But in the 16th century, under Francis I. at the latest, the crown itself began officially to sell offices, whether newly created or vacant by the death of their occupiers, taking a fee from those upon whom they were conferred. Under Charles IX. the right of resigning in favorem was recognized by law in the case of royal officials, in return for a payment to the treasury of a certain proportion of the price. In the case of judicial offices there was a struggle for at least two centuries between the system of sale and another, also imitated from canon law, i.e. the election or presentation of candidates by the legal corporations. The ordinances of the second half of the 16th century, granted in answer to complaints of the states general, restored and confirmed the latter system, giving a share in the presentation to the towns or provincial notables and forbidding sales. The system of sale, however, triumphed in the end, and, in the case of judges, had, moreover, a favourable result, assuring to them that irremovability which Louis XI. had promised in vain; for, under this system, the king could not reasonably dismiss an official arbitrarily without refunding the fee which he had paid. On the other hand, it contributed to the development of the épices, or dues paid by litigants to the judges. The system of sale, and with it irremovability, was extended to all official functions, even to financial posts. The process was completed by the recognition of the rights in the sale of offices as hereditary, i.e. the right of resigning the office on payment of a fee, either in favour of a competent descendant or of a third party, passed to the heirs of an official who had died without having exercised this right himself. It was established under Henry IV. in 1604 by the system called the Paulette, in return for the payment by the official of an annual fee (droit annuel) which was definitely fixed at a hundredth part of the price of the office. Thus these offices, though the royal nomination was still required as well as the professional qualifications required by the law, became heritable property in virtue of the finance attached to them. This led to the formation of a class of men who, though bound in many ways to the crown, were actually independent. Hence the tendency in the 18th century to create new and important functions under the form, not of offices, but of simple commissions.
In this period of the history of France were evolved and defined
the essential principles of the old public law. There were,
in the first place, the fundamental laws of the realm,
which were true constitutional principles, established
for the most part not by law but by custom, and
Fundamental laws
of France.
considered as binding in respect of the king himself;
so that, although he was sovereign, he could neither abrogate,
nor modify, nor violate them. There was, however, some discussion
as to what rules actually came under this category, except in
the case of two series about which there was no doubt. These
were, on the one hand, those which dealt with the succession
to the crown and forbade the king to change its order, and those
which proclaimed the inalienability of the royal domain, against
which no title by prescription was valid. This last principle,
introduced in the 14th century, had been laid down and defined
by the edict of Moulins in 1566; it admitted only two exceptions:
the formation of appanages (q.v.), and selling (engagement), to
meet the necessities of war, with a perpetual option of redeeming
it.
There was in the second place the theory of the rights, franchises and liberties of the Gallican Church, formed of elements some of which were of great antiquity, and based on the conditions which had determined the relations of the Gallican Church with the crown and papacy during the Great Schism and under the Pragmatic Sanction of Bourges, and defined at the end of the 16th and the beginning of the 17th century. This body of doctrine was defined by the writings of three men especially, Guy Coquille, Pierre Pithou and Pierre Dupuy, and was solemnly confirmed by the declaration of the clergy of France, or Déclaration des quatres articles of 1682, and by the edict which promulgated it. Its substance was based chiefly on three principles: firstly, that the temporal power was absolutely independent of the spiritual power; secondly, that the pope had authority over the clergy of France in temporal matters and matters of discipline only by the consent of the king; thirdly, that the king had authority over and could legislate for the Gallican Church in temporal matters and matters of discipline. The old public law provided a safeguard against the violation of these rules. This was the process known as the appel comme d’abus, formed of various elements, some of them very ancient, and definitely established during the 16th century. It was heard before the parlements, but could, like every other case, be evoked before the royal council. Its effect was to annul any act of the ecclesiastical authority due to abuse or contrary to French law. The clergy were, when necessary, reduced to obedience by means of arbitrary fines and by the seizure of their temporalities. The Pragmatic Sanction had been abrogated and replaced by the Concordat of 1515, concluded between Francis I. and Leo X., which remained in force until suppressed by the Constituent Assembly. The Concordat, moreover, preserved many of the enactments of the Pragmatic Sanction, notably those which protected the collation of the inferior benefices from the encroachments of the papacy, and which had introduced reforms in certain points of discipline. But in the case of the superior benefices (bishoprics and abbeys) election by the chapters was suppressed. The king of France nominated the candidate, to whom the pope gave canonical institution. As a matter of fact, the pope had no choice; he had to institute the nominee of the king, unless he could show his unworthiness or incapacity, as the result of inquiries regularly conducted in France; for the pope it was, as the ancient French authors used to say, a case of compulsory collation. The annates were re-established at the time of the Concordat, but considerably diminished in comparison with what they had been before the Pragmatic Sanction. We must add, to complete this account, that many of the inferior benefices, in France as in the rest of Christendom, were conferred according to the rules of patronage, the patron, whether lay or ecclesiastic, presenting a candidate whom the bishop was bound to appoint, provided he was neither incapable nor unsuitable. There was some difficulty in getting the Concordat registered by the parlement of Paris, and the latter even announced its intention of not taking the Concordat into account in those cases concerning benefices which might come before it. The crown found an easy method of making this opposition ineffectual, namely, to transfer to the Grand Conseil the decision of cases arising out of the application of the Concordat.
In the 16th century also, contributions to the public services drawn from the immense possessions of the clergy were regularized. Since the second half of the 12th century at least, the kings had in times of urgent need asked for subsidies from the church, and ever since the Saladin tithe (dime saladine) of Philip Augustus this contribution had assumed the form of a tithe, taking a tenth part of the revenue of the benefices for a given period. Tithes of this kind were fairly frequently granted by the clergy of France, either with the pope’s consent or without (this being a disputed point). After the conclusion of the Concordat, Leo X. granted the king a tithe (décime) under the pretext of a projected war against the Turks; hitherto concessions of this kind had been made by the papacy in view of the Crusades or of wars against heretics. The concession was several times renewed, until, by force of custom, the levying of these tithes became permanent. But in the middle of the 16th century the system changed. The crown was heavily in debt, and its needs had increased. The property of the clergy having been threatened by the states general of 1560 and 1561, the king proposed to them to remit the bulk of the tithes and other dues, in return for the payment by them of a sum equivalent to the proceeds of the taxes which he had mortgaged. A formal contract to this effect was concluded at Poissy in 1561 between the king and the clergy of France, represented by the prelates who were then gathered together for the Colloquy of Poissy with the Protestants, and some of those who had been sitting at the states general of Pontoise. The fulfilment of this agreement was, however, evaded by the king, who diverted part of the funds provided by the clergy from their proper purpose. In 1580,
