ART. VI.-Histoire du Droit Municipal en France, sous la Domination Romaine et sous les trois Dynasties. Par M. Raynouard. Paris. 1829. 2 vols. 8vo. It has been remarked by Savigny in the preface to his great work on the History of the Roman Law during the Middle Ages, that the French writers on the history of their own country," however discordant their other doctrines may be, agree in the practice of adopting each a particular political system, and in viewing all the historical evidence as so many proofs of its truth."* The recent work of M. Raynouard on the Municipal Law and Institutions of France during the Middle Ages, has, however distinguished for accurate learning and laborious research, formed no exception to the truth of the above remark. It is well known to all persons acquainted with the modern history of France, that the few remnants of municipal institutions spared by the pecuniary necessities and the unprincipled and short-sighted administration of the last kings of the old monarchy, were swept away under the monopolizing despotism of Bonaparte, who carefully removed every trace of popular election throughout France, and covered the kingdom with an army of public officers, who considered themselves as his servants, not the servants of the state, who derived from him their authority, looked to him for instructions, and yielded him an implicit obedience. Napoleon in the Tuileries was like Mr. Bentham's gaoler in the centre of the Panopticon; without being seen he could see from one point all that was done by his numerous subjects. To remedy the mischiefs caused by the establishment and maintenance of this system of centralisation (as it is called) has been a main object of different French statesmen since the Restoration; and a measure on this subject is well known to have miscarried under the ministry of M. de Martignac. Before the late revolution had made it certain that the powers of the local authorities would be increased and rendered more independent of the crown, M. Raynouard, apparently thinking that a good cause ought to be supported by any arguments, wrote a learned book to prove that the municipal institutions of France are of great antiquity, that in many cases they reach beyond the foundation of the monarchy, that many of the kings promised to maintain them, and consequently that these local franchises belong to the inhabitants of the provincial towns by strict and indefeasible right, and that the kings of France are bound by solemn compact to respect and restore them. As M. Raynouard considers the political rights of subjects and the promises of kings in the light of hereditaments, or heir-looms, we think that he was * Savigny's History of the Roman Law by Cathcart, vol. i. p. 38. bound to trace the title fairly down to the time when he wrote. Without assuming with him that a sovereign authority can limit itself, or impose obligations on itself, with respect to its own subjects, which shall bind future ages, we may be allowed to ask why he takes no notice of the interval of time which elapsed between the years 1793 and 1814? What happened to the hereditary rights and duties during these twenty years?-or, at the restoration and the establishment of a new constitution, did those rights and duties revest respectively in the subjects of a limited monarch, and in that limited monarch himself? We will not, however, occupy any time in the refutation of an argument manifestly groundless we only make these remarks on the object of M. Raynouard's book as a caution to those who might not be at first aware that all his exaggerations are on the side of the antiquity, the universality, and the sacredness of the French municipal institutions. With this abatement, his work, particularly in the early parts, is a useful and instructive production; but it always grieves us to see history prostituted to temporary political objects, especially when, as in the present case, historical impartiality is distorted to serve a purpose to which, after all, history is not applicable.* The municipal institutions of France during the middle ages were continued from, or moulded upon, the rights granted to the Gallic cities by the Romans after their conquest of the country. Of these towns there were two classes, the colonies and the municipia. When a body of Roman citizens were sent by the state into a town ready-built, which had fallen into the power of the Romans by right of war, where they formed a community enjoying large independent rights, this new settlement was called a colony. These colonists were sometimes poor citizens, or in later times the soldiers of a disbanded legion; the third part of the territory belonging to the town was commonly confiscated and divided among the Coloni. The dominion or ownership of all the soil must likewise have been conceived to pass to the sovereign community; but the ancient owners might have been allowed to retain their possession on terms of greater or less hard *Speaking of the French historians, M. Sismondi says: "On a cherché dans l'histoire les droits de la génération présente, et non des exemples pour guider la posterité; on a demandé aux siècles passés la mesure des prérogatives du trône, ou celle des libertés du peuple, comme si rien ne pouvait exister aujourd'hui que ce qui a existé jadis; et la vérité en a souffert, parceque tous les partis ont dénaturé les événemens anciens, pour s'en faire des armes en faveur des prétensions nouvelles."-Histoire de France, tom. i. Préf. + See Niebuhr's Roman History, vol. ii. p. 50, ed. 2. Niebuhr, vol. ii. p. 51. Compare Livy, quoted by Raynouard, on the colony to Thurii. "Apustio auctore, tertia pars agri demta est; qua postea, si vellent, novos colonos adscribere possent."-xxxv. 9. ship. The objects of planting these colonies were various ; either to remove an overflowing population, to provide for a needy and rapacious soldiery, or to establish advanced guards and military posts near and upon newly conquered districts and provinces of doubtful allegiance. Of the Municipia it is sufficient for our purpose to say, that they were cities to which the Italian right of citizenship had been granted, and which, not having received settlers from Rome, or forfeited a portion of their territory, were governed by their own magistrates. The original differences between these two classes of cities became, however, gradually fainter, and were at length obliterated under the later Roman emperors by an uniform system of laws and government. In the provinces of transalpine Gaul, which were at different times, from the first to the fifth century, three, four, five, and seven in number, there were more than 110 cities subject to the Roman dominion. It seems probable that the government of these cities was at one time regulated by a distinct law, called the Lex Municipalis. A city, or civitas, was not merely a precinct covered with houses, but comprehended all the district or territory dependent on the chief town. Thus if a father wished that a natural son, born in a village or on an estate in the country, should become a Decurion, he was to apply to the Ordo of the city to which that village or estate belonged. But these terms imply a knowledge of the civil institutions of the Roman towns under the emperors. The provincial towns of Gaul under the Roman emperors were essentially different from the free towns of Italy and Germany during the middle ages. In the latter, the power of the burghers was chiefly founded on wealth obtained by trade or industry, and rose in opposition to the territorial nobility. In the latter, the power, and indeed the qualification, of the ruling class, the Decurious, was derived from landed property. In the original constitution of the colonial and municipal towns of Italy, the decurions were a council of the sovereign assembly of citizens. Afterwards, as the constitution of Rome became less popular, the other towns dependent upon it followed its example, and the Curia, or council of the municipal citizens, and the members of it, the Decuriones, Curiales, or Ordo, became an aristocratical body, possessing the chief powers of government in their city and its territory. When the chief executive powers had once become * "Est in eadem provincia Narbo Marcius, colonia nostrorum civium, specula populi Romani, ac propugnaculum istis ipsis nationibus oppositum et objectum."Cicero pro Fonteio, 3. + Savigny, vol. i. p. 18. Hence the Curia was called the Minor Senatus.-Raynouard, tom. i. p. 39. vested in this body, its privileges were perpetuated in two manners; first, by making the place of decurions hereditary, and secondly, by giving the order of decurions alone the power of electing fresh members into their own body. No person could be a decurion who was less than twenty-five years old, or possessed less than twenty-five jugera of land; and in cases where members not qualified by birth were elected, two-thirds of the members of the curia were required to be present, and an absolute majority of votes was requisite. As the office of decurion was in later times burdensome as well as honourable, no person could refuse to accept the place, with the duties which it imposed, except he was more than fifty-five years of age. Thus under the later emperors the son of a decurion was not only allowed but bound to be a decurion; he could not be a soldier, nor a clerk; and it was expressly ordered by Constantine, that only persons of small fortunes should enter into the service of the Church. The burdens and taxes (munera) imposed on the order of decurions were so grievous, as to outweigh the power and profit to be derived from belonging to the dominant class. Thus every decurion was bound constantly to live in the town, on pain of forfeiture of his lands; he could not sell or alien any of his lands without proving to the magistrates that he was driven to a sale by necessity. The decurions were moreover responsible for the defaults of all collectors of taxes appointed by the curia: and were forbidden to farm directly or indirectly either public lands or taxes. They could not go to the court of the emperor on public or private business, without leave from the imperial judge; and if any one absented himself without good cause, his property was confiscated to the curia. The curia was also bound on certain occasions, such as the accession of an emperor, the adoption of a prince, a victory over foreign enemies, &c. to present a gold crown to the emperor (aurum coronarium). The chief municipal magistrates in the cities which possessed the Jus Italicum, were chosen by and out of the order of decurions. These officers, known by different names, were magistrates in the proper sense of the word, and possessed an authority of their own, without acting in the name of the curia, although their powers were gradually diminished by the emperor and his governors. It appears to us, however, that Savigny has satisfactorily proved that no such independent magistrates existed in the provincial cities of Gaul which were not free of Italy; but that the Principalis who performed the functions of a magistrate, acted merely as the chief member, and in the name and by the authority of the curia. It appears that the principals had no jurisdiction, * Savigny, vol. i. p. 62, and compare Raynouard, tom. i. p. 66. which belonged to the imperial judge, but were chiefly employed in the collection of the land tax. After the principal had held his post for fifteen years, he was allowed to resign it; and together with some other favoured persons, probably gained a place in the senate, the existence of which body seems to us to have been satisfactorily proved by M. Raynouard, and which appears to have been a section of the curia, of higher rank, and perhaps enjoying more exemptions than the other decurions, but not possessing greater political powers or being able to act as a separate council. In recompense for the heavy burthens imposed on the decurions, and the severity with which they were punished for flinching from their duties, the law granted to them many privileges and advantages. Such, for instance, were the regulations by which they were spared some of the more ignominious punishments; and the exemption from the jurisdiction of the imperial prefect, who could decide on the guilt or innocence of a decurion, but not adjudge the punishment to be inflicted on him. In like manner a decayed decurion was to be maintained at the public expense, especially if his property had been exhausted by his liberality to the state. The goods of a decurion dying intestate and without heirs were divided among the members of the curia, which also received a fourth of the property when the legatee or heir of the decurion was not himself of that order. It appears, moreover, that sums of money given as largesses, or bequeathed as legacies by private persons, were not unfrequently divided among the decurions.* As the number of the decurions, or members of the curia, was regularly limited to a hundred,† and although this limitation was not adhered to, as their actual number was always small in comparison with the whole population, it is natural to inquire what was the lot of those provincials who were not decurions, whether they were delivered up to the double oppression of their fellow citizens and the imperial officers, without hope of redress, or whether they had any institutions or protectors of their own? Besides the imperial governors and judges, and the native curiales, there was introduced about the middle of the fourth century another officer, called the defender of the city, or people, (Defensor civitatis, plebis.) No decurion was eligible to this magistracy, which was filled by the votes of all the citizens. The inca * In a Hymn of Prudentius, a martyr is represented as saying— Absit ut me nobilem Sanguis parentum præstet, aut lex curia. + Savigny, vol. i. p. 74. |