(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Children's Library | Biodiversity Heritage Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

Full text of "A study of the Parliament of Paris and the other parliaments of France .."

LIBRARY 

OF THE 

UNIVERSITY OF CALIFORNIA. 



GIFT OF 










Class 


















^) 



A STUDY 



OF TH,. 



PARLIAMENT OF PARIS, 



AND THE OTHER 



PARLIAMENTS OF FRANCE. 



A STUDY 



OF THE 



PARLIAMENT OF PARIS, 

AND THE OTHER 

PARLIAMENTS OF FRANCE. 

A THESIS 

PRESENTED TO THE FACULTY OF THE COLLEGE OF LIBERAL ARTS 
OF THE SYRACUSE UNIVERSITY, 

FOR THE ATTAINMENT OF THE DEGREE OF 
DOCTOR OF PHILOSOPHY, 

- BY - 

JANE M. BANCROFT, 'Rakms 

n 

OF 

THE NORTHWESTERN UNIVERSITY, EVANSTON, ILL. 




OF THE 

UNJVERSITY 

OF 

f4\jjp*fa A. GUILDS, PKINTEK, EVANSTON. 
tSS 4 . 



X 






.-; , 

' 



Of THE 

UNIVERSITY 

OF 

.&U.IF4 



Introductory Note 



The subject of the Parliaments of France, so far as I am aware, is 
treated by no one English author. While frequent allusions are made 
to the Parliaments in all histories of France, somewhat diligent search 
has failed to find in any English work an adequate explanation of their 
origin, their organization, and their political history. The collection of 
materials for even so short a thesis, has therefore been attended with 
considerable difficulty. The translations of the authorities quoted in the 
notes, are, in all cases, those of the writer. 

I desire to acknowledge obligation for valuable assistance rendered 
in prosecuting my studies, to Miss Florence Gushing, of Boston ; to Mr. 
John Savary, Assistant Librarian of the Library of Congress; to Mr. 
Frederick Saunders, Superintendent of the Astor Library, and to Dr. W. 
F. Poole, of the Library of Chicago. 

JANE M. BANCROFT. 



Woman's College of the 
Northwestern University, Evanston, III. 
June u, 1884. 



207752 



4 

information and advice concerning matters of state; a council 
which filled the function of both a political and feudal assembly. 1 

A brief re"sum6 of the reasons for the several theories will be 
given. 

I. If it could be proved that France had a judicial system 
extending backward in an unbroken chain, so that the Parlia- 
ments could be connected with the Champs de Mai, under the 
Carlovingian rulers, and the Champs de Mars, under the 
Merovingian faineants, then the right of the people to a voice in 
government would receive historical corroboration, and the 
Parliaments would be its still existing monuments. In the 
troubled state of France preceding the Great Revolution 
industrious researches were made to sustain this theory, and its 
best presentation is found in the famous Encyclopaedia edited by 
Diderot, and d' Alembert. 8 The assemblies of the nation, to 
which historians have v applied the name parlemens ge"neraux 
were not of royal institution, but were^brought in by the Franks. 
Under the first race they were called "Mallum," 8 from the 
Teutonic mallen to talk; under the second race, they war&known 
as Mallum, placiturn generale, consiliurn, or colloquium; under 
the third race, curia regis, judicium Francorum, and subse- 
quently parlement. At first all freemen were admitted to 
these assemblies; as the nation became greater, each canton had 
its own assembly, and only those who held rank or position in 
the state were admitted. These general assemblies formed the 
public council of the kings. Furthermore, the kings of the first 
and second races had their special council or court, and toward 



1 Beugnot, Comte de. Documents in^dits sur 1' Hist, de France. Les 
Oliin, vol. i, preface, p. 29. 

8 Encyclopedic Method ique, Jurisprudence, tome vi, Paris 1786. 

8 Gibert, Recherch, histr, sur les Cours de Justice, tome 30, p. 592. 
Le mot Parleinentum avait la meme signification que celui de mallum, 
qui dans 1'ancienne langue, voulait dire, conference pour parler. 



the close of the second race, the parlemens gen<raux were 
chosen from members of the king's court. The reunion of the 
public and special council was consummated during the first 
three centuries of the third race. The assembly of the king's 
court was never identical with the old assemblies of the nation. 
The latter were not of royal creation, and those who formed part 
of it enjoyed this right, by virtue of being freemen. The king's 
court of council was of his own creation. Its existence and 
powers depended upon his will. Thus, the editors of the 
Encyclopedia regard the Parliament as a transformed institution, 
arising from the general assemblies of the first race, the council 
and general assemblies of the second, and the council of the 
third race, being in each case the institution, which, with the 
king, considered the highest interests of the kingdom and 
pronounced ultimate sentence of justice. 

II. The claims of four several kings of the third race to 
be considered as the founder of Parliament, need to be examined. 

a. J M. de La Roche-Flavin, a celebrated parliamentarian, 
holds that the Parliament of Paris had its origin in the Assembly 
ordered by Pepin-le-Bref. Having resolved to go in person to 
Italy to aid the Pope against the Lombards, and having invited 
the majority of the princes and great lords to accompany him, he 
ordered a council or Parliament, "composed of certain men of 
fame and experience," in his name and by his authority to con- 
sider important matters, and to render sovereign justice in his 
absence. De La Roche-Flavin thinks that this body continued 
an irregular existence, meeting when the king found most 
convenient, and as public matters demanded. 

b. Others accord this honor to Philippe Auguste. His 
father, Louis-le-Gros, influenced by the popular legends of Arthur 

1 Bernard de La Roche-Flavin, Les Parlements de France, treize livres. 
Paris, 1G21. 



6 

and his knights, 1 had created twelve peers, six secular, six 
ecclesiastical. Philippe Auguste formed from these twelve great 
lords what he called the Court of Peers," and their first case was 
the trial of John of England for his failure in duty to his feudal 
suzerain. When the English king refused to heed the summons 
of herald and bailiff unless he could be assured of a safe return, 
the Court of Peers condemned him by default, and all of his 
possessions in France were forfeited to the crown. This exercise 
of authority greatly struck the minds of the time, and increased 
respect was accorded the shrewd lawyer-king who had skillfully 
dictated the sentence to the court; but there are.no other instances 
in which this body of peers in separate judicial existeuce'exercised 
authority. After this one memorable act of policy rather than 
justice, they re-entered the ordinary court of the king, which 
continued to pronounce judgment as formerly. 

c. Under St. Louis the enlargement of the Royal Domain 
greatly extended the administration of justice, and this king 
introduced many valuable judicial reforms. But the forms of 
decrees do not vary from those that had been issued by the three 
preceding kings, and while St. Louis seems to have more 
definitely provided for the judicial functions exercised by his 
court, a comparison of historical proof does not warrant the 
conclusion that he is the creator of this court. 8 

d. Philippe le Bel, by an edict of May 23, 1302, 4 made 
the Parliament sedentary at Paris. From this fact, careless 
historians have ascribed to him the creation of the parliament, 



1 Sir James Stephen, Lect. on French Hist. ; Lect. viii, p. 20G. 

2 Martin, H., Hist, de France, tome iii, p. 582. 

8 Martin, H., Hist, de France, tome iii, p. 294. So good an authority as 
Martin seems to i'avor this theory, "Un nom nouveau designa cette institu- 
tion nouvelle, le norn de parlement, qui jusqu'alors s'etait appliqu6 vague- 
uient a toute espce de conference. 

4 Maurice Block, Dictionnaire de le Politique, 1880, vol. ii, p. 503. 



but this edict merely sanctioned the custom which the Parliament 
for half a century had had of holding its sessions at Paris, 
and extended its powers to some other judicial bodies. 1 

III. The present century has produced a number of valu- 
able works on the Parliament of Paris and the Parliaments of 
France, and a more scientific method of dealing with historical 
questions has given better results. What has been called the 
third theory, i. e., that the Parliament of Paris was an outgrowth 
of the king's council as devoted to judicial functions, has received 
the sanction of the late historians, and as Fayard says "rests upon 
numerous and irrefragible documents." 8 Before stating the 
reasons for the acceptance of the third theory, it will be necessary 
to make a digression and study the judicial system in France 
during the third race to the opening of the 13th century. 

Under feudalism, justice belonged to the lord in his domain. 
The whole of France was divided into fiefs cr chartered 
judicial municipalities. In every fief the lord exercised 
hereditary jurisdiction. According to the language of 
those times the justice of each Seigneur was either Haute, 
Moyenne or Basse, according to the extent of the damages and 
the nature of the penalties his court was competent to award. 
Every enfranchised municipality also possessed a local tribunal, 
which administered justice Haute, Moyenne or Basse according 
to the terms of its charter, or its hereditary privileges. The m 
Seigneur himself presided in the Seignorial Court, and his vassals 
attended him as judicial assessors. They were called peers, or 
the equals of those who were to come before them for judgment, 
for the principle that no man could be tried save by his peers was 
as ancient and as fully recognized in France as in England. 8 

1 Martin H., Hist, cle France, tome iv, p. 446. 

2 Apercu historique sur le Parlement cle Paris, E. Fayard, 1876, vol. i, 
p. 60. 

3 Picot, Georges, Histoire ties Stats- Genera ux, vol. i, p. 15 ; Paris, 1872. 



8 

"The feudal court, the union of vassals around the suzerain, was 
the sole vestige that remained of the great principle of delibera- 
tion in common^ during the course of the tenth century." The 
king himself was the Seigneur of the greatest fief of the realm, the 
Royal Domain. The feudal court of the Royal Domain was the 
exact counterpart of the other feudal or seignorial courts, except 
that it was presided over, not by the king in person, but the Sen- 
eschal, his representative. 

' But there were .questions that did not fall within the range 
of feudal law and jurisprudence, therefore, in the provinces 
directly possessed by the descendants of Hugh Capet, 
Prevots. judicial powers were intrusted to Pr6v6ts, who at the 
same time had care of the administration of the domain. This 
officer became the judge in all non-feudal cases and was charged 
with punishing slight misdemeanors. He was obliged to hold 
assizes in all the principal towns. The Prevots were chosen 
from the simple bourgeois and were under the immediate 
authority of the Seneschal. As the Royal Domain enlarged, the 
courts of the Prevots and the Seneschal became inadequate for 
the added duties. 

Philip Augustus reverted to one of the Carlovingian institu- 
tions. Charlemagne had sent officers called " missi dominici " 
through every province of the empire to redress all 
Dominici. grievances and annually to report to him the wants 
and conditions of all classes of his people. 1 So Philip Augustus 
appointed migratory commissioners to perform circuits through- 
out his domain, to listen to all complaints and to transmit them 
to the king. They were called Baillis, their offices soon became 
permanent, and their circuits well denned judicial districts and 
were called Bailliages. The Baillis seem to have been inter- 



1 Martin, H., tome iv, p 298. Capitularies, 810. "The missi dominici 
were sent by the Emperor with very extended powers, to accomplish, to 
inspect and even lo revise the work of justice." 



mediate between the Prevots and Seneschal, for as soon as the 
custom of appeals (unknown to feudalism) was established, they 
exercised the right of judging appeals from the Prevots. As 
agents of the royal power, to them belonged the duty of causing 
the nobles to execute the ordinances of the king. 

The seigneurs, "hauts justiciars" in their own domains, were 
jealous of these judicial encroachments, and were not long in 
imitating the example of the king, by appointing in their fiefs 
Seneschals, Pre*vots and Baillis. The resemblance was imperfect 
as the seignorial Baillis could take cognisance of no question 
beyond his lord's fief, while the King's Baillis could, at need, 
indict the Seigneur himself. Still, it produced this fortunate 
result, that as one great fief after another was absorbed into the 
Royal Domain, the legal machinery adjusted itself to the change 
of masters without a jar. Thus the absorption of fiefs, by which 
France became one kingdom, was greatly facilitated. At the 
summit of this irregular hierarchy was the king's council, charged 
at all times with the political affairs of the kingdom, and now 
recognized as the seat of the final judicial authority, the point 
whence all appeals ended. 

When the Crusaders returned from Constantinople, they 

brought with them great reverence for Roman law. Many of the 

traditions of the Code of Theodosious had lingered in 

Roman law 

the judicial life of France, especially in the southern 
provinces, 1 but when the Pandects of Justinian were found 
at Arnalfi in 1137 a genuine revival of the study of Roman law 
took place in the Universities of France and Italy. Bologna 
became celebrated for her jurisconsults, and the University 
of Paris numbered thousands of students. 2 Compilations of the 
customs and local laws of the different provinces had previously 

1 Vicornte de Bastard d' Estang, Les Parlemenls de France, vol. 1, p.43. 
8 The Pope understood the danger to the Church and in 1274 forbade 
the study of Roman law at Paris. Martin, H. } touie iv, p. 291. 



10 

been made, and these were now annotated in the spirit of the 
Digests of Justinian. A certain design is apparent in the tone 
of these comments, i. e., the elevation of kingly power, and 
the abasement of the great nobles. 1 St. Louis ordered a general 
code to be arranged, and the body of feudal law, illustrated by 
observations and explanations from the Roman law, was put forth 
in the form known as the Etablissements of St. Louis. 8 This 
code was intended for the royal courts in the personal domain of 
the king, but it gradually penetrated into the seignorial courts. 
Up to this time the seigneur presiding over his assizes had 
judged the cases that came before him with prompt and trenchant 
decision. When issues were involved that were not clearly 
defined by customary usage, recourse was had to various ordeals. 
8 The defendant must plunge his arm into boiling water, and 
withdraw it uninjured; or must walk over a pan of coals, and yet 
not be burned; or with his arms tied be thrown into water, and 
then sink, which was not so difficult; in this way the suitor was 
referred to the judgment of God, and the judge saved all pur- 
plexing anxiety. 

Were the suitor yet unsatisfied, a singular custom of feudal 

law gave him a final resource. He could declare the judgment 

judicial false, on condition of fighting a duel with each one of 

the judges who had declared against him. 4 St. Louis, 

though a deeply religious, was not a superstitious man, and he 

clearly perceived that this judicial combat was but to abandon 

the weak and old to the strong and vigorous. In 1260, he 

issued an ordinance forbidding the duel in all the jurisdictions of 

1 Les Coustumes du Beauvoisis, de Beaumanoir. 

Le Conseil a inon ami, par Fontaine. "Le livre de Fontaine, Le 
Conseil a mon ami, est le r^sultat de 1' ancienne jurisprudence frangaise 
etde la loi romaine," Montesquieu, Esprit des Lois, liv. xxviii, chap. 38. 

2 Fayard, E. Apergu historique sur le Parlement de Paris, vol. i, p. 61. 
Lacombe, Pet. Hist, du Peuple Frangais, p. 41. 

4 Picot, Hist, des Etats-Gen. Organisations judiciaries, vol. i, p. 106. 



11 

his own domain, replacing it, in cases of appeal by a new exam- 
ination of the matter before the king's court. 1 This ordinance 
had been issued only for his own courts, but, it will be remem- 
bered, the Baillis had circuits throughout entire France, and in 
this way were brought into relations with the Seigneurs. When 
complaints were made of the failure of any lord to do his duty, 
the Baillis, instead of permitting the judicial combat, insisted 
that the king's ordinance of 1260 was the rule of judgment, and 
required the accused to bring proofs and present arguments. 
This was virtually receiving appeals. If the Baillis were 
unable to decide the matter, they brought it to the king's 
knowledge in the presence of his council. The courts 
of the seigneurs soon became mere tribunals for unimportant 
cases. 

The lawyers, who had been studying the Pandects, were 
finding other effective ways to increase royal authority. The 
Roman law whole feudal law rested upon the possession of land, 

favorable to 

kingship, as the feudal maxim proves "sans terre sans seig- 
neur;" the Roman law rested upon the relation of subject to 
king, and king to God; the abstract right of the sovereign was 
independent of all ownership. 8 

In the study of this law and the promulgation of its theories, 
kingly authority found justification for all the power it chose to 
exert. The legists observing that every imperial command had 
been binding throughout the Roman Empire, maintained that 
every sentence pronounced by the King's Courts should be 
binding throughout France. This was not only to make the 
laws of the king universal, but to make him a legislator; a 
power which, in the hands of St. Louis, might not be disastrous 

1 Martin H. Hist, cle France, tome iv, p. 301. 

8 Fayard, Apergu Hist, sur le Parl cle Paris, vol. i, p. 87. 
Sir Henry Maine, Early Hist, of Institutions, chapter i. 
Freeman, E. A., Comparative Politics, Lect. iv, The King. 



12 

to a people, but which in the long results of many reigns was to 
conduct to the absolutism of Louis XIV. 

Again, as feudal ties weakened, it became a legal maxim that 
a suitor might " declare his domicile," that is he could decide for 
himself whether he would be judged as a vassal of the lord in 
whose domains he lived, or as a vassal of the great suzerain, the 
king. In the latter case, he was tried in the King's Courts. 
There were many reasons why a vassal should prefer the impar- 
tial judgment of the latter tribunal, to the partisan decision of 
the seigneur whose interests were at stake. It is a cause of 
wonder that the imperious barons acquiesced so quietly in these 
usurpations, but the code of St. Louis was issued near the close 
of his reign, when the nobles were absorbed in preparations for 
the great Crusade. Then, although proud and haughty, these 
men were ignorant and little disposed to see the drift of subtle 
questions of law, while St. Louis had the art of interesting them 
in the acceptance of these reforms, by assuring to them all fines 
for misdemeanors committed on their lands; he harmon- 
ized their prejudices while reforming institutions. Then, too, 
the barons viewed St. Louis with love, almost with veneration; 
they regarded him as wise and good, and they saw that his 
measures were of a generous and national character. Although 
of so intense a religious nature, he vigorously repelled papal 
encroachment, and laid the foundation of the liberties of the 
Gallican Church by the Pragmatic Sanction. 1 Yet this very 
measure was issued by him as a law resting on his kingly 
authority, not on the people's sanction. 

At his accession in 1226, there had already existed for some 

time a division or section of the Royal Council known as the 

chambre Chambre aux Plaids, which considered all appeals and 

Plaids. judicial questions. Under St. Louis, this section 



Martin, H., Hist, de France, tome iv, p. 310. 



13 

became sedentary, and formed the Parliament. Twenty-four 
members of his royal council were assigned to it, and to aid 
them he appointed twenty legists, or men versed in the study of 
the law. These humble clerks had previously found entrance 
there. 1 "So long as disputed questions of law confined them- 
selves to the rights in fishing and hunting, or the payment of 
feudal dues, the active and warlike barons found no trouble in 
legislation, but now law was becoming a science. The once 
satisfactory ordeals were superseded by more delicate tests. The 
exact truth must be found as to the language and acts alleged, 
admitted, or denied; the points of law involved, determined; the 
balance of conflicting testimony weighed. 3 This was an un- 
welcome change to the untutored nobles. Small stools 
were brought in and placed below the stately benches of the 
judges. Here sat the legists, base-born roturiers in mean black 
gowns, but trained at Bologna or Paris in the study of the Roman 
law, and curiously gifted with the art of untangling the web of 
legal difficulties, and deducing the just conclusion. The lords, 
knights, and prelates at first listened patiently to long-drawn 
discussions about rules of law they could not comprehend, and 
Latin quotations they did not understand; but the hunting-fray 
and the tournament were calling them away, and the weary 
hours became intolerable. Especially thankless did the task 
appear, when at the close of every session it was found that the 
humble clerks in the black gowns and caps, while affecting to 
suggest the decisions of the court, had really dictated the answers 
of the illiterate barons. From this moment the great vassals of 

1 Beugnot, Comte de. Essai sur r organ judic. p. 3. On ne pent 
determiner avec precision a quelle epoque commenga cette entree des 
Itfgistes; mais il est certain que plusieursdes jugessont "qualifies clericos,, 
dans un arret rendu en 1222. 

* Desmaze, C. Le Parlement de Paris, avec une Notice sur les autres 
Parl'ements de France, Paris, 1859. Chap, i, p. 9. 

8 Martin, Hist, de France, tome iv, p. 810. 



u 

the crown began to abandon judicial functions to the men of law, 
but as peers they always remained members of Parliament, and 
appeared there when suits concerning their equals were involved, 
or in grave cases when their opinion was necessary. For all 
ordinary cases, the conseiller clercs, as they were called, were left 
to themselves. They exchanged the low "marche-pieds" for the 
vacant benches, and soon obtained titles recognizing the real 
importance of their office. lu They constituted a formidable 
judicial aristocracy opposite the feudal and sacerdotal aristocracies, 
and more out of ambition than gratitude they confounded law 
with the throne, and employed the royal scepter to break the 
swords of the noblemen and the crosier of the prelates." 2 
Philippe le Bel thought of appropriating the organization of 
Parliament to the reforms he purposed to accomplish. By an 
ordinance of May 23, 1302, he ordained "for the convenience of his 
subjects and the expedition of affairs, there should be held every 
year two sittings of the Parliament of Paris." We have now 
before us an outline of the judicial institutions extending to 
the time when historical truth becomes easy to verify, and the 
question of the origin of the Parliament of Paris is again 
reached. 

It cannot be doubted that the tradition of old Roman law 
and the force of local customs lingered on through all changes, 8 
but it is not true that these customs and laws were 

Reasons in 

theThinf administered unchanged. The mallums of the first 
race were not a stable institution. They were too 
much affected by the disorders of the times and the continual 
changes of boundries. Under the second race Charlemagne 
gave more complete forms to these assemblies, by combining 

1 Fayarcl, Apergu Hist, sur le Parlement de Paris, vol. i. 
* Guizot Hist, of Civ. in France, vol. iii, p. 278. 

8 Guizot, Hist, of Civ. in France, Lecture xi. Michelet, Orgines du 
Droit Frangais. Bastard d' Estang, Les Parl de France, vol. i, p. 44. 



15 

under one authority, territories previously ruled by many princes. 
If these essemblies were the proto-type of any great institution 
it naturally was of the States-General as Boulle'e well says: 1 "One 
cannot prevent himself from thinking that the States-General 
was inspired by the still recent recollections of the political 
gatherings of Clovis and Charlemagne." When we consider 
how the feudal system renewed all France; how it changed the 
relation of man with man; how it affected the manners and ideas 
of the people, no less than its laws and government, how can we 
think that the Parliament of Paris should alone remain standing 
in the midst of such an overthrow? 2 Institutions exist in society 
which belong to all times, and without which a people, however 
little civilized, could not endure for a day. Such are judicial 
institutions. The same forms do not always exist; one which 
has lost its power is replaced by another filled with youth and 
strength, but society can not do without justice. It is not 
surprising that historians have considered the successors of 
different institutions as simple transformations of the same 
institutions. Voltaire says: 3 " To represent a nation one must 
be nominated by it, and removed at its pleasure," but the 
magistrates of the Parliaments received their places from 
the king, and held them at his will. Furthermore,- to prove 
their long descent, the Parliaments should possess some 
of the attributes belonging to the assemblies of the old 
dynasties; but they were only called upon to deliberate, con- 

1 Boullee, Hist, des Etats G6ne"raux et autres Assemblies Representa- 
tives cle France, depuis 1302 jusqu'en 1629. 

2 Beugnot, Comte de, Documents Im'dits sur 1' Hist, de Franc 1839. 
Les Glim, vol. i, preface, p. 23. The last fifty years have been remarkably 
fruitful in investigations and descoveries, shedding light upon the history 
of France. The student of history has no more precious store-house of 
new and valuable material than the magnificent " Collection de Documents 
Incdits sur 1' Histoire de France" still in course of publication by the 
Ministry of Public Instruction. 

8 Essai sur les rnoeurs et 1'esprit des nations. 



16 

cerning peace and war, or money grants. The whole spirit of 
their institution confined them to the administration of justice 
and the registration of edicts. Not until after the meeting of the 
Estates at Blois in 1576 do we find them asserting themselves to be 
the delegates of the States-General, and as such called to discuss 
great state interests, and this pretension rests upon a statement 
casually introduced. 1 The* members , of the Parliament them- 
selves were divided upon this question as numerous references 
prove. 2 The burden of proof seems to favor the theory that 
has become generally adopted by the jurists and historians of 
the 19th century that the Parliament of Paris is not the repre- 
sentation of the old national assemblies or mallums, not a special 
creation of any one king, but the outgrowth of the king's 
council. This charged at all times with the political affairs of 
the kingdom, by the extension of royal power and the increase of 
royal justice, was inevitably led to separate a section of the 
council and to devolve upon it the administration of justice. 
This section by the natural process of growth became the 
Parliament of Paris whose functions were legally recognized by 
the ordinance of Philippe le Bel. 



1 Boullee's Hist, cles Etats Gdnmmx, p. 50. " II faut que tons edits 
soient verifies et comme control^ us cours de Parl." 

2 Fayard, Speech of Chancellor Oisie, vol. i, p. 1. 
BoullCe Etats Gem'raux, vol. i, p. 5. 

Guizot, Hist, de France, vol. v, p. 216. 



17 



Composition of the Parliament of Paris. 



To describe the organization of the Parliament of Paris, is to 
explain that of all others as they were modeled upon it. The 
Parliament was divided originally into three chambers; the 
Chambre des Requetes which tried all cases instituted directly 
before the Parliament; the Chambre des Enquetes, which had 
preliminary consideration of cases of appeal, and the Grand, 
Chambre, (identical with the Chambre aux Plaids), where 
appeals were finally heard and decided. Afterward was added 
the criminal chamber, or La Tournelle. 

The Chambre des Requetes, or Chamber of Petitions, 

existed from very early times, 1 and was organized to hear and 

answer petitions. Finally it considered most suits of 

Chambre des 

Jeqr.etes. original jurisdiction brought before the court. 
During the last two centuries, it was especially occu- 
pied with " letters of committimus," 2 which drew causes 
from all parts of France. The jury system had now entirely 
disappeared, but the number of judges in this Chamber partly 
atoned for the lack of the more popular element. Law 
suits were heard partly on oral, partly on written testimony. 
Decisions were not final, but could be appealed, either to the 
Chamber of Inquiry, or the Great Chamber. 

The Chambre des EnquOtes, or Chamber of Inquiry, heard 

1 An edict of Nov. 1291, clearly refers to it. 
8 Sir J. Stephens, Lect: on Hist, of France, 212. 
3 



18 

appeals from the Baillis, Pre"vots, and other inferior tribunals. It 
chunbredcs to ^ niore especial cognizance of cases which were 

Enquetes. (J ec id e d on written proof. The result of their de- 
liberations was reported to the Great Chamber, where the decision 
was pronounced, sealed, and placed upon the registers. There 
were five Chambers of Inquiry in the Parliament of Paris, 
three in the Parliament of Toulouse, and two in the other parlia- 
ments. Their successive creation was brought about less by the 
multitude of law cases, than the necessity of procuring money, 
and hence the sale of new offices. * 

The highest branch of the Parliament was the Great 

Chamber. Apart from the professional members of the court, 

the peers of France and the princesses of the blood had 

chambre. geatg in ^ j 3O ^ y< ^ member of the Parliament 

obtained admittance to the Great Chamber when he became the 
oldest member of the body to which he had been assigned on 
his entrance. All the plentitude of parliamentary authority 
centered in the Great Chamber. The judgments reached by the 
other sections were brought here for ratification. Matters of 
State as well as the highest legal questions were here discussed. 
The exceptional position of the Great Chamber of the Parlia- 
ment of Paris at the capital of the kingdom, and its priority in age 
led it to arrogate to itself many cases which never occupied the 
provincial Parliaments. 2 At its dissolution in 1789, it was com- 
posed of forty-two active members; viz., the Premier President, 
four senior Presidents-a-mortier, so styled from their caps, and 
thirty-seven counselors. The three Chambers were the great 
sections into which the Parliament of Paris was first divided. 
As its jurisdiction increased other subdivisions took place. 



1 Bastard d' Estang, Les Parl de France, vol. i, p. 204. 

a Merilhou, M. F.^Les Parl. de France. Leur caractire politique 
depuis Philippe le Bel, jusqu'en, 1789. Paris, 1863, p. 18. 



19 

In 1380, during the reign of Charles VI, the usage was 
introduced of submitting certain civil and criminal matters of 
LaTourndie. slight importance to the judgment of a chosen 
number of counselors. An edict of Francis I, 1515, formed 
these into a Chamber with enlarged jurisdiction, and later it 
acquired the exclusive 'right of considering all criminal cases, l 
except the trials of nobles or great public officers. The mem- 
bers of the Tournelle varied from twenty to thirty and and were 
furnished in rotation from the other Chambers in order, as it was 
humanely stated, "that the habit of condemning men and 
sentencing them to death should not alter the natural clemency 
of the judges and render them inhuman." Some would derive 
the name from this custom, 1 others 8 would obtain it from the 
tower in which the criminal Chamber at Paris held its sittings. 

The Grand Jours or Great Days were courts or commissions 

of inquiry held at irregular intervals and for short periods of 

time by the special order of the kingr. A certain 

I-es Grand * 

number of parliamentary counselors were deputed to 
take charge of these at the great cities within a certain juris- 
diction. They had authority to summon all magistrates, to hear 
complaints, to pursue the guilty, and if need be to pronounce 
sentences of death. The decrees of the Grand Jours were ex- 
ecuted directly, without appeal to the Parliaments. 8 

In the early days of Parliament in the interval from one 
Parliament to another, judgments were rendered by commission- 
La chambre ers appointed by the king. A letter of Charles 

tk-s 

vacations. VII, of 1454, enjoins upon the Parliament a sufficient 
number of sessions, notwithstanding the vacations, to examine 

1 Desmaze, C., Le Pad. de Paris, vol. i. 

2 Bastard, vol. i, p. 345. 
8 Bastard, vol. i, p. 369. 

Stephens, Lect. viii, p, 215. 



20 

the law suits that had accumulated. By degrees the Vacation 
Chamber assumed the form it retained, and annually on the ninth 
day of September it was opened by the Premier President, who 
presided at its first session. 1 

The edict of May 1576, granting certain legal privileges to 
Huguenots, gave rise to Chambers that, with the exception of 
chambrede tne Parliament of Paris, were composed half of 

Protestants, half of Catholics. This Parliament was 
not so generous in its acknowledgment of " the religion," as but 
one Protestant belonged to the section. These Chambers were 
suppressed by Louis XIV in Jan. 1669. 2 

The Marble Table decided all matters concerning rivers and 
forests, fishing and hunting. The name, the same in all the 
Table de Parliaments, perpetuates the memory of the great 

marble table formed from 'a single slab in the Palais 
de Justice at Paris. 

The summary of the diverse jurisdictions of the Parliament 
would be incomplete were not the magistrates mentioned who 
Minister* formed the Ministere Publique in the old sovereign 
Pubhque. cour ts. These law officers of the crown considered 
collectively were called the Parquet. They represented the 
king, then the very core of authority, and their duty was the 
enforcement of the penal law arid the protection of the rights of 
the crown, or society at large. At the head of the Parquet was 
the Procureur General, who had the superior direction of justice 
throughout all France. His functions were numerous. To him 
belonged all cases involving the rights of the king, care of the 
Royal Domain, titles of honor, punishment of oppression, and 
pursuit of criminals. He also had the oversight of prisons and of 
charitable and municipal organizations. Through him the king 

1 Desmaze, vol. i. 

8 Bastard, vol. i, p. 288. 



Of TH * ^r 

UNIVERSITY 

df 
AWS&8&S 21 

r T7~~ 

communicated treatises, law projects and financial demands to 
the Parliament, and through him the Parliament signified to the 
king its willingness or unwillingness to act. When edicts were 
registered the Procureur General gave his conclusion in writing; 
if a registration was denied, then the First Advocate General 
spoke in the king's presence to demand registration or order a 
Bed of Justice, for the curious distinction was made that u the 
Advocate of the king shall present all resolutions publicly 
proposed by speech, and all conclusions in writing shall be signed 
by the Procureur." 1 The " Gens du Roi " properly so called 
were the four superior officers, the Procureur, the First, Second 
and Third Advocate General, but the assistant officers of inferior 
rank were often classed with the " Gens du Roi." Any officer 
in his quality as " Gens du Roi " was privileged to speak with 
head covered and without interruption as he represented the 
king. 

The Chancellor held the first position in the kingdom until 
the Revolution, and in the Parliament he had a voice and a seat 
The cirm after the princes of the blood. Although strictly not 

belonging to the Parliament, he was considered a 
member and his influence was great. 

The head of the Parliament was the Premier President, and 
with him were associated nine Presidents-;l-mortier, who were 
Th-Presi- considered as representing him, and in his absence 

presided over the assembled Chambers. 

1 Bastard, vol. i, p. 596. 



22 



The Members. 



The edict of 1302 divided the Parliament into three Cham- 
bers; an edict of 1374 fixed the number of its members at seventy- 
Division into ei ht counselors, forty-four ecclesiastics, thirty-four 
laymen and three presidents. 1 This number varied 



tionment of -, rr 

duties. greatly at different epochs. 

The sale of offices caused the needs of the treasury to be 
consulted more frequently than the necessities of justice. At 
the suppression of the Parliaments in 1789, the Parliament of 
Paris was divided into seven Chambers, a Premier President, 
nine Presidents-u-mortier, fifteen Presidents du Chambre, one 
hundred and fifty Counselors, a Procureur General, three 
Avocats-Generaux and nine substitutes. Furthermore, there 
were two Greffiers-en-chef, or Registrars, twenty-five Commis- 
Greffiers or Assistant Registrars, and four Secretaries. Such 
was the great array of legal force which a single resolution on 
that eventful night in November, 1789, swept to the four winds. 
An ordinance of Philippe le Long required the members of 
Parliament to reside at Paris. All the great church dignitaries were 
continued at once excluded, save the Archbishop of Paris, and 

Parish" ' 1 the Abbot of St. Denis, and all of the great lords who 
could not afford to maintain an establishment at Paris separate 
from their ancestral castles. Thus the lawyers were left in 
undisputed possession of the supreme court of justice. 

The king at first assigned persons to sit for a session or at 

1 Dictionnaire de la Politique, Maurice Block, Paris, 1880, vol. ii, p. 503. 



23 

his pleasure, but by 1319 the practice obtained of appointing 
f counselors for life. As late as 1467, however, there is 

Tenure of 

an edict of Louis XI, forbidding the removal of 
judges, save for just cause. This makes it probable that there 
was not entire freedom from arbitrary removal until after that 
date. 

A further concession was made to the power of the Parlia- 
ment by permitting it to name a number of candidates to any 
s-iic of vacancy, from which the king made his choice. When 

such places became a matter of sale, the king's power 
of appointment was exercised without restraint. The offices of 
Parliament were a constant temptation to a needy monarch. The 
members enjoyed high consideration and opportunities for profit 
were not wanting. The sale of judicial dignities can readily be 
traced to the days of Philippe le Bel, but it was reserved 
for the Father ,of his Country, Louis XII, to systematize the 
practice and to recognize the profits as an annual source of 
revenue. Francis I created a new Chamber with two Presidents 
and eighteen Counselors. In the reign of Louis XIV, the office 
of President-a-mortier was sold for 500,000 francs, that of Coun- 
selor for 150,000 francs, that of Procureur General for 700,000 
francs. 

The reign of the best of the Bourbons saw a further change. 
M. Paulet, 1 secretary of the Parliament, advised a tax on official 
offices made i nc o m ^ s - Sully, who was casting about for ways to 
' ary ' raise money, eagerly adopted the suggestion. This 
tax, the Paulette, was an assessment of one-sixtieth on the con- 
dition that the office should be made hereditary. Its owner 
might sell it during his life time, or at his death it could be dis- 
posed of with his houses and lands. Ordinarily one of the sons 

1 Kitchin's Hist, of France, vol. ii, p. 459. 
Mcrilhou, M. F., Les Parlde France, p. 307. 



24 

took the place and thus were founded those judicial families 
which formed a new order of nobility. This was an important 
constitutional step, for it made the magisterial nobility a class. 
The influence of this change remains to be seen. So acute an 
observer as Montesquieu 1 defends the Paulette. It is certain 
that a spirit of independence and of traditionary pride grew up in 
these bodies, and tended to make them fearless administrators of 
the powers entrusted to them. Count Bastard d'Estang, who 
belonged to a parliamentary family that had had representatives 
in the Parliament of Toulouse since the fourteenth cantury says : 8 
" The organization of the ancient French society, which, by the 
incessant work of the individual elevated each generation beyond 
the one that had preceded it, demanded the sacrifice of an entire 
life time. Living in the certainty of the elevation of his 
posterity the father prepared slowly and surely for the future of 
his son, and France gained in stability." That there were evils 
is certain. Judicial positions must often have been filled by 
incompetent men, whose tastes and aptitudes were as unfitted to 
the severe and monotonous labors of a counselor as were those 
of Montaigue, 3 while they may not have had so promptly as did 
he the good sense to resign their privileges and emoluments. 
La Bruyere complains that youths hardly out of school passed 
from the birch to the ermine. Furthermore, the Parliamentary 
counselors who had paid for their offices, or inherited them, wore 
apt to consider themselves on the bench as the guardians of their 
own interests and not as trustees of the rights of society. The 
most serious evil came with the hereditary tenure of the office. 

1 Montesquieu, Esprit des Lois, liv. 5, chap, xix: " Cette venalite est 
bonne daus les 6tats rnonarchiques, parce qu 'elle fait faire, comuie im 
metier de famille, ce qu 'on ne voudrait pas entreprendre pour la vertu 
qu 'elle distioe chacun a son devoir, et rend les ordres de 1' ctat plus 
perinanents. " 

2 Bastard, vol. i, p. 138. 

3 Demogeot, Hist, de la Lit. Fran., p. 283. 



25 

Previously the members of Parliament had been the natural 
leaders of the Third Estate, hence forward, they were but 
another nobility whose sympathies were with the king that 
created and maintained them, not with the people and their 
constitutional privileges. 

There must have been, however, strong influences toward 
justice and uprightness to produce so illustrious a body of men 
i ives of the as tne French magistracy. What country can point 
Magistrates. ^ Q & j u( jg e more incorruptible and loyal than 1 Achille 
de Harlay, more courageous and unflinching than Matthieu Mole", 2 
more learned, wise and influential than d' Aguesseau? 8 Beugnot 
says: 4 "The memorable services rendered the country, by the 
Parliament of Paris, and the hereditary virtues of its members 
were the sources of the authority which it exercised our minds as 
well as over the affairs of State." Bastard declares: 5 "If any- 
thing can inspire veneration for our ancient magistracy, it is 
intimate acquaintance with their daily life." Certain it is, that 
in the early days of Parliament, the faults of the members were 



1 Achille de Harlay, First President of Parliament of Paris in 1582. 
lie was noted for his learning and integrity, and firmly opposed the de- 
signs of the League Nouvelle Biographie Gonerale. 

2 Mol'-, Matthieu, First President during the war of the Fronde; 
conspicuous for his intrepidity in quelling the Insurrection. Memoires de 
Cardinal de Retz. Portraits. 

3 D' Aguesseau, "a man who did honor to France by his virtues, his 
profound and varied learning, and his enlightened views on jurispru- 
dence." La Harpe, Cours de Lit., tome xiv, chap. 1. 

4 Beugnot, Document inedits, Les Olirn, preface p. iii. 

5 Bastard's Pad. de France, vol. i, p. 199. 

Sir Henry Maine, Ancient Law, p. 79. "The French jurists formed 
the best instructed and nearly the most powerful class in the nation. In 
all the qualities of the advocate, the judge and legislator, they far excelled 
their compeers throughout Europe." 

J)e Tocqueville. The Old Regime and the Revolution, chap. 11. 

"No doubt the Parliaments thought more of themselves than of the 
public good, but when it was necessary to defend I heir independence, and 
ilicir honor, they were always intrepid, and gave heart to those who 
surrounded them." 

Also, cf. Merilhou, Les Pad. de France, p. 243, and Baird's Rise of 
the Huguenots in France, vol. i, p. 334. 



26 

faithfully corrected. An ordinance of 1318 forbids the counselors 
to eat or drink with those who had suits before them, and further 
enjoins upon them to attend the sessions and to leave their seats 
but once in the morning. It then adds, "It is a great disgrace 
that while the court is in session, its members should be frolicing 
and walking about the halls of the Palace." We may fear, 
however, that the ordinance was not always effective, for the 
witty President ^de Harlay, descendent of the great de Harlay, 
once caustically remarked that " if the gentlemen of the court 
who talked would make no more noise than those who slept, it 
would be a great favor to those who listened " Louis XIV. him- 
self did not disdain to inform Chancellor Le Tellier that he 
had seen the judges on their way to the Palace with cravats, 
gray clothes, and canes in their hands, and they must be admon- 
ished that such a costume was unbecoming a magistrate. 

This was indeed in contrast to the usual magnificence affect- 
ed by the members. The richness of the costumes worn often 
Costumes excited the ridicule of philosophers and satirists. 1 At 

Magistrates, the morning sessions from All Saints Day to the 
Annunciation of the Virgin, the presidents sat in an ermine robe 
and cap; the remainder of the year they were arrayed in a scarlet 
robe. The counselors and advocates wore red robes with large 
sleeves adorned with velvet. The clerks of the counselors wore 
violet robes. In the afternoon meetings all were arrayed in 
black gowns. 

In the seignorial courts no fees were demanded, but when 
lords and bishops were succeeded by legists, fixed compensation 
Remuneration became needful. The oldest document concerning 

Magistrates, the wages of the magistrates is an account of 1301, 
preserved in the archives of Florence, which says that the seig- 
neur presiding over the Parliament shall receive ten smm por 

1 Bastard vol. i, p. 166. 



27 

day, while the court is in session. In 1400 the First President had 
one thousand livres a year; l in the reign of Louis XIV, twelve 
thousand livers. At each date the salary of a President-a-mortier 
was one-half these respective sums. Gifts were naturally given 
by the grateful or anxious suitor, which at length became an 
established usage, and were known by the suggestive name of 
" epices," or "sweetmeats." Finally, they became fixed in pro- 
portion to the labor involved, and in the eyes of justice and 
legislation were entirely legitimate fees, as the stated salaries 
were small and often poorly paid. Society recompensed the 
magistrates by consideration, and kings by honors and privileges; 
at the opening of the great movement which closed their exist- 
ence, they were in full possession of all the privileges and 
exemptions of the nobility. 

Nearly all the Parliaments re-opened November 12th. The 
day was announced at Toulouse by loud peals from the tower 
Oieniny of c l c k? which rang only on this occasion and at the ob- 
sequies of one of its members. The day was observed 
at Paris by elaborate ceremonies. 

The counselors began their duties at early hours. At 
Toulouse, the Palace was opened at five o'clock, but finally at 
Hours of Toulouse and Paris the opening hour became six 
opening. o'clock. Mondays, Thursdays and Fridays the Great 
Chamber met and continued in session until 10 a. m. The order of 
business was unvarying. From 6 a. m. until 7 a. m. reports were 
heard; at 7 a. m. the arguments of cases began, and with a short in- 
termission for breakfast, was continued until 10 a. m.; then reports 
were made, consultations were given, and other miscellaneous busi- 
ness transacted. Tuesdays and Saturdays, afternoon sessions were 
held. Wednesdays and Saturdays were reserved for important 
matters connected with State policy and registrations, when the 

1 About $1,400 of our money, and far more in purchasing power. 



88 

Great Chamber sat with closed doors. In the eighteenth century 
these early hours had not changed, and the notorious case of the 
Diamond Necklace called together one hundred and eighty-seven 
members, for nine months at the early morning hour, listening to 
testimony and arguments to vindicate a queen. 

Great interest always attaches to local surroundings, and the 
pluoes where the great ceremonies of the ancient magistracy took 
Paiiisde place deserve description. In several provinces the 
justice. kings had given to the Parliament one of their palaces. 
These assumed and retained the name "Palais de Justice." Two 
of these palaces are of great antiquity and abound in historical 
reminiscence. The Palais de Justice of Toulouse had been 
inhabited by the ancient kings and counts of Toulouse, and 
traditions said that Roman magistrates had pronounced decisions 
on this site. 1 The Palais de Justice of Paris is an old kingly 
residence on a little island formed by the Seine, in the heart of 
old Paris. St. Louis gave it for the use of the Parliament, and 
Philippe-le-Bel greatly enlarged it, so it was reputed in his 
day one of the most beautiful works of architecture * in the 
world. The general assemblies of all the Chambers was held in 
the hall of St. Louis. No single hall in the world unless it be 
the great oaken hall at Westminister, has witnessed such varied 
and tragic scenes. On more than one occasion the Parliament 
in this place maintained the rights and nationality of France 
against the intrigues and disloyalty of great nobles. 8 Here in 
1589 President Le Maitre declared "that no treaty shall be made 
for the transfer of the State and crown of France to foreign 
princes." Here the little king Louis XIV. was taken when five 
years old to assure the Parliament of his good will, and here a 



1 Bastard, Parl. de France, vol. i, p. 184. 

2 Antiquites de Paris, p. 135. 

3 Guizot, Hist, de France, vol. v, p. 52. 



89 

dozen years later he treated it with a contumely that was never 
forgotten. Here during the war of the Fronde a price was set 
on Mazarin's head, and his fine library of four thousand volumes 
was offered for sale to pay the reward. 1 Here President de 
Mesmes administered a well merited rebuke to the Prince of 
Conti, who had introduced an envoy from Spain to treat against 
the king of France. u What! is it possible that a prince of the 
blood should propose to give a seat upon the fleurs-de-lis to the 
most cruel enemy of the fleurs-de-lis?" What whirligig of time 
could present a greater contrast than this same hall when the 
stately Presidents and the gorgeously-robed advocates were 
succeeded by the Sans-Culottes of the Revolutionary Tribunal. 
The great hall was re-christened La Salle d' Egalite, and a court 
of judges was formed, which to the grave and learned counselors 
of other days would have seemed the veriest rabble. The 
populace of Paris flowed in and out while Marie Antoniette was 
sentenced to death Tor the crime of being a queen, 8 and they 
looked on in astonished silence as the twenty-two Girondists who 
were to die on the morrow, marched forth singing the Marseil- 
laise. * From here Camille Desmoulins, Mme. Roland, and 
fit) ally Robespierre himself, the Terror incarnate, went forth in 
turn to the same fatal doom. 4 " The hall has been sadly changed. 
The visitor who gazes at reputable appearing advocates in gowns 
and caps, sharp-featured notaries, uneasy clients and wearied 
judges, sees little to bring back the Parliament of Paris or the 
Revolutionary Tribunal. The voice of Dan ton has ceased to 
vibrate, the eloquence of Harlay no longer delights the ear. The 
prose of the nineteenth century has replaced the pathos of the 
eighteenth, the pride and dignity of the seventeenth." 

1 Guizot, Hist, de France, vol. v, p. 859. 

8 Thiers' Hist, of French Revolution, vol. iii, p. 11)0. 

3 Martin H., Hist, de France, vol. vi, p. 612. 

4 Am. Law Rev., Parl. in France, vol. xii, p. 262. 



30 

1 Jean de Montluc, a Counselor under St. Louis, had for his 
own use made a record of the most ancient edicts and most 
The Re isters ^ m P or tant decisions. In 1257 he was appointed 
or oiim. "greffier-civil," or Registrar to the court. The oldest 
"greffes," or registers, are called the " Olim," because the third 
volume begins with the words "Olim Homines de Bayona." 
From the great utility of these registers in giving access to 
ancient law, the thought arose that nothing had the force of law 
unless contained in them. Gradually it became a custom, then 
an indispensable formality, to inscribe all edicts in the books of 
Parliament. Philippe le Bel, who had a keen sense of financial 
value, sold these volumes to "good and worthy people," and 
many a monarch after him thought a favor well recompensed 
by the gift of an important "greffe." Not until the time 
of Colbert were these records collected at the Palais de Justice. 
The sagacious minister knew well their importance and did what 
he could to repurchase the volumes, which formed many a 
valuable heirloom. Some that had been retained at the Palais de 
Justice had been burned in the fire of 1618, and at the present 
time the collection is quite incomplete. 



The Parliaments. 



The edict of Philippe le Bel, of 1302, had ordained that 
" for the convenience of his subjects, and the expedition of law 
cases there should be held each year, two sessions of the Parlia- 



1 Bastard's Hist, ties Par!., vol. i, p. 326. 
Voltaire, Parl. tie Paris, ed. 1760, p. 56. 
Desinaze, C., Le Parl. de Paris, vol. 1. 



31 

ment of Paris, two Exchequers of Rouen, two Grand Jours 
at Troves, and a session of the Parliament at Toulouse." 1 

The date of organization, and the founder of each Parliament, 
so far as accurately known, are given in the following list: a 
Paris, 1302 Philippe le Bel, 



Toulouse, -j - Before Charles VII the history not well known, 

Grenoble, 1453 Charles VII. 

Bordeaux, 1462 Louis XI. 

Dijon, 1476 Charles VII. 

Rouen, 1499 Louis XII. 

Aix, 1501 - Louis XII. 

Pau, 1519 Francis I. 

Rennes, 1553 Francis II. 

Metz, 1633 Louis XIII. 

Besangon, 1674 Louis XIV. 

Douai, 1686 - Louis XIV. 

Nancy, 1774 Louis XV. 

The organization of the Parliament of Paris, its system of 
administering justice and its judicial rights and privileges were 
the model after which the others were formed. They differed 
from it only in those variations which local and peculiar causes 
required. 

Although Parliaments were instituted by kings, they consid- 
ered themselves the protectors of the rights of the province 
Parliament as of provinces within the bounds of their authority. 

Guardian of 

theProTincc. The whole of the eighteenth century was marked by 
struggles to maintain their independence. Furthermore, no prov- 
ince was was considered as finally annexed to France until it had 
been placed under the jurisdiction of one of these sovereign courts. 
After several changes in custom and opinion, the position was 
at length taken, that each Parliament was the sovereign court 

1 " Propter coinmoduni subditorum nostrorum et expeditionem causa 
rum, proponiinus ordinare quod duo Parlanienta Parisiis, duo Scat-aria 
Rotomagi, dies Trecenses bis tenebuntur in anno, et quod Parlanientum 
Tolosae tenebitur sicut solebat teneri temporibus retroactis." 

8 Bastard, vol. ii, p. 103. 

Desmaze, vol. i, table, p. 1. 



32 

AH Pariia- within its own precinct. No appeal could be made 
Sovereign, even to the Parliament of Paris, and decisions made 
by any Parliament were to be executed in all parts of the 
kingdom. 

Gradually the doctrine arose that the Parliaments, taken col- 
lectively, formed one great judicial institution, all of whose mem- 
p ,. bers had equal privileges and inter-community of 

as classes. rights> i The p ar li amen t of Paris was the first Class, 
and all together constituted a single body, which represented the 
kingdom of France. If this pretension had been generally 
admitted, the form of government would have been transferred 
from an hereditary king to an assembly of hereditary magistrates. 



The Legislative and Political Rights. 



Having studied the Parliaments as judicial organizatiuns, 
there remains the explanation of the legislative and political 
power, with which time, custom and the tacit consent of both 
nation and monarch had invested them. There are a number of 
obvious reasons why this body of magistrates should at length 
find themselves clothed with an authority to which the judicial 
history of no other country can furnish a parallel. 

To a certain extent legislative power had been conferred 
upon it. Whenever a roval law was defective in any detail, the 
Parliament could issue an arrest or decision supplying 



cnsKtive 

" cr " this dofrct 2 The arrot was provisional only until (he 

1 Voltaire, Parl. de Paris, chap. Ixvi. 

8 Mtfrilhou, M. F., Les Parl. de France, p. 452. 



33 

king himself should remedy the fault; still, the right of making 
such amendments was a legislative privilege of high value, and 
under more favorable circumstances might have served as the 
entering wedge to secure for the Parliament of Paris the broader 
privileges of its namesake across the Channel. 

We have tried to prove that the Parliament of Paris was a 
section of the king's council, set aside to consider judicial ques- 
Heirs of tions. As the clerks and lawyers gradually replaced 

King's 

Council. the barons and prelates, they tenaciously held to all 
the privileges of those who preceded them, one of the most 
valuable of which was the consideration of questions of state. 

We have seen how the Parliament gradually laid claim to 
bring the representative of the States-General, 1 and whatrecogni- 
iiepresenting tion was given this pretension by the assembly at 
General. Tours. As such, during the long intervals which 
separated the sessions of the States-general, it claimed the 
character of guardian of the rights vested in those assemblies. 

We have also seen that registration came to be considered 
as an indispensable ceremony, giving validity to laws, until the 
Registration principle was admitted without question that no.Par- 



. liameiit was bound to execute any ordinance until it 
had first been communicated to it, and entered upon its records. 
When the ancient kings desired to make important modifications 
in the general legislation of the kingdom, they had been wont to 
ask the Parliament to examine the project and report their obser- 
vations upon it. The first time that these observations took the 
form of " remonstrances," was in the address sent by the Parlia- 
ment to Louis XI, touching the Pragmatic Sanction. 8 This 
right of observation and remonstrance was one of the most 
essential portions of the political power of Parliament. If a 

1 MC-rilhou, M. F., Les Parl. cle France, p. 454. 

8 Voltaire, Le Parlement de Paris, chap. 11. "Remontrances toucliant 
les Privileges de 1' E glise gallicane. 
5 



34 

remonstrance was unheeded the next step was to request the 
king 1 to withdraw the ordinance. If this was refused, Parliament 
formally declined to register it among the records. This refusal 
was only overcome by "lettres de jussion," or a compulsory de- 
mand. If still registration was withheld a Bed of Justice 1 was 
called. Then the king appeared in all his majesty, and from the 
summit of his throne of justice, commanded that the edict should 
be inscribed in the records. When the court was thus obliged 
to submit, the decree of registration was preceded by a preamble, 
stating that the decree was registered " by the king's express 
command," and this protest was entered upon the records. If 
the right of resistance did not actually prevail it was asserted, 
and every new assertion was supposed to add to its strength. 

The constant opposition of the Parliaments of Paris to the 
encroachments of the Court of Rome, was the greatest political 
Registration service it ever rendered. By refusing registration, 

of 

Pope's Bull. an( j by remonstrating, Parliament succeeded in es- 
tablishing a right to intervene in ecclesiastical affairs, and won 
for itself the name of the bulwark of the liberties of the Galli- 
can Church. 2 Before the statute of Praernunire was passed in 
England, forbidding appeals from the king's court to the Court 
of Rome, 2 an advocate of the Parliament of Paris, Pierre do 
Cunieres, had in 1329 proposed this remedy against the usurpa- 
tions of the Church. 

1 besmaze G, vol. i, p. 119. " Lit de Justice," signifies the throne 
upon which the king was seated. It was formed of five cushions, one 
serving as a seat, another as a back, two as arm supports, and one as a 
foot-stool. 

Bastard, Les Parl. de Fr., voi. i, p. 19. 

It has been said that u Lits de Justice" were so named, because then 
justice slept; i. e., the king's person united both legislative and judicial 
power. However, this designation also canie from the arrangement of 
the throne. 

2 Voltaire, Parl. de Paris, 1700, rhnp. 10. 

8 Stubbs, Constitutional Hist, of England, vol. ii, p. 410. "The first 
statute of Praeniunire was an ordinance of 1353." 



35 

The Parliament also established a right to a voice in 
diplomatic questions. All treaties with foreign powers, before 
Registration becoming effective, required registration, and so were 

of 

Treaties subject to the observations, remonstrances and refusals 
of the court. However, this right figures on few occasions which 
are historically important, and these few clearly prove the real 
impotence of the proud tribunal, when met by the positive 
wishes of a strong monarch. When Francis I. desired to be 
freed from the humiliating engagement of the Treaty of Madrid, 
he called a meeting of the Parliament of Paris, at which were 
present deputations from the six other existing Parliaments. He 
gravely laid before them the provisions of the treaty, which a 
few days before he had sworn by his royal oath to fulfill. He 
asked their consideration of it, and their opinion as to registra- 
tion. They as gravely replied that " neither the treaty, nor the 
royal oath were binding; the former not having been the act of 
the king; the latter having been exacted from him when in 
bondage; that therefore he should neither give up Burgundy, 
nor return into Spain." * One simple-minded counselor, Bishop 
Poncher, whodid not understand this little comedy, was so im- 
prudent as to give it as his opinion, that Francis should go back 
to Spain. He thereby brought upon himself, a prison afid death. * 
The peculiar institution of the Ministere Publique and its 
connection with the Parliament, enabled the latter to prefer 
. pretensions to political power, which were sometimes 

Pxjbiique successful. The Procureur general, the chief of the 
Parquet, had so important and so diverse functions, that his 
influence was felt in every branch of administration, and as one 
of the most powerful members of the Parliament, the latter often 
identified itself with his exercise of power. * 

1 Kitchin's Hist, de France, vol. ii, page 201). 

2 Tin* account most favorable to Francis I, concerning the treaty of 
Madrid is found in Duruy, Hist, de France, vol. ii. 

* Vicointe de Bastard d' Estang. Les Parl. de France, vol. i, p. 297. 



Political History of the Parliaments. 



When the Parliament of Paris was consolidated by Philippe 
le Bel, he had no thought of making it a judge in great affairs of 
State. The trial of the Knights Templars in 1309, which 
assuredly would have come before it in later times was held by 
the commissioners of Pope Cleme,nt V. The first time that the 
Parliament uttered a formal remonstrance was during the reign 
of Louis XI, concerning the famous Pragmatic Sanction of 
Bourges. 1 During the reign of his son, Charles VIII, great 
weight was evidently attached to the attitude of Parliament on 
political questions, for the Duke of Orleans, afterward Louis XII, 
desiring to obtain the regency, and the government of the young 
king laid his wishes before the assembled counselors and asked 
them to declare in his favor. The First President responded: 
" Parliament renders justice for the people; finances, wars, and 
the care of kings are not within its province." 8 Not always was 
this body governed by such modest and discreet sentiments. 

The reign of Louis XII was not marked by the slightest 
difference between the monarch and his high tribunal. Two 

O 

noteworthy ordinances held in esteemed repute, are inseparably 
associated with his name. The first enacted that no Baillis or. 
Prevot should be permitted to act as judge, unless he was able 
to read and had studied law. Voltaire wittily says: " The high 
officials, all of whom were nobles, preserved their dignity and 



1 Voltaire, Le Parlement de Paris, 17G9, p. ir.5. 
* Quoted by Voltaire in chap. 12. 



37 

ignorance, and lettered lieutenants of lesser birth judged in their 
names." 1 

The second edict of 1499, goes far to explain the title grate- 
fully given him, the Father of his Country. " Qu'on suive 
toujours la loi malgre les ordres contraires a la loi, que 1'impor- 
tunite pourrait arracher du monarque," 

During the reign of Francis I, the Parliament of Paris 
became an important factor in political events. 2 Its first variance 
Francis i, with the king arose over the Concordat. 8 Francis I, 

and 

Parliament. w ho had need of Leo X, abolished the Pragmatic 
Sanction, which had so far secured to the Church in France, 
greater liberties than were enjoyed in any country in Europe. 
He substituted for it the Concordat, by which he gave the pope 
certain portions of the Church revenue, and appropriated to him- 
self the right to appoint to benefices; in other words, the king 
presented the pope with the wealth of the Church, and the pope 
handed over to the king its independance. "Each gave to the 
other, what belonged to neither." 4 The struggle over the 
registration of the Concordat was hard and long. The king 
indignantly insisted on registration, and at a Bed of Justice 
protested that no Parliament should make him a Doge of Venice. 
After twelve years of strife the infamous Du Prat removed 
ecclesiastical matters from the cognizance of Parliament, and 
handed them over to the king's council. 5 The other acts of this 
reign are not so creditable. It broke the treatv of Madrid, 
attainted the king's enemy and kinsman, Charles of Bourbon, 

T Voltaire, Le Parl de Paris, chap. 15. 

8 M^rilhou, Les Parl. de France, et leur carac^re politique 'depuis 
Philippe le Bel, jusqu'en, 1789. p p. 135, 224. 

8 The text of the Concordat is given in full in the Recueil gen des ane. 
lois. xii, 75-97. 

4 Bastard d' Estang, vol. ii, p. 9. 

Baird, The Rise of the Huguenots. Vol. i, p. 37. 

5 Kitchin, vol. ii, p. 182. 



sr 

and sanctioned the persecutions of the Huguenots. The reigns 
of Henry II, Charles IX, and Henry III, were marked by a 
constant succession of conflicts between the king and the Parlia- 
ment, with a monotonous sameness of result. 1 These two powers 
agreed on only one matter, and this was hatred of the Huguenots. 
The horrors of St. Bartholomew drew forth from this high judicial 
body an approving edict, ordering a yearly procession of thanks- 
giving to celebrate the great victory of the faith. Fortunately 
the change in public sentiment spared France this disgrace. 
Henry IV, knew well how to manage this company of magis- 
trates, and manage them he did, firmly and sensibly. When 
Henry iv, they refused to register the Edict of Nantes, he 

and 

Parliament. summoned to the Louvre deputies from all the 
Chambers. 8 "What I have done," he said, "is for the good of 
peace. I speak to you not in royal robe, or with sword and cape, 
but as a father of his family conversing freely with his childron. 
I ask you to register the edict I have granted the Protestants. 
God has chosen to give me this kingdom, which is mine by birth 
and conquest. You, gentlemen of Parliament, would not be in 
your seats but for me. If obedience was due to my predecessors, 
it is much more due to me." * When a father addresses his 
children in such terms, he is generally obeyed. The edict was 
speedily registered. With Richelieu and the minority of 
Louis XIII, came again stormy times. In 1615 the Parliament 
without the royal order, dared to summon princes, dukes, peers 
Richelieu and high officials to deliberate upon the needs of the 

and 

Parliament. state, and the relief of the people. "We," it said, 
" hold the place in council of the princes and barons, who, from 



1 Baird, The Rise of the Huiruenols. Vol. i, p. 237. 

" Guizot, Hist, de France, vol. v, p. 112. 

M^rilhou, M. F., Les Paul, de France, p. 303. "Cette manifestation 
d' une autorit nouvelle clut faire unojjerfonde impression sur les magis- 
trats." 



39 

time immemorial were near the person of the king." 1 This 
assumption Richelieu constantly fought against. He would not 
allow the pretension of magistrates to meddle in affairs of State. 
There was constant altercation between the king and Richelieu on 
the one side, and Parliament on the other, whether about points 
of jurisdiction or the registration of edicts respecting finances. 
On one of these occasions 8 the entire Parliament was ordered to 
the Louvre, and there with bare heads and on bended knees was 
compelled to supplicate the king's forgiveness. This humiliating 
experience was not sufficient to restrain their assertions of right 
and authority and the struggles continued for ten years longer, 
when in 1641 the king issued an edict prohibiting the Parliament 
from any interference in affairs of State and administration, the 
preamble of which is as formal a declaration of absolute power as 
any ever promulgated by Louis XIV. The Cardinal had at last 
gained the victory. The attempts of Parliament at independence 
during the wars of the Fronde, only demonstrated how futile was 
its authority, and how completely was it the tool of the upper- 
most faction. Guizot gays: 8 " The pretensions of the magistrates 
were often foundation leas; the restless and meddlesome character 
of their assemblies did harm to their remonstrances; but for a 
long while they maintained in the teeth of more and more 
absolute kingly power, the country's rights in the government, 
and they had perceived the dangers of that sovereign monarchy 
which certainly sometime raises States to the highest pinnacle of 
their glory, but only to let them sink before long to a condition 
of the most grievous abasement." Louis XIV never forgot the 
part that Parliament played during the stormy scenes of the 
Louis xiv, Fronde, in the early years of his boyhood. He had that 

and 

Parliament, instinctive apprehension of the existence of latent 

1 Guizot, Mist, de France, vol. ii, p. 195. 

2 Voltaire, Hist, du Parl. de Paris, vol. v, chap. 49, May 12, 1631. 
8 Guizot, Hist, de France, vol. v, p. 220. 



40 

power that led him to give an effectual check to the aspirations 
of this assembly at the very outset of his kindly career. 

In the year 1615 the Parliament had refused to register cer- 
tain financial edicts. The king (a boy not yet eighteen years of 
age) presented himself before the assembly in hunting attire, 
booted and spurred and, as is commonly added, with riding- whip 
in his hand. He haughtily commanded the Parliament to address 
no more remonstrances to him, but to confine themselves to the 
strict discharge of their duties. In 1 j?3 he issued an ordinance 
declaring that all royal edicts should be registered within eight 
days from their date by the Parliament of Paris, and within six 
weeks by the other Parliaments of France. 1 We hear no more of 
the political role of Parliament during this long reign. In the 
period of struggle between Bousset and Louis XIV on one side, 
and Rome and Innocent XI on the other, the Parliaments VUM! 
emulously in the support of the king's policy. Louis, satisfied 
with the apparent submission of the supreme court, placed his last 
will and testament in their custody, where it was deposited in a 
small room built expressly for its safe keeping. He seems to 
have argued that a body so submissive during his life-time would 
continue to be so after his death. But how quickly they took 
their revenge for the contumely of long silence. While his 
body was still lying in state at Versailles, the Parliament assem- 
bled without having been convoked, 8 and measures were at om;n 
taken to break the will of the dead king. A few words from 
Orleans to the Parliament sufficed. The Duke received from the 
Parliament the regency during the king's minority, and the Par- 
liament received from this imprudent depository of royal authori- 
ty the political power of which it had been deprived for sixty 

1 Sir J. Stephens, Lect. on Hist, of France, p. 225. 
8 Guizot, Hist, tie France, vol. vi, p. 54. 

Mi'inoires do Saint-Simon, Derniers mom nts de Louis XIV. llachette 
edition. 



41 
The Missis years. The part which the Parliament took in resist- 

sippi Com- 
pany, ing the chimerical projects of the Scotchman Law 

reflect great credit upon it. The opposition was probably due 
more to the repugnance which this body ever showed to novel 
ideas, than to its comprehension of the pernicious results of 
Law's system. It had forbidden the introduction of printing 
under Louis XT, it had condemned the philosophy of Descartes 
in 1624, it had opposed the establishment of the French 
Academy by Richelieu, *and from similar motives it now remon- 
strated against the financial innovations of Law. 

The two great questions with which the Parliaments are 
identified during the 18th century, are the controversies concern- 
ing the papal bull " Unigenitus" and the expulsion of the Jesuits. 

The long quarrel between the Jansenists and the Jesuits 
'was fanned into fresh flame by the final publication of the Pope's 
The Bull Uni- bull, which quoted one hundred and one propositions 
from the work of Pere Quesnel and condemned them 
as heretical. The bull Unigenitus appeared Sept. 8, 1713, and 
was registered by the express wish of Louis XIV, Feb. 14, 1714. 
The dying king, troubled and alarmed by discussions he deemed 
hurtful to true religion, desired to see the kingdom at peace 
before his death; but for fifty years the bull Unigenitus was a 
fruitful cause of dispute and resistance between Parliament and the 
Church, while the court party veered from one side to another as 
selfish interest dictated. During the first years of the regency the 
Duke of Orleans abandoned the Jesuits to the indignation of 
the people, and the bull was practically a dead letter, but in 
1720 the unprincipled Dubois desired to become a cardinal, and 
so offered his good services to the Papal court. Voltaire says, 
with scornful disdain, both for the question at issue and the 
conduct of the Archbishop: "The greater part of these proposi- 

1 Voltarire, Hist, du Parl. De Paris, chap. 51. 

6 



42 

tions condemned by the bull Unigenitus concerned metaphysical 
questions about free-will, which the Jansenists no more under- 
stood than the Jesuits. The Archbishop had more contempt for 
the bull than all the Parliaments of the kingdom, but he would 
have tried to force the Koran upon the Church if the Koran 
could have advanced his interests." 1 Therefore, Dec. 4, 1720, 
after stormy resistance on the part of the Parliament, and a threat 
from the Regent to replace it by another tribunal, the bull was 
again registered. 

The controversy was by no means extinguished. The middle 
classes throughout the country sided strongly with the Jansen- 
The Contest ^ sts > anc * ear g er ly seized every opportunity to testify 

Continued. their opinion> Jn 1?30 Louis X y heM ft Bed Q f j ug _ 

tice, and enforced a third registration of the papal edict. The 
next day the Parliament met and drew up protests and petitions, 
and for two vears the judicial business was neglected, while the 
counselors passed their time in agitating and framing new 
remonstrances. The people became excited to a degree of 
extravagant fanaticism. Miracles were produced in abundance 
to witness to the truths of Jansenius. The tomb of one of the 
Jansenist saints in the cemetery of St. Medard became noted as 
the seat of miraculous cures, and so disturbing were the scenes 
enacted there that government was compelled to interfere and 
shut out the public. Then it was some profane wit wrote over 
the gate: 

" De pur le Roi, defense A Dieu, 
De faire miracle en ce lieu." 

A final struggle was brought about by the order of the 
Archbishop of Paris in 1749, in which he commanded his priests 
to require each dying person to affirm belief in the bull Unigen- 
itus, before receiving the last sacraments of the Church; other- 
wise Christian burial was denied. 

1 Voltaire, Hist, du Parl. de Paris, chap. 61. 



43 

Now, indeed, all orders and parties were embroiled, and the 
very foundations of society were shaken. The Bishops through- 
out the country issued pastoral letters against the Parliaments, 
and the Parliaments ordered the letters to be publicly burned. 
These were dangerous times for the Parliaments and the Church 
to be indulging in open and bitter controversy. The attention of 
the people was called as never before to the rights of government 
and the relations of Church and State, and the writings of Rous- 
seau 1 just now appearing, were awakening passionate^ enthusiasm. 

In 1753, the members of the Parliament of Paris were ban- 
ished, and a Provisional Court was formed, but such determined 
opposition was awakened that the king recalled them. Again, 
the magistracy were exiled, and again recalled, but in the 
sympathy aroused by the attack of an assassin upon the king, 
the Parliament only returned by giving a pledge to desist from 
further attacks upon the bull. Outward hostility ceased, but 
discontent and anger smouldered beneath the surface. 

They finally found expression in the blow aimed against the 
Order of Jesuits. The accumulated hatred of the magistracy and 
Expulsion the popular party throughout the country, aided by 

of the 

Jesuits. the attacks of the sceptical Encyclopaedists led by 
Voltaire and Diderot, brought about the measures, which termi- 
nated in the ordinance of August 2, 1762. This decree abolished 
the Society of Jesus in France, secularized its members, and 
confiscated its property. 

1 Rousseau "that remarkable man who, without learning, with few 
virtues, and no strength of character, has nevertheless stamped himself 
ineffaceably on history by the force of a vivid imagination, and by the 
help of a genuine and burning love for his fellowuien, Tor which much 
will always have to be forgiven him." 

For the effect of the writings of Rousseau on the history of his time, 
see Sir Henry Maine, Ancient Law, p. 83. 

De Tocqueville, The Ancient Regime, chap. 13. 

Demogeot, Hist, de La Lit. Fran., p. 506. 

Van Laun, H., Hist, of French Lit., vol. iii, pp. 90-111. 

Saintsbury, G., Hist, of French Lit., Clarendon Press, 1882, p. 484. 



44 

Fruitless altercation had too familiarized the magistracy to a 
system of obstruction. More than forty years * of the reign of 
Louis XV. had passed in a ceaseless struggle between the 
judicial power and the crown. l The needs of the Treasury, 
increased by war, constantly compelled new financial edicts, 
and refusals of registration were met by frequent Beds of Justice. 
This anarchy could not endure; either the crown must resume its 
authority, or the Parliament would control the State. 

Louis aroused himself from his lethargy, and for once acted 
vigorously and expeditiously. Further compromise was no 
Suppression longer considered. By the advice of ' Chancellor 

of the 

Parliaments Maupeou, the king took the extreme step of sup- 
pressing altogether the ancient Parliaments of the realm, both in 
the capital and the provinces. To take their place six new 
tribunals were instituted Feb. 23, 1771, under the name of con- 
seils-superieurs, in the towns of Arras, Blois, Chfilons-sur-Marne, 
Clermont, Lyons, and Poitiers, the central court of justice being 
still maintained at Paris! This great organic change was not 
accomplished without obstinate resistance on the part of the 
Parliaments and expostulations even from the princes of the 
blood; but the great mass of the people looked on indifferently. 
The privileges and immunities of the Parliaments had lost them 
their hold upon the third estate, and their later contentions with 
the crown were regarded as so many selfish struggles for their 
own aggrandizement. 

To recommend the new courts to public fa'vor, Maupeou an- 
nounced that justice would now be administered free of expense, 
and the sale of offices was forbidden. 

When the new king ascended the throne he re-established 
the Parliaments; but they had learned no wisdom from their 
exile. After fourteen years, Louis XVI found himself in the 

1 Bastard, Les Parl. de France, vol. ii, p. 406. 



45 

same situation as the king, his grandsire, facing refractory coun- 
selors. 

They continued to make angry remonstrances about register- 
ing money loans, and the king was obliged to use the despotic 
measure of a Bed of Justice. The Parliament doubtless thought 
it was conciliating public opinion, which was averse to new 
taxes, but the needs of the Treasury were urgent and its de- 
mands continued. Finally the Parliament of Paris declared 
that according to the ancient constitution of France, the establish- 
ment of new imposts belonged only to the States- General. It 
little anticipated that this cry meant its own destruction. 

The States-General, transformed into the Constituent 
Assembly, had scarcely existed four months when the great 
Dissolution tribunals ceased to be. 1 Nov. 3, 1789, Alexander 
Parliaments Lameth moved the abolition of the Parliaments. 
" They are now in vacation," objected some one. " So much the 
better," shouted Mirabeau, "Let them remain there; they will 
pass from sleep to death, and there will be no return." The de- 
cree, voted with cries of joy by the majority, declared that the 
Parliaments should be in perpetual vacation. Temporary courts 
were at once organized, and iu September, 1791, new judicial 
organizations were framed. 

Thus the Parliaments of France passed out. of history. 



1 Bastard, Les Parl. de France, vol. ii, p. 642. 
Martin, H., Hist, de France, vol. vi, chap. 4. 



46 



Parliamentary Development in Franco and England. 



A final question now remains: Why did the Curia Regis of 
France, the King's Council of Philippe Auguste, eventuate solely 
in a judicial body, dependant for its existence upon the king's 
favor, and hampered by its lack of legal inundation, while the 

Curia Regis of England of the 1 same century, the King's Council 
of Henry II advanced steadily toward the parliamentary system 
of the fifteenth, 8 the seventeenth and the nineteenth centuries? 

The answer rests partly upon racial characteristics that are 

real elements in historical development. Freeman says: 8 "The 

institutions of a people are the natural growth of the 

Difference 

m Race. circumstances under which it finds itself." Surely, the 
distinguishing attribute of race is a potential circumstance. These 
qualities, which each generation receives from its predecessors, 
and transmits to the generation following, form the most s table 
portion of our physical, mental and moral being and.beneath every 
political variation, they must be sought for and will be found. 

For over fifteen centuries 4 Great Britain was peopled and 
governed exclusively by members of the great Teutonic family; 
there was an undisturbed development of German habits of 
thought and mind. In France throughout the same period, there 

1 Stubbs, Const. Hist, of England, vol. i, p. 388. 

* Stubbs, Const. Hist, of England, vol. ii, p. 161. 

8 Freeman, E. A., Comparative Politics, p. 30. This is Montesquieu's 
theory, although he underrates the strength of inherited qualities. Cf. 
Chapters 14, 15, 23 and 29, of "Esprit des Lois." 

* Greene's Making of England. Introduction, note 15. "The first 
recorded appearance of the Saxons off the coast of Gaul, and in the Chan- 
nel was in A. D. 287." 



47 

was a vast preponderance of the Gallic, or Roman-Gallic over 
the Teutonic element of society. After the German invasion of 
the fifth century, the country remained divided among half 
savage tribes that took on no distinctive aspect of nationality, 
until the strong hand of Chariemague held them in his grasp. 
Then followed the slow and imperfect fusion of different races 
that were not welded into one nation of Frenchmen, until the 
Hundred Year's War was completed. 1 Sir James Stephen says: 
* England has so long successfully maintained her free institu- 
tions, because she is still as she has always been, German; because 
her national franchises are the spontaneous and legitimate fruit of 
her national character; of that character dutiful, serious, persever- 
ing, reverential and hopeful, which has been transmitted to us 
from our Anglo-Saxon ancestors." 

England has ever been governed by English law, " a body 
of opinions, maxims, and moral sentiments, which it would be 
Difference difficult to define," and that has largely grown out 
f Law. o f j uc ]i c i a i decisions, and early German and English 
customs. 2 Roman law has affected English law 8 in so far as it has 
stimulated a judicial and legal spirit, produced activity in legisla- 
tion and incited an orderly and systematic arrangement of laws, 
and of methods of legal procedure; but the body of English 
legislation has remained essentially the same from the ninth to 
the nineteenth century. Never has the law been wrested by 
any one class to be used as a tool to manipulate its own interest; 

1 Sir J. Stephens, Lectures on the Hist, of France. Lect. xxiv, p. 710. 

8 Prof. E. Robertson, Art. on Law, Enc. Brit. ed. 1882, "Sir Henry 
Maine has associated its rise with the activity of modern legislatures, 
which is, of course, a characteristic of the societies in which English laws 
prevail." 

3 Sir Henry Maine, Early Hist, of Institutions, p. 21. "The Roman 
Law introduced or immensely stimulated the habit of legislation, and 
this is one of the ways in which it has influenced the stubborn body 
of Germanic customs prevailing in Great Baitain." 



48 

the commons, the lords and the king have all had limits set to 
their authority by the common law. 

France has had no one law acting as the interpreter of a 
national spirit. "It has been smitten with the curse of an anom- 
alous and dissonant jurisprudence beyond every other country 
in Europe." * Before 1789 it was divided into two great di 
visions; the provinces in which the Droit E crit^ or Written Law 
prevailed, and those in which the D>roit Coutunwer or Customary 
Law, pravailed. The former, as the basis of their jurisprudence, 
accepted the written Roman law; the latter only admitted it in 
so far as it was conformable to their local usages, and then it 
mainly supplied judicial expressions and forms of legal reason- 
ing. There was still further division. Where the Customary 
Law was in force, each commune, city, 8 and province 3 had its 
own customs, and where the Written Law was observed, the feu- 
dal usages that formed a part of it were of a miscellaneous and 
arbitrary nature. 4 The different customs and usages tended to 
a disintegration of national thought; each man had more interest 
in his village or province than in the nation. The arbitrary 
maxims of Rome made the law itself subservient to the absolute 
power of the crown. It needed the French Revolution to wipe 
out this anonalous mass of jurisprudence, and to furnish one law 



1 Sir Henry Maine, Ancient Law, p. 80. 

8 Ain. Law Rev. vol. xii, p. 262, Parliaments in France. "A man's 
rights, his responsibilities, and his mode of enforcing them, might vary 
as he passed from one village to another. He could breakfast at Nismes 
without fear of the terrors of the law, only to find himself when he reached 
Aries subject to its direct penalties. 

8 Kitchin's Hist, of France, vol. ii, p. 457. "In the reign of Henry 
IV, Dauphiny struggled hard to get the tax shifted from personal to real 
property, a boon so needful for a poor and hilly country. Languedoc, her 
wealthy neighbor, was actually under the other system, and had her tax- 
ation based on real property."' 

4 De Tocqueville, The Old Regime and the Revolution; Appendix, 
note on Feudal Rights. 

Hallam, H., The Middle Ages, vol. i, chap. 2, part ii. 



49 

for every Frenchman and every locality. Certainly, the law ad- 
ministered in the courts of France before 1789 was not fitted to 
make the great chartered corporations of justice, so much the 
guardians of the liberties of a nation, as the protectors of the 
privileges of a province, and of the prerogatives of a king. 

Another consequence follows from the difference in law. 
Guizot lays down as a primary truth, that 1 " the true principle 
Division of ^ re P resen ^ ve government is the radical illegitimacy 
of all absolute powor, whatever may be its name or 
place; that absolute power as a right inheres in none of the 
powers, which concur to form the government." Therefore, the 
first great external characteristic of representative government is 
division of powers 

In England for more than a thousand years the law has 
always interposed to prevent the encroachment of one order of 
the State upon another, and to vindicate the rights of all. 
Although the king has at times asserted, he has never established 
the claim to inscribe among the laws of the land, edicts issued 
upon the sole authority of his prerogative, and no king, since the 
time of earliest king-making, has sat upon the throne, without 
the recognition of his title, either by his Council of Barons, or 
later, his Parliament. The sovereignty of the king has always 
been limited, 2 and the power of the government has been shared 
among the different orders of the State, in other words, the law 
has defined with a degree of clearness the functions and the 
limits of the legislative, judicial and executive division of 
government. 

In France we find no such division resulting from the feudal 
and Roman law. The feudal lord combined in himself the 
legislative, judicial and executive government of his domain. 
Public opinion exercised slight control over him, and his vassal 

1 Guizot, Essays upon Representative Gov. in England. Lect. 1. 
8 llallam, H., Constitutional Hist, of England, vol. i, chap. 1. 



50 

had no right, which it was dangerous for him to disrespect. 
These two sentences sum up the three contraries to the charac- 
teristics of representative government, as Guizot defines them. 1 
The Roman law held that every ordinance pronounced in the 
King's Court was binding throughout his kingdom, thus making 
the king a legislator; and it furnished the doctrine familiar to 
every student of modern history, that, " the sovereign is the 
fountain of all justice," thus making him a judge. 

These were the features of the law with which the Parlia- 
ment of Paris was profoundly familiar, to whose study and 
practice the counselors had devoted their lives, and by which 
their habits of thought were determined. No evolution from 
such an institution could produce the deliberative body of a 
representative government. 

There were certain minor features, peculiar to the French 
judicial system, that furnish a further answer to the question of 
Certain minor P ar li am ^ntary development. The sale and hereditary 
tenure of judicial offices; the privileges of the 
magistrates, and their exemptions from taxation; the multiplica- 
tion and dispersion of the Parliaments, which prevented them 
from acting with the unity of a single body; these facts were real 
agencies that removed the Parliaments from the sympathies of 
the people, and did away with the idea of representative 
connection between them. 

In truth, the Old Regime and the Parliaments were in- 
dissolubly bound together; the weakness and the strength of 
both inhered in the common foundation of kingly absolutism. 
The opening of the States-General, May 5, 17b9, that was the 
portent of the destruction of old-time royalty, was likewise the 
presage of the dissolution of the Parliaments of France. 

1 Guizot, Essays upon Representative Government in England. Lect, 
1. " The three external characteristics of the principle of representative 
government, are: 1. division of powers; 2. election of officers; :}. publicity 
of discussion. 



THIS BOOK IS DUE ON THE LAST DATE 
STAMPED BELOW 



AN INITIAL FINE OF 25 CENTS 

WILL BE ASSESSED FOR FAILURE TO RETURN 
THIS BOOK ON THE DATE DUE. THE PENALTY 
WILL INCREASE TO SO CENTS ON TH-E FOURTH 
DAY AND TO $1.OO ON THE SEVENTH DAY 
OVERDUE. 



NOV 6 1940 




}? /L 




' 1 ~~~ / 




FF'^ gn> ro4L 












2 T - c: 






















































LD 21-100m-7,'40( 6936s) 



Rot