THE FRENCH SYSTEM OF ROYAL JUSTICE

Legal historians often treat the development of the French system of royal justice as having been almost a century behind that of England. They point out that in England there was a central royal court in the 1170s, whereas it was not until the 1250s that a central royal court, the Parlement of Paris, was established in France.

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first instance, initiated by original writ. One should therefore compare the twelfth_century English royal jurisdiction with the twelfth_century ducal and county jurisdiction in the individual French duchies and counties_____________________ Burgundy, Maine, Toulouse_____ as well as with the king's jurisdiction in the

royal domain. (For France, the term "county" refers to the polity governed by a count, not to the English type of county, or "shire.") One should also compare the English royal jurisdiction with the French system of royal judges bailiffs_____________________________ established by Philip II in 1190; the main difference was

that the bailiffs were neither itinerant nor centrally located but operated in separate districts, having a dual allegiance to the king and to the duke or count of the region. Louis IX's Parlement of Paris, on the other hand, did something the English central royal court did not do: it regularly heard appeals. This difference is neglected by those who treat the English development as "precocious" or the French as "backward."

If one compares centralized justice in England with centralized justice not in France as a whole but in a large French duchy, one finds marked similarities between the two during the twelfth century.

In establishing a hierarchical system of courts, with a regular procedure for appeals from courts of provosts to courts of bailiffs and from courts of bailiffs, as well as from courts of dukes or counts or other lords, to the central royal court in Paris, the French state was considerably "ahead" of the English state, not "behind" it.

Of course it would have been quite incongruous for the English kings to have attempted to fashion a system of appeals, since under the procedure of the English royal courts such appeals would have had to be taken from verdicts of inquests consisting of yes-or-no answers, based on the jurors' previously acquired knowledge, to questions of fact -- or of a mixture of fact and law -- put by royal justices. The nearest the English law came to instituting such appeals was the procedure of attaint, applicable in civil cases only, under which a "grand assize" of twenty-four persons was summoned to review a prior jury verdict; if it was found to be false, the aggrieved party was given back all that he had lost by reason of the unjust verdict, and the original jurors forfeited their goods, were themselves imprisoned, their wives and children thrust out of doors, their homes razed, their trees extirpated, and their meadows plowed up.

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The French system of civil and criminal trial procedure was at first_that is, in the twelfth and early thirteenth centuries_not so different from the English.

countryside to participate in the trial of cases was enhanced by the legislation of Philip Augustus establishing the bailiffs' courts. The institution of "inquest by the people" (enquete par turbe) was also devised to determine local customs: twelve men were summoned to state the customs, and their unanimous opinion was expressed by their spokesman.

The French system underwent dramatic changes in the latter part of the thirteenth century and thereafter. As John P. Dawson has shown, the French procedure grew more learned and more complex. ⁷LProfessionally trained lawyers appeared not only at the appellate level but also in courts of provosts and bailiffs as well as of dukes and counts and even of lesser lords. Eventually, in the fourteenth and fifteenth centuries, not only the Parlement of Paris but also the judges in lower courts, even at trial, followed a written procedure similar to that of the canon law: the parties exchanged written statements of claims and defenses; there were written interrogatories and sworn testimony of witnesses, taken in secret; the court's decision was expressed in written findings and a reasoned opinion. Parties challenged each other's questions. The rulings of examiners were recorded. Formalities abounded. Appeals based on alleged errors in the voluminous records were taken from lower courts to higher courts, and ultimately to the Parlement of Paris. As Dawson puts it, the lay membership of the lower courts gradually drifted away, "discouraged and confused by an increasingly complex procedure." ⁷² The official element predominated over the popular element, although the enquete par turbe survived.

From the perspective of later developments, one may plausibly argue that the early adaptation by the French kings of the procedure of the canon law, and their creation of a hierarchical system of appeals culminating in the central royal court in Paris, had deleterious effects upon the subsequent history of French law, and that the early adaptation by the English kings of the inquest system of the Frankish tradition had beneficial effects upon the subsequent history of English law. From the perspective of the twelfth and thirteenth centuries, however, the French system of courts and court procedure had considerable advantages over the contemporary English system, advantages in terms both of justice for litigants and of royal ordering of the society.

In terms of justice for litigants, the French procedure, like the pro­

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cedure of the ecclesiastical courts, was designed to permit all the facts and all the issues of the case to be exposed, whereas the English procedure was designed to reduce the facts and issues to the narrowest possible point or points. The English system of pleadings and jury verdict_________________________________________________________ a verdict

rendered without a trial____ was well adapted only to certain types of cases. It was this defect, more

than anything else, that required the English chancellor to establish an equity jurisdiction in the late fourteenth and fifteenth centuries in order to protect the poor and helpless, to enforce relations of tru st and confidence, and to give injunctive and other forms of specific relief (as contrasted with the "common law" remedy of money damages). The English chancellor, who was almost invariably a high ecclesiastic, followed the canon law procedure________________________________________ which was also the French royal procedure_____________________________

of summoning witnesses by subpoena and interrogating them under oath.

In terms of the ordering of society, it is true that the French system of royal law could not be so effective in France as the English system of royal law was in England, partly because the French king had four or five times as many people to control, and they were divided into many more rival political units.

The effectiveness of French royal law in the thirteenth century rested on its subtle combination of local custom with legal learning, and its sophisticated procedure for applying legal learning to local custom. The application of legal procedure and legal learning to local custom created

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a body of French customary law that operated as a powerful unifying and educative force.

"Local custom" refers to the diverse customs of the various localities, towns, and lordships, and of the counties, feudal domains, duchies, and other polities of which France was composed.

To say that France was governed by a common customary law is not to deny that a great many of the lawyers and judges of France were trained in Roman law. Nor is it to deny that in certain parts of France, notably in the south, Roman law had survived to a certain extent from pre-Merovingian times. But these were two different kinds of Roman law. The first kind -- the Roman law in which the lawyers and judges were trained -- was the law of the texts of Justinian as reorganized and rethought and revalued by the learned jurists in the universities (including, in France, the University of Montpellier founded in the twelfth century and the University of Orleans founded in the thirteenth). The Roman law of the universities was an ideal law, not an enacted code or statute or some other form of positive law. It was a body of legal concepts and principles through which the prevailing rules of customary law and enacted law could be screened and interpreted. The second kind of Roman law -- that which survived, particularly in southern France, from pre-Merovingian times -- consisted of scattered Roman legal terms and rules and procedures that had remained in the popular consciousness over the centuries, some of which had entered into successive Germanic codifications (such as the Visigothic and the Lombard) and into decrees and other acts of rulers. This "vulgar Roman law," as it is often called, had itself become customary law. The learned Roman law, on the contrary, was not so much law in the sense of binding rules as it was law in the sense of legal reasoning.

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The learned Roman law was particularly helpful in determining which customs were "reasonable' ' and which were "bad." The canon law of the church also gave important guidance in this regard. It was the canon law that first taught the necessity of distinguishing reasonable from unreasonable customs. Indeed, the canon law also taught the necessity of distinguishing between what was acceptable and what was unacceptable in Roman law itself. Canonist principles of interpretation of custom were generally superimposed on Roman law rules and concepts.

In the French royal courts in the thirteenth century, custom could be proved in any of a variety of ways, according to the judge's discretion. The judge could state that he had personal knowledge of a custom since he had himself applied it in a previous analogous case, called a "precedent." ⁷³ He could consult the lay counselors who assisted him in his court. He could call in a group of people who would know the custom -- a group of clerics to state the custom of a parish or an abbey, a group of citizens to state the custom of a town, a group of sailors to state the custom of a port. Finally, under the procedure of the enquete par turbe, the judge could call twelve knowledgeable men and ask them to report, through a spokesman, concerning the existence of a particular custom or customs.

In the thirteenth century the king himself at times intervened as a representative of the "common weal of all" (bien commun de tous) to preside over a discussion among experts concerning contested customs and to declare or write down his finding. In the words of the thirteenth-century French jurist Philippe de Beaumanoir, "the king should keep and cause to be kept the customs of his realm." ⁷⁴An unreasonable custom was to be "overthrown." At the same time, however, the king could confer "privileges" on certain persons or groups, derogating from customs and dispensing with them on the basis of equity, that is, as an exception. Thus the king accorded privileges "against the general custom" to certain churches, certain towns, certain guilds, crusaders, and others.

Finally, if the custom was unsatisfactory not merely as applied to a particular person or group, for whom an equitable exception should be made, but more generally, so that it needed to be changed, the king could enact a new statute or ordinance revising the custom. Sir Henry Maine's theory that in the history of law there is a movement from equity to legislation finds support in the medieval French practice, which itself was derived from the theory of the canonists, authorizing the change of custom by equity and the generalization of equity by statute. ⁷⁵

In fact, however, there were in France relatively few new statutes or ordinances changing old customs, nor were there a great many privileges granting exceptions to old customs. For the most part, customs considered unsatisfactory by the royal courts either were re­

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jected as "bad" or else were reinterpreted to make them "reasonable." In effect, a rule of reason and of conscience was itself built into the customary law.

Thus thirteenth-century French royal law was, on the one hand, far more learned than English royal law, in the sense that there were a far greater number of learned judges and lawyers in the French system; ⁷⁶ yet it was less influenced by royal statutes. On the other hand, it was more diversified, in that there was not a substantial body of uniform customs applicable throughout France; yet there was a large body of "common law" in the sense of a common body of procedures and standards applied by the royal courts to the diverse customs of the multiplicity of polities which made up the French kingdom.