European Constitutional and Legal History: Grandes Ordonnances Lecture 19

Continental European Constitutional and Legal History: The grandes ordonnances Lecture 19 Click here for a printed outline.

Introduction The traditional historiography of the law of the early modern period focuses on what it calls preparation for the codification movement in the 19th century. This is no more the case than in France, which produced at the beginning of the 19th century codifications that were to have substantial impact. One of the obviously preparatory movements was that of the great ordinances , the so-called grandes ordonnances of the 16th, 17th, and 18th centuries. They are obviously connected with the political history of centuries later than the 16th, a history that we will not sketch until the next lecture. It makes sense, however, to consider grandes ordonnances as a group, particularly since we will focus on those about the formation of formation of marriage, which are largely confined to the 16th century and the early years of the 17th.

The grandes ordonnnances There is list of the some of the most important grandes ordonnances at the head of the outline. There are a number of ways in which one might tell the story that lies behind them. 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 provision of the ordonnance de Moulins of 1566 that may have had some influence on the English Statute of Frauds of 1677. (I m inclined to think that if influence exists, the Colbert s commercial ordinances of 1673 is a better place to look for it). The early grandes ordonnances tend to be very long and to cover a wide variety of topics. The tag phrases that follow them on the outline simply give the most important topic covered, viewed with the advantage of hindsight.

The grandes ordonnnances(contd) The second half of the 17th century sees large ordinances that focus on particular topics. Commercial law is an obvious topic for codification, both because mercantilist 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 in some measure independent both of local custom and of Roman law. There was a notion of custom among merchants. That custom had some features of the transnational, so that local juries did not have to be used when one came to the redaction of the custom. (I might add that my own work in this area, and I am not alone, tends to the view that the transnational nature of mercantile custom can be, was, and in some writing today, still is, greatly exaggerated.) 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).

The grandes ordonnnances(contd) One might, on the other hand, focus on the personalities. Michel de l H pital, 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. Fran ois d Aguesseau was probably the best technical lawyer of the three. (Colbert was not even trained as a lawyer). D Aguesseau was firmly committed to the principles of rational law reform.

The decree Tametsi 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. In the first place, there was the difficulty of proof of informal marriages, something that we saw in the case of Dolling c. Smith and which, we suggested, gave the wider community a role to play in what seems to have been envisaged by Alexander as a highly personal affair. 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. Secondly, 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. We noticed this in the decisions of the Rota on the topic of material property, in Panormitanus consilia on the statutes of two unnamed Italian cities about dowry, and we will see it next week in Guy Coquille s commentary on the custom of Nivernais.

The decree Tametsi (contd) 2. 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. English local ecclesiastical legislation does not seem to have gone that far, nor, so far as it has been studied, does that of Germany. The reformers, too, were quick to attack Alexander s rules. 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. While the evidence is by no means all in, it would seem that the .

The decree Tametsi (contd) 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, they also argued, would be to concede too much to the reformers. The result was a compromise that you have before you on the outline. It s quite long, but I m going to read it because the wording is important. .

The decree Tametsi (contd) Although it is not to be doubted that clandestine marriages made with the free consent of the contracting parties are valid and true marriages so long as the Church has not declared them invalid, and consequently that those persons are justly to be condemned, as the holy council does condemn them with anathema, who deny that they are true and valid, and those also who falsely assert that marriages contracted by children [minors] without the consent of the parents are invalid, nevertheless the holy Church of God has for very just reasons at all time detested and forbidden them. But while the holy council recognizes that by reason of man s disobedience those prohibitions are no longer of any avail, and considers the grave sins which arise from clandestine marriages, especially the sins of those who continue in the state of damnation, when having left the first wife with whom they contracted secretly, they publicly marry another and live her in continual adultery, and since the Church which does not judge what is hidden, cannot correct this evil unless a more efficacious remedy is applied, (cont d on next slide)

The decree Tametsi (contd) therefore, following in the footsteps of the holy Lateran Council celebrated under Innocent III, it commands that in the future, before a marriage is contracted, the pastor of the contracting parties shall publicly announce three times in the church, during the celebration of the mass on three successive festival days, between whom marriage is to be contracted; after which publications, if no legitimate impediment is revealed, the marriage may be proceeded with in the presence of the people, where the parish priest, after having questioned the man and woman and having heard their mutual consent, shall either say: I join you together in matrimony, in the name of the Father, and of the Son, and of the Holy Ghost, or he may use other words , according to the accepted rite of each province. (cont d on next slide)

The decree Tametsi (contd) But if at some time there should be a probable suspicion that a marriage might be maliciously hindered if so many publications precede it, then either one publication only may be made or the marriage may be celebrated forthwith in the presence of the parish priest and of two or three witnesses. Then before its consummation the publications shall be made in the church, so that if any impediments exist they may be the more easily discovered, unless the ordinary shall deem it advisable to dispense with the publications, which the holy council leaves to his prudence and judgment.:

The decree Tametsi (contd) Those who shall attempt to contract marriage otherwise than in the presence of the parish priest or of another priest authorized by the parish priest or by the ordinary and in the presence of two or three witnesses, the holy council renders absolutely incapable of thus contracting marriage and declares such contracts invalid and null, as by the present decree it invalidates and annuls them. Moreover, it commands that the parish priest or another priest who shall have been present at a contract of this kind with less than the prescribed number of witnesses, also the witnesses who shall have been present without the parish priest or another priest, and also the contracting parties themselves, shall at the discretion of the ordinary be severely punished. Furthermore, the same holy council exhorts the betrothed parties not to live together in the same house until they have received the sacerdotal blessing in the church;4 and it decrees that the blessing is to be given by their own parish priest, and permission to impart it cannot be given except by the parish priest himself or by the ordinary, any custom, even though immemorial, which ought rather to be called a corruption, or any privilege notwithstanding.

The decree Tametsi (contd) But if any attempt to unite in marriage or bless the betrothed of another parish without the permission of their parish priest, he shall, even though he may plead that his action was based on a privilege or immemorial custom, remain ipso jure suspended until absolved by the ordinary of that parish priest who ought to have been present at the marriage or from whom the blessing ought to have been received. The parish priest shall have a book in which he shall record the names of the persons united in marriage and of the witnesses, and also the day on which and the place where the marriage was contracted, and this book he shall carefully preserve.

The decree Tametsi (contd) Tametsi has four important elements: Alexander s rules were confirmed and anathemas proclaimed against those who held that they had been invalid. 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 contracted 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. c. 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. d. Because the general promulgation of these rules in countries that were no longer Catholic would have led to the invalidation of Protestant

The decree Tametsi (contd) 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. 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.

The ordonnance of Blois 1. the council in their territory. Since promulgation had expressly been made a requirement for the decree to take effect, that left France with the pre- Tridentine rules, which, as you will recall, did not require solemnity of any sort as a condition of validity. That was obviously unacceptable, since what the French had wanted was more change from pre-Tridentine law not less, and so they proceeded to adopt secular legislation on the topic, the tangled history and most of the texts of which are given in your materials and on the outline. The Tridentine rules on the formation of marriage did not come into effect in France, some would argue, until the 20th century. The French were furious. They refused to promulgate the decree of

The ordonnance of Blois (contd) 2. something of a puzzle. We have seen that all over Europe parental control of marriage was becoming more of an issue. It has been argued that there was, in fact, a fundamental change in family structure in this period. It has also been argued, however, that the perception of a problem was confined to the elites. The first French ordonnance on the topic may have been inspired by the runaway marriage of Fran ois de Montmorency, the son and heir apparent of Anne duke of Montmorency, the constable of France. Be that as it may be, an ordinance of Henri II promulgated in February 1556 before the decree Tametsi, denounced clandestine marriages and extended to the whole country the custom in some regions authorizing parents to disinherit their children who married without parental consent. After the decree Tametsi three other pieces of legislation were promulgated on the topic before the famous ordonnance of Blois of 1579. Why the French were particularly concerned about this issue is

The ordonnanceof Blois (contd) The Ordonnance of Blois, promulgated in 1579 by Henri III is a classic blockbuster ordinance. The chapters on marriage are chapters 40-44, of a total of 363, almost all of the rest of which concern public law: 40. To obviate the abuse and inconvenience which arise from clandestine marriages, we have ordained and ordain that our subjects of whatever estate, quality or condition they may be cannot validly contract marriage without the precedent proclamation of banns made on three different feast days with fitting interval of which one cannot obtain a dispensation, except after the making of the first proclamation and that only for some urgent or legitimate cause and at the request of the principal and nearest common relatives of the contracting parties after which banns they shall be espoused publicly. And so that there may be witness of the form which was observed at said marriages, four persons at least, worthy of faith, shall assist, of which a register will be made, everything under the penalties prescribed by the councils. We enjoin cures, vicars or others to inquire carefully about the quality of those who propose to marry, and if they are filiifamilias (enfans de famille) or are in the power of another, we forbid them strictly not to proceed to the celebration of said marriages, if the consent of the fathers, mothers, tutors, curators, does not appear to them, on the penalty of being punished as promoters (fauteurs) of rape. 41. We wish that the ordonnances previously made against children

The ordonnanceof Blois (contd) 41. We wish that the ordonnances previously made against children contracting marriage without the consent of their fathers, mothers, tutors and curators be kept, even that one which permits disinheritance in this case. 42. And nonetheless, we wish that those who are found to have suborned a son or daughter younger than twenty-five years under pretext of marriage or other color, without the will, knowledge, grace and express consent of the fathers, mothers and of the tutors be punished by death, without hope of grace and pardon, notwithstanding all the consents that the said minors can allege afterwards that they gave to the said rape, at the time or subsequently. And likewise there shall be punished extraordinarily all those who shall have participated in the said rape and who shall have offered counsel, comfort and aid, in whatever manner it might be. 43. We forbid all tutors from agreeing or consenting to the marriage of their minors except with the advice and consent of their closest relatives, on pain of extraordinary punishment. 44. Likewise we forbid all notaries, under pain of corporal punishment, from enacting or receiving any promises of marriage by words of the present tense.

The ordonnanceof Blois (contd) So what does this statute do: a. 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 only be obtained 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. b. 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, and granted my fondness for Michel de l H pital I hope that those who say that he was not involved are right. (That he was not involved seems highly likely, since he died in 1573, six years before the ordonnance.) In the first place the sanctions were draconian, and draconian sanctions have a tendency not to be enforced. I know of one example where capital punishment was meted out for the violation of the statute in a particularly egregious case; there may have been others, but such punishments were certainly not common. Secondly, by refusing to promulgate the decrees of the council, the French, in fact, left Alexander s 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, but witnesses? That s less clear. In particular, the thing that

The ordonnanceof Blois (contd) The statute was no masterpiece of draftsmanship, and granted my fondness for Michel de l H pital I hope that those who say that he was not involved are right. (That he was not involved seems highly likely, since he died in 1573, six years before the ordonnance.) In the first place the sanctions were draconian, and draconian sanctions have a tendency not to be enforced. I know of one example where capital punishment was meted out for the violation of the statute in a particularly egregious case; there may have been others, but such punishments were certainly not common. Secondly, by refusing to promulgate the decrees of the council, the French, in fact, left Alexander s 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, but 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 Code Michaud (1629) 4. For reasons that should seem obvious upon reading them, the provisions of the ordonnance of Blois on the formation of marriage proved unsatisfactory. Henri III issued two amendments to them, in 1580 and 1583. Henri IV issued another one in 1606. The first effort in the reign of Louis XIII is contained in a grande ordonnance compiled during the chancellorship of Michel de Marillac, and known from his name as the Code Michaud (January, 1629). 39. The ordonnance of Blois, concerning clandestine marriages shall be strictly observed, and adding to it we will that all marriages contracted contrary to the tenor of the said ordinance be declared not validly contracted, forbidding all parish priests and other priests both secular or regular, under penalty of an arbitrary fine, from celebrating any marriage of persons who are not their parishioners without the permission of their parish priests or of the diocesan bishop, notwithstanding all privileges to the contrary. And judges of the ecclesiastical courts will be bound to judge cases concerning such marriages in conformity with this article. 40. We prohibit all judges, even those of the court of the church, from in the future receiving any proof by witnesses and others other than by writing of the fact of marriage, except and excepting, [cases] between peasants [personnes de village], of low or vile condition, requiring, nonetheless, that the proof cannot be admitted except that of the closest relatives of one or

The Code Michaud (1629) (contd) 39. The ordonnance of Blois, concerning clandestine marriages shall be strictly observed, and adding to it we will that all marriages contracted contrary to the tenor of the said ordinance be declared not validly contracted, forbidding all parish priests and other priests both secular or regular, under penalty of an arbitrary fine, from celebrating any marriage of persons who are not their parishioners without the permission of their parish priests or of the diocesan bishop, notwithstanding all privileges to the contrary. And judges of the ecclesiastical courts will be bound to judge cases concerning such marriages in conformity with this article. 40. We prohibit all judges, even those of the court of the church, from in the future receiving any proof by witnesses and others other than by writing of the fact of marriage, except and excepting, [cases] between peasants [personnes de village], of low or vile condition, requiring, nonetheless, that the proof cannot be admitted except that of the closest relatives of one or the other party, and of the minimum number of six.

The ordonnance of 1639 Louis XIII turned his attention to the issue again ten years later under his then-chancellor Paul S guier. This ordonnance is particularly notable for its statement of policy at the beginning. Although it was amended on six different occasions by Louis XIV, it, together with the ordonnance of Blois, formed the basis of French secular law of marriage-formation until the end of the ancien r gime. This is not a grande ordonnance, but one devoted to a specific topic. It s on the outline. I m going to read the preamble and the first, second, and seventh chapters in full and summarize the rest of them.

The ordonnanceof 1639 (contd) DECLARATION CONCERNING THE FORMALITIES OF MARRIAGE, THE QUALITIES REQUIRED, THE CRIME OF RAPE, ETC. (26 November 1639) Louis, etc. Since marriages are the seminary of states, the source and origin of civil society, the basis of families, which compose the republic, which are used as the principles around which its policies are founded, and within which the natural reverence of children toward their parents is the bond of the lawful obedience of subjects to their sovereigns, the kings our predecessors have therefore determined that it is worthy of their concern to make laws concerning their [marriages ] public order, their external propriety, their honesty and their dignity. To this end they have prescribed that marriages be publicly celebrated in the face of the church, with all the proper solemnities and ceremonies that have been prescribed as essential by the holy councils, and by them declared to be not only necessary as a matter of command but also necessary for the sacrament. But in addition to the penalties laid down by the councils, some of our predecessors have allowed fathers and mothers to disinherit their children who contract clandestine marriages without their consent and to revoke each and every gift and advantage that they have made to them.

The ordonnanceof 1639 (contd) But although this ordinance was founded on the first commandment of the second table, concerning the honor and reverence due to parents, it has not been strong enough to stop the course of evil and disorder that has troubled the quiet of so many families and has flayed their honor by unequal alliances, alliances that are frequently shameful and infamous. This has given rise to other ordinances which require the proclamation of banns, the presence of the parish priest of the parties, and the presence of witnesses at the nuptial blessing, with penalties against parish priests, vicars and others who proceed to the celebration of the marriages of children of families without it being apparent to them that the fathers and mothers, tutors and curators have consented, under penalty of being punished as promoters of the crime of rape, just like the authors and accomplices of such unlawful marriages.

The ordonnanceof 1639 (contd) Nonetheless, whatever order that has been brought to bear up to now in order to reestablish the public honesty even of such important acts, the license of the age, the depravity of its morals have always prevailed over our ordinances, which are so holy and so salutary. Their strength and observation has often been relaxed by fathers and mothers who waive their particular offense, though they cannot waive that done to the public laws. For this reason, not being able to endure any more that our ordinances be so violated, not that the holiness of such a great sacrament, which is the mystical sign of the union of Christ with his church, be unworthily profaned, and seeing also, to our great regret, and to the prejudice of our state, that the majority of families in our realm remain troubled by subornation and carrying away of their children, who themselves find the ruin of their fortunes in these unlawful joinings, we have resolved to set up the severity of the laws in opposition to the frequency of these evils and to restrain by the terror of new penalties those whom neither the fear nor the reverence of divine and human laws can stop, having in this no purpose other than to sanctify marriage, to control the morals of our subjects, and to prevent the crime of rape from serving any more in the future from leading step by step to the formation of advantageous marriages.

The ordonnanceof 1639 (contd) For these reasons, having had deliberation with our council about this matter, and with the advice of it, and of our certain knowledge, full power and royal authority, we have laid down and ordained, and do lay down and ordain that which follows: 1. We will that article 40 of the ordonnance of Blois, concerning clandestine marriages, be strictly kept, and interpreting it, we ordain that the proclamation of banns be made by the parish priest of each of the contracting parties with the consent of the fathers, mothers, tutors, or curators, if they are children of families or in the power of another. And that at the celebration of the marriage four witnesses worthy of faith shall assist, in addition to the parish priest who will receive the consent of the parties and join them in marriage following the form practiced in the church. We make very explicit prohibition to all priests, both secular and regular, not to celebrate any marriage except one between their true and ordinary parishioners, without the written permission of the parish priests of the parties or of the diocesan bishop, notwithstanding immemorial customs and privileges that can be alleged to the contrary. And we order that there will be made a good and faithful register, both of marriages and of the publication of the banns, or of dispensations, and of the permissions which shall have been granted.

The ordonnanceof 1639 (contd) This is actually quite close to the decree Tametsi. As is the case with Tametsi, priests are to assist at the marriages only of their parishioners, unless they have the permission of the parish priest of the parties or of the bishop. As is the case with Tametsi, the priest is to receive the consents of the parties, and keep a marriage register. Tametsi requires two witnesses in addition to the priest; the ordonnance of 1639 requires four. Where it differs from Tametsi is that it requires the consent of the parents in order to promulgate the banns for children in power, and the ordonnance of Blois, which is incorporated by reference, requires the promulgation of banns for the validity of the marriage. Tametsi is quite clear in distinguishing conditions of validity from conditions of legitimacy. What Tametsi requires for validity is the exchange of consent in the presence of the parish priest and two or more witnesses. All the rest, banns, the register, nuptial blessing, are conditions of legitimacy, not validity. What the conditions of validity are under the ordonnance is still not completely clear.

The ordonnance of 1639 (contd) 2. The content of the edict of the year 1556 and that of articles 41, 42, 43, and 44 of the ordonnance of Blois shall be observed, and adding to it we ordain that the penalty of rape shall be continue to be incurred, notwithstanding the consent that may be thereafter obtained from the father, mother, tutor or curator, derogating expressly from the customs that permit children to marry after the age of twenty years without the consent of their fathers. And we have declared and declare that widows, sons, and daughters less than twenty five years, who shall have contracted marriage against the tenor of the aforesaid ordinances, to be deprived and to lose status by that fact alone, along with the children born of them and their heirs, unworthy and incapable of succession from their fathers, mothers and grandparents, and from all others direct and collateral, [deprived] as well of the rights and advantages which they can acquire by contracts of marriage and by testaments by the customs and laws of our realm, even of the right of l gitim, (cont d on next slide)

The ordonnanceof 1639 (contd) and the dispositions that shall be made to the prejudice of this our ordinance, be it in favor of the persons so married or by them to the profit of the children born from these marriages, [will be] null, and of no effect and value. We wish that the things so given, legated or transported, on whatsoever pretext, remain in this case acquired irrevocably by our fisc, so that we can dispose of them in favor of hospitals or other works. We enjoin sons who are greater than thirty years of age and daughters who exceed twenty-five to require in writing the advice and counsel of the their fathers and mothers to marry, under penalty of being disinherited by them in accordance with the edict of 1556. The ordinance of 1556 had authorized parents to disinherit children who married without their consent. This provision goes considerably further in that it makes those who marry without parental consent incapable of inheritance from their parents and confiscates any gifts made to them.

The ordonnanceof 1639 (contd) Section 3 deals with abduction. What it says at the beginning accords with the mainstream of canonic authority and opinion on the topic. A person (normally a woman) who had been abducted could not validly consent to marriage while she was in the power of her abductor. Once she had been released, however, she could so consent. What the ordonnance does is deprive a person who so consents from her inheritance right. It also authorizes the public prosecutor to pursue the abductor to the end of capital punishment, even if no one is complaining. Section 4 attempts to make invalid any pardons that the king might be tempted to issue to allow those deprived of inheritance rights to inherit. Section 5 declares that those who do not need parental consent and who marry clandestinely shall be penalized by having the children of such marriages incapable of inheritance. Section 6 applies the same penalty to those who marry their mistresses on their death-bed and to those children procreated by someone who has been condemned to death. 7. We prohibit all judges, even those of the church, from receiving proof by witnesses of promises of marriage, nor otherwise than by writing, which shall be set down in the presence of four close relatives of one or the other of the parties, even if they are of base condition.

The ordonnanceof 1639 (contd) We ll have occasion to come back to the French ordinances on marriage when we look at what Pothier has to say about them close to the end of the ancien r gime. A number of concerns are pretty obvious: first, a concern about controlling marriage-choice of younger by the elders of the family; second, a concern about publicity, which may be a means of enforcing the first policy or which may be an independent concern; third an increasing willingness of the state to get involved in marriages at the expense of the jurisdiction of the church. (In this regard, however, we might note that the vagueness of the ordinances about the validity of the marriage may be deliberate. That is still thought to be a matter for the church, so the sanctions deal with the property consequences of marriage or are criminal.) France was not the only country where these concerns make their appearance in the early modern period. Indeed, they seem to be general across early modern Europe both Catholic and Protestant. There s a more general legal point that can be made out of this material. As we move from the ordonnance of Blois to that of 1639, the legislation becomes more comprehensive. It does not, however, even in 1639, cover the whole waterfront. None of the ordinances, for example, says that consent of the parties is required for the validity of a marriage. That is a basic principle of the ius commune, one on which both the Roman and the canon law were agreed. In these ordinances it is simply assumed. Judged by the standard

The ordonnanceof 1639 (contd) There s a more general legal point that can be made out of this material. As we move from the ordonnance of Blois to that of 1639, the legislation becomes more comprehensive. It does not, however, even in 1639, cover the whole waterfront. None of the ordinances, for example, says that consent of the parties is required for the validity of a marriage. That is a basic principle of the ius commune, one on which both the Roman and the canon law were agreed. In these ordinances it is simply assumed. Judged by the standard of the 19th century, even the ordonnance of 1639 is not a quotes true codification.

Colberts ordinance on civil procedure (1667) Extracts from Colbert s ordinance on civil procedure are contained in Part XVID of the Materials (p. XVI-7). The list of titles in the ordinance is given on the outline. You might want to pause the recording at this point and look at the list of titles. The ordinance another example of an attempt to achieve harmony by imposing a system from the ius commune, this time the system of Romano- canonical procedure. Here I would like to emphasize a few main points: 3. ordo iudiciarius. Here we have another example of the phenomenon that we noticed earlier of customary law being fitted into a Romano-canonic sausage skin. We should be careful, however, in considering how new this is. Romano-canonic procedure, or pieces of it, had been being used since the mid-13th century. Its use in the parlement of Paris is notable from at least the early 14th century. What may be involved here is more jamming the extraordinary variety of jurisdictions into a Romano-canonic mold. The ordinance was applicable even in the church courts. The outline of titles of the ordinance is basically the outline of the

Colberts ordinance on civil procedure (1667) (contd) 4. Looked at from the point of view of a 20th or even a 19th century code, this one is transitional. It does cover the whole waterfront; notably missing are citation (which was the subject of an ordinance two years later), libel and appeal. Otherwise, we have the whole course of civil procedure. Curious is the bifurcation of the proof process, some of it being considered before litis contestatio, some of it afterwards. There is, however, a strong element of fix about it. Particularly notable are the provisions about delays, which occupies the greater part of the first 13 titles. Titles 15-19 are interesting in that they outline certain types of special procedures. Titles 20- 23 contain the basics of proof. I have given you the basic provisions on proof by witnesses and all of reproaches to witnesses in the Mats. If we compare what is going on here to what is going on legislatively in the kingdom of the two Sicilies we see that Maranta (p. XII-19) and the kingdom are dealing with similar issues.

Colberts ordinance on civil procedure (1667) (contd) 5. All of the articles in title 23 on reproaches to witnesses is given on the outline. 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. (I might also add that some of the reforms attempted here had been tried before and had not worked. This does not really represent a thorough reform of medieval witness practice.)

Colberts ordinance on civil procedure (1667) (contd) I wonder, however, whether we really aren t missing the point if we judge the ordonnance by the standards of a 19th- or 20th-century code. It seems quite clear that there was no way in this world that one could make an exclusive ordinance about civil procedure, anymore than Guy Coquille, with whom we will deal next week can think about marital property exclusively in the terms of the custom of Nivernais or in terms of the French customs generally. The law is still universal. Coquille will use material from his teacher Mariano Socini, who never left Italy, and consilia in the tradition of the ius commune, for example, those of Panormitanus, dealing with marital property in the Italian city-states. This material must be applied to the French situation. Dowry and community property are not the same thing, and the differences will be respected. But underlying this are broader principles: We cannot require a deductio in domum, because that would make us look silly in northern France, but we can require solemnization of the marriage in the face of the church and for similar, if not quite the same reasons, that the Italians will require a deductio for dotal purposes. Similarly, the basic principles of the ordo for examining witnesses can be found in any textbook of the ius commune. What needs to be done is to make sure that there is a system of general applicability that reforms some of the abuses that had crept into both those tribunals that followed the ius commmune and those that did not.

French humanism and homologation of custom (contd) De Thou well knew this, and I suspect that his fear of Roman law was much more like the fear of some of the English lawyers in the same period. French customary law was an intellectual mess, and in an intellectual age messiness was not desirable. The French customary legal profession was in danger. Someone would come along and say that the way to get a unified orderly legal system was to junk the customs entirely and adopt Roman law. What de Thou feared then was what has been called a reception of Roman law. There was even a suggestion that this had happened in the Empire with the establishment of the Reichskammergericht in 1495, a tribunal that was supposed to apply Roman law rather than attempting to apply the multiplicity of German customs. Recent work with the actual decisions of the Reichskammergericht suggests that customary law may have remained pretty important in the 16th century, and that is probably a partial answer to the question that I posed on above as to why Ulricus Zasius did not have the effect in Germany that Alciati had in France.

French humanism and homologation of custom (contd) If the codification of custom occurred as a result of the efforts of de Thou, it was able to hold its own intellectually because of the efforts of lawyers who had been trained in Roman law. We have already said something about legal humanism and about the leading role that France played in it. We have already mentioned Alciati and on the lawyers at the University of Bourges to illustrate the beginnings of the movement. Later, we will say something about the political thought of lawyers in the same period. Let us see where legal humanism went from the time of Alciati for those lawyers whose principal concern was not political theory. What follows is a run- through of the names listed on the outline as Alceatani , followers of Alciati.

French humanism and homologation of custom (contd) The immediate successors of Alciati as professors of law at the University of Bourges were guinaire Baron, Fran ois Douaren, and Jacques Cujas. They could not have been more different, and to say that they, particularly the first two, did not get along is to put it mildly. I have characterized Baron as a comparativist, Douaren as a systematizer and Cujas as an editor of texts. That certainly describes the principal thrust of their work, and it allows one to see how the line of editors of text will run from Cujas to the Pithou brothers, to the Godefroi, father and son, to the elegant jurisprudents of the Dutch school of the 17th century and, more ultimately, to the legal historians of today. But Cujas was not only the teacher of the Pithou brothers; he was also the teacher of Loisel and of Pasquier, and that should immediately give us pause in thinking that the editors of texts of the 16th, if not the 17th, century were pure academics, despite the fact that the Pithou brothers and the Godefrois did not teach.

French humanism and homologation of custom (contd) Similarly there is nice line that runs from Connan who proposed the first classification scheme for Roman law to Douaren and Doneau who worked on the refinement of the systematic treatment of Roman law, with strong influences from natural law, and whose work ultimately leads to Domat, the civil laws in their natural order, as he entitled his great book. But Douaren and Doneau were also interested in history. Both of them taught feudal law at the university of Bourges, as well as Roman law. Their Protestant leanings fit uneasily with the Jansenist Domat and much more comfortably with the historian Hotman.

French humanism and homologation of custom (contd) The fact is that these guys defy easy classification. It is better to look at trends in their thought, themes that they play with together, one emphasizing one more at the expense of the other. Let us try to outline some themes and let them fall where they may: There is no question that the French displayed a considerable interest in system. Their system might come directly out of Roman law texts, as did Connan s, or it might come out of study of the customary law, as did Dumoulin s. The two could not have been more different in their views about what was an appropriate law for France. Dumoulin opposed any direct importation of Roman law into French law. Connan took a much more nuanced position on the issue. (None of the Romanists argued for direct importation; Doneau probably comes the closest.) But Connan s and Dumoulin s interest in system overarched the specific body of law from which they derived that system. The initial efforts of the customary lawyers at system owes relatively little to Roman law (see Mats., p. XVI 7).

French humanism and homologation of custom (contd) The outline lays out titles of the custom of Paris of 1580, which we looked at before the break. Thinking about them in terms of the Roman system we might note: Mixture of public and private. Fiefs, seigneurial rights, public proclamation, all being public law or mixed public and private. No attempt to follow J.I. Is there an order at all? tit. 1 3 roughly correspond to the Roman law of things tit. 4 9 may be seen as belonging to the law of actions. (The retrait being viewed as an action; servitudes are out of order, but the report of juries makes sense as being law of actions.) tit. 10 15 persons and succession combined tit. 16 pure public law The achievement is being able to organize things in titles, the middle- level generalizations that are also characteristic of English law. Almost total absence of the law of obligations The one provision on animals (article 91) is miles from Roman law in what it says about the animal but very close in the classification issue that it raises.

French humanism and homologation of custom (contd) If it did nothing else, the effort made clear that much was missing from the customary law. Systematization could fill in those gaps with Roman categories and Roman law, as was the tendency of Gabriel Argou in the late 17th century, or it could search the customary law for material to fit into the Roman system, as is illustrated by Antoine Loysel s Institutions, or it could leave the system of customary law intact, as did Guy Coquille, both of whom came much earlier in the 17th century. We will deal with these authors in more depth in a later lecture. The tendency increasingly over time was to impose the system of Justinian s Institutes. In part, this was owing to the fact that that made it easier for university-trained lawyers to learn the customary law. This is one reason that Argou s treatise was so popular. In part it was because the system of the Institutes was felt to correspond to a natural classification. Whatever the reason, the system itself was much broader than its contents. One could argue for Roman law and use the classification of the Institutes, but one could equally well argue for customary law using the same classification.

French humanism and homologation of custom (contd) The humanists were nothing if not broad-gauged. Their interest in history led them at once into the depths of classical textual criticism and into the wildest speculations about Celtic law and Germanic law. There is no question that they debated fiercely among themselves about the wisdom that was revealed in their sources, some arguing as Pithou does in his epistle to De Thou, that by examining how Roman law actually reflected the society in which it was found one could learn principles for contemporary French society; some arguing, as Cujas seems to have at times, that the discovery of the real Roman law would also involve the discovery of what should be restored; some arguing, as Hotman did, that the study of the real Roman law would show how badly Justinian had compiled his texts and how a return to the Gaulish and Germanic law would be truer to the French spirit. The range of possible positions was great, but they all believed that that there was a point to be learned for modern law from the study of the past. Most of them, too, though not all, were willing to concede that there were non-Roman materials that were worthy of study, even if they did not do it themselves.

French humanism and homologation of custom (contd) It is for this reason that a recent scholar named Donald Kelley has been able to suggest that Baron and Cujas really belong together and that three of the four intellectual streams that issued from them jointly, the editors of texts, the historian-theorists, and the customary lawyers are really part of the same movement. Only the systematizers, with their tendency toward abstraction, belong, in Kelley s view, in a category by themselves. I m not sure that that is right. Part of my reason for so thinking will not become apparent until a future lecture when look at the institutional treatises of the slightly later period. But I think that we have already said enough to indicate why the systematizers are so important for all three efforts, the historical, the comparative, and the customary. The historical effort and the customary are initially efforts to recover what had been lost or was in danger of being lost. In the case of the Corpus Iuris, the text was there but, in the humanists view, the proper understanding of it had been obscured by centuries of commentary that had made the texts mean things that they had not meant originally. In the case of the customary lawyers the effort was one, in many cases, of producing a text where no text had previously existed.

French humanism and homologation of custom (contd) The result of the former effort could have been to make Roman law irrelevant to sixteenth-century France; the result of the latter effort could have been to enhance the divisions between areas of customary law, to lead to fragmentation rather than unity. Neither happened. It did not happen in the first place because the comparatists showed first the substantial areas of commonality in the French customs and ultimately the substantial areas of commonality between the customs and the Roman law. If one stops there, however, one ends up with a body of rules that may or may not be interconnected. It was the function of the systematizers to show what the overarching interconnections were, first in Roman law and then between the Roman law and the customs. Codification not only in the late eighteenth century but also in the seventeenth century was to combine Roman law and customary law. It would not have been possible to do this in a coherent way were it not for the fact that the systematizers had produced a structure that was broader and more abstract than that which the ancient Roman lawyers had themselves produced.

Political thought in the sixteenth century Let us now go to the section of the outline called Political Ideas . I d like to suggest that what was different about the 16th century goes deeper than political and religious events. Not only was what was happening different but people were thinking about it differently. Political thought, in which the lawyers were deeply involved, fundamentally changed in the 16th century. Political thought in the 16th century was extraordinarily varied, but if I were to characterize what was new about it, I would follow a remarkable book by a man named John Figgis, now more than a century old, and say that it was the invention of the territorial nation state. Medieval political thought had given state-like powers to the church, had, at times, conceived of all Christendom in terms like that of a modern state, had struggled with the relationship between ecclesiastical and secular authority, but had never really conceived of the territorial nation state in the modern sense. Absent the nation-state one cannot have public law in the modern sense. Now the middle ages knew plenty of law. It conceived of law both as above and below kings, princes, and popes, but it never really came to a notion either of purely positive law or to a sharp distinction between public and private law. This is really all the more remarkable when we consider that both ideas seem, at least to us, to be fundamental to Roman law.

Political thought in the sixteenth century (contd) Now 16th century legal and political thought is not one simple line leading from the Middle Ages to Jean Bodin, to whom is attributed the idea of secular sovereignty. It is not even clear that Jean Bodin is where it is heading. Each group of thinkers has its own bias, related to the political situation in which they write, but also determined by the nature of the ideas that they are employing. In some ways the ideas proved more intractable than the politics.