CHAPTER VII.

THE NOBLESSE DE LA ROBE.

Auparavant l'estat d'avocat estoit la pepinière des dignitez, et le chemin de parvenir aux offices de conseillers, advocats du Roy, presidens, et autres.-LOISEL, Dialogue des Advocats.

NOWHERE has the profession of the law achieved for itself a prouder position than in France in former times. Beside her mailed chivalry stood an order of men known as the noblesse de la robe, whose only patent of nobility was admission on the roll of advocates, and from whose ranks were taken the magistrates who, as members of the parliament of Paris, represented the feudal court and council of the ancient kings. Two individuals of that order attained each a rare distinction; the one Ives de Kaermartin, who lived in the reign of Philip the Fair, being canonised as a saint:1-the other, Gui Foucault, after gaining celebrity as an advocate, was advanced to the triple crown as Pope Clement IV. Illustrious as are the names of many who have adorned the judgment-seat in England, none stand higher than those of l'Hopital, le Tellier, and D'Aguesseau, each of whom held the office of Chancellor of France, and was the ornament of the century in which he lived; and of those who did not rise to such lofty pre-eminence in their profession, many were distinguished for their profound learning, their varied accomplishments, and

1 Loisel, Dialogue des Advocats (1602).

2 Clemens quartus fuit famosus advocatus in Franciâ causas integerrime agens."-Platin. in Vitå.

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their powerful eloquence. In times of tyranny and licentiousness, under the despotic sway of Louis XI., Francis I., and Louis XIV., and amidst the disgraceful vices of the regency of the Duke of Orleans, it is refreshing to see with what an even hand justice was generally administered in the courts, and with what boldness and fidelity the advocates of France discharged their duties.

From the earliest times Gaul has been famous as a nursery of lawyers, and Juvenal tells us that to her we are under obligations for instruction in eloquence.1

Gallia causidicos docuit facunda Britannos.

Schools for the instruction of students in the art of rhetoric were established, and attained considerable eminence, in various parts of France.

We shall have occasion to notice, in the present chapter, with what care royal ordinances were framed to regulate the duties and preserve the privileges of the order of advocates; and they approved themselves well worthy of the support and countenance of the Crown; for, on many occasions, as, for instance, in the struggle to establish the validity of the Salic law in 1317, they rendered it most important services; and to them the Gallican church owed its successful resistance to the arrogant pretensions and usurpations of the Papal See. It is well known how, commencing with Gregory VII. the proud and politic Hildebrand, the Popes gradually asserted, as God's vicegerents upon earth, their right to collation and investiture in the case of all spiritual dignities and benefices throughout Christendom. At the same time they claimed for the revenues of the church exemption from taxes, and denied

1 It is amusing to see the patriotic zeal with which Sir Edward Coke repudiates this notion. "Not that the Frenchmen did teach the lawyers of England to be eloquent (which Cæsar, a most certain author, denieth), but that a colony of Grecians residing in France, as Strabo saith, Gallia was said to teach the professors of the laws of England, being written in the Greek tongue, eloquence."-Pref. to Reports, Pt. 3.

the authority of the secular arm over the clergy, reserving to themselves and their own officers exclusive jurisdiction whereever ecclesiastical causes or persons were concerned. This doctrine rendered the law impotent against crimes, no matter how atrocious, when committed by a priest, and the most monstrous abuses were the consequence. In England, the prevalence of these led to the Constitutions of Clarendon in 1164, which the firmness of Henry II. forced upon the church, and thus laid the foundation of the mortal enmity which existed between that monarch and Thomas à Becket. The object

of these Constitutions was to make the clergy amenable to the law, by providing that clerks accused of any crime should be tried in the King's courts; and that all suits and actions, concerning advowsons and presentations, should be determined according to the common law. They further enacted that the revenues of Episcopal sees should, during vacancies, belong to the Crown, and that every bishop elect should do homage to the Crown for his temporalities.

But the pretensions of the popes went much farther than a claim to have cognizance in matters of a spiritual nature. Taking as their authority the text of Scripture "Know ye not that we shall judge angels? how much more things that pertain to this life?" they assumed a right to interfere in the temporal affairs of kingdoms to an extent which is scarcely credible. In the bull of excommunication against Henry IV., emperor of Germany, which Gregory VII. addressed to the prelates throughout Europe, he said, "Most holy fathers and princes, let the whole world understand and know that if ye have power on earth to bind and to loose, ye have power also on earth to take away from, or grant to any one, according to his deserts, empires, kingdoms, principalities, dukedoms, marquisates, earldoms, and in short the possessions of all men."

These extravagant claims of the Holy See terrified the laity, who, however, in that unlettered age, hardly knew how

CHAP. VII. BOLD CONDUCT OF THE ADVOCATES.

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to defeat pretensions that were founded on the misapplication of Scripture, and urged with all the perverse ingenuity of canonists and casuists. At the time when they were asserted most confidently, the throne of France was occupied by Saint Louis, whose life shines like a star in the midst of a dark and vicious age. But the very excellence of his character constituted in this instance the danger. He was, as his name implies, eminently devout, and therefore trembled at the thought of opposition to the Roman Pontiff. But he was at the same time unwilling to surrender the independence of his crown, and the liberties of his kingdom, to a foreign potentate; and he anxiously looked round for assistance. The great feudatories of France, with their armed retainers, were here powerless, for they could not contend in controversy with Italian clerks, and the question was to be decided by a war not of the sword, but of argument and opinion.

The clergy, as such, did not venture to come into conflict with their spiritual Head; nor did they care to contradict pretensions, which, though in some respects inconvenient to themselves, yet exalted the power and increased the authority of the church. But although it is true that in that age a large proportion of lawyers were also clerks, yet the habits of their profession rendered them far more fearless and independent than the cowled monks, or parochial clergy, who devoted themselves exclusively to the spiritual duties of their calling. And in this dilemma the council of the king turned to the advocates for help, and called upon them to rally round the throne, and refute the arguments by which the aggressions of the pope were supported.

They were not appealed to in vain. Nobly did they acquit themselves of the task, and in a vast number of writings which issued from their pens, they boldly grappled with the claims advanced by the Holy See, and demonstrated their fallacy. In many of their positions they seem to have anticipated the Reformation. They formally denied that

Jesus Christ had constituted St. Peter his Vicar-General upon earth, so as to give him power to govern kingdoms, and dispose of crowns; or that any authority had been delegated to St. Peter different from or exceeding that of the other apostles. They asserted that Jesus Christ had given to his apostles the keys of the kingdom of heaven only, and not temporal jurisdiction. That the pope and the clergy had nothing to do with questions of peace or war; but must seek to influence princes and potentates by prayers, remonstrances, and exhortations. That the pope was not the bishop of the bishops, but that all were equally with him the vicars of Christ upon earth. That St. Peter had been nothing more than the head of the apostolic college, primus inter paresas the dean is the head of a chapter; but his teaching was neither more pure nor of greater authority than that of St John, St. Philip, or St. Bartholomew. They also firmly denied the right of the pope to interfere with appointments to spiritual benefices in the realm of France, and maintained that all ecclesiastical as well as lay possessions were liable to taxation for the common exigencies of the kingdom.1

This spirited attack upon the ultramontane doctrines, which was led by the advocates, soon awakened the secular clergy also to resistance: and the consequence was, that the Church of Rome deemed it prudent not to attempt any longer at that time to enforce its arrogant pretensions in France. It fulminated no thunders against Saint Louis, but desisted for some years from its encroachments upon the authority of the crown in that kingdom. The pious monarch rejoiced in his peaceful triumph, and evinced the utmost gratitude towards that body of men to whom he was so much indebted for the result.

Soon afterwards, in 1268, was issued the royal ordinance, so well known under the name of the Pragmatic Sanction, whereby the king guaranteed the independence of all sees

1 See Fournel, tom. i.