Ancien Régime Law: Custom, Roman Law, and the Parlements

The law of the Ancien Régime (Old Regime) in France, from the Middle Ages until the Revolution of 1789, was characterised by legal diversity, with different legal systems applying in different regions. France was divided between the pays de droit écrit (regions of written law) in the south, where Roman law was the primary source, and the pays de coutumes (regions of customary law) in the north, where local customs prevailed. The legal institutions of the Ancien Régime, including the Parlements (sovereign courts) and the royal administration, played a crucial role in the development of French law and in the events leading to the Revolution.

Pays de Droit Écrit vs Pays de Coutumes

The division of France into two legal zones was a defining feature of Ancien Régime law. The pays de droit écrit, south of a line roughly from La Rochelle to Geneva, followed Roman law as their primary legal authority. Roman law had never been entirely displaced in southern Gaul, and the revival of Roman law studies in the 12th century reinforced its influence. The Code de Justinien (Justinian’s Code) and the Digeste (Digest) were studied in the universities and applied in the courts.

The pays de coutumes, north of this line, followed local customary law. The customs were originally unwritten and varied from region to region, sometimes from town to town. The customs were progressively recorded in writing from the 13th century onwards, a process that was systematised by the Ordinance of Montils-lès-Tours (1454), which ordered the official redaction of all customs. The Coutume de Paris became the most influential customary law, often serving as a supplementary source in regions without their own written customs.

The Parlements

The Parlements were the sovereign courts of the Ancien Régime. The most important was the Parlement de Paris, whose jurisdiction covered approximately half of the kingdom. Other Parlements included those of Toulouse, Grenoble, Bordeaux, Dijon, Rouen, Aix-en-Provence, Rennes, Pau, Nancy, Douai, and Besançon. The Parlements were composed of magistrates who had purchased their offices (offices) and who held them as hereditary property.

The Parlements had several functions. They registered royal edicts and ordinances, and they had the power to remonstrate (droit de remontrance) against royal legislation that they considered contrary to the laws of the kingdom. They heard appeals from lower courts and exercised original jurisdiction over certain matters. The Parlements also had administrative functions, including the regulation of commerce, the supervision of universities, and the maintenance of public order.

Droit Romain

Roman law was studied in the French universities and applied in the courts, particularly in the pays de droit écrit. The University of Bologna, where the study of Roman law had been revived in the 11th century, influenced French legal education. The École de droit d’Orléans became a centre for the study of Roman law in France.

Roman law influenced French law through several channels. The Digeste provided a systematic framework for legal analysis. The Code and the Novellae provided detailed rules on many subjects. The Roman law of persons, property, contracts, and succession shaped the development of French law. The influence of Roman law continued until the Revolution and was reflected in the Napoleonic Code of 1804.

Customary Law

Customary law (droit coutumier) was the primary source of law in northern France. The customs were recorded in writing from the 13th century onwards. The Coutume de Paris (1510, revised 1580) was the most influential and served as the customary law for the Paris region. It was also applied in other regions as a supplementary source.

The customs governed most aspects of private law, including family relations, property, succession, and contracts. The customary law of property was particularly complex, reflecting the feudal organisation of society. The seigneurie (lordship) was the basic territorial unit, and land was held subject to feudal duties and obligations. The alleu (allodial land) was land held in absolute ownership, free of feudal obligations.

Ordonnances

The royal ordonnances (ordinances) were legislative acts issued by the king. The ordinances covered a wide range of subjects, including the organisation of the courts, criminal law, commercial law, and the regulation of the economy. The ordinances were registered by the Parlements before they could take effect.

Important ordinances included: the Ordonnance de Villers-Cotterêts (1539), which made French the official language of the courts; the Ordonnance civile (1667, also known as the Code Louis), which reformed civil procedure; the Ordonnance criminelle (1670), which reformed criminal procedure; the Ordonnance de commerce (1673, the Code Savary), which codified commercial law; and the Ordonnance de la marine (1681), which codified maritime law.

Droit Canonique

Canon law (droit canonique) was the law of the Catholic Church and applied to matters within the Church’s jurisdiction, including marriage, family relations, and church property. The Church courts exercised jurisdiction over clergy, over laypersons in certain matters (including marriage and wills), and over disputes involving church property.

The relationship between canon law and secular law was complex. The Church claimed jurisdiction over spiritual matters, while the king asserted jurisdiction over temporal matters. The Parlements often resisted the claims of the Church courts and asserted the primacy of royal justice. The Gallican Church (the French Catholic Church) maintained a degree of independence from the Pope, and the king exercised significant influence over ecclesiastical appointments.

Lettres de Cachet

The lettre de cachet (sealed letter) was a royal order that could be used to imprison a person without trial. The letters of cachet were issued by the king and sealed with the royal seal. They were used for various purposes, including the suppression of political dissent, the punishment of family members for misconduct, and the regulation of public order.

The letters of cachet were a source of controversy and were criticised as an instrument of arbitrary power. They were abolished by the Constituent Assembly in 1790. The abolition of the letters of cachet was one of the early achievements of the Revolution and a symbol of the new commitment to the rule of law.

The Legal Profession

The legal profession in the Ancien Régime was organised into several categories. The avocats (barristers) were trained in the law and represented clients in the courts. The procureurs (solicitors) handled the procedural aspects of litigation. The notaires (notaries) prepared and authenticated legal documents. The huissiers (bailiffs) served process and executed judgments.

The legal profession was a privileged order, and entry to the profession was restricted by education requirements and by the purchase of offices. The noblesse de robe (nobility of the robe) was the social class of magistrates who had acquired nobility through their judicial offices. The noblesse de robe played an important role in the administration of justice and in the political life of the Ancien Régime.

The End of the Ancien Régime

The legal institutions of the Ancien Régime were swept away by the Revolution. The Constituent Assembly abolished the Parlements, the orders of lawyers, and the system of purchased offices. The Law of 16-24 August 1790 reorganised the judicial system and prohibited judicial courts from reviewing administrative acts. The Revolution established the principles of equality before the law, the separation of powers, and the supremacy of statute that continue to characterise French law.