The Spirit Of Laws Part 28

In case the default was owing to the lord's tenants or peers, who had delayed to administer justice, or had avoided giving judgment after past delays, then these peers were appealed of default of justice before the paramount; and if they were cast, they paid a fine to their lord.210 The latter could not give them any a.s.sistance; on the contrary, he seized their fief till they had each paid a fine of sixty livres.

2. When the default was owing to the lord, which was the case whenever there happened not to be a sufficient number of peers in his court to pa.s.s judgment, or when he had not a.s.sembled his tenants or appointed somebody in his room to a.s.semble them, an appeal might be made of the default before the lord paramount; but then the party and not the lord was summoned, because of the respect due to the latter.211 The lord demanded to be tried before the paramount, and if he was acquitted of the default, the cause was remanded to him, and he was likewise paid a fine of sixty livres.212 But if the default was proved, the penalty inflicted on him was, to lose the trial of the cause213 which was to be then determined in the superior court. And, indeed, the complaint of default was made with no other view.

3. If the lord was sued in his own court,214 which never happened but upon disputes in relation to the fief, after letting all the delays pa.s.s, the lord himself was summoned before the peers in the sovereign's name,215 whose permission was necessary on that occasion. The peers did not make the summons in their own name, because they could not summon their lord, but they could summon for their lord.216 Sometimes the appeal of default of justice was followed by an appeal of false judgment, when the lord had caused judgment to be pa.s.sed, notwithstanding the default. 217 The va.s.sal who had wrongfully challenged his lord of default of justice was sentenced to pay a fine according to his lord's pleasure.218 The inhabitants of Ghent had challenged the Earl of Flanders of default of justice before the king, for having delayed to give judgment in his own court.219 Upon examination it was found, that he had used fewer delays than even the custom of the country allowed. They were therefore remanded to him; upon which their effects to the value of sixty thousand livres were seized. They returned to the king's court in order to have the fine moderated; but it was decided that the earl might insist upon the fine, and even upon more if he pleased. Beaumanoir was present at those judgments.

4. In other disputes which the lord might have with his va.s.sal, in respect to the person or honor of the latter, or to property that did not belong to the fief, there was no room for a challenge of default of justice; because the cause was not tried in the lord's court, but in that of the paramount: va.s.sals, says Defontaines,220 having no power to give judgment on the person of their lord.

I have been at some trouble to give a clear idea of those things, which are so obscure and confused in ancient authors that to disentangle them from the chaos in which they were involved may be reckoned a new discovery.

29.-Epoch of the Reign of St. Louis St. Louis abolished the judicial combats in all the courts of his demesne, as appears by the ordinance he published thereupon,221 and by the Inst.i.tutions.222 But he did not suppress them in the courts of his barons, except in the case of challenge of false judgment.223 A va.s.sal could not challenge the court of his lord of false judgment, without demanding a judicial combat against the judges who p.r.o.nounced sentence. But St. Louis introduced the practice of challenging of false judgment without fighting, a change that may be reckoned a kind of revolution.224 He declared 225 that there should be no challenge of false judgment in the lords.h.i.+ps of his demesnes, because it was a crime of felony. In reality, if it was a kind of felony against the lord, by a much stronger reason it was felony against the king. But he consented that they might demand an amendment226 of the judgments pa.s.sed in his courts; not because they were false or iniquitous, but because they did some prejudice.227 On the contrary, he ordained, that they should be obliged to make a challenge of false judgment against the courts of the barons,228 in case of any complaint.

It was not allowed by the Inst.i.tutions, as we have already observed, to bring a challenge of false judgment against the courts in the king's demesnes. They were obliged to demand an amendment before the same court; and in case the bailiff refused the amendment demanded, the king gave leave to make an appeal to his court;229 or rather, interpreting the Inst.i.tutions by themselves, to present him a request or pet.i.tion.230 With regard to the courts of the lords, St. Louis, by permitting them to be challenged of false judgment, would have the cause brought before the royal tribunal,231 or that of the lord paramount, not to be decided by duel232 but by witnesses, pursuant to a certain form of proceeding, the rules of which he laid down in the Inst.i.tutions.233 Thus, whether they could falsify the judgment, as in the court of the barons; or whether they could not falsify, as in the court of his demesnes, he ordained that they might appeal without the hazard of a duel.

Defontaines234 gives us the first two examples he ever saw, in which they proceeded thus without a legal duel: one, in a cause tried at the court of St. Quentin, which belonged to the king's demesne; and the other, in the court of Ponthieu, where the count, who was present, opposed the ancient jurisprudence: but these two causes were decided by law.

Here, perhaps, it will be asked why St. Louis ordained for the courts of his barons a different form of proceeding from that which he had established in the courts of his demesne? The reason is this: when St. Louis made the regulation for the courts of his demesnes, he was not checked or limited in his views: but he had measures to keep with the lords who enjoyed this ancient prerogative, that causes should not be removed from their courts, unless the party was willing to expose himself to the dangers of an appeal of false judgment. St. Louis preserved the usage of this appeal; but he ordained that it should be made without a judicial combat; this is, in order to make the change less felt, he suppressed the thing, and continued the terms.

This regulation was not universally received in the courts of the lords. Beaumanoir says,235 that in his time there were two ways of trying causes; one according to the king's establishment, and the other pursuant to the ancient practice; that the lords were at liberty to follow which way they pleased; but when they had pitched upon one in any cause, they could not afterwards have recourse to the other. He adds,236 that the Count of Clermont followed the new practice, while his va.s.sals kept to the old one; but that it was in his power to re-establish the ancient practice whenever he pleased, otherwise he would have less authority than his va.s.sals.

It is proper here to observe, that France was at that time divided into the country of the king's demesne, and that which was called the country of the barons, or the baronies; and, to make use of the terms of St. Louis's Inst.i.tutions, into the country under obedience to the king, and the country out of his obedience.237 When the king made ordinances for the country of his demesne, he employed his own single authority. But when he published any ordinances that concerned also the country of his barons, these were made in concert with them,238 or sealed and subscribed by them: otherwise the barons received or refused them, according as they seemed conducive to the good of their baronies. The rear-va.s.sals were upon the same terms with the great-va.s.sals. Now the Inst.i.tutions were not made with the consent of the lords, though they regulated matters which to them were of great importance: but they were received only by those who believed they would redound to their advantage. Robert, son of St. Louis, received them in his county of Clermont; yet his va.s.sals did not think proper to conform to this practice.

30.-Observation on Appeals I apprehend that appeals which were challenges to a combat, must have been made immediately on the spot. "If the party leaves the court without appealing," says Beaumanoir,239 "he loses his appeal, and the judgment stands good." This continued still in force, even after all the restrictions of judicial combat.240 31-The same Subject continued The villain could not bring a challenge of false judgment against the court of his lord. This we learn from Defontaines,241 and he is confirmed moreover by the Inst.i.tutions.242 Hence Defontaines says,243 "between the lord and his villain there is no other judge but G.o.d."

It was the custom of judicial combats that deprived the villains of the privilege of challenging their lord's court of false judgment. And so true is this, that those villains244 who by charter or custom had a right to fight had also the privilege of challenging their lord's court of false judgment, even though the peers who tried them were gentlemen;245 and Defontaines proposes expedients to gentlemen in order to avoid the scandal of fighting with a villain by whom they had been challenged of false judgment.246 As the practice of judicial combats began to decline and the usage of new appeals to be introduced, it was reckoned unfair that freedmen should have a remedy against the injustice of the courts of their lords, and the villains should not; hence the Parliament received their appeals all the same as those of freemen.

32.-The same Subject continued When a challenge of false judgment was brought against the lord's court, the lord appeared in person before his paramount to defend the judgment of his court. In like manner in the appeal of default of justice, the party summoned before the lord paramount brought his lord along with him, to the end that if the default was not proved, he might recover his jurisdiction.247 In process of time as the practice observed in these two particular cases became general, by the introduction of all sorts of appeals, it seemed very extraordinary that the lord should be obliged to spend his whole life in strange tribunals, and for other people's affairs. Philip of Valois ordained248 that none but the bailiffs should be summoned; and when the usage of appeals became still more frequent, the parties were obliged to defend the appeal: the deed of the judge became that of the party.249 I took notice that in the appeal of default of justice250 the lord lost only the privilege of having the cause tried in his own court. But if the lord himself was sued as party,251 which became a very common practices252 he paid a fine of sixty livres to the king, or to the paramount, before whom the appeal was brought. Thence arose the usage after appeals had been generally received, of making the fine payable to the lord upon the reversal of the sentence of his judge; a usage which lasted a long time, and was confirmed by the ordinance of Rousillon, but fell, at length, to the ground through its own absurdity.

33.-The same Subject continued In the practice of judicial combats, the person who had challenged one of the judges of false judgment might lose his cause by the combat, but could not possibly gain it.253 And, indeed, the party who had a judgment in his favor ought not to have been deprived of it by another man's act. The appellant, therefore, who had gained the battle was obliged to fight likewise against the adverse party: not in order to know whether the judgment was good or bad (for this judgment was out of the case, being reversed by the combat), but to determine whether the demand was just or not; and it was on this new point they fought. Thence proceeds our manner of p.r.o.nouncing decrees. "The court annuls the appeal; the court annuls the appeal and the judgment against which the appeal was brought." In effect, when the person who had made the challenge of false judgment happened to be overcome the appeal was reversed: when he proved victorious both the judgment and the appeal were reversed; then they were obliged to proceed to a new judgment.

This is so far true, that when the cause was tried by inquests this manner of p.r.o.nouncing did not take place: witness what M. de la Roche Flavin says,254 namely, that the chamber of enquiry could not use this form at the beginning of its existence.

34.-In what Manner the Proceedings at Law became secret Duels had introduced a public form of proceeding so that both the attack and the defence were equally known. "The witnesses," says Beaumanoir,255 "ought to give their testimony in open court."

Boutillier's commentator says he had learned of ancient pract.i.tioners, and from some old ma.n.u.script law books, that criminal processes were anciently carried on in public, and in a form not very different from the public judgments of the Romans. This was owing to their not knowing how to write; a thing in those days very common. The usage of writing fixes the ideas, and keeps the secret; but when this usage is laid aside, nothing but the notoriety of the proceeding is capable of fixing those ideas.

And as uncertainty might easily arise in respect to what had been adjudicated by va.s.sals, or pleaded before them, they could, therefore, refresh their memory256 every time they held a court by what were called proceedings on record.257 In that case, it was not allowed to challenge the witnesses to combat; for then there would be no end of disputes.

In process of time a private form of proceeding was introduced. Everything before had been public; everything now became secret; the interrogatories, the informations, the re-examinations, the confronting of witnesses, the opinion of the attorney-general; and this is the present practice. The first form of proceeding was suitable to the government of that time, as the new form was proper to the government since established.

Boutillier's commentator fixes the epoch of this change to the ordinance in the year 1539. I am apt to believe that the change was made insensibly, and pa.s.sed from one lords.h.i.+p to another, in proportion as the lords renounced the ancient form of judging, and that derived from the Inst.i.tutions of St. Louis was improved. And, indeed, Beaumanoir says258 that witnesses were publicly heard only in cases in which it was allowed to give pledges of battle: in others they were heard in secret, and their depositions were reduced to writing. The proceedings became, therefore, secret, when they ceased to give pledges of battle.

35.-Of the Costs In former times no one was condemned in the lay courts of France to the payment of costs.259 The party cast was sufficiently punished by pecuniary fines to the lord and his peers. From the manner of proceeding by judicial combat it followed, that the party condemned and deprived of life and fortune was punished as much as he could be: and in the other cases of the judicial combat, there were fines sometimes fixed, and sometimes dependent on the disposition of the lord, which were sufficient to make people dread the consequences of suits. The same may be said of causes that were not decided by combat. As the lord had the chief profits, so he was also at the chief expense, either to a.s.semble his peers, or to enable them to proceed to judgment. Besides, as disputes were generally determined at the same place, and almost always at the same time, without that infinite mult.i.tude of writings which afterwards followed, there was no necessity of allowing costs to the parties.

The custom of appeals naturally introduced that of giving costs. Thus Defontaines says,260 that when they appealed by written law, that is, when they followed the new laws of St. Louis, they gave costs; but that in the ordinary practice, which did not permit them to appeal without falsifying the judgment, no costs were allowed. They obtained only a fine, and the possession for a year and a day of the thing contested, if the cause was remanded to the lord.

But when the number of appeals increased from the new facility of appealing;261 when by the frequent usage of those appeals from one court to another, the parties were continually removed from the place of their residence; when the new method of procedure multiplied and prolonged the suits; when the art of eluding the very justest demands became refined; when the parties at law knew how to fly only in order to be followed; when plaints were ruinous and defence easy; when the arguments were lost in whole volumes of words and writings; when the kingdom was filled with limbs of the law, who were strangers to justice; when knavery found encouragement at the very place where it did not find protection; then it was necessary to deter litigious people by the fear of costs. They were obliged to pay costs for the judgment and for the means they had employed to elude it. Charles the Fair, made a general ordinance on that subject.262 36.-Of the public Prosecutor As by the Salic, Ripuarian, and other barbarous laws, crimes were punished with pecuniary fines; they had not in those days, as we have at present, a public officer who had the care of criminal prosecutions. And, indeed, the issue of all causes being reduced to the reparation of injuries, every prosecution was in some measure civil, and might be managed by anyone. On the other hand, the Roman law had popular forms for the prosecution of crimes which were inconsistent with the functions of a public prosecutor.

The custom of judicial combats was no less opposite to this idea; for who is it that would choose to be a public prosecutor and to make himself every man's champion against all the world?

I find in the collection of formulas, inserted by Muratori in the laws of the Lombards, that under our princes of the second race there was an advocate for the public prosecutor.263 But whoever pleases to read the entire collection of these formulas will find that there was a total difference between such officers and those we now call the public prosecutor, our attorneys-general, our king's solicitors, or our solicitors for the n.o.bility. The former were rather agents to the public for the management of political and domestic affairs, than for the civil. And, indeed, we did not find in those formulas that they were intrusted with criminal prosecutions, or with causes relating to minors, to churches, or to the condition of anyone.

I said that the establishment of a public prosecutor was repugnant to the usage of judicial combats. I find, notwithstanding, in one of those formulas, an advocate for the public prosecutor, who had the liberty to fight. Muratori has placed it just after the const.i.tution of Henry I, for which it was made.264 In this const.i.tution it is said, "That if any man kills his father, his brother, or any of his other relatives, he shall lose their succession, which shall pa.s.s to the other relatives, and his own property shall go to the exchequer." Now it was in suing for the estate which had devolved to the exchequer, that the advocate for the public prosecutor, by whom its rights were defended, had the privilege of fighting: this case fell within the general rule.

We see in those formulas the advocate for the public prosecutor proceeding against a person who had taken a robber, but had not brought him before the count;265 against another who had raised an insurrection or tumult against the count;266 against another who had saved a man's life whom the count had ordered to be put to death;267 against the advocate of some churches, whom the count had commanded to bring a robber before him, but had not obeyed;268 against another who had revealed the king's secret to strangers;269 against another, who with open violence had attacked the emperor's commissary;270 against another who had been guilty of contempt to the emperor's rescripts, and he was prosecuted either by the emperor's advocate or by the emperor himself;271 against another, who refused to accept of the prince's coin;272 in fine, this advocate sued for things, which by the law were adjudged to the exchequer.273 But in criminal causes, we never meet with the advocate for the public prosecutor; not even where duels are used;274 not even in the case of incendiaries;275 not even when the judge is killed on his bench;276 not even in causes relating to the conditions of persons,277 to liberty and slavery.278 These formulas are made, not only for the laws of the Lombards, but likewise for the capitularies added to them, so 0that we have no reason to doubt of their giving us the practice observed with regard to this subject under our princes of the second race.

It is obvious, that these advocates for a public prosecutor must have ended with our second race of kings, in the same manner as the king's commissioners in the provinces; because there was no longer a general law nor general exchequer, and because there were no longer any counts in the provinces to hold the a.s.sizes, and, of course, there were no more of those officers, whose princ.i.p.al function was to support the authority of the counts.

As the usage of combats became more frequent under the third race, it did not allow of any such thing as a public prosecutor. Hence Boutillier, in his "Somme Rurale," speaking of the officers of justice, takes notice only of the bailiffs, the peers, and sergeants. See the Inst.i.tutions,279 and Beaumanoir,280 concerning the manner in which prosecutions were managed in those days.

I find in the laws of James II, King of Majorca,281 a creation of the office of king's attorney-general, with the very same functions as are exercised at present by the officers of that name among us.282 It is manifest that this office was not inst.i.tuted till we had changed the form of our judiciary proceedings.

37.-In what Manner the Inst.i.tutions of St. Louis fell into Oblivion It was the fate of the Inst.i.tutions, that their origin, progress, and decline were comprised within a very short period.

I shall make a few reflections upon this subject. The code we have now under the name of St. Louis's Inst.i.tutions was never designed as a law for the whole kingdom, though such a design is mentioned in the preface. The compilation is a general code, which determines all points relating to civil affairs, to the disposal of property by will or otherwise, the dowries and privileges of women, and emoluments and privileges of fiefs, with the affairs in relation to the police, etc. Now, to give a general body of civil laws, at a time when each city, town, or village, had its customs, was attempting to subvert in one moment all the particular laws then in force in every part of the kingdom. To reduce all the particular customs to a general one would be a very inconsiderate thing, even at present when our princes find everywhere the most pa.s.sive obedience. But if it be true that we ought not to change when the inconveniences are equal to the advantages, much less should we change when the advantages are small and the inconveniences immense. Now, if we attentively consider the situation which the kingdom was in at that time, when every lord was puffed up with the notion of his sovereignty and power, we shall find that to attempt a general alteration of the received laws and customs must be a thing that could never enter into the heads of those who were then in the administration.

What I have been saying proves likewise that this code of inst.i.tutions was not confirmed in parliament by the barons and magistrates of the kingdom, as is mentioned in a ma.n.u.script of the town-hall of Amiens, quoted by M. Ducange.283 We find in other ma.n.u.scripts that this code was given by St. Louis in the year 1270, before he set out for Tunis. But this fact is not truer than the other; for St. Louis set out upon that expedition in 1269, as M. Ducange observes: whence he concludes, that this code might have been published in his absence. But this I say is impossible. How can St. Louis be imagined to have pitched upon the time of his absence for transacting an affair which would have been a sowing of troubles, and might have produced not only changes, but revolutions? An enterprise of that kind had need, more than any other, of being closely pursued, and could not be the work of a feeble regency, composed moreover of lords, whose interest it was that it should not succeed. These were Matthew, Abbot of St. Denis, Simon of Clermont, Count of Nesle, and, in case of death, Philip, Bishop of Evreux, and John, Count of Ponthieu. We have seen above284 that the Count of Ponthieu opposed the execution of a new judiciary order in his lords.h.i.+p.

Thirdly, I affirm it to be very probable, that the code now extant is quite a different thing from St. Louis's Inst.i.tutions. It cites the Inst.i.tutions, therefore it is a comment upon the Inst.i.tutions, and not the Inst.i.tutions themselves. Besides, Beaumanoir, who frequently makes mention of St. Louis's Inst.i.tutions, quotes only some particular laws of that prince, and not this compilation. Defontaines,285 who wrote in that prince's reign, makes mention of the first two times that his Inst.i.tutions on judicial proceedings were put in execution, as of a thing long since elapsed. The Inst.i.tutions of St. Louis were prior, therefore, to the compilation I am now speaking of, which from their rigor, and their adopting the erroneous prefaces inserted by some ignorant persons in that work, could not have been published before the last year of St. Louis or even not till after his death.

38.-The same Subject continued What is this compilation then which goes at present under the name of St. Louis's Inst.i.tutions? What is this obscure, confused, and ambiguous code, where the French law is continually mixed with the Roman, where a legislator speaks and yet we see a civilian, where we find a complete digest of all cases and points of the civil law? To understand this thoroughly, we must transfer ourselves in imagination to those times.

St. Louis, seeing the abuses in the jurisprudence of his time, endeavored to give the people a dislike to it. With this view he made several regulations for the court of his demesnes, and for those of his barons. And such was his success that Beaumanoir, who wrote a little after the death of that prince, informs us286 that the manner of trying causes which had been established by St. Louis obtained in a great number of the courts of the barons.

Thus this prince attained his end, though his regulations for the courts of the lords were not designed as a general law for the kingdom, but as a model which everyone might follow, and would even find his advantage in it. He removed the bad practice by showing them a better. When it appeared that his courts, and those of some lords, had chosen a form of proceeding more natural, more reasonable, more conformable to morality, to religion, to the public tranquillity, and to the security of person and property, this form was soon adopted, and the other rejected.

To allure when it is rash to constrain, to win by pleasing means when it is improper to exert authority, shows the man of abilities. Reason has a natural, and even a tyrannical sway; it meets with resistance, but this very resistance const.i.tutes its triumph; for after a short struggle it commands an entire submission.

St. Louis, in order to give a distaste of the French jurisprudence, caused the books of the Roman law to be translated; by which means they were made known to the lawyers of those times. Defontaines, who is the oldest law writer we have, made great use of those Roman laws.287 His work is, in some measure, a result from the ancient French jurisprudence, of the laws or Inst.i.tutions of St. Louis, and of the Roman law. Beaumanoir made very little use of the latter; but he reconciled the ancient French laws to the regulations of St. Louis.

I have a notion, therefore, that the law book, known by the name of the Inst.i.tutions, was compiled by some bailiffs, with the same design as that of the authors of those two works, and especially of Defontaines. The t.i.tle of this work mentions that it is written according to the usage of Paris, Orleans, and the court of barony; and the preamble says that it treats of the usage of the whole kingdom, of Anjou, and of the court of barony. It is plain that this work was made for Paris, Orleans, and Anjou, as the works of Beaumanoir and Defontaines were framed for the counties of Clermont and Vermandois; and as it appears from Beaumanoir that divers laws of St. Louis had been received in the courts of barony, the compiler was in the right to say that his work related also to those courts.288 It is manifest that the person who composed this work compiled the customs of the country together with the laws and Inst.i.tutions of St. Louis. This is a very valuable work, because it contains the ancient customs of Anjou, the Inst.i.tutions of St. Louis, as they were then in use; and, in fine, the whole practice of the ancient French law.

The difference between this work, and those of Defontaines and Beaumanoir is, its speaking in imperative terms as a legislator; and this might be right, since it was a medley of written customs and laws.

There was an intrinsic defect in this compilation; it formed an amphibious code, in which the French and Roman laws were mixed, and where things were joined that were in no relation, but often contradictory to each other.

I am not ignorant that the French courts of va.s.sals or peers, the judgments without power of appealing to another tribunal, the manner of p.r.o.nouncing sentence by these words, "I condemn" or "I absolve,"289 had some conformity to the popular judgments of the Romans. But they made very little use of that ancient jurisprudence; they rather chose that which was afterwards introduced by the emperor, in order to regulate, limit, correct, and extend the French jurisprudence.

39.-The same Subject continued The judiciary forms introduced by St. Louis fell into disuse. This prince had not so much in view the thing itself, that is, the best manner of trying causes, as the best manner of supplying the ancient practice of trial. The princ.i.p.al intent was to give a disrelish of the ancient jurisprudence, and the next to form a new one. But when the inconveniences of the latter appeared, another soon succeeded.

The Inst.i.tutions of St. Louis did not, therefore, so much change the French jurisprudence, as they afforded the means of changing it; they opened new tribunals, or rather ways to come at them. And when once the public had easy access to the superior courts, the judgments which before const.i.tuted only the usages of a particular lords.h.i.+p formed a universal digest. By means of the Inst.i.tutions, they had obtained general decisions, which were entirely wanting in the kingdom; when the building was finished, they let the scaffold fall to the ground.

Thus the Inst.i.tutions produced effects which could hardly be expected from a masterpiece of legislation. To prepare great changes whole ages are sometimes requisite; the events ripen, and the revolutions follow.

The Parliament judged in the last resort of almost all the affairs of the kingdom. Before,290 it took cognizance only of disputes between the dukes, counts, barons, bishops, abbots, or between the king and his va.s.sals,291 rather in the relation they bore to the political than to the civil order. They were soon obliged to render it permanent, whereas it used to be held only a few times in a year: and, in fine, a great number were created, in order to be sufficient for the decision of all manner of causes.

No sooner had the Parliament become a fixed body, than they began to compile its decrees. John de Monluc, in the reign of Philip the Fair, made a collection which at present is known by the name of the Olim registers.292 40.-In what Manner the judiciary Forms were borrowed from the Decretals But how comes it, some will ask, that when the Inst.i.tutions were laid aside the judicial forms of the canon law should be preferred to those of the Roman? It was because they had constantly before their eyes the ecclesiastic courts, which followed the forms of the canon law, and they knew of no court that followed those of the Roman law? Besides, the limits of the spiritual and temporal jurisdiction were at that time very little understood; there were people who sued indifferently293 and causes that were tried indifferently, in either court.294 It seems295 as if the temporal jurisdiction reserved no other cases exclusively to itself than the judgment of feudal matters,296 and of such crimes committed by laymen as did not relate to religion. For297 if, on account of conventions and contracts, they had occasion to sue in a temporal court, the parties might of their own accord proceed before the spiritual tribunals; and as the latter had not a power to oblige the temporal court to execute the sentence, they commanded submission by means of excommunications. Under those circ.u.mstances, when they wanted to change the course of proceedings in the temporal court, they took that of the spiritual tribunals, because they knew it; but did not meddle with that of the Roman law, by reason they were strangers to it: for in point of practice people know only what is really practised.

41.-Flux and Reflux of the ecclesiastic and temporal Jurisdiction The civil power being in the hands of an infinite number of lords, it was an easy matter for the ecclesiastic jurisdiction to gain daily a greater extent. But as the ecclesiastic courts weakened those of the lords, and contributed thereby to give strength to the royal jurisdiction, the latter gradually checked the jurisdiction of the clergy. The Parliament, which in its form of proceedings had adopted whatever was good and useful in the spiritual courts, soon perceived nothing else but the abuses which had crept into those tribunals; and as the royal jurisdiction gained ground every day, it grew every day more capable of correcting those abuses. And, indeed, they were intolerable; without enumerating them I shall refer the reader to Beaumanoir, to Boutillier, and to the ordinances of our kings.298 I shall mention only two, in which the public interest was more directly concerned. These abuses we know by the decrees that reformed them; they had been introduced in the times of the darkest ignorance, and upon the breaking out of the first gleam of light, they vanished. From the silence of the clergy it may be presumed that they forwarded this reformation: which, considering the nature of the human mind, deserves commendation. Every man that died without bequeathing a part of his estate to the church, which was called dying without confession, was deprived of the sacrament and of Christian burial. If he died intestate, his relatives were obliged to prevail upon the bishop that he would, jointly with them, name proper arbiters to determine what sum the deceased ought to have given, in case he had made a will. People could not lie together the first night of their nuptials, or even the two following nights without having previously purchased leave; these, indeed, were the best three nights to choose; for as to the others, they were not worth much. All this was redressed by the Parliament: we find in the glossary of the French law,299 by Ragneau, the decree which it published against the Bishop of Amiens.300 I return to the beginning of my chapter. Whenever we observe in any age or government the different bodies of the state endeavoring to increase their authority, and to take particular advantages of each other, we should be often mistaken were we to consider their enroachments as an evident mark of their corruption. Through a fatality inseparable from human nature, moderation in great men is very rare: and as it is always much easier to push on force in the direction in which it moves than to stop its movement, so in the superior cla.s.s of the people, it is less difficult, perhaps, to find men extremely virtuous, than extremely prudent.

The human mind feels such an exquisite pleasure in the exercise of power; even those who are lovers of virtue are so excessively fond of themselves that there is no man so happy as not still to have reason to mistrust his honest intentions; and, indeed, our actions depend on so many things that it is infinitely easier to do good, than to do it well.

42.-The Revival of the Roman Law, and the Result thereof. Change of Tribunals Upon the discovery of Justinian's digest towards the year 1137, the Roman law seemed to rise out of its ashes. Schools were then established in Italy, where it was publicly taught; they had already the Justinian code and the Novell. I mentioned before, that this code had been so favorably received in that country as to eclipse the law of the Lombards.

The Italian doctors brought the law of Justinian into France, where they had only the Theodosian code;301 because Justinian's laws were not made till after the settlement of the barbarians in Gaul.302 This law met with some opposition: but it stood its ground notwithstanding the excommunications of the popes, who supported their own canons.303 St. Louis endeavored to bring it into repute by the translations of Justinian's works, made according to his orders, which are still in ma.n.u.script in our libraries; and I have already observed, that they made great use of them in compiling the Inst.i.tutions. Philip the Fair ordered the laws of Justinian to be taught only as written reason in those provinces of France that were governed by customs; and they were adopted as a law in those provinces where the Roman law had been received.304 I have already noticed that the manner of proceeding by judicial combat required very little knowledge in the judges; disputes were decided according to the usage of each place, and to a few simple customs received by tradition. In Beaumanoir's time there were two different ways of administering justice;305 in some places they tried by peers,306 in others by bailiffs: in following the former way, the peers gave judgment according to the practice of their court; in the latter, it was the prud'hommes, or old men, who pointed out this same practice to the bailiffs.307 This whole proceeding required neither learning, capacity, nor study. But when the dark code of the Inst.i.tutions made its appearance; when the Roman law was translated and taught in public schools; when a certain art of procedure and jurisprudence began to be formed; when pract.i.tioners and civilians were seen to rise, the peers and the prud'hommes were no longer capable of judging: the peers began to withdraw from the lords' tribunals; and the lords were very little inclined to a.s.semble them; especially as the new form of trial, instead of being a solemn proceeding, agreeable to the n.o.bility and interesting to a warlike people, had become a course of pleading which they neither understood, nor cared to learn. The custom of trying by peers began to be less used;308 that of trying by bailiffs to be more so; the bailiffs did not give judgment themselves,309 they summed up the evidence and p.r.o.nounced the judgment of the prud'hommes; but the latter being no longer capable of judging, the bailiffs themselves gave judgment.

This was effected so much the easier, as they had before their eyes the practice of the ecclesiastic courts; the canon and new civil law both concurred alike to abolish the peers.

Thus fell the usage hitherto constantly observed in the French monarchy, that judgment should not be p.r.o.nounced by a single person, as may be seen in the Salic laws, the Capitularies, and in the first law-writers under the third race.310 The contrary abuse which obtains only in local jurisdictions has been moderated, and in some measure redressed, by introducing in many places a judge's deputy, whom he consults, and who represents the ancient prud'hommes by the obligation the judge is under of taking two graduates in cases that deserve a corporal punishment; and, in fine, it has become of no effect by the extreme facility of appeals.

43.-The same Subject continued Thus there was no law to prohibit the lords from holding their courts themselves; none to abolish the functions of their peers; none to ordain the creation of bailiffs; none to give them the power of judging. All this was effected insensibly, and by the very necessity of the thing. The knowledge of the Roman law, the decrees of the courts, the new digest of the customs, required a study of which the n.o.bility and illiterate people were incapable.

The only ordinance we have upon this subject is that which obliged the lords to choose their bailiffs from among the laity.311 It is a mistake to look upon this as a law of their creation; for it says no such thing. Besides, the intention of the legislator is determined by the reasons a.s.signed in the ordinance: "to the end that the bailiffs may be punished for their prevarications it is necessary they be taken from the order of the laity."312 The immunities of the clergy in those days are very well known.

We must not imagine that the privileges which the n.o.bility formerly enjoyed, and of which they are now divested, were taken from them as usurpations; no, many of those privileges were lost through neglect, and others were given up, because as various changes had been introduced in the course of so many ages, they were inconsistent with those changes.

44.-Of the Proof by Witnesses The judges, who had no other rule to go by than the usages, inquired very often by witnesses into every cause that was brought before them.

The usage of judicial combats beginning to decline, they made their inquests in writing. But a verbal proof committed to writing is never more than a verbal proof; so that this only increased the expenses of law proceedings. Regulations were then made which rendered most of those inquests useless;313 public registers were established which ascertained most facts, as n.o.bility, age, legitimacy, and marriage. Writing is a witness very hard to corrupt; the customs were therefore reduced to writing. All this is very reasonable; it is much easier to go and see in the baptismal register, whether Peter is the son of Paul than to prove this fact by a tedious inquest. When there are a number of usages in a country it is much easier to write them all down in a code, than to oblige individuals to prove every usage. At length the famous ordinance was made, which prohibited the admitting of the proof by witnesses for a debt exceeding an hundred livres, except there was the beginning of a proof in writing.

45.-Of the Customs of France France, as we have already observed, was governed by written customs, and the particular usages of each lords.h.i.+p const.i.tuted the civil law. Every lords.h.i.+p had its civil law, according to Beaumanoir,314 and so particular a law, that this author, who is looked upon as a luminary, and a very great luminary of those times, says he does not believe that throughout the whole kingdom there were two lords.h.i.+ps entirely governed by the same law.

This prodigious diversity had a twofold origin. With regard to the first, the reader may recollect what has been already said concerning it in the chapter of local customs:315 and as to the second we meet with it in the different events of legal duels, it being natural that a continual series of fortuitous cases must have been productive of new usages.

These customs were preserved in the memory of old men, but insensibly laws or written customs were formed.

1. At the commencement of the third race, the kings gave not only particular charters, but likewise general ones, in the manner above explained; such are the Inst.i.tutions of Philip Augustus and those made by St. Louis. In like manner the great va.s.sals, in concurrence with the lords who held under them, granted certain charters or establishments, according to particular circ.u.mstances at the a.s.sizes of their duchies or counties; such were the a.s.size of G.o.dfrey, Count of Brittany, on the division of the n.o.bles; the customs of Normandy, granted by Duke Ralph; the customs of Champagne, given by King Theobald; the laws of Simon, Count of Montfort, and others. This produced some written laws, and even more general ones than those they had before.

2. At the beginning of the third race, almost all the common people were bondmen; but there were several reasons which afterwards determined the kings and lords to enfranchise them.

The lords by enfranchising their bondmen gave them property; it was necessary therefore to give them civil laws, in order to regulate the disposal of that property. But by enfranchising their bondmen, they likewise deprived themselves of their property; there was a necessity, therefore, of regulating the rights which they reserved to themselves, as an equivalent for that property. Both these things were regulated by the charters of enfranchis.e.m.e.nt; those charters formed a part of our customs, and this part was reduced to writing.316 3. Under the reign of St. Louis, and of the succeeding princes, some able pract.i.tioners, such as Defontaines, Beaumanoir, and others, committed the customs of their bailiwicks to writing. Their design was rather to give the course of judicial proceedings, than the usages of their time in respect to the disposal of property. But the whole is there, and though these particular authors have no authority but what they derive from the truth and notoriety of the things they speak of, yet there is no manner of doubt but that they contributed greatly to the restoration of our ancient French jurisprudence. Such was in those days our common law.

We have come now to the grand epoch. Charles VII and his successors caused the different local customs throughout the kingdom to be reduced to writing, and prescribed set forms to be observed to their digesting. Now, as this digesting was made through all the provinces, and as people came from each lords.h.i.+p to declare in the general a.s.sembly of the province the written or unwritten usages of each place, endeavors were made to render the customs more general, as much as possible, without injuring the interests of individuals, which were carefully preserved.317 Thus our customs were characterized in a threefold manner; they were committed to writing, they were made more general, and they received the stamp of the royal authority.

Many of these customs having been digested anew, several changes were made either in suppressing whatever was incompatible with the actual practice of the law, or in adding several things drawn from this practice.

Though the common law is considered among us as in some measure opposite to the Roman, insomuch that these two laws divide the different territories, it is, notwithstanding, true that several regulations of the Roman law entered into our customs, especially when they made the new digests, at a time not very distant from ours, when this law was the princ.i.p.al study of those who were designed for civil employment, at a time when it was not usual for people to boast of not knowing what it was their duty to know, and of knowing what they ought not to know, at a time when a quickness of understanding was made more subservient to learning than pretending to a profession, and when a continual pursuit of amus.e.m.e.nts was not even the characteristic of women.

I should have been more diffuse at the end of this book, and, entering into the several details, should have traced all the insensible changes, which from the opening of appeals have formed the great corpus of our French jurisprudence. But this would have been ingrafting one large work upon another. I am like that antiquarian318 who set out from his own country, arrived in Egypt, cast an eye on the Pyramids and returned home.

1 In a private letter Montesquieu, speaking of this book, says that it cost him so much labor that his hair turned gray on account of it.-Ed.

2 See the prologue to the Salic law. Mr. Leibnitz says, in his treatise of the origin of the Franks, that this law was made before the reign of Clovis: but it could not be before the Franks had quitted Germany, for at that time they did not understand the Latin tongue.

3 See Gregory of Tours.

4 See the prologue to the law of the Bavarians, and that to the Salic law.

5 Ibid.

6 "Lex Angliorum Werinorum, hoc est Thuringorum."

7 They did not know how to write.

8 They were made by Euric, and amended by Leovigildus. See Isidorus's chronicle. Chaindasuinthus and Recessuinthus reformed them. Egigas ordered the code now extant to be made, and commissioned bishops for that purpose; nevertheless the laws of Chaindasuinthus and Recessuinthus were preserved, as appears by the Sixth Council of Toledo.

9 See the prologue to the law of the Bavarians.

10 We find only a few in Childebert's decree.

11 See the prologue to the code of the Burgundians, and the code itself, especially the 12th t.i.t. sec. 5, and t.i.t. 38. See also Gregory of Tours, book II. chap. x.x.xiii., and the code of the Visigoths.

12 See lower down, chap. 3.

13 See chap. ii. secs. 8 and 9, and chap. iv. secs. 2 and 7.

14 "De bello Gallico," lib. VI.

15 Lib. I. formul. 8.

16 Chap. x.x.xi.

17 That of Clotarius in the year 560, in the edition of the Capitularies of Balusius, vol. i. art. 4, ib. "in fine."

18 Capitularies added to the law of the Lombards, lib. I. t.i.t. 25, cap. lxxi. lib. II. t.i.t. 41, cap. vii. and t.i.t. 56, cap. i. and ii.

19 Ibid.

20 Ibid. lib. VI. t.i.t. 7, cap. i.

21 Ibid. cap. ii.

22 Ibid. lib. II. t.i.t. 35, cap. ii.

23 In the law of the Lombards, lib. II. t.i.t. 57.

24 Salic law, t.i.t. 44, sec. 1.

25 "Qui res in pago ubi remanet proprias habet."-Salic law, t.i.t. 44, sec. 15.

26 "Qui in truste dominica est."-Ibid. t.i.t. 41, sec. 4.

27 "Si Roma.n.u.s h.o.m.o conviva regis fuerit."-Ibid. sec. 6.

28 The princ.i.p.al Romans followed the court, as may be seen by the lives of several bishops, who were there educated; there were hardly any but Romans that knew how to write.

29 Salic law, t.i.t. 45.

30 Lidus whose condition was better than that of a bondsman.-Law of the Alemans, chap. xcv.