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William Robertson

A View of the Progress of Society in Europe from the Subversion of the Roman Empire to the Beginning of the Sixteenth Century (1769)

Proofs and Illustrarions XXXVI-XXXIX

Note editoriali

Home | Editorial note | Preface | Section I | Par. i-ii | Par. iii-v | Par vi-x | Section II
Section III (pp. 106-119)
| Section III (pp. 120-139) | Section III (pp. 141-166)
Proofs & Illustrations


Note [XXXVI], page 139.

I have frequently had occasion to take notice of the defects in police during the middle ages, occasioned by the feebleness of government, and the want of proper subordination among the different ranks of men. I have observed in a former note that this greatly interrupted the intercourse between nations, and even between different places in the same kingdom. The descriptions which the Spanish historians give of the frequency of rapine, murder, and every act of violence, in all the provinces of Spain, are amazing, and present to us the idea of a society but little removed from the disorder and turbulence of that which has been called a state of nature. Zurita, Anales de Arag. I, 175. Æl. Ant. Nebrissensis Rer. a Ferdin. Gestar. Hist. ap. Schottum, II, 849. Though the excess of these disorders rendered the institution of the santa hermandad necessary, great care was taken at first to avoid giving any offence or alarm to the nobility. The jurisdiction of the judges of the hermandad was expressly confined to crimes which violated the public peace. All other offences were left to the cognizance of the ordinary judges. If a person was guilty of the most notorious perjury, in any trial before a judge of the hermandad, he could not punish him, but was obliged to remit the case to the ordinary judge of the place. Commentaria in Regias Hispan. Constitut. per Alph. de Azevedo. pars V, pp. 223, &c. fol. Duaci, p. 1612. Notwithstanding these restrictions, the barons were wearly sensible how much the establishment of the hermandad would encroach on their jurisdiction. In Castile some opposition was made to the institution; but Ferdinand had the address to obtain the consent of the constable to the introduction of the hermandad into that part of the kingdom where his estate lay; and by that means, as well as the popularity of the institution, he surmounted every obstacle that stood in its way. Æl. Ant. Nebrissen. p. 851. In Aragon the nobles combined against it with great spirit; and Ferdinand, though he supported it with vigour, was obliged to make some concessions in order to reconcile them. Zurita, Anales de Arag. IV, 356. The power and revenue of the hermandad in Castile seem to have been very great. Ferdinand, when preparing for the war against the Moors of Granada, required of the hermandad to furnish him sixteen thousand beasts of burden, together with eight thousand men to conduct them, and he obtained what he demanded. Æl. Ant. Nebriss. p. 881. The hermandad has been found to be of so much use in preserving peace, and restraining or detecting crimes, that it is still continued in Spain; but as it is no longer necessary either for moderating the power of the nobility. or extending that of the crown, the vigour and authority of the institution diminish gradually.


Note [XXXVII], page 142.

Nothing is more common among antiquaries, and there is not a more copious source of error, than to decide concerning the institutions and manners of past ages, by the forms and ideas which prevail in their own times. The French lawyers in the seventeenth and eighteenth centuries having found their sovereigns in possession of absolute power, seem to think it a duty incumbent on them to maintain that such unbounded authority belonged to the crown in every period of their monarchy. «The government of France,» says M. de Réal, very gravely, «is purely monarchical ot this day, as it was from the beginning. Our kings were absolute originally, as they are at present». Science du Gouvernement, tom II, p. 31. It is impossible [593], however, to conceive two states of civil society more unlike to each other than that of the French nation under Clovis, and that under Louis XV, It is evident from the codes of laws of the various tribes which settled in Gaul and the countries adjacent to it, as well as from the history of Gregory of Tours, and other early annalists, that among all these people the form of government was extremely rude and simple, and that they had scarcely begun to acquire the first rudiments of that order and police which are necessary in extensive societies. The king or leader had the command of soldiers or companions, who followed his standard from choice, not by constraint. I have produced the clearest evidence of this, Note VI. An event related by Gregory of Tours, lib. 4, c. 14, affords the most striking proof of the dependence of the early French kings on the sentiments and inclination of their people. Clotaire I, having marched at the head of his army, in the year 553, against the Saxons, that people, intimidated at his approach, sued ffor peace, and offered to pay a large sum to the offended monarch. Clotaire was willing to close with what they proposed. But his army insisted to be led forth to battle. The king employed all his eloquence to persuade them to accept of what the Saxons were ready to pay. The Saxons, in order to soothe them, increased their original offer. The king renewed his solicitations; but the aemy, enraged, rushed upon the king, tore his tent in pieces, dragges him out of it, and would have slain him on the spot, if he had not consented to lead them instantly against the enemy.

If the early monarchs of France possessed such limited authority, even while at the head of their army, their prerogative during peace will be found to be still more confined. They ascended the throne not by any hereditary right, but in consequence of the election of their subjects. In order to avoid an unnecessary number of quotations, I refer my readers to Hottomanni Franco-Gallia, cap. VI, p. 47. edit. 1573. where they will find the fullest proof of this from Gregory of Tours, Amoinus, and the most authentic historians of the Merovingian kings. The effect of this election was not to invest them with absolute power. Whatever related to the general welfare of the nation was submitted to public deliberation, and determined by the suffrage of the people, in the annual assemblies, called «les champs de Mars,» and «les champs de Mai». These assemblies were called champs, because, according to the custom of all the barbarous nations, they were held in the open air, in some plain capable of containing the vaast number of persons who had a right to be present. Jo. Jac. Soberus de Comitiis veterum Germanorum, vol. I, §§ 19, &c. They were denominated champs de Mars and de mai, from the months in which they were held. Every freeman seems to have had a right to be present in these assemblies. Soberus, ibid. §§ 133, &c. The ancient annals of the Franks describe the persons who were present in the assembly held A. D. 788, in these words: «In placito Ingelheimensi conveniunt pontifices, majores, minores, sacerdotes, reguli, duces, comites, præfecti, cives, oppidani». Apud. Sober. § 304. There everything that concerned the happiness of their country, says an ancient historian, everything that could be of benefit to the Franks, was considered and enjoined. Fredegarius, ap. Du Cange, Glossar. voc. Campus Martii, Chlotharius II, describes the business, and acknowledges the authority of these assemblies. «They are called,» says he, «that whatever relates to the common safety may be considered and resolved by common deliberation; and [594] whatever they deterrmine, to that I will conform». Amoinus de Gest. Franc. lib. IV, c. I, ap. Bouquet, Recueil, III, p. 116. The statutory clauses, or words of legislative authority in the decrees issued in these assemblies, run not in the name of the king alone. «We have treated, » says Childebert, in a decree, A. D. 532, in the assembly of March, «together with our nobles, concerning some affairs, and we now publish the conclusion, that it may come to the knowledge of all». Childeb. Decret. ap. Bouquet, Recueil des Histor. tom. IV, p. 3. «We have agreed together with our vassals». Ibid. § 2. «It is agreed, in the assembly in which we were all united». Ibid. § 4. The Salic laws, the most venerable monument of French jurisprudence, were enacted in the same manner. «Dictaverunt Salicam legem proceres ipsius gentis, qui tunc temporis apud eam erant rectores. Sunt autem electi de pluribus viri quatuor – qui per tres Mallos convenientes, omnes causarum origines solicite discurrendo, tractantes de singulis, judicium decreverunt hoc modo». Præf. Leg. Salic. ap. Bouquet. Ibid. p. 122. «Hoc decretum est apud regem et principes ejus, et apud cunctum populum christianum, qui intra regnum Merwingorum consistunt». Ibid. p. 124. Nay, even in their charters, the kings of the first race are careful to specify that they werer granted with the consent of their vassals. «Ego Childebertus, rex, una cum consensu et voluntate Francorum», &c. A. D. 558. Bouquet, ibid. 622. «Chlotarius III, una cum patribus nostris, episcopis, optimatibus, cæterisque palatii nostri ministris,» A. D. 664. Ibid. 648. «De consensu fidelium nostrorum». Mably, Observ. tom. I, p. 239. The historians likewise describe the functions of the king in the national assembliesw in such terms as imply that his authority there was extremely small, and that everything depended on the court itself. «Ipse rex (says the author of Annales Francorum, speaking of the Field of March) sedebat in sella regia, circumstante exercitu, præcipiebatque is, die illo, quicquid a Francis decretum erat». Bouquet, Recueil, tom II, p. 647.

That the general assembvlies exercised supreme jurisdiction over all persons, and with respect to all causes, is so evident as to stand in need of no proof. The trial of Brunehaut, A. D. 613, how unjust soever the sentence against her may be, as related by Fredegarius, Chron. cap. 42; Bouquet, ibid. 430, is in itself sufficient proof of this. The notorious violence and iniquity of the sentence serve to demonstrate the extent of jurisdiction which this assembly possessed, as a prince so sanguinary as Clothaire II, thought the sanction of its authority would be sufficient to justify his rigorous treatment of the mother and grand-mother of so many kings.

With respect to conferring donatives on the prince, we may observe, that among nations whose manners and political institutions are simple, the public, as well as individuals, having few wants, they are little acquainted with taxes, and free uncivilized tribes disdain to submit to any stated imposition. This was remarkably the case of the Germans, and of all the various people that issued from that country. Tacitus pronounces two tribes not to be of German origin, because they submitted to pay taxes. De Morib. Germ. c. 43. And speaking of another tribe according to the ideas prevalent in Germany, he says, «They were not degraded by the imposition of taxes». Ibid. c. 29. Upon the settlement of the Franks in Gaul we may conclude, that while elated with the consciousness of victory, they would not renounce the high-spirited ideas of their ancestors, or voluntarily submit to a burden which they regarded as a [595] badge of servitude. The evidence of the earliest records and historians justifies this conclusion. M. de montesquieu, in the twelfth and subsequent chapters of the thirteenth book of l’Esprit des Loix, and M. de Mably, Observat. sur l’Hist. de France, tom. I, p. 247, have investigated this fact with great attention, and have proved clearly that the property of freemen among the Franks was not subject to any stated tax, That the state required nothing from persons of this rank but military service at their own expense, and that they should entertain the king in their houses when he was upon any progress through his dominions, or his officers when sent on any public employment, furnishing them with carriages and horses. Monarchs subsisted almost entirely upon the revenues of their own domains, and upon the perquisites arising from the administration of justice, together with a few small fines and forfeitures exacted from such as had been guilty of certain trespasses. It is foreign from my subject to enumerate these. The reader may find them in Observat. de M. de Mably, vol. I, p. 267.

When any extraordinary aid was granted by freemen to their sovereign it was purely voluntary. In the annual assembly of March or May, it was the custom to make the king a present of money, of horses or arms, or of some other thing of value. This was an ancient custom, and derived from their ancestors the Germans. «Mos est civitatibus, ultro ac viritim conferre principibus, vel armentorum, vel frugum, quod pro honore acceptum, etiam necessitatibus subvenit». Tacit. de Mor. Germ. c. 15. These gifts, if we may form a judgment concerning them from the general terms in which they are mentioned by the ancient historians, were considerable, and made no small part of the royal revenue. Many passages to this purpose are produced by M. du Cange, dissert. IV, sur Joinville, 153. Sometimes a conquered people specified the gift which they bound themselves to pay annually, and it was exacted as a debt if they failed. Annales Metenses, ap. Du Cange, ibid. p. 155. It is probable that the first step towards taxation was to ascertain the value of these gifts, which were originally gratuitous, and to compel the people to pay the sum at which they were rated. Still, however, some memory of their original was preserved, and the aids granted to monarchs in all the kingdoms of Europe were termed benevolences or free gifts.

The kings of the second race in France were raised to the throne by the election of the people. «Pepinus rex pius,» says an author who wrote a few years after the transaction which he records, «per authoritatem papæ, et unctionem sancti chrismatis et electionem omnium Francorum in regni solio sublimatus est». Clausola de Pepini Consecratione, ap. Bouq. Recueil des Histor. tom. V, p. 9. At the same time, as the chief men of the nation had transferred the crown from one family to another, an oath was exacted of them, that they should maintain on the throne the family which they had now promoted; «ut numquam de alterius lumbis regem in ævo præsumant eligere». Ibid. p. 10. This oath the nation faithfully observed during a considerable space of time. The posterity of Pepin kept possession of the throne; but with respect to the manner of dividing their dominions among their children, princes were obliged to consult the general assembly of the nation. Thus Pepin himself, A. D. 768, appointed his two sons, Charles and Carlomannus, to reign as joint sovereigns; but he did this, «una cum consensu Francorum et procerum suorum seu et episcoporum,» before whom he laid the matter in their general assembly [596]. Conventus apud Sanctum Diosysium, Capitular. vol. I, p. 187. This destination the french confirmed in a subsequent assembly, which was called upon the death of Pepin; for, as Eginhart relates, they not only appointed them kings, but by their authority they regulated the limits of their respective territories. Vita Car. Magni, ap. Bouquet, Recueil, tom. V, p. 90. In the same manner, it was by the authority of the supreme assemblies that any dispute which arose among the descendants of the royal family was determined. Charlemagne recognises this important part of their jurisdiction, and confirms it in his charter concerning the partition of his dominions; for he appoints, that, in case of any uncertainty with respect to the right of the several competitors, he whom the people shall choose shall succeed to the crown. Capitular. vol. I, p. 442.

Under the second race of kings, the assemblies of the nation, distinguished by the name of conventus, malli, placita, were regularly assembled once a year at least, and frequently twice in the year. One of the most valuable monuments of the history of France is the treatise of Hinemarus, archbishop of Rheims, de Ordine Palatii, He died A. D. 882, only sixty-eight years after Charlemagne, and he relates in that short discourse the facts which were communicated to him by Adalhardus, a minister and confidant of Charlemagne. From him we learn that this great monarch never failed to hold the general assembly of his subjects every year. «In quo placito generalitas universorum majorum tam clericorum quam laicorum conveniebat». Hinem. Oper. edit. Sirmondi, vol. II, c. 29, p. 211. In these assemblies, matters which related to the general safety and state of the kingdom were always discussed before they entered upon any private or less important business. Ibid. c. 33, p. 213. His immediate successors imitated his example, and transacted no affair of importance without the advice of their great council.

Under the second race of kings, the genius of the French government continued to be in a good measure democratical. The nobles, the dignified ecclesiastics, and the great officers of the crown, were not the only members of the national council; the people, or the whole body of freemen, either in person or by their representatives, had a right to be present in it. Hinemarus, in describing the manner of holding the general assemblies, says that if the weather was favourable they met in the open air; but if otherwise, they had different apartments allotted to them; so that the dignified clergy were separated from the laity, and the «comites vel hujusmodi principesd sibimet honorificabiliter a cætera multitudine segregarentur». Ibid. c. 35, p. 114. Agobardus, archbishop of Lyons, thus describes a national council in the year 833, wherein he was present. «Qui ubique conventus extitit ex reverendissimis episcopis, et magnificentissimis viris illustribus, collegio quoque abbatum et comitum, promiscuæque ætatis et dignitatis populo». The cætera multitudo of Hincmarus is the same with the populus of Agobardus, and both describe the inferior order of freemen, the same who were afterwards known in France by the name of the third estate, and in England by the name of commons. The people, as well as the members of higher dignity, were admitted to a share of the legislative power. Thus, by a law, A. D. 803, it is ordained, «That the question shall be put to the people with respect to every new law, and if they shall agree to it, they shall confirm it by their signature». Capit. vol. I, p. 394. There are two capitularia which convey to us a full idea of the part which the people took in the administration of government. When they felt the weight [597] of any grievance, they had a right to petition the sovereign for redress. One of these petitions, in which they desire that ecclesiastics might be exempted from bearing arms, and from serving in person against the enemy, is still extant. It is addressed to Charlemagne, A. D. 803, and expressed in such terms as could have been used only by men conscious of liberty, and of the extensive privileges which they possessed. They conclude with requiring him to grant their demand, if he wished that they should any longer continue faithful subjects to him. That great monarch, instead of being offended or surprised at the boldness of their petition, received it in a most gracious manner, and signified his willingness to comply with it. But, sensible that he himself did not possess legislative authority, he promises to lay the matter before the next general assembly, that such things as were of common concern to all might be there considered and established by common consent. Capitul. tom. I, pp. 405-409. As the people by their petitions brought matters to be proposed in the general assembly, we learn from another capitulare the form in which they were approved there, and enacted as laws. The propositions were read aloud, and them the people were required to declare whether they assented to them or not. They signified their assent by crying three times, «We are satisfied;» and then the capitulare was confirmed by the subscription of the monarch, the clergy, and the chief men of the laity. Capitul. tom. I, p.627, A. D. 822. It seems probable from a capitulare of Carolus Calvus, A. D. 851, that the sovereign could not refuse his assent to what was proposed and established by his subjects in the general assembly. Tit. IX, § 6. Capitul. vol. II, p. 47. It is unnecessary to multiply quotations concerning the legislative power of the national assembly of France under the second race, or concerning its right to determine with regard to peace and war. The uniform style of the capitularia is an abundant confirmation of the former. The reader who desires any further information with respect to the latter, may consult Les Origines ou l’Ancien Gouvernement de la France, &c. tom. III, pp. 87, &c. What has been said with respect to the admission of the people or their representatives into the supreme assembly merits attention, not only in tracing the progress of the French government, but on account of the light which it throws upon a similar question agitated in England, concerning the time when the commons became part of the legislative body in that kingdom.


Note [XXXVIII], page 144.

That important change which the constitution of France underwent, when the legislative power was transferred from the great council of the nation to the king, has been explained by the French antiquaries with less care than they bestow in illustrating other events in their history. For that reason, I have endeavoured with greater attention to trace the steps which led to his memorable revolution. I shall here add some particulars which tend to throw additional light upon it. The Leges Salicæ, the Leges Burgundionum, and other codes published by the several tribes which settled in Gaul, were general laws extending to every person, to every province and district where the authority of those tribes was acknowledged. But they seem to have become obsolete; and the reason of thyeir falling into disuse is very obvious. Almost the whole property of the nation was allodial when these laws were framed. But when the feudal institutions became general, and gave rise to an infinite variety of questions peculiar to that species of tenure, the ancient [598] codes were of no use in deciding with regard to these, because they could not contain regulations applicable to cases which did not exist at the time when they were compiled. This considerable change in the nature of property made it necessary to publish the new regulations contained in the capitularia. Many of these, as is evident from the perusal of them, were public laws extending to the whole French nation, in the general assembly of which they were enacted. The weakness of the greater part of the monarchs of the second race, and the disorder into which the nation was thrown by the depredations of the Normans, encouraged the barons to usurp an independent power formerly unknown in France. The nature and extent of that jurisdiction which they assumed I have formerly considered. The political union of the kingdom was at an end, its ancient constitution was dissolved, and only a feudal relation subsisted between the king and his vassals. The regal jurisdiction extended no further than the domains of the crown. Under the last kings of the second race, these were reduced almost to nothing. Under the first kings of the third race, they comprehended little more than the patrimonial estate of Hugh Capet, which he annexed to the crown. Even with this accession, they continued to be of small extent. Velly, Hist. de France, tom. III, p. 32. Many of the most considerable provinces in France did not at first acknowledge Hugh Capet as a lawful monarch. There are still extant several charters, granted during the first years of his reign, with this remarkable clause in the form of dating the charter: «Deo regnante, rege expectante, regnante Domino nostro Jesu Christo Francis autem contra jus regnum usurpante Ugone rege». Bouquet, Recueil, tom. X, p. 544. A monarch whose title was thus openly disputed, was not in a condition to assert the royal jurisdiction, or to limit that of the barons.

All these circumstances rendered it easy for the barons to usurp the rights of royalty within their own territories. The Capitularia became no less obsolete than the ancient laws; local customs were everywhere introduced, and became the sole rule by which all civil transactions were conducted, and all causes were tried. The wonderful ignorance which became general in France during the ninth and tenth centuries, contributed to the introduction of customary law. Few persons, except ecclesiastics, could read; and as it was not in the power of such illiterate persons to have recourse to written laws, either as their guide in business, or their rule in administering justice, the customary law, the knowledge of which was preserved by tradition, universally prevailed.

During this period, the general assembly of the nation seems not to have been called, nor to have once exerted its legislative authority. Local customs regulated and decided everything. A striking proof of this occurs in tracing the progress of the French jurisprudence. The last of the Capitularia collected by M. Baluze, was issued in the year 921, by Charles the Simple. A hundred and thirty years elapsed from that period to the publication of the first ordinance of the kings of the third race, contained in the great collection of M. Laurière; and the first ordinance, which appears to be an act of legislation extending to the whole kingdom, is that of Philip Augustus, A. D. 1190. Ordon. tom. I, pp. 1, 18. During that long period of two hundred and sixty-nine years, all transactions were directed by local customs, and no addition was made to the statutory law of France. The ordinances, previous to the reign of Philip Augustus, contain regulations, the authority of which did not extend beyond the king’s domains.[599]

Various instances occur of the caution with which the kings of France ventured at first to exercise legislative authority. M. l’Ab. de Mably produces an ordinance of Philip Augustus, A. D. 1206, concerning the Jews, who in that age were in some measure the property of the lord in whose territories they resided. But it is rather a treaty of the king with the countess of Champagne, and the compte de Dampierre, than an act of royal power; and the regulations in it seem to be established, not so much by his authority, as by their consent. Observat. sur l’Hist. de France, II, p. 355. In the same manner an ordinance of Louis VIII, concerning the Jews, A. D. 1223, is a contract between the king and his nobles, with respect to their manner of treating that unhappy race of men. Ordon. tom. I, p. 47. The Establissemens of St. Louis, though well adapted to serve as general laws to the whole kingdom, were not published as such, but only as a complete code of customary law, to be of authority within the king’s domain. The wisdom, the equity, and the order conspicuous in that code of St. Louis, procured it a favourable reception throughout the kingdom. The veneration due to the virtues and good intentions of its author, contributed not a little to reconcile the nation to that legislative authority which the king began to assume. Soon after the reign of St. Louis, the idea of the king’s possessing supreme legislative power became common. If, says Beaumanoir, the king makes any establishment specially for his own domain, the barons may nevertheless adhere to their ancient customs; but if the establishment be general, it shall be current throughout the whole kingdom, and we ought to believe that such establishments are made with mature deliberation, and for the general good. Coust. de Beauvoisis, c. 48, p. 265. Though the kings of the third race did not call the general assembly of the nation, during the long period from Hugh Capet to Philip the Fair, yet they seem to have consulted the bishops and barons who happened to be present in their court, with respect to any new law which they published. Examples of this occur, Ordon. tom. I, pp. 3 et 5. This practice seems to have continued as late as the reign of St. Louis, when the legislative authority of the crown was well established. Ordon. tom. I, p. 58, A. D. 1246. This attention paid to the barons facilitated the king’s acquiring such full possession of the legislative power, as enabled them afterwards to exercise it without observing that formality.

The assemblies distinguished by the name of the states-general were first called A. D. 1302, and were held occasionally from that period to the year 1614, since which time they have not been summoned. These were very different from the ancient assembliers of the French nation under the kings of the first and second race. There is no point with respect to which the French antiquaries are more generally agreed, than in maintaining that the states-general had no suffrage in the passing of laws, and possessed no proper legislative jurisdiction. The whole tenor of the French history confirms this opinion. The form of proceeding in the states-general was this. The king addressed himself, at opening the meeting, to the whole body assembled in one place, and laid before them the affairs on account of which he had summoned them. Then the deputies of each of the three orders of nobles, of clergy, and of the third estate, met apart, and prepared their cahier, or memorial, containing their answer to the propositions which had been made to them, together with the representations which they thought proper to lay before the king. These answers and representations were considered by the king in his council, and [600] generally gave rise to an ordinance. These ordinances were not addressed to the three estates in common. Sometimes the king addressed an ordinance to each of the estates in particular. Sometimes he mentioned the assembly of the three estates. Sometimes mention is made only of the assembly of that estate to which the ordinance is addressed. Sometimes no mention at all is made of the assembly of estates, which suggested the propriety of enacting the law. Préface au tom. III, des Ordon. p. XX,

Thus the states-general had only the privilege of advising and remonstrating; the legislative authority resided in the king alone.


Note [XXXIX], page 145.

If the parliament of Paris be considered only as the supreme court of justice, everything relative to its origin and jurisdiction is clear and obvious. It is the ancient court of the king’s palace, new modelled, rendered stationary, and invested with an extensive and ascertained jurisdiction. The power of this court, while employed in this part of its functions is not the object of present consideration. The pretensions of the parliament to control the exercise of the legislative authority, and its claim of a right to interpose with respect to public affairs, and the political administration of the kingdom, lead to inquiries attended with great difficulty. As the officers and members of the parliament of Paris were anciently nominated by the king, were paid by him, and on several occasion were removed by him at pleasure. (Chronic. Scandaleuse de Louis XI, chez les Mém. de Comines, tom. II, p. 51, edit. de M. Lenglet de Fresnoy), they cannot be considered as representatives of the people, nor could they claim any share in the legislative power as acting in their name. We must therefore search for some other source of this high privilege.

1. The parliament was originally composed of the most eminent persons in the kingdom. The peers of France, ecclesiastics of the highest order, and noblemen of illustrious birth, were members of it, to whom were added someclerks and councillors learned in the laws, Pasquier, Recherches, pp. 44, &c. Encyclopédie, tom. XII, art. Parlement, pp. 3, 5. A court thus constituted was properly a committee of the states-general of the kingdom, and was composed of those barons and fideles whom the kings of France were accustomed to consult with regard to every act of jurisdiction or legislative authority. It was natural, therefore, during the intervals between the meetings of the states-general, or during those periods when that assembly was not called, to consult the parliament, to lay matters of public concern before it, and to obtain its approbation and concurrence before any ordinance was published, to which the people were required to conform.

2. Under the second race of kings, every new law reduced into proper form by the chancellor of the kingdom, was proposed by him to the people, and, when enacted, was committed to him to be kept among the public records, that he might give authentic copies of it to all who should demand them. Hincm. de Ord. Palat. c. 16. Capitul. Car. Calv. tit. XIV, § 11, tit. XXXIII, The chancellor presided in the parliament of Paris at its first institution. Encyclopédie, tom. III, art. Chancelier, p. 88. It was, therefore, natural for the king to continue to employ him in his ancient functions of framing, taking into his custody, and publishing the ordinances which were issued. To an ancient copy of the Capitularia of Charlemagne the following words are subjoined: «Anno tertio clementissimi domini nostri Caroli Augusti, sub ipso anno, hæc facta Capitula sunt, et consignata Stephano [601] comiti, ut hæc manifesta faceret Parisiis mallo publico, et illa legere faceret coram scabineis, quod ita et fecit, et omnes in uno consenserunt, quod ipsi voluissent observare usque in posterum, etiam omnes scabinei, episcopi, abbates, comites, manu propria subter signaverunt». Bouquet, Recueil, tom. V, p. 663. Mallus signifies not only the public assembly of the nation, but the court of justice held by the comes, or missus dominicus. Scabinei were the judges, or the assessors of the judges in that court. Here, then, seems to be a very early instance, not only of laws being published in a court of justice, but of their being verified or confirmed by the subscription of the judges. If this was the common practice, it naturally introduced the verifying of edicts in the parliament of Paris. But this conjecture I propose with that diffidence which I have felt in all my reasonings concerning the laws and institutions of foreign nations.

3. This supreme court of justice in France was dignified with the appellation of parliament, the name by which the general assembly of the nation was distinguished towards the close of the second race of kings; and men, both in reasoning and in conduct, were wonderfully by the similarity of names. The preserving the ancient names of the magistrates established while the republican government subsisted in Rome, enabled Augustus and his successors to assume new powers with less observation and greater ease. The bestowing the same name in France upon two courts, which were extremely different, contributed not a little to confound their jurisdictions and functions.

All these circumstances concurred in leading the kings of France to avail themselves of the parliament of Paris, as the instrument of reconciling the people to the exercise of legislative authority by the crown. The French, accustomed to see all new laws examined and authorized before they were published, did not sufficiently distinguish between the effect of performing this in the national assembly, or in a court appointed by the king. But as that court was composed of respectable members, and who were well skilled in the laws of their country, when any new edict received its sanction, that was sufficient to dispose the people to submit to it.

When the practice of verifying and registering the royal edicts in the parliament of Paris became common, the parliament contended that this was necessary in order to give them legal authority. It was established as a fundamental maxim in French jurisprudence, that no law could be published in any other manner; that without this formality no edict or ordinance could have any effect; that the people were not bound to obey it, and ought not to consider it as an edict or ordinance until it was verified in the supreme court, after free deliberation. Roche-flavin des Parlemens de France, 4to. Gentile. 1621, p. 921. The parliament, at different times, hath, with great fortitude and integrity, opposed the will of their sovereigns; and, notwithstanding their repeated and peremptory requisitions and commands, hath refused to verify and publish such edicts as it conceived to be oppressive to the people, or subversive of the constitution of the kingdom. Roche-flavin reckons that between the year 1562 and the year 1589, the parliament refused to verify more than a hundred edicts of the kings. Ibid. p. 925. Many instances of the spirit and constancy with which the parliaments of France opposed pernicious laws, and asserted their own privileges, are enumerated by Limnæus in his Notitiæ Regni Franciæ, lib. I, c. 9, p. 224.

But the power of the parliament to maintain and defend this privilege, bore [602] no proportion to its importance, or to the courage with which the members asserted it. When any monarch was determined that an edict should be carried into execution, and found the parliament inflexibly resolved not to verify or publish it, he could easily supply this defect by the plenitude of his regal power. He repaired to the parliament in person, he took possession of his seat of justice, and commanded the edict to be read, verified, registered, and published in his presence. Then, according to another maxim of French law, the king himself being present, neither the parliament, nor any magistrate whatever, can exercise any authority, or perform any function. «Adveniente principe, cessat magistratus». Roche-flavin, ibid. pp. 928, 929. Encyclopédie, tom. IX, Art. Lit. de Justice, p. 581. Roche-flavin mentions several instances of kings who actually exerted this prerogative, so fatal to the residue of the rights and liberties transmitted to the French by their ancestors. Pasquier produces some instances of the same kind. Rech. p. 61. Limnæus enumerates many other instances; but the length to which this note has swelled prevents me from inserting them at length, though they tend greatly to illustrate this important article in the French history, p. 245. Thus, by an exertion of prerogative, which, though violent, seems to be constitutional, and is justified by innumerable precedents, all the efforts of the parliament to limit and control the king’s legislative authority are rendered ineffectual.

I have not attempted to explain the constitution or jurisdiction of any parliament in France but that of Paris. All of them are formed upon the model of that most ancient and respectable tribunal, and all my observations concerning it will apply with full force to them.

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