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chapter xxi: Of the Juridical Parliaments in France - Robert Molesworth, An Account of Denmark, With Francogallia and Some Considerations for the Promoting of Agriculture and Employing the Poor [2011]

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An Account of Denmark, With Francogallia and Some Considerations for the Promoting of Agriculture and Employing the Poor, Edited and with an Introduction by Justin Champion (Indianapolis: Liberty Fund, 2011).

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chapter xxi

Of the Juridical Parliaments in France

Under the Capetian Family there sprung up in Francogallia a Kind of Judicial Reign, [Regnum Judiciale] of which (by reason of the incredible Industry of the Builders up and Promoters of it, and their unconceivable Subtilty in all subsequent Ages), we think it necessary to say something. A Sort of Men now rule everywhere in France, which are called Lawyers by some, and Pleaders or Pettyfoggers by others: These Men, about 300 Years ago, managed their Business with so great Craft and Diligence, that they not only subjected to their Domination the Authority of the General Council, (which we spoke of before) but also all the Princes and Nobles, and even the Regal Majesty it self: So that in whatever Towns the Seats of this same Judicial Kingdom have been fix’d, very near the third part of the Citizens and Inhabitants have applied themselves to the Study and Discipline of this wrangling Trade, induced thereunto by the vast Profits and Rewards which attend it. Which every one may take Notice of, even in the City of Paris, the Capital of the Kingdom: For who can be three Days in that City without observing, that the third Part of the Citizens are taken up with the Practice of that litigious and Pettyfogging Trade? Insomuch, that the General Assembly of Lawyers in that City (which is called the Robed Parliament) is grown to so great a Height of Wealth and Dignity; that now it seems to be (what Jugurtha said of old of the Roman Senate) no longer an Assembly of Counsellors, but of Kings, and Governors of Provinces. Since whoever has the fortune to be a Member of it, how meanly born soever, in a few years time acquires immense and almost Regal Riches: For this reason many other Cities strove with Might and Main to have the like Privilege of Juridical Assemblies: So that now there are several of these famous Parliaments, to wit, those of Paris, Toulouse, Rouen, Grenoble, Bourdeaux, Aix, and Dijon: All which are fix’d and sedentary; besides an Eighth, which is ambulatory and moveable, and is called the Grand Council.

Within the Limits of these great Juridical Kingdoms there are others lesser, which we may call Provincial Governments, who do all they can to imitate the Grandeur and Magnificence of their Superiors; and these are called Presidial Courts: And so strong is the Force and Contagion of this Disease, that a very great Part of the French Nation spends its time and pains in Strife and Law-Suits, in promoting Contentions and Processes, just as of old, a great Number of the Egyptians were employ’d by their Tyrants in building Pyramids, and other such useless Structures.

Now the Word Parliament in the old Manner of Speech used by our Countrymen, “signifies a Debate, or discoursing together of many Persons, who come from several Parts, and assemble in a certain place, that they may communicate to one another Matters relating to the Publick.” Thus in our ancient Chronicles, whenever Princes or their Ambassadors had a Meeting to treat of Peace or Truce, or other Warlike Agreements; the Assembly so appointed was always called a Parliament; and for the same Reason the Publick Council of the Estates was, in our old Language, called a Parliament. Which Assembly, being of great Authority, the Kings of the Capetian Race having a Mind to diminish that Authority by little and little, substituted in its Place a certain Number of Senators, and transferred the August Title of a Parliament to those Senators: And gave them these Privileges: First, That none of the King’s Edicts should be of Force, and ratified, unless those Counsellors had been the Advisers and Approvers of them. Next, That no Magistracy or Employment in all France, whether Civil or Military, should be conferr’d on any Person, without his being inaugurated, and taking the Oaths in that Assembly. Then that there should be no Liberty of Appeal from their Judgment, but that all their Decrees should stand firm, and inviolable: In fine; whatever Power and Authority had anciently been lodged in the General Council of the Nation, during so many Years together, was at Length usurped by that Counterfeit Council, which the Kings took care to fill with such Persons as would be most subservient to their Ends.

Wherefore it will be worth our while, to enquire from what Beginnings it grew up to so great a Height and Power: First, a very magnificent Palace was built at Paris, by Order (as some say) of King Lewis Hutin, which in our Ancient Language signifies mutinous or turbulent. Others say, by Philip the fair, about the Year 1314. through the Industry and Care of Enguerrant de Marigny Count of Longueville, who was hanged some Years after on a Gallows at Paris, for embezzling the Publick Money. Whoever ’twas that built it, we may affirm, that our Francogallican Kings took the same Pains in building up this litigious Trade, that the Egyptian Monarchs are said to have done in employing their Subjects to build the Pyramids; among whom Chemnis is recorded to have gathered together 360,000 Men to raise one Pyramid. Gaguinus, in his History of King Hutin’s Life, has this Passage, “This Lewis ordained, That the Court of Parliament should remain fixed and immoveable in the City of Paris, that Suitors and Clients might not be put to the Trouble of frequent Removals.” Now what some affirm, that Pipin or Charlemagn were the Authors of this Institution, is very absurd, as we shall plainly make appear. For most of the Laws and Constitutions of Charlemagn are extant; in all which there is not the least Mention made of the Word Parliament, nor of that great fixed Senate; he only ordains, That in certain known Places his Judges should keep a Court, and assemble the People; which according to his usual Custom he calls a Placitum, or a Mallum, as [lib. 4. cap. 35. Legis Franciae] ’tis written, “He shall cause no more than three general Placita to be kept in one Year, unless by chance some Person is either accused, or seizes another Man’s Property, or is summoned to be a Witness.” There are many other Laws extant of that King’s of the like Nature, by which we may observe the Paucity of Law-suits in his Days: And I am clearly of Opinion, that what I find several of our modern Authors have affirm’d is most true, vis. that the first Rise and Seeds of so many Lawsuits, Calumnies and Contentions in this Kingdom, proceeded from Pope Clement the Fifth, who during the Reign of Philip the Fair, transferred the Seat of his Papacy to Avignon; at which time his Courtiers and Petty-Foggers, engaging into Acquaintance with our Countrymen, Introduced the Roman Arts of Wrangling into our Manners and Practice. But not to speak of such remote times. About the Year of our Lord 1230. reigned St. Lewis, as he is plainly called, whose Life Johannes Jonvillaeus (whom we have often mentioned) has written at large. Out of his Commentary we may easily learn, how few Contentions and Law-Suits were in those Days, since King Lewis either determined the Controversies himself in Person, or referred them to be determined by some of his Followers and Companions: And therefore [cap. 94.] he thus writes, “He was wont (says he) to command Lord Nellius, Lord Soissons, or my self, to inspect and manage the Appeals which were made to him. Afterwards he sent for us, and enquired into the State of the Case; and whether it were of such a Nature as could not be ended without his own Intervention. Oftentimes it happened, that after we had made our Report, he sent for the contending Parties, and heard the Cause impartially argued over again. Sometimes for his Diversion he would go to the Park of Bois de Vincennes, and sitting down upon a green sodd at the foot of an Oak Tree, would command us to sit by him; and there if anyone had Business, he would cause him to be called, and hear him patiently. He would often himself proclaim aloud, That if any one had Business or a Controversy with an Adversary, he might come near and set forth the Merits of his Cause; then if any Petitioner came, he would hear him attentively; and having thoroughly considered the Case, would pass Judgment according to Right and Justice. At other times he appointed Peter Fountain and Godfrey Villet to plead the Causes of the contending Parties. I have often (says he) seen that good King go out of Paris into one of his Gardens or Villa’s without the Walls, dressed very plainly, and there order a Carpet to be spread before him on a Table; and, having caused Silence to be proclaimed, those which were at Variance with each other were introduced to plead their Causes, and then he presently did Justice without Delay.” Thus far Joinvillaeus. By which we may guess at the small Number of Law-Suits and Complainants in those Days, and how careful our Kings were of preventing the Mischiefs that might arise from such as fomented Controversies.100 }In the Capitular of Charles the Great this Law is extant, “Be it known unto all Persons both Nobility and People, by these our Patents, That we will sit one Day in every Week to hear Causes in Person.”

We have the like Testimony in William Buddaeus, a very famous Man, and a Principal Ornament of our Kingdom of France. For in his Annotations on the Pandects (where he treats of this very Argument, and inveighs against this Kingdom of Brawlers and Petty-Foggers) he tells us, that he finds in the Regal Commentaries of Venerable Antiquity, (the free perusal of which his Quality did intitle him to) “That in the Reign of the same King Lewis, [Anno 1230.] several Controversies arose between the King and the Earl of Brittany; And that by Consent (as ’tis probable) of both Parties, a Camp-Court of Judicature was summoned to meet at Enceniacum [Enceny], wherein sat as Judges, not Lawyers, Civilians and Doctors, but Bishops, Earls, and Barons. And there the Earl of Brittany was cast, and it was ordered that the Inhabitants of his County should be absolved and freed from the Oath of Allegiance and Fidelity, which they had taken to him. Again, in the same King’s Reign, [Anno 1259.] a Dispute having arisen about the County of Clermont between the King and the Earls of Poitou and Anjou, a Court of Judicature, composed of the like Persons, was appointed, wherein sat the Bishops and Abbots, the General of the Dominicans, the Constable, the Barons, and several Laicks. To this he subjoyns: Yet there were two Parliaments called each Year, at Christmas and at Candlemas, like as there are two Scacaria [exchequers] summoned in Normandy at Easter and at Michaelmas.” Thus far Budaeus; to whom agrees what we find in an ancient Book concerning the Institution of Parliaments,} wherein this Article is quoted out of the Constitution of Philip the 4th, surnamed the Fair [ex Anno 1302.] “Moreover, for the Conveniency of our Subjects, and the expeditious determining of Causes, we propose to have it enacted, that two Parliaments shall be held every Year at Paris, and two Scacaria at Rouen: That the Dies Trecenses shall be held twice a Year: and that a Parliament shall be held at Toulouse, as it used to be held in past times, if the People of the Land consent to it: Also, because many Causes of great Importance are debated in our Parliament, between great and notable Personages; We ordain and appoint, that two Prelates, and two other sufficient Persons, being Laymen of our Council; or at least one Prelate and one Laick, shall be continually present in our Parliaments, to hear and deliberate concerning the above-mentioned Causes.” From which Words we may learn, First, how seldom the Courts of Judicature heard Causes in those Days. Next, how few Judges sat in those Parliaments. For as to the other Provinces and Governments of the Kingdom, we have (in the same Book) the Constitution of Philip the Fair in these words, [Anno 1302.] “Moreover, We ordain that our Seneschals and Bayliffs shall hold their Assizes in Circuit throughout their Counties and Bailwicks once every two Months at least.”

Furthermore, Budaeus in the same Place, [Anno 1293.] writes, that Philip the Fair appointed, that three Sorts of People should sit in Parliament, viz. Prelates, Barons, and Clerks mixed with Laymen: “Since the Laicks (says he) are chosen promiscuously out of the Knights, and out of other Sorts of People. Also, that the Prelates and Barons should select fit Persons out of that third Estate, to exercise every Sort of Judicature; and at the same Time should chuse three Judges, who should be sent abroad into those Countries where the written Laws of the Land had their Course, that they might there judge and determine according to Law. And if any question of great importance were to be argued, they should take to their Assistance the most Learned Men they could get.” In which place, Budaeus lamenting the Evil Customs of our Times; that is, this Kingdom of Lawyers now in vogue, breaks out with Juvenal into this Exclamation: “Quondam hoc indigenae vivebant more! So (says he) may I exclaim, that in Old times, when this Kingdom flourished, (as may appear by our Money coined of pure fine Gold) there was a plain and easy way of doing Justice; there were few Law-Suits, and those not of long Continuance, or indeed Eternal, as now they are; for then this Rabble-rout of pretended Interpreters of the Law had not invaded the Publick: neither was the Science of the Law stretched out to such an unlimited Extent; but Truth and Equity, and a prudent Judge, endued with Integrity and Innocence, was of more worth than Six hundred Volumes of Law-Books. But now to what a sad condition things are brought, every one sees, but no body dares speak out. [Sed omnes dicere mussant.]” Thus far honest Budaeus; a most inveterate Adversary of this Art of Chicanery, upon all occasions.

To return to our Purpose, of giving an Account upon what Foundations and Beginnings this Reign of Litigiousness was first raised. As Cicero writes, “that the Old High-Priests (by reason of the Multitude of Sacrifices) instituted three Assistants called Viri Epulones, although they themselves were appointed by Numa to offer Sacrifice at the Ludi Epulares.”;101 In like Manner, out of a very small number of Parliamentary Judges, (when Law-Suits and Litigiousness increased) swarm’d this incredible Multitude of Judges, and Spawn of Counsellors. And, in the first place, a great, sumptuous and magnificent Palace was built (as we told you before) either by the Command of Lewis Hutin, or of Philip the Fair: then (from a moderate Number of Judges) three Courts of Ten each, were erected a [tres decuriae] viz. Of the great Chamber of Accounts, or Inquests, and of Requests. Which Partition Budaeus speaks of in the above-quoted place, but more at large Gaguinus in his Life of King Lewis Hutin.

I must not omit one remarkable thing that ought for ever to be remembered, which both these Authors have transmitted to Posterity: viz. That this Meeting of the Court of Judicature was not perpetual and fixed, as ’tis now, but summonable by the King’s Writs, which every Year were renewed by Proclamation about the beginning of November: “And that we may be certain (says Gaguinus) that the King was the Original and Author of this solemn Convention; the Royal Writs are issued every Year, whereby the Parliament is authorized to meet on the Feast-day of St. Martin, that is, on the 10th of November.”

Now of the wonderful and speedy Increase of this Judicial Kingdom, we have this instance; That about a hundred Years after its beginning, that is, in the Year 1455, in the Reign of Charles the 7th, we find this Order made by him “From the Feast of Easter, till the End of the Parliament, the Presidents and Counsellors ought to meet in their respective Chambers at six a Clock every Morning: from the Feast of St. Martin forwards, they may meet later.” And a little after it says, “We judge it very necessary, that the Presidents and Counsellors of the Court should come to Parliament after Dinner, for the dispatch of Causes, and of Judgments.” This was Charles the 7th’s Order: But in Charles the Great’s Reign, who ruled a Kingdom three Times as big, we find a very different Manner of rendering Justice; as we may easily understand by that Law of his; mention’d lib. 4. cap. 74. Legis Franciae; “Let a Comes, a Judge (says he) not hold a Placitum, (that is, not pass a Decree) but before Dinner, or Fasting.”

Concerning the Word Parliament, and the Authority of that Name, we have this Argument; That when of old a Senate was instituted in Dauphine with supreme Authority, which was commonly called the Council of Dauphine;Lewis the 11th endeavouring to oblige the Dauphinois, who had well deserved from him, changed the Name of this Council into that of a Parliament, without adding any thing to the Privileges or Authority of it. Of which Guidopappius is our Witness. [Quest. 43 and again quest. 554].102

FINIS.

Some Considerations for the Promoting of Agriculture and Employing the Poor

some

CONSIDERATIONS

for the

Promoting of Agriculture,

and

EMPLOYING

the

POOR.

dublin:

Printed by George Grierson, at

the Two Bibles in Essex-Street,Mdccxxiii.

[100. ]GS Franc. (pp. 511, 533) establish that the passage enclosed in braces {} was suppressed in later editions.

[101. ]GS Franc. identify the source as De Oratore 3.19.73 (Loeb 2:58).

[102. ]GS Franc. (p. 345) identify the source as Guy Pape, Decisiones Gratianopolitanae (1609), p. 27.