Les grandes ordonnances:

Ordonnace de Villers-Cotterets (Francis I, Poyet, 1539)—general reform particularly in procedure for gracious acts.

Ordonnance d’Orléans (Charles IX, l’Hôpital, 1561)—inheritance and civil procedure.

Ordonnance de Moulins (Charles IX, l’Hôpital, 1566)—a kind of statute of Frauds.

Ordonnance de Blois (Henry III, 1579)—marriage.

Ordonnance de 1629 (= Code Michaud) (Louis XIII, Michel de Marillac)—extension of feudal tenure.

Ordonnance de 1667 sur la procédure civile (= Code Louis) (Louis XIV, Colbert)—close to a codification.

Ordonnance criminelle (Louis XIV, Colbert, 1670)—less successful but along the same lines.

Ordonnance du commerce (=Code Savary or Code Marchand) (Louis XIV, Colbert and Savary, 1673)—general commercial code.

Ordonnance sur le commerce de mer (=Code de la marine) (Louis XIV, ?Colbert, 1681)—perhaps the most influential beyond the borders of France.

Ordonnance de 1731 sur les donations (Louis XV, D’Aguesseau).

Ordonnance de 1735 sur les testaments (Louis XV, D’Aguesseau).

Ordonnance de 1747 sur les substitutions (Louis XV, D’Aguesseau).

1789—beginning of the French Revolution

1799–1815—Napoléon

Code civil (Napoléon, 1804).

Code de commerce (Napoléon, 1806).

Code de procédure civile (Napoléon, 1806).

Les grandes ordonnances, the decree Tametsi, and the ordonnance of Blois

1. There are a number of ways in which one might tell the story of the grandes ordonnances. One might, for example, notice that they begin with topics that are away from the core both of customary law and of Roman law, procedural matters and specific reforms, like the ordonnance de Moulins of 1566. Commercial law is an obvious topic for codification, both because mercantilists principles tell you that the legislative background is important for promoting commerce and because commercial law in both Europe and England was until the 17th century somewhat independent of both local custom and of Roman law. Only in the 18th century does d’Aguesseau come to codify systematically areas that had long been treated by custom and by Roman law: gifts, wills, and the law of substitutions (entails). One might, on the other hand, focus on the personalities. Michel de l’Hôpital, you will recall, is one of the more attractive figures of 16th century France. A Catholic but a moderate, he espoused toleration for the Huguenots. Jean-Baptiste Colbert was Louis XIV’s great mercantilist minister, a bourgeois, devoted to his king and to efficient administration. Henri François d’Aguesseau was probably the best technical lawyer of the three. He was firmly committed to the principles of rational law reform.
2. I have chosen, however, to lead you through this material today in a somewhat different way. I want to focus principally on marriage. The last time that we examined marriage, we noted that the extraordinary rules that Alexander III had promulgated on the topic were running into difficulty.

1. There was the difficulty of proof of informal marriages, something that we saw in the case of Dolling c. Smith. At the 4th Lateran Council in 1215, the church had strongly encouraged couples to have their marriages blessed publicly after the publication of banns, but it had not repealed Alexander’s rules.
2. Alexander’s rules were encountering opposition in those portions of society where marital property was important. In particular, the Roman lawyers kept alive the tradition that parental consent was necessary for the validity of a marriage, and the Roman rules on dower and customary rules about community property were affecting, adversely it would seem particularly to women, the equality that seems to lie at the roots of Alexander’s rules.

3. It would seem that the French proved particularly resistant to Alexander’s rules. There was nothing that the French could do about the law of the universal church that said that informal marriages were valid, but French local councils throughout the Middle Ages proclaimed that those who married without church blessing were automatically excommunicated. For both Luther and Calvin they violated the fundamental principle of the authority of fathers in managing the affairs of their families, including the authority to determine whom their children were going to marry. When the Council of Trent came to consider marriage in 1563 an intense debate ensued. The delegates from France, led by the cardinal of Lorraine, had been instructed to press for two changes in the law: no marriage was to be valid unless publicly solemnized in the church after promulgation of banns and no marriage of a son or daughter subject to paternal power was to be valid. In addition to their traditional opposition to Alexander’s rules there had recently been a runaway marriage in one of the leading families of France. The Italian cardinals, on the other hand, proved to be the most conservative. For them the validity of non-solemnized marriages was a matter of doctrine, like the Trinity, that could not be changed. To change the rules would be to concede too much to the reformers. The result was a compromise, the decreee Tametsi, of 1563, that you have in the Materials on p. XVI-2. It has four important elements:

1. Alexander’s rules were confirmed and anathemas proclaimed against those who held that they had been invalid.
2. Alexander’s rules were changed for the future. Marriages not solemnized before the parish priest and at least two witnesses were hereafter declared to be invalid. (The parish priest was also to proclaim the banns and keep a marriage register, but these are not made elements of validity). The way in which this change was justified was by making the parties incapable of marriage if they contract otherwise. While Alexander’s rules expressed a doctrine about the essence of marriage which the church was unwilling and perhaps incapable of changing, it was well known that the church had made rules and changed them about the capacity to marry. It had, for example, changed the rules about what near relatives could marry several times.
3. Marriages of minors without parental consent were condemned, but they were not declared to be invalid. Indeed, the parish priest was expressly authorized to dispense with the promulgation of banns if he feared that force might be applied to the couple.
4. Because the general promulgation of these rules in countries that were no longer Catholic would have led to the invalidation of Protestant marriages, at least in the eyes of the church, the Tridentine rules were expressly declared to take effect only when they were promulgated in the parish.

4. The French were furious. They refused to promulgate the decree of the council in their country, and the Tridentine rules did not come into effect in France, some would argue, until early in the 20th century. They promulgated instead their own ordinance, the ordonnance Blois of 1579, similar to Trent but stricter:

1. The promulgation of banns was made a condition of the validity of the marriage. One set of banns had to be promulgated, and dispensation from the other two could be obtained only if the relatives requested it. A priest who married a child in the power of its parents without parental consent was to be held guilty of misprision of rape.
2. Those who suborned the consent of the child in power were to be punished capitally for rape, the consent of the child being irrelevant.

The statute was no masterpiece of draftsmanship. In the first place the sanctions were draconian, and draconian sanctions have a tendency not to be enforced. Secondly, by refusing to promulgate the decrees of the council, the French, in fact, left the Alexandrine rules in effect. The possibility was raised of canonically valid marriages that were not valid secularly. Third, the statute is unclear as to just what conditions are necessary for validity. Banns are clearly required; witnesses? That’s less clear. In particular, the thing that is the object of most concern, marriage without parental consent, is not expressly made a condition of validity. The situation was somewhat improved in 1629 with the passage of another ordonnance that required parental consent as a condition of the validity of the proclamation of the banns. Indeed, none of these ordinances say that consent is required for the validity of the marriage. The ordinance really assumes pre-existing canonic doctrine and is not a true codification.

5. As an aside, the same may be said about the provisions on witnesses in Colbert’s ordinance on civil procedure of 1667 (Mats., p. XVI–7). We’ll have more to say about it next time. It is clearly directed against certain abuses in connection with the reproaching of witnesses—vague charges, charges that could be supported from an official record and are not, the answers to the reproaches must be furnished to the opposite party on penalty of their not being considered, and the answers must be furnished quickly, the reproaches themselves must be determined in advance to be relevant, they must be considered in advance of the depositions, and they must be signed by the parties not by their proctors. All of this really assumes that there is a law about reproaches against witnesses, but that law is not stated in the ordinance.