citizen qualifications; one in 1832 011 the recruiting of. the army, fixing the period of service at seven years; and another in 1834 securing the status of officers. A law of the r 1 th of June 1842 established the great railway lines.. In 1832 the Code Penal and Code d'Instruction Criminelle were revised, with the object of lightening penalties; the system of extenuating circumstances, as recognized by a jury, was extended to the judgment of all crimes. There was also a re-vision of Book III. of the Code de Commerce, treating of bankruptcy. Finally,from this period date the laws of the 3rd of May 1841, on expropriation for purposes of public utility, and of the 3oth of June 1838, on the treatment of the insane, which is still in force. Judicial organization remained as it was, but the amount of the sum up to which civil tribunals of the first instance could judge without appeal was raised from moo francs to 150o, and the competency of the juges de paix was widened. The Second Republic and the Second Empire.—From the point of view of constitutional law, the Second Republic and the Second Empire were each in a certain sense a return to the past. The former revived the tradition of the Assemblies of the Revolution; the latter was obviously and avowedly an imitation of the Consulate and the First Empire. The provisional government set up by the revolution of the 24th of February 1848 proclaimed universal suffrage,. and by Repu611- this means was elected a Constituent Assembly, which can con- sat till May 1849, and, after first organizing various siltation forms of another provisional government, passed the of1848. Republican constitution of the 4th of November 1848. This constitution, which was preceded by a preface recalling the Declarations of Rights of the Revolution, gave the legislative power to a single permanent assembly, elected by direct universal suffrage, and entirely renewed every three years. The executive authority, with very extensive powers, was given to a president of the Republic, also elected by the universal and direct suffrage of the French citizens. The constitution was not very clear upon the point of whether it adopted parliamentary government in the strict sense, or whether the president, who was declared responsible, was free to choose his ministers and to retain or dismiss them at his own pleasure. This gave rise to an almost permanent dispute between the president, who claimed to have his own political opinions and to direct the government, and the Assembly, which wished to carry on the traditions of cabinet government and to make the ministers fully responsible to itself. Consequently, in January 1851, a solemn debate was held, which ended in the affirmation of the responsibility of ministers to the Assembly. On the other hand, the president, though very properly given great power by the constitution, was not immediately eligible for re-election on giving up his office, Now Louis Napoleon, who was elected president on, the xoth of December 1848 by a huge majority, wished to be re-elected. Various propositions were submitted to the Assembly in July 1851 with a view to modifying the constitution; but they could not succeed, as the number of votes demanded by the constitution for the convocation of a Constituent Assembly was not reached. More-over, the Legislative Assembly elected in May 1849 was very different from the Constituent Assembly of 1848. The latter was animated by that spirit of harmony and, in the main, of adhesion to the Republic which had followed on the February Revolution. The new assembly, on the contrary, was composed for the most part of representatives of the old parties, and had monarchist aspirations. By the unfortunate law of the 31st of May 185o it even tried by a subterfuge to restrict the universal suffrage guaranteed by the constitution. It suspended the right of holding meetings, but, on the whole, respected the liberty of the press. It was especially impelled to these measures by the growing fear of socialism. The result was the coup d'etat of the 2nd of December 1851. A detail of some constitutional importance is to be noticed in this period. The conseil d'etat, which had remained under the Restoration and the July Monarchy an administrative council and the supreme arbiter in administrative trials, acquired new importance under the Second Republic. The ordinary conseillers d'etat (en service ordinaire) were elected by the Legislative Assembly, and consultation, with the conseil d'etat was often insisted on by the constitution or by law., This was the means of obtaining a certain modifying power as a subs stitute for the second chamber, which had not met with popular approval. During its short existence the Second Republic produced many important laws. It abolished the penalty of death for political crimes, and suppressed negro slavery in thecolonies. The election of conseillers generaux was thrown open to universal suffrage, and the municipal councils were allowed to elect the maires and their colleagues. Thd law of the 15th of March 185o established the liberty of secondary education, but it conferred certain privileges on the Catholic clergy, a clear sign of the spirit of social conservatism which was the leading motive for its enactment. Certain humanitarian laws were passed, applying to the working classes. With the coup d'etat of the 2nd of December 1851 began a new era of constitutional plebiscites and disguised absolutism. The proclamations of Napoleon on the 2nd of December consmacontained a criticism of parliamentary government, Hon of and formulated the wish to restore to France the Jan.14, constitutional institutions of the Consulate and the 1852. Empire, just as she had preserved their civil, administrative and military institutions. Napoleon asked the people for the powers necessary to draw up a constitution on these principles; the plebiscite issued in a vast majority of votes in his favour, and the constitution of the 14th of January 1852 was the result. It bore a strong resemblance to the constitution. of the First Empire after 1807. The executive power was conferred on Louis Napoleon for ten years, with the title of president of the Republic and very extended powers. Two assemblies were created. The conservative Senate, composed of ex officio members (cardinals, marshals of France and admirals) and life members appointed by the head of the state, was charged with the task of seeing that the laws were constitutional, of opposing the promulgation of unconstitutional laws, and of receiving the petitions of citizens; it had also the duty of providing everything not already provided but necessary for the proper working of the constitution. The second assembly was the Corps Legislatif, elected by direct universal suffrage for six years, which passed the laws, the government having the initiative in legislation. This body was not altogether a corps des muets, as in the year VIII., but its powers were very limited; thus the general session assured to it by the constitution was only for three months, and it could only discuss and put to the vote amendments approved by the conseil d'etat; the ministers did not in any way come into contact. with it and could not be members of it, being responsible only to the head of the state, and only the Senate having the right of accusing them before a high court of justice. The conseil d'etat was composed in the same way and had the same authority as it had possessed from the year VIII. to 1814; and it was the members of it who supported projected laws before the Corps Legislatif. To this was added a Draconian press legislation; not only were press offences, many of which were mere expressions of opinion, judged not by a jury but by the correctional tribunals; but further, political papers could not be founded without an authorization, and were subject to a regular administrative discipline; they could be warned, suspended or suppressed without a trial, by a simple act of the administration. The constitution of January 1852 was still Republican in name, though less so than that of the year VIII. The period corresponding with the Consulate was also shorter in the case of Louis Napoleon. The year 1852 had not come to " an end before a senatus consulte, that of the loth of November, ratified by a plebiscite, re-established the imperial rank in favour of Napoleon III.; it also conferred on him certain new powers, especially with reference to the budget and foreign treaties; thus Restore-various cracks, which experience had revealed in the Emnpo~f the original structure of the Empire, were filled up. This period was called that of the empire autoritaire. Further features of it were the free appointment of the maires by the emperor, the oath of fidelity to him imposed on all officials, and the legal organization of official candidatures for the elections. Two measures marked the highest point reached by this system: the lei de surete generale of the 27th of February 1858, which allowed the government to intern in France or. Algeria, or to exile certain French citizens, without a trial. The other was the senatus consults. of the 17th of February 1858, which made the validity of candidatures for the Corps Legislatif subject to a preliminary oath of fidelity on the part of the candidate. But for various causes, which cannot be examined here, a series of measures was soon to be initiated which were gradually to lead back again to political liberty, and definitively The to found what has been called the empire liberal. empire n One by one the different rules and proceedings of parliamentary government as it had existed in France regained their force. The first step was the decree of the 24th of November 186o, which re-established for each ordinary session the address voted by the chambers in response to the speech from the throne. In 1867 this movement took a more decisive form. It led to a new constitution, that of the 21st of May 187o, which was again ratified by popular suffrage. While maintaining the Empire and the imperial dynasty, it organized parliamentary government practically in the form in which it had operated under the July Monarchy, with two legislative chambers, the Senate and the Corps Legislatif, the consent of both of which was necessary for legislation, and which, together with the emperor, had the initiative in this matter. The laws of the i rth of May 1868 and the 6th of June 1868 restored to a certain extent the liberty of the press and of holding meetings, though without abolishing offences of opinion, or again bringing press offences under the jurisdiction of a jury.. Laws of the 22nd and 23rd of July 187o gave the conseils generaux, whose powers had been somewhat widened, the right of electing their presidents, and provided that the moires and their colleagues should be chosen from among the members of the municipal councils. The legislation of the Second Empire led to a considerable number of reforms. Its chief aim was the development of commerce, industry and agriculture, and generally the ments de credit foncier) and that of 1857 on trade-marks, those of 1863 and 1867 on commercial companies, that of 1858 on general stores (magasins generaux) and warrants, that of 1856 on drainage, that of 1865 on the associations syndicates de proprietaires, that of 1866 on the mercantile marine. The law of the 14th of June 1865 introduced into France the institution, borrowed from England, of cheques. But of still greater import- ance for economic development than all these laws were the treaties concluded by the emperor with foreign powers, com- in order to introduce, as far as possible, free exchange mercies of commodities; the chief of these, which was the treaties. model of all the others, was that concluded with Great Britain on the 23rd of January 186o. Moreover, the law of the 25th of May 1864 admitted for the first time the right of strikes and lock-outs among workmen or employers, annulling articles 414 and following of the Code Penal, which had so far made them a penal offence, even when not accompanied by fraudulent practices, threats or violence, tending to hinder the liberty of labour. The superannuation fund (caisse des retraites pour la vieillesse), supported by voluntary payments from those participating in it, which had been created by the law of the 18th of June 185o, was reorganized and perfected, and a law of the i rth of July 1868 established, with the guarantee of the state, two funds for voluntary insurance, one in case of death, the other. against accidents occurring in industrial or agricultural employment. A decree of 1863 established in principle the freedom of bakeries, and another in 1864 that of theatrical management. Criminal law was the subject of important legislation. Two codes were promulgated on special points, the codes of military Reforms justice for the land forces (1857) and for the naval in the forces (1858). But the common law was also largely criminal remodelled. A law of the loth of June 1858, it is true, law. created certain new crimes, with a view to protecting the members of the imperial family, and that of the 17th of July 1356 increased the powers and independence of the juges d'instruction; but, on the other hand, useful improvements were introduced by laws of 1856 and 1865, and notably with regard to precautionary detention and provisional release with or without bail. A law of the loth of May 1863 organized a simple and rapid procedure, copied from that followed in England before the police courts, for summary jurisdiction. A law of 1868 permitted the revision of criminal trials after the death of the condemned person. But the most far-reaching reforms took place in 1854, namely, the abolition of the total loss of civil rights which formerly accompanied condemnation to imprisonment for life, and the law of the 3oth of May on penal servitude (travaux forces) which substituted transportation to the colonies for the system of continental convict prisons. Finally, in 1863, there was a revision of the Code Penal, which, in the process of lightening penalties, made a certain number of crimes into misdemeanours, and in consequence transferred the judgment of them from the assize courts to the correctional tribunals. In civil legislation may be Civi noted the law of the 23rd of March 1855 on hypothecs Htrtr iegis. la-(see CODE NAPOLEON); that of the 22nd of July 1857, which abolished seizure of the person (contrainte par corps) fer civil and commercial debts; and finally, the law of the 14th of July 1866, on literary copyright. The system of taxation was hardly modified at all, except for the establishment of a tax on the income arising from investments (shares and bonds of companies) in 1857, and the tax on carriages (1862). On the 1st of February 1868 was promulgated an important military law, which, however, passed the Corps Legislatif with some difficulty. It asserted the principle of universal compulsory military service, at least, in time of war. It preserved, however, the system of drawing lots to determine the annual contingent to be incorporated into the standing army; the term of service was fixed at five years, and it was still permissible to send a substitute. But able-bodied men who were not included in the annual contingent formed a reserve force called the garde nationale mobile, each department organizing its own section. These gardcs mobiles, though they were not effectively organized or exercised under the Empire, took part in the war of 1870-71. The Third Republic.—The Third Republic had at first a provisional government, unanimously acclaimed by the people of Paris. It was accepted by France, exercised full powers, and sustained by no means ingloriously a desperate struggle against the enemy; a certain number of its decrets-lois are still in force. After the capitulation of Paris, a National Assembly was elected to treat with Germany. It was elected in accordance with the electoral law of 1849, which had been revived with a few modifications, and it met at Bordeaux to the number of 753 members on the 13th of February 1871. It was a sovereign assembly, since France had no longer a constitution, and for this very reason it claimed from the outset constituent powers; the Republican party at the time, however, contested this claim, the majority in the assembly being frankly monarchist, though divided as to the choice of a monarch. But for some time the National Assembly either could not or would not exercise this power, and up to 1875 affairs remained in a provisional state,' legalized and regulated this time by the Assembly. This was an application, though unconscious, of a form of government which M. Grevy had proposed to the Constituent Assembly in 1848. There was a single assembly, with one man elected by it as head of the executive power (the first to be elected was M. Thiers, who received the title of president of the Republic in August 1871), who was responsible to the Assembly and governed with the help of ministers chosen by himself, who were also responsible to it. Thiers fell on the 24th of May 1873. His place was taken by Marshal Mac Mahon, on whom the Assembly later conferred, in November 1873, the position of president of the Republic for seven years, when the refusal of the comte de Chambord to accept the tricolour in place of the white flag of the Bourbons had made any attempt to restore the monarchy impossible. Henceforth the definitive adoption of the Republican form of government became inevitable, and the opinion of the country began to turn in this direction, as was shown by the elections of deputies which took place to fill up the gaps occurring in the Assembly. The Assembly, however, shrank from the inevitable economic and social material prosperity of the country. The Empire, reforms though restricting liberty in political matters, increased under the it in economic matters. Such were the decrees and Second laws of 1852 and 1853 relating to land-banks (etablisse- Empire. Taxation and army. solution, and when a discussion was begun in January 1875 on the projected constitutional laws prepared by the commission des trente, the only proposals made by the latter were for a more complete organization of the powers of one man, Marshal MacMahon. But on the 3oth of January 1875 was adopted, by 353 votes to 352, an amendment by M. Wallon which provided for the election of an indefinite succession of presidents of the Definitive Republic; this amounted to a definitive recognition establish- of the Republic. In this connexion it has often been mentof said that the Republic was established by a majority the of one. This is not an accurate statement, for it was Republla only the case on the first reading of the law; the majority on the second and third readings increased until it became considerable. There was a strong movement in the direction of a reconciliation between the parties; and there had been a rapprochement between the Republicans and the Right Centre. At the end of February were passed and promulgated two constitutional laws, that of the 25th of February 1875, on the organization of the public powers, and that of the 24th of February 1875, on the organization of the senate. In the middle of the year they were supplemented by a third, that of the 16th of July 1875, on the relations between the public powers. Thus was built up the actual constitution of France. It differs fundamentally, both in form and contents, from previous The constitutions. As to its form, instead of a single French methodical text divided into an uninterrupted series of constitu- articles, it consisted of three distinct laws. As to non. matter, it is obviously a work of an essentially practical nature, the result of compromise and reciprocal concessions. It does not lay down any theoretical principles, and its provisions, which were arrived at with difficulty, confine themselves strictly to what is necessary to ensure the proper operation of the governmental machinery. The result is a compromise between Republican principles and the rules of constitutional and parliamentary monarchy. On this account it has been accused, though unjustly, of being too monarchical. Its duration, by far the longest of any French constitution since 1791, is a sign of its value and vitality. It is in fact a product of history, and not of imagination. Its composition is as follows. The legislative power was given to two elective chambers, having equal powers, the vote of both of which is necessary for legislation, and both having the right of initiating and amending laws. The constitution assures them an ordinary session of five months, which opens by right on the second Tuesday in January. One house, the Chamber of Deputies, is elected by direct universal suffrage and is entirely renewed every four years; the other, the Senate, consists of 30o members, divided by the law of the 27th of February 1875 into two categories; 75 of the senators were elected for life and irremovable, and the first of them were elected by the National Assembly, but afterwards it was the Senate itself which held elections to fill up vacancies. The 225 remaining senators were elected by the departments and by certain colonies, among which they were apportioned in proportion to the population; they are elected for nine years, a third of the house being renewed every three years. The electoral college in each department which nominated them included the deputies, the members of the general council of the department and of the councils of the arrondissements, and one delegate elected by each municipal council, whatever the importance of the commune. This was practically a system of election in two and, partly, three degrees, but with this distinguishing feature, that the electors of the second degree had not been chosen purely with a view to this election, but chiefly for the exercise of other functions. The most important elements in this electoral college were the delegates from the municipal councils, and by giving one delegate to each, to Paris just as to the smallest commune in France, the National Assembly intended to counterbalance the power of numbers, which governed the elections for the Chamber of Deputies, and, at the same time, to give a preponderance to the country districts. The 75 irremovable senators were another precaution against the danger from violent waves of public opinion. The executive power was entrusted to a president, elected for seven years (as Marshal MacMahon had been in 1873), by the Chamber and the Senate, combined into a single body under the name of National Assembly. He is always eligible for re-election, and is irresponsible except in case of high treason. His powers are of the widest, including the initiative in legislation jointly with the two chambers, the appointment to all civil and military offices, the disposition, and, if he wish it, the leadership of the armed forces, the right of pardon, the right of negotiating treaties with foreign powers, and, in principle, of ratifying them on his own authority, the consent of the two chambers being required only in certain cases defined by the constitution. The nomination of conseillers d'etat for ordinary service, whom the National Assembly had made elective, as in 1848, and elected itself, was restored to the president of the Republic, together with the right of dismissing them. But these powers he can only exercise through the medium of a ministry, politically and jointly responsible to the 'chambers, and forming a council, over which the president usually presides. The French Republic is essentially a parliamentary republic. The right of dissolving the Chamber of Deputies before the expiration of its term of office belongs to the president, but in order to do so he must have, besides a ministry which will take the responsibility for it, the preliminary sanction of the Senate. The Senate is at the same time a high court of justice, which can judge the president of the Republic and ministers accused of crimes committed by them in the exercise of their functions; in these two cases the prosecution is instituted by the Chamber of Deputies. The Senate can also be called upon to judge any person accused of an attempt upon the safety of the state, who is then seized by a decree of the president of the Republic, drawn up in the council of ministers. Possible revision of the constitution is provided for very simply: it has to be proposed as a law, and for its acceptance a resolution passed by each chamber separately, by an absolute majority, is necessary. The revision is then carried out by the Senate and the Chamber of Deputies to form a National Assembly. There have been two revisions since 1875. The first time, in 1879, it was simply a question of transferring the seat of the government and of the chambers back to Paris from Versailles, where it had been fixed by one of the constitutional laws. The second time, in 1884, more fundamental modifications were required. The most important point was to change the composition and election of the Senate. With a view to this, the new constitutional law of the 14th of August 1884 abolished the constitutional character of a certain number of articles of the law of the 24th of February 1875, thus making it possible to modify them by an ordinary law. This took place in the same year; the 75 senators for life were suppressed for the future by a process of extinction, and their seats divided among the most populous departments. Further, in the electoral college which elects the senators, there was allotted to the municipal councils a number of delegates proportionate to the number of members of the councils, which depends on the importance of the commune. The law of the 14th of August 1884 also modified the constitution in another important respect. The law of the 25th of February 1875 had admitted the possibility not only of a partial, but even of a total revision, which could affect and even change the form of the state. The law of the 14th of August 1884, however, declared that no proposition for a revision could be accepted which aimed at changing the republican form of government. The composition of the Chamber of Deputies was not fixed by the constitution, and consequently admitted more easily of variation. Since 1871 the mode of election has oscillated between the scrutin de lisle for the departments and the scrutin uninominal for the arrondissements. The organic law of the 3oth of November 1875 had established the latter system; in 1885 the scrutin de lisle was established by law, but in 1889 the scrutin d'arrondissement was restored; and in this same year, on account of the ambitions of General Boulanger and the suggestion which was made for a sort of plebiscite in his favour, was passed the law on plural candidatures, which forbids anyone to become a candidate for the Chamber of Deputies in more than one district at a time. 928 The system established by the constitution of 1875 has worked excellently in some of its departments; for instance, the mode of Working electing the president of the Republic. Between 1875 of the and 1906 there were seven elections, sometimes under coast"' tragic or very difficult conditions ; the election has lien. always taken place without delay or obstruction, and the choice has been of the best. The high court of justice, which has twice been called into requisition, in 1889 and in 1899-1900, has acted as an efficient check, in spite of the difficulties confronting such a tribunal when feeling runs high. Parliamentary government in the form set up by the constitution, besides the criticism to which this system is open in all countries where it is established, even in England, met with special difficulties in France. In the first place, the useful but rather secondary role assigned to the president of the Republic has by no means satisfied all those who have occupied this high office. Two presidents have resigned on the ground that their powers were insufficient. Another, even after re-election, had to withdraw in face of the opposition of the two chambers, being no longer able to obtain,a parliamentary ministry. It is difficult, however, to accept the theory of an eminent American political writer, Mr John W. Burgess,' that in order to attain to a position of stable equilibrium, the French Republic ought to adopt the presidential system of the United States. In France this sharp division between the two powers has never been observed except in those periods when the representative assemblies were power-less, under the First and Second Empires. It is true that the apparent multiplicity of parties and their lack of discipline, together with the French procedure of interpellations and the orders of the day by which they are concluded, make the formation • of homogeneous and lasting cabinets difficult; but since the end of the 19th century there has been great progress in this respect. Another difficulty arose in 1896. The Senate, appealing to the letter of the constitution and relying on its elective character, claimed the right of forcing a ministry to resign by its vote, in the same way as the Chamber of Deputies. The Senate was victorious in the struggle, and forced the ministry presided over by M. Leon Bourgeois to resign; but the precedent is not decisive, for in order to gain its ends the Senate had recourse to the means of refusing to sanction the taxes, declining to consider the proposals for the supplies necessary for the Madagascar expedition so long as the ministry which it was attacking was in existence. The weakest point in the French parliamentary organism is perhaps the right of dissolution. It is difficult of application, for the reason that the president must obtain the preliminary consent of the Senate before exercising it; more-over, this valuable right has been discredited by its abuse by Marshal MacMahon in the campaign of the 16th of May 1877, on which occasion he exercised his right of dissolution against a chamber, the moderate but decidedly republican majority in which was re-elected by the country. The legislative reforms carried out under the Third Republic are very numerous. As to public law, it is only possible to Reforms mention here those of a really organic character, under the chief among which are those which safeguard and Third regulate the exercise of the liberties of the individual. Rep th The law of the 30th of June 1881, modified in 1901, established the right of holding meetings. Public meetings, whether for ordinary or electoral purposes, may be held without preliminary authorization; the law of 1881 prescribed a declaration made by a certain number of citizens enjoying full civil and political rights, which is now remitted. The only really restrictive provision is that which does not allow them to be held in the public highway, but only in an enclosed space. But this is made necessary by the customs of France. The law of the 21st of July 188r on the press is one of the most liberal in the world. By it all offences committed by any kind of publication are submitted to a jury; the punishment for the mere expression of obnoxious opinions is abolished, the only punishment being for slander, libel, defamation, inciting to crime, and in certain ' Political Science and Comparative Constitutional Law (Boston, 1896).[LAW AND cases the publication of false news. The law of the ist of July 1901 established in France the right of forming associations. It recognizes the legality of all associations strictly so called, the objects of which are not contrary to law or to public order or morality. On condition of a simple declaration to the administrative authority, it grants them a civil status in a wide sense of the term. Religious congregations, on the contrary, which are not authorized by a law, are forbidden by this law. The This was not a new principle, but the traditional rule religious in France both before and after the Revolution, congreaa• except that under certain governments authorization Lions. by decree had sufficed. As a matter of fact the unauthorized congregations had been tolerated for a long time, although on various occasions, and especially in 1881, their partial dissolution had been proclaimed by decrees. The law of 1901 dissolved them all, and made it an offence to belong to such a congregation. The members of unauthorized congregations, and later, in 1904, even those of the authorized congregations, were disqualified from teaching in any kind of establishment. The liberty of primary education was confirmed and reorganized by the law of the 3oth of October r886, which simply deprived the clergy of the privileges granted them by the law of 1850, though the latter remains in force with regard to the liberty of secondary education. A law passed by the National Assembly (July 12, 1875) established the liberty of higher education. It even went beyond this, for it granted to students in private Fducafioa. facultes who aspired to state degrees the right of being examined before a board composed partly of private and partly of state professors. The law of the 18th of March 1880 abolished this privilege. Another law, that of the 22nd of March 1882, made primary education obligatory, though allowing parents to send their children either to private schools or to those of the state; the law of the 16th of June 1881 established secular (l&lque) education in the case of the latter. The Third Republic also organized secondary education for girls in lycees or special colleges (colleges de file). Finally, a law of the loth of July 1896 dealing with higher education and the faculties of the state reorganized the universities, which form distinct bodies, enjoying a fairly wide autonomy. A law of the t9th of December 1905, abrogating that of the 18th Germinal in the year X., which had sanctioned the Concordat, proclaimed the separa- ¶• than of the church from the state. It is based on the tiers of principle of the secular state (Nat laigrie) which recog- church nizes no form of religion, though respecting the right and state. of every citizen to worship according to his beliefs, and it aimed at organizing associations of citizens, the object of Which was to collect the funds and acquire the property necessary for the maintenance of worship, under the form of associations cultuelles, differing in certain respects from the associations sanctioned by the law of the 1st of July 1901, but having a wider scope. It also handed over to these regularlyformed associations the property of the ecclesiastical establishments formerly in existence; while taking precautions to ensure their proper application, and allowed the associations the free use of the churches and places of worship belonging to the state, the departments or the communes. If no association cultuelle was founded in a parish, the property of the former fabrique should devolve to the commune. But this law was condemned by the papacy, as contrary to the church hierarchy; and almost nowhere were associations cultuelles formed, except by Protestants and Jews, who complied with the law. After many incidents, but no church having been closed, a new law of the 2nd of January 1997 was enacted. It permits the public exercise of any cult, by means of ordinary associations regulated by the law of the 1st of July '19o1, and even of public meetings summoned by individuals. Failing all associations, either cultuelles or others; churches, with their ornaments and furniture, are left to the disposition of the faithful and ministers, for the purpose of exercising the cult; and, on certain conditions, the long use of them can be granted as a free gift to ministers of the cult. Among the organic laws concerning administrative affairs there are two of primary importance; that of the roth of August 1871, on the coraseils geniraux, considerably increased the powers and independence of these elective bodies, Adm1N- which have become important deliberative assemblies, strati a their sessions being held in public. The law of 1871 ctrangea. created a new administrative organ for the departments, the commission ddpartmentale, elected by the council-general of the department from among its own members and associated with the the prefect. The other law is the municipal law of the 5th of April 1884, which effected a widespread decentralization; the moires and their adjoints are elected by the municipal council. The war of 1870—71 necessarily led to a modification of the military organization. The law of the 25th of July 1872 estab-Reo,gany lished the principle of compulsory service for all, first in seam the standing army, the period of service in which was of the fixed at five years, then in the reserve, and finally in army. the territorial army. But theapplicationof thisprineiple was by no means absolute, only holding good in time of war. Each annual class was divided into two parts, by means of drawing lots, and in time of peace one of these parts had only a year of service with the active army. The previous exemptions, based either on the position of supporter of the family (as in the case of the son of a widow or aged father, &c.) or on equivalent services rendered to the state (as in the case of young ecclesiastics or members of the teaching profession), were preserved, but only held good for service in the active army in times of peace. Finally, the system of conditional engagement for a year allowed young men, for the purposes of study or apprenticeship to their profession, only to serve a year with the active army in time of peace. By this means it was sought to combine the advantages of an army of veterans with those of a numerous and truly national army. But the conditional volunteering (volontarial conditionnel) for a year was open to too great a number of people, and so brought the system into discredit. As those who profited by it had to be clothed and maintained at their own expense, and the sum which they had to furnish for this purpose was generally fixed at 1500 francs, it came to be considered. the privilege of those who could pay this sum.' A new law of the 15th of July 1889 lessened the difference between the two terms which it attempted to reconcile. It reduced the term of service in the active army to three years, and the exemptions, which were still preserved, merely reduced the period to a year in times of peace. The same reduction was also granted to those who were really pursuing important scientific, technical or professional studies; the system was so strict on this point that the number of those who profited by those exemptions did not amount to 2000 in a year. This was a compromise between two opposing principles; the democratic principle of equality, being the stronger, was bound to triumph. The law of the 21st of March 1905 reduced the term of service in the active army to two years, but made it equal for all, admitting of no exemption, but only certain facilities as to the age at which it had to be accomplished. In 1883 the judicial personnel was reorganized and reduced in number. With the exception of a few modifications the main lines of "judicial organization remained the same. andte In 1879 the conseil d'etat was also reorganized. The taxation. whole fabric of administrative jurisdiction was carefully organized, and almost entirely separated from the active administration. The system of taxation has remained essentially unaltered; we may notice, however, the laws of 1897, 1898 and 'goo, which abolished or lessened the duties on so called hygienic drinks (wine, beer, cider), and the financial law of Igor, which rearranged and increased the transfer fees, and established a system of progressive taxation in the case of succession dues. The labour laws, which generally partook of the nature both of public and of private law, are a sign of our times. Under the Third Republic they have been numerous, the Labour most notable being: the law of the 21st of March legisla- tion. 1884 on professional syndicates, which introduced the liberty of association in matters of this kind before it became part of the common law (see TRADE UNIONS);the law of the 9th of April r8g8 on the liability for accidents incurred during work, and those which have completed it; that of the 22nd of December 1892 on conciliation and arbitration in the case of collective disputes between employers and workmen; that of the 29th of June 1893 on the hygiene and safeguarding of workers in industrial establishments, and the laws which regulate the work of children and women in factories; finally, that of the 15th of July 1893 on free medical attendance (see LABOUR LEGISLATION). As to criminal law, there have been more than fifty enactments, mostly involving important modifications, due to more scientific ideas of punishment, so that we may say' that it has been almost entirely recast since the establishment crhninal of the Third Republic. The separate system applied in law. cases of preventive detention and imprisonment for short periods; liberation before the expiry of the term of sentence, subject to the condition that no fresh offence shall be committed within a given time; transportation to the colonies of habitual offenders; the remission of the penalty in the case of first offenders, and the lapsing of the penalty when a certain time has gone by without a fresh condemnation; greater facilities for the rehabilitation of condemned persons, which now became simply a matter for the courts, and occurred as a matter of course at the end ofa certain time; such were the chief results of this legislation. Finally, the law of the 8th of December 1897 completely altered the form of the preliminary examination before the juge d'instruction, which had been the weakest point in the French criminal procedure, though it was still held in private; the new law made this examination really a hearing of both sides, and made the appearance of counsel for the defence practically compulsory. As to private law, both civil and commercial, we could enumerate between 1871 and 1906 more than a hundred laws which have modified it, "sometimes profoundly, and have for the most part done very useful work without attracting much attention. They are generally examined and drawn up by commissions of competent men, and pass both chambers almost without discussion. There have, however, been a few which aroused public interest and even deep' feeling. Firstly, there was the law of the 27th of July 1884, and those which completed it; this law re-established divorce, which had been abolished since 1816, but only permitted it for certain definite causes determined by law. On the other hand, the law of the 6th of February 1893 increased the liberty and independence of a woman who was simply judicially separated, in order to encourage separation, as opposed to divorce, when the conditions allowed it. The law of the 25th of March 1896 on the succession of illegitimate children, who were recognized by the parents, treated them not in the same way as legitimate children, but gave them the title of heirs in the succession of their father and mother, together with much greater rights than they had possessed under the Code Civil. The law of the 24th of July 1899, on the protection of children who are ill-treated or morally neglected, also modified" some of the provisions of the law as applied to the family, with a view to greater justice and humanity. Finally, on the occasion of the centenary of the Code Civil (see CODE NAPOLiON), a commission, composed of members of the chambers, magistrates, professors of law, lawyers, political writers, and even novelists and dramatic authors, was given the task of revising the whole structure of the code. See generally Adhemar Esmein, Cours elementaire d'histoire du droit francais (6th ed., 1906); J. Brissand, Cours d'histcire generate du droll francais public et prive (1904) ; Ernest Glasson, Histoire du droll et des institutions en .France (1887—1904) ; Paul Viollet, Histoire des institutions politiques et administratives de la France (3rd ed., 1903) ; Fustel de Coulanges, Histoire des institutions politiques de l'ancienne France; Jacques Flach, Les Origines de l'ancienne France (1875—1889) ; Achille Luchaire, Histoire des institutions monarchiques de la France sous les premiers Capitiens (2nd ed., 19oo); Hippolyte Taine, Les Origines de la France contemporaine (1878—1894) ; Adhemar Esmein, Elements de droll constitutionnel francais et compare (4th ed., 1906) : Leon Duguit et Henry Monnier, Les Constitutions et les principales leis politiques de la France depuis 1789 (1898). U. P. E.)
End of Article: FRENCH LAW AND

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