Transcript Proces formułkowy - University of Wrocław

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