THE INTELLECTUAL AND MORAL CLIMATE

The law of evidence

88 Law adapts to intellectual developments (or mentalites). In some periods, man has felt keenly that he was subordinate to transcen­dental forces or supernatural beings, and that he was part of a cosmic universe beyond his observation, knowledge and comprehen­sion.

" The text is in W. Prevenier, De oorkonden der graven van Vlaanderen (1 ιwas thought to have had divine assistance in order to achieve victory, which implied that his cause was just. In the second case, it was presumed that possible perjurers would unfailingly meet with divine retribution, and that the fear of celestial wrath would dissuade most people from swearing a false oath.'⁷ Of course there was awareness in the early Middle Ages of proof by documents and witnesses, but these methods could readily be challenged or neutralized, for instance, if two opposed groups of witnesses insisted on their conflicting evidence. To escape from the impasse, it was then necessary to resort to the judicial duel and an appeal to the divinity.

The whole question, however, was entirely transformed by a profound change in European mentalites. A new law of evidence, essentially the one which is still in use, was worked out. It was based on critical and rational evaluation of documents, testimony and real evidence. To establish the reasons for this transition from a magical conception of the universe to a more rational conception is a histori­cal problem which has not yet been resolved; but it is clear that the

^,s See inter alia the volumes La Preuve in the Recueils de la sociiti Jean Bodin xvt (1965- ).

¹⁶ Here too class differences played their part, for in a duel a knight used his sword and the peasants their clubs.

’’ Even nowadays the law of civil procedure provides for oaths, whether supplementary or determinative of the action.

transition had implications for the law of evidence. The archaic system, introduced under Germanic influence, had to be aban­doned, although it was difficult to decide with what to replace it. In Europe experiments were made with various systems, some derived from the Corpus iuris, others (such as the jury) inspired by existing, rudimentary methods which were then developed into a true system of evidence.

One aspect of the modernization of the law of evidence was the increased use of writing. After a period in which writing was virtually unknown, from the twelfth century onwards written proof became widespread, even in agreements between ordinary people. Particularly remarkable is the use of �authentic’ documents - that is, documents �authenticated’, declared worthy of faith, by people or institutions who had public authority to do so. There was a good deal of variety in the form of documents, and in the authorities responsible for their composition or authentication, and this depended in particular on the importance of learned law in the region. In the south, a profession of notaries developed, following on from the Bolognese School of Law. They were invested with public authority by the pope or emperor, prepared by elementary studies in law, and could then establish themselves in the towns and compose and produce authentic documents.

Notaries progressively spread into the northern regions, but in the Netherlands there was no standard notarial practice until the sixteenth century. In the north a quite different means of authenti­cating documents was evolved, the oeuvres de lois: the contracting parties went before a court and presented their agreement to it; it was then entered in judicial records, and an extract could be delivered to the parties, although this was not an essential formality. Voluntary jurisdiction was exercised by the ordinary or feudal courts, or by the tribunals of aidermen, together with their other judicial activities. During the later Middle Ages this system became extremely important, and even in early modern times it survived against the competition of notaries.

Originally, written (and a fortiori authenticated) evidence was optional and did not take precedence over proof by witnesses. But the point was highly controversial. A lawyer as distinguished as Pope

^,8 See above, esp. section 52.

Innocent III could still declare himself firmly in favour of proof by witnesses: â€?the word of a living man prevails over the skin of a dead ass’ (i.e. a parchment). Customary law had sayings such as â€?witnesses prevail over letters’ or â€?viva voce witnesses overcome letters’. But it was inevitable that authentic documentary proof should become the standard. The legislation of the Italian towns had moved in this direction even in the fourteenth century (Naples in 1306, Bologna in 1454 and Milan in 1498). In France the main steps in the develop­ment were the Ordonnance of Moulins of 1566,¹⁹ which provided that, for a transaction in excess of too pounds, only written proof would be admissible, and also article 1341 of the Code civil of 1804.²⁰ In Belgium the principle is to be found in the Edictum Perpetuum of 1611. In England it was accepted in the eighteenth century that a document could not be challenged purely on the basis of oral evidence.²¹ And in some contracts, particularly those concerning land, the law was not satisfied with mere written evidence but required an authentic notarial document.²²

Lending

89 Changing conceptions of morality, and religious authorities and doctrines, also had important consequences for private law. It is not surprising that they often collided with the policy of the secular authorities. Two illustrations will suffice: lending and marriage.

The economic expansion of the West during the later Middle Ages led to a resurgence in lending. Methods of credit had already been developed and legally recognized in Roman antiquity, but had

'» See above, section 48.

∞ â€?Any matter exceeding the sum or value of 150 francs must be documented before notaries or under private signature, even in the case Ofvoluntary deposits, and proof by witnesses is not admissible as to the content of the documents, or as to what was said before, at the time or since they were written, even if that relates to a sum or value of less than 150 francs. This is without prejudice to what is prescribed in statutes relating to commerce.’

^e, Cf. J. Gilissen, Tndividualisme et Securitejuridique: la preponderance de la Ioi et Γacte ecrit au XVI^e siecle dans Γancien droit beige’, Indimdualisme et sociIU it la renaissance (Brussels, 1967), 35-57; G. Vemeillen and G. van de Perre, â€?De historiek van de beperking van het bewijs van Verbintenissen door getuigen^,, Rechtskundig weekblad 32 (1968-9), col. 817-50.

” The requirement of writing was also extended to areas other than evidence. Nowadays it is impossible to imagine a statute which is not printed and published; earlier, matters were otherwise, and it was only the word of the king which had any legal weight. On the learned law, see G. Dolezalek, �Scriptura non est de substantia legis. A propos d’une decision de la Rote romaine de Fan 1378 environ’, Diritto comune e diritti locali nella storia del!Europa (Milan, 1980), 51-70.

191 disappeared during the first centuries of the Middle Ages. It is extremely difficult to launch a private commercial or industrial enterprise unless at least part of the necessary funds can be bor­rowed, and, since the temporary use of capital is advantageous, it is normal that it, like materials and labour, should be rewarded. In other words, loans are repaid with interest. Here, however, the needs of economic development collided with religious precepts, for ever since Christian antiquity the church had prohibited lending at interest (usura). The prohibition had not only been maintained by the fathers of the church, but had also been enshrined in church law.

This moral attitude corresponded to the mentality of the feudal world, for which any gain, even if it arose from perfectly legitimate commercial operations, represented sin and conduct contrary to social mores. Although in the West this conception is nowadays hard to comprehend, it is still to be found in Islamic countries where religious objections to interest (i.e. usury) still apply. During the last centuries of the Middle Ages, European man had to live in a dilemma: lending at interest had become common in practice, but the church refused to withdraw its prohibition.²³ Secular legislation sometimes reinforced ecclesiastical principles, as for instance an ordinance of 1199 pronounced by Baldwin IX, count of Hainaut and Flanders.²⁴ As a result medieval commerce had to resort to a series of subterfuges and fictions which allowed it to develop a

"3 Texts could be prayed in aid not merely from the Bible (�lend without hoping for anything in return’) but also from Greek philosophy (�money does not create money’).

≈< W. Prevenier, â€?Een economische maatregel van de Vlaamse graf in 1199: het verbod der Ieningen tegen interest’, Tijdschrift voor geschiedenis 78 (1965), 389-401. The text of the ordinance is published in W. Prevenier, De oorkonden der graven van Vlaanderen (1191 - aanvang 1206) π (Brussels, 1964), no.

flourishing and indispensable system of credit, while at least formally respecting religious restrictions: sale on condition of repurchase, mortgage (mortuum vadium, where the creditor enjoyed the fruits of the property given in security), bills of exchange, interest on arrears (which was allowed by the canonists in certain circumstances). Little by little, moral theology agreed to recognize interest as the price of credit, and to authorize it so far as equitable. This reasoning could be reconciled with the theological theory of the �just price’, accord­ing to which each economic good had a iustum pretium which ought - especially in credit agreements - to be adhered to.

In spite of this, objections of principle to interest as usury sur­vived in Catholic countries to the end of the ancien regime. The highest judges and numerous distinguished authors maintained that interest clauses in contracts were completely void.²⁵ The French Revolution, which was little disposed to respect religious taboos and was in favour of free commerce, very early proclaimed that lending at interest was legitimate, at a rate fixed by statute.²⁶ A statute of 1796, authorizing citizens to conclude contracts to their own liking, had anyway been interpreted to mean that the parties themselves could fix their own rate of interest. This position was adopted by the Code civil (articles 1905 and 1907), although shortly afterwards the freedom of parties to set rates of interest was again restricted. Later still the freedom Ofcontracting parties was reaffirmed,²â€™ but unjusti­fied and exorbitant interest (usury) now constituted a crime punished by the criminal law. In protestant countries the doctrines of the reformers had opened the way to permitting interest. Calvin, for example, maintained that interest was admissible: according to him, it was not prohibited by the Bible, where the only prohibition was against lending at disproportionate interest, which was the sin of usury.²⁸ Many lawyers of the School of Natural Law and authors of the Enlightenment (Grotius, Montesquieu and Voltaire among others) were in favour of freedom of contract, including lending at interest.²⁹

’5 D’Argentre, Jean Bodin, Domat, Pothier and the case law of the Parlement de Paris. *⁶ Decree of the Constituante of 3-12 December 1789.

^,' In Belgium in 1865, under Rogier and Frere-Orban.

^,8 His thesis was, exceptionally, followed by a non-Calvinist author: C. du Moulin’s De usuris. ^,,9 Cf. J. Favre, Leprit a interet dans Pancienne France (Paris, 1900); V. Brants, La Iutte centre l^,usure dans Ie droit modeme (Louvain, 1906); J. Lameere, �Un chapitre de Fhistoire du pret a interet dans Ie droit beige’, Bull. Acad. rey. sciences de Belgique, classe des Iettres (1920), 77-104; G. Bigwood, Le regime juridique et Cconomique du commerce de I’argent dans la Belgique du moyen dge (2 vols., Brussels, 1921-2); G. Le Bras, �Usure’, Dictionnaire de Mologie Catholique xv, 2 (Paris,

The law of marriage

90 Both secular and church authorities legislated intensively on the subject of the family, which was the basic social unit. Particularly in the Middle Ages, family law was without doubt a matter largely of church competence, but its implications for society in general and the family patrimony in particular were such that secular authori­ties could not entirely abstain from regulation. The divergent approaches to marriages⁰ taken by the secular and church authori­ties in fact make up one of the most interesting chapters in the history of law in Europe. The divergence also shows how a matter of private law could be a prize at stake between authorities whose systems of values and conceptions of society differed. Certainly no other institution was so much at the mercy of opposed trends and ideologies. This account does no more than trace the broad lines of development, and neglects the primitive forms still known in the early Middle Ages, such as marriage by abduction or sale.

It is absolutely fundamental to distinguish between marriage as a secular institution (a contract which affects society at large, and the particular families and their fortunes) and marriage as a sacrament (a means of grace which has a religious meaning, and symbolizes the mystic bond between Christ and his church). These conceptions of marriage relate to secular and church jurisdiction respectively, and as they evolved played a significant part in the history of the West. In the Middle Ages, the sacramental concept of the church and its courts prevailed, whereas in early modern times, and above all in the contemporary period, the secular element has become increasingly important.

According to the teaching of the church, marriage concerned only the spouses personally. Only their free will and decision counted. All interference by their family or parents was excluded, and any question of a patrimonial or dynastic nature was irrelevant. The matrimonial bond was declared indissoluble, on the faith of Scrip­ture. Divorce, which had been admitted in Roman law, was from now on excluded. Within this basic framework, the law of marriage

1950), 2,336-72; B. N. Nelson, The idea of usury (Princeton, 1949); J. T. Noonan, The scholastic analysis of usury (Cambridge, Mass., 1957); B. Clavero, 'Thejurisprudence on usury as a social paradigm in the history of Europe’ in E. V. Heyen (ed.), Hislorische Soziologie deτ Rechlswissenschaft (Frankfurt, 1986), 23-36 (Ius commune, 26).

3° There are numerous studies on marriage. A recent, lucid and magisterial study is J. Gaudemet, Le mariage en Occident. Les maurs el Ie droit (Paris, 1987; Cerf-Histoire). none the less evolved. The purely consensual character of marriage recognized in the Middle Ages (that is, that marriage was formed by the free consent of the intending spouses without formalities or the intervention of a priest) was abandoned by the Council of Trent (by the decree Tametsi of 1563). It imposed formalities of marriage (witnesses, publicity, celebration by a priest) mainly with the aim of preventing clandestine marriages.³* The church also developed a theory that mere consent without consummation (copula camalis) constituted an imperfect marriage {matrimonium initiatum), which could be dissolved, by contrast with marriage where consent had been followed by sexual relations {matrimonium ratum). Divortium (after the Council of Trent: separatio) quoad torum et mensam was also introduced, that is, the physical separation also provided for in the Code civil. This allowed cohabitation to end without dissolution (and so prevented remarriage). Finally, the church recognized the nullity of marriage, which an ecclesiastical judge could declare on the ground of a defect in consent or other impedimentum dirimens (subsist­ing prior marriage, kinship, and so on).

Even in the most Catholic of times and places, there was a contrasting secular conception of marriage, which emphasized its social, family and property consequences, as well as its feudal and dynastic ones. This view was hostile to marriages concluded (often secretly) without the consent of relatives, because they directly threatened schemes of alliance between families and fortunes. In periods of staunch Catholicity this view, which was peculiar to the higher feudal and urban circles, could not prevail against the church, but it could express itself by civil and criminal sanctions against spouses who had married without parental consent. In the Middle Ages these sanctions consisted mainly in disinheriting the spouses or condemning the husband for abduction. In France in modern times the secular courts extended their competence to matrimonial cases, and the secular authorities also imposed rigorous regulations, traces of which are still to be found in the Code civil. A French Ordonnance of 1566 provided for the disherison of children under twenty-five who had married without parental consent. The Ordonnance of Blois of 1579 punished abduction, and case law treated

3' These formalities were also generally taken up in protestant Europe, including the Republic of the United Provinces, although with some modifications. In France, the king did not wish them to be published as they were, but they were none the less introduced in 1579 by the Ordonnance of Blois. a marriage concluded without parental consent as abduction. (The comedies of Moliere clearly illustrate how parental, especially paternal, influence still determined children’s marriages, even when they had reached majority.) Pothier considered that a marriage concluded without parental consent between spouses under twenty- five was void, and that if the spouses were under thirty the lack of parental consent would involve disherison. In the Netherlands, even in the Middle Ages municipal ordinances set out civil and criminal sanctions against those guilty of seduction, that is marriage without parental consent. In 1540 Charles V ordained that a man under twenty-five or a woman under twenty who married without parental consent lost all the advantages of the surviving spouse. By contrast, in canon law the consent of parents was not a condition at all. The Code civil of 1804 demanded paternal consent for men under twenty- five and women under twenty-one. Once beyond this age, children were still subject to the procedure of the acte respectueux (â€?respectful act’), which obliged them to seek their parents’ advice; in case of refusal, the marriage could be concluded after a certain number of repetitions of the acte respectueuχ∙, see articles 152 and 153 of the Code civil.

The secular conception did not prevail until the age of Enlighten­ment, which was hostile to the exaggerated role played by the church and attacked church views on various matters. At the end of the eighteenth century, some countries introduced the option of purely civil marriage without any religious content. In the Austrian Netherlands, Joseph II abolished the jurisdiction of the church courts in matrimonial cases by edict of 28 September 1784: from now on marriage was considered a civil contract, and not in any way subject to the canons of the church.^² The French Revolution enshrined this principle in its constitution of 1791, using the same terms as Joseph II had done in 1784: â€?The law considers marriage as a civil contract only.’ In the system of the Code civil, marriage was a solemn civil act, and only an officer of the civil state was competent 3’ Art. 1: â€?Since marriage is considered as a civil contract, and the civil rights and bonds resulting from it derive their existence, force and determination entirely and uniquely from civil authority, jurisdiction over and decision of the various matters relating to it, and all that depends on it, ought to be the exclusive province of the civil courts. We therefore prohibit any ecclesiastical judge, on pain of absolute nullity, from assuming jurisdiction in any manner...’ It is clear that religious marriage remained the norm among the population at large; here it is purely a question Ofjurisdiction in the event of disputes. The current position, which prohibits religious marriage taking place before civil marriage, dates from the nineteenth century (art. 16 of the Belgian Constitution). to unite the spouses in the name of the law. Yet the vast majority of the people remained attached to religious marriage: only civil marriage had legal consequences, however, and religious marriage had now always to be concluded after civil marriage, if at all. At the same time the church prohibition on divorce was abrogated. Here the Revolution was very radical: by the statute of 20 September 1792 it authorized divorce (which was to be pronounced by a court) either by mutual consent or on a number of other recognized grounds. When this legislation came into force, the number of divorces rose considerably; in some years the ratio between divorces and marriages was as much as one to three.³³ When revolutionary zeal had abated, the legislator took a few steps backward. But in spite of some restrictions, divorce was maintained, by mutual consent or for the reasons set out in articles 229 to 232 of the Code civil (adultery, serious cruelty or injury, conviction of an infaming crime).³⁴