THE FRENCH STATE
Philip Augustus inherited a royal court (curia regis) that was essentially feudal in spirit and tradition. 68 It consisted of hereditary magnates and royal vassals, both ecclesiastical and lay, as well as royal household officials mostly chosen from the baronage.
It met when summoned by the king. It exercised a mixture of advisory, judicial, and legislative functions. In the reigns of Louis VI and Louis VII, the Abbot Suger of St. Denis, a cleric of humble origin, had exercised, as the chief adviser of the king, an important influence in increasing the power of the royal household officials and diminishing the power of hereditary magnates and royal vassals. It was this tendency that Philip Augustus carried forward. Under him the financial and judicial functions of the curia regis were separated from it and the royal chancery became a coordinating agency for those and other governmental departments. In these respects, Philip did -- or began doing -- for government in France what Henry II had done for government in England and Normandy, what Roger II-464- had done for government in Sicily, Calabria, and Apulia, and what popes since the end of the eleventh century had done for the government of the church. What Philip began was brought to fruition by his son Louis VIII (1223-1226) and especially by his grandson Louis IX ( 1226-1270).
The establishment of central governmental institutions in France could not take place until royal governmental authority could be exercised locally, through royal delegates, in the territory under the king's jurisdiction. Such a combination of central and local governmental institutions, based on the principle of delegated authority, was an essential ingredient in the formation of the Western type of state. A second essential ingredient, related to the first, was a system of law by which the royal delegates could be guided -- and bound.
It was the earlier inability of the French crown to establish such a law-guided, law-bound, delegated authority in the localities that had prevented the formation of the French state until the time of Philip Augustus. Prior to that time, not only French dukes and counts but lesser barons as well would not allow royal officers to enter their dominions. Moreover, the French kings could not make effective use of local village and county institutions, as English kings could, because the tradition of local self-government was less developed in the Frankish than in the Anglo- Saxon kingdom and was therefore more vulnerable to takeover by the feudal barons.What the French kings had done, under these circumstances, was to govern their own domain through local persons, called provosts (prevots), who lived on the royal lands as managers and governors, collecting revenues, arresting and judging lawbreakers, summoning knights and the like. They usually paid the crown a rent ("forfeit") for the rights and powers they exercised, which were called a "farm" (ferme) and were held as a fief, often hereditary. Occasionally the king would send inspectors to check on the provosts. This system was not dissimilar to that which prevailed in England in the eleventh and early twelfth centuries.
Philip II increased the number of inspections and raised the authority and prestige of the inspectors, to the point of creating a new type of official called (as in Normandy under Henry II) a bailiff (bailli).
The creation of the new institution of bailiffs was suggested to Philip and his advisers by the Anglo- Norman bailli or sheriff of Henry II's reign. Philip consciously adapted and changed the institution by entrusting to the bailiffs some of the administrative duties of AngloNorman sheriffs and some of the judicial duties of Anglo-Norman itinerant justices. Like the Anglo-Norman sheriff, the French bailiff could represent the king in many kinds of matters; he received instructions from the king, supervised his finances, and reported to him.
Like the Anglo-Norman itinerant justices, the French bailiffs were delegated from the king's court to hear pleas of the crown (cas royaux) and, in general, to uphold the rights and prerogatives of the king. By a royal or--465-
dinance of 1190, the bailiffs were instructed to hold assizes once a month, at which they were to hear claims (clamores), with the counsel of four trustworthy men (legales homines, "law men") of the locality. In time, each bailiff was assigned a fixed bailiwick which he administered for the crown and in which he sat as a royal judge. Also, after 1226 there appeared in some parts of France a similar office, that of the seneschal, who differed from the bailiff chiefly in being somewhat more independent of the crown. Bailiffs and seneschals were normally recruited from the lesser nobility of the royal household; normally they were trained in law; always they were salaried officials, servants of the crown as well as of intermediate dukes and counts.
The provost continued to administer his district, executing the king's orders and doing justice in his name. He also held court with the counsel of local residents. Appeals were taken from the courts of the provosts of a bailiwick to the court of the bailiff. The more important types of cases were reserved for judgment by the court of the bailiff in first instance. The bailiff would hold assizes periodically in the principal towns of his bailiwick with the assistance of the local provost and of "law men" or the local "council of notables" or, in some areas, lay judges (hommes jugeans). The profits from these cases -Âthe substantial fees required from litigants and the taxes imposed on communities in connection with adjudication-went to the crown and to intermediate lords.
The introduction of the system of bailiffs was a precondition for the development of a central, professional, royal judicial body. Prior to the accession of Philip II relatively few law cases had been decided by the court of the king; from 1137 to 1180, there were apparently only eightyfive all told, or less than two a year on the average.
69 These were chiefly cases in which claims of denial of justice or false judgment were brought against a great feudal lord, or cases of dispute between an ecclesiastical lord and an urban commune to which he had granted a charter of liberties. The king usually presided in person. The judges were great lords and officers of the crown invited to participate by the king. There was, as yet, no central royal court of professionals, with responsibility for applying and shaping a system of royal law.The emergence of such a court took place in the thirteenth century. At first, periodic judicial sessions of the curia regis, called parlements (meaning "discussions" or "deliberations") were held several times a year. Eventually, after about 1250, the Parlement of Paris sat as a permanent judicial body, with fullÂtime professional judges presiding regularly over civil and criminal cases, sometimes in first instance but mostly on appeal from courts of bailiffs or, less frequently, from courts of dukes, counts, and other lords. The king participated in person only very rarely and finally not at all. The Parlement of Paris survived as the supreme royal court of France until the French Revolution.
The creation of a central royal court of justice was, as in the case of
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Sicily and England and also in the case of the Roman Church, characteristic of the early development of the modern Western type of state. It represented both the combination and the separation of political power (imperium) and legal justice (jurisdictio)________________________________________________________________ their political combination
in the office of kingship and their legal separation in the offices of king's council and king's court. France was slower than England and Sicily to centralize royal justice in a single professional court, just as it had been slower to create a system of decentralized royal judges. Eventually, however, the establishment of a system of distinct, permanent, royal courts was essential to the new state structure, one of whose characteristic features was its heavy reliance on adjudication as a means of social, economic, and political regulation.
Royal administration of justice between particular parties signified, in turn, the existence of a body of royal law to be applied, and it was further understood that this body of law was subject to be replenished and changed from time to time by the king. In contrast to their predecessors, Philip Augustus and his successors were legislators, in the sense that they were recognized -- and they recognized themselves -- as having the right and duty regularly to enact new laws. Increasingly in the thirteenth century, the French kings issued statutes (etablissements) and ordinances (ordonnances) expressly changing the preexisting law. Many of these new royal laws had to do with the new system of administration of justice. Perhaps the most famous example is Louis IX's ordinance of 1258 outlawing trial by combat and converting the Parlement of Paris into an appellate court. Other laws extended the royal coinage to the entire realm, enforced more rigorous control over the towns, and, in general, increased the efficiency of royal government. It was sometimes stated in such royal laws that they were issued "for the common welfare of all," or "for the common profit of the realm." This reflected the canonists' justification of the lawmaking power of the king, expressed in Thomas Aquinas's famous definition of a law as "a prescription for the common good promulgated by one who has charge of the community." 70