« ForrigeFortsett »
apud cunctum populum Christianum, qui infra regnum Merwingorum consis. tunt.” Ibid. p. 124. Nay, even in their charters, the kings of the first race are careful to specify that they were granted with the consent of their vassals. * Ego Childebertus Rex una cum consensu et voluntate Francorum,” &c. A. D. 558. Bouquet, ibid. 622. "Clotharius III. una cum patribus nostris episcopis, optimatibus, cæterisque palatii nostri ministris, A. D. 664.” Ibid. 648. " De consensu fidelium nostrorum.” Mably Observ. tom. i. p. 239. The historians likewise describe the functions of the king in the national assemblies in such terms as imply that his authority there was extremely small, and that every thing depended on the court itself. “ Ipse Rex,” says the author of the Anales Francorum, speaking of the Field of March, * sedebat in sella regia, circumstante exercitu, præcipiebatque is, die illo, quicquid a Francis decretum erat.” Bouquet Recueil, tom. ii. p. 647.
That the general assemblies exercised supreme jurisdiction over all persons, ind with respect to all causes, is so evident as to stand in need of no proof. The trial of Brunehaut, A. D. 613, how unjust soever the sentence against her may be, as related by Fredegarius, Chron. cap. 42. Bouquet, ib. 430, is in itself sufficient proof of this. The notorious violence and iniquity of the sentence serve to demonstrate the extent of jurisdiction which this assembly possessed, as a prince so sanguinary as Clothaire II. thought the sanction of its authority would be sufficient to justify his rigorous treatment of the mother and grandmother of so many kings.
With respect to conferring donatives on the prince, we may observe, that among nations whose manners and political institutions are simple, the public 48 well as individuals, having few wants, they are little acquainted with taxes, and free uncivilized tribes disdain to submit to any stated imposition. This was remarkably the case of the Germans, and of all the various people that issued from that country. Tacitus pronounces two tribes not to be of German origin, because they submitted to pay taxes. De Morib. Germ. c. 43. And speaking of another tribe according to the ideas prevalent in Germany, he says, • They were not degraded by the imposition of taxes.” Ibid. c. 29. Upon the settlement of the Franks in Gaul, we may conclude, that while elated with the consciousness of victory, they would not renounce the high-spirited ideas of their ancestors, or voluntarily submit to a burden which they regarded as a badge of servitude. The evidence of the earliest records and historians justify this conclusion. M. de Montesquieu, in the twelfth and subsequent chapters of the thirteenth book of l'Esprit des Loix, and M. de Mably Observat, sur l'Hist, de France, tom. i. p. 247, have investigated this fact with great attention, and have proved clearly that the property of freemen among the Franks was not subject to any stated tax. That the state required nothing from persons of this rank, but military service at their own expense, and that they should Antertain the king in their houses when he was upon any progress through his doninions, or his officers when sent on any public employment, furnishing them with carriages and horses. Monarchs subsisted almost entirely upon the revenues of their own domains, and upon the perquisites arising from the adminis tration of justice, together with a few small fines and forfeitures, exacted from such as had been guilty of certain trespasses. It is foreign from my subject to enumerate these. The reader may find them in Observat. de M. de Mably, vol. i. p. 267.
When any extraordinary aid was granted by freemen to their sovereign, it was purely voluntary. In the annual assembly of March or May, it was the custoin to make the king a present of money, of horses or arms, or of some other thing of value. This was an ancient custom, and derived from their ancestors the Germans. “Mos est civitatibus, ultro ac viritim conferre principibus vel armentorum vel frugum, quod pro honore acceptum, etiam necessitatibus subvenit." Tacit. de Mor. Germ. c. 15. These gifts, if we may form a judgment concerning them, from the general terms in which they are mentioned by the ancient historians, were considerable, and made no small part of the royal revenue. Many passages to this purpose are produced by M. du Cange, Dissert. iv. sur Joinville, 153. Sometimes a conquered people specified the gift which they bound themselves to pay annually, and it was exacted as a debt if they failed. Annales Metenses, ap. Du Cango, ibid. p. 155. It is probable, that the first step towards taxation was to ascertain the value of these gifts, which were originally gratuitous, and to compel the people to pay the sum at which they were rated. Still, however, some memory of their original was preserved, and the aids granted to monarchs, in all the kingdoms of Europe were termed benevolences or free gifts.
The kings of the second race in France were raised to the throne by the election of the people. “Pepinus Rex pius,” says an author who wrote a few years after the transaction which he records, “por authoritatem Papæ, et unctionem sancti chrismatis et electionem omnium Francorum in regni solio sublimatus est." Clausula de Pepini consecrativne ap. Bouq. Recueil des Histor. tom. v. p. 9. At the same time, as the chief men of the nation had transferred the crown from one family to another, an oath was exacted of them, that they should maintain on the throne the family which they had now promoted ; " ut nunquam de alterius lumbis regem in ævo præsumant eligere.” Ibid. p. 10. This oath the nation faithfully observed during a considerable space of time. The posterity of Pepin kept possession of the throne ; but with respect to the manner of dividing their dominions among their children, princes were obliged to consult the general assembly of the nation. Thus Pepin himself, A. D. 768, appointed his two sons, Charles and Charlomannus, to reign as joint sovereigns ; but he did this, " una cum consensu Francorum et procerum suorum seu et episcoporum," before whom he laid the matter in their general assembly. * Conventus apud sanctum Dionysium," Capitular. vol. i. p. 187. This destination the French confirmed in a subsequent assembly, which was called upon the death of Pepin : for, as Eginhart relates, they not only appointed them kings, but by their authority they regulated the limits of their respective territories, Vita Car. Magni ap. Bouquet Rocueil, tom. v. p. 90. In the same manner, it was by the authority of the supreme assemblies, that any dispute which aroso among the descendants of the royal family was determined. Charlemagne recog. nises this important part of their jurisdiction, and confirms it in his charter concerning the partition of his dominions ; for he appoints, that, in case of any uncertainty with respect to the right of the several competitors, he whom the people shall choose, shall succeed to the crown. Capitular. vol. i. 442.
Under the second race of kings, the assembly of the nation, distinguished by the name of Conventus, Malli, Placita, were regularly assembled once a year at least, and frequently twice in the year. One of the most valuable monuments of the History of France is the treatise of Hincmarus, archbishop of Rheims, de ordine Palatii. He died, A. D. 882, only sixty-eight years after Charlemagne, and he relates in that short discourse the facts which were communicated to him by Adalhardus, a minister and confidant of Charlemagne. From him we learn, that this great monarch never failed to hold the general assembly of his subjects every year. "In quo placito generalitas universorum majorum tam clericorum quam laicorum conveniebat." Hincm. oper. edit. Sirmondi, vol. ii. c. 29. p. 211. In these assemblies, matters which related to the general safety and state of the kingdom were always discussed, before they entered upon any private or less important business. Ibid. c. 33. p. 213. His immediate successors imitated his example, and transacted no affair of importance without the advice of their great council.
Under the second race of kings, the genius of the French government continued to be in a good measure democratical. The nobles, the dignified ecclesiastics, and the great officers of the crown, were not the only members of the national council; the people, or the whole body of free mon, either in person or by their representatives, had a right to be present in it. Hincmarus, in describing the manner of holding the general assemblies, says, that if the weather was favourable, they met in the open air; but if otherwise, they bad different apartments allotted to them : so that the dignified clergy were separated from the laity, and the comiter vel hajasmodi principes sibimet honorificabiliter a cætera multitudine segregarentur. Ibid. c. 35. p. 114. Agobardus, archbishop of Lyons, thus describes a national council in the year 833, wherein he was present. * Qui ubique conventus extitit ex reverendissimis episcopis, et magnificentissimis viris illustribus, collegio quoque abbatum et comitum, promiscumque ætatis et dignitatis populo." The catera multitudo of Hincmarus is the same with the populus of Agobardus, and both describe the inferior order of free men, the samo who were afterwards known in France by the name of the third estate, and in England by the name of commons. The people, as well as the members of higher dignity, were admitted to a share of the legislative power, Thus, by a law, A. D. 803, it is ordained, " that the question shall be put to the people, with respect to every new law, and if they shall agree to it, they shall confirm it by their signature.” Capit. vol. i. 394. There are two capitularia which convey to us a full idea of the part which the people took in the administration of government. When they felt the weight of any grievance, they had a right to petition the sovereign for redress. One of these petitions, in which they desire that ecclesiastics might be exempted from bearing arms, and from serving in person against the enemy, is still extant. It is addressed to Charlemagne, A. D. 830, and expressed in such terms as could have been used only by men conscious of liberty, and of the extensive privileges which they possessed, They conclude with requiring him to grant their demand, if he wished that they should any longer continue faithful subjects to him. That great monarch, instead of being offended or surprised at the boldness of their petition, received it in a most gracious manner, and signified his willingness to comply with it. But sensible that he himself did not possess legislative authority, he promises to lay the matter before the next general assembly, that such things as were of common concern to all might be there considered and established by common consent. Capitul. tom. i. p. 405-409. As the people by their petitions brought matters to be proposed in the general assembly, we learn from another capitu, lare the form in which they were approved there, and enacted as laws. The propositions were read aloud, and then the people were required to declare whether they assented to them or not. They signified their assent by crying three times,“ We are satisfied,” and then the capitulare was confirmed by the subscription of the monarch, the clergy, and the chief men of the laity. Capitul, tom. i. p. 627. A. D. 822. It seems probable from a capitulare of Carolus Cala vus, A. D. 851, that the sovereign could not refuse his assent to what was proposed and established by his subjects in the general assembly. Tit. ix. 16. Capitul. vol. ii. p. 47. It is unnecessary to multiply quotations concerning the legislative power of the national assembly of France, under the second race, or concerning its right to determine with regard to peace and war. The uniform style of the Capitularia is an abundant confirmation of the formor. The reader who desires any farther information with respect to the latter, may consult Les Origines ou l'Ancien Gouvernement de la France, &c. tom. iii. p. 87, &c, What has been said with respect to the admission of the people or their representatives into the supreme assembly merits attention, not only in tracing the progress of the French government, but on account of the light which it throws upon a similar question, agitated in England, concerning the time when the commons became part of the legislative body in that kingdom.
Note . Page 78. That important change which the constitution of France underwent, when the legislative power was transferred from the great council of the nation to the king, has been explained by the French antiquaries with less care than they bestow in illustrating other events in their history. For that reason I have endeavoured with greater attention to trace the steps which led to this memorable revolution. I shall here add some particulars, which tend to throw addie tional light upon it, The Leges Salicæ, the Leges Burgundionum, and other codes published by the several tribes which settled in Gaul, were general laws extending to every person, to every province and district where the authority of those tribes was acknowledged. But they seem to have become obsolete ; and the reason of their falling into disuse is very obvious. Almost the whole property of the nation was allodial when these laws were framed. But when the feudal institutions became general, and gave rise to an infinite variety of quesa tions peculiar to that species of tenure, the ancient codes were of no use in deciding with regard to these, because they could not contain regulations appli, cable to cases which did not exist at the time when they were compiled. This considerable change in the nature of property, made it necessary to publish the now regulations contained in the Capitularia. Many of these, as is evident from the perusal of them, were public laws extending to the whole French
dation, in the general assembly of which they were enacted. The weakness of the greater part of the monarchs of the second race, and the disorder into which the nation was thrown by the depredations of the Normans, encouragod the barons to usurp an independent power, formerly unknown in France. The nature and extent of that jurisdiction which they assumed, I have formerly considered. The political union of the kingdom was at an end, its ancient constitution was dissolved, and only a feudal relation subsisted between the king and his vassals. The regal jurisdiction extended no further than the domains of the crown. Under the last kings of the second race, these were reduced almost to nothing. Under the first kings of the third race, they comprehended little more than the patrimonial estate of Hugh Capet, which he annexed to the crown. Even with this accession, they continued to be of small extent. Valley, Hist. de France, tom. iii. p. 32. Many of the most considerable provinces in France did not at first acknowledge Hugh Capet as a lawful monarch. There are still extant several charters, granted during the first years of his reign, with this remarkable clause in the form of dating the charter; " Deo regnante, rege expectante," regnante domino nostro Jesu Christo, Francis autem contra jus regnum usurpante Ugone rege, Bouquet Rocueil, tom. I. p. 544. A monarch whose title was thus openly disputed, was not in a condition to assert the royal jurisdiction, or to limit that of the barons.
All these circumstances rendered it easy for the barons to usurp the rights of royalty within their own territories. The Capitularia became no less obsolete than the ancient laws; and customs were every where introduced, and became the sole rule by which all civil transactions were conducted, and all causes were tried. The wonderful ignorance, which became general in France, during the ninth and tenth centuries, contributed to the introduction of customary law. Few porsons, except ecclesiastics, could read ; and as it was not in the power of such illiterate persons to have recourse to written laws, either as their guide in business, or their rule in administering justice, the customary law, the knowledge of which was preserved by tradition, universally prevailed.
During this period, the general assembly of the nation seems not to have been called, nor to have once exerted its legislative authority. Local customs regulated and decided every thing. A striking proof of this occurs in tracing the progress of the French jurisprudence. The last of the Capitularia collected by M. Baluze, was issued in the year 921, by Charles the Simple. An hundred and thirty years elapsed from that period to the publication of the first ordonnance of the kings of the third race, contained in the great collection of M. Lauriere, and the first ordonnance, which appears to be an act of legislation, extending to the whole kingdom, is that of Philip Augustus, A. D. 1190. Ordon. tom. i. p. 1. 18. During that long period of two hundred and sixty-nine years, all transactions were directed by local customs, and no addition was made to the statutory law of France. The ordonnances, previous to the reign of Philip Augustus, contain regulations, the authority of which did not extend beyond the king's domains.
Various instances occur of the caution with which the kings of France ventured at first to exercise legislative authority. M. l'Ab. de Mably produces an ordonnance of Philip Augustus, A. D. 1206, concerning the Jews, who, in that age, were in some measure the property of the lord in whose territories they resided. But it is rather a treaty of the king with the countess of Champagne, and the compte de Dampierre, than an act of royal power; and the regulations in it seem to be establishod not so much by his authority, as by their consent. Observat, sur l'Hist. de France, ii. p. 355. In the same manner an ordonnance of Louis VIII., concerning the Jews, A. D. 1223, is a contract between the king and his nobles, with respect to their manner of treating that unhappy race of men. Ordon. tom. i. p. 47. The Establissemens of St. Louis, though well adapted to serve as general laws to the whole kingdom, were not published as such, but only as a complete code of customary law, to be of authority within the king's domains. The wisdom, the equity, and the order conspicuous in that code of St. Louis, procured it a favourable reception throughout the kingdom. The veneration due to the virtues and good intentions of its author, contributed not a little to reconcile the nation to that legislative authority which the king began to assume. Soon after the reign of St. Louis, the idea of the king's pos.
sessing supreme legislative power became common. " If,” says Beaumanoir, " the king makes any establishment, especially for his own domain, the barons may nevertheless adhere to their ancient customs; but if the establishment be general, it shall be current throughout the whole kingdom, and we ought to believe that such establishments are made with mature deliberation, and for the general good.” Count de Beauvoisis, c. 48. p. 265. Though the kings of the third race did not call the general assembly of the nation, during the long period from Hugh Capet to Philip the Fair, yet they seem to have consulted the bishops and barons who happened to be present in their court, with respect to any new law which they published. Examples of this occur, Ordon. tom. i. p. 3. & 5. This practice seems to have continued as late as the reign of St. Louis, when the legislative authority of the crown was well established. Ordon. tom. i. p. 58. A. D. 1246. This attention paid to the barons, facilitated the kings icquiring such full possession of the legislative power, as enabled them after. wards to exercise it without observing that formality.
The assemblies distinguished by the name of the States General, were first talled, A. D. 1302, and were held occasionally from that period to the year 1614, since which time they have not been summoned. These were very different from the ancient assemblies of the French nation, under the kings of the first and second race. There is no point with respect to which the French antiquaries are more generally agreed, than in maintaining that the States General had no suffrage in the passing of laws, and possessed no proper legislative jurisdiction. The whole tenor of the French history confirms this opinion. The form of proceeding in the States General was this :- The king addressed himself, at opening the meeting, to the whole body assembled in one place, and laid before them the affairs on account of which he had summoned them. Then the deputies of each of the three orders, of nobles, of clergy, and of the third estate, met apart, and prepared their cahier or memorial, containing their answer to the propositions which had been made to them, together with the representations which they thought proper to lay before the king. These answers and representations were considered by the king in his council, and generally gave rise to an ordonnance. These ordonnances were not addressed to the three estates in common. Sometimes the king addressed an ordonnance to each of the estates in particular. Sometimes he mentioned the assembly of the three estates, Sometimes he mentioned the assembly of that estate to which the ordonnance is addressed. Sometimes no mention at all is made of the assembly of estates, which suggested the propriety of enacting the law. Preface, au tom. iii. des Drdon. p. xx. Thus the States General had only the privilege of advising and pmonstrating; the legislative authority resided in the king alone.
Note . Page 80. If the parliament of Paris be considered only as the supreme court of justice, every thing relative to its origin and jurisdiction is clear and obvious. It is the ancient court of the king's palace, new modelled, rendered stationary, and invested with an extensive and ascertained jurisdiction. The power of this court, while employed in this part of its functions, is not the object of present consideration. The pretensions of the parliament to control the exercise of the legislative authority, and its claim of a right to interpose with respect to public affairs and the political administration of the kingdom, lead to inquiries attended with great difficulty. As the officers and members of the parliament of Paris were anciently nominated by the king, were paid by him, and on several occasions were removed by him at pleasure (Chronic. Scandaleuse de Louis XI. chez les Mem. de Comines, tom. ii. p. 51. Edit. de M. Lenglet de Fresnoy), they cannot be considered as representatives of the people, nor could they claim any share in the legislative power as acting in their name. We must therefore search for some other source of this high privilege. The parliament was originally composed of the most eminent persons in the kingdom. The peers of France, ecclesiastics of the highest order, and noblemen of illustrious birth, were members of it, to whom were added some clerks and counsellors, learned in the laws. Pasquier Recherches, p. 44, &c. Encyclopedie, tom. xii. Art. Parlement, p. 3. 5. A court thus constituted, was properly a committee of the States General of the kingdom, and was composed of those barons and fideles, whom