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Las diagrammes suivants iliuatrant la mAthoda. d by errata Imed to ment . une pelure, } fapon it la. 1 2 3 32X 1 2 3 4 5 6 ^ K AN ESSAY ON THE jrUMIBICAJL HISTORY ■v T r OF FRANCE, SO FAR AS IT RELATES TO THE LAW i . ,. OF THE PROVINCE OF LOWER.CANADA: ^f Read at a Special Meeting of the Literary and Histo- rical Society op Quebec, the Slst day of May, 1824. BY THE HONORABLE J. SEWELL, Chief Jaitice of Loww-Cwmd.. QVEBECt PRINTBD BY THOMAS CARY * Co. ttM-Umm* lUuu 18S4. AT A MEETING of the Quebec Literary and Histo- rical Society, holden at the Castle of Saint Lewis, in the city of Quebec, on Monday, the 31st day of May, 1824 — It is OrdereDj that the best thanks of the Society be given to the Honorable the Chief Justice, for the Address and Essay nsprcting the early civil and ecclesiastical juri- dical History of France, which he has this day read be- fore the Society — and that he be requested to furnish a copy thereof for publication. Certified, Wm. green, . ^^' ■' .\'" "'. '-v- ',•'-'} Secretary^. ' ^^ • r • J r , TO HIS EXCELLENCY THE RIGHT HONORABLE GEORGE^ EARL OF DALHOUSIE, G. C. B. FOUNDER AND PATRON ; TO HIS EXCELLENCY THE HONORABLE SIR FRANCIS BURTON, G. C. H. President; AND TO THE MEMBERS OF THE QUEBEC LITERARY AND HISTORICAL SOCIETY, THE FOLLOWING ESSAY, (PUBLISHED AT THEIR REQUEST,) IS MOST RESPECTFULLY INSCRIBED, BY THEIR OBEDIENT SERVANT, ' J. SEWELL. 1 i sorr sole fou tru( knc dua of ' ■ tut( sira ' upo ed, (J) ' * ' MY LORD AND GENTLEMEN, Appointed to address a society, distinffuished, in its origin, by the rank and character of its noble Founder, and, in tne first stage of its progress, by the respectability and talents of itd numerous Members ; whose high and meri- torious purpose is, to extend more amply the advantages of Science and Literature to a remote, but rising portion of the Great Empire to which we belong, and the beneficial effects of its disinterested labours to future times, lam anxious to devote the period, in which I hope to be honored with your attention, to a subject which, corresponding with the views of your Institution, and involving matter interesting to Science, may, in some degree, be worthy of your notice. Confining myself, therefore, to the more immediate object of the Society — Historical Research — I shall offer to your consideration an Essay upon the Juridical History of France^ antecedent to the erection of the Sovereign Council of Que- bec, in the year 1663 ; the Law, as it was then administer- ed in France, in the Tribunals of the Vicomte of Paris, be- ing, in fact, the Common Law of the division of Canada which we now inhabit (1). The study of the Municipal Law of every country requires some previous knowledge of its rise and progress. — The ob- solete principles of former ages are, most commonly, the foundations of what we possess ; and, in many instances, the true object and intent of modern Institutions, can c*^ly be known by reference to the history of their origin and gra- dual improvement. And as I feel assured, that, to persons of liberal education, knowledge of the Law which consti- tutes the rule of their civil conduct, must at all times be de- sirable, I cannot but hope that what I am about to offer, upon the peculiar Municipal Law by which ue are govern- ed, (though, I am conscious, it will be found imperfect,) will (1) EdUielOrdoDnancM, vol. I. p.21. . , 6 tic vert licless be favorably received, as an attempt to elucidate a subject wbicb^ in Lower-Canada^ cannot be thought to be uninteresting. The conquest of Gaul by the Roman pow«r — the entire subversion of the Roman Government by the Franks — the nearly total annihilation of the power of the Crown at the close of the eleventh century, and the subsequent re-esta- blishment of that power, are the events which more imme- diately affected the Laws of France, and occasioned their successive mutations. To these events, therefore, and to the greater effects which they have respectively produced in her legal polity, our inquiries will at present be confined. Of the state of Gaul before the Roman conquest, (which was effected under the immediate command of Caesar, about fifty years before the birth of our Saviour,) but little can be said with any degree of certainty. The inhabitants were tlien governed by a few unwritten customs and usages, pecu- liar to themselves, barbarous in the extreme and not meriting the appellation of Laws. Their manners were sfmple, and produced but few causes of contention, and such controver- sies as arose, were decided by their Druids, who, as among the ancient Britons, were both Priests and Judges (1). A consequence of the Roman conquest was, the introduc'- tion of the Roman Law, and for five entire centuries, during^ which Gaul remained a Province of the Empire, her people were wholly governed by that system (2). The Roman Law, however, of that day was not the Justinian Code, for that was compiled near a hundred years after the expulsion of the Romans (3). It consisted of the several Constitutions of the preceding Emperors, and of the writings; of certain Civilians. The Constitutions had been collected in three Codes — the Gregorian, Hermoginian, and Theodosian, but the latter, published by the Emperor Theodosius, confirmed and adopt- ed the two former, and as the writings of the Civilians con- sisted of such only as were sanctioned by the Code of Theo- dosius, there is reason to believe that it was the Theodosian Code only which was called the Roman Law^ (4). (1) Ctnsar de Bello Gal : Liber. 5 & 6. {"i) Hisinire dii Droit Fraiifois, by I'Abbd rieur,v,p,9& 10. Vide alio, at itie begin did^ of Isl vol. of Henry'e, a learned Dissertation, by Breinnnier, which establishes (bis facU (3) FIcnry, p. 10. (4)Fleury,p.l2. The power of the Roman Empire, in Gaul, was totally mnnihilated about the year 450 of the Christian o^ra. Rome, weakened by the extent of her dominion, and yet more by the degeneracy of her citizens, debased in sentiments, de- pressed in talents and enervated in courage, (I) full a sacri- fice to the more hardy and enterprising Nations of the North, and the Government of all that extent of Territory, which has since been denominated France, was transferred to Barbarians — ^to the Franks and their associate Tribes — the Goths and Burgundians, (2) and from the accession of the first Chieftain of the Franks (Merovee,) France dates the origin of her Monarchy, divided into three Dynasties or ra- ces of Kings — the Merovingian — the Carlovingian — and the Capetian. The first comprehends Merovee and his descend- ants, who possessed the Throne from the year 450, to the year 770, when they were succeeded by Charles, the son of Pepin, afterwards called Charlesmagne, and his descendants, who constitute the Carlovingian Race, in whose possession it remained until the year 987, when it passed to the Cape- tian Race, who continued in possession, until the death of the late unfortunate Monarch, Louis the 16th, a descendant from Hugh Capet^ the first of the Capetian dynasty. (3) There was not among the Barbarians, by whom the Romans were expelled, any general Government, they were subject, in their own District, to the Chieftain who could do them the most good or the most injury, (4) and, when they con- quered Gaul, they took possession of the country as a band of independent clans. (5) Their first object was to secure their new acquisitions, and with this view, the leaders distri- buted among the soldiery, the lands which they had conquer- ed, with a condition of continued military service annexed to the Grant, an idea which appears to have been suggested by the peculiar situation in which they were placed, and to have been put in practice, as the best means of furnishing that immediate mutual assistance, which was indispensably necessary for the defence and preservation of their conquest. Large districts or parcels of land were accordingly allotted to the Chieftains and to the superior Ofiicers, who were cal- (1) Gibboa's Decline and Fall, vol. 1st. p. 94. 1st L. C. Dtnizarl's Diseoun Prelimu nairea, p. 99. (|) Eiprit del Loiv, Lib. 30, rap. 6, vol. 2, (3) See the Hiolorles of France by Dahail. Ian, Mezeray, &c. (4) Dalryrople's Essay on (he Feudal SyF> lem, p. 5. (5) IbiJ, p. 6, led Lciidi (Lords or Scijnieur^) (1) and their allotnieAts, which were called fuuda (neA or fees) wore subdivided among Ihe inferior officers and soldiers lipon the general conditioo, that the possessor shoirld do servicu faithfully, both at home and abroad to him, by whom they were given. (2) Every feudatory was, therefore, bound, when called upon, to de- fend his immediate superior, from whom he had received, and of whom he held, his estate. — Thwt superior te defend his superior, and so upwards to the Prince, while, on ihe other hand, the Prince and every Seigneur was equally bonnd to defend his vassals or Dependants, who helld their estates of him, so that the duty of the whole was severally and recipro- cally to defend the conquest they had made together, and every part of it. (3) This singular Institution, which is now called the feudal system, by degrees became general in France, and, by the new division of property which it occasioned, with the peculiar maxims and manners to which it gave rise, gradually introduced a species of laws before unknown. The whole of France, however, wais not so distributed, nor so holden-— all was not seized by the conquerors, such of the anciesit Inhabitants, as were allowed to remain in the country, kept their estates as they held them before ; many, also, of the Invaders, who were not yet attached to any particular chieftain, took possession of vacant Lands and enjoyed them in the same manner, (4) and there were some, even among the soldiery, who considering the por" tions which fell to their lot, as recompences due to their va- lour, and as settlements acquired by their own swords, took and retained possession of them in full property as freemen. (5) From these causes, there were many estates which were al- lodial, which the possessors enjoyed in their own right and did not hold of any superior Lord, to whom they were bound td do homage or perform service. (6) Every tenant of this des- cription was called liher homo in contradistinction to '^vcu*- talus," or one who held of a superior, (7) yet they were not, by any means, exempt from the service of the state — 'they W( (1) Dalrymiite, p. 11. Loyteao det^eU l^fnrieti, ^60 & 61, cap. 1st. (5) RobertMp't Cbariei V. -v*1. UU p. 9H> Lefrvrrde la P ta tf ch*. Trail^du DMMhie, gnrnrirti, <)du a oi, cap. ist. i'' Cioveriiors of Provi.ncfts, imtl the Counts, or Governors of Towns, wlio were olficers of tlio Kind's uppointnunl ; and the duty of personal Bervice was considtrod so sarred, lliat they were prohibited from enterini:;.inlt) holy ortlers, unless t'ley had obtained the consent of the Sovereign. (I) , At their first i^icursions, liie Barbarians, like the aborigines f)f Gaul, were g-overned by traditional eustoins. Tlieir manners were u-^ieivilized ; war and hiiiitinij;, were the only subjects of pursuit in estimation, and, as (hey had no fixed habitations, no other property than cattle, their common disputes arose either from i)erson:il quarrels or acts of depre- dation. These were usually decided in public meetings of the people, held annually, at the close of winter, in general upon the information of witnesses, but, in doubtful cases, by the ordeal of fire or water, or by combat. ('3) . .1- ' The polished minds of Romans, found nothing ^Vorthy of imitation in such conquerors — but the conquerors, savages as they were, perceived much in the Romans, which they could not but admire. They particularly viewed a written Code of Laws as a novelty possessed of* many advantageJi, and, not only permitted the Roman Jurisprudence to sur- vive the destrliction of the lioman Government, but, in imitation of what they approved, reduced their own usages to writing, particularly the Saliquc Law, which was the pe- culiar Law of Ihc Franks. (3) The Theodosian Code, and the Laws, Customs and usages of the Barbarians, became, therefore, equally the Laws of "France, (4) and as all Laws were held to be purely personal, and were not, for this rea- son, confined in iheir operation to any certain District, the Barbarian was tried by the Law of his Tribe. — The Roman by the Roman Code, the children followed the Law of their Father, the wife that of her husband, the widow came back to that to which she was. originally subject, and the freed- man was governed by the Law of his Patron. (5) Yet, notwitlistanding these general provisions, every Individual was permitted to make election of the Law by which he (1) CupiiularV Liber, Ist lec, 114. f2)Fleury,p.J2&13. (3)Fleury,p.Jl. ( V (4) Esprit des Loi.x, Liben 28, cap. 4, ^olj .. ■ 2d. |), 240. (5) Esprit dcs Loii, Liber. 29, cap. 3, B ♦ 1 10 chose lobe governed, it^ was only required that he shoutd make it publicly, and such elections were frequent. (1) The Clergy, in particular, who were chiefly Romans, consider- ed the privilege of being governed by the Roman Law t© be 80 valuable, that when any person entered into holy or- ders, it was usual for him to renounce the Law to which he had been formerly subject, and to declare that he would, from henceforth, be governed 'by the Roman Code. (2) Ma- ny customs, also, peculiar to the victors, were continued after the conquest of Gaul. — It had, particularly been their practice to meet in council, at the close of every winter, upon the state of their respective nations ; and during the first and second Dynasties, several meetings of the Sovereign and of the Chiefs, in church and state, with the addition of the commons (from the reign of Charlemagne) were hefld, in the open air, annually in the month of March or May, and from thence denominated champs de mars, or ehamps de mai. (3) In these Assemblies, Laws were passed for the governnttot of the Kingdom at large, and Canons established for-the re- gulation of the Church — ^Taxcs were imposed — Regencies were appointed, and the Sovereign elected until the CroWn became hereditary, and then, the Successor was proclainlcd, if his right to the Throne was not controverted, and, if it was, it was solemnly determined (4). The question on eadh subject of discussiotl was generally propounded by the King, who, when it had been fully debated, pronounced the defi- nitive resolution. The result was then put into writing, the questions and resolutions which w^re passed upon theTn were reduced under distinct heads, called Chapters, and to collections of several Chapters was given the name of Ck- pitulars (5). It is certain that a Supreme Jurisdiction over all persons, and all causes, was exercised by ihe Assemblies of the Ohatrio de Mars, but the precise extent of that Jurisdiction^ vrhieh was originally vested in the subordinate Courts of the CrdtvTi, or of the feudal Lords or Seigneurs, cannot now be'detcr- (1) Esprit des Loix, Liber. SB, cap. 2d Flenry, p.l8, (4) Encyclopedia Mellind. de Jnriip. verb . . "Cliiimiide Murs," vol. 1st. pat-f 9J, p . 449, («) RoberisonV Charles V, toI. Isr. p. 31. ^' R-ibenson's Charles V. toI. ht. p. 167. P'Fleiiiy,p. 39. (.")) Floury, p. 40- 11 rained (1). Itappears^ however, from the learned research- es of a modern writer,* to have been a fundamental principle of the French Monarchy, that every person who held a mili- tary command in chief, was, of right, entitled to a civil Ju- risdiction over all whom he led to war (2). Justice, there- fore, was distributed by every feodal Seigneur to his vassals, within the limits of his Fief, whether he was a layman or an ecclesiastic, for he led them in person against the enemy, if he was a layman, and by his substitute (advocatus) if he hap- pened to be an ecclesiastic, (3) and, upon the same princi- ple, the Liberi or tenants of allodial estates who were led to war by the Dukes and Counts were subject to their juris- diction. (4) The rule of decision, however, in every court was the general Law of the state, and the King, being the acknowledged head of the Government, in all matters, civil and military, all proceedings were in his name, (5) The Dukes, the Counts and the Seigneurs, in their res- pective jurisdictions, originally decided causes in person, (6) but they, afterwards, entrusted this part of their du- ty to others. The officer who was appointed for the pur- pose by a Seigneur, was sometimes, called a seneschal, f but, most commonly, a Bailiff which, in the language of those days, imported a guardian or protector of Justice, (7) and those who were named by the Dukes and Counts, were called Viscounts, Prevosts, Viguiers and Chastelans. (8) But in all their Jurisdictions, an usage, which derived its origin front the forests of Germany, was continued. Neither the Dukes, the Counts nor the Seigneurs, nor any of their officers decid- ed alone: They assembled in their courts a kind of assize composed of their vassals, to the number of twelve, (9) who were, principally, the officers of their respective courts, and by those persons (who as vassals were the equals of the par- ties whose causes were there tried and thence called Peers) (1) Rnberlron's Charles V. rol. 1»(. p. 304. '*Moniffiguiru. (3) Monirsqii^eii, lib. Sfl, rap. 18~R^p«r(. 8vo. vol. 36, |i. 6. Loyseuu des Sei^^jeurkb, cap> Ifit* sect. 73 & 73, (3) MoQietiquieu, liber> 30, cap. 17^ vol. 2d. p. 377, (4) Montesquieu, lib. SO rep; Reperl. vol. i, |i. 8^i>«o. edii. (5> Monieaquieu, Lib. 30, rap. 17. (6) piciionnalre de Juriiprudeoce, vol. 9d, p.rS, col. Isi. "* f The liile of Seneschal imporled " an oM* cer of the huusebold"' ViscuunU nere said lobe "qnasi comllom vlcennerentes"— Pre- vosls" quasi prmiio'.lii JMrcrticendo—Viniiier- es"qHa6i vicurii romiiiiin," — and Chakielans "quasi cosimriinicnsiodes." — L4()seaude Ta- bus de Jnsdre des VilliiKes |?. 6, o»i«id vide. (7) Encv. Method, verb " bnilifL" >ol. 1st. p. 7h). Diet', de Droit, verb " hailiF" Loyseaii de I'Abus de JiiMiice des Villa«e 12 the jiul^imMil uas pronounced uccordinp; to tho opinio^ of the majorilv, unless there was an equal division ot* voices^ wjjcn, ill criminal cases, it \vas given for Mic accused, aiid, in' cases ol' Inheritance, in favour of tlie Defendant, subject; always to an ajipeal to anns^ and an ultimate ^cci.sion b^ ju- dicial combat. (1) • •••- '". .':^- f''"''' The feudal system is well calculated for defence, but not for thcsupj)ort of order. — In theory it is founded in subor- dination, but in practice it has been found universally to have diminished th'i power of the Sovereign, while it in- creased that of the greater vassals. This was particularly' the casein France, where the Seigneurs, at a very early pe- riod of the monarchy, began to usurp the rights which had, till then been deemed the distinctions of Royalty, and with such advantage, in consequence of the weakness of the Kings of the second race, and the anarchy into which theKingdoni was thrown by the depredations of the Ilinigarians and Nor- mans (2), during the ninth and tenth centuries, that the very dependants of the Crown, the Dukes, the Counts, and even the inferior otlicers of the State, were induced, by their example, to adopt the same conduct; they combined together, and, about fhe period at which Hugh Capet, the first of the third race, took pcjsses'ion of the Throne, were completely successful. They niade hereditary, in their families, the lands, titles and ()iT:ees, which, before, they liad enjoyed for life only. They usurped t!:c sovereignty of the soil, with civil and miHtary authoiily over the in'iabitants. They granted lands to their imir.ediate tenants, who granted them over to others by sub- inf< iKJation, and, although they professed to hold their Fiefn from the Crown, they were, in fact, inde])endent. Strong in power, they exercised, in their several territories, every Roy- al prerogative. — Tiiey coined money — fixed the standard of Aveights and measures — granted safeguards — entertained a military force — im])osed taxes — and administered justice in their own names, and in Courts of their own creation, which decided uitimat;'ly in all cases, civil and criminal, not ac- cording to the written Laws of the Kingdom, but according to the unwritten customs and usages of the District over which they respectively claimed and exercised jurisdiction (3), (I) MoiilfsquiiMi. Bodk iH, Cii). 23, 21, '25, ('.') I'Irlll V, j) i ■ (3)F1 V. p. .51 & ."^''—Tlargravc'* No(e^ 1.3 By these usurpations of the Seigneurs, the foundations of the ancient Laws of France were gradually undermined. But the demolition of this venerable Fahrick was greatly promoted by the profound ignorance whieli pervaded the Kingdom during this period. Few persons, e"xcept ecclesias- tics, could read, and, hence, the Theodosian Code — the Laws of the Barbarians, which had been reduced t<, writing, and the Capitulars sunk imperceptibly, but equally, into obli- vion. The clergy also furthered its destruction by adopting, in their jurisdictions, the Canon Law which they had begun to compile early in the ninth century, and the Crown com- pleted it by the publication of the ever-memorable Edict of Pistes, so called from the City of Pistes, where it was pro- mulgated in the year 864, by Charles the Bald, one of the weakest of the wea^ descendants of Charlemagne. By this Edict, in the mistaken policy of conciliation, the unwritten usages of each Soigneurie were ratified and declared to be Law ; a declaration which may be considered not only as the eflScieot cause of the final extinction of the ancient Law, but of the permanent establishment of that infinite variety of customs^ which obtained in France until the late Revolu- tion (1). The authority of the Crown of France, at its ultimate point of depression, about the close of the tenth century, was merely nominal, the Royal Jurisdiction being confined to the Royal Domaine, which comprehended no more than four Cities, in which the King was obeyed as feudal Lord, and not as Sovereign (2) ; on the other hand, the power of the Seigneurs at this epoch was enormous — their tyranny ex- orbitant.- — Tiie whole country was laid waste by the wars which they waged against each other, and their own vassals were reduced to an actual state of slavery, under the denomi- nation of serfs and homines dc puitc, or imder the pretended rights of personal service and corve, were treated as if, in fact, they had been reduced to that wretched condition (3). By this state of anarchy those who were yet in tlic possession of allodial property, were, in the first instance, induced to annex what they held to the jurisdiction of some Fief, and (I) Monirsqiiicn. Lib. 28, cn|». 4, vol. 2(1. \),'2VJ. (3) Robfritun's CiiHi'lrs V. vol. !>.(■ |i. 3t)i>. (^) Uiciioniiuirc de Jurisprudence, vol.^U. p. ^ / & I7i I (■ '•0 14 to subject themselves to feudal services^ for the immediste ««ifety of their persons and the defence of their estates, and so generally was this the case that it gave rise to the maxim " nulle terre sans Seigneur/' which at length, becaine the universal Law of France. (l)But as the seigneurs could not, in every instance, protect their dependants against the In- cursions of their neighbours, and as the feudal burthens were, in themselves, insufferable, many vassals abandoned their Lords, by degrees, and sought protection in walled iowna where they united and entered into armed associations for mutual defence. (2) . . ... TuEs^ associations, which began during the reign of ''Louis le Gros," about the year 1 109, and were called "communes/' could not long remain without some government ; regulations, therefore were made, and usages adopted by each commune for the control of its subjects, and beinff asylums for all who were inclined to be peaceable, and barriers against the com* nion enemy (the Seigneurs) the crown afforded them every assistance in its power — conceded to them the right of enact-" ingLaws for their own internal Government and enfranchis- ed the inhabitants. (3) , . The seigneurs plainly saw that the Institution of com- munes was adverse to their interest, yet they could not pre- vent the increase of such associations ; they even found them* Helves compelled to have recourse to the same expedient to prevent their dependants from taking refuge in the royal ci- ties whirh were incorporated : many of the towns, also, with- in their territories, were willing to purchase charters of li- berty, and as most of the seigneurs had expended large sums in the holy wars, and were needy, they sold them as a means of present relief. From hence, in less than two centuries^ most of the towns in France, from a state of dependence, be- came free corporations, and personal servitude was generally abolished, (4) ^ . . , The effects of these establishments were very soon felt ; they were £ound to afford a degree of security equal to that (1) Robrrlson'8 Chariot V. vol. 1st. p. 323— (3) Did. de Jnrisp, vol. 3d. p. 17. R^p^r. Dic'.de Jiiritp. vul<3, p.l6— Fleury, p, 61— vol. 13. verb "commune." Roberison ibid, p. 16. (3) Dict.de Juritp. vol. 3d, p. 17. (4) Roberooo'i Cbarlei V. vol. Itt, p. S9. S27&251. ^ ' 15 "Wliich was afforded by the seigneurs^ who began to be of \e»i importance when they ceased to be the protectors of the peo- ple. The communes themselres became attached to their -sovereign, whom they considered as the author of their liber- ties, and they looked to the Crown as the common centre of union, necessary for the defence of the whole against their oppressors. ( I ) On the other hand, the sovereign consider- ed them as instruments which might, with great advantage, be employed to increase the Royal prerogative. To this end, they endeavoured to raise them to importance, and, with consummate policy, called them to assist, by their Depu- ties, in the States General of the nation. Availing them- selves, also, of their co-operation, under the idea of res- training the power of the seigneurs, they laboured in the great design of restoring to France her ancient limits, and to the Crown its original Jurisdiction. From time to time, as opportunities occurred, they reunited the dismembered Provinces to the Royal Domain, and reduced them to imme- diate dependence by conquest, by escheats and by treaties, (2) they abolished private warfare and judicial combats, and extended the administration of Justice, under the royal authority, to all persons, and to all causes, (3) by steps of which the most effectual shall be more particularly noticed. Before, and during the reign of Charlemagne, Justices in Eyre of the royal appointment, under the title of " Jlfis- si Domintci," visited, occasionally, the different Provinces, chiefly for the purpose of investigating the conduct of the Dukes and Counts in the several Jurisdictions, civil and cri- minal, which ihey exercised under the authority of the Crown, which was sometimes greater, and sometimes less, as the sovereign was more or less feared and respected. (4) Louis the Vl. about the year 1 125, attempted to revise the ofiBce of the '' Missi Dominici," under the title of Juges des Exempts (5), hi. the seigneurs were in his time too powerful, and he was obliged to abandon his intention. (6) His sue- a.) ItAberlson's Charles V. vol. Ist. p. 34. (^jThls deslf;n wus iiltimaiely cnnipleied in 17%, by ihe re-union of the Pio«inces of Bnraqd Lorraine— Vide Abrege Chronolo' fique det Kran Delolmp, p. 17. Robertson's Charles V. vol* In. P/36& 66. (4) Roller. Svo. vol. 40, p. 180. verb " MiasI Dominici." Dii Cnnge, verb " Dux," "Co- milps.^'el" Missi." (6) Reucr. verb"Mi»si Dominici," vol. II. I>. 573. (6) Henaull's Abrfege Chronologiqae, (om 2d. ir. 730. i^fasora had recourse io oxpetliciits less alarmin«j:. — AnitSnf^ fliefirsf, cerfain cases in which the Iviii^ was interested, or presinncd to he interested, were dechired to be " Pitas for the Crown," or " Cas Rojjanx," which, according; to feu- dal principles, (ho beint;; the Lord paramount) could not be dicided by the ollicer of kin vassal, and were .therefore cog- nizable in the Royal courts exclusively. To this distinc- tion, the .seig-neurs of mfcnor note submitted, but it was scorned by the more powerful, \vho, relyini? upon their strength, continued to exercise Jurisdiction over all cases. The attempt, however, even with respect to the latter, was productive of benefit ; it turned the uttention of the vas- sals to courts distinct from those of their oppressprsi and taught them to view the sovereign as a protector, and this facilitated the subsequent introduction of Appeals, by which the decisions of the seigneurijil courts were brought under the review of tlie Royal Judges. (I) Of these the Appeal " dc chfaut de droit," on account of the delay or refusal of Justice, was the first. The feudal law had provided that if a Seigneur had not as many Vassals as enabled him to try, by their peersi the parties who pleaded in his Court, or if he delayed, or refused to proceed io trial, the cause might be carried by appeal to the Court of the superior Lord of whom the Seigneur held, and be there tried. (2) The right of Jurisdiction had been usurped by many inconsidera- ble Seigneurs who were often unable to hold Courts, for want of Officers and Vassals, and while trials b^ batfle continued in use, there were times, and cases, even in the Courts of the greater Seigneurs, in ^vhich it was difficult to assemble the Peers, by reason of the danger to which they >verc exposed, by their being liable to appeals, by either party, on account of false judgments, which necessarily Icrd to the hazard of a persanal combat, if they maintained their opinion (3) In all such cases Justice was delayed, and there were, therefore, frequent occasions for appeals of this des- cription, from whence the practice became familiar, and served as an introduction to appeals on account of the " in- justice" or "iniquity" of the sentence, which followed^ and (l>R(il)crts(iiiVCIi!irl«»sV.v()I.M.p.60,6l. (3) Montpfquipti, Lib. 28, cnp. 27, vnj. 2d. (2) BeaiiiiiuiHHr, rap. 62, \). 322, Esiuit p. i82 .■?: spq. RoSjcilson's Cliarlfi V. v»l. dcj Loix, Lib. 28, cap. 28. 1st. p. 306. , ,. .,, ■ : ".' \r gradaally increased, as the trial by combat declined, for that mode of trial being, in fact, an appeal to the Deity, and the issue of the battle, held to be a decision by his immf^di- ate interference, was incompatible with a new judgm'»ut of any kind. (1) To facilitate Appeals, and the recourse of the subject to the Royal authority. Judges, under the title of " Grand Baillis," were appointed in all the cities of the Royal Do- niaine, with an Appellate Jurisdiction over all causes, civil and criminal, heard in the Scigneurial and in the Royal (but inferior) Courts of Prcvdte (2), which was final, except in certain cases of importance, which they were required to transmit to the King, to be decided by himself in his Coun- cil, where they were ultimately determined (3). The num- ber of these Jurisdictions, at their first creation, was incon- siderable, but in the reign of Philip Augustus, about the year 1190, they were numerous (4). A regulation of greater importance succeeded the institu- tion of the Grand Baillis. The King's Supreme Court of Justice, or Council, in which he presided, which, as in all other feudal Kingdoms, was originally ambulatory, follow- ing the person of the Monarch, and held only upon some of the great festivals, was rendered^^edentary at Paris, and ap- pointed to be kept open the gre^'t^r part of the year, under the appellation of the " Par7eWn't. 61. 1) Dici. de Jiiri«|). vol. 3 |>. IR. Diet de Drnii,vrrb •' Baillis," vol. 1, p. 166, rul. 3d. (S) Bnry. Meihnd. de Jurisp. verb " BaiU lb," vol. id. p. 7 10. (4) Diclr. de Jurisp. vol. 3H. p. IS. Fon- laniM), Lib. li>t. Til- Isl. p. 179. Dicir. de Dtoii, vol. Ix. |>. 168. (5) ConMreuce dcs Oidonnances, bj Bou. chel, p. 137. 18 ated by the Court of the Peers of France, by which John, King of England, was, by default, convicted, as a vassal of France, of the murder of his nephew Arthur (1). Other Sovereign Courts of Parliament, making in all thirteen (a), were afterwards erected in the several Provinces of the Em- pire (2). , To the several Royal Courts, when established, the people were invited to have recourse for redress, by every means which policy could devise. The Monarchs named-Judges of abilities and legal acquirements — they added dignity to their character, and splendor to the administration of their office. To the Parliaments, which were the most respectable, and to the presidial Courts, which were established for their assist- ance, they granted the right of deciding, ultimately, in Ap- £eal ; and to the Baillis, whose judgments thus became Ha- le to reversion, an original Jurisdiction which, before, they did not possess (3). They appointed a number of Counsel- lors or Members in each Parliament to assist the President (4), p.nd, in imitation of the Scigneurial Courts and those of the Dukes and Counts, in which the suitors had been accustomed to the trial by peers, they required the Baillis to summon to their assistance, a certain number of discreet persons (prodes Tiomines), and to decide according to their counsel and ad- vice (5). The people also were permitted, in the dialect of the times, " de veignir a la Cort du Roi, par ressort, pat ap- ^' pel, ou par defaute de Droit, ou par faux Jugement, ou par " recreance nie, ou par Grief, on par veer le droit de sa *' Cort," (6) and, under the sanction of this authority, the Royal Judges took advantage of every defect in the rights of the Seigneurs, and of every error in their proceedings, they brought before them, in their respective jurisdictions, all causes which it was possible for them to remove, and held cognizance over all which it was possible for them to retain, at the same time, they laboured to render the practice of their (I) Diclr. de Jtirhpr. vol. Sd. i». 91 & 92. Ordonn. de l.oiivre, T<>m W. p. 366. (a) Puri«, TiiiiiilDiisp.rirrhoiile. Bordennx, Dijon. Rouen, Aix, Reniies Pan, Mely, Bi-oan^an. Oiiuui, Nanry.-See Reiicrioire. vol. 44, p. 996, verb " pHrleinenI," & Diclr. de Dioii, verli P.irleinenr. (2J Reperioirp, 8vo. vol. 44. p. 296. (S) Dicir. lie Droll, ve.-b Uuilltii, (4) Repertoire, verb " ParlemeiH," vol. 44. p. !^»t. (5) Montesquieo, Liber. 97, CAp. 49, -vol. 2d. p 320 (6) Eialtlissemens^le Si. Louis, cap. 15, lib. 3d. Ordonnanccs des Rois de France, de rimprimrrle Royale, Torn Isi. p. 107. Diet. de Juriipr. vol, 3d. |i< 21. 19 Courts regular, t^nd their judgments consistent, by >vhicli means they ultimately obtained the confidence of the people, and were generally respected. Suitors then began to abandon the Seigneurial Courts, (in which the will of the feudal Lord wfis, bu^ too frequently, the Law by which the case of his vassal was decided,) and took refuge in the more discerning and more equitable Tribunals of the Crown (1). The King wa^ again universally recognised to be the source of Justice, and tne Seigneurs were deprived of every Jurisdiction to which they could not shew title^ derived by grant from the Crpwn (2). M .. . T^ijE ecclesiastics, who, in the reign of Charlemagne, were altogether subject to the temporal power (3), had, in com- mon with the Seigneurs, taken advantage of the disorders which prevailed, and of the superstition of the age, not only to enlarge their own peculiar Jurisdictions, but to shake off, entirely, their subjection to all authority, except that of the Church, They had, in fact, so multiplied their pretexts for c^tendin^ the Jurisdiction of the Spiritual Courts, that it was, ultimately, in their power to withdraw almost every person^ and every cause, from the cognizance of the Civil Magistrate (4:)- They claimed and exercised, as their ex- clusive privilege, the right of deciding all civil causes, in which *ny of their body was a party, or was, in any manner, interested, and all criminal prosecutions, in which the de- fendant either was, or asserted himself to be, a Clerk ; in causes where none but laymen were concerned, they claimed and exercised a similar privilege for various extraordinary reasons — in matters of contract, because contracts were then usually enforced by the oath of the parties — in all testamen- tary cases, because the deceased having left his body to the Church for Sepulture, the execution of his Will, by the Cliurch, was a necessary consequence, inasmuch as it con- cerned the repose of his soul (5) — in all matrimonial cases, because marriage was a Sacrament — and in all cases in which a widow or an orphan was a party, because it was the duty of the Church to protect such characters. In other cases (I) Roherlson'g Chorles V. vol. 1st. p. 309. ^) Bacquei'i DroUde Jus(i(;e, vol.lsl. p. (3) Lojfieau det SeiKncDriesi cbap. 15, sec. S9 to 99, (4) Rolipnson's Charles V. vol. \it. p. 112. Fleurv'9 Insiitui. de Droit Canon, vuK 2d. p< S. Hcricuurt, part Ist. \t. 120. (5) Lnyseau des Seigaeuricti.. ur 20 the tame privilege Avas claimed for reasons which were not less extraordinary. If an individual resisted their authority, he was excommunicated, and upon his submission, a pecunia- ry fine was imposed for reconciliation with the Church, which the temporal Judge, in whose Jurisdiction he resided, was required to enforce by his authority, under pain of per- sonal excommunication, and the interdiction of the whole District over which he presided, in case of disobedience (I). The first attempt, by the King's Courts, to reduce the ex- orbitant pretensions of the Clergy, was the appeal " de Deni de Justice," (2) which was similar to the appeal *' de Defaut de Droit." This was daily extended, by construction, to a great variety of cases, and was followed by the '* Appel comme d'cibus," which, in the nature of a prohibition, sus- pended all proceedings, and was allowed, at any dtage of a cause (3), to all who complained, that the Judge of the Spi- ritual Court had exceeded his authority by any proceedings, contrary to the Ct^nons of the Church, recogn,ised in France, or 4o the Law of the Land in any respect (4). This remedy was in practice long before the year 1539, but in that year it was formally declared to be the Law of France, by an Ordi- nance of Francis the First " 'pour la reformation et abbrevia" " tion des Proch." (5) By this Ordinance the Ecclesiastical Judges were also forbid to cite before them any of the King's lay subjects, in any matter whatever, except those which were strictly Spiritual, and the King's lay subjects were forbid to institute any suit, of a temporal natufe, before any Court of Ecclesiastical Jiurisdiction (6). ''' Thus the Crown of France, by persevering in one great plan, with indefatigable exertion, and continued prudence, suspending its attempts when the conduct of the Clergy, or any formidable conspiracy of the greater Seigneurs, required it, and resuming them when they were feeble or remiss, be- came once more thd Fountain of Justice. That part of its original Jurisdiction, over causes and persons, which the (I) Flfnrv's Intiiiut. du Droit Canon, vol. Sd. |).9& 10. i'i) Difi. df Jurispnidenre. vnl. 1st. p. 292. S) i., C. D^iiiztiri'g Preliminary DhcouriiC to vol, 1st, |). 73; (4) FIfurv'k Inaitut dii Droit Canon, vol. 2d.|».12. (5) Dictionnaire dr Jurisprodrnre, vol. lit. p. t^T. Traiie de I'Abus, vol. Isl. cap. 3,,p, 11, ed. of 1778. (6) Oidiiiinanres de Neron, vol. 1st. p. 169. Loysenn deg Sei^n^uries, cap. 15, icc. 7d| 76 6t lit* the )i. lit. in. . 75, 31 Clergy and the Seigneurs had usurped, was regained, and the entire proceedings of the Seigncurial and Ecclesiastical Judg- es, in all causes, civil and criminal, spiritual and temporal, which were legally subject to their inquiry, were brought before the review and control of the Sovereign, through the n^cdium of his Courts. Upon the re-establishment of the Royal authority, the local customs of France were so numerous and so various, that there were not two Seigneuries, throughout the whole Kingdom, entirely governed by the same Law (1). Some of the causes of this amazing diversity have been traced in the different usages of the Barbarians, which were introduced by the original conquest of Gaul — in that peculiar principle of their Jurisprudence, which permitted each individual to make choice of the Law by which he thought proper to be governed, and the consequent existence, not only of the cus- toms of each particular tribe, but of the Theodosian Code, especially among the Clergy — in the introduction of the feu- dal system, and the distinctions which it created between feudal and allodial property — in judicial combats which were necessarily introductive of new usages created by their several and various issues — in the usurpations of the Sei- gneurs, the means which they, severally, adopted to support them, and the independent administration of Justice within the limits of their respective Jurisdictions— in the Ordinan- ces enacted by the Sovereign for the government of the Royal Domaine — in the establishment pf Communes and their bye-laws — and in the compilation of the Canon Law, and its general Application to all questions decided by Ec- clesiastics. But to these causes must be added the discovery of the Justinian Code, which was brought from Italy into France about the middle of the twelfth century (2), and soon affected her Jurisprudence in various gradations : — In some of the Provinces it was entirely adopted and confirmed, and declared, by the Royal authority, to be excliisively their Common or Municipal Law. In others it was received as subsidiary to their own local customs^ as a rule of decision in cases for which they had not provided ; but in the greater !■ 1) MnnleiqaieOi Lib. 38, cap. 45. ;3) Idem, Lib.38,eap.43. Robcrtion's CharUs Y' vol* l>ti !>• Slf V 23 number it mingled imperceptibly with their usages, and had (1 powerful though less sensible influence. To the revival of the Roman Law must, also, be attributed ' fhe decline of the Trial by Peers and by the prodes homines. The duties of both were, originally, similar and required nei- ther capacity nor study. They decided upon the usage and custom of the people and place to which they belonged, and a knowledge of these was all which it was necessary for them to possess. But when the Institutes and digest ot Justinian were translated and publicly taught, the proceedings in the diifereiit Tribunals were materially changed. Learning a- inong the laity was totally unknown — but the clergy having some information, and being in possession of all the ofliccs in the different Courts, eagerly adopted the practice of the Roman Law. A new form of Trial was thus introduced, which was no longer an exhibition of state, grateful to the Seigneur and interesting to a warlike people, but a dry course of pleading which they neither understood nof cared to learn, and upon which the Judge was soon left to give judgment alone, for the Peers and the *' prodes homines," being no longer capable of deciding, withdrew by degree», and were succeeded by Lawyers, who were appointed to a$< sist the Judges with their advice, under the title of Asses' sors (1). , The Royal Judges, upon their re-establishmeutrwerc great- ly embarrassed by the different local customs to which, in the administration of Justice, they were compelled to have recourse, and upon which, by the secession of the Peers and prodes homines, they found themselves obliged to decide in person. It was impossible for them to have a knowledge of the usages of each particular Seigneurie, and, therefore, in all cases in which any question arose respecting the existence of a custom, or of the practice which had obtained under a particular custom, there was an absolute necessity for a re- course to parole testimony, by whicii means all questions o^' Law became mere questions of fact, in which he who held the affirmative was required to prove what he asserted, by the production often witnesses at least (2). (1) Montesquieu, Book 28, cap. 42, Tol. 3d. p, 319 & 330. (9) Flenry's Hiil. du Droit Fmiifois, p. 85. Ferriire'»Kd.Coin> vol. In. p. d, 6ec-2,art, |. 23 In such an inquiry, which was called an " EnquSte ipcr tnrhes," so much depended upon the influence and indus- try of the suitors, and upon the experience and integrity of the witnesses, that it was, at all times, difhcult to come to the truth, especially when evidence was adduced by both parties ; in such cases equal proof was sometimes made of two customs, in direct opposition to each other, in the same place, and upon the same fact (1). The reduction of the whole to writinp^ was pointed mit, by reference to the Roman Law, as an eiFectual remedy for these evils, and was adopted. At first the usafs^es of certain Bailiwicks were collected by individuals. — Pierre Desrfon- taines (the earliest writer on the Law of France,) published his " Conseil,' which contains an account of the customs of the country of Vermandois, and Beaumanoir, the " Cous- " tumes de Beauvoisis," during the reign of St. Louis, which began in the year 1226 (2). These works were followed by others of the same description (3), and by one of a public nature, " Les Stablissemens de St. Louis/' which contained a large collection of the Law and customs which prevailed within tho Royal Doroaines, and was published by the autho- rity of that Monarch (4). The compilations of individuals could have no weight in the King's Courts, except what they derived from the truth and notoriety of the subjects upon which they wrote ; yet it cannot be doubted that they contributed greatly to those re- daction of the customs which were afterwards made under the sanction of the Sovereign. In 1302, Philip the IV. directed the most intelligent inhabitants of each bailiwick t>o be assembled for the purpose of informing his Courts of the customs which 'had been obser. ed in their respective Ju- Ffsdictions, and riequired his Judges to register and observe thosfe which should be worthy of approbation, and to reject all which should be found unreasonable, and this command Was carried into execution iq several parts of the King- dom (5). (\) Fleury's Hiitoire da Droit Francois, p. 85. (S) Robenson's CharlfB V. vol. hi. p. 317. (S) Monieiquieu, Lib. 38, cb. 45, vol. 3d. p. 324. (4) Diciionnalre de Juriiyrultence, vol. Sd< (9) D^lsarl, vol. hi. p.575, 9(hedi(. Chirles the VII, conceived the ide^i of digesting the se- veral customs into one general code for all France, and to this end, by the 125th article of the ordinance of 1453, (1) usaaljly called the ordinance of Montils le Tour, he directed the several customs and usages of each Jurisdiction to be written, but nothing further w^as done, until the year 1495, when the custom of Ppnthieu was reduced to writing under Charles the eighth. His successor, Louis XI, is representedj by the Historian, Philip de Commines, and by Dumoulin, to, have been very desirous of having " one Custom, one weight, " and one measure, throughout his kingdom, and that everif " Law should he fairly em ^gistered in the French language ;" * (2) yet it does not appear that any of the customs were com- piled during his administration of the Government, but in the reigns of the succeeding monarchs, particularly Louig XII, Francis the I, and Henry the II, many were finished, and the whole, comprehending sixty collections of general customs, in force in the several Brovinces, and about thr' e hundred local customs, in force in the different Cities and Bailiwicks of the Kingdom, were completed under Charles the IX, after the expiration of the century from the com- mencement of the design. (3) In the execution of the edict of Charles Vll, the States General of each Province, consisting of the deputies of the nobles, the ecclesiastics, and the representatives of the com- mons, were convoked by the royal letters patent, issued for that purpose. By them, when assembled, an order was di- rected to all the judges and other Royal Law Officers of the Province, requiring them to transmit to the States General, reports of all the customs and usages practised in their res- pective Jurisdictions, from time immemorial. These repoits were referred to a special comirittee of the States General^ by whom they wer*^ reduced to abstract maxims, arranged in order, and so returned to the States General by whom they were examined, confronted with the original reports, dis-> cussed and accepted or refected. (^) Those which were ac- cepted, being confirmed by the King, enregistered and pub* lislied in the sovereign Court of the Jurisdiction to which [ Vi Ordonnanres de Neron, vol. Isf. p. 43. V) Dirliornaiie de Jurispr. vol. 3il. p. 47. Fl^nry, p. d. (3) FleuryN Hist, du Dioii Francois, p. 69. Rduer> verb " CoQtumes," vol. 16, u. 990. (4) Fleiiry's Hisi. du Drcll Frau^ois, p. 70. , 35 tliey related, (1) became the Law of that Jurisdiction, bind- ing upon its inhabitants, but in no way affecting the rights or prerogatives of the Crown, (2) and subject, at all times, to any alteration which the King might think proper to make by a royal ordinance. (3) The redaction of the Custom of Paris was among the first, lo 1510, Louis the XII. published a general edict, in wh?ch, after ireciting, that a fixed rule in the administration of Jus- tice was absolutely necessary for the happiness of a state, an4 that no Government could exist without it ; and declaring himself to be well acquainted with the great vexations, de- lays and expenses to which his subjects had been, and yet were obliged to submit, in consequence of the c infusion, obscurity and uncertainty which pervaded the customs of the different Provinces and Bailiwicks of his Kingdom ; he com- manded the wholetobe collected in the manner directed by ia, predecessor, Charles the VII. (4) and by a royal com-r mission of the same date, Thibault Baillet, President, Fran- 9oic \e Morvillier.j Counsellor, and Roger Barme, Attor- ney-General in the Parliament of Paris, were authorised *o call together the Counts, Barons, Chastelans, Seigneurs, Prelates, Abbots, Chapters, King's Officers, Advocates and Attornies of the city, Prevote and Vicomte of Paris, with a certain number of respectable citizens, and to lay before them the Custom of Paris, as it had then been reduced to •writing, in an assembly of the three estates, (which had been previously held for that purpose,) for such alterations as this new assembly of officers and citizens, upon discussion^ should find requisite. (5) This was, accordin/^ly, done, and sbnie changes were made j and His Majesty having declared, in the edict above mentioned, that he sanctioned and ap- proved whatever his commissioners and the three estates of any Province should, mutually, agree and certify to be the customs of that Province, (0) the whole, as it then stood. ■,t ,(1) loytrau Aea Sei^nenrieSiCh Sii, .ec, 11. Ffrr^ire, peJ. Cum, vol. I, p. 5. (iVBacqiirl Droit de Ju'ii.p>9,sec. 10— D'Ai«d, vol. 7, p. 502 A 363, and vol. 8, b. 15S ft 163. Cai» of Rex ft the Dale nod Diilrhcssde V.mqninnn. drrided 5th AiifciH't 1762, and reported in Ferri^ie, D. D- veVd " Coiitnine!)," vol Ut. p. 421. edit, of 1771 & in the Din des Dnmalnes, vol. 2J. p. 479. (3) Brodeau lur L luei, letter D.t h. 2>— Fer- ri^re, !). I), vol. 1st. p. 542, verb " Droiii *' Coiiliimiers." (4) Inir. in Ferri^re, gd. Com. vol. 1. p. 51 . (5) Inir. 10 Ferri^rr , fd. Com vol. 1. p. 39. (6) Ibid, gi. Com. vol. Isl. p.5'i. \r I'; 25 •was enrrpjistcrcd and published in the Parliament and Cha- tclet of Paris, as the edict required, and, thereupon, be- came the Law ol the Prevote and Vicomte of Paris. (1) la this siatc il remained until the year 1580, when, in ian as- sembly of thctlir*^ csfates, in which the celebrated Chris- lopiier Do Thou, first President of the Parliament of Paris, by virtue of Letters Patent, issued for that purpose by Hen- ;y the lU. presided, it was reformed and amended, with all the formalities which were used at the oripnal redaction ; but it received no improvement or alteration of any kind after that period, and the several articles, as they were then corrected, continue^ to this day, to be the text of the.Cus-' torn of Paris. :,....•.;,-..; ^;^>Kv^N Variols attempts were made by succeeding Monarchs, particularly Francis the I, Henry the IV. and Louis the XIV. to renew the great design of Charles the VlL for the Covernmentof France by one general and uniform code of Laws, but never with success. — The customs were too deeply rooted in the pride and prejudices of the inhabitants of the districts in which they obtained, to be eradicated, and- they prevailed, though the evils arising from s,uch u discor- dant mass of Laws were most sensibly felt and frequently de- plored ; — " Our numerous customs," says an animated wri- ter on the Lazo of France, " obscure and susceptible of any " interpretation, form a vast and eternal Labyrinth, in " which the peace, the happiness, the lives and fortunes of " our citizens, the very character and honor of Jurispru- •' dciice, are lost for ever." (2) . • . •■ • , •'•• The supreme legislative authority was, originally, vested in the assemblies of the Champ de Mars, (3) and, by them, it was exercised until the y-ar 921, when the last of the ca- pitulars ^vas enapted, under C^Jarles the simple. (4) .. . ♦- During the disorders which followed, the Sovereign and ih'i great Vassals were influenced by motives, which, though extremely different, produced the same effect in the conduct (1) Virfe Vf'in of 1510. in In(roHiir(ion (o Tv'.iie.iv. Rtaiiil tNimiMcm. \ol. Isi. p. 5i. Jin( iiici'diii liisiDH of ilie I'roids V«'rbnl of tlif RediiCiicncf Uie Cuiium ot Paris ibid, 1 .50- (?) Prn«t, dt* Rover, Dicir, de Jiirisii. vol. ?d. |>. 37- Villi- '^uUo ilie Preunible lo Ihe Unliiiaiirp of 1731. (3) Ruheruon'g Charlrji V. vol. lot. p, 160. (4) Robertton, ibid, vol. l»t,t). 367. 27 of both, and equally prevented all acts of general Legisla- tion. The weakness oi the crown compelled the King; care- fully to abstain from every attempt to render a Law general throughout the Kingdom ; such a step would have alarmed the Seigneurs— have been considered as an encroachment upon the independence of their Jurisdictions, and have led to consequences which might have provd fatal to the littlii fjemains of power which he yet retained. On the other hand, the Seigneurs as carefully avoided the enacting of gencrui laws, becailsethe execution of them must have vested in the King, and must have enlarged that paramount power which "Was the object of all their fears. The general assemblies, or States General of the nation, thus lost or voluntarily relin- quished their legislative authority, which^ abandoned by them, was assumed by the Crown. (I) The first of the royal ordinances, which can be taken for an &ct of Legislation, extending to the whole Kingdom, was pub- lished in the year 1 190, by Philip Augustus, and is entitled " Edit touchani ta mouvancc dcs Fiefs, cntre divers Ilerl- liers." (2) l*revious to this period they contained regula- tions, whose authority did not extend beyond the limits of the royal domain, m that no mldition whatever was nuid:' to the statute Law of France, during the long period of 269 years, which elapsed between the date of the la?t capitular, in the year 921, and the publication of this edict. (3) The first acts of general legislation were published by the, Kings of France with great reserve and precaution. They assembled a Council, composed of t!ie great officers of th^ Crown, and of certain of the Bishops and Seigneurs, which, is generally supposed to have been no other than the King's' Council of that day, the Court of the Palace, which wa» aftervvards made seder.tary and called the Parliament of Pa- ris, (4) With thern they deliberated — with their advice and consent they legislated, and by them the ordinances were signed, as well as by the Sovereign himself. (5) But, in a later [ period, and by succeeding monarchs, these were considered (f) Robertson's Charles V. vol. I«t. p. 167 and 168. ^ (i) Conr«reace de Guenois Chronolegique, p. 1- (3) Robertion's Ch&rUs V. vol. lil. p. 368 ■■d 161. (i) MnkimP!> de Droii Publique Fraii^oite, vol.4ili.|i'186. (5) Mirauinoiii dcs Jurindidinnsde IViicUw itc PulaU, |i. 61 — Coqiiille, Iiit.ii. dti Umit Frai>ct>Uira|i> hi— Maitineit du Droit PuU. Fiaii^'>ite»f vol. 4tb, (j, 184. I,» 28 tu unnecessary formalities, and rejected. They, then^ enacted la"W8 in their own names, and alone — the style of persuasion, which was used in the earlier edicts, was changed for the imperative declaration of an absolute Legislator, "voulons, " commandons et ordonnons, car tel est noire plaisir," and for the deliberative voice of the council, was substituted the practice of verifying and enregistering the royal ordinances in the Parliaments oi' Sovereign Courts of those Jurisdictions to which the King thought proper to extend them ; a prac- tise which was continued, without deviation, until it became a fundamental maxim in French Jurisprudence, recognised, equally, by the Piince and by the People, that no Law could be published in any other manner, and that no ordinance could have any effect, or bind the Inhabitants of any parti- cular Jurisdiction, before it was verified and enregistered, by the King's order, in the Sovereign tribunal of that Juris- diction. (I) Under the sanction of this maxim, the Parlia- ments of France, at various times, refused to verify and en- register particular ordinances which they conceived to bit! oppressive to the subject, or subversive of the constitution, with a spirit and constancy which reflected the highest ho- nor on their members, but bore no proportion to the power which they opposed. — In some instances of their opposition, the King voluntarily abandoned the obnoxious Law ; in others, the Parliament, on their part, thought it most pru- dent to submit, and obeyed the royal commands, contenting themselves with an entry, purporting that the enregistry Wi^s made by compulsion, "ca: iterativo ct expresso mandato He- gin." (2) But, whenever instances have occurred in which the Parliaments have inflexibly refused to enregister a(f of- dinance which the King had determined to carry into execu- tion, the plenitude of the royal power has afforded a remedy for their refusal. Upon such occasions, ^.he King repaired, in person, to the Parliament and held a " lit dt Justice." He took, possession of that seat, which he was supposed at all times to occupy, and commanded the ordinance to be read, verified and registered in his presence — for, being the So¥e- (1) Rnchfflavhi dfi Phrltmcns de France, liv. I3,cnn, 17, Tfn. S, n. 703— > Papon, (rois- Hmv N^ir, til. de !a rtaime "cnr niiisi nans pliiii," p. 334iind 336— Pa^qnicr. Krclimhet de la Frnnre. lib. 9, rap. 4— Cny seaii des Srignruries, cap. 3, No. 1 1— Des Offirrs, lib. 4^ rap. &, Nn. 67— Coqnillet Insiir.aii Droit Frai.folg,cap. Isi— Hericourt, Loi> EccleiiM>< *\%»r, |i. 108. cap. 10, sec. 10— Maiinnrs dii Droit Public Francois, vol. 4(h, |>, Si, tf > MHSlitft iu Ortit Public Fron(oi», v«l. 4tb» p. SIO & be. 1 q. 2D (rois- hrrchet reiffn, and personally present, the Parliament was held then to nave no authority, according to the principle, advmknte principe, cessat Magistratus, a principle which the consti- tution of France seems to have recognised, and which most effectually defeated every effort of her Parliaments to limit and control the Crown, in the exercise of a supreme legisla- tive authority. (1) " 0/?D02v^jv^2VCi?" is a generic term, comprehending, in Hi most extensive application, every rule of conduct prescribed by the Sovereign to his subjects in person, as the Royal Edicts, Declarations, and arrSts du Roi en son conseil, or hif his au- thority, as the bye-laws of corporations and the arrets of his superior or Sovereign Courts. (2) In a njrrrower sense, it signifies all laws which emanate! from the King directly, and those only ; (3) but, in its most limited import, it is confined to such general laws as are enacted by the Sovereign in person, and are rather codes of regulations respecting one or more branches of Jurispru- dence, than provisions for particular objects, and this is its proper signification. (4) In this sense the ordinance of John the 1. of March 1356 1- (5) one of Charles the Vli. of July 1438, usually called the pragmatic sanction ; (6) another of Charles VII. of October 1446 ; (7) another of the same monarch, of April 1453, usu- ally called the ordinance of JVlontil les Tours. (8) The or- dinance of Louis the XII. of March 1498 ; (9) that of Francis the I. of October 1535, commonly called the ordi- nance of Yz sur Title ; (10) another of the same monarch of June 1536, usually called the edict of Cremieux ; (11) ano- ther of the same monarch, of the month of August 1539/ commonly called the ordinance of Villars Cotterets; (12) cae of Charles the IX. of January 1560, commonly called the ordinance of Orleans ; (13) another of the same Monarch of (1) Rochrflavin. p. 93B & 9^— Pasquier's Recherrhes, vol. id. p. 5V6, 577, and Isi, p. 61 -Rupert. " Liide Jusiice," vol.36!,p.5S9. (3) Bornier's Preface, |i. S. Coocbol, |irui. Univ. vol. Isl. p. 4. (3) Coui'boi, prnt. tTnW.vol. Ist. n. 4. (4) Bornier's Preface, p. 3. Hericonrt, Lois Erctetiasiiqne, cap. 18, sec. 6, p. 108. (5) Ncroo, vol. lat. p.3. (6) Goenois* ChronoloKie, p. 7> (7) Neron, vol. hi. p. 17. (8) Neron, vol. Ist p. 34. (9) Neron, vol. Isl. p. 56. nO)Neron, vol. iM. p.93. (II) Neron, vol. Im. p. 15?. (13) Neron, vol. In. p. \S9. (13) Neron, toI. la. p. 30 January 1563, commonly callec! the ordinance of Ronsillon ; (I) another of the same Monarch, of February 1-506, com- monly called the ordinance of Moulins ; (2) one of Henyr the III. of May 1579, commonly called the ordinance of Blois. (3) The celebrated edict of April 1598, commonly called the edict of Nantes, (4) and that of Louis the XIII. of January 16^9, better known by the names of Code Mi- chaud and code Marillac, (5) are the principal ordinances, enacted before the erection of the Sovereign Council of Quebec. (6) - ^ The ordinance of January 1629, which is one of the most extensive and best digested, was enregistcred in a " Lit de Justice," held in the parliament of Paris, on the 15th Janua- ry, 1629. It was compiled by Michel de Marillac, then keeper of the sealsj by Order of Cardinal De Richtdteu, and was, at first, received with great approbation, which it well merits. But on the death of the Marechal de Marillac, who was brought to the scaffold by the Cardinal, the seals were taken from his brother, Michel, who was imprisoned, and died of a broken heart in the Castle of Chateaudrin in 1632. I,t1 The disgrace of Michel de Marillac affected the credit of the Ordinance of which he was known to be the author. It fell into general disrepute, and, certainly, for a period Was not cited in the Parliament of Paris. There were, how- fever, even during that period, some Jurisdictions which con- tinued to receive it, and in which it was quoted and admit- ted to be Law, particularly the Parliament of Dijon, and by some writers it is asserted, that it was finally re(!^ived as such in all (7). But by others this is denied, and the Ordi- nance is, by them, said to have become obsolete. JVbn mihi licet tantas componere Lites. ■ ,, . . - •: ,'i Much of the Ecclesiastical Law of France, as it stood at the erection of the Sovereign! Council of Quebec, is contain^ (7) Joiirn. d. Aud. vol. 4ili, p.486— Diclr. de Jurjiip. vol. 3. p.44— Deiiiz'arl, verb " Pa- reaiie," No. 95— L. C- Denizari, vol 4, p. 58G, c^sc of ihe Prioregenf Carignaiii. an. 1748-^ L; C. Denizari, vol. 9ih, |i. 761— K^penoirtf^ , 8vo. vol. llih, p. 4dl io434— Knryclopedia M^ihodique de .Turisprudenre, vol. »!• p. 69<2— L. C. Dianwt, vol. Ul- u. lH, icc. 4^ No. 3. (1) Xeron, vol. I9t.p.434. (•i) Neron, VoT. Isl. p. 444. (3) Neron, vol. ]i>t. p. 508. (4) Neron. vol. 2d. p. 921, (6) Neroii, vol. Isi. p. 782.— Rdperlre. verb " Code Michnnd.' (6) Vide Dictr. de Jiirispr. vol. 3d. p. 39— Heperi. verb ** Ordonnance," vol. 43, p. 470— i inivui, verb " Ordonnaaces." iimt^n 31 ^d in "the Ordinances which have been enumerated. — They, relate, in general, to the Government of the Church as well as of the State, and to the .Jurisprudence and practice of Courts, Ecclesiastical as well as Civil. There are, however, others which wholly concern the Church, some enacted up- on the representations of the States General — some upon the representations of the Clergy— and some upon the mere mo- tion of the Sovereign (I). But the principal Ordinance, on this head, is that of Charles the Seventh, of July 1438 (2), trailed the Pragmatic Sanction. DuRiNQ the schism of Avignon, when, from the year 4378 to the year 1417 (3), the Christian world saw, with as- tonishment and disgust, two co-existent Popes, each claim- ing an equal right to the Papal Throne, and supporting their respective pretensions by the full exercise of the papal power, the Gallican Church rejected all foreign authority, and governed herself, principally, by those parts of the Canon Law which had been observed previous to the publication of the new Derretals, In the great Assembly of the Church, which "was afterwards held at Constance, in the year 1414 (4), the superiority of the (Ecumenick Councils over the Pope was acknowledged and formally declared, and, in conse- quence of this declaration, and of an agreement which took place between the Council held at Basle in the year 1437, and the Sovereign and States General of France convened at Bourges, in the same year, the Pragmatic Sanction was enacted (5). But as this Edict materially affected the Papal Jurisdiction, it necessarily created many differences between the Courts of France and Rome, which, becoming subjects of negotiation, were terminated in the year 1516 (6), by the Concordat; a treaty concluded between Francis the First and Pope Leo the Tenth, at Boulogne, and enregistered in the Parliament of Paris, but enregistered in opposition to the opinion of that respectable body, and in their own ex- pressida " du tr^s cxpres commandement du Roi^ re iter e plu- sieurs fois." (1) (1) Hericoiirt, Loix EcclesiasliqiiP, inlro- dur.iion,|i.lS& 13> (9> fliienois' Chronolnpif, p. 7. (3) Milloi's HiBtory of France, pari 3d. p. 153 & ^17. . (4) Diet* Canon, verb *' Constunce." (5) FIrnry's Inst, au Drcit Canon, cap. I, »ol. I, p. 20. (6) Fleurv'i Insiii.au Droit Canon, vol.1, p. 23. (7) Hrricnurt, Loix Ecclciiastiqor, intro- duction, p. !>, 10 & Jl. \\V ■i ^ 0i The encroachments of tlie See of Rome have, in fact, eve|; been opposed by France (1), and the liberties of the Oallicaii Church, in opposition to the exorbitant pretensions of tho Holy Pontiff*, have, at all times, been asserted, and, at all times, supported by the King, the Clergy, and the people (2). These liberties, which comprehend not only the privileges and immunities conceded by the Concordat, but all the an- cient Canons adopted by the Gallican Church for its ow^ government, v^ith all its ancient usages, are recognised it| the celebrated declaration of the Church of France, made on the 19th of March, 1682, by the Archbishops, Bishops, and Deputies of the Clergy, assembled at Paris, by the King's ordei*, are confirmed by the Royal Edict of the same month, and are founded upon two maxims of very great extent, viz : That the papal and all other ecclesiastical power, is purely spiritual) and does not extend, directly or indirectly, to any thin^ temporal (3) ; and, that in spiritual concerns, the au- thority of the Pope being inferior to that of the Councils, he is restrained by the Canons, and cannot,- by any new consti* tution, infringe them, or svt aside any usage or custom of the Church of any State, recognised, by the Municipal Law of that State, to be valid (?). The Ecclesiastical Law of France, therefore, at the period above mentioned, although it recognised the Papal Canon Law, comprehended the parts, only, of that system, which had been received by the Galli- can Church, under the sanction of the Sovereign, expressed in letters patent, or implied from immemorial usage.— No Papal constitution, decree, decretal, epistle, rescript or bull- no canon or decree of any Council of the Church (Ecumeni- cal, national, or provincial, had, at that time, or afterwards, in France the effect of Law, until published by the Clergy in their respective Dioceses ; and such publication (even of a consti- tution relating to an article of faith,) could not be made without the Royal authority and permission (5). Even the ()) Fleurv's 1n»ii( uo Droit Canon, vol, 3, p. i'Ki (2) Vide the Dcrlnrniinn of (lie Citrgy at Fiaiire ol 168^2, iinil ih<- Roynl Edict iliere* «D in NVfiin, tot. eGulliranr."— Dicir. it> Uroil.vrrb " Liheneidr rEi(lik«Galli<'Biie." •>-La Comlir, Recucil de Jyritp. Canou, verb " Libert^* de I'RKlise Gnllicnne.'VTIeory's In«t. ail Droit Canon, vol. 3, |> 930 & seq.— Pmiveit dea Liberiei de I'EgliK Gullican^e, by Piihon. (5) Hnriconrt, Loii Ecclesiafiliqne, vol. 1, p. 106, rol. Id, and vol. Igt, p. 98 arid cnl. Ut and 3d, p. 100, col. \»\ and it. 105. col. In ft 2d, Diet. Canon, verb "Canon." & Droit Canon. Ija Combe, Recueil de Jnriip. Cfif^ ouu. introd. p. 1 & 2. ' 33 decrees of the Councils of Trent (admitted to have been le- gally convened,) were not recognised to be Law, their publi- cation not having been authorised by the Sovereign ; and to give effect to many Of its dispositions, which it was thought proper to adopt, they were enacted in the Royal Ordi- nances (1). The Royal Ordinances, With the Law of nature and of na- tions, and the Ecclesiastical Code, so far as it was sanctioned by the Sovereign, may be considered as the Common or uni- versal Law of France ; but the remaining part of the muni- cipal Laws of her several Provinces or Districts were very dissimilar. In the Pays de Droit Ecrit, which were those Provinces in which the Roman Code, by the especial favour of the Sovereign, had been permitted to remain, and was declared to be in force, that system obtained to the exclusion of the Customs (2) ; while in the others, and particularly in the Vicomte of Paris, the Customs obtained, to the exclusion of the Roman Law, which, in these Provinces, or Pays de Droit CoAtumier, was of no force, and was considered only as a system of written reason. It was long, indeed, a disput- ed question in the Jurisdictions of the Vicomte of Parisj Vvhether recourse was not to be had to the Roman, as to a positive Law, for decisions in unforeseen Cases for which no remedy was provided by the Custom ; but it was ultimately settled that such recourse ought not to be had, and that the Judges were not bound to decide by it (3). I FEEL that 1 have already trespassed upon your time, yet before I conclude, as the subject upon which I have the honor to address you appears to allow it, I cannot but solicit your attention to the actual state of the Study of the Law in Ca- nada. ' , The experience of many ages and of many countries seems to have shown, that the elements of science are best inculcat- (I) Hericoiirt, Luii Eccletiastiqae, vol.1, p. 99, col. 1 SI & 2d. (2) Ferriire, D. D. verb Ecrit." Pays de Droit (3) Ferridre, D. D. verb «♦ Payg de Droit Ecrii." D;umoulin, des Fier8, iiitrodaciion. No. 106 & 109. D'A|;ue88eau. vol. 1, p. 156. L. C. Dtoisari, vol. 5, p. 674* Ferriire, gd. Com. vol. 1st. p. 18 & 19, No. 1,2, 3, 4 ft seq , Ibid, p. 306, vol. 4, an. 10. Din. dr Juri»|i. de Probt- de Rover, vol. Isl. p. 6. Disicoiiri Pr^liminaire. he Pretstre Ceui, 3, cap. 85, 67fi, which ciiesan Ordiaance of Philippe e Bel, declaring France not to be goveracrf by ibc Civil Law- r. I"!, 34 ed by public lectures — rightly conducted they awaken the attention of the student, abridge his labour, enable him to gave time, guide his inquiries, relieve the tediousness of pri- Tate research, and impress the principles of his pursuit more effectually upon his memory (1). , ,. , , . ., The Student of Law in Canada has no assistance of this description ; he toils alone in an extensive field of abstruse science which he finds j^reatly neglected, and therefore too hastily deems to be despised, and, discouraged from the com- mencement of his labours, he is left to his own exertions, and is compelled to clear and prepare the path of his own instruc- tion, almost without aid of any kind. Would not an effort to relieve him in this arduous and solitary task, as one among the first fruits of this Society^ be highly worthy of its views and character ? And is it too much to say, that a public Institution, which would enable those who intend to pursue the profession of the Law to lay the foundation of their studies in a solid scientifical methodf, and afford them more ample knowledge of the peculiar sys- tem of Jurisprudence by which we are governed, would be productive of great and lasting benefit, not merely to the student, but to the public at large P It is not, however, my intention, upon the present occa- sion, to press this subject any further. The systenj to which I have just alluded is one of real merit, it is built upon the soundest foundations of natural and universal Justice, ap- proved by experience, and is most admired Ijy those who know it best. Its claims to notice are therefore so apparent^ that I shall indulge myself in the hope, that the influence of this Society will soon be exerted for the establishment of some Institution of a public description, in which the Law may be taught as a science — A science which, though hither- to neglected, is of the first importance to mankind, and *' with all its defects, redundancies and errors, is the united " reason of ages — the pride of the human intellect." (2) (1) Vide Sir JamPi MacliiDtosh'« discoune on the Study of the Law of Nature aod of KatioRg, p. i> (3) Burke's Worki, 4(o. vol. Si. p. ISf ftken the e him to 88 of pri- luit more e of this abstruse efore too the com- ions, and I instruc- lous and cietyj be is it too d enable iw to lav methodf^ iliar sys- rould be y to the it occa- o which ipon the ice, ap- ose who sparentj lence of ment of he Law hither- ndj and ! united 2) _ p.uf