Rafał Wojciechowski
European Legal
History
Tribal kingdoms
The tribal states did not initially have the characteristics of a territorial state. They were associations of free people.
The highest authority in tribal states was the council.
All free men capable of handling weapons participated. With time, only the elders of the tribe took part.
This political order is known as war democracy.
Generally, the council gathered at regular intervals, usually in the spring and autumn.
It decided about the fundamental aspects of the comunity’s life: declaring war, concluding peace, seecting kings or leaders and appointing high officiels.
It also exercised supreme judicial power.
Tribal kingdoms 2
The authority of the prince or king came from the powers of the supreme military commander, selected from among the most capable and bravest warriors.
The selection was performed by the council, usually from among members of the tribal aristocracy. The selection usually came from the same clan. A totally free election happened when the royal clan died out.
The significance of the council was reduced, and the
king’s powers increased. In the times of
Charlemagne (768-814) the council was an
opportunity to undertake a military review. After
that king died, no more councils were convened.
Patrimonial monarchy
As the council’s significance decreased, the state began to be viewed as the property of the ruler himself (patrimonium), which is why we speak of the patriarchal monarchy.
The foundation of the king’s power was the bannus. This meant the right of the king to give orders and to punish those who disobeyed. The royal authority extended to the military, judicial, and administrative spheres, as well as the treasury.
The central focus of state administration was the royal court. The king traveled together with it around the entire state. This is why we may speak of several capital cities rather than one capital.
The councils were replaced by court assemblies. They
were based on church synods. They could address all
matters of state, but their role was purely advisory.
Patrimonial monarchy 2
The structure of royal offices was based on the most trusted people from the king’s circle.
The Frankish state’s most important officer was the majordomo (maior domus regis). He served as the king’s deputy and his chief advisor.
After many decades, majorodomos became heriditary.
In 751, majordomo Pepin dethrones the
Merovingian dynasty and eliminated the office of
majordomo.
Patrimonial monarchy 3
Other officers of the court included:
The cup-bearer, responsible for the king’s wine cellar
The marshal, responsible for the royal stables
The treasurer, who managed income and expenditures
The pantler, responsible for interior administration of the court
The referendary, in the times of the Merovingians
he directed the king’s chancery.
Patrimonial monarchy 4
The Franks’ srate was divided into couties (comitatus) headed by earls (comes).
At first, he was one of the king’s warlords. The king could relieve him of his duties at any time. From the 7th century only an owner of land in the county could become an earl. The earl’s deputy was the vice earl.
A county was divided into smaller districts. In the west they were called vicariates, while in the east they were known as centenes.
Vicars and centines were public officials assisting the earl.
They were initialyl selected by the local assembly. With time, this choice was taken in conjunction with the earl.
Feudal fragmentation
In 843, the heirs to Charlemagne divided the state among themselves in the Treaty of Verdun.
The part that went to Charles the Bald, i.e. France, was quickly divided into smaller pieces leading to the weakening of authorities and increasing feudalization.
In 987 the French throne was occupied by Hugh Capet. He began the reign of the House of Capet (later the Capetian dynasty) on the French throne, yet initially his sucessors were designated and then selected while the king lived.
It was only Philip August, who reigned from 1180-1223, who ended this practice, adn his son Henry VIII received the throne hereditarily, which was from then on expressed by the phrase "The king is dead, long live the king".
Philip August conclusively led the country out of feudal fragmentation.
Feudal fragmentation 2
The French rulers of that era occupied two roles: king (rex) and prince (dux) of the Franks. The first title gave them power in respect of the entire state, and the second within the borders of their own domain.
The sacral coronation gave the kings of France their particular position. They were independent of both the Caesar and the Pope.
The king was the highest feudal lord, the suzerain.
Formally, he was over all those in the feudal
hierarchy. Actual authority extended to the
crown’s direct vasssals, under the formula "my
vassal’s vassel is not my vasssel".
Feudal fragmentation 3
At that time every feudal lord had the right to conduct war.
This led to chaos and the disappearance of the population.
This was opposed by the Church, which introduced the institutions of the Lord’s Peace (Pax Dei) and the Lord’s Truce (Treuga Dei). The first gave legal protection to those not involved in conducting war, such as farmers and priests. The second forbade fighting on special days such as Easter, Christmas, and finally every day of the week except for the time from Monday evening to Wednesday morning.
Violation of these rules could be sanctioned with excommunication and a trial before the tribunal of peace.
Feudal fragmentation 4
With time the kings themselves began to limit private wars. In 1258, Louis IX introduced a total ban on private wars.
In spite of the ban, these wars did not end in France until the 15th century.
The feudal hierarchy never questioned the king’s right to conduct France’s foreign policy.
The royal lawyers’ activities led to the principle that in relation to the Pope and the Empire, "the king is Caesar within his own kingdom".
The concept of the French’s church’s dependence on secular authority was developed.
At the beginning of the 14th century, this led to a conflict between King Philip IV and Pope Boniface VIII.
The papacy, losing the conflict, fell into what was called
the "Avignon Captivity".
Feudal fragmentation 5
The royal court remained the centre of state administration. A group of crown dignitaries surrounded the king, and advised him on the most important matters of state.
They constituted his privy council. The Capatians also began to summon a larger body, zalled the royal curia.
It was usually composed of the most important crown
dignitaries, individually invited secular and church
feudal lords, selected knights and clergy, and also
people of lower rank if they were scholars of the
law.
Feudal fragmentation 6
For the most important decisions the king summoned the grand council, which was composed of all feudal lords and representatives of the rich urban class.
Its initial organization and powers were not clearly defined.
The council’s opinion was not binding on the king, but he generally concurred with it.
In the 13th century the royal curia saw the
establishment of new bodies: the Conseil du roi,
the Accounting Chamber and the Parliament (then
a judicial body!).
Feudal fragmentation 7
In fragmented France, the primary state servants were the high dignitaries of the Crown. They were all nominated by the king for life.
The most important among them bore the title of Seneschal. He was the head of the royal armies and of local civil servants, and he was the king’s deputy in other matters, particularly in matters of justice.
The expanding powers of this position began to threaten the royal power, which is why after 1191 nobody was selected to hold the office.
With time, the place of the Seneschal in the
bureaucratic hierarchy was taken over by the
Chancellor.
Feudal fragmentation 8
Local royal administration during the period of fragmentation in France can be only be found in the area belonging directly to the monarch’s domain.
The local government of individual manorial territories was shaped autonomously, and its organization depended on the will of the feudal lords themselves. As a rule, however, they took the administration of royal territories as their model.
The first Capetians took as their foundation the system
from the times of the Carolingians. However, when
the previous lords feudalized their royal offices,
they were required to change the way they
administered the part of the domain which
remained.
Feudal fragmentation 9
A new civil servant locally engaged in administration of the royal territory was the provost, in the south of France known as bailiff, who ruled over an area known as the bailiwick.
He performed administrative, tax, military and judicial functions.
Provosts were recruited from the lower classes, so they would not threaten the royal power.
His office was leased to him. He paid a fixed sum to the treasury, and the rest he kept for himself.
This system was not popular with the common people.
Feudal fragmentation 10
In 1190 Philip August established the office of bailiff to oversee bailiwicks.
Bailiffs were drawn from sporadically delegated emisarries of the king who had previously overseen the activity of bailiwicks.
Oversight began to take on a permanent nature. Each bailiff ruled over several districts, leading to the name bailiwick for the territory where they exercised power.
In the south of France, bailiffs were called seneschals, and their regions called sénéchaussée.
A bailiff was not appointed in the Paris district, where his functions were performed by the provost, who had authority over lower provosts.
Bailiffs (seneschals) were nominated by the king from the minor nobility for an indefinite term of office. They were ofen educated lawyers.
Feudal fragmentation 11
Bailiffs lived in their districts.
In order to make them independent from the influences of local knights and bourgoise, they were subject to a number of personal restrictions, includng bans on:
Marrying residents of their district
Acquiring real property within their bailiwick,
Leasing the office of provost to relatives
Bailiffs’ powers were analogical to those of provosts.
Bailiffs collected a regular salary.
Their position was entirely dependent on the king.
They were his loyal servants and assisted in the
centralization of power.
Estate monarchy
France was an estate monarcy in the period 1302-1484 The king’s power took on a public-law dimension. This
was done in France with the participation of educated lawyers, called legists.
They used Roman law as their guide, from which they took fundamental concepts of the state and of royal power.
They provided a foundation for the legal basis of royal authority, leading to the king being acknowledged as:
The highest feudal lord
The source of all justice
The sole holder of soverign authority in the state
Estate monarchy 2
The Royal Council in France was taken from the royal curia of the 13th century. It was a collegial body.
Its composition was fixed in the 16th century. It was composed of peers, grand vassals of France, leading clerics and royal advisors.
Its powers included:
Conducting foreign policy
General state administration
Financial matters
Cassation hearings
The power to bring every administrative or judicial
matter before the monarchial court
Estate monarcjy 3
In 1497, at the very beginning of the absolute monarchy, the judicial powers of the Royal Council were transfered to the Grand Council.
The Royal Council’s activity in respect of taxation was complemented by the Accounting Chamber.
Its powers included:
Oversight of provincial servants’ accounts
Finanical oversight of the royal administration
Registration of royal ordinances concerning taxation
Issuing ordinances
Judicial matters of taxation
Estate monarchy 4
In most estate-based states, the structyre of central administration remained essentially unchanged from the preceding period.
Its functions were, however, changed.
Court and state offices were made seperate.
Court dignitaries began to slowly lose real significance.
Their offices became honorary.
State administration and day-to-day matters were
managed by specialized offices developed from
existing organs.
Estate monarchy 5
Daily administration in France was a mater for the royal chancellery.
At the end of the 15th century it employed around 100 specialists who prepared around 20,000 documents every year.
The importance of the chancellor was growing. Besides directing the chancellery, he also oversaw state administration and the administration of justice.
New bureaus and archives were also created. Statistical,
documentary and cartographic activity increased.
Estate monarchy 6
In the end of the estate monarchy period, members of the central administration stopped accompanying the king.
The position of the capital was cemented as the centre of administration.
Couriers were used to communicate with the outlying areas, and a postal system was eventually created.
Representatives sent abroad for specific missions turned into permanent residents.
In this period, state administration was primarily a place where people from the minor nobility, urban class, and (rarely) clergy worked.
The system of granting civil servants feudal properties disappeared. They received salaries.
