FRENCH ROYAL CIVIL AND CRIMINAL LAW

Although the law that was applied in the French royal courts in the twelfth and thirteenth centuries was largely customary law, with wide variations from place to place, there were also important common features.

The following description of customary law applied in the French royal courts is based largely on the great work by Beaumanoir entitled Books of the Customs and Usages of Beauvaisians, written about 1283. ⁷⁷ The author was bailiff of Clermont in Beauvais. Previously he had been bailiff in Vermandois, Touraine, and Senlis, and a seneschal in Poitou and Saintonge. His lord, the Count of Clermont, was a son of Louis IX and a brother of King Philip III. Beaumanoir had studied at the university and was thoroughly trained in Roman and canon law. He was also familiar with the case law of the Parlement of Paris. In addition to being a well-trained jurist, he was a perceptive and sensitive thinker. His book, although written in a concise style, was meant to be thorough. In a modern edition it runs to more than a thousand pages. Despite its relatively late date, and its concentration on chiefly one region of France, it is a useful source of information on the main characteristics of the law that was applied in royal courts throughout France in the twelfth and thirteenth centuries. Beaumanoir also analyzed, although in less detail, the jurisdiction and procedure of other courts in Beauvais -- the court of the count, the ecclesiastical courts, the courts of local feudal lords, the courts of the towns, mercantile courts, and courts of arbitration (to which he devoted an entire chapter). All these courts exercised a concurrent jurisdiction.

The procedures in the royal courts were more or less uniform

-473-

throughout France, at least after 1190, when Philip Augustus established the system of bailiffs' courts. The bailiff, to be sure, was a servant of the lord of the duchy or county in which he served. Yet he was ultimately subordinate to the crown, and after 1250 his decisions were reviewable in the king's central court, the Parlement of Paris. As Beaumanoir states, "each baron is sovereign in his barony, [but] the king is sovereign over all." 78 The procedure of the bailiff's court in Clermont, described by Beaumanoir, is similar to the procedure in bailiffs' courts in other parts of France as described in other contemporary sources.

In bailiffs' courts generally, and presumably also in provosts' courts subordinate to them, civil suits were commenced by a summons served orally by the plaintiff or his agents on the defendant, either in person or at his domicile or by notice (through neighbors). The summons was required to state in general terms the nature of the complaint. If it was too general, however, or vague, the defendant could plead excuse or delay. The court might require such pleading to be sworn. At trial the plaintiff was required to state in detail his complaint (demande), and the defendant was entitled to state his defense (barre). Beaumanoir compares and contrasts this procedure with that of the ecclesiastical courts: there the plaintiff's libellus and the defendant's exceptiones, he says, are in writing, and in Latin, whereas in the bailiff's court they are oral and in French; in addition, in the ecclesiastical courts there may be further pleadings -- replications, triplications, quadruplications -- whereas in the bailiff's court the issue must be joined by the demande and the barre.

The parties could be represented in court by others, called procureurs -relatives or friends or other agents to whom a power of attorney was given.

Beaumanoir lists and discusses eight kinds of proof: (1) by oaths, (2) by written documents, (3) by judicial duel (which was still admitted in exceptional cases), (4) by witnesses, (5) by court record, (6) by admission of the opposing party, (7) by judicial notice, and (8) by presumptions. Of these, witness proof was the most modern at the time and the most important for the future. Many kinds of witnesses could be disqualified or their testimony restricted, including clerics and monks, women, lepers, minors and aliens, persons convicted of crime or false witness, bastards, serfs, and Jews. Members of the family or household of a party were disqualified from testifying for him. Procureurs and advocates could not testify concerning what they had learned while acting as agents or advisers. Witnesses testified orally under oath in answer to questions put by the parties and by the judge. ⁸⁰

Thus the trial procedure in bailiff's courts, unlike that of the canon

-474-

law in civil cases, was oral, not written. But a written record was made, for the purpose of making possible an appeal to a higher instance, namely, to the Parlement of Paris.

Serious criminal cases, involving so-called high justice, were tried in the courts of lords, including the court of the chief lord, that is, the duke or count. However, serious criminal cases could also be tried in the court of the provost or the bailiff, when the king had jurisdiction by virtue of the nature of the crime or the tenure or condition of servitude of the accused. Jurisdiction was obtained through an accusation, whether by an aggrieved person or witness or another. Apparently there was nothing in the French courts comparable to the community presentment of felons through a grand jury to itinerant royal justices, such as existed in England.

The chief types of cases heard in the bailiff's court, according to Beaumanoir, were disputes over the right to chattels, inheritances, contracts, gifts, guardianship of a minor, interference with seisin, and crimes against the person. However, many other types of legal problems, legal relationships, and legal transactions are also dealt with by Beaumanoir, including various aspects of the law of family relationships (dowry, infants, minors, illegitimate children), inheritance, wills, gifts, associations (mercantile ventures, companies, cooperatives, communes), transport, weights and measures, and labor services.

French royal law, like the English and the Sicilian royal law, shared with feudal law the sharp distinction between land and chattels, as well as the sharp distinction between seisin and ownership ("full right"). These distinctions rested upon the fact that in feudal law rights in land brought with them powers of government. The additional fact that Roman law, too, distinguished sharply between "movables" and "immovables," and between "possession" and "dominion," was convenient for the lawyers, since it made it possible for them to apply Roman terminology to the feudal realities. This was somewhat illusory, however, since the Roman distinction between movables and immovables was not the same as the distinction between chattels and land, nor was Roman possession the same as Western feudal seisin. The Western jurists were not overly troubled by this; they simply converted the Roman law to their own use.

In France, Beaumanoir comments, the bailiff's court -- which is to say, the court of the king in the county or duchy or other lordship -- was especially concerned with seisin and interference with seisin.

-475-

other kingdoms in Europe in the twelfth and thirteenth centuries. In all places where there were relatively strong central rulers, they wrested jurisdiction from feudal lords by asserting jurisdiction over tortious disseisins. Belatedly in 1277, the French king issued a statute asserting jurisdiction over "novel disseisin," but in fact the crown had long exercised such jurisdiction concurrently with dukes and counts.

Beaumanoir's analysis of seisin was highly sophisticated, relying heavily on the learning of the canonists in this area of the law. He distinguished among various forms of complaint for disseisin by force, disseisin by fraud and by other tortious acts not involving force, and interference with rights of seisin short of actual disseisin. 81_French law, like English law and canon law, also protected seisin of chattels as well as of land, and in addition seisin of rights; further, it protected seisin even when unaccompanied by factual possession, as when a person was considered to remain seised of his land and of his rights of government associated therewith, even when he was away on crusade.

In contrast to the English royal courts, the French bailiffs took jurisdiction over contracts as such and not merely over sealed covenants. Beaumanoir bases this jurisdiction on the moral principle -- declared by the canonists -- that contracts must be kept, pacta sunt servanda. "All contracts must be kept," Beaumanoir writes "and therefore it is written, 'A contract prevails over a law,' except those contracts made for bad purposes [as, for example,] if one contracts with another to kill a man for 100 livres." ⁸² Beaumanoir then goes on to recite other principles of contract law that were generally accepted by contemporary Romanocanonical legal science: that the contract must not have been procured by force or constraint, that the object of the contract must not be impossible or immoral or illegal, that gambling debts and usurious contracts are unenforceable, that certain defenses may be expressly waived in the contract (for example, a seller may waive any right to complain that he has obtained less than half the value of his property).

Criminal law formed a substantial part of French customary law as practiced both in the royal courts and in the courts of dukes, counts, and lesser lords. Beaumanoir's longest chapter (114 separate articles) is devoted to crimes. ⁸³ These he divides into: (1) those punishable by death, together with confiscation of the criminal's goods by the lord on whose property they were situated; (2) those punishable by fine, confiscation of goods, and long imprisonment; and (3) those punishable by fine only. The first group includes murder, treason, violent homicide, rape, arson, robbery, heresy, counterfeiting, escape from prison, poisoning, and attempted suicide. Normally death was imposed by drag­

-476-

ging and hanging; however, heretics were burned to death and counterfeiters were boiled before being hanged. An example of a crime punishable by long imprisonment_________________________________________________ one of those in the second group

__ is perjury ("false witness"); the term of imprisonment was fixed at the discretion of the judge. The third group includes cuts and wounds, disobedience to orders of a lord, trespass, and the like. Peasants paid smaller fines; nobles paid larger fines.

Conspiracies against the common good are another example of the crimes classified by Beaumanoir as punishable by long imprisonment. These include conspiracies among merchants or artisans to increase their prices, accompanied by threats against those who would not join them. Such conspiracies were under the jurisdiction of the lord within whose competence it was to fix prices. Also included among unlawful conspiracies are those with the political goal of insurgency. Beaumanoir states that the lord who apprehends such a conspiracy should condemn the participants to long terms of imprisonment and the confiscation of their property, and should sentence the organizers to be hanged. He recalls the formation of a league of the principal cities of Lombardy against the Emperor of Rome (it was the Lombard League organized against Frederick Barbarossa in 1167): having been prepared for five years, the revolt broke out everywhere on the same day, the emperor's officers were massacred, and the conspirators "established in their cities such laws and customs as they pleased."

When a person was caught in the act of committing a crime and arrested, the lord of the place where the crime was committed had jurisdiction to try the case. If the criminal was arrested later, after the crime had been committed, the lord of the place of his domicile had jurisdiction. If the crime infringed the rights of the count or the duke or the king, then jurisdiction belonged to the one whose rights were thus infringed. Thus the murder of a royal officer or treason to the crown was tried in the king's court. In contrast to England, however, there was not in France a general or exclusive royal jurisdiction over serious crimes ("felonies"), just as there was not a general or exclusive royal jurisdiction over serious civil offenses ("trespasses"). French royal criminal jurisdiction was somewhat analogous to that of the federal government of the United States -- it was a jurisdiction over "federal crimes," many of which could also be prosecuted as "state crimes" by the various polities that made up the kingdom of France.