we must transfer ourselves in imagination to those times.
St. Louis, seeing the abuses in the jurisprudence of his time, endeavoured 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 us[283] 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 every one 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 constitutes 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. D嶨ontaines, who is the oldest law writer we have, made great use of those Roman laws.[284] His work is, in some measure, a result from the ancient French jurisprudence, of the laws or Institutions 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 Institutions was compiled by some bailiffs, with the same design as that of the authors of those two Works, and especially of D嶨ontaines. The title 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 D嶨ontaines 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.[285]
It is manifest that the person who composed this work compiled the customs of the country together with the laws and Institutions of St. Louis. This is a very valuable work, because it contains the ancient customs of Anjou, the Institutions 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 D嶨ontaines 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 vassals or peers; the judgments without power of appealing to another tribunal; the manner of pronouncing sentence by these words "I condemn" or "I absolve,"[286] 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 principal 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 Institutions 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 constituted only the usages of a particular lordship formed a universal digest. By means of the Institutions, 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 Institutions 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,[287] it took cognizance only of disputes between the dukes, counts, barons, bishops, abbots, or between the king and his vassals,[288] 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. Jean de Monluc, in the reign of Philip the Fair, made a collection which at present is known by the name of the Olim registers.[289]
40. In what Manner the judiciary Forms were borrowed from the Decretals. But how comes it, some will ask, that when the Institutions 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 indifferently[290] and causes that were tried indifferently, in either court.[291] It seems[292] as if the temporal jurisdiction reserved no other cases exclusively to itself than the judgment of feudal matters,[293] and of such crimes committed by laymen as did not relate to religion. For[294] if on the 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 circumstances, 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.[295] 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,[296] by Ragau, the decree which it published against the Bishop of Amiens.[297]
I return to the beginning of my chapter. Whenever we observe in any age or government the different bodies of the state endeavouring to increase their authority, and to take particular advantages of each other, we should be often mistaken were we to consider their encroachments 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 class 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 favourably 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;[298] because Justinian's laws were not made till after the settlement of the Barbarians in Gaul.[299] This law met with some opposition: but it stood its ground notwithstanding the excommunications of the popes, who supported their own canons.[300] St Louis endeavoured to bring it into repute by the translations of Justinian's works, made according to his orders, which are still in manuscript in our libraries; and I have already observed that they made great use of them in compiling the Institutions. 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.[301]
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;[302] in some places they tried by peers,[303] 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.[304] This whole proceeding required neither learning, capacity, nor study. But when the dark code of the Institutions 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 practitioners 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 assemble them; especially as the new form of trial, instead of being a solemn proceeding, agreeable to the nobility 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;[305] that of trying, by bailiffs to be more so; the bailiffs did not give judgment themselves,[306] they summed up the evidence and pronounced 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 pronounced by a single person, as may be seen in the Salic laws, the capitularies, and in the first law-writers under the third race.[307] 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 nobility 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.[308] 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 assigned 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." The immunities of the clergy in those days are very well known.
We must not imagine that the privileges which the nobility 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;[309] public registers were established, which ascertained most facts, as nobility, 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 lordship constituted the civil law. Every lordship had its civil law, according to Beaumanoir,[310] 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 lordships 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:[311] 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 institutions of Philip Augustus and those made by St. Louis. In like manner the great vassals, in concurrence with the lords who held under them, granted certain charters or establishments, according to particular circumstances at the assizes of their duchies or counties; such were the assize of Godfrey, Count of Brittany, on the division of the nobles; 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 enfranchisement; those charters formed a part of our customs, and this part was reduced to writing.[312]
3. Under the reign of St. Louis, and of the succeeding princes, some able practitioners, such as D嶨ontaines, 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 lordship to declare in the general assembly of the province the written or unwritten usages of each place, endeavours were made to render the customs more general, as much as possible, without injuring the interests of individuals, which were carefully preserved.[313] Thus our customs were characterised 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 principal study of those who were designed for civil employments, 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 amusements 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 antiquarian[314] who set out from his own country, arrived in Egypt, cast an eye on. the pyramids and returned home.
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1. 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.
2. See Gregory of Tours.
3. See the prologue to the Law of the Bavarians, and that to the Salic Law.
4. Ibid.
5. Lex Angliorum Werinorum, hoc est Thuringorum.
6. They did not know how to write.
7. 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.
8. See the prologue to the Law of the Bavarians.
9. We find only a few in Childebert's decree.
10. See the prologue to the Code of the Burgundians, and the code itself, especially tit. 12, ?5, and tit. 38. See also Gregory of Tours, ii. 33, and the code of the Visigoths.
11. See lower down, chapter 3.
12. See cap. ii. 壯 8 and 9, and cap. iv. 壯 2 and 7.
13. De Bello Gall., vi.
14. Book i, formul. 8.
15. Chapter 31.
16. That of Clotarius in the year 560, in the edition of the Capitularies of Baluzius, i, art. 4, ib. in fine.
17. Capitularies added to the Law of the Lombards, i, tit. 25, 71, ii, tit. 41, 7, and tit. 56, 1, 2.
18. Ibid., ii, tit. 5.
19. Ibid., ii, tit. 7, 1.
20. Ibid., 2.
21. Ibid., ii, tit. 35, 2.
22. In the Law of the Lombards, ii, tit. 37.
23. Salic Law, tit. 44, ?1.
24. Ibid., tit. 44, 壯 15, 7.
25. Ibid., tit. 41, ?4.
26. Ibid., ?6.
27. The principal 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.
28. Salic Law, tit. 45.
29. Lidus whose condition was better than that of a bondman. —— Law of the Alemans, 95.
30. Tit. 35, 壯 3, 4.
31. The Abb?du Bos.
32. Witness the expedition of Arbogastes, in Gregory of Tours, History, ii.
33. The Franks, the Visigoths, and Burgundians.
34. It was finished in 438.
35. The 20th year of the reign of this prince, and published two years after by Anian, as appears from the preface to that code.
36. The year 504 of the Spanish era, the Chronicle of Isidorus.
37. Francum, aut Barbarum, aut hominem qui Salica lege vivit. —— Salic Law, tit. 45, ?1.
38. "According to the Roman law under which the church lives," as is said in the law of the Ripuarians, tit. 58, ?1. See also the numberless authorities on this head pronounced by Du Cange, under the words Lex Romana.
39. See the Capitularies added to the Salic law in Lindembrock, at the end of that law, and the different codes of the laws of the Barbarians concerning the privileges of ecclesiastics in this respect. See also the letter of Charlemagne to his son Pepin, King of Italy, in the year 807, in the edition of Baluzius, i, 462, where it is said, that an ecclesiastic should receive a triple compensation; and the Collection of the Capitularies, v, art. 302, i. Edition of Baluzius.
40. See that law.
41. Of this I shall speak in another place, xxx. 6-9.
42. Agobard, Opera.
43. See Gervais of Tilbury, in Duchesne's Collection, iii, p. 366. And a chronicle of the year 759, produced by Catel, Hist. of Languedoc. And the uncertain author of the Life of Louis the Debonnaire, upon the demand made by the people of Septimania, at the assembly in Carisiaco, in Duchesne's Collection, ii, p. 316.
44. Art. 16. See also art. 20.
45. See arts. 12 and 16 of the edict of Pistes in Cavilono, in Narbona, &c.
46. See what Machiavelli says of the ruin of the ancient nobility of Florence.
47. He began to reign in the year 642.
48. "We will no longer be harassed either by foreign or by the Roman laws." —— Law of the Visigoths, ii, tit. 1, 壯 9, 10.
49. Law of the Visigoths, iii, tit. 1, 1.
50. See Book iv. 19, 26.
51. The revolt of these provinces was a general defection, as appears by the sentence in the sequel of the history. Paulus and his adherents were Romans; they were even favoured by the bishops. Vamba durst not put to death the rebels whom he had quelled. The author of the history calls Narbonne Gaul the nursery of treason.
52. De Bello Gothorum, i. 13.
53. Capitularies, vi, 343, year 1613, edition of Baluzius, i, p. 981.
54. M. de la Thaumassi鋨e has collected many of them. See, for instance, chapters 41, 46, and others.
55. Missi Dominici.
56. Let not the bishops, says Charles the Bald, in the Capitulary of 844, art. 8, under pretence of the authority of making canons, oppose this constitution, or neglect the observance of it. It seems he already foresaw the fall thereof.
57. In the collection of canons a vast number of the decretals of the popes were inserted; they were very few in the ancient collection. Dionysius Exiguus put a great many into his; but that of Isidorus Mercator was stuffed with genuine and spurious decretals. The old collection obtained in France till Charlemagne. This prince received from the hand of Pope Adrian I the collection of Dionysius Exiguus, and caused it to be accepted. The collection of Isidorus Mercator appeared in France about the reign of Charlemagne; people grew passionately fond of it: to this succeeded what we now call the course of canon law.
58. See the edict of Pistes, art. 20.
59. This is expressly set down in some preambles to these codes: we even find in the laws of the Saxons and Frisians different regulations, according to the different districts. To these usages were added some particular regulations suitable to the exigency of circumstances; such were the severe laws against the Saxons.
60. Of this I shall speak elsewhere （xxx. 14）.
61. Preface to Marculfus, Formul?
62. Law of the Lombards, ii, tit. 58, ?3.
63. Ibid., tit. 41, ?6.
64. Life of St. Leger.
65. Law of the Lombards, ii, tit. 41, ?6.
66. See chapter 5.
67. This relates to what Tacitus says. De Moribus Germanorum, 28, that the Germans had general and particular customs.
68. Law of the Ripuarians, tit. 6, 7, 8, and others.
69. Ibid., tit. 11, 12, 17.
70. It was when an accusation was brought against an Antrustio, that is, the king's vassal, who was supposed to be possessed of a greater degree of liberty. See Pactus legis Salic? tit. 76.
71. Ibid.
72. According to the practice now followed in England.
73. Tit. 32; tit. 57, ?2; tit. 59, ?4.
74. See the following note.
75. This spirit appears in the Law of Ripuarians, tit. 59, ?4, and tit. 67, ?5, and in the Capitulary of Louis the Debonnaire, added to the law of the Ripuarians in the year 803, art. 22.
76. See that law.
77. The law of the Frisians, Lombards, Bavarians, Saxons, Thuringians, and Burgundians.
78. In the Law of the Burgundians, tit. 8, 壯 1 and 2, on criminal affairs; and tit. 45, which extends also to civil affairs. See also the law of the Thuringians, tit. 1, ?31; tit. 7, ?6; and tit. 8; and the law of the Alemans, tit. 89; the law of the Bavarians, tit. 8, cap. ii, ?6, and cap. iii, ?1, and tit. 9, cap. iv, ?4; the law of the Frisians, tit. 2, ?3, and tit. 14, ?4; the law of the Lombards, i, tit. 32, ?3, and tit. 35, ?1, and ii, tit. 35, ?2.
79. See cap. xviii, towards the end.
80. As also some other laws of the Barbarians.
81. Tit. 56.
82. Ibid.
83. This appears by what Tacitus says, Omnibus idem habitus. —— De Moribus Germanorum, 4.
84. Velleius Paterculus, ii. 118, says that the Germans decided all their disputes by the sword.
85. See the codes of Barbarian laws, and in respect to less ancient times, Beaumanoir, Ancient Custom of Beauvoisis.
86. Law of the Burgundians, cap. xlv.
87. See the works of Agobard.
88. See Beaumanoir, Ancient Customs of Beauvoisis, 61. See also the Law of the Angli, cap. xiv, where the trial by boiling water is only a subsidiary proof.
89. Tit. 14.
90. Cap. xxxi, ?5.
91. See this law, tit. 59, ?4, and tit. 67, ?5.
92. Law of the Lombards, ii, tit. 55, cap. xxxiv.
93. The year 962.
94. Law of the Lombards, ii, tit. 55, cap. xxxiv.
95. It was held in the year 967, in the presence of Pope John XIII and of the Emperor Otho I.
96. Otho II's uncle, son to Rodolphus, and King of Transjurian Burgundy.
97. In the year 988.
98. Law of the Lombards, ii, tit. 55, cap. xxxiv.
99. Ibid., ?33. In the copy that Muratori made use of it is attributed to the Emperor Guido.
100. Ibid., ?23.
101. Cassiodorus, iii. 23, 24.
102. The anonymous author of the life of Louis the Debonnaire.
103. See in the Law of the Lombards, i, tit. 4, and tit. 9, ?23, and ii, tit. 35 壯 4 and 5, and tit. 55 壯 1,2,3. The regulations of Rotharis; and in ?15, that of Luitprandus.
104. Ibid., ii, tit. 55, ?23.
105. The judicial oaths were made at that time in the churches, and during the first race of our kings there was a chapel set apart in the royal palace for the affairs that were to be thus decided. See Marculfus, Formul?i. 38. The Law of the Ripuarians, tit. 59, ?4, tit. 65, ?5. The History of Gregory of Tours; and the Capitulary of the year 803, added to the Salic Law.
106. Chapter 39, P. 212.
107. We find his Constitutions inserted in the Law of the Lombards, and at the end of the Salic Laws.
108. In a constitution inserted in the Law of the Lombards, ii, tit. 55, ?31.
109. In the year 1200.
110. Ancient Custom of Beauvoisis, 39.
111. Ibid., 61, pp. 309, 310.
112. Charter of Louis the Fat in the year 1145, in the Collection of Ordinances.
113. Ibid.
114. Charter of Louis the Young, in 1168, in the Collection of Ordinances.
115. See Beaumanoir, 63, p. 325.
116. See the Ancient Custom of Beauvoisis, 28, p. 203.
117. Additio sapientium Wilemari, tit. 5.
118. Book i, tit. 6, ?3.
119. Book ii, tit. 5, ?23.
120. Added to the Salic law in 819.
121. See Beaumanoir, 64, p. 328.
122. Ibid., p. 329.
123. See Beaumanoir, 3, p. 25 and 329.
124. See in regard to the arms of the combatants, Beaumanoir, 61, p. 308, and 64, p. 328.
125. Ibid., 74, p. 328. See also the Charters of St. Aubin of Anjou, quoted by Galland, p. 263.
126. Among the Romans, it was not infamous to be beaten with a stick.
127. They had only the baston and buckler. —— Beaumanoir, 64, p. 328.
128. Book i, tit. 6, ?1.
129. Ibid.; ?2.
130. De Moribus Germanorum, 6.
131. In the Pactus legis Salic? 6.
132. We have both the ancient law and that which was amended by this prince.
133. Book ii, tit. 55, ?11.
134. See the Greek romances of the middle age.
135. In the year 1283.
136. Beaumanoir, 6, pp. 40, 41.
137. Ibid., 64, p. 328.
138. Ibid., p. 330.
139. Ibid.
140. Ibid.
141. The great vassals had particular privileges.
142. Beaumanoir, 64, p. 330, says he lost his jurisdiction: these words in the authors of those days have not a general signification, but a signification limited to the affair in question. D嶨ontaines, 21, art. 29.
143. This custom, which we meet with in the Capitularies, was still subsisting at the time of Beaumanoir. See 61, p. 315.
144. Beaumanoir, 64, p. 330.
145. Ibid., 61, p. 309.
146. Ibid., p. 308; 43, p. 239.
147. Ibid., 61, p. 314. See also D嶨ontaines, 22, art. 24.
148. Beaumanoir, 63, p. 322.
149. Ibid.
150. Ibid.
151. Ibid., p. 323.
152. Ibid., 63, p. 324.
153. Ibid., p. 325.
154. Ibid.
155. Ibid., p. 323. See also what I have said in book
156. Ibid., p. 327.
157. D嶨ontaines, 22, art. 7.
158. Charter of Louis the Fat, in the year 1118.
159. Ibid.
160. Chapter 61, p. 315.
161. Chapter 6, p. 40.
162. But if the battle was fought by champions, the champion that was overcome had his hand cut off.
163. Tit. 16, ?2.
164. Tit. 45.
165. Letter to Louis the Debonnaire.
166. Life of St. Avitus.
167. Beaumanoir, 2, p. 22.
168. Ibid., 61, p. 312, and 67, p. 338.
169. Book ii. 15.
170. Beaumanoir, 61, pp. 310 and 311, and 67, p. 337.
171. Ibid., 61, p. 313.
172. Ibid., p. 314.
173. Ibid.
174. Chapter 22, art. 1, 10, and 11, he says only that each of them was allowed a small fine.
175. Beaumanoir, 61, p. 314.
176. Ibid. D嶨ontaines, 22, art. 9.
177. Ibid.
178. Beaumanoir, 61, p. 316, and D嶨ontaines, 22, art. 21.
179. Beaumanoir, 61, p. 314.
180. D嶨ontaines, 22, art. 7.
181. See D嶨ontaines, 21, arts. 11 and 12, and following, who distinguishes the cases in which the appellant of false judgment loses his life, the point contested, or only the imparlance.
182. Beaumanoir, 62, p. 322. D嶨ontaines, 22, art. 3.
183. The count was not obliged to lend any. Beaumanoir, 67, p. 337.
184. Nobody can pass judgment in his court. Ibid., pp. 336, 337.
185. Ibid., 62, p. 322.
186. D嶨ontaines, 21, arts. 27 and 28.
187. Ibid., art. 28.
188. Chapter 21, art. 37.
189. This number at least was necessary. D嶨ontaines, 21, art. 36.
190. Beaumanoir, 67, p. 337.
191. Ibid.
192. Ibid., pp. 337, 338.
193. D嶨ontaines, 22, art. 14.
194. Ibid.
195. Third capitulary of the year 812, art. 3, edition of Baluzius, p. 497, and of Charles the Bald, added to the law of the Lombards, ii, art. 3.
196. Third capitulary of the year 812, art. 2, edition of Baluzius, p. 497.
197. Capitulary of Louis the Debonnaire, edition of Baluzius, p. 667.
198. See the Capitulary of Charles the Bald, added to the law of the Lombards, ii, art. 3.
199. Third capitulary of the year 812, art. 8.
200. Placitum.
201. This appears by the formulas, charters, and the capitularies.
202. In the year 757, edition of Baluzius, p. 180, arts. 9 and 10, and the Synod apud Vernas, in the year 755, art. 29, edition of Baluzius, p. 175. These two capitularies were made under King Pepin.
203. The officers under the count, Scabini.
204. See the Law of the Lombards, ii, tit. 52, art. 22.
205. There are instances of appeals of default of justice as early as the time of Philip Augustus.
206. Chapter 61, p. 315.
207. Ibid.
208. D嶨ontaines, 21, art. 24.
209. Ibid., art. 32.
210. Beaumanoir, 61, p. 312.
211. D嶨ontaines, 21, art. 29.
212. This was the case in the famous difference between the Lord of Nesle and Joan, Countess of Flanders, during the reign of Louis VIII. He called upon her to have it tried within forty days, and thereupon challenged her at the king's court with default of justice. She answered that she would have it tried by her peers in Flanders. The king's court determined that it should not be sent there and that the countess should be cited.
213. D嶨ontaines, 21, art. 34.
214. Ibid., art. 9.
215. Beaumanoir, 61, p. 311.
216. Ibid., 61, p. 312. But he that was neither tenant nor vassal to the lord paid only a fine of sixty livres. —— Ibid.
217. Ibid., p. 318.
218. Chapter 21, art. 35.
219. In the year 1260.
220. Book i. 2, 7, and ii. 10, 11.
221. As appears everywhere in the Institutions, &c., and Beaumanoir, 61, p. 309.
222. Institutions, i. 6, ii. 15.
223. Ibid., ii. 15.
224. Ibid., i. 78, ii. 15.
225. Ibid., i. 78.
226. Ibid., ii. 15.
227. Ibid., i. 78.
228. Ibid., ii. 15.
229. But if they wanted to appeal without falsifying the judgment, the appeal was not admitted. —— Ibid.
230. Ibid., i. 6, 67; ii. 15; and Beaumanoir, 11, p. 58.
231. Book i. 1-3.
232. Chapter 22, arts. 16, 17.
233. Chapter 61, p. 309.
234. Ibid.
235. See Beaumanoir, D嶨ontaines, and the Institutions, ii. 10, 11, 15, and others.
236. See the ordinances at the beginning of the third race, in the collection of Lauri廨e, 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, ii, book iii, p. 35, and ibid., the ordinance of Philip Augustus, p. 7.
237. Chapter 63, p. 327: chapter 61, p. 312.
238. See the Institutions of St. Louis, ii. 15, and the Ordinance of Charles VII in the year 1453.
239. Chapter 21, arts. 21, 22.
240. Book i. 136.
241. Chapter 2, art. 8.
242. Ibid., 22, art. 7. This article, and the 21st of the 22nd chapter of the same author, have been hitherto very badly explained. D嶨ontaines 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.
243. Gentlemen may always be appointed judges. Ibid., 21, art. 48.
244. Ibid., 22, art. 14.
245. Ibid., 21, art. 33.
246. In the year 1332.
247. See the situation of things in Boutillier's time, who lived in the year 1402. —— Somme Rurale, i, pp. 19, 20.
248. See chapter 30.
249. Beaumanoir, 61, pp. 312 and 318.
250. Ibid.
251. D嶨ontaines, 21, art. 14.
252. Of the Parliaments of France, i. 16.
253. Chapter 61, p. 315.
254. As Beaumanoir says, chapter 39, p. 209.
255. They proved by witnesses what had been already done, said, or decreed in court.
256. Chapter 39, p. 218.
257. D嶨ontaines in his counsel, chapter 22, arts. 3, 8; and Beaumanoir, 33. Institutions, i. 90.
258. Chapter 22, art. 8.
259. At present when they are so inclined to appeal, says Boutillier —— Somme Rurale, i, tit. 3, p. 16, Paris, 1621.
260. In the year 1324.
261. Advocatus de parte public?
262. See this constitution and this formula, in the second volume of the Historians of Italy, p. 175.
263. Collection of Muratori, p. 104. on the 88th law of Charlemagne, i, tit. 26, ?78.
264. Another formula, ibid., p. 87.
265. Ibid., p. 104.
266. Ibid., p. 95.
267. Ibid., p. 88.
268. Ibid., p. 98.
269. Ibid., p. 132.
270. Ibid.
271. Ibid., p. 137.
272. Ibid., p. 147.
273. Ibid.
274. Ibid., p. 168.
275. Ibid., p. 134.
276. Ibid., p. 107.
277. Book i, 1; ii, 11, 13.
278. Chapters 1,61.
279. See these laws in the Lives of the Saints, of the month of June, iii, p. 26.
280. Preface to the Institutions.
281. Chapter 29.
282. See above, chapter 29.
283. Chapter 61, p. 309.
284. As he says himself, in his prologue.
285. Nothing so vague as the title 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 provostships of France; at length, they are the customs of the whole kingdom, Anjou, and the court of Barony.
286. Institutions, ii. 15,
287. See Du Tillet on the court of peers. See also Laroche, Flavin, Budeus and Paulus 讜ilius, i. 3.
288. Other causes were decided by the ordinary tribunals.
289. See the President Henault's excellent abridgment of the history of France in the year 1313.
290. Beaumanoir, 11, p. 58.
291. Widows, croises, &c. —— Ibid.
292. See the whole eleventh chapter of Beaumanoir.
293. 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 Lauri廨e.
294. Beaumanoir, 11, p. 60.
295. See Boutillier, Somme Rurale, tit. 9, what persons are incapable of suing in a temporal court; and Beaumanoir, 11, p. 56, and the regulations of Philip Augustus upon this subject; as also the regulation between Philip Augustus, the clergy, and the barons.
296. In the word "testamentary Executors."
297. March 19, 1409.
298. In Italy they followed Justinian's code; hence Pope John VIII, in his constitution 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 constitution was general.
299. This emperor's code was published towards the year 530.
300. Decretals, v. tit. de privilegiis, cap. 28, super specula.
301. By a charter in the year 1312, in favour of the university of Orleans, quoted by Du Tillet.
302. Ancient Custom of Beauvoisis, 1, "Of the Office of Bailiffs."
303. Among the common people the burghers were tried by burghers, as the feudatory tenants were tried by one another. See La Thaumassi鋨e, 19.
304. Thus all requests began with these words: "My lord judge, it is customary that in your court," &c, as appears from the formula quoted by Boutillier,Somme Rurale, i, tit. xxi.
305. 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: Yet nothing but feodal matters were tried any longer by the peers. Ibid., i, tit. i, p. 16.
306. As appears by the formula of the letters which their lord used to give them, quoted by Boutillier, Somme Rurale, I, tit. xiv, which is proved likewise by Beaumanoir, Ancient Custom of Beauvoisis, 1, 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 Institutions of St. Louis, i. 105, ii. 15.
307. Beaumanoir, 67, p. 336, and 61, pp. 315 and 316. The Institutions, ii. 15.
308. It was published in the year 1287.
309. See in what manner age and parentage were proved. —— Institutions, i. 71, 72.
310. Prologue to the Ancient Custom of Beauvoisis.
311. Chapter 12.
312. See the Collection of Ordinances, by Lauri鋨e.
313. This was observed at the digesting of the customs of Berry and of Paris. See La Thaumassi鋨e, 3.
St. Louis, seeing the abuses in the jurisprudence of his time, endeavoured 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 us[283] 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 every one 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 constitutes 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. D嶨ontaines, who is the oldest law writer we have, made great use of those Roman laws.[284] His work is, in some measure, a result from the ancient French jurisprudence, of the laws or Institutions 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 Institutions was compiled by some bailiffs, with the same design as that of the authors of those two Works, and especially of D嶨ontaines. The title 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 D嶨ontaines 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.[285]
It is manifest that the person who composed this work compiled the customs of the country together with the laws and Institutions of St. Louis. This is a very valuable work, because it contains the ancient customs of Anjou, the Institutions 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 D嶨ontaines 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 vassals or peers; the judgments without power of appealing to another tribunal; the manner of pronouncing sentence by these words "I condemn" or "I absolve,"[286] 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 principal 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 Institutions 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 constituted only the usages of a particular lordship formed a universal digest. By means of the Institutions, 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 Institutions 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,[287] it took cognizance only of disputes between the dukes, counts, barons, bishops, abbots, or between the king and his vassals,[288] 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. Jean de Monluc, in the reign of Philip the Fair, made a collection which at present is known by the name of the Olim registers.[289]
40. In what Manner the judiciary Forms were borrowed from the Decretals. But how comes it, some will ask, that when the Institutions 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 indifferently[290] and causes that were tried indifferently, in either court.[291] It seems[292] as if the temporal jurisdiction reserved no other cases exclusively to itself than the judgment of feudal matters,[293] and of such crimes committed by laymen as did not relate to religion. For[294] if on the 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 circumstances, 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.[295] 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,[296] by Ragau, the decree which it published against the Bishop of Amiens.[297]
I return to the beginning of my chapter. Whenever we observe in any age or government the different bodies of the state endeavouring to increase their authority, and to take particular advantages of each other, we should be often mistaken were we to consider their encroachments 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 class 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 favourably 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;[298] because Justinian's laws were not made till after the settlement of the Barbarians in Gaul.[299] This law met with some opposition: but it stood its ground notwithstanding the excommunications of the popes, who supported their own canons.[300] St Louis endeavoured to bring it into repute by the translations of Justinian's works, made according to his orders, which are still in manuscript in our libraries; and I have already observed that they made great use of them in compiling the Institutions. 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.[301]
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;[302] in some places they tried by peers,[303] 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.[304] This whole proceeding required neither learning, capacity, nor study. But when the dark code of the Institutions 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 practitioners 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 assemble them; especially as the new form of trial, instead of being a solemn proceeding, agreeable to the nobility 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;[305] that of trying, by bailiffs to be more so; the bailiffs did not give judgment themselves,[306] they summed up the evidence and pronounced 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 pronounced by a single person, as may be seen in the Salic laws, the capitularies, and in the first law-writers under the third race.[307] 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 nobility 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.[308] 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 assigned 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." The immunities of the clergy in those days are very well known.
We must not imagine that the privileges which the nobility 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;[309] public registers were established, which ascertained most facts, as nobility, 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 lordship constituted the civil law. Every lordship had its civil law, according to Beaumanoir,[310] 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 lordships 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:[311] 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 institutions of Philip Augustus and those made by St. Louis. In like manner the great vassals, in concurrence with the lords who held under them, granted certain charters or establishments, according to particular circumstances at the assizes of their duchies or counties; such were the assize of Godfrey, Count of Brittany, on the division of the nobles; 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 enfranchisement; those charters formed a part of our customs, and this part was reduced to writing.[312]
3. Under the reign of St. Louis, and of the succeeding princes, some able practitioners, such as D嶨ontaines, 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 lordship to declare in the general assembly of the province the written or unwritten usages of each place, endeavours were made to render the customs more general, as much as possible, without injuring the interests of individuals, which were carefully preserved.[313] Thus our customs were characterised 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 principal study of those who were designed for civil employments, 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 amusements 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 antiquarian[314] who set out from his own country, arrived in Egypt, cast an eye on. the pyramids and returned home.
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1. 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.
2. See Gregory of Tours.
3. See the prologue to the Law of the Bavarians, and that to the Salic Law.
4. Ibid.
5. Lex Angliorum Werinorum, hoc est Thuringorum.
6. They did not know how to write.
7. 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.
8. See the prologue to the Law of the Bavarians.
9. We find only a few in Childebert's decree.
10. See the prologue to the Code of the Burgundians, and the code itself, especially tit. 12, ?5, and tit. 38. See also Gregory of Tours, ii. 33, and the code of the Visigoths.
11. See lower down, chapter 3.
12. See cap. ii. 壯 8 and 9, and cap. iv. 壯 2 and 7.
13. De Bello Gall., vi.
14. Book i, formul. 8.
15. Chapter 31.
16. That of Clotarius in the year 560, in the edition of the Capitularies of Baluzius, i, art. 4, ib. in fine.
17. Capitularies added to the Law of the Lombards, i, tit. 25, 71, ii, tit. 41, 7, and tit. 56, 1, 2.
18. Ibid., ii, tit. 5.
19. Ibid., ii, tit. 7, 1.
20. Ibid., 2.
21. Ibid., ii, tit. 35, 2.
22. In the Law of the Lombards, ii, tit. 37.
23. Salic Law, tit. 44, ?1.
24. Ibid., tit. 44, 壯 15, 7.
25. Ibid., tit. 41, ?4.
26. Ibid., ?6.
27. The principal 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.
28. Salic Law, tit. 45.
29. Lidus whose condition was better than that of a bondman. —— Law of the Alemans, 95.
30. Tit. 35, 壯 3, 4.
31. The Abb?du Bos.
32. Witness the expedition of Arbogastes, in Gregory of Tours, History, ii.
33. The Franks, the Visigoths, and Burgundians.
34. It was finished in 438.
35. The 20th year of the reign of this prince, and published two years after by Anian, as appears from the preface to that code.
36. The year 504 of the Spanish era, the Chronicle of Isidorus.
37. Francum, aut Barbarum, aut hominem qui Salica lege vivit. —— Salic Law, tit. 45, ?1.
38. "According to the Roman law under which the church lives," as is said in the law of the Ripuarians, tit. 58, ?1. See also the numberless authorities on this head pronounced by Du Cange, under the words Lex Romana.
39. See the Capitularies added to the Salic law in Lindembrock, at the end of that law, and the different codes of the laws of the Barbarians concerning the privileges of ecclesiastics in this respect. See also the letter of Charlemagne to his son Pepin, King of Italy, in the year 807, in the edition of Baluzius, i, 462, where it is said, that an ecclesiastic should receive a triple compensation; and the Collection of the Capitularies, v, art. 302, i. Edition of Baluzius.
40. See that law.
41. Of this I shall speak in another place, xxx. 6-9.
42. Agobard, Opera.
43. See Gervais of Tilbury, in Duchesne's Collection, iii, p. 366. And a chronicle of the year 759, produced by Catel, Hist. of Languedoc. And the uncertain author of the Life of Louis the Debonnaire, upon the demand made by the people of Septimania, at the assembly in Carisiaco, in Duchesne's Collection, ii, p. 316.
44. Art. 16. See also art. 20.
45. See arts. 12 and 16 of the edict of Pistes in Cavilono, in Narbona, &c.
46. See what Machiavelli says of the ruin of the ancient nobility of Florence.
47. He began to reign in the year 642.
48. "We will no longer be harassed either by foreign or by the Roman laws." —— Law of the Visigoths, ii, tit. 1, 壯 9, 10.
49. Law of the Visigoths, iii, tit. 1, 1.
50. See Book iv. 19, 26.
51. The revolt of these provinces was a general defection, as appears by the sentence in the sequel of the history. Paulus and his adherents were Romans; they were even favoured by the bishops. Vamba durst not put to death the rebels whom he had quelled. The author of the history calls Narbonne Gaul the nursery of treason.
52. De Bello Gothorum, i. 13.
53. Capitularies, vi, 343, year 1613, edition of Baluzius, i, p. 981.
54. M. de la Thaumassi鋨e has collected many of them. See, for instance, chapters 41, 46, and others.
55. Missi Dominici.
56. Let not the bishops, says Charles the Bald, in the Capitulary of 844, art. 8, under pretence of the authority of making canons, oppose this constitution, or neglect the observance of it. It seems he already foresaw the fall thereof.
57. In the collection of canons a vast number of the decretals of the popes were inserted; they were very few in the ancient collection. Dionysius Exiguus put a great many into his; but that of Isidorus Mercator was stuffed with genuine and spurious decretals. The old collection obtained in France till Charlemagne. This prince received from the hand of Pope Adrian I the collection of Dionysius Exiguus, and caused it to be accepted. The collection of Isidorus Mercator appeared in France about the reign of Charlemagne; people grew passionately fond of it: to this succeeded what we now call the course of canon law.
58. See the edict of Pistes, art. 20.
59. This is expressly set down in some preambles to these codes: we even find in the laws of the Saxons and Frisians different regulations, according to the different districts. To these usages were added some particular regulations suitable to the exigency of circumstances; such were the severe laws against the Saxons.
60. Of this I shall speak elsewhere （xxx. 14）.
61. Preface to Marculfus, Formul?
62. Law of the Lombards, ii, tit. 58, ?3.
63. Ibid., tit. 41, ?6.
64. Life of St. Leger.
65. Law of the Lombards, ii, tit. 41, ?6.
66. See chapter 5.
67. This relates to what Tacitus says. De Moribus Germanorum, 28, that the Germans had general and particular customs.
68. Law of the Ripuarians, tit. 6, 7, 8, and others.
69. Ibid., tit. 11, 12, 17.
70. It was when an accusation was brought against an Antrustio, that is, the king's vassal, who was supposed to be possessed of a greater degree of liberty. See Pactus legis Salic? tit. 76.
71. Ibid.
72. According to the practice now followed in England.
73. Tit. 32; tit. 57, ?2; tit. 59, ?4.
74. See the following note.
75. This spirit appears in the Law of Ripuarians, tit. 59, ?4, and tit. 67, ?5, and in the Capitulary of Louis the Debonnaire, added to the law of the Ripuarians in the year 803, art. 22.
76. See that law.
77. The law of the Frisians, Lombards, Bavarians, Saxons, Thuringians, and Burgundians.
78. In the Law of the Burgundians, tit. 8, 壯 1 and 2, on criminal affairs; and tit. 45, which extends also to civil affairs. See also the law of the Thuringians, tit. 1, ?31; tit. 7, ?6; and tit. 8; and the law of the Alemans, tit. 89; the law of the Bavarians, tit. 8, cap. ii, ?6, and cap. iii, ?1, and tit. 9, cap. iv, ?4; the law of the Frisians, tit. 2, ?3, and tit. 14, ?4; the law of the Lombards, i, tit. 32, ?3, and tit. 35, ?1, and ii, tit. 35, ?2.
79. See cap. xviii, towards the end.
80. As also some other laws of the Barbarians.
81. Tit. 56.
82. Ibid.
83. This appears by what Tacitus says, Omnibus idem habitus. —— De Moribus Germanorum, 4.
84. Velleius Paterculus, ii. 118, says that the Germans decided all their disputes by the sword.
85. See the codes of Barbarian laws, and in respect to less ancient times, Beaumanoir, Ancient Custom of Beauvoisis.
86. Law of the Burgundians, cap. xlv.
87. See the works of Agobard.
88. See Beaumanoir, Ancient Customs of Beauvoisis, 61. See also the Law of the Angli, cap. xiv, where the trial by boiling water is only a subsidiary proof.
89. Tit. 14.
90. Cap. xxxi, ?5.
91. See this law, tit. 59, ?4, and tit. 67, ?5.
92. Law of the Lombards, ii, tit. 55, cap. xxxiv.
93. The year 962.
94. Law of the Lombards, ii, tit. 55, cap. xxxiv.
95. It was held in the year 967, in the presence of Pope John XIII and of the Emperor Otho I.
96. Otho II's uncle, son to Rodolphus, and King of Transjurian Burgundy.
97. In the year 988.
98. Law of the Lombards, ii, tit. 55, cap. xxxiv.
99. Ibid., ?33. In the copy that Muratori made use of it is attributed to the Emperor Guido.
100. Ibid., ?23.
101. Cassiodorus, iii. 23, 24.
102. The anonymous author of the life of Louis the Debonnaire.
103. See in the Law of the Lombards, i, tit. 4, and tit. 9, ?23, and ii, tit. 35 壯 4 and 5, and tit. 55 壯 1,2,3. The regulations of Rotharis; and in ?15, that of Luitprandus.
104. Ibid., ii, tit. 55, ?23.
105. The judicial oaths were made at that time in the churches, and during the first race of our kings there was a chapel set apart in the royal palace for the affairs that were to be thus decided. See Marculfus, Formul?i. 38. The Law of the Ripuarians, tit. 59, ?4, tit. 65, ?5. The History of Gregory of Tours; and the Capitulary of the year 803, added to the Salic Law.
106. Chapter 39, P. 212.
107. We find his Constitutions inserted in the Law of the Lombards, and at the end of the Salic Laws.
108. In a constitution inserted in the Law of the Lombards, ii, tit. 55, ?31.
109. In the year 1200.
110. Ancient Custom of Beauvoisis, 39.
111. Ibid., 61, pp. 309, 310.
112. Charter of Louis the Fat in the year 1145, in the Collection of Ordinances.
113. Ibid.
114. Charter of Louis the Young, in 1168, in the Collection of Ordinances.
115. See Beaumanoir, 63, p. 325.
116. See the Ancient Custom of Beauvoisis, 28, p. 203.
117. Additio sapientium Wilemari, tit. 5.
118. Book i, tit. 6, ?3.
119. Book ii, tit. 5, ?23.
120. Added to the Salic law in 819.
121. See Beaumanoir, 64, p. 328.
122. Ibid., p. 329.
123. See Beaumanoir, 3, p. 25 and 329.
124. See in regard to the arms of the combatants, Beaumanoir, 61, p. 308, and 64, p. 328.
125. Ibid., 74, p. 328. See also the Charters of St. Aubin of Anjou, quoted by Galland, p. 263.
126. Among the Romans, it was not infamous to be beaten with a stick.
127. They had only the baston and buckler. —— Beaumanoir, 64, p. 328.
128. Book i, tit. 6, ?1.
129. Ibid.; ?2.
130. De Moribus Germanorum, 6.
131. In the Pactus legis Salic? 6.
132. We have both the ancient law and that which was amended by this prince.
133. Book ii, tit. 55, ?11.
134. See the Greek romances of the middle age.
135. In the year 1283.
136. Beaumanoir, 6, pp. 40, 41.
137. Ibid., 64, p. 328.
138. Ibid., p. 330.
139. Ibid.
140. Ibid.
141. The great vassals had particular privileges.
142. Beaumanoir, 64, p. 330, says he lost his jurisdiction: these words in the authors of those days have not a general signification, but a signification limited to the affair in question. D嶨ontaines, 21, art. 29.
143. This custom, which we meet with in the Capitularies, was still subsisting at the time of Beaumanoir. See 61, p. 315.
144. Beaumanoir, 64, p. 330.
145. Ibid., 61, p. 309.
146. Ibid., p. 308; 43, p. 239.
147. Ibid., 61, p. 314. See also D嶨ontaines, 22, art. 24.
148. Beaumanoir, 63, p. 322.
149. Ibid.
150. Ibid.
151. Ibid., p. 323.
152. Ibid., 63, p. 324.
153. Ibid., p. 325.
154. Ibid.
155. Ibid., p. 323. See also what I have said in book
156. Ibid., p. 327.
157. D嶨ontaines, 22, art. 7.
158. Charter of Louis the Fat, in the year 1118.
159. Ibid.
160. Chapter 61, p. 315.
161. Chapter 6, p. 40.
162. But if the battle was fought by champions, the champion that was overcome had his hand cut off.
163. Tit. 16, ?2.
164. Tit. 45.
165. Letter to Louis the Debonnaire.
166. Life of St. Avitus.
167. Beaumanoir, 2, p. 22.
168. Ibid., 61, p. 312, and 67, p. 338.
169. Book ii. 15.
170. Beaumanoir, 61, pp. 310 and 311, and 67, p. 337.
171. Ibid., 61, p. 313.
172. Ibid., p. 314.
173. Ibid.
174. Chapter 22, art. 1, 10, and 11, he says only that each of them was allowed a small fine.
175. Beaumanoir, 61, p. 314.
176. Ibid. D嶨ontaines, 22, art. 9.
177. Ibid.
178. Beaumanoir, 61, p. 316, and D嶨ontaines, 22, art. 21.
179. Beaumanoir, 61, p. 314.
180. D嶨ontaines, 22, art. 7.
181. See D嶨ontaines, 21, arts. 11 and 12, and following, who distinguishes the cases in which the appellant of false judgment loses his life, the point contested, or only the imparlance.
182. Beaumanoir, 62, p. 322. D嶨ontaines, 22, art. 3.
183. The count was not obliged to lend any. Beaumanoir, 67, p. 337.
184. Nobody can pass judgment in his court. Ibid., pp. 336, 337.
185. Ibid., 62, p. 322.
186. D嶨ontaines, 21, arts. 27 and 28.
187. Ibid., art. 28.
188. Chapter 21, art. 37.
189. This number at least was necessary. D嶨ontaines, 21, art. 36.
190. Beaumanoir, 67, p. 337.
191. Ibid.
192. Ibid., pp. 337, 338.
193. D嶨ontaines, 22, art. 14.
194. Ibid.
195. Third capitulary of the year 812, art. 3, edition of Baluzius, p. 497, and of Charles the Bald, added to the law of the Lombards, ii, art. 3.
196. Third capitulary of the year 812, art. 2, edition of Baluzius, p. 497.
197. Capitulary of Louis the Debonnaire, edition of Baluzius, p. 667.
198. See the Capitulary of Charles the Bald, added to the law of the Lombards, ii, art. 3.
199. Third capitulary of the year 812, art. 8.
200. Placitum.
201. This appears by the formulas, charters, and the capitularies.
202. In the year 757, edition of Baluzius, p. 180, arts. 9 and 10, and the Synod apud Vernas, in the year 755, art. 29, edition of Baluzius, p. 175. These two capitularies were made under King Pepin.
203. The officers under the count, Scabini.
204. See the Law of the Lombards, ii, tit. 52, art. 22.
205. There are instances of appeals of default of justice as early as the time of Philip Augustus.
206. Chapter 61, p. 315.
207. Ibid.
208. D嶨ontaines, 21, art. 24.
209. Ibid., art. 32.
210. Beaumanoir, 61, p. 312.
211. D嶨ontaines, 21, art. 29.
212. This was the case in the famous difference between the Lord of Nesle and Joan, Countess of Flanders, during the reign of Louis VIII. He called upon her to have it tried within forty days, and thereupon challenged her at the king's court with default of justice. She answered that she would have it tried by her peers in Flanders. The king's court determined that it should not be sent there and that the countess should be cited.
213. D嶨ontaines, 21, art. 34.
214. Ibid., art. 9.
215. Beaumanoir, 61, p. 311.
216. Ibid., 61, p. 312. But he that was neither tenant nor vassal to the lord paid only a fine of sixty livres. —— Ibid.
217. Ibid., p. 318.
218. Chapter 21, art. 35.
219. In the year 1260.
220. Book i. 2, 7, and ii. 10, 11.
221. As appears everywhere in the Institutions, &c., and Beaumanoir, 61, p. 309.
222. Institutions, i. 6, ii. 15.
223. Ibid., ii. 15.
224. Ibid., i. 78, ii. 15.
225. Ibid., i. 78.
226. Ibid., ii. 15.
227. Ibid., i. 78.
228. Ibid., ii. 15.
229. But if they wanted to appeal without falsifying the judgment, the appeal was not admitted. —— Ibid.
230. Ibid., i. 6, 67; ii. 15; and Beaumanoir, 11, p. 58.
231. Book i. 1-3.
232. Chapter 22, arts. 16, 17.
233. Chapter 61, p. 309.
234. Ibid.
235. See Beaumanoir, D嶨ontaines, and the Institutions, ii. 10, 11, 15, and others.
236. See the ordinances at the beginning of the third race, in the collection of Lauri廨e, 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, ii, book iii, p. 35, and ibid., the ordinance of Philip Augustus, p. 7.
237. Chapter 63, p. 327: chapter 61, p. 312.
238. See the Institutions of St. Louis, ii. 15, and the Ordinance of Charles VII in the year 1453.
239. Chapter 21, arts. 21, 22.
240. Book i. 136.
241. Chapter 2, art. 8.
242. Ibid., 22, art. 7. This article, and the 21st of the 22nd chapter of the same author, have been hitherto very badly explained. D嶨ontaines 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.
243. Gentlemen may always be appointed judges. Ibid., 21, art. 48.
244. Ibid., 22, art. 14.
245. Ibid., 21, art. 33.
246. In the year 1332.
247. See the situation of things in Boutillier's time, who lived in the year 1402. —— Somme Rurale, i, pp. 19, 20.
248. See chapter 30.
249. Beaumanoir, 61, pp. 312 and 318.
250. Ibid.
251. D嶨ontaines, 21, art. 14.
252. Of the Parliaments of France, i. 16.
253. Chapter 61, p. 315.
254. As Beaumanoir says, chapter 39, p. 209.
255. They proved by witnesses what had been already done, said, or decreed in court.
256. Chapter 39, p. 218.
257. D嶨ontaines in his counsel, chapter 22, arts. 3, 8; and Beaumanoir, 33. Institutions, i. 90.
258. Chapter 22, art. 8.
259. At present when they are so inclined to appeal, says Boutillier —— Somme Rurale, i, tit. 3, p. 16, Paris, 1621.
260. In the year 1324.
261. Advocatus de parte public?
262. See this constitution and this formula, in the second volume of the Historians of Italy, p. 175.
263. Collection of Muratori, p. 104. on the 88th law of Charlemagne, i, tit. 26, ?78.
264. Another formula, ibid., p. 87.
265. Ibid., p. 104.
266. Ibid., p. 95.
267. Ibid., p. 88.
268. Ibid., p. 98.
269. Ibid., p. 132.
270. Ibid.
271. Ibid., p. 137.
272. Ibid., p. 147.
273. Ibid.
274. Ibid., p. 168.
275. Ibid., p. 134.
276. Ibid., p. 107.
277. Book i, 1; ii, 11, 13.
278. Chapters 1,61.
279. See these laws in the Lives of the Saints, of the month of June, iii, p. 26.
280. Preface to the Institutions.
281. Chapter 29.
282. See above, chapter 29.
283. Chapter 61, p. 309.
284. As he says himself, in his prologue.
285. Nothing so vague as the title 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 provostships of France; at length, they are the customs of the whole kingdom, Anjou, and the court of Barony.
286. Institutions, ii. 15,
287. See Du Tillet on the court of peers. See also Laroche, Flavin, Budeus and Paulus 讜ilius, i. 3.
288. Other causes were decided by the ordinary tribunals.
289. See the President Henault's excellent abridgment of the history of France in the year 1313.
290. Beaumanoir, 11, p. 58.
291. Widows, croises, &c. —— Ibid.
292. See the whole eleventh chapter of Beaumanoir.
293. 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 Lauri廨e.
294. Beaumanoir, 11, p. 60.
295. See Boutillier, Somme Rurale, tit. 9, what persons are incapable of suing in a temporal court; and Beaumanoir, 11, p. 56, and the regulations of Philip Augustus upon this subject; as also the regulation between Philip Augustus, the clergy, and the barons.
296. In the word "testamentary Executors."
297. March 19, 1409.
298. In Italy they followed Justinian's code; hence Pope John VIII, in his constitution 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 constitution was general.
299. This emperor's code was published towards the year 530.
300. Decretals, v. tit. de privilegiis, cap. 28, super specula.
301. By a charter in the year 1312, in favour of the university of Orleans, quoted by Du Tillet.
302. Ancient Custom of Beauvoisis, 1, "Of the Office of Bailiffs."
303. Among the common people the burghers were tried by burghers, as the feudatory tenants were tried by one another. See La Thaumassi鋨e, 19.
304. Thus all requests began with these words: "My lord judge, it is customary that in your court," &c, as appears from the formula quoted by Boutillier,Somme Rurale, i, tit. xxi.
305. 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: Yet nothing but feodal matters were tried any longer by the peers. Ibid., i, tit. i, p. 16.
306. As appears by the formula of the letters which their lord used to give them, quoted by Boutillier, Somme Rurale, I, tit. xiv, which is proved likewise by Beaumanoir, Ancient Custom of Beauvoisis, 1, 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 Institutions of St. Louis, i. 105, ii. 15.
307. Beaumanoir, 67, p. 336, and 61, pp. 315 and 316. The Institutions, ii. 15.
308. It was published in the year 1287.
309. See in what manner age and parentage were proved. —— Institutions, i. 71, 72.
310. Prologue to the Ancient Custom of Beauvoisis.
311. Chapter 12.
312. See the Collection of Ordinances, by Lauri鋨e.
313. This was observed at the digesting of the customs of Berry and of Paris. See La Thaumassi鋨e, 3.