of Anjou, Burgundy, and Berry, under pretext of requiring money for war expenses, again increased the taxes from the year 1385 to 1388; and the salt tax was raised to forty golden francs, about 24,000 francs of present money, per hogshead. The ecclesiastics paid a half decime to the King, and several decimes to the Pope, but these did not prevent a forced loan being ordered. Happily, Charles VI. about this period attained his majority, and assumed his position as king; and his uncle, the Duke of Bourbon, who was called to the direction of affairs, re-established comparative order in financial matters; but soon after the King’s brother, the Duke of Orleans, seized the reins of government, and, jointly with his sister-in-law, Isabel of Bavaria, increased the taxation far beyond that imposed by the Duke d’Anjou. The Duke of Burgundy, called John the Fearless, in order to gratify his personal hatred to his cousin, Louis of Orleans, made himself the instrument of the strong popular feeling by assassinating that prince as he was returning from an entertainment. The tragical death of the Duke of Orleans no more alleviated the ills of France than did that of the Duke of Burgundy sixteen years later–for he in his turn was the victim of a conspiracy, and was assassinated on the bridge of Montereau in the presence of the Dauphin (Fig. 283). The marriage of Isabel of France with the young king Richard of England, the ransom of the Christian prisoners in the East, the money required by the Emperor of Constantinople to stop the invasions of the Turks into Europe, the pay of the French army, which was now permanent, each necessarily required fresh subsidies, and money had to be raised in some way or other from the French people. Distress was at its height, and though the people were groaning under oppression, they continued to pay not only the increased taxes on provisions and merchandise, and an additional general tax, but to submit to the most outrageous confiscations and robbery of the public money from the public treasuries. The State Assemblies held at Auxerre and Paris in 1412 and 1413, denounced the extravagance and maladministration of the treasurers, the generals, the excisemen, the receivers of royal dues, and of all those who took part in the direction of the finances; though they nevertheless voted the taxes, and promulgated most severe regulations with respect to their collection. To meet emergencies, which were now becoming chronic, extraordinary taxes were established, the non-payment of which involved the immediate imprisonment of the defaulter; and the debasement of the coinage, and the alienation of certain parts of the kingdom, were authorised in the name of the King, who had been insane for more than fifteen years. The incessant revolts of the bourgeois, the reappearance of the English on the soil of France, the ambitious rivalry of Queen Isabel of Bavaria leagued with the Duke of Burgundy against the Dauphin, who had been made regent, at last, in 1420, brought about the humiliating treaty of Troyes, by which Henry V., king of England, was to become king of France on the death of Charles VI.
This treaty of Troyes became the cause of, and the pretext for, a vast amount of extortion being practised upon the unfortunate inhabitants of the conquered country. Henry V., who had already made several exactions from Normandy before he had obtained by force the throne of France, did not spare the other provinces, and, whilst proclaiming his good intentions towards his future subjects, he added a new general impost, in the shape of a forced loan, to the taxes which already weighed so heavily on the people. He also issued a new coinage, maintained many of the taxes, especially those on salt and on liquors, even after he had announced his intention of abolishing them.
At the same time the Dauphin Charles, surnamed _Roi de Bourges_, because he had retired with his court and retinue into the centre of the kingdom (1422), was sadly in want of money. He alienated the State revenues, he levied excise duties and subsidies in the provinces which remained faithful to his cause, and he borrowed largely from those members of the Church and the nobility who manifested a generous pity for the sad destiny of the King and the monarchy. Many persons, however, instead of sacrificing themselves for their king and country, made conditions with him, taking advantage of his position. The heir to the throne was obliged in many points to give way, either to a noble whose services he bargained for, or to a town or an abbey whose aid he sought. At times he bought over influential bodies, such as universities and other corporation, by granting exemptions from, or privileges in, matters of taxation, &c. So much was this the case that it may be said that Charles VII. treated by private contract for the recovery of the inheritances of his fathers. The towns of Paris and Rouen, as well as the provinces of Brittany, Languedoc, Normandy, and Guyenne, only returned to their allegiance to the King on conditions more or less advantageous to themselves. Burgundy, Picardy, and Flanders–which were removed from the kingdom of Charles VII. at the treaty of peace of Arras in 1435–cordially adopted the financial system inaugurated by the Duke of Burgundy, Philip the Good.
[Illustration: Fig. 284.–The House of Jacques Coeur at Bourges, now converted into the Hotel de Ville.]
Charles VII. reconquered his kingdom by a good and wise policy as much as by arms. He, doubtless, had cause to be thankful for the valeur and devotion of his officers, but he principally owed the success of his cause to one man, namely, his treasurer, the famous Jacques Coeur, who possessed the faculty of always supplying money to his master, and at the same time of enriching himself (Fig. 284). Thus it was that Charles VII., whose finances had been restored by the genius of Jacques Coeur, was at last able to re-enter his capital triumphantly, to emancipate Guyenne, Normandy, and the banks of the Loire from the English yoke, to reattach to the crown a portion of its former possessions, or to open the way for their early return, to remove bold usurpers from high places in the State, and to bring about a real alleviation of those evils which his subjects had so courageously borne. He suppressed the fraud and extortion carried on under the name of justice, put a stop to the sale of offices, abolished a number of rates illegally levied, required that the receivers’ accounts should be sent in biennially, and whilst regulating the taxation, he devoted its proceeds entirely to the maintenance and pay of the army. From that time taxation, once feudal and arbitrary, became a fixed royal due, which was the surest means of preventing the pillage and the excesses of the soldiery to which the country people had been subjected for many years. Important triumphs of freedom were thus obtained over the tyrannical supremacy of the great vassals; but in the midst of all this improvement we cannot but regret that the assessors, who, from the time of their creation by St. Louis, had been elected by the towns or the corporations, now became the nominees of the crown.
[Illustration: Fig. 285.–_Amende honorable_ of Jacques Coeur before Charles VII.–Fac-simile of a Miniature of the “Chroniques” of Monstrelet, Manuscript of the Fifteenth Century, in the National Library of Paris.]
Philip the Good, Duke of Burgundy, taxed his subjects but little: “Therefore,” says Philippe de Commines, “they became very wealthy, and lived in much comfort.” But Louis XI did not imitate him. His first care was to reinstate that great merchant, that clever financier, Jacques Coeur, to whom, as much as to Joan of Arc, the kingdom owed its freedom, and whom Charles VII., for the most contemptible reasons, had had the weakness to allow to be judicially condemned Louis XI. would have been very glad to entrust the care of his finances to another Jacques Coeur; for being sadly in want of money, he ran through his father’s earnings, and, to refill his coffers, he increased taxation, imposed a duty on the importation of wines, and levied a tax on those holding offices, &c. A revolution broke out in consequence, which was only quenched in the blood of the insurgents. In this manner he continued, by force of arms, to increase and strengthen his own regal power at the expense of feudalism.
He soon found himself opposed by the _Ligue du Bien Public_, formed by the great vassals ostensibly to get rid of the pecuniary burden which oppressed the people, but really with the secret intention of restoring feudalism and lessening the King’s power. He was not powerful enough openly to resist this, and appeared to give way by allowing the leagued nobles immense privileges, and himself consenting to the control of a sort of council of “thirty-six notables appointed to superintend matters of finance.” Far from acknowledging himself vanquished, however, he immediately set to work to cause division among his enemies, so as to be able to overcome them. He accordingly showed favour towards the bourgeois, whom he had already flattered, by granting new privileges, and abolishing or reducing certain vexatious taxes of which they complained. The thirty-six notables appointed to control his financial management reformed nothing. They were timid and docile under the cunning eye of the King, and practically assisted him in his designs; for in a very few years the taxes were increased from 1,800,000 ecus–about 45,000,000 francs of present money–to 3,600,000 ecus–about 95,000,000 francs. Towards the end of the reign they exceeded 4,700,000 ecus–130,000,000 francs of present money. Louis XI. wasted nothing on luxury and pleasure; he lived parsimoniously, but he maintained 110,000 men under arms, and was ready to make the greatest sacrifices whenever there was a necessity for augmenting the territory of the kingdom, or for establishing national unity. At his death, on the 25th of August, 1483, he left a kingdom considerably increased in area, but financialty almost ruined.
When Anne de Beaujeu, eldest sister of the King, who was a minor, assumed the reins of government as regent, an immediate demand was made for reparation of the evils to which the finance ministers had subjected the unfortunate people. The treasurer-general Olivier le Dain, and the attorney-general Jean Doyat, were almost immediately sacrificed to popular resentment, six thousand Swiss were subsidised, the pensions granted during the previous reign were cancelled, and a fourth part of the taxes was removed. Public opinion being thus satisfied, the States-General assembled. The bourgeois here showed great practical good sense, especially in matters of finance; they proved clearly that the assessment was illegal, and that the accounts were fictitious, inasmuch as the latter only showed 1,650,000 livres of subsidies, whereas they amounted to three times as much. It was satisfactorily established that the excise, the salt tax, and the revenues of the public lands amply sufficed for the wants of the country and the crown. The young King Charles was only allowed 1,200,000 livres for his private purse for two years, and 300,000 livres for the expenses of the festivities of his coronation. On the Assembly being dissolved, the Queen Regent found ample means of pleasing the bourgeois and the people generally by breaking through the engagements she had entered into in the King’s name, by remitting taxation, and finally by force of arms destroying the power of the last remaining vassals of the crown.
[Illustration: Fig. 286.–The Mint.–Fac-simile of a Woodcut in the Translation of the Latin Work of Francis Patricius, “De l’Institution et Administration de la Chose Politique:” folio, 1520.]
[Illustration: Fig. 287.–The receiver of Taxes.–Fac-simile of a Woodcut in Damhoudere’s “Praxis Rerum Civilium.”]
Charles VIII., during a reign of fourteen years, continued to waste the public money. His disastrous expedition for the conquest of the kingdom of Naples forced him to borrow at the rate of forty-two per cent. A short time previous to his death he acknowledged his errors, but continued to spend money, without consideration or restraint, in all kinds of extravagances, but especially in buildings. During his reign the annual expenditure almost invariably doubled the revenue. In 1492 it reached 7,300,000 francs, about 244,000,000 francs of present money. The deficit was made up each year by a general tax, “which was paid neither by the nobles nor the Church, but was obtained entirely from the people” (letters from the ambassadors of Venice).
When the Duke of Orleans ascended the throne as Louis XII., the people were again treated with some consideration. Having chosen George d’Amboise as premier and Florimond Robertet as first secretary of the treasury, he resolutely pursued a course of strict economy; he refused to demand of his subjects the usual tax for celebrating the joyous accession, the taxes fell by successive reductions to the sum of 2,600,000 livres, about 76,000,000 francs of present money, the salt tax was entirely abolished, and the question as to what should be the standard measure of this important article was legislated upon. The tax-gatherers were forced to reside in their respective districts, and to submit their registers to the royal commissioners before beginning to collect the tax. By strict discipline pillage by soldiers was put a stop to (Fig. 288).
Notwithstanding the resources obtained by the King through mortgaging a part of the royal domains, and in spite of the excellent administration of Robertet, who almost always managed to pay the public deficit without any additional tax, it was necessary in 1513, after several disastrous expeditions to Italy, to borrow, on the security of the royal domains, 400,000 livres, 10,000,000 francs of present money, and to raise from the excise and from other dues and taxes the sum of 3,300,000 livres, about 80,000,000 francs of present money. This caused the nation some distress, but it was only temporary, and was not much felt, for commerce, both domestic and foreign, much extended at the same time, and the sale of collectorships, of titles of nobility, of places in parliament, and of nominations to numerous judicial offices, brought in considerable sums to the treasury. The higher classes surnamed the king _Le Roitelet_, because he was sickly and of small stature, parsimonious and economical. The people called him their “father and master,” and he has always been styled the father of the people ever since.
[Illustration: Fig. 288.–A Village pillaged by Soldiers.–Fac-simile of a Woodcut in Hamelmann’s “Oldenburgisches Chronicon.” in folio, 1599.]
In an administrative and financial point of view, the reign of Francis I. was not at all a period of revival or of progress. The commencement of a sounder System of finance is rather to be dated from that of Charles V.; and good financial organization is associated with the names of Jacques Coeur, Philip the Good, Charles XI., and Florimond Robertet. As an example of this, it may be stated that financiers of that time established taxes on registration of all kinds, also on stamps, and on sales, which did not before exist in France, and which were borrowed from the Roman emperors. We must also give them the credit of having first commenced a public debt, under the name of _rentes perpetuelles_, which at that time realised eight per cent. During this brilliant and yet disastrous reign the additional taxes were enormous, and the sale of offices produced such a large revenue that the post of parliamentary counsel realised the sum of 2,000 golden ecus, or nearly a million francs of present currency. It was necessary to obtain money at any price, and from any one who would lend it. The ecclesiastics, the nobility, the bourgeois, all gave up their plate and their jewels to furnish the mint, which continued to coin money of every description, and, in consequence of the discovery of America, and the working of the gold and silver mines in that country, the precious metals poured into the hands of the money-changers. The country, however, was none the more prosperous, and the people often were in want of even the commonest necessaries of life. The King and the court swallowed up everything, and consumed all the resources of the country on their luxury and their wars. The towns, the monasteries, and the corporations, were bound to furnish a certain number of troops, either infantry or cavalry. By the establishment of a lottery and a bank of deposit, by the monopoly of the mines and by the taxes on imports, exports, and manufactured articles, enormous sums were realised to the treasury, which, as it was being continually drained, required to be as continually replenished. Francis I. exhausted every source of credit by his luxury, his caprices, and his wars. Jean de Beaune, Baron de Semblancay, the old minister of finance, died a victim to false accusations of having misappropriated the public funds. Robertet, who was in office with him, and William Bochetel, who succeeded him, were more fortunate: they so managed the treasury business that, without meeting with any legal difficulty, they were enabled to centralise the responsibility in themselves instead of having it distributed over sixteen branches in all parts of the kingdom, a system which has continued to our day. In those days the office of superintendent of finance was usually only a short and rapid road to the gibbet of Montfaucon.
[Illustrations: Gold and Silver Coins of the Fifteenth and Sixteenth Centuries.
Fig. 289.–Royal d’Or. Charles VII
Fig. 290.–Ecu d’Argent a la Couronne. Louis XI. Fig. 291.–Ecu d’Or a la Couronne. Charles VIII. Fig. 292.–Ecu d’Or au Porc-epic. Louis XII. Fig. 293.–Teston d’Argent. Francis I.
Fig. 294.–Teston d’Argent au Croissant. Henry II. ]
[Illustration: Fig. 295.–Silver Franc. Henry IV.]
Law and the Administration of Justice.
The Family the Origin of Government.–Origin of Supreme Power amongst the Franks.–The Legislation of Barbarism humanised by Christianity.–Right of Justice inherent to the Bight of Property.–The Laws under Charlemagne.–Judicial Forms.–Witnesses.–Duels, &c.– Organization of Royal Justice under St. Louis.–The Chatelet and the Provost of Paris.–Jurisdiction of Parliament, its Duties and its Responsibilities.–The Bailiwicks. Struggles between Parliament and the Chatelet.–Codification of the Customs and Usages.–Official Cupidity.–Comparison between the Parliament and the Chatelet.
Amongst the ancient Celtic and German population, before any Greek or Roman innovations had become engrafted on to their customs, everything, even political power as well as the rightful possession of lands, appears to have been dependent on families. Julius Caesar, in his “Commentaries,” tells us that “each year the magistrates and princes assigned portions of land to families as well as to associations of individuals having a common object whenever they thought proper, and to any extent they chose, though in the following year the same authorities compelled them to go and establish themselves elsewhere.” We again find families (_familiae_) and associations of men (_cognationes hominum_) spoken of by Caesar, in the barbaric laws, and referred to in the histories of the Middle Ages under the names of _genealogiae, faramanni, farae_, &c.; but the extent of the relationship (_parentela_) included under the general appellation of _families_ varied amongst the Franks, Lombards, Visigoths, and Bavarians. Generally, amongst all the people of German origin, the relationship only extended to the seventh degree; amongst the Celts it was determined merely by a common ancestry, with endless subdivisions of the tribe into distinct families. Amongst the Germans, from whom modern Europe has its origin, we find only three primary groups; namely, first, the family proper, comprising the father, mother, and children, and the collateral relatives of all degrees; secondly, the vassals (_ministeriales_) or servants of the free class; and, thirdly, the servants (_mansionarii, coloni, liti, servi_) of the servile class attached to the family proper (Fig. 296).
Domestic authority was represented by the _mund_, or head of the family, also called _rex_ (the king), who exercised a special power over the persons and goods of his dependents, a guardianship, in fact, with certain rights and prerogatives, and a sort of civil and political responsibility attached to it. Thus the head of the family, who was responsible for his wife and for those of his children who lived with him, was also responsible for his slaves and domestic animals. To such a pitch did these primitive people carry their desire that justice should be done in all cases of infringement of the law, that the head was held legally responsible for any injury which might be done by the bow or the sword of any of his dependents, without it being necessary that he should himself have handled either of these weapons.
Long before the commencement of the Merovingian era, the family, whose sphere of action had at first been an isolated and individual one, became incorporated into one great national association, which held official meetings at stated periods on the _Malberg_ (Parliament hill). These assemblies alone possessed supreme power in its full signification. The titles given to certain chiefs of _rex_ (king), _dux_ (duke), _graff_ (count), _brenn_ (general of the army), only defined the subdivisions of that power, and were applied, the last exclusively, to those engaged in war, and the others to those possessing judicial and administrative functions. The duty of dispensing justice was specially assigned to the counts, who had to ascertain the cause of quarrels between parties and to inflict penalties. There was a count in each district and in each important town; there were, besides, several counts attached to the sovereign, under the title of counts of the palace (_comites palatii_), an honourable position, which was much sought after and much coveted on account of its pecuniary and other contingent advantages. The counts of the palace deliberated with the sovereign on all matters and all questions of State, and at the same time they were his companions in hunting, feasting, and religious exercises; they acted as arbitrators in questions of inheritance of the crown; during the minority of princes they exercised the same authority as that which the constitution gave to sovereigns who were of full age; they confirmed the nominations of the principal functionaries and even those of the bishops; they gave their advice on the occasion of a proposed alliance between one nation and another, on matters connected with treaties of peace or of commerce, on military expeditions, or on exchanges of territory, as well as in reference to the marriage of a prince, and they incurred no responsibility beyond that naturally attached to persons in so distinguished a position among a semi-barbarous community. At first the legates (_legati_), and afterwards the King’s ambassadors (_missi dominici_), the bishops and the dukes or commanders of the army were usually selected from the higher court officials, such as the counts of the palace, whereas the _ministeriales_, forming the second class of the royal officials, filled inferior though very honourable and lucrative posts of an administrative and magisterial character.
[Illustration: Fig. 296.–The Familles and the Barbarians.–Fac-simile of a Woodcut in the “Cosmographie Universelle” of Munster: in folio, Basle, 1552.]
Under the Merovingians the legal principle of power was closely bound up with the possession of landed property. The subdivision of that power, however, closely followed this union, and the constant ruin of some of the nobles rapidly increased the power of others, who absorbed to themselves the lost authority of their more unfortunate brethren, so much so that the Frank kings perceived that society would soon escape their rule unless they speedily found a remedy for this state of things. It was then that the _lois Salique_ and _Ripuaire_ appeared, which were subjected to successive revisions and gradual or sudden modifications, necessitated by political changes or by the increasing exigencies of the prelates and nobles. But, far from lessening the supremacy of the King, the national customs which were collected in a code extended the limits of the royal authority and facilitated its exercise.
In 596, Childebert, in concert with his _leudes_, decided that in future the crime of rape should be punished with death, and that the judge of the district (_pagus_) in which it had been committed should kill the ravisher, and leave his body on the public road. He also enacted that the homicide should have the same fate. “It is just,” to quote the words of the law, “that he who knows how to kill should learn how to die.” Robbery, attested by seven witnesses, also involved capital punishment, and a judge convicted of having let a noble escape, underwent the same punishment that would have been inflicted on the criminal. The punishment, however, differed according to the station of the delinquent. Thus, for the non-observance of Sunday, a Salian paid a fine of fifteen sols, a Roman seven and a half sols, a slave three sols, or “his back paid the penalty for him.” At this early period some important changes in the barbaric code had been made: the sentence of death when once given had to be carried out, and no arrangements between the interested parties could avert it. A crime could no longer be condoned by the payment of money; robbery even, which was still leniently regarded at that time, and beyond the Rhine even honoured, was pitilessly punished by death. We therefore cannot have more striking testimony than this of the abridgment of the privileges of the Frankish aristocracy, and of the progress which the sovereign power was making towards absolute and uncontrolled authority over cases of life and death. By almost imperceptible steps Roman legislation became more humane and perfect, Christianity engrafted itself into barbarism, licentiousness was considered a crime, crime became an offence against the King and society, and it was in one sense by the King’s hand that the criminals received punishment.
From the time of the baptism of Clovis, the Church had much to do with the re-arrangement of the penal code; for instance, marriage with a sister-in-law, a mother-in-law, an aunt, or a niece, was forbidden; the travelling shows, nocturnal dances, public orgies, formerly permitted at feasts, were forbidden as being profane. In the time of Clotaire, the prelates sat as members of the supreme council, which was strictly speaking the highest court of the land, having the power of reversing the decisions of the judges of the lower courts. It pronounced sentence in conjunction with the King, and from these decisions there was no appeal. The nation had no longer a voice in the election of the magistrates, for the assemblies of _Malberg_ did not meet except on extraordinary occasions, and all government and judicial business was removed to the supreme and often capricious arbitration of the King and his council.
As long as the mayors of the palace of Austrasia, and of that of Burgundy, were only temporarily appointed, royal authority never wavered, and the sovereign remained supreme judge over his subjects. Suddenly, however, after the execution of Brunehaut, who was sacrificed to the hatred of the feudal lords, the mayoralty of the palace became a life appointment, and, in consequence, the person holding the office became possessed almost of supreme power, and the rightful sovereigns from that time practically became subject to the authority of the future usurpers of the crown. The edict of 615, to which the ecclesiastical and State nobility were parties, was in its laws and customs completely at variance with former edicts. In resuming their places in the French constitution, the Merovingian kings, who had been deprived both of influence and authority, were compelled by the Germanic institutions to return to the passive position which their predecessors had held in the forests of Germany, but they no longer had, like the latter, the prestige of military authority to enable them to keep the position of judges or arbitrators. The canons of the Council of Paris, which were confirmed by an edict of the King bearing date the 15th of the calends of November, 615, upset the political and legal system so firmly established in Europe since the fifth century. The royal power was shorn of some of its most valuable prerogatives, one of which was that of selecting the bishops; lay judges were forbidden to bring an ecclesiastic before the tribunals; and the treasury was prohibited from seizing intestate estates, with a view to increasing the rates and taxes; and it was decreed that Jews should not be employed in collecting the public taxes. By these canons the judges and other officers of State were made responsible, the benefices which had been withdrawn from the _leudes_ were restored, the King was forbidden from granting written orders (_praecepta_) for carrying off rich widows, young virgins, and nuns; and the penalty of death was ordered to be enforced against those who disobeyed the canons of the council. Thence sprung two new species of legislation, one ecclesiastical, the other civil, between which royalty, more and more curtailed of its authority, was compelled for many centuries to struggle.
Amongst the Germanic nations the right of justice was inherent to landed property from the earliest times, and this right had reference to things as well as to persons. It was the patronage (_patrocinium_) of the proprietor, and this patronage eventually gave origin to feudal jurisdictions and to lordly and customary rights in each domain. We may infer from this that under the two first dynasties laws were made by individuals, and that each lord, so to speak, made his own.
The right of jurisdiction seems to have been so inherent to the right of property, that a landed proprietor could always put an end to feuds and personal quarrels, could temporarily bring any lawsuit to a close, and, by issuing his _ban_, stop the course of the law in his own immediate neighbourhood–at least, within a given circumference of his residence. This was often done during any family festival, or any civil or religious public ceremony. On these occasions, whoever infringed the _ban_ of the master, was liable to be brought before his _court_, and to have to pay a fine. The lord who was too poor to create a court of sufficient power and importance obtained assistance from his lord paramount or relinquished the right of justice to him; whence originated the saying, “The fief is one thing, and justice another.”
The law of the Visigoths speaks of nobles holding local courts, similar to those of the official judge, count, or bishop. King Dagobert required the public and the private judges to act together. In the law of Lombardy landlords are mentioned who, in virtue of the double title of nobles and judges, assumed the right of protecting fugitive slaves taking shelter in their domains. By an article of the Salie law, the noble is made to answer for his vassal before the court of the count. We must hence conclude that the landlord’s judgment was exercised indiscriminately on the serfs, the colons, and the vassals, and a statute of 855 places under his authority even the freemen who resided with other persons.
From these various sources we discover a curious fact, which has hitherto remained unnoticed by historians–namely, that there existed an intermediate legislation between the official court of the count and his subordinates and the private courts, which was a kind of court of arbitration exercised by the neighbours (_vicini_) without the assistance of the judges of the county, and this was invested with a sort of authority which rendered its decisions binding.
[Illustration: Fig. 297.–The Emperor Charlemagne holding in one hand the Globe and in the other the Sword.–After a Miniature in the Registers of the University of Paris (Archives of the Minister of Public Instruction of the University). The Motto, _In scelus exurgo, sceleris discrimina purgo, _ is written on a Scroll round the Sword.]
Private courts, however, were limited in their power. They were neither absolutely independent, nor supreme and without appeal. All conducted their business much in the same way as the high, middle, and lower courts of the Middle Ages; and above all these authorities towered the King’s jurisdiction. The usurpation of ecclesiastical bishops and abbots–who, having become temporal lords, assumed a domestic jurisdiction–was curtailed by the authority of the counts, and they were even more obliged to give way before that of the _missi dominici_, or the official delegates of the monarch. Charles the Bald, notwithstanding his enormous concessions to feudalism and to the Church, never gave up his right of final appeal.
During the whole of the Merovingian epoch, the _mahl_ (_mallus_), the general and regular assembly of the nation, was held in the month of March. Persons of every class met there clad in armour; political, commercial, and judicial interests were discussed under the presidency of the monarch; but this did not prevent other special assemblies of the King’s court (_curia regalis_) being held on urgent occasions. This court formed a parliament (_parlamentum_), which at first was exclusively military, but from the time of Clovis was composed of Franks, Burgundians, Gallo-Romans, as well as of feudal lords and ecclesiastics. As, by degrees, the feudal System became organized, the convocation of national assemblies became more necessary, and the administration of justice more complicated. Charlemagne decided that two _mahls_ should be held annually, one in the month of May, the other in the autumn, and, in addition, that in each county two annual _plaids_ should meet independently of any special _mahls_ and _plaids_ which it should please him to convoke. In 788, the emperor found it necessary to call three general _plaids_, and, besides these, he was pleased to summon his great vassals, both clerical and lay, to the four principal feasts of the year. It may be asserted that the idea of royalty being the central authority in matters of common law dates from the reign of Charlemagne (Fig. 297).
The authority of royalty based on law took such deep root from that time forth, that it maintained itself erect, notwithstanding the weakness of the successors of the great Charles, and the repeated infractions of it by the Church and the great vassals of the crown (Fig. 298).
[Illustration: Fig. 298.–Carlovingian King in his Palace personifying Wisdom appealing to the whole Human Race.–After a Miniature in a Manuscript of the Ninth Century in the Burgundian Library of Brussels, from a Drawing by Count Horace de Vielcastel.]
The authoritative and responsible action of a tribunal which represented society (Fig. 299) thus took the place of the unchecked animosity of private feuds and family quarrels, which were often avenged by the use of the gibbet, a monument to be found erected at almost every corner. Not unfrequently, in those early times, the unchecked passions of a chief of a party would be the only reason for inflicting a penalty; often such a person would constitute himself sole judge, and, without the advice of any one, he would pass sentence, and even, with his own sword or any other available instrument, he would act as his own executioner. The tribunal thus formed denounced duelling, the pitiless warfare between man and man, and between family and family, and its first care was to protect, not each individual man’s life, which was impossible in those days of blind barbarism, but at least his dwelling. Imperceptibly, the sanctuary of a man’s house extended, first to towns of refuge, and then to certain public places, such as the church, the _mahlum_, or place of national assemblies, the market, the tavern, &c. It was next required that the accused, whether guilty or not, should remain unharmed from the time of the crime being committed until the day on which judgment was passed.
[Illustration: Fig. 299.–The Court of the Nobles.–Fac-simile of a Miniature in an old Poetical Romance of Chivalry, Manuscript of the Thirteenth Century, in the Library of the Arsenal of Paris.]
This right of revenge, besides being thus circumscribed as to locality, was also subject to certain rules as to time. Sunday and the principal feasts of the year, such as Advent, Christmas week, and from that time to the Epiphany, from the Ascension to the Day of Pentecost, certain vigils, &c., were all occasions upon which the right of revenge could not be exercised. “The power of the King,” says a clever and learned writer, “partook to a certain degree of that of God and of the Saints; it was his province to calm human passions; by the moral power of his seal and his hand he extended peace over all the great lines of communication, through the forests, along the principal rivers, the highways and the byways, &c. The _Treve du Dieu_ in 1035, was the logical application of these humane principles.”
We must not suppose that justice in those days was dispensed without formalities, and that there were no regular intervals between the various steps to be gone through before final judgment was given, and in consequence of which some guarantee was afforded that the decisions arrived at were carefully considered. No one was tried without having been previously summoned to appear before the tribunal. Under the Carlovingians, as in previous times, the periods when judicial courts were held were regulated by the moon. Preference was given to the day on which it entered the first quarter, or during the full moon; the summonses were returnable by moons or quarter moons–that is, every seventh day. The summons was issued four times, after which, if the accused did not appear, he lost the right of counterplea, or was nonsuited. The Salic law allowed but two summonses before a count, which had to be issued at an interval of forty nights the one from the other. The third, which summoned the accused before the King, was issued fourteen nights later, and if he had not put in an appearance before sunset on the fourteenth day, he was placed _hors de sa parole_, his goods were confiscated, and he forfeited the privilege of any kind of refuge.
Among the Visigoths justice was equally absolute from the count to the tithe-gatherer. Each magistrate had his tribunal and his special jurisdiction. These judges called to their assistance assessors or colleagues, either _rachimbourgs_, who were selected from freemen; or provosts, or _echevins_ (_scabini_), whose appointment was of an official and permanent character. The scabins created by Charlemagne were the first elected magistrates. They numbered seven for each bench. They alone prepared the cases and arranged as to the sentence. The count or his delegate alone presided at the tribunal, and pronounced the judgment. Every vassal enjoyed the right of appeal to the sovereign, who, with his court, alone decided the quarrels between ecclesiastics and nobles, and between private individuals who were specially under the royal protection. Criminal business was specially referred to the sovereign, the _missi_, or the Count Palatine. Final appeal lay with the Count Palatine in all cases in which the public peace was endangered, such as in revolts or in armed encounters.
As early as the time of the invasion, the Franks, Bavarians, and Visigoths, when investigating cases, began by an inquiry, and, previously to having recourse to trials before a judge, they examined witnesses on oath. Then, he who swore to the matter was believed, and acquitted accordingly. This system was no doubt flattering to human veracity, but, unfortunately, it gave rise to abuses; which it was thought would be avoided by calling the family and friends of the accused to take an oath, and it was then administered by requiring them to place their hands on the crucifix, on some relics, or on the consecrated Host. These witnesses, who were called _conjuratores_, came to attest before the judges not the fact itself, but the veracity of the person who invoked their testimony.
[Illustration: Fig. 300.–The Judicial Duel. The Plaintiff opening his Case before the Judge.–Fac-simile of a Miniature in the “Ceremonies des Gages des Batailles,” Manuscript of the Fifteenth Century in the National Library of Paris.]
The number and respectability of the _conjuratores_ varied according to the importance of the case in dispute. Gregory of Tours relates, that King Gontran being suspicious as to the legitimacy of the child who afterwards became Clotaire II., his mother, Fredegonde, called in the impartial testimony of certain nobles. These, to the number of three hundred, with three bishops at their head (_tribus episcopis et trecentis viris optimis_), swore, or, as we say, made an affidavit, and the queen was declared innocent.
The laws of the Burgundians and of the Anglians were more severe than those of the Germanic race, for they granted to the disputants trial by combat. After having employed the ordeal of red-hot iron, and of scalding water, the Franks adopted the judicial duel (Fig. 300). This was imposed first upon the disputing parties, then on the witnesses, and sometimes even on the judges themselves. Dating from the reign of the Emperor Otho the Great in 967, the judicial duel, which had been at first restricted to the most serious cases, was had recourse to in almost all suits that were brought before the courts. Neither women, old men, children, nor infirm persons were exempted. When a person could not himself fight he had to provide a champion, whose sole business was to take in hand the quarrels of others.
[Illustration: Fig. 301.–Judicial Duel.–Combat of a Knight with a Dog.–Fac-simile of a Miniature in the Romance of “Macaire,” of the Thirteenth Century (Library of the Arsenal of Paris).]
Ecclesiastics were obliged, in the same maimer, to fight by deputy. The champion or substitute required, of course, to be paid beforehand. If the legend of the Dog of Montargis is to be believed, the judicial duel seems to have been resorted to even against an animal (Fig. 301).
In the twelfth century Europe was divided, so to speak, into two vast judicial zones: the one, Southern, Gallo-Roman, and Visigoth; the other, Northern and Western, half Germanic and half Scandinavian, Anglian, or Saxon. Christianity established common ties between these different legislations, and imperceptibly softened their native coarseness, although they retained the elements of their pagan and barbaric origin. Sentences were not as yet given in writing: they were entrusted to the memory of the judges who had issued them; and when a question or dispute arose between the interested parties as to the terms of the decision which had been pronounced, an inquiry was held, and the court issued a second decision, called a _recordatum_.
As long as the King’s court was a movable one, the King carried about with him the original text of the law in rolls (_rotuli_). It was in consequence of the seizure of a number of these by the English, during the reign of Philip Augustus in 1194, that the idea was suggested of preserving the text of all the laws as state archives, and of opening authentic registers of decisions in civil and criminal cases. As early as the time of Charles the Bald, the inconvenience was felt of the high court of the count being movable from place to place, and having no special locality where instructions might be given as to modes of procedure, for the hearing of witnesses, and for keeping the accused in custody, &c. A former statute provided for this probable difficulty, but there seems to be no proof that previous to the twelfth century any fixed courts of justice had been established. The Kings, and likewise the counts, held courts in the open air at the entrance to the palace (Fig. 302), or in some other public place–under a large tree, for instance, as St. Louis did in the wood of Vincennes.
M. Desmaze, in his valuable researches on the history of the Parliament of Paris, says–“In 1191, Philip Augustus, before starting for Palestine, established bailiwicks, which held their assizes once a month; during their sitting they heard all those who had complaints to make, and gave summary judgment. The bailiff’s assize was held at stated periods from time to time, and at a fixed place; it was composed of five judges, the King deciding the number and quality of the persons who were to take part in the deliberations of the court for each session. The royal court only sat when it pleased the King to order it; it accompanied the King wherever he went, so that it had no settled place of residence.”
Louis IX. ordered that the courts of the nobles should be consolidated with the King’s court, and succeeded in carrying out this reform. The bailiffs who were the direct delegates of the sovereign power, assumed an authority before which even the feudal lord was obliged to bend, because this authority was supported by the people, who were at that time organized in corporations, and these corporations were again bound together in communes. Under the bailiffs a system was developed, the principles of which more nearly resembled the Roman legislation than the right of custom, which it nevertheless respected, and the judicial trial by duel completely disappeared. Inquiries and appeals were much resorted to in all kinds of proceedings, and Louis IX. succeeded in controlling the power of ecclesiastical courts, which had been much abused in reference to excommunication. He also suppressed the arbitrary and ruinous confiscations which the nobles had unjustly made on their vassals.
[Illustration: Fig. 302.–The Palace as it was in the Sixteenth Century.–After an Engraving of that Period, National Library of Paris (Cabinet des Estampes).]
The edict of 1276 very clearly established the jurisdiction of parliaments and bailiwicks; it defined the important duties of the bailiffs, and at the same time specified the mode in which proceedings should be taken; it also regulated the duties of counsel, _maitres des requetes_, auditors, and advocates.
To the bailiwicks already in existence Louis IX. added the four great assizes of Vermandois, of Sens, of Saint-Pierre-le-Moustier, and of Macon, “to act as courts of final appeal from the judgment of the nobles.” Philippe le Bel went still further, for, in 1287, he invited “all those who possess temporal authority in the kingdom of France to appoint, for the purpose of exercising civil jurisdiction, a bailiff, a provost, and some serjeants, who were to be laymen, and not ecclesiastics, and if there should be ecclesiastics in the said offices, to remove them.” He ordered, besides, that all those who had cases pending before the court of the King and the secular judges of the kingdom should be furnished with lay attorneys; though the chapters, as well as the abbeys and convents, were allowed to be represented by canons. M. Desmaze adds, “This really amounted to excluding ecclesiastics from judicial offices, not only from the courts of the King, but also from those of the nobles, and from every place in which any temporal jurisdiction existed.”
At the time of his accession, Hugh Capet was Count of Paris, and as such was invested with judicial powers, which he resigned in 987, on the understanding that his county of Paris, after the decease of the male heirs of his brother Eudes, should return to the crown. In 1032, a new magistrate was created, called the Provost of Paris, whose duty it was to give assistance to the bourgeois in arresting persons for debt. This functionary combined in his own person the financial and political chief of the capital, he was also the head of the nobility of the county, he was independent of the governor, and was placed above the bailiffs and seneschals. He was the senior of the urban magistracy and police, leader of the municipal troops, and, in a word, the prefect (_praefectus urbis_), as he was called under the Emperor Aurelian, or the first magistrate of Lutetia, as he was still called under Clotaire in 663. Assessors were associated with the provost, and together they formed a tribunal, which was afterwards known as the Chatelet (Fig. 303), because they assembled in that fortress, the building of which is attributed to Julius Caesar. The functions of this tribunal did not differ much from those of the royal _chatellenies:_ its jurisdiction embraced quarrels between individuals, assaults, revolts, disputes between the universities and the students, and improper conduct generally (_ribaudailles_), in consequence of which the provost acquired the popular surname of _Roi des Ribauds_. At first his judgment was final, but very soon those under his jurisdiction were allowed to appeal to Parliament, and that court was obliged to have certain cases sent back for judgment from the Chatelet. This was, however, done only in a few very important instances, notwithstanding frequent appeals being made to its supreme arbitration.
[Illustration: Fig. 303.–The Great Chatelet of Paris.–Principal Front opposite the Pont-au-Change.–Fac-simile of an Engraving on Copper by Merian, in the “Topographia Galliae” of Zeller.]
In addition to the courts of the counts and bailiffs established in certain of the large towns, aldermanic or magisterial courts existed, which rather resembled the Chatelet of Paris. Thus the _capiloulat_ of Toulouse, the senior alderman of Metz, and the burgomaster of Strasburg and Brussels, possessed in each of these towns a tribunal, which judged without appeal, and united the several functions of a civil, criminal, and simple police court. Several places in the north of France had provosts who held courts whose duties were various, but who were principally charged with the maintenance of public order, and with suppressing disputes and conflicts arising from the privileges granted to the trade corporations, whose importance, especially in Flanders, had much increased since the twelfth century.
“On his return from abroad, Louis IX. took his seat upon the bench, and administered justice, by the side of the good provost of Paris.” This provost was no other than the learned Estienne Boileau, out of respect to whom the provostship was declared a _charge de magistrature_. The increase of business which fell to the provost’s office, especially after the boundaries of Paris were extended by Philip Augustus, caused him to be released from the duty of collecting the public taxes. He was authorised to furnish himself with competent assistants, who were employed with matters of minor detail, and he was allowed the assistance of _juges auditeurs_. “We order that they shall be eight in number,” says an edict of Philippe le Bel, of February, 1324, “four of them being ecclesiastics and four laymen, and that they shall assemble at the Chatelet two days in the week, to take into consideration the suits and causes in concert with our provost….” In 1343, the provost’s court was composed of one King’s attorney, one civil commissioner, two King’s counsel, eight councillors, and one criminal commissioner, whose sittings took place daily at the Chatelet.
From the year 1340 this tribunal had to adjudicate in reference to all the affairs of the university, and from the 6th of October, 1380, to all those of the salt-fish market, which were no less numerous, so that its importance increased considerably. Unfortunately, numerous abuses were introduced into this municipal jurisdiction. In 1313 and 1320, the officers of the Chatelet were suspended, on account of the extortions which they were guilty of, and the King ordered an inquiry to be made into the matter. The provost and two councillors of the Parliament sat upon it, and Philip de Valois, adopting its decisions, prescribed fresh statutes, which were naturally framed in such a way as to show the distrust in which the Chatelet was then held. To these the officers of the Chatelet promised on oath to submit. The ignorance and immorality of the lay officers, who had been substituted for the clerical, caused much disturbance. Parliament authorised two of its principal members to examine the officers of the Chatelet. Twenty years later, on the receipt of fresh complaints, Parliament decided that three qualified councillors, chosen from its own body, should proceed with the King’s attorney to the Chatelet, so as to reform the abuses and informalities of that court.
[Illustration: Fig. 304.–The King’s Court, or Grand Council.–Fac-simile of a Miniature in the “Chroniques” of Froissart, Manuscript of the Fifteenth Century (formerly in the possession of Charles V), in the Library of the Arsenal, Paris.]
In the time of Philippe le Bel there existed in reality but one Parliament, and that was the _King’s Court_. Its action was at once political, administrative, financial, and judicial, and was necessarily, therefore, of a most complicated character. Philippe le Bel made it exclusively a judicial court, defined the territorial limit of its power, and gave it as a judicial body privileges tending to strengthen its independence and to raise its dignity. He assigned political functions to the Great Council (_Conseil d’Etat_); financial matters to the chamber of accounts; and the hearing of cases of heresy, wills, legacies, and dowries to the prelates. But in opposition to the wise edict of 1295, he determined that Jews should be excluded from Parliament, and prelates from the palace of justice; by which latter proceeding he was depriving justice of the abilities of the most worthy representatives of the Gallican Church. But Philippe le Bel and his successors, while incessantly quarrelling either with the aristocracy or with the clergy, wanted the great judicial bodies which issued the edicts, and the urban or municipal magistrates–which, being subject to re-election, were principally recruited from among the bourgeois–to be a common centre of opposition to any attempt at usurpation of power, whether on the part of the Church, the nobility, or the crown.
The Great Days of Troyes (_dies magni Trecenses_), the assizes of the ancient counts of Champagne, and the exchequer of Normandy, were also organized by Philipe le Bel; and, further, he authorised the maintenance of a Parliament at Toulouse, a court which he solemnly opened in person on the 10th of January, 1302. In times of war the Parliament of Paris sat once a year, in times of peace twice. There were, according to circumstances, during the year two, three, or four sittings of the exchequer of Normandy, and two of the Great Days of Troyes, tribunals which were annexed to the Parliament of Paris, and generally presided over by one of its delegates, and sometimes even by the supreme head of that high court. At the King’s council (Fig. 304) it was decided whether a case should be reserved for the Parliament of Paris, or passed on either to the exchequer or to the Great Days of Troyes.
As that advanced reformer, Philippe le Bel, died before the institutions he had established had taken root, for many years, even down to the time of Louis XI., a continual conflict for supremacy was waged between the Parliament of Paris and the various courts of the kingdom–between the counts and the Parliament, and between the latter and the King, which, without lessening the dignity of the crown, gradually tended to increase the influence which the judges possessed. Immediately on the accession of Louis le Hutin, in 1314, a reaction commenced–the higher clergy re-entered Parliament; but Philippe le Long took care that the laity should be in a majority, and did not allow that in his council of State the titled councillors should be more numerous than the lawyers. The latter succeeded in completely carrying the day on account of the services they rendered, and the influence which their knowledge of the laws of the country gave them. As for centuries the sword had ruled the gown, so, since the emancipation of the bourgeois, the lawyers had become masters of the administrative and judicial world; and, notwithstanding the fact that they were still kept in a somewhat inferior position to the peers and barons, their opinion alone predominated, and their decision frequently at once settled the most important questions.
An edict issued at Val Notre-Dame on the 11th of March, 1344, increased the number of members of Parliament, which from that time consisted of three presidents, fifteen clerical councillors, fifteen lay councillors, twenty-four clergymen and sixteen laymen of the Court of Inquiry, and five clergymen and sixteen laymen of the Court of Petitions. The King filled up the vacant seats on the recommendation of the Chancellor and of the Parliament. The reporters were enjoined to write the decisions and sentences which were given by the court “in large letters, and far apart, so that they might be more easily read.” The duties of police in the courts, the keeping of the doors, and the internal arrangements generally for those attending the courts and the Parliament, were entrusted to the ushers, “who divided among themselves the gratuities which were given them by virtue of their office.” Before an advocate was admitted to plead he was required to take oath and to be inscribed on the register.
The Parliament as then established was somewhat similar in its character to that of the old national representative government under the Germans and Franks. For centuries it protected the King against the undue interference of the spiritual power, it defended the people against despotism, but it often lacked independence and political wisdom, and it was not always remarkable for its correct appreciation of men and things. This tribunal, although supreme over all public affairs, sometimes wavered before the threats of a minister or of a court favourite, succumbed to the influence of intrigues, and adapted itself to the prejudices of the times. We see it, in moments of error and of blindness, both condemning eminent statesmen and leading citizens, such as Jacques Coeur and Robertet, and handing over to the executioner distinguished men of learning and science in advance of the times in which they lived, because they were falsely accused of witchcraft, and also doing the same towards unfortunate maniacs who fancied they had dealings with the devil.
[Illustration: Fig. 305.–Trial of the Constable de Bourbon before the Peers of France (1523).–From an Engraving in “La Monarchie Francoise” of Montfaucon.]
In the fourteenth and fifteenth centuries all the members of Parliament formed part of the council of State, which was divided into the Smaller Council and the Greater Council. The Greater Council only assembled in cases of urgency and for extraordinary and very important purposes, the Smaller Council assembled every month, and its decisions were registered. From this arose the custom of making a similar registration in Parliament, confirming the decisions after they had been formally arrived at. The most ancient edict placed on the register of the Parliament of Paris dates from the year 1334, and is of a very important character. It concerns a question of royal authority, and decides that in spiritual matters the right of supremacy does not belong more to the Pope than to the King. Consequently Philippe de Valois ordered “his friends and vassals who shall attend the next Parliament and the keepers of the accounts, that for the perpetual record of so memorable a decision, it shall be registered in the Chambers of Parliament and kept for reference in the Treasury of the Charters.” From that time “cases of complaint and other matters relating to benefices have no longer been discussed before the ecclesiastical judges, but before Parliament or some other secular court.”
During the captivity of King John in England, royal authority having considerably declined, the powers of Parliament and other bodies of the magistracy so increased, that under Charles VI. the Parliament of Paris was bold enough to assert that a royal edict should not become law until it had been registered in Parliament. This bold and certainly novel proceeding the kings nevertheless did not altogether oppose, as they foresaw that the time would come when it might afford them the means of repudiating a treaty extorted from them under difficult circumstances (Fig. 306).
The close connection which existed between the various Parliaments and their political functions–for they had occasion incessantly to interfere between the acts of the government and the respective pretensions of the provinces or of the three orders–naturally increased the importance of this supreme magistracy. More than once the kings had cause to repent having rendered it so powerful, and this was the case especially with the Parliament of Paris. In this difficulty it is interesting to note how the kings acted. They imperceptibly curtailed the various powers of the other courts of justice, they circumscribed the power of the Parliament of Paris, and proportionately enlarged the jurisdiction of the great bailiwicks, as also that of the Chatelet. The provost of Paris was an auxiliary as well as a support to the royal power, which nevertheless held him in its grasp. The Chatelet was also a centre of action and of strength, which counteracted in certain cases parliamentary opposition. Thence arose the most implacable rivalries and dissensions between these various parties.
[Illustration: Fig. 306.–Promulgation of an Edict.–Fac-simile of a Miniature in “Anciennetes des Juifs,” (French Translation from Josephus), Manuscript of the Fifteenth Century, executed for the Duke of Burgundy (Library of the Arsenal of Paris.)]
It is curious to notice with what ingenuity and how readily Parliament took advantage of the most trifling circumstances or of charges based upon the very slightest grounds to summon the officers of the Chatelet before its bar on suspicion of prevarication or of outrages against religion, morals, or the laws. Often were these officers and the provost himself summoned to appear and make _amende honourable_ before the assembly, notwithstanding which they retained their offices. More than once an officer of the Chatelet was condemned to death and executed, but the King always annulled that part of the sentence which had reference to the confiscation of the goods of the condemned, thus proving that in reality the condemnation had been unjust, although for grave reasons the royal authority had been unable to save the victim from the avenging power of Parliament. Hugues Aubriot, the provost, was thus condemned to imprisonment for life on the most trivial grounds, and he would have undergone capital punishment if Charles V. had abandoned him at the time of his trial. During the English occupation, in the disastrous reign of Charles VI., the Chatelet of Paris, which took part with the people, gave proof of extraordinary energy and of great force of character. The blood of many of its members was shed on the scaffold, and this circumstance must ever remain a reproach to the judges and to those who executed their cruel sentences, and a lasting crown of glory to the martyrs themselves.
An edict of King John, issued after his return from London in 1363, a short time before his death, clearly defined the duties of Parliament. They were to try cases which concerned peers of France, and such prelates, chapters, barons, corporations, and councils as had the privilege of appealing to the supreme court; and to hear cases relating to estates, and appeals from the provost of Paris, the bailiffs, seneschals, and other judges (Fig. 307). It disregarded minor matters, but took cognizance of all judicial debates which concerned religion, the King, or the State. We must remark here that advocates were only allowed to speak twice in the same cause, and that they were subjected to fine, or at least to remonstrance, if they were tedious or indulged in needless repetition in their replies, and especially if they did not keep carefully to the facts of the case. After pleading they were permitted to give a summary in writing of “the principal points of importance as well as their clients’ grounds of defence.” Charles V. confirmed these orders and regulations with respect to advocates, and added others which were no less important, among which we find a provision for giving “legal assistance to poor and destitute persons who go to law.” These regulations of Charles also limited the time in which officers of justice were to get through their business under a certain penalty; they also proclaimed that the King should no longer hear minor causes, and that, whatever might be the rules of the court, they forbad the presidents from deferring their judgment or from retarding the regular course of justice. Charles VI., before he became insane, contributed no less than his father to the establishment on a better footing of the supreme court of the kingdom, as well as that of the Chatelet and the bailiwicks.
[Illustration: Fig. 307.–Bailiwick.–Fac-simile of a Woodcut in the “Cosmographie Universelle” of Munster: in folio, Basle, 1552.]
In the fifteenth century, the Parliament of Paris was so organized as not to require material change till 1789. There were noble, clerical, and lay councillors, honorary members, and _maitres de requete_, only four of whom sat; a first president, who was supreme head of the Parliament, a master of the great chamber of pleas, and three presidents of the chamber, all of whom were nominated for life. There were fifteen masters (_maistres_) or clerical councillors, and fifteen who were laymen, and these were annually approved by the King on the opening of the session. An attorney-general, several advocates-general, and deputies, who formed a committee or college, constituted the active part of this court, round which were grouped consulting advocates (_consiliarii_), pleading advocates (_proponentes_), advocates who were mere listeners (_audientes_), ushers and serjeants, whose chief, on his appointment, became a member of the nobility.
The official costume of the first president resembled that of the ancient barons and knights. He wore a scarlet gown lined with ermine, and a black silk cap ornamented with tassels. In winter he wore a scarlet mantle lined with ermine over his gown, on which his crest was worked on a shield. This mantle was fastened to the left shoulder by three gold cords, in order to leave the sword-side free, because the ancient knights and barons always sat in court wearing their swords. Amongst the archives of the mayoralty of London, we find in the “account of the entry of Henry V., King of England, into Paris” (on the 1st of December, 1420), that “the first president was in royal dress (_estoit en habit roial_), the first usher preceding him, and wearing a fur cap; the church dignitaries wore blue robes and hoods, and all the others in the procession scarlet robes and hoods.” This imposing dress, in perfect harmony with the dignity of the office of those who wore them, degenerated towards the fifteenth century. So much was this the case, that an order of Francis I. forbad the judges from wearing pink “slashed hose” or other “rakish garments.”
In the early times of monarchy, the judicial functions were performed gratuitously; but it was the custom to give presents to the judges, consisting of sweetmeats, spices, sugar-plums, and preserves, until at a subsequent period, 1498, when, as the judges “preferred money to sweetmeats,” says the Chancellor Etienne Pasquier, the money value of the spices, &c., was fixed by law and made compulsory. In the bills of expenses preserved among the national archives, we find that the first president of the Parliament of Paris received a thousand _livres parisis_ annually, representing upwards of one hundred thousand francs at the present rate of money; the three presidents of the chamber five hundred livres, equal to fifty thousand francs; and the other nobles of the said Parliament five _sols parisis_, or six sols three deniers–about twenty-five francs–per day for the days only on which they sat. They received, besides, two mantles annually. The prelates, princes, and barons who were chosen by the King received no salaries–_ils ne prennent nuls guaiges_ (law of 27th January, 1367). The seneschals and high bailiffs, like the presidents of the chambers, received five hundred livres–fifty thousand francs. They and the bailiffs of inferior rank were expressly forbidden from receiving money or fees from the parties in any suit, but they were allowed to accept on one day refreshment and bottles of wine. The salaries were paid monthly; but this was not always done regularly; sometimes the King was to blame for this, and sometimes it was owing to the ill-nature of the chiefs of finance, or of the receivers and payers. When the blame rested with the King, the Parliament humbly remonstrated or closed the court. When, on the contrary, an officer of finance did not pay the salaries, Parliament sent him the bailiff’s usher, and put him under certain penalties until he had done so. The question of salaries was frequently arising. On the 9th of February, 1369, “the court having been requested to serve without any remuneration for one Parliament, on the understanding that the King would make up for it another time, the nobles of the court replied, after private deliberation, that they were ready to do the King’s pleasure, but could not do so properly without receiving their salaries” (Register of the Parliament of Paris).
At the commencement of the fifteenth century, the scale of remuneration was not increased. In 1411 it was raised for the whole Parliament to twenty-five thousand livres, which, calculated according to the present rate, amounted to nearly a million francs. In consequence of financial difficulties and the general distress, the unpleasant question in reference to claims for payment of salaries was renewed, with threats that the course of justice would be interrupted if they were not paid or not promised. On the 2nd of October, 1419, two councillors and one usher were sent to the house of one of the chiefs of finance, with orders to demand payment of the salaries of the court. In October, 1430, the government owed the magistrates two years of arrears. After useless appeals to the Regent, and to the Bishop of Therouanne, the then Chancellor of France, the Parliament sent two of its members to the King at Rouen, who obtained, after much difficulty, “one month’s pay, on the understanding that the Parliament should hold its sittings in the month of April.” In the month of July, 1431, there was another deputation to the King, “in order to lay before him the necessities of the court, and that it had for some time been prorogued, and was still prorogued, on account of the non-payment of salaries.” After two months of repeated remonstrance, the deputies only bringing back promises, the court assumed a menacing aspect; and on the 11th of January, 1437, it pointed out to the chancellor the evil which would arise if Parliament ceased to hold its sittings; and this time the chancellor announced that the salaries would be paid, though six months passed without any resuit or any practical step being taken in the matter. This state of affairs grew worse until the year 1443, when the King was obliged to plead with the Parliament in the character of an insolvent debtor, and, in order to obtain remission of part of his debt to the members, to guarantee to them a part of the salt duties.
Charles VII, after having reconquered his states, hastened to restore order. He first occupied himself with the System of justice, the Parliament, the Chatelet, and the bailiwicks; and in April, 1453, in concert with the princes, the prelates, the council of State, the judges, and others in authority, he framed a general law, in one hundred and twenty-five articles, which was considered as the great charter of Parliament (Fig. 308). According to the terms of these articles, “the councillors are to sit after dinner, to get through the minor causes. Prisoners are to be examined without delay, and to hold no communication with any one, unless by special permission. The cases are to be carefully gone through in their proper order; for courts are instructed to do justice as promptly for the poor as for the rich, as it is a greater hardship for the poor to be kept waiting than the rich.” The fees of attorneys were taxed and reduced in amount. Those of advocates were reduced “to such moderation and fairness, that there should be no cause for complaint.” The judgments by commissary were forbidden. The bailiffs and seneschals were directed to reside within their districts. The councillors were ordered to abstain from all communication with the parties in private, and consultations between themselves were to be held in secret. The judgments given in lawsuits were inscribed in a register, and submitted every two months to the presidents, who, if necessary, called the reporters to account for any neglect of duty. The reporter was ordered to draw attention to any point of difficulty arising in a suit, and the execution of sentences or judgments was entrusted to the ushers of the court.
In 1454 the King, in consequence of a difficulty in paying the regular instalments of the usual salaries of the Parliament, created “after-dinner fees” (_des gages d’apres dinees_) of five sols parisis–more than ten francs of our money–per day, payable to those councillors who should hold a second hearing. Matters did not improve much, however; nothing seemed to proceed satisfactorily, and members of Parliament, deprived of their salaries, were compelled to contract a loan, in order to commence proceedings against the treasury for the non-payment of the amount due to them. In 1493, the annual salaries of Parliament were raised to the sum of 40,630 livres, equal to about 1,100,000 francs.
[Illustration: Fig. 308.–Supreme Court, presided over by the King, who is in the act of issuing a Decree which is being registered by the Usher.–Fac-simile of a Miniature in Camareu of the “Information des Rois,” Manuscript of the Fifteenth Century, in the Library of the Arsenal of Paris.]
The first president received 4 livres, 22 solis parisis–about 140 francs–per day; a clerical councillor 25 sols parisis–about 40 francs–and a lay councillor 20 sols–about 32 francs. This was an increase of a fifth on the preceding year. Charles VIII., in thus improving the remuneration of the members of the first court of the kingdom, reminded them of their duties, which had been too long neglected; he told them “that of all the cardinal virtues justice was the most noble and most important;” and he pointed out to them the line of conduct they were to pursue. The councillors were to be present daily in their respective chambers, from St. Martin’s day to Easter, before seven o’clock in the morning; and from Easter to the closing of Parliament, immediately after six o’clock, without intermission, under penalty of punishment. Strict silence was enforced upon them during the debates; and they were forbidden to occupy themselves with anything which did not concern the case under discussion. Amidst a mass of other points upon which directions are given, we notice the following: the necessity of keeping secret the matters in course of deliberation; the prohibition to councillors from receiving, either directly or indirectly, anything in the shape of a douceur from the parties in any suit; and the forbidding all attorneys from receiving any bribe or claiming more than the actual expenses of a journey and other just charges.
The great charter of the Parliament, promulgated in April, 1453, was thus amended, confirmed, and completed, by this code of Charles VIII., with a wisdom which cannot be too highly extolled.
The magistrature of the supreme courts had been less favoured during the preceding reign. Louis XI., that cautious and crafty reformer, after having forbidden ecclesiastical judges to examine cases referring to the revenues of vacant benefices, remodelled the secular courts, but he ruthlessly destroyed anything which offended him personally. For this reason, as he himself said, he limited the power of the Parliaments of Paris and Toulouse, by establishing, to their prejudice, several other courts of justice, and by favouring the Chatelet, where he was sure always to find those who would act with him against the aristocracy. The Parliament would not give way willingly, nor without the most determined opposition. It was obliged, however, at last to succumb, and to pass certain edicts which were most repugnant to it. On the death of Louis XI., however, it took its revenge, and called those who had been his favourites and principal agents to answer a criminal charge, for no other reason than that they had exposed themselves to the resentment of the supreme court.
The Chatelet, in its judicial functions, was inferior to the Parliament, nevertheless it acquired, through its provost, who represented the bourgeois of Paris, considerable importance in the eyes of the supreme court. In fact, for two centuries the provost held the privilege of ruling the capital, both politically and financially, of commanding the citizen militia, and of being chief magistrate of the city. In the court of audiences, a canopy was erected, under which he sat, a distinction which no other magistrate enjoyed, and which appears to have been exclusively granted to him because he sat in the place of _Monsieur Saint Loys_ (Saint Louis), _dispensing justice to the good people of the City of Paris_. When the provost was installed, he was solemnly escorted, wearing his cap, to the great chamber of Parliament, accompanied by four councillors.
[Illustration: Fig. 309.–The Court of a Baron.–Fac-simile of a Woodcut in the “Cosmographie Universelle” of Munster: in folio, Basle, 1552.]
After the ceremony of installation he gave his horse to the president, who had come to receive him. His dress consisted of a short robe, with mantle, collar turned down, sword, and hat with feathers; he also carried a staff of office, profusely ornamented with silver. Thus attired he attended Parliament, and assisted at the levees of the sovereign, where he took up his position on the lowest step of the throne, below the great Chamberlain. Every day, excepting at the vintage time, he was required to be present at the Chatelet, either personally or by deputy, punctually at nine in the morning. There he received the list of the prisoners who had been arrested the day before; after that he visited the prisons, settled business of various kinds, and then inspected the town. His jurisdiction extended to several courts, which were presided over by eight deputies or judges appointed by him, and who were created officers of the Chatelet by Louis XII. in 1498. Subsequently, these received their appointments direct from the King. Two auditing judges, one king’s attorney, one registrar, and some bailiffs, completed the provost’s staff.
[Illustration: Fig. 310.–Sergeants-at-Arms of the Fourteenth Century, carved in Stone.–From the Church of St. Catherine du Val des Ecoliers, in Paris.]
The bailiffs at the Chatelet were divided into five classes: the _king’s sergeant-at-arms,_ the _sergeants de la douzaine_, the _sergeants of the mace_, or _foot sergeants,_ the _sergeants fieffes_, and the _mounted sergeants_. The establishment of these officers dated from the beginning of the fourteenth century, and they were originally appointed by the provost, but afterwards by the King himself. The King’s sergeants-at-arms (Fig. 310) formed his body-guard; they were not under the jurisdiction of the high constable, but of the ordinary judges, which proves that they were in civil employ. The sergeants _de la douzaine_ were twelve in number, as their name implies, all of whom were in the service of the provost; the foot sergeants, who were civilians, were gradually increased to the number of two hundred and twenty as early as the middle of the fifteenth century. They acted only in the interior of the capital, and guarded the city, the suburbs, and the surrounding districts, whereas the mounted sergeants had “to watch over the safety of the rural parishes, and to act throughout the whole extent of the provost’s jurisdiction, and of that of the viscount of Paris.”
In the midst of the changes of the Middle Ages, especially after the communes became free, all those kings who felt the importance of a strict system of justice, particularly St. Louis, Philippe le Bel, and Charles VIII., had seen the necessity of compiling a record of local customs. An edict of 1453 orders that “the custom shall be registered in writing, so as to be examined by the members of the great council of the Parliament.” Nevertheless, this important work was never properly carried out, and to Louis XII. is due the honour of introducing a customary or usage law, and at the same time of correcting the various modes of procedure, upon which customs and usages had been based, and which had become singularly antiquated since the edict of 1302.
No monarch showed more favour to Parliament than Louis XII. During his reign of seventeen years we never find complaints from the magistracy for not having been paid punctually. But in contrast with this, on the accession of Francis I., the court complained of not having been paid its first quarter’s salary. From that moment claims were perpetually being made; there were continually delays, or absolute refusals; the members were expecting “remuneration for their services, in order absolutely to enable them to support their families and households.” We can thus judge of the state of the various minor courts, which, being less powerful than the supreme tribunals, and especially than that of Paris, were quite unable to get their murmurings even listened to by the proper authorities. This sad state of things continued, and, in fact, grew worse, until the assembly of the League, when Mayenne, the chief of the leaguers, in order to gratify the Parliament, promised to double the salaries, although he was unable to fulfil his promise.
[Illustration: Fig. 311.–Inferior Court in the Great Bailiwick. Adoption of Orphan Children.–Fac-simile of a Woodcut in J. Damhoudere’s “Refuge et Garand des Pupilles, Orphelins:” Antwerp, J. Bellere, 1557.]
Towards the end of the sixteenth century the highest French tribunal was represented by nine superior courts–namely, the Parliament of Bordeaux, created on the 9th of June, 1642; the Parliament of Brittany, which replaced the ancient _Grands-Jours,_ in March, 1553, and sat alternately at Nantes and at Rennes; the Parliament of the Dauphine, established at Grenoble in 1451 to replace the Delphinal Council; the Parliament of Burgundy, established at Dijon in 1477, which took the place of the _Grands-Jours_ at Beaune; the movable Parliament of Dombes, created in 1528, and consisting at the same time of a court of excise and a chamber of accounts; the Parliament of Normandy, established by Louis XII. in April, 1504, intended to replace the Exchequer of Rouen, and the ancient ducal council of the province; the Parliament of Provence, founded at Aix in July, 1501; the Parliament of Toulouse, created in 1301; and the Parliament of Paris, which took precedence of all the others, both on account of its origin, its antiquity, the extent of its jurisdiction, the number of its prerogatives, and the importance of its decrees. In 1551, Henry II. created, besides these, an inferior court in each bailiwick, the duties of which were to hear, on appeal, all matters in which sums of less than two hundred livres were involved (Fig. 311). There existed, besides, a branch of the _Grands-Jours,_ occasionally sitting at Poitiers, Bayeux, and at some other central towns, in order to suppress the excesses which at times arose from religious dissensions and political controversy.
The Parliament of Paris–or _Great French Parliament_, as it was called by Philip V. and Charles V., in edicts of the 17th of November, 1318, and of the 8th of October, 1371–was divided into four principal chambers: the Grand Chamber, the Chamber of Inquiry, the Criminal Chamber, and the Chamber of Appeal. It was composed of ordinary councillors, both clerical and lay; of honorary councillors, some of whom were ecclesiastics, and others members of the nobility; of masters of inquiry; and of a considerable number of officers of all ranks (Figs. 312 to 314). It had at times as many as twenty-four presidents, one hundred and eighty-two councillors, four knights of honour, four masters of records; a public prosecutor’s office was also attached, consisting of the king’s counsel, an attorney-general and deputies, thus forming an assembly of from fifteen to twenty persons, called a _college_. Amongst the inferior officers we may mention twenty-six ushers, four receivers-general of trust money, three commissioners for the receipt of goods which had been seized under distress, one treasurer and paymaster, three controllers, one physician, two surgeons, two apothecaries, one matron, one receiver of fines, one inspector of estates, several keepers of refreshment establishments, who resided within the precincts of the palace, sixty or eighty notaries, four or five hundred advocates, two hundred attorneys, besides registers and deputy registers. Down to the reign of Charles VI. (1380–1422) members of Parliament held their appointment by commissions granted by the King, and renewed eaeh session. From Charles VI. to Francis I. these appointments became royal charges; but from that time, owing to the office being so often prostituted for reward, it got more and more into disrepute.
[Illustration: Fig. 312.–Judge.–From a Drawing in “Proverbes, Adages, &c.,” Manuscript of the Fifteenth Century, in the Imperial Library of Paris.]
Louis XI. made the office of member of the Parliament of Paris a permanent one, and Francis I. continued this privilege. In 1580 the supreme magistracy poured 140,000,000 francs, which now would be worth fifteen or twenty times as much, into the State treasury, so as to enable members to sit permanently _sur les fleurs de lis_, and to obtain hereditary privileges. The hereditary transmission of office from father to son dealt a heavy blow at the popularity of the parliamentary body, which had already deeply suffered through shameful abuses, the enormity of the fees, the ignorance of some of the members, and the dissolute habits of many others.
[Illustration: Fig. 313.–Lawyer.–From the “Danse des Morts” of Basle, engraved by Merian: in 4to, Frankfort, 1596.]
[Illustration: Fig. 314.–Barrister.–From a Woodout in the “Danse Macabre:” Guyot’s edition, 1490.]
[Illustration: Fig. 315.–Assembly of the Provostship of the Merchants of Paris.–Fac-simile of a Woodcut in “Ordonnances Royaux de la Jurisdiction de la Prevote des Marchands et Eschevinage de la Ville de Paris:” in small folio, goth. edition of Paris, Jacques Nyverd, 1528.]
The Chatelet, on the contrary, was less involved in intrigue, less occupied with politics, and was daily engaged in adjudicating in cases of litigation, and thus it rendered innumerable services in promoting the public welfare, and maintained, and even increased, the respect which it had enjoyed from the commencement of its existence. In 1498, Louis XII. required that the provost should possess the title of doctor _in utroque jure_, and that his officers, whom he made to hold their appointments for life, should be chosen from amongst the most distinguished counsellors at law. This excellent arrangement bore its fruits. As early as 1510, the “Usages of the City, Provosty, and Viscounty of Paris,” were published _in extenso_, and were then received with much ceremony at a solemn audience held on the 8th of March in the episcopal palace, and were deposited among the archives of the Chatelet (Fig. 315).
The Parliament held a very different line of policy from that adopted by the Chatelet, which only took a political part in the religious troubles of Protestantism and the League with a view to serve and defend the cause of the people. In spite of its fits of personal animosity, and its rebellious freaks, Parliament remained almost invariably attached to the side of the King and the court. It always leaned to the absolute maintenance of things as they were, instead of following progress and changes which time necessitated. It was for severe measures, for intimidation more than for gentleness and toleration, and it yielded sooner or later to the injunctions and admonitions of the King, although, at the same time, it often disapproved the acts which it was asked to sanction.
[Illustration: Fig. 316.–Seal of King Chilperic, found in his Tomb at Tournay in 1654.]
Secret Tribunals.
The Old Man of the Mountain and his Followers in Syria.–The Castle of Alamond, Paradise of Assassins.–Charlemagne the Founder of Secret Tribunals amongst the Saxons.–The Holy Vehme.–Organization of the Tribunal of the _Terre Rouge_, and Modes adopted in its Procedures.–Condemnations and Execution of Sentences.–The Truth respecting the Free Judges of Westphalia.–Duration and Fall of the Vehmic Tribunal.–Council of Ten in Venice; its Code and Secret Decisions.–End of the Council of Ten.
During the Middle Ages, human life was generally held in small respect; various judicial institutions–if not altogether secret, at least more or less enveloped in mystery–were remarkable for being founded on the monstrous right of issuing the most severe sentences with closed doors, and of executing these sentences with inflexible rigour on individuals who had not been allowed the slightest chance of defending themselves.
While passing judgment in secret, they often openly dealt blows as unexpected and terrible as they were fatal. Therefore, the most innocent and the most daring trembled at the very name of the _Free Judges of the Terre-Rouge,_ an institution which adopted Westphalia as the special, or rather as the central, region of its authority; the _Council of Ten_ exercised their power in Venice and the states of the republic; and the _Assassins_ of Syria, in the time of St. Louis, made more than one invasion into Christian Europe. We must nevertheless acknowledge that, terrible as these mysterious institutions were, the general credulity, the gross ignorance of the masses, and the love of the marvellous, helped not a little to render them even more outrageous and alarming than they really were.
Marco Polo, the celebrated Venetian traveller of the thirteenth century, says, “We will speak of the Old Man of the Mountain. This prince was named Alaodin. He had a lovely garden full of all manner of trees and fruits, in a beautiful valley, surrounded by high hills; and all round these plantations were various palaces and pavilions, decorated with works of art in gold, with paintings, and with furniture of silk. Therein were to be seen rivulets of wine, as well as milk, honey, and gentle streams of limpid water. He had placed therein damsels of transcendent beauty and endowed with great charms, who were taught to sing and to play all manner of instruments; they were dressed in silk and gold, and continually walked in these gardens and palaces. The reasons for which the Old Man had these palaces built were the following. Mahomet having said that those who should obey his will should go to paradise, and there find all kinds of luxuries, this prince wished it to be believed that he was the prophet and companion of Mahomet, and that he had the power of sending whom he chose to paradise. No one could succeed in entering the garden, because an impregnable castle had been built at the entrance of the valley, and it could only be approached by a covered and secret way. The Old Man had in his court some young men from ten to twenty years of age, chosen from those inhabitants of the hills who seemed to him capable of bearing arms, and who were bold and courageous. From time to time he administered a certain drink to ten or twelve of these young men, which sent them to sleep, and when they were in deep stupor, he had them carried into the garden. When they awoke, they saw all we have described: they were surrounded by the young damsels, who sang, played instruments together, caressed them, played all sorts of games, and presented them with the most exquisite wines and meats (Fig. 317). So that these young men, satiated with such pleasures, did not doubt that they were in paradise, and would willingly have never gone out of it again.
“At the end of four or five days, the Old Man sent them to sleep again, and had them removed from the garden in the same way in which they had been brought in. He then called them before him, and asked them where they had been. ‘By your grace, lord,’ they answered, ‘we have been in paradise.’ And then they related, in the presence of everybody, what they had seen there. This tale excited the astonishment of all those who heard it, and the desire that they might be equally fortunate. The Old Man would then formally announce to those who were present, as follows: ‘Thus saith the law of our prophet, He causes all who fight for their Lord to enter into paradise; if you obey me you shall enjoy that happiness.’ By such words and plans this prince had so accustomed them to believe in him, that he whom he ordered to die for his service considered himself lucky. All the nobles or other enemies of the Old Man of the Mountain were put to death by the assassins in his service; for none of them feared death, provided he complied with the orders and wishes of his lord. However powerful a man might be, therefore, if he was an enemy of the Old Man’s, he was sure to meet with an untimely end.”
[Illustration: Fig. 317.–The Castle of Alamond and its Enchantments.–Fac-simile of a Miniature in “Marco Polo’s Travels,” Manuscript of the Fifteenth. Century, in the Library of the Arsenal of Paris.]
In his story, which we translate literally from the original, written in ancient French, the venerable traveller attributes the origin of this singular system of exercising power over the minds of persons to a prince who in reality did but keep up a tradition of his family; for the Alaodin herein mentioned is no other than a successor of the famous Hassan, son of Ali, who, in the middle of the eleventh century, took advantage of the wars which devastated Asia to create himself a kingdom, comprising the three provinces of Turkistan, Djebel, and Syria. Hassan had embraced the doctrine of the Ishmaelian sect, who pretended to explain allegorically all the precepts of the Mahometan religion, and who did away with public worship, and originated a creed which was altogether philosophical. He made himself the chief exponent of this doctrine, which, by its very simplicity, was sure to attract to him many people of simple and sincere minds. Attacked by the troops of the Sultan Sindgar, he defended himself vigorously and not unsuccessfully; but, fearing lest he should fall in an unequal and protracted struggle against an adversary more powerful than himself, he had recourse to cunning so as to obtain peace. He entranced, or fascinated probably, by means analogous to those related by Marco Polo, a slave, who had the daring, during Sindgar’s sleep, to stick a sharp dagger in the ground by the side of the Sultan’s head. On waking, Sindgar was much alarmed. A few days after, Hassan wrote to him, “If one had not good intentions towards the Sultan, one might have driven the dagger, which was stuck in the earth by his head, into his bosom.” The Sultan Sindgar then made peace with the chief of the Ishmaelians, whose dynasty lasted for one hundred and seventy years.
The Castle of Alamond, built on the confines of Persia, on the top of a high mountain surrounded with trees, after having been the usual residence of Hassan, became that of his successors. As in the native language the same word means both _prince_ and _old man_, the Crusaders who had heard the word pronounced confounded the two, and gave the name of _Old Man of the Mountain_ to the Ishmaelian prince at that time inhabiting the Castle of Alamond, a name which has remained famous in history since the period when the Sire de Joinville published his “Memoires.”
Ancient authors call the subjects of Hassan, _Haschichini, Heississini, Assissini, Assassini_, various forms of the same expression, which, in fact, has passed into French with a signification which recalls the sanguinary exploits of the Ishmaelians. In seeking for the etymology of this name, one must suppose that Haschichini is the Latin transformation of the Arabic word Hachychy, the name of the sect of which we are speaking, because the ecstacies during which they believed themselves removed to paradise were produced by means of _haschisch_ or _haschischa_. We know that this inebriating preparation, extracted from hemp, really produces the most strange and delicious hallucinations on those who use it. All travellers who have visited the East agree in saying that its effects are very superior to those of opium. We evidently must attribute to some ecstatic vision the supposed existence of the enchanted gardens, which Marco Polo described from popular tales, and which, of course, never existed but in the imagination of the young men, who were either mentally excited after fasting and prayer, or intoxicated by the haschischa, and consequently for a time lulled in dreams of celestial bliss which they imagined awaited them under the guidance of Hassan and his descendants.
[Illustration: Fig. 318.–The Old Man of the Mountain giving Orders to his Followers.–Fac-simile of a Miniature in the “Travels of Marco Polo,” Manuscript of the Fifteenth Century (Library of the Arsenal of Paris).]
The Haschischini, whom certain contemporary historians describe to us as infatuated by the hope of some future boundless felicity, owe their melancholy celebrity solely to the blind obedience with which they executed the orders of their chiefs, and to the coolness with which they sought the favourable moment for fulfilling their sanguinary missions (Fig. 318). The Old Man of the Mountain (the master of daggers, _magister cultellorum_, as he is also called by the chronicler Jacques de Vintry), was almost continually at war with the Mussulman princes who reigned from the banks of the Nile to the borders of the Caspian Sea. He continually opposed them with the steel of his fanatical emissaries; at times, also, making a traffic and merchandise of murder, he treated for a money payment with the sultans or emirs, who were desirous of ridding themselves of an enemy. The Ishmaelians thus put to death a number of princes and Mahometan nobles; but, at the time of the Crusades, religious zeal having incited them against the Christians, they found more than one notable victim in the ranks of the Crusaders. Conrad, Marquis of Montferrat, was assassinated by them; the great Salah-Eddin (Saladin) himself narrowly escaped them; Richard Coeur de Lion and Philip Augustus were pointed out to the assassins by the Old Man, who subsequently, on hearing of the immense preparations which Louis IX. was making for the Holy War, had the daring to send two of his followers to France, and even into Paris, with orders to kill that monarch in the midst of his court. This king, after having again escaped, during his sojourn in Palestine, from the murderous attempts of the savage messengers of the Prince of Alamond, succeeded, by his courage, his firmness, and his virtues, in inspiring these fanatics with so much respect, that their chief, looking upon him as protected by heaven, asked for his friendship, and offered him presents, amongst which was a magnificent set of chessmen, in crystal, ornamented with gold and amber.
The successors of Hassan, simultaneously attacked by the Moguls under Houlayon, and by the Egyptians commanded by the Sultan Bibars, were conquered and dispossessed of their States towards the middle of the thirteenth century; but, long after, the Ishmaelians, either because their chiefs sought to recover their power, or because they had placed their daggers at the disposal of some foreign foe, continued notorious in history. At last the sect became extinct, or, at least, retired into obscurity, and renounced its murderous profession, which had for so long made its members such objects of terror.
We have thus seen how a legion of fanatics in the East made themselves the blind and formidable tools of a religious and political chieftain, who was no less ambitious than revengeful. If we now turn our attention to Germany, we shall here find, almost at the same period, a local institution which, although very different from the sanguinary court of the Old Man of the Mountain, was of an equally terrible and mysterious character. We must not, however, look at it from the same point of view, for, having been founded with the object of furthering and defending the establishment of a regular social state, which had been approved and sanctioned by the sovereigns, and recognised by the Church, it at times rendered great service to the cause of justice and humanity at a period when might usurped right, and when the excesses and the crimes of shameless evil-doers, and of petty tyrants, entrenched in their impregnable strongholds, were but too often made lawful from the simple fact that there was no power to oppose them.
The secret tribunal of Westphalia, which held its sittings and passed sentence in private, and which carried out its decrees on the spot, and whose rules, laws, and actions were enveloped in deep mystery, must unquestionably be looked upon as one of the most remarkable institutions of the Middle Ages.
[Illustration: Figs. 319 and 320.–Hermensul or Irmensul and Crodon, Idols of the Ancient Saxons.–Fac-simile of a Woodcut in the “Annales Circuli Westphaliae,” by Herman Stangefol: in 4to, 1656.–The Idol Hermensul appears to have presided over Executive Justice, the attributes of which it holds in its hands.]
It would be difficult to state exactly at what period this formidable institution was established. A few writers, and amongst these Sebastian Munster, wish us to believe that it was founded by Charlemagne himself. They affirm that this monarch, having subjugated the Saxons to his sway, and having forced them to be baptized, created a secret tribunal, the duties of which were to watch over them, in order that they might not return to the errors of Paganism. However, the Saxons were incorrigible, and, although Christians, they still carried on the worship of their idols (Figs. 319 and 320); and, for this reason, it is said by these authorities that the laws of the tribunal of Westphalia were founded by Charlemagne. It is well known that from the ninth to the thirteenth century, all that part of Germany between the Rhine and the Weser suffered under the most complete anarchy. In consequence of this, and of the increase of crime which remained unpunished, energetic men established a rigorous jurisdiction, which, to a certain extent, suppressed these barbarous disorders, and gave some assurance to social intercourse; but the very mystery which gave weight to the institution was the cause of its origin being unknown. It is only mentioned, and then cursorily, in historical documents towards the early part of the fifteenth century. This court of judicature received the name of _Femgericht_, or _Vehmgericht_, which means Vehmic tribunal. The origin of the word _Fem_, _Vehm_, or _Fam_, which has given rise to many scientific discussions, still remains in doubt. The most generally accepted opinion is, that it is derived from a Latin expression–_vemi_ (_vae mihi_), “woe is me!”
The special dominion over which the Vehmic tribunal reigned supreme was Westphalia, and the country which was subjected to its laws was designated as the _Terre Rouge_. There was no assembly of this tribunal beyond the limits of this Terre Rouge, but it would be quite impossible to define these limits with any accuracy. However, the free judges, assuming the right of suppressing certain crimes committed beyond their territory, on more than one occasion summoned persons living in various parts of Germany, and even in provinces far from Westphalia, to appear before them. We do not know all the localities wherein the Vehmic tribunal sat; but the most celebrated of them, and the one which served as a model for all the rest, held its sittings under a lime-tree, in front of the castle-gate of Dortmund (Fig. 321). There the chapters-general of the association usually assembled; and, on certain occasions, several thousands of the free judges were to be seen there.
Each tribunal was composed of an unlimited number of free judges, under the presidency of a free count, who was charged with the higher administration of Vehmic justice. A _free county_ generally comprised several free tribunals, or _friestuhle_. The free count, who was chosen by the prince of the territory in which the tribunal sat, had two courts, one secret, the other public. The public assizes, which took place at least three times a year, were announced fourteen days beforehand, and any person living within the _county_, and who was summoned before the free count, was bound to appear, and to answer all questions which might be put to him. It was required that the free judges (who are generally mentioned as _femnoten_–that is to say, _sages_–and who are, besides, denoted by writers of the time by the most honourable epithets: such as, “serious men,” “very pious,” “of very pure morals,” “lovers of justice,” &c.) should be persons who had been born in lawful wedlock, and on German soil; they were not allowed to belong to any religions order, or to have ever themselves been summoned before the Vehmic tribunal. They were nominated by the free counts, but subject to the approval of their sovereigns. They were not allowed to sit as judges before having been initiated into the mysteries of the tribunals.
[Illustration: Fig. 321.–View of the Town of Dortmund in the Sixteenth Century.–From an Engraving on Copper in P. Bertius’s “Theatrum Geographicum.”]
The initiation of a free judge was accompanied by extraordinary formalities. The candidate appeared bareheaded; he knelt down, and, placing two fingers of his right hand on his naked sword and on a rope, he took oath to adhere to the laws and customs of the holy tribunal, to devote his five senses to it, and not to allow himself to be allured therefrom either by silver, gold, or even precious stones; to forward the interests of the tribunal “above everything illumined by the sun, and all that the rain reaches;” and to defend them “against everything which is between heaven and earth.” The candidate was then given the sign by which members of the association recognised each other. This sign has remained unknown; and nothing, even in the deeds of the Vehmic archives, leads one even to guess what it was, and every hypothesis on this subject must be looked upon as uncertain or erroneous. By one of the fundamental statutes of the Terre Rouge, a member convicted of betraying the secrets of the order was condemned to the most cruel punishment; but we have every reason for asserting that this sentence was never carried out, or even issued against a free judge.
[Illustration: Fig. 322.–The Landgrave of Thuringia and his Wife.–Fac-simile of a Miniature in the Collection of the Minnesinger, Manuscript of the Fourteenth Century.]
In one case alone during the fourteenth century, was an accusation of this sort made, and that proved to be groundless.
It would have been considered the height of treason to have given a relation, or a friend, the slightest hint that he was being pursued, or that he had been condemned by the Holy Vehme, in order that he might seek refuge by flight. And in consequence of this, there was a general mistrust of any one belonging to the tribunal, so much so that “a brother,” says a German writer, “often feared his brother, and hospitality was no longer possible.”
The functions of free judges consisted in going about the country seeking out crimes, denouncing them, and inflicting immediate punishment on any evil-doer caught in the act (Figs. 323 and 324). The free judges might assemble provided there were at least seven in number to constitute a tribunal; but we hear of as many as three hundred assisting at a meeting.
[Illustration: Figs. 323 and 324.–Free Judges.–Fac-simile of two Woodcuts in the “Cosmographie Universelle” of Munster: in folio, 1552.]
It has been erroneously stated that the sittings of the Vehmic tribunals were held at night in the depths of forests, or in subterranean places; but it appears that all criminal business was first heard in public, and could only be subjected to a secret judgment when the accused had failed either publicly to justify himself or to appear in person.
When three free judges caught a malefactor in the very act, they could seize him, judge him, and inflict the penalty on the spot. In other cases, when a tribunal considered that it should pursue an individual, it summoned him to appear before it. The summons had to be written, without erasures, on a large sheet of vellum, and to bear at least seven seals–that of the free count, and those of six free judges; and these seals generally represented either a man in full armour holding a sword, or a simple sword blade, or other analagous emblems (Figs. 325 to 327). Two free judges delivered the summons personally where a member of the association was concerned; but if the summons affected an individual who was not of the Vehmic order, a sworn messenger bore it, and placed it in the very hands of the person, or slipped it into his house. The time given for putting in an appearance was originally six weeks and three days at least, but at a later period this time was shortened. The writ of summons was repeated three times, and each time bore a greater number of seals of free judges, so as to verify the legality of the instrument. The accused, whether guilty or not, was liable to a fine for not answering the first summons, unless he could prove that it was impossible for him to have done so. If he failed to appear on the third summons, he was finally condemned _en corps et en honneur_.
[Illustration: Fig. 325.–Seal of Herman Loseckin, Free Count of Medebach, in 1410.]
[Illustration: Fig. 326.–Seal of the Free Count, Hans Vollmar von Twern, at Freyenhagen, in 1476-1499.]
[Illustration: Fig. 327.–Seal of Johann Croppe, Free Count of Kogelnberg, in 1413.]
We have but imperfect information as to the formalities in use in the Vehmic tribunals. But we know that the sittings were invested with a certain solemnity and pomp. A naked sword–emblematical of justice, and recalling our Saviour’s cross in the shape of its handle–and a rope–emblematical of the punishment deserved by the guilty–were placed on the table before the president. The judges were bareheaded, with bare hands, and each wore a cloak over his shoulder, and carried no arms of any sort.
[Illustration: Fig. 328.–The Duke of Saxony and the Marquis of Brandenburg.–From the “Theatrum Orbis Terrarum sive Tabula veteris Geographiae,” in folio. Engraved by Wieriex, after Gerard de Jode.]
The plaintiff and the defendant were each allowed to produce thirty witnesses. The defendant could either defend himself, or entrust his case to an advocate whom he brought with him. At first, any free judge being defendant in a suit, enjoyed the privilege of justifying himself on oath; but it having been discovered that this privilege was abused, all persons, of whatever station, were compelled to be confronted with the other side. The witnesses, who were subpoened by either accuser or accused, had to give their evidence according to the truth, dispassionately and voluntarily. In the event of the accused not succeeding in bringing sufficient testimony to clear himself, the prosecutor claimed a verdict in his favour from the free count presiding at the tribunal, who appointed one of the free judges to declare it. In case the free judge did not feel satisfied as to the guilt, he could, by making oath, temporarily divest himself of his office, which devolved upon a second, a third, or even a fourth free judge. If four free judges were unable to decide, the matter was referred to another sitting; for judgment had to be pronounced by the appointed free judge at the sitting.
The various penalties for different crimes were left to the decision of the tribunal. The rules are silent on the subject, and simply state that the culprits will be punished “according to the authority of the secret bench.” The _royale, i.e._ capital punishment, was strictly applied in all serious cases, and the manner of execution most in use was hanging (Figs. 329, 330).
A person accused who did not appear after the third summons, was out-lawed by a terrible sentence, which deprived him of all rights, of common peace, and forbad him the company of all Christians; by the wording of this sentence, his wife was looked upon as a widow, his children as orphans; his neck was abandoned to the birds of the air, and his body to the beasts of the field, “but his soul was recommended to God.” At the expiration of one year and a day, if the culprit had not appeared, or had not established his common rights, all his goods were confiscated, and appropriated by the King or Emperor. When the condemnation referred to a prince, a town, or a corporation (for the accusations of the tribunal frequently were issued against groups of individuals), it caused the loss of all honour, authority, and privileges. The free count, in pronouncing the sentence, threw the rope, which was before him, on to the ground; the free judges spat upon it, and the name of the culprit was inscribed on the book of blood. The sentence was kept secret; the prosecutor alone was informed of it by a written notice, which was sealed with seven seals. When the condemned was present, the execution took place immediately, and, according to the custom of the Middle Ages, its carrying out was deputed to the youngest of the free judges. The members of the Vehmic association enjoyed the privilege of being hung seven feet higher than those who were not associates.
The Vehmic judgments were, however, liable to be appealed against: the accused might, at the sitting, appeal either to what was termed the imperial chamber, a general chapter of the association, which assembled at Dortmund, or (and this was the more frequent custom) to the emperor, or ruler of the country, whether he were king, prince, duke, or bishop, provided that these authorities belonged to the association. The revision of the judgment could only be entrusted to members of the tribunal, who, in their turn, could only act in Westphalia. The condemned might also appeal to the lieutenant-general of the emperor, or to the grand master of the Holy Vehme, a title which, from the remotest times, was given to the Archbishop of Cologne. There are even instances of appeals having been made to the councils and to the Popes, although the Vehmic association never had any communication or intercourse with the court of Rome. We must not forget a very curious privilege which, in certain cases, was left to the culprit as a last resource; he might appeal to the emperor, and solicit an order which required the execution of the sentence to be applied after a delay _of one hundred years, six weeks, and one day_.
[Illustration: Figs. 329 and 330.–Execution of the Sentences of the Secret Tribunal.–Fac-simile of Woodcuts in the “Cosmographie Universelle” of Munster: in folio, Basle, 1552.]
The chapter-general of the association was generally summoned once a year by the emperor or his lieutenant, and assembled either at Dortmund or Arensberg, in order to receive the returns of causes judged by the various Vehmic tribunals; to hear the changes which had taken place among the members of the order; to receive the free judges; to hear appeals; and, lastly, to decide upon reforms to be introduced into the rules. These reforms usually had reference to the connection of imperial authority with the members of the secret jurisdiction, and were generally suggested by the emperors, who were jealous of the increasing power of the association.
From what we have shown, on the authority of authentic documents, we understand how untrue is the tradition, or rather the popular idea, that the _Secret Tribunal_ was an assembly of bloodthirsty judges, secretly perpetrating acts of mere cruelty, without any but arbitrary laws. It is clear, on the contrary, that it was a regular institution, having, it is true, a most mysterious and complex organization, but simply acting in virtue of legal prescriptions, which were rigorously laid down, and arranged in a sort of code which did honour to the wisdom of those who had created it.
It was towards the end of the fourteenth and the beginning of the fifteenth centuries that the Vehmic jurisdiction reached its highest degree of power; its name was only pronounced in a whisper and with trembling; its orders were received with immediate submission, and its chastisements always fell upon the guilty and those who resisted its authority. There cannot be a doubt but that the Westphalian tribunal prevented many great crimes and public misfortunes by putting a wholesome check on the nobles, who were ever ready to place themselves above all human authority; and by punishing, with pitiless severity, the audacity of bandits, who would otherwise have been encouraged to commit the most daring acts with almost the certainty of escaping with impunity. But the Holy Vehme, blinded by the terror it inspired, was not long without displaying the most extravagant assumption of power, and digressing from the strict path to which its action should have been confined. It summoned before its tribunals princes, who openly denied its authority, and cities, which did not condescend to answer to its behests. In the fifteenth century, the free judges were composed of men who could not be called of unimpeachable integrity; many persons of doubtful morals having been raised to the dignity by party influence and by money. The partiality and the spirit of revenge which at times prompted their judgments, were complained of; they were accused of being open to corruption; and this accusation appears to have been but too well founded. It is known that, according to a feudal practice established in the Vehmic system, every new free judge was obliged to make a present to the free count who had admitted him into the order; and the free counts did not hesitate to make this an important source of revenue to themselves by admitting, according to an historian, “many people as _judges_ who, in reality, deserved to be _judged_.”
[Illustration: Fig. 331.–View of Cologne in the Sixteenth Century.–From a Copper-plate in the “Theatrum Geographicum” of P. Bertius. The three large stars represent, it is supposed, the Three Persons of the Trinity, and the seven small ones the Electors of the Empire.]
[Illustration: Fig. 332.–German Knights (Fifteenth Century).–From a Plate in the “Life of the Emperor Maximilian,” engraved by Burgmayer, from Drawings by Albert Durer.]
Owing to the most flagrant and most insolent abuses of power, the ancient authority of the institution became gradually more and more shaken. On one occasion, for instance, in answer to a summons issued by the Imperial Tribunal against some free judges, the tribunal of the Terre-Rouge had the daring to summon the Emperor Frederick III. before it to answer for this want of respect. On another occasion, a certain free count, jealous of one of his associates, hung him with his own hands while out on a hunting excursion, alleging that his rank of free judge authorised him to execute summary justice. From that time there was a perpetual cry of horror and indignation against a judicial institution which thus interpreted its duties, and before long the State undertook the suppression of these secret tribunals. The first idea of this was formed by the electors of the empire at the diet of Treves in 1512. The Archbishop of Cologne succeeded, however, in parrying the blow, by convoking the chapter-general of the order, on the plea of the necessity of reform. But, besides being essentially corrupt, the Holy Vehme had really run its course, and it gradually became effete as, by degrees, a better organized and more defined social and political state succeeded to the confused anarchy of the Middle Ages, and as the princes and free towns adopted the custom of dispensing justice either in person or through regular tribunals. Its proceedings, becoming more and more summary and rigorous, daily gave rise to feelings of greater and greater abhorrence. The common saying over all Germany was, “They first hang you, and afterwards inquire into your innocence.” On all sides opposition arose against the jurisdiction of the free judges. Princes, bishops, cities, and citizens, agreed instinctively to counteract this worn-out and degenerate institution. The struggle was long and tedious. During the last convulsions of the expiring Holy Vehme, there was more than one sanguinary episode, both on the side of the free judges themselves, as well as on that of their adversaries. Occasionally the secret tribunal broke out into fresh signs of life, and proclaimed its existence by some terrible execution; and at times, also, its members paid dearly for their acts. On one occasion, in 1570, fourteen free judges, whom Kaspar Schwitz, Count of Oettingen, caused to be seized, were already tied up in bags, and about to be drowned, when the mob, pitying their fate, asked for and obtained their reprieve.
The death-blow to the Vehmic tribunal was struck by its own hand. It condenmed summarily, and executed without regular procedure, an inhabitant of Munster, who used to scandalize the town by his profligacy. He was arrested at night, led to a small wood, where the free judges awaited him, and condemned to death without being allowed an advocate; and, after being refused a respite even of a few hours, that he might make his peace with heaven, he was confessed by a monk, and his head was severed from his body by the executioner on the spot.
[Illustration: Fig. 333.–Interior Court of the Palace of the Doges of Venice: Buildings in which are the Cells and _the Leads_.–From Cesare Vecellio.]
Dating from this tragical event, which excited universal indignation, the authority of the free judges gradually declined, and, at last, the institution became almost defunct, and merely confined itself to occasionally adjudicating in simple civil matters.
We must not omit to mention the Council of Ten of Venice when speaking on the subject of arbitrary executions and of tyrannical and implacable justice. In some respects it was more notorious than the Vehmic tribunal, exercising as it did a no less mysterious power, and inspiring equal terror, though in other countries.
This secret tribunal was created after a revolt which burst on the republic of Venice on the 15th of June, 1310. At first it was only instituted for two months, but, after various successive prorogations, it was confirmed for five years, on the 31st of January, 1311. In 1316 it was again appointed for five years; on the 2nd of May, 1327, for ten years more; and at last was established permanently. In the fifteenth century the authority of the Council of Ten was consolidated and rendered more energetic by the creation of the Inquisitors of State. These were three in number, elected by the Council of Ten; and the citizens on whom the votes fell could not refuse the functions which were thus spontaneously, and often unexpectedly, assigned to them. The authority of Inquisitors of State was declared to be “unlimited.”
In order to show the power and mode of action of this terrible tribunal, it is perhaps better to make a few extracts from the code of rules which it established for itself in June, 1454.
This document–several manuscript copies of which are to be found in the public libraries of Paris–says, “The inquisitors may proceed against any person whomsoever, no rank giving the right of exemption from their jurisdiction. They may pronounce any sentence, even that of death; only their final sentences must be passed unanimously. They shall have complete charge of the prisons and _the leads_ (Fig. 333). They may draw at sight from the treasury of the Council of Ten, without having to give any account of the use made of the funds placed in their hands.
“The proceedings of the tribunal shall always be secret; its members shall wear no distinctive badge. No open arrests shall be made. The chief of the bailiffs (_sbirri_) shall avoid making domiciliary arrests, but he shall try to seize the culprit unawares, away from his home, and so securely get him under _the leads_ of the Palace of the Doges. When the tribunal shall deem the death of any person necessary, the execution shall never be public; the condemned shall be drowned at night in the Orfano Canal.
“The tribunal shall authorise the generals commanding in Cyprus or in Candia, in the event of its being for the welfare of the Republic, to cause any patrician or other influential person in either of those Venetian provinces to disappear, or to be assassinated secretly, if such a measure should conscientiously appear to them indispensable; but they shall be answerable before God for it.