LEGISLATION

The renaissance towards 1100

45 Nowadays legislation is the main source of law. The legislator abolishes existing rules and creates new ones in accordance with policy and social requirements.

"⁶ Cf. above, section 15.

This also applies to a large extent to the most important series of statutes of the early Middle Ages, the Anglo-Saxon dooms. Although there is an element of new law in them, whether in connexion with clerical privileges (necessarily new, after the conversion of the Anglo- Saxons to Christianity) or in connexion with the struggle against uncontrolled private feuds, these statutes also contain much traditional law, and the later dooms, especially the very lengthy ones of Cnut, repeat word for word a large number of provisions of the earlier ones. In the preamble to his statutes, Alfred the Great expressly states that he has repeated what was equitable in the statutes of his predecessors, and rejected or corrected other provisions, but that he would not have dared to promulgate numerous statutes which he had drafted himself. His statutes were promulgated towards the end of the ninth century, exactly at the time when the capitularies, indeed all continental legislative activity, were coming to an end.

One factor which explains the secondary role of legislation as a source of law under the ancien regime is competition from the ius commune, which made it possible to transform the old European law without legislative intervention. Yet the revival Oflegislation (in the sense of deliberate intervention in legal development) clearly goes back to the end of the eleventh century. From that time onwards the domain of the statute slowly but surely expanded. Even if the great national codes did not appear before the eighteenth century, or in some countries before the beginning of the nineteenth, legislation was already a fully-fledged source of old European law alongside jurisprudence and case law. During this period legislation by the church, by states and cities guided the development of law. Broadly speaking, two types of legislation may be distinguished. First, legislation by popes and secular rulers, promulgated by them and imposed on their subjects according to their policies. Second, legislation wanted by the community and implemented for the common good (hence the Dutch expressions keur or willekeur, which mean �choice’ or �voluntary choice’ and emphasize that the basis of this legislation was the free will of the community concerned). Such legislation was to be found in the cities of the later Middle Ages; this democratic form of legal development later came to an end with the rise of the absolutist state.

Popes as legislators

46 The revival of legislation within the church coincided with the Gregorian Reform. From the second half of the eleventh century, synods and reforming popes attempted to combat alleged �abuses’, that is, the traditional and customary subordination of the church to temporal power. The signal for reform was given by Gregory VII, who before his election had already played an influential part within the Curia. There was no chance in the revival Oflegislation during his pontificate; to initiate reform and suppress abuses the church authorities needed to legislate.

"⁸ Art. 7 of Dictatus Papae_i a sort of manifesto for the Gregorian reform, dating from 1075. well as his hostility towards custom as a source of law. The existing situation was hallowed by custom, but the pope was determined to impose new principles; he must be on his guard against custom, since the success of his policies depended on the effectiveness of his legislative initiatives. Several Roman councils promulgated new rules for the whole of the Latin church; regional councils, which were in closer touch with the people, differentiated and reinforced these principles in their respective regions and countries. But it was the popes, even more than the councils and canons, who maintained the legislative tradition from the second half of the eleventh cen­tury. ^,,9 Constant papal legislative activity influenced western atti­tudes at large and illustrated that the law could be deliberately manipulated towards given social ends.

The pontificate of Boniface VIII marked the end of the great period of papal legislation and the classical age of canon law. Afterwards the principal legislative initiatives came from the coun­cils, in two distinct periods and in very different circumstances. First came the period of Conciliarist theories, from the end of the fourteenth century through the first half of the fifteenth, during which Church assemblies were dominated by attempts to organize a form of parliamentary control. This was a response to the centralist policy of the Roman Curia, but such interesting constitutional experiments were to have no lasting effect. The second period was that of the Council ofTrent (1545-63), which was convened in order to organize the Counter-Reformation. The decisions of this council were strongly anti-protestant and firmly in favour of centralization.

Kings as legislators in the Middle Ages

47 After a gap of several centuries, legislation by kings and territorial princes also underwent a hesitant revival and became increasingly important. Their first legislative initiatives dealt only with points or questions of detail or else did no more than abrogate a customary rule which was thought to be unjust {mala consuetudo). In England William the Conqueror (1066-87) regulated the organiza­tion of the judiciary, criminal law and the law of evidence; Henry II (1154-89) introduced measures to protect peaceable possession of

"9 Cf. above, section 35. land and to generalize the use of the jury, which was intended to replace the judicial duel as a means of proof in civil matters. In Flanders, Count Baldwin IX (1194-1205) laid down rules against usury. Royal documents are extant from the Norman kingdom of Sicily which regulate feudal law and the organization of the judiciary from the twelfth century onwards. For twelfth-century France only a few scattered ordinances of the kings in criminal matters are known; more abundant legislation began only from the reign of Philip Augustus (ι 180-1223).¹²⁰ At the same time in the Holy Roman empire there were various statutes dealing with feudal and especially criminal law. The Germanic kings, who thought of themselves as the successors of the Roman emperors, sought to underline continuity with the imperial legislation of Antiquity by ordaining that some of their own constitutions be inserted into the Corpus iuris.

The first legislation on any scale (although it bears no comparison to a true codification) dates from the thirteenth century. The Liber Augustalis promulgated in 1231 by Frederick II for his kingdom of Sicily, and the Siete Partidas of Alfonso X of Castille, written in Castilian, have already been mentioned.¹²¹ In England the reign of Edward I (1272-1307) saw a proliferation of statutes on matters of public and private law; the extent of this legislative activity was surpassed only in the nineteenth century.

^,∞ G. Giordanengo, â€?Le pouvoir Iegislatif du roi de France (XI^e-XIII' siedes), travaux recents et hypotheses de recherche’, Bibliothique ecole (les chartes 147 (1989), 283-310.

¹²¹ Cf. above, section 33.

cannot be distinguished from documents attesting the transfer of property. For example Magna Carta is a collection of constitutional principles, but was promulgated in the form of a grant by the king to his subjects. The uncertainties of the age also emerge from the various names given to these ancient statutes. The statutes were sometimes called assisae, particularly in England, since they were worked out and promulgated at sessions (assisae) of the royal court. The old identification of law and custom was entrenched to such a degree that these first statutes were sometimes called leges et consuetu­dines (statutes and customs) or even leges consuetudinariae (customary statutes), although to us this seems to be a contradiction in terms.

In the twelfth and thirteenth centuries in particular, the sovereign very often addressed legislation not to the whole of the country but to certain cities or villages or groups of them. This was regularly in the form of a local charter or privilege, and frequently at the request of interested parties. Sometimes it was against their will (so-called mauυais privilege).¹²² In the Netherlands the grant of charters to cities was the method most often used for legislation. For example, count Philip ofAlsace (ι 157-91) introduced a standard modern municipal law in the seven main cities of Flanders by granting seven individual charters, whose content is identical.¹²³

Techniques and formal rules for national legislation were gra­dually established. In England the practice that statutes must be promulgated by the king and parliament was instituted and has not changed since the end of the Middle Ages. In France ordonnances royales were promulgated by the government, generally without the involvement of the Estates General. In the Netherlands it remained quite rare for the sovereign to promulgate ordinances for each or several of the provinces. Under Burgundian rule such legislation became more important,’²⁴ but its influence ought not to be exaggerated (certainly not in the area of private law). Many of the ordinances have nothing to do with statutes proper, but are indi-

^l2≈ E.g. the â€?mauvais privilege’ introduced by count Louis of Nevers in several places, especially Bruges in 1329, after the suppression of the uprising in coastal Flanders.

^,≈3 See R. C. van Caenegem and L. Milis, 'Kritische uitgave van de “Grote Keure” van Filips van de Elzas, graaf van Vlaanderen, voor Gent en Brugge (1165 77)*, Bulletin de la commission royale d’histoire 143 (1977), 207-57.

^,2< The ordinances of the period from 1381 to 1405 have been edited by P. Bonenfant, J. Bartier and A. van Nieuwenhuysen, Recueil des ordonnances des Pays-Bas, 2 vols. (Brussels, ¹965-74; Premiere serie, Comm. roy. des anc. lois). vidual concessions, appointments or other administrative measures, or else deal only with taxation, finance or criminal law.¹²5

Kings as legislators in modem times

48 Before the codification movement of the eighteenth century, national legislation in Europe in modern times was not very abundant, at least in private law. In England the Tudors passed numerous important statutes, but they regulated only political and religious questions; in the following centuries statutes were most often made up of miscellaneous provisions proposed for their own purposes by Members of Parliament. In Germany and the United Provinces legislation remained very limited; the legal system was based on the ius commune and Rooms-Hollands Recht respectively. In Spain the recopilaciones were no more than compilations of existing legislation. In the southern Netherlands and in France the develop­ment of law threatened to peter out after the homologation of customs. None the less in France there was a series of great royal ordinances. This was legislation of prime importance whose influence is still felt today. Although the principal ordinances were promulgated under Louis XIV and Louis XV, there is no break in continuity between the medieval and the modern. Examples are the Ordonnance Cabochienne (1413)¹²⁶ which was an attempt at democratic reform of political institutions. The Ordonnance of Montil-Iez-Tours (1454) aimed at better and swifter legal procedure, and provided for the official reduction of customs to writing in order to achieve greater legal certainty. The Ordonnance of Villers-Cotterets (1539) extended the jurisdiction of the royal courts at the expense of that of the church courts, largely for matrimonial cases; it also regulated questions of procedure; and it contained dispositions relating to wills and the registration of donations (which are now to be found in articles 907, 931, and 939 of the Code civil). The Ordonnance of Moulins (1566) extended the jurisdiction of the royal courts still further, this time at the expense of the urban courts; it also contained

”5 On the disparate character of these ordinances see the criticism of P van Peteghem, Remu d^,histoire du droit 48 (1980), 84-8. In criminal law, the ordinances of the Duke of Alba were most important: M. van de Vrugt, De criminele Ordormantien mm 1570. Enkele beschomvingen over de eerste Strafrechtcodificatie in de Nederlanden (Zutphen, 1978).

^1,6 The name refers to the riots and demonstrations which preceded the promulgation of the ordinance; the processions were often led by Caboche, who worked at the great StJacques slaughterhouse.

Europe and Roman-Germanic law, c. noo — c. ιj50 91 a disposition requiring written proof for contracts in excess of a certain sum (repeated in article 1341 of the Code civil). The very extensive Ordonnance of Blois (1579) contained dispositions on very diverse matters: clergy (arts. 1-64); hospital management (65-6); reform of the universities (67-8); the administration of justice (89­209); the abolition of certain offices and burdens (210-55); the nobility (256-75); the army (276-320); the court (321-8); Crown estates (329-54); the police and the maintenance of highways (355­6); the guilds (357-^β3)∙

In the Middle Ages, ordinances were worked out by the royal government after consultation with the powerful secular and clerical figures of the kingdom; drafting them was generally left to legists in the service of the king. The assemblies of the Estates (the �parlia­ments’ of the Middle Ages) did not usually take part in this legislation (by contrast they did in England). During the second half of the sixteenth century, when the French monarchy was in a grave crisis, the Estates General were able to extend their influence, but their role diminished once more in the following century, as they were no longer convened between 1614 and 1789.

The great ordinances of Louis XIV and Louis XV

49 Some of the French ordinances were very succinct and regu­lated only a single question; an example is the ordinance of Louis XII in 1510 on short prescription;¹²? others (as we shall see) were extensive and various, but dispositions on private and civil law were mostly infrequent. This state of affairs changed with the great ordinances of Louis XIV and Louis XV. Three ordinances were promulgated under Louis XIV thanks to the political support of Colbert, who recognized that the development of commerce and industry demanded proper administration of justice, and thanks too to the legal knowledge of Guillaume de Lamoignon {d. 1677) and Henri Pussort (rf. 1697).

The Ordonnance civile pour la reformation de la justice (1667) was known as the Code Louis owing to its scale. It aimed to introduce a uniform system of civil procedure for the whole kingdom and to speed up legal process, which was to be conducted according to a written procedure. The Code de procedure civile of 1806 repeats this

Most are repeated in the Cade civil, arts. 2271-7.

ordinance almost in its entirety, and its influence can still be traced even in the Belgian Code judiciaire of 1967; other dispositions were repeated by the Code civil of 1804. The Ordonnance sur Ie commerce (1673) known as the Code Marchand or Code Savary, after its principal author, proved very durable and laid the basis for the Code de commerce promulgated under Napoleon. The Ordonnance sur Ie commerce des mers or Ordonnance de la Marine (1681) on maritime law was repeated in the second book of the same Code de commerce.'²⁶

These ordinances did not attempt to innovate, let alone to indulge in revolutionary codification. They built on existing dispositions, they harmonized the existing law, and they abrogated the rules which they did not include. This was a decisive step towards legal clarity and security. The importance attached by the young Louis XIV in 1665 to the reform of justice has to be seen in its political context; the essence of the reform was simplification and standardization.¹²⁹

It is unfortunate that the works of the reform commission made no impression on the important fields of criminal and civil law.'³⁰ In civil law, three partial codifications (simplifying and standardizing again, rather than innovating) were promulgated under Louis XV: the Ordonnance sur les donations (1731), Ordonnance sur les testaments (1735), and Ordonnance sur les substitutionsfideicommissaires (1747). The first and third ordinances applied throughout France; the second provided different rules for the regions of customary and of written law. The Code civil largely reiterated the principles of these ordi­nances. As they were in large part the efforts of the chancellor, Henri-Frangois Daguesseau (d. 1751), they are also known as the Ordonnances du chancelier Daguesseau.'^' None the less, the monarchy did not achieve a unification and codification of civil law. It faced not merely the obstacles of ancient custom and regional tradition,

^,2β The Ordomumce criminelle, which in fact dealt with criminal procedure, also appeared in 1670.

^,≈s The Code de procedure pinale of 1670, for example, was a logical extension of the development over the centuries of inquisitorial procedure, which had originated in Roman-canonical procedure.

'3° Guillaume de Lamoignon hoped to compile a comprehensive code of private law for promulgation by the king in a series of ordinances for the whole of France. In his compilation he made use of ordinances, case law, and above all customs, especially that of Paris. His radical unification came to nothing, although his preparatory texts, the ArreUs completed around 1672, are extant. They were published as a private work in 1702 (second edition, 1783) after his death in Paris. Daguesseau was influenced by them; and the compilers of the Code civil were also familiar with the work.

^,3' H. Regnault, Les Ordonnances civiles du Chancelier Dagiusseau, 3 vols. (Paris, 1929-65).

but also the resistance of conservative parlements. The political unification of France was recent in comparison with England, and in the eighteenth century still incomplete.'³²

There are several aspects to the involvement of the parlements in the legislative process (de Lamoignon, for example, was the first presi­dent of the Parlement de Paris), but the main one is the right of remonstrance. The parlements, at their head the Parlement de Paris, had the right to refuse to register new royal ordinances (that is, to inscribe the authentic text in a special register, with the legal consequence that the statute was thereby promulgated and came into force). Legal reasons for refusal had to be submitted to the king (remontrances au roi). The reasons might derive from divine law (which was the basis of royalty itself) or from fundamental laws of the realm, a rather vague body of customary rules which had never yet been clearly formulated and whose content seemed to be known only to the counsellors. The king then had the choice whether to accept the remonstrance and withdraw the statute or to reject the arguments of Sheparlement and ordain registration by letter of order (Iettre dejussion). If Sheparlement persisted in its refusal, the king had a final resort to the â€?couch of justice’ (lit de justice): surrounded by his chancellor, peers and his council, he was installed on the lit de justice in Sheparlement and in person ordered the clerk to proceed with the registration of the statute. The frequent use of the right of remonstrance by theparlements (although reduced under Louis XIV) and the serious conflicts which followed seriously affected the development of French law, although more in the area of public than private law.'³³

Municipal legislators

50 Nowadays the expression �municipal legislation’ sounds contra­dictory: municipal authorities have the right to lay down adminis­trative regulations about such things as traffic and highways, but legislative power in the strict sense, especially in the area of private law, is not within their competence. In an earlier period the position

*3’ A distinction was drawn between the pays d’election, pays d’ttats and pays d’imposition, there were still internal customs barriers within France.

■33 S. H. Madden, â€?L’ideologie Constitutionnelle en France: Ie lit de justice’, Annales. Economies, socittes, civilisations 37 (1982), 32-60; S. Hanley, The lit de justice of the kings of France: constitutional ideology in legend, ritual and discourse (Princeton, 1983); M. P. Holt, â€?The king in Parlement: the problem of the lit de justice in sixteenth-century France’, Historical Journal 31 (1988)> 507-24- was different. In the later Middle Ages cities which gained their political independence acquired with it a legislative capacity, whose extent depended on the balance of power in that country. Where the central authorities were strong (as in England) local legislation was little more than regulatory power; but where the central authorities could assert themselves only with difficulty, and the cities were in a position of strength (as in Italy), municipal legislation was impor­tant and extensive, and might even have consequences on a Euro­pean scale. In France local legislation was important in the twelfth and thirteenth centuries, during the transition from a weak monarchy and fragmented kingdom before the time of Louis VI (1108-37) ^{to a} strong monarchy and unified kingdom in the time of Philip IV the Fair (1285-1314). In the Netherlands, where the balance of power between the cities and the princes was always uncertain, municipal rules laid down by aidermen were an impor­tant element in the development of law. In Flanders in 1127 the city ofBruges obtained from the new count, William Clito, the power to â€?amend’ its customs. In his Great Charter, Philip of Alsace gave the great cities the right to lay down regulations under the supervision of the count, but this last restriction had already disappeared at Ypres towards 1300. An important collection of fourteenth-century legisla­tive documents enacted by the city of Ghent is preserved; its enforcement relied on a communal system of fines.¹³⁴

In the sixteenth century the great age of municipal legislation came to an end; the power of national monarchies and the spread of the learned law had brought it to a standstill. The cities were reduced to local subordinate administrations or were incorporated into small principalities. Custom, the ius commune and scholarship were the principal sources of the Code civil; municipal legislation was not. Yet in its heyday this legislation had had its significance for the history of European law: it was the first attempt to reform and develop law from the base of society. The content and perspective of municipal law are also interesting and quite different from that of royal legislation or the Corpus iuris. Within the community the policy was friendly conciliation between fellow citizens rather than re­pression; there, voluntary solidarity was more effective than subjec­tion to the sovereign; it was a much more dynamic model of law than blind acceptance of the authority of ancient customs.

N. de Pauw (ed.), De Voorgeboden der stad Gent in de XIV' eeuu> (Ghent, 1885).

CASE LAW

51 Case law was a source of law alongside custom, statute and scholarship, and was intimately connected with the other sources, for the origin and development of a custom is to be seen in its application by the courts; statutes (whatever some may say) cannot foresee everything, and have to be completed and interpreted by case law; while a jurisprudence which takes no interest in case law amounts to no more than an unworldly abstraction. It was often through the courts of justice, in which the legists sat and pled, that the learned law was introduced, sometimes unobserved, into prac­tice. Owing to the case law of the Parlement de Paris, various principles of the Coutume de Paris came to form a French common law. And when scholarly opinion was divided, it was up to case law to determine which theory should prevail (a role which the Roman Rota often played). Not only was case law for centuries an important source of law, but for that reason it is also well documented, as the miles of archives of the European high courts of justice attest. The oldest sources of this vast judicial documentation date from around 1200 for the royal courts in England and 1250 in France. Although case law always had a role to play, its importance varied gready from one country to another, according to the impor­tance attached to the other sources of law. It is obvious that in the system of the Common Law, in which legislation and jurispru­dence were merely secondary, case law had fundamental impor­tance. By contrast, canon law was focused on legislation and juris­prudence and placed little weight on case law. The following is a sketch of case law from legal system to legal system and country to country.

In the classical canon law of the twelfth and thirteenth centuries, the case law of the pontifical Curia was eclipsed as a source of law by the decretals. When the creative energy of the decretals died out in the fourteenth century, the judgments of the supreme church court, the Roman Rota, increased in importance. The law had to develop and, when legislation was lacking, case law had the chance to take its place. During the fourteenth century court officials compiled several selections of the judgments of the Rota {Decisiones). Hundreds of manuscripts of these collections have been preserved, and some were printed at a very early date. Legal practice before the Rota made a major contribution to the development of the law of procedure, even in the secular courts (such as the Imperial Chamber in Germany).'³³

In England case law always occupied and still occupies an important place. From the twelfth century onwards there is an uninterrupted series of â€?rolls’ of the royal courts which record precedents. In legal practice, however, private anonymous collec­tions for the use of advocates (â€?Year Books’’³⁶) were more significant. These collections, which appear from the thirteenth century, rather resemble Iegaljournalism: they repeat the legal arguments advanced before the court, and give a vivid account of the interchanges between judges and advocates, often word for word. The Year Books report decisions in chronological order; from the fifteenth century they were reworked and were used as the basis for systematic collections (â€?Abridgments’) which regrouped cases according to subject-matter, and which had considerable influence on the edu­cation of young lawyers.'³⁷ The last Year Books were compiled towards the middle of the sixteenth century; their role was then taken over by the Law Reports, some of which grew into virtual commentaries.¹³⁸

In France, too, case law was an important source of law. Authors who made use of the judgments of the Parlement de Paris and the Chatelet have been mentioned. They gathered their information by consulting the imposing series of registers covering the activities of the Parlement from the middle of the thirteenth century, and containing not only final judgments, but also interlocutors, internal discussions and even the pleadings of advocates.'³⁹ Alongside these official sources, there were private collections compiled for the use of practitioners which contain, in addition to judgments, other sources of interest, such as notes and arguments, often borrowed from the

'55 Cf. G. Dolezalek and K. W. N∂rr, â€?Die Rechtsprechungssammlungen der mittelalterlichen Rota’, in H. Coing (ed.), Handbuch, t, 849-565.

^,s⁶ From the fifteenth century, the reporters’ names are sometimes known. From the reign of Henry VII (1485-1509) the Year Books were printed; a modern edition of the medieval Year Books began in the nineteenth century and is still in progress.

't? The high point was the massive General abridgment of law and equity, ed. Charles Viner in 23 volumes between 1741 and 1753.

'3⁸ E.g. the Commentaries of Edmund Plowden (d. 1585), based on the cases of the 1550s to the ¹57^os∙......

'3’ M. Langlois gives a sketch of the collection in Guide des recherches dans les fonds Judiciaires de l^,ancien regime (Paris, 1958), 65-160. Thejudgments and appeal decisions of the county of Flanders for 1320-1521 have been edited by R. C. van Caenegem, Les arrets et juges du parlement de Paris sur appels Jlamands conservis dans les registres du Parlement, 2 vols. (Brussels, 1966-77; Comm. roy. anc. lois). learned law. One such collection is the Questiones of Jean Lecocq, which brings together and annotates the decisions of the Parlement de Paris from 1383-98.¹+⁰ Collections of the judgments of the Parlement de Paris and the provincial parlements were published right through the ancien regime.

In principle, the task of the courts was to apply the law to actual disputes; it was for the legislator to lay down legal norms. The old courts generally kept to their judicial task. In France, however, the many arrets de reglement (regulatory decisions) pronounced by the parlements are an exception to the rule. These decisions established general rules of law applicable to everyone, so that within the jurisdiction of the parlement they corresponded to a kind of legislation. They were pronounced in the course of litigation, when a new question of law arose.'⁴' Although they are found even in the fifteenth century, it is above all in modern times that they become important.

In the southern Netherlands case law is also to be found in the same three types of source: books of law (rechtsboeken) based on judgments; official series of decisions; and selections of judgments compiled and annotated by lawyers. These are some representative examples: among the medieval books of law made up essentially of judgments, the collection of the court of the Salle de Lille (from the end of the thirteenth century until the beginning of the fifteenth) is of particular interest.'⁴² Another important collection contains hundreds Ofjudgments of the aidermen of Ypres for use as guidelines by their colleagues at Saint Dizier in Champagne. This city had in 1228 received the law of Ypres and for guidance turned to the aider­men of Ypres; when confronted with a new question of law,'⁴³ they

^,4° Modern edition by M. Boulet, Questiones Johannis Galli (Paris, 1944). From the same period there is also a collection of notes on the case law of the Parlement, gathered by an anonymous lawyer and published by Fr Olivier-Martin, â€?Notes d’audience prises au parlement de Paris de 1384 a 1386 par un practicien anonyme^,, Revue historique de droit franςais et e Ir anger, 4th edn, 1 (1922), 513-603. Cf. the edition of the Arresta lata inparlamento by G. Naud in Bibliotheque de Γtcole des chartes 121 (1963), 77-131.

'4' See G. Deteix, Les arrets de riglement duparlement de Paris (Paris, 1930); B. Beignier, â€?Les arrets de reglement’ Droits. Revue franςaise de Ihtoriejuridique 9 (1989), 45-55.

^,4^a R. Monier (ed.), Les lois, enquetes et jugements des pairs du castel de Lille. Recueil des coutumes conseils et jugements du tribunal de la salle de Lille 1283-1406 (Lille, 1937).

'43 Comte Beugnot (ed.), Les Olim ou registres des arrets renduspar la cour du roi, π (Paris, 1842), 718-853 (the so-called â€?Tout-lieu de Saint-Dizier’); also published in L. Gilliodts-van Severen, Coutumes des pays et comtt de Flandre, quartier d^, Ypres. Sources et deυeloppement de la coutume d^, Ypres, 11 (Brussels, 1908), 62-162 (Comm. roy. anc. lois). This series of questions and judgments extends from 1305 to 1470. consulted them before passing sentence. The archives of the old courts of justice contain an imposing series of registers which are currently being studied. Notable among these are the archives of the Council OfFlanders¹+* and the Great Council of Malines.’⁴⁵

The arretistes (â€?case reporters’) should also be mentioned. In early modern times they published collections of selected and annotated decisions. Their attention was focused principally on the decisions of the superior courts: the Great Council of Malines, the Council of Flanders, and the Council of Brabant. The titles of these collections often state that the work is made up of decisiones', for example, the work of Paul van Christynen (Christinaeus, d. 1631), advocate at the Great Council of Malines.’⁴⁶ Another celebrated arretiste was Pierre Stockmans (established (just) before the creation of officialities.

Inevitably, one country differed from another, but the basic common trends in reform and in development of the system of courts and civil procedure can easily be identified. There is remarkable continuity between the last centuries of the Middle Ages and modern times up to the Enlightenment; in this context the tradi­tional divide between Middle Ages and modern times around 1500 is without explanatory value. We now turn to five fundamental aspects of the history of the courts in the ancien regime-, centralization; specialization; the movement away from democratic institutions; state control; and rationalization of the law of evidence.

Centralization

53 Centralization, which replaced the local independence of the early Middle Ages, certainly did the most to shape the court system. The decisive element in this development for both church and state was the establishment of a central court with jurisdiction over the whole of a community or principality. Several paths led to this result. Centralization was most radical in England, within the Court of Common Pleas, a central royal court which sat at Westminster. It had jurisdiction throughout the kingdom for a great number of actions at first instance, which were initiated by royal letters or writs (comparable to the Roman actiones). Such disputes were between free men, who all had the right to turn directly to the royal jurisdiction, and did so mostly where land rights were concerned. The emergence of a central jurisdiction under Henry II (ι 154-89) naturally encroached on the territory of the old feudal and seigneur- ial courts. This is to be explained largely by the fact that litigants had much greater confidence in the powerful royal courts. The decline of municipal courts followed, and their competence was limited to cases of little importance. It was the great strength of the kings of England, and the rapid unification of the kingdom, which made this extreme concentration of judicial activity in one central court possible. Practical inconveniences such as long journeys to Westminster were reduced by a system of circuit judges who travelled through the country, and by the local examination of juries in the counties. An almost complete centralization has persisted in England up to the present day. Decentralization began only recently, with the creation of a system of local courts of first instance which have a jurisdiction much more extensive than that of the county courts of the nineteenth century.

In the church and in most countries, centralization was achieved by the establishment of a central court of justice, whether pontifical, royal or comital, with a limited competence at first instance (for maiores causae, corporations and important persons), and usually a general competence in matters of appeal. The model for these courts was the Curia Romana (later the Rota Romanaj whose judicial activity from the thirteenth century onwards was particularly intensive. It was the first European court ofjustice, for its jurisdiction extended to legal actions from the whole of the West, from Sweden to Portugal, from Scotland to Sicily. The large number of litigants from all the countries of Latin Christendom compelled the popes to entrust many of the cases to papal judges delegate, who were charged with in­vestigating and judging disputes in the dioceses of origin and in the name of the pope. This centralization of the church took place at the expense of local instances - bishops, archbishops, deans, archdeacons and officials - who were placed under the very strict supervision of Rome. Centralization inevitably meant a hierarchical system of justice.

So far as secular courts are concerned, the following are the main points. In France the Parlement de Paris became the supreme royal court towards the middle of the thirteenth century. It was competent at first instance for some matters and for important persons; as an appellate court its jurisdiction was general.¹⁵² In the Netherlands councils ofjustice developed in different provinces: in Flanders, for example, the Audience at the beginning, and the Council of Flanders towards the end, of the fourteenth century. Under Bur­gundian rule, the union of Dutch provinces led to the creation of central institutions for the whole of the Burgundian Netherlands: the (itinerant) Great Council of Philip the Good gradually developed within the ducal council between 1435 and 1445; the Parlement of Malines, established there by Charles the Bold from 1473-77; Λ^e Great Council of Malines (again fixed there) from 1504 to 1794. In

In later centuries the provincial parlements relieved the burden of the Parlement de Paris. the German empire, the ReichshoJgericht was replaced during the fifteenth century by the Kammergericht in which academic lawyers sat. On the initiative of the assemblies of Estates, the Reichskammer- gericht was created in 1495, independently of the Crown. It was intended to sustain the general movement towards unification and political reform in Germany. Originally the court was composed in equal numbers of academic lawyers and noblemen. In addition to the Reichskammergericht, the emperor maintained a supreme imperial council, the Reichshofrat.

Specialization and professionalization

54 Centralization entailed specialization among, and professional­ization of, the staff of the courts. In the old feudal curia regis, the king had discussed the most varied matters with his great vassals. From time to time these included legal questions, although they were much less important than the political and military discussions. The vassals of the royal court were bishops, abbots, counts and dukes, who had no legal education and had acquired their experi­ence in feudal law with age. In the new central jurisdiction the position was quite different: strict division of labour applied; the councils had specifically to ensure the administration of justice; and they were occupied full time with legal questions arising from the cases which they had to judge. These councils were fixed in one place, unlike the old curia which constantly followed the king on his travels.

The councillors were professional judges who, at least on the continent, had been educated at university. Later, the lower courts would also employ professional and academic judges. This general development can be seen first in the church, where the system of officialities, which developed from the end of the twelfth century, became general during the thirteenth. The officiality replaced the curia episcopalis, in which very varied cases had been dealt with by various (some lay) people who had no specific training. Here Roman-canonical procedure was introduced. During the first half of the twelfth century, lawyers developed a jurisprudence of procedure, based on texts from canon law and the compilations of Justinian. They ordered and commented on the elements of the canonical and Roman sources, and so formulated a coherent procedural system, whose influence over the centuries extended throughout Europe, first in the church itself (especially the officialities), and then in sec­ular court practice. This might be either by ordinance of the sove­reign or at the instigation of councillor lawyers, who modelled their own form of procedure on the learned law. The influence can be observed even in England, although not in the Common Law courts.

The Speculumjudiciale of Guillaume Durant (first edition 1271-6, second 1289-91) offers a very detailed insight into the principles of Roman-canonical procedure. The procedure is directed by a single professional judge (or by a panel of professional judges), who both investigates and pronounces final judgment. His task therefore involves evaluating questions of fact and questions of law. The core of the procedure is the examination of witnesses or, if necessary, documentary evidence. Writing plays an important part in the procedure: the statements of witnesses are written, and a written summary of them is made available to the other party. The plaintiff initiates the litigation with a document, the Iibellus, whose main purpose is to describe his actio∙, and he presents another document containing articuli, that is, the allegations on which the witnesses are to be examined, and which his opponent must contest or admit. The defendant can for his part invoke various exceptiones. The subject­matter of the legal action was defined at litis contestatio, and was also set down in writing.

The law paid particular attention to the procedure for appeal, which like all other stages of procedure was regulated in detail. Examination of witnesses was secret, in order to assure them freedom ofexpression; broadly speaking, secrecy was characteristic of learned procedure, and the public was kept at a distance. Bureaucracy dominated the procedure, as is shown (for example) by the inquests of councillor-commissioners, whose reports were the basis for the decisions of the council.'⁵³ The detailed rules on evidence merit their own section.¹⁵⁴ The diffusion of this procedural model can be followed through the late Middle Ages; there is a link between Bologna and the church courts and the Parlement de Paris, whose

'53 This characteristic became so marked that in modern times it gave rise to the expression quod non est in actis non est in mundo (literally �what is not in the documents is not in the world’); the magistrates took account above all of the papers rather than the people in the case.

'54 See below, section 57.

Stylus Parlamenti inspired the procedure of the courts of justice in the Netherlands, especially the Great Council of Malines.

Movement away from democratic institutions

55 These developments had the immediate result that popular participation in the administration of justice ceased to be important. During the first centuries of the Middle Ages as well as in Germanic Antiquity, the people had taken a direct and active part in decisions; sometimes the judges had sought assistance, and the people had been asked to express agreement with, or disapproval of, the decisions proposed by the judges who had â€?found’ the applicable law. The procedure was completely oral and public. After the late Middle Ages this practice disappeared. It would be an exaggeration to attribute the change solely to the spread of Roman-canonical procedure, since even outside its sphere of influence the role of the people was curtailed.¹⁵⁵ None the less, it is clear that the example and prestige of learned procedure played a part in the decline of popular participation in the law. The people also became less and less capable of grasping the contested issues or comprehending the learned language of the courts. This alienation was exacerbated when the recruitment of magistrates was restricted to graduates, and still more by the venality of offices (that is, allocation by the Crown of seats as councillors to the highest bidder). From that time on, the magistrates formed a class of wealthy noblemen practically as exclusive as the law which they applied.

English procedure too became more esoteric. There, too, the magistracy was scarcely accessible, and legal language was unin­telligible to any non-initiate, not only because of its technicality but also because the language used was not even derived from English but was a petrified form of Norman French going back to the twelfth century (�Law French’). Yet the procedure (even the civil pro­cedure) of the Common Law did preserve one traditional institution which maintained its link with the people: the jury. Since the professional judges were obliged to explain the significance of legal principles in comprehensible terms to a jury of non-lawyers, the people were not entirely excluded from the legal system.

'55 E.g. the prohibition in the Great Charter of Philip of Alsace on contesting thejudgment ofa court of aidermen.

State control

56 In the course of modern times the organization of the courts was taken over by the state. Of course, other courts existed alongside the royal jurisdictions, but their competence was firmly restricted. These were the feudal and Seigneurial courts, whose origins go back to the early Middle Ages, and whose jurisdiction was over vassals and the inhabitants of the great domains respectively. Thejurisdiction of the feudal courts was essentially limited to law on land ownership (relating to fiefs), while that of the Seigneurial courts was often restricted to cases of low justice, higher justice being administered elsewhere. These jurisdictions were also subordinate to central control by way of appeal. Even in Roman Catholic countries, the church courts lost a large part of their jurisdiction over lay people to the royal jurisdictions, while the publication of new pontifical statutes was subjected to the placet (approval) of the sovereign.

The municipal jurisdictions, whose competence within the walls of a city and sometimes even beyond had for centuries been total, also declined in importance; their competence was restricted and the means of appeal against their decisions extended. Yet, in spite of the superiority of the royal jurisdictions-bailiffs, seneschals (senechaux), and parlements - the system of courts even in the eighteenth century was not a hierarchy in the shape of a pyramid. Historical exigencies had created different networks and systems of jurisdictions, with sometimes concurrent competences. At the end of the ancien regime these still coexisted. The establishment of a single system was a matter for the enlightened absolutism of the eighteenth century and the French Revolution.

Rationalization of the law of evidence

57 In the early Middle Ages the law of evidence was dominated by the irrational system of ordeals. This state of affairs changed completely in the period with which we are now concerned: from the twelfth century, ordeals were abolished and progressively replaced by rational means of proof, based on critical and rational examina­tion. This change was already apparent in the twelfth century in England, Flanders and Italy, arid reached central and eastern Europe about a century later. Some residues (such as the feudal fondness for the judicial duel, and the revival of trial by water during the witch-hunts of the sixteenth and seventeenth centuries) were still to be found at a later date, but, in general, from the thirteenth century the law of evidence in Europe employed essentially rational methods of inquiry. ¹J⁶

Roman-canonical procedure also influenced this development, but its importance must not be exaggerated. The renaissance of Roman law was not the proximate cause of the transformation. Rationalization of the law of evidence can be detected in England and Flanders from the twelfth century, and thus before Roman law penetrated into those regions, and before the church courts applied the new procedure. In England, therefore, a modern law of evidence could develop independently of Roman law based on national institutions, notably the jury. Elsewhere, where rationalization came later, it was simpler to follow the Roman-canonical method, for instance, in France in the thirteenth century. The learned law of evidence finally prevailed everywhere on the continent and became the system typical of Europe in modern times. The Common Law is the sole but important exception to this diffusion: the English system preserved the institution of the jury (and does still nowadays for criminal matters, and until recently for civil ones).

One of the most striking elements of the new procedure was the system of�learned’ or �legal proofs’. To understand its significance, we must recall that the disappearance of the old modes of proof had created a serious gap. In the old system the irrefutable signs of Providence determined what was true or false, which party was innocent or guilty. How to replace this archaic system? By force of circumstance the judges had to rely on documents, witnesses, real evidence and so on, but it was obvious that a document could be falsified, that witnesses could contradict one another, and that evidence was sometimes unclear and misleading. Must the judges be allowed to assess the elements freely and judge on the basis of their inner conviction (as at present)? Or ought a system to be devised in which each mode of proof was assigned its own value, and in which the acceptance or refutation of various types of witnesses, and the authentication of documents, were subject to precise rules? In the

^,s⁶ Ordeals were criticized from all sides. The authorities mistrusted their ambiguousness and their potential for manipulation; the church began to see in them a challenge to God, from whom new miracles were constantly expected; the cities were against them because a merchant was inevitably at a disadvantage in a judicial duel against a knight; and the jurists were opposed to them as the Corpus iuris by its silence implicitly condemned them. Common Law system the dilemma was resolved by entrusting the jury with the sovereign task of resolving questions of fact. The continent opted, on the other hand, for a system ofâ€?learned proofs’: the challenging of certain types of witness (for instance women, parents and serfs) was regulated in detail; and each element of proof (direct and circumstantial witnesses, character witnesses, real evi­dence, presumptions, bad reputation) was assigned a numerical probative value. In this system a full proof (plena probatio) corre­sponded to two direct corroborating witnesses. The original, and no doubt laudable, aim of this system was to safeguard the parties against any arbitrariness on the part of the judges. Jurisprudence discussing the admissibility of witnesses and the credibility of evi­dence certainly helped to convince magistrates of the relative value of different modes of proof. On the other hand, the system was also extremely theoretical and artificial.'⁵⁷