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English Legal History
3/11/2009
Outline
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I. THE ENGLISH AND FRENCH CONSTITUTIONS
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II. IDEAS ABOUT KINGS—BRACTON (Mats.,
§5F)
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THE ENGLISH AND FRENCH CONSTITUTIONS
AND THE THEORY OF MONARCHY c.1300
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1.
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Chronology on Mats. V–54:
Louis VI (the Fat) — 1108–1137, time of Henry I
Louis VII (the Young) — 1137–1180, time of Stephen and Henry II
Philip II (Augustus) — 1180–1223, recovered Normandy and launched
Albigensian Crusade
Louis IX (St. Louis) — 1226–1270
Philip III (the Bold) — 1270–1285
Philip IV (the Fair) — 1285–1314, war with Edward I and conflict with Pope
Boniface VIII
1302 — the Estates General
1307–1312 — destruction of the Templars
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2.
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France is a country
that is in many ways quite similar to England. And yet by 1300 the constitutions of the
two countries were markedly different:
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a.
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There is no common law in France. The country is divided into the land of
customs, pays de droit coutumier, roughly the northern two-thirds in
which each area has its own customary law, and the land of the written law,
pays de droit écrit, roughly the southern third, in which Roman law
is dominant. In the 14th century the
French lawyers will come to speak of the ius commune, the common
law, but what they mean is the law taught in the universities, a mixture of
Roman and canon law.
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b.
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There is no parliament in France. There is the parlement of Paris, like the
English parliament, the most important court of the realm, but there its
functions cease. If we are looking
for a representative body we must look at the Estates General, an important
institution but one that is only beginning in the early 14th century, and
which never is united with the parlement.
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c.
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There is no legislative activity in the area of private law comparable
to that of Henry II or Edward I. The
closest we come is an important procedural ordonnance of St. Louis.
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d.
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Local administration there is, and it is not unlike that in England,
but by and large it operates only in the lands directly dependent on the
French crown, the French equivalent of the English ancient demesne.
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3.
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The question is why these differences.
Let me focus on justice, which in some ways is the best known.
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a.
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Justice in France is
a seigneurial matter, as it was in England in the early 12th
century. Whether the theory is fief
and justice are one (fief et justice sont un) or fief and justice
have nothing in common (fief et justice n’ont rien de commun), the
fact is that justice is a seigneurial matter at the county level and
sometimes lower. At the beginning of
the 13th century there is no mechanism for getting from these courts to the
royal courts, except, of course, in the case of the royal demesne. The notion of royal county courts does
not exist. There are no itinerant
justices.
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b.
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Procedure in these courts is archaic and oral with a feudal overlay of
trial by battle. There is no hint of
a jury. The ordeal died much slower
in France than it did in
England. Louis IX abolished trial by battle and
replaced it with the Romano-canonic inquest procedure. This is the single most striking
illustration of the importance of chronology. If Saint
Louis had reigned in the time of Henry II the
developments might well have been the same because Romano-canonic inquest
procedure had not been invented in Henry II’s time.
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c.
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Of course the French king had a court, known as in England as the curia regis,
and he summoned his vassals to it, among other things, to hear cases. The 13th century sees an increasing
number of professionals in attendance at the court and during the reign of St. Louis it begins to
acquire distinct functions: curia in concilio, curia in
parlemento, curia in compotis.
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d.
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The parlement heard appeals from the bailiffs and seneschals, first
from the newly conquered south, then from the north, then from the
seignorial tribunals. The parlement
was also involved in the trial of cases involving peers, the jugement
des pairs. But appeal is not the
same thing as hearing cases at first instance. The parlement did not attempt to
impose a uniform law, but to see to it that the bailiff correctly applied
the local law.
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4.
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In the time of Philip Augustus France began to develop a
financial administration. The
bailiffs rendered accounts as at the English exchequer. Indeed, French budget-making may be
superior to English in this period.
But the French exchequer does not have a writ system. Its functions remain essentially
financial, and a judicial system does not develop out of it.
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5.
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The bailiffs and the seneschals, the royal officials, began as itinerant
but became local. They are officers
of justice like the sheriffs but they retain full competence.
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6.
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These differences in institutions produce a series of differences in
underlying ideas.
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a.
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The theory of the monarchy, as in England, is a blend of ideas
derived from feudalism (the king is the lord of all), from Roman law (the
king is emperor in his own realm), and from Christianity (the king is the
lord’s annointed). By the time of
Philip the Fair, it is the second idea that has come to dominate, and we
will see shortly that this may also be true in England.t
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b.
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The notion of community may be stronger in France
than it is in England,
which is not to say that it wasn’t strong in England too. It begins in the family, where already in
the 13th century we see ideas of community property between spouses. The notion of estates of the realm,
classes of people within the society having a corporate quality is barely
visible in France
in 1302 with what may be the first Estates General, but it is powerful at
the provincial level. It will come
to develop on the national level in England in the 14th
century. On the other hand, the
concept of the community of the realm is weaker in France than it is in England, where it is clearly
present in the 13th century. In France
we really have to wait for the Hundred Years’ War before it develops.
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c.
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We see in France as
we do not in England
a notion that the only law that binds the monarchy is the law of
succession. This is not the only
idea about the law and the king floating around in the M.A., and modern
historians may have overemphasized it with the advantage of hindsight.
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d.
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The Estates General when it develops is a consultative body dealing with
taxation and treaties, only occasionally making initiatives. For our purposes its separation from the regular
judicial function may be its most important characteristic.
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e.
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In France
the tendency toward centralization comes in a time when feudalism is on the
decline. The barons never united in France
to oppose the king; there is no Magna Carta, no Provisions of Oxford. Each feudatory held his privileges
separately.
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7,
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Despite these substantial differences, and unlike many historians, I
would tend the emphasize the similarities rather
than the differences between England
and France. The economy of ideas is very similar in
the two countries, and while the difference in institutions is certainly
there, they are recognizably of the same institutional stock. The history of the two countries will diverge
remarkably in the 17th century, but anyone who looks at the two countries
in 1300 and sees Louis XIV and the Glorious Revolution is looking at the
pattern through the strange glasses of hindsight.
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1.
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To give some sense of what I mean about the economy of ideas, let us
take a closer look at theories about kingship. The author I have chosen is Bracton. Bracton we now know is the name of a
committee, one of whom, and perhaps not the most important of whom, was
Bracton. Most of the book we now
know was written before 1236. One or
more of the authors of Bracton
knew a lot of Roman law. The
passages on kingship are among the best known in the book. There are considerable complexities in
these passages, not the least of which are the result of the fact that the
final redaction of the text was done by someone who didn’t understand it,
but I think the main outlines are clear enough. The trick to reading this text is to
assume that the material in italicized square brackets is glosses added by
a later author. This is a quite
recent discovery, and the argument for doing it can be seen quite clearly
in the first sentence of the paragraph.
The king has no equal within his realm, [Subjects cannot be the
equals of the ruler because he would thereby lose his rule, since equal can
have no authority over equal.]
nor a fortiori a superior,
because he would then be subject to those subjected to him.
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2.
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The first statement of the theme comes at the beginning of the book in
the section on persons when Bracton
is talking about the king. The king
has no equal in his realm, and, of course, no superior. The bracketed gloss states a theory
pretty close to what we would call sovereignty.
The king must not be under man but under God and under the law, because law
makes the king, [Let him therefore bestow
upon the law what the law bestows upon him, namely, rule and power.] for there is no rex where will rules rather than lex.
Since he is the vicar of God, [And that he ought to be
under the law appears clearly in the analogy of Jesus Christ, whose
vicegerent on earth he is, for though many ways were open to Him for his
ineffable redemption of the human race, the true mercy of God chose this
most powerful way to destroy the devil’s work, he would use not the power
of force but the reason of justice.
Thus he willed himself to be under the law that he might redeem
those who live under it. For He did
not wish to use force but judgment.
And in that same way the Blessed Mother of God, the Virgin Mary,
Mother of our Lord, who by an extraordinary privilege was above law,
nevertheless, in order to show an example of humility, did not refuse to be
subjected to established laws. Let
the king, therefore, do the same, lest his power remain unbridled.] there
ought to be no one in his kingdom who surpasses him in the doing of
justice, but he ought to be the last, or almost so, to receive it, when he
is plaintiff. f it is asked of him,
since no writ runs against him there will [only] be opportunity for a
petition, that he correct and amend his act; if he does not, it is
punishment enough for him that he await God’s vengeance.
But the king is under God and under the law. Skipping the glosses for a moment. The king therefore ought to surpass all
in the doing of justice. But because
he has no equal there is no legal remedy against him, only a remedy by way
of petition. If he does not adhere
to the petition, God will judge him.
Now this is a very traditional statement of the descending theory of
power, and it is reinforced by the religious analogies in big gloss. The king is the vicar of God; he should
submit himself to the law as Christ submitted himself to the law, as the Virgin
submitted herself to the law. The
only problem with the religious analogy is that it admits an element of
paradox. In the traditional
statement the king was under the law; there was just no remedy on this
earth against him, but the exploration of the religious analogy suggests
that the king is in some sense freed from the law, but voluntarily submits
himself to it. We may call this
Bracton’s paradox. Other authors in
this period will resolve the paradox by saying that the king is subject to
divine law or natural law, but is not subject to human law, or that he is
the source of human law. But, as we
will see, this is not Bracton’s resolution.
The question is does Bracton have a resolution or does it remain a
paradox?
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3.
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I’m going to skip the second passage for a moment, the so-called
“addition about charters.” Some have
doubted that it is part of the original text rather than something added at
the time of the Barons’ Wars.
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4.
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The next passage concerns the power of the king to grant privileges.
It is clear that the lord king [has all] dignities, [[It is the lord king]
himself who has ordinary jurisdiction and power over all who are within his
realm.1 For he has in
his hand all the rights belonging to the crown and the secular power and
the material sword pertaining to the governance of the realm. Also justice and judgment [and
everything] connected with jurisdiction, that, as minister and vicar of God,
he may render to each his due. Also
everything connected with the peace, that the people entrusted to his care
may live in quiet and repose, that none beat, wound or mistreat2 another, [or] steal, take and carry off by force and
robbery another’s property, or maim or kill anyone. Also coercion, that he may punish and
compel wrongdoers, [He in whose power it is to cause
the laws, customs, and assizes provided, approved and sworn in his realm to
be observed by his people, ought himself to observe them in his own person.] for it is useless to establish
laws unless there is someone to enforce them.]3 4rights or jurisdictions in his
hand. He also has, in preference to
all others in his realm, privileges by virtue of the jus gentium. [By the jus gentium] things are his which by
the jus naturale ought to be the
property of the Wnder,
as treasure trove,5 wreck, great Wsh, sturgeon, waif, things said to belong to
no one.6
Also by virtue of the jus
gentium [things] which by natural law ought to be common to all, as
wild beasts and undomesticated birds, which by natural law ought to be
acquired7 by apprehension and capture or fowling,
[or] by occupation and apprehension, [as] of another’s property, as where a
thing is cast away and taken to be abandoned.8
Those concerned with jurisdiction and the peace [Those connected with justice
and the peace belong to no one save the crown alone and the royal dignity,
nor can they be separated from the crown, since they constitute the crown [For to do justice, [give] judgment
and preserve the peace is the crown.]
9without which it can neither subsist nor
endure.]10cannot be transferred to persons or tenements, neither the
right nor the exercise of the right,11 nor be possessed by a private person
unless12 it was given him from above as a
delegated jurisdiction, nor can it be delegated without ordinary
jurisdiction remaining with the king himself. Those called privileges, however, though
they belong to the crown, may nevertheless be separated from it and transferred
to private persons, but only by special grace of the king himself;13 if his grace and special grant do not
appear time does not bar the king from his action. Time does not run against him here since
there is no need for proof.14 For it ought to be apparent to all that
such things belong to the crown unless the contrary can be shown by a
special grant.15
In other matters, however,16 where proof is needed, time runs
against him just as against all others.
The passage originally said: The lord king has all dignities, rights or
jurisdictions in his hand. Some
examples are given such as treasure trove and hunting. Another example is jurisdiction. But jurisdiction is different. It cannot be alienated but only
delegated, and the delegation must leave ordinary jurisdiction in the
king’s hand. Privileges, however,
(treasure trove and hunting might be examples) may be granted by the king
but a grant must be shown. Royal
privileges cannot be acquired by prescription. The glossator came along and made it more
complex. In the first place (the
second gloss) he added a justification for the concept of inalienability of
sovereignty. The king cannot give
away jurisdiction because to do so would be to give away the crown. Jurisdiction is of the essence of the
crown. That much is clear. What the big first gloss does is less
clear. A very great scholar of the
last generation, Charles McIlwain, without knowing that this was a gloss,
thought that the passage drew a distinction between jurisdictio and gubernaculum. In exercising jurisdictio the king
was subject to the law, but in exercising gubernaculum he was
not. Perhaps this is right, but I
must confess that I don’t see a distinction between the two being drawn
here, nor do I see any indication that the king’s relation to the law is
any different in the two. The
paradox remains; the king is both above and below the law.
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5.
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The final passage comes from the section in which Bracton. treats of jurisdiction
generally.
To this end is a king made and chosen, that he do justice to all men [that the Lord may dwell in him, and he by His
judgments may separate]
and sustain and uphold what he has rightly adjudged, for if there were no
one to do justice peace might easily be driven away and it would be to no
purpose to establish laws (and do justice) were there no one to enforce
them. The king, since he is the
vicar of God on earth, must distinguish jus
from injuria, equity from
iniquity, that all his subjects may live uprightly, none injure another,
and by a just award each be restored to that which is his own. He must surpass in power all those
subjected to him, [He ought to have no peer,
much less a superior, especially in the doing of justice,1 that it may truly be said of him, ‘Great is our lord
and great is his virtue etc.,’ though in suing for justice he ought not to
rank above the lowliest in his kingdom.]
nevertheless, since the heart of a king ought to be in the hand of
God, let him, that he be not unbridled, put on the bridle of temperance and
the reins of moderation, lest being unbridled, he be drawn toward
injustice. For the king, since he is
the minister and vicar of God on earth, can do nothing save what he can do de jure, [despite the statement that
the will of the prince has the force of law, because there follows at the
end of the lex the words ‘since
by the lex regia, which was made
with respect to his sovereignty’; nor is that anything rashly put forward
of his own will, but what has been rightly decided with the counsel of his
magnates, deliberation and consultation having been had thereon, the king
giving it auctoritas.] His power is that of jus, not injuria [and since it is he from whom jus proceeds, 2from the source whence jus takes its origin no instance of injuria ought to arise,3 and also, what one is bound by virtue of his ofWce to
forbid to others, he ought not to do himself.] as vicar and minister of God on earth, for that power
only is from God, [the power of injuria however, is from the devil,
not from God, and the king will be the minister of him whose work he
performs,] whose work he
performs. Therefore as long as he
does justice he is the vicar of the Eternal King, but the devil’s minister
when he deviates into injustice, For he is called rex not from reigning but from ruling well, since he is a king
as long as he rules well but a tyrant when he oppresses by violent
domination the people entrusted to his care. Let him, therefore, temper his
power by law, which is the bridle of power, that he may live according to
the laws, for the law of mankind has decreed that his own laws bind the
lawgiver, and elsewhere in the same source, it is a saying worthy of the
majesty of a ruler that the prince acknowledge himself bound by the laws.
Again leaving out the problematical gloss in the middle it says that the
function of the king is to do justice.
This is what he swore to do at his coronation. In doing justice he is the vicar of God
on earth. But if he does injustice
then he is not the vicar of God but the vicar of the devil; he is not a
king but a tyrant, quoting John of Salisbury, who went on, as the author of
the passage does not, to suggest that a tyrant might be deposed. The passage concludes with some
reflections on the relationship between justice and mercy. In the middle of the passage comes the
troublesome gloss: “Despite the statement that the will of the prince has
the force of law, etc.” Now what is
going on here is an extraordinary twisting of the most absolutistic of
texts in Roman law: “What pleases
the prince has the force of law, since by the lex regia the people
have given all authority to him.” It
is hard not to conclude that the author of the gloss is rejecting the Roman
text and saying that the lex regia in England does not give the king
the power to make all laws by himself, but only with the counsel of his magnates,
deliberation and consultation having been had thereon, the king giving it auctoritas. This view is confirmed in the second
passage, the one that I skipped, with the mysterious statement that the curia
is superior to the king and may “put a bridle” on him. But this is not the mainstream argument
of the text. The mainstream argument
of the text establishes a hierarchy descending from God to the law to the
king. The law makes the king. If the king does not do according to the
law he unmakes himself king. There
is no legal remedy if this happens, but God’s judgment will be severe. In the middle of the century people were
thinking of mechanisms whereby they might be able to help God in rendering
his judgment. Wild-eyed radicals
would suggest a right of revolution.
This seems to be the argument of the second extract, the one that I
skipped. But most,
and I would suggest for the mainstream of our text, the paradox remained
unresolved. It was to remain so for
a long time.
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