The Spirit Of Laws Part 31

235 Chap. lxi. p. 309.

236 Ibid.

237 See Beaumanoir, Defontaines, and the "Inst.i.tutions," book II. chaps. x., xi., xv., and others.

238 See the ordinances at the beginning of the third race, in the collection of Lauriere, especially those of Philip Augustus, on ecclesiastic jurisdiction; that of Louis VIII concerning the Jews; and the charters related by Mr. Brussel; particularly that of St. Louis, on the release and recovery of lands, and the feodal majority of young women, tom. ii. book III. p. 35, and ibid., the Ordinance of Philip Augustus, p. 7.

239 Chap. lxiii. p. 327; chap. lxi. p. 312.

240 See the "Inst.i.tutions" of St. Louis, book II. chap. xv., and the Ordinance of Charles VII in the year 1453.

241 Chap. xxi. arts. 21 and 22.

242 Book I. chap. cx.x.xvi.

243 Chap. ii. art. 8.

244 Defontaines, chap. xxii. art. 7. This article, and the 21st of the 22d chapter of the same author, have been hitherto very badly explained. Defontaines does not oppose the judgment of the lord to that of the gentleman, because it was the same thing; but he opposes the common villain to him who had the privilege of fighting.

245 Gentlemen may always be appointed judges.-Defontaines, chap. xxi. art. 48.

246 Chap. xxii. art. 14.

247 Defontaines, chap. xxi. art. 33.

248 In the year 1332.

249 See the situation of things in Boutillier's time, who lived in the year 1402.-"Somme Rurale," book I. pp. 19 and 20.

250 See chap. x.x.x.

251 Beaumanoir, chap. lxi. pp. 312 and 318.

252 Ibid.

253 Defontaines, chap. xxi. art. 14.

254 Of the Parliaments of France, book XII. chap. xvi.

255 Chap. lxi. p. 315.

256 As Beaumanoir says, chap. x.x.xix. p. 209.

257 They proved by witnesses what had been already done, said, or decreed in court.

258 Chap. x.x.xix. p. 218.

259 Defontaines in his counsel, chap. xxii. arts. 3 and 8; and Beaumanoir, chap. x.x.xiii. "Inst.i.tutions," book I. Chap xc.

260 Chap. xxii. art. 8.

261 At present when they are so inclined to appeal, says Boutillier-"Somme Rurale" book I. t.i.t. 3, p. 16 262 In the year 1324.

263 "Adcocatus de parte publica."

264 See this const.i.tution and this formula, in the second volume of the Historians of Italy," p. 175.

265 Collection of Muratori, p. 104, on the 88th law of Charlemagne, book I. t.i.t. 26, sec. 48.

266 Another formula, ibid. p. 7.

267 Ibid. p. 104.

268 Collection of Muratori, p. 95.

269 Ibid. p. 88.

270 Ibid. p. 98.

271 Ibid. p. 132.

272 Ibid.

273 Ibid. p. 137.

274 Collection of Muratori, p. 147.

275 Ibid.

276 Ibid. p. 168.

277 Ibid. p. 134.

278 Ibid. p. 107.

279 Book I. chap. i.; and book II. chaps. xi. and xiii.

280 Cap. i. and lxi.

281 See these laws in the" Lives of the Saints," of the month of June, tom. iii. p. 26.

282 "Qui continue nostram sacram curiam sequi teneatur, inst.i.tuatur qui facta et causas in ipsa curia promoveat atque prosequatur."

283 Preface to the "Inst.i.tutions."

284 Chap. xxix.

285 See above, chap. xxix.

286 Chap. lxi. p. 309.

287 He says of himself, in his prologue, "Nus luy en prit onques mais cette chose dont jay."

288 Nothing so vague as the t.i.tle and prologue. At first they are the customs of Paris, Orleans, and the court of barony; then they are the customs of all the lay courts of the kingdom, and of the provosts.h.i.+ps of France; at length, they are the customs of the whole kingdom, Anjou, and the court of barony.

289 "Inst.i.tutions," book II. chap. xv.

290 See Du Tillet on the court of peers. See also Laroche, Flavin, book I. chap. iii., Budeus and Paulus aemilius.

291 Other causes were decided by the ordinary tribunals.

292 See the President Henault's excellent abridgment of the "History of France" in the year 1313.

293 Beaumanoir, chap. xi. p. 58.

294 Widows, croises, etc.-Beaumanois, chap. xi. p. 58.

295 See the whole eleventh chapter of Beaumanoir.

296 The spiritual tribunals had even laid hold of these, under the pretext of the oath, as may be seen by the famous Concordat between Philip Augustus, the clergy, and the barons, which is to be found in the Ordinances of Lauriere.

297 Beaumanoir, chap. xi. p. 60.

298 See Boutillier, "Somme Rurale," t.i.t. 9, what persons are incapable of suing in a temporal court; and Beaumanoir, chap. xi. p. 56, and the regulations of Philip Augustus upon this subject; as also the regulation between Philip Augustus, the clergy, and the barons.

299 In the words "testamentary executors."

300 The 19th of March, 1409.

301 In Italy they followed Justinian's code; hence Pope John VIII in his const.i.tution published after the Synod of Troyes makes mention of this code, not because it was known in France, but because he knew it himself, and his const.i.tution was general.

302 This Emperor's code was published towards the year 530.

303 Decretals, book V. t.i.t. "de privilegiis," capite "super specula."

304 By a charter in the year 1312, in favor of the university of Orleans, quoted by Du Tillet.

305 "Customs of Beauvoisis," chap. i., of the office of bailiffs.

306 Among the common people the burghers were tried by burghers, as the feudatory tenants were tried by one another. See La Thauma.s.siere, chap. xix.

307 Thus all requests began with these words: "My lord judge, it is customary that in your court," etc., as appears from the formula quoted by Boutillier, "Somme Rurale," book IV. t.i.t. xxi.

308 The change was insensible; we meet with trials by peers, even in Boutillier's time, who lived in the year 1402, which is the date of his will. He gives this formula, book I. t.i.t. 21, "Sire Juge, en ma justice haute, moyenne et ba.s.se, qui j'ai en tel lieu, cour, plaids, baillis, hommes, feodaux et sergens." Yet nothing but feodal matters were tried any longer by the peers. Ibid. book I. t.i.t. i. p. 16.

309 As appears by the formula of the letters which their lord used to give them, quoted by Boutillier, "Somme Rurale," book I. t.i.t. xiv., which is proved likewise by Beaumanoir, "Custom of Beauvoisis," chapter i., of the bailiffs; they only directed the proceedings. "The bailiff is obliged in the presence of the peers to take down the words of those who plead, and to ask the parties whether they are willing to have judgment given according to the reasons alleged; and if they say, yes, my lord; the bailiff ought to oblige the peers to give judgment." See also the "Inst.i.tutions" of St. Louis, book I. chap. cv., and book II. chap. xv. "Li Juge si ne doit pas faire le jugement."

310 Beaumanoir, chap. lxvii. p. 336, and chap. lxi. pp. 315 and 316. The "Inst.i.tutions," book II. chap. xv.

311 It was published in the year 1287.

312 "Ut si ibi delinquant, superiores sui possint animadvertere in eosdem."

313 See in what manner age and parentage were proved.-"Inst.i.tutions," book I. chaps. lxxi. and lxxii.

314 Prologue to the "Custom of Beauvoisis."

315 Chap. xii.

316 See the "Collection of Ordinances," by Lauriere.

317 This was observed at the digesting of the customs of Berry and of Paris. See La Thauma.s.siere, chap. iii.

318 In the "Spectator."

Book XXIX

Of the Manner of Composing Laws 1.-Of the Spirit of a Legislator I SAY it, and methinks I have undertaken this work with no other view than to prove it, the spirit of a legislator ought to be that of moderation; political, like moral good, lying always between two extremes.1 Let us produce an example.

The set forms of justice are necessary to liberty, but the number of them might be so great as to be contrary to the end of the very laws that established them; processes would have no end; property would be uncertain; the goods of one of the parties would be adjudged to the other without examining, or they would both be ruined by examining too much.

The citizens would lose their liberty and security, the accusers would no longer have any means to convict, nor the accused to justify themselves.

2.-The same Subject continued Cecilius, in Aulus Gellius,2 speaking of the law of the Twelve Tables which permitted the creditor to cut the insolvent debtor into pieces, justifies it even by its cruelty, which hindered people from borrowing beyond their ability of paying.3 Shall then the cruellest laws be the best? Shall goodness consist in excess, and all the relations of things be destroyed?

3.-That the Laws which seem to deviate from the Views of the Legislator are frequently agreeable to them The law of Solon which declared those persons infamous who espoused no side in an insurrection seemed very extraordinary; but we ought to consider the circ.u.mstances in which Greece was at that time. It was divided into very small states; and there was reason to apprehend lest in a republic torn by intestine divisions the soberest part should keep retired, in consequence of which things might be carried to extremity.

In the seditions raised in those petty states the bulk of the citizens either made or engaged in the quarrel. In our large monarchies parties are formed by a few, and the people choose to live quietly. In the latter case it is natural to call back the seditious to the bulk of the citizens, and not these to the seditious; in the other it is necessary to oblige the small number of prudent people to enter among the seditious; it is thus the fermentation of one liquor may be stopped by a single drop of another.

4.-Of the Laws contrary to the Views of the Legislator There are laws so little understood by the legislator as to be contrary to the very end he proposed. Those who made this regulation among the French, that when one of the two compet.i.tors died the benefice should devolve to the survivor, had in view without doubt the extinction of quarrels; but the very reverse falls out, we see the clergy at variance every day, and like English mastiffs worrying one another to death.

5.-The same Subject continued The law I am going to speak of is to be found in this oath preserved by aeschines:4 "I swear that I will never destroy a town of the Amphictyones, and that I will not divert the course of its running waters; if any nation shall presume to do such a thing, I will declare war against them and will destroy their towns." The last article of this law, which seems to confirm the first, is really contrary to it. Amphictyon is willing that the Greek towns should never be destroyed, and yet his law paves the way for their destruction. In order to establish a proper law of nations among the Greeks, they ought to have been accustomed early to think it a barbarous thing to destroy a Greek town; consequently they ought not even to ruin the destroyers. Amphictyon's law was just, but it was not prudent; this appears even from the abuse made of it. Did not Philip a.s.sume the power of demolis.h.i.+ng towns, under the pretence of their having infringed the laws of the Greeks? Amphictyon might have inflicted other punishments; he might have ordained, for example, that a certain number of the magistrates of the destroying town, or of the chiefs of the infringing army, should be punished with death; that the destroying nation should cease for a while to enjoy the privileges of the Greeks; that they should pay a fine till the town was rebuilt. The law ought, above all things, to aim at the reparation of damages.

6.-The Laws which appear the same have not always the same Effect Caesar made a law to prohibit people from keeping above sixty sesterces in their houses.5 This law was considered at Rome as extremely proper for reconciling the debtors to their creditors, because, by obliging the rich to lend to the poor, they enabled the latter to pay their debts. A law of the same nature made in France at the time of the System proved extremely fatal, because it was enacted under a most frightful situation. After depriving people of all possible means of laying out their money, they stripped them even of the last resource of keeping it at home, which was the same as taking it from them by open violence. Caesar's law was intended to make the money circulate; the French Minister's design was to draw all the money into one hand. The former gave either lands or mortgages on private people for the money; the latter proposed in lieu of money nothing but effects which were of no value, and could have none by their very nature, because the law compelled people to accept of them.

7.-The same Subject continued. Necessity of composing Laws in a proper Manner The law of ostracism was established at Athens, at Argos,6 and at Syracuse. At Syracuse it was productive of a thousand mischiefs, because it was imprudently enacted. The princ.i.p.al citizens banished one another by holding the leaf of a fig-tree in their hands,7 so that those who had any kind of merit with-drew from public affairs.8 At Athens, where the legislator was sensible of the proper extent and limits of his law, ostracism proved an admirable regulation. They never condemned more than one person at a time; and such a number of suffrages were requisite for pa.s.sing this sentence, that it was extremely difficult for them to banish a person whose absence was not necessary to the state.9 The power of banis.h.i.+ng was exercised only every fifth year: and, indeed, as the ostracism was designed against none but great personages who threatened the state with danger, it ought not to have been the transaction of every day.

8.-That Laws which appear the same were not always made through the same Motive In France they have received most of the Roman laws on subst.i.tutions, but through quite a different motive from the Romans. Among the latter the inheritance was accompanied with certain sacrifices10 which were to be performed by the inheritor and were regulated by the pontifical law; hence it was that they reckoned it a dishonor to die without heirs, that they made slaves their heirs, and that they devised subst.i.tutions. Of this we have a very strong proof in the vulgar subst.i.tution, which was the first invented, and took place only when the heir appointed did not accept of the inheritance. Its view was not to perpetuate the estate in a family of the same name, but to find somebody that would accept of it.

9.-That the Greek and Roman Laws punished Suicide, but not through the same Motive A man, says Plato, who has killed one nearly related to him, that is, himself, not by an order of the magistrate, not to avoid ignominy, but through pusillanimity, shall be punished.11 The Roman law punished this action when it was not committed through pusillanimity, through weariness of life, through impatience in pain, but from a criminal despair. The Roman law acquitted where the Greek condemned, and condemned where the other acquitted.