Book XXVIII.
Of the Origin and Revolutions of the Civil Laws among
the French.
28.1. 1. Different Character of the Laws of the several People of Germany.
After the Franks had quitted their own country, they made a compilation
of the Salic laws with the assistance of the sages of their own
nation.
[1]2
The tribe of the Ripuarian Franks having joined itself under
Clovis
[2]
to that of the Salians preserved its own customs; and
Theodoric,
[3]
King of Austrasia, ordered them to be reduced to writing.
He collected likewise the customs of those Bavarians and Germans, who
were dependent on his kingdom.
[4]
For Germany having been weakened by
the migration of such a multitude of people, the Franks, after
conquering all before them, made a retrograde march and extended their
dominion into the forests of their ancestors. Very likely the Thuringian
code was given by the same Theodoric, since the Thuringians were also
his subjects.
[5]
As the Frisians were subdued by Charles Martel and
Pepin, their law cannot be prior to those princes.
[6]
Charlemagne, the
first that reduced the Saxons, gave them the law still extant; and we
need only read these last two codes to be convinced they came from the
hands of conquerors. As soon as the Visigoths, the Burgundians, and the
Lombards had founded their respective kingdoms, they reduced their laws
to writing, not with an intent of obliging the vanquished nations to
conform to their customs, but with a design of following them
themselves.
There is an admirable simplicity in the Salic and Ripuarian laws, as
well as in those of the Alemans, Bavarians, Thuringians, and Frisians.
They breathe an original coarseness and a spirit which no change or
corruption of manners had weakened. They received but very few
alterations, because all those people, except the Franks, remained in
Germany. Even the Franks themselves laid there the foundation of a great
part of their empire, so that they had none but German laws. The same
cannot be said of the laws of the Visigoths, of the Lombards and
Burgundians; their character considerably altered from the great change
which happened in the character of those people after they had settled
in their new habitations.
The kingdom of the Burgundians did not last long enough to admit of
great changes in the laws of the conquering nation. Gundebald and
Sigismond, who collected their customs, were almost the last of their
kings. The laws of the Lombards received additions rather than changes.
The laws of Rotharis were followed by those of Grimoaldus, Luitprandus,
Rachis, and Astulphus, but did not assume a new form. It was not so with
the laws of the Visigoths;
[7]
their kings new-moulded them, and had them
also new-moulded by the clergy.
The kings indeed of the first race struck out of the Salic and
Ripuarian laws whatever was absolutely inconsistent with Christianity,
but left the main part untouched.
[8]
This cannot be said of the laws of
the Visigoths.
The laws of the Burgundians, and especially those of the Visigoths,
admitted of corporal punishments; these were not tolerated by the Salic
and Ripuarian laws;
[9]
they preserved their character much better.
The Burgundians and Visigoths, whose provinces were greatly exposed,
endeavoured to conciliate the affections of the ancient inhabitants, and
to give them the most impartial civil laws;
[10]
but as the Kings of the
Franks had established their power, they had no such considerations.
[11]
The Saxons, who lived under the dominion of the Franks, were of an
intractable temper, and prone to revolt. Hence we find in their laws the
severities of a conqueror,
[12]
which are not to be met with in the other
codes of the laws of the barbarians.
We see the spirit of the German laws in the pecuniary punishments,
and the spirit of a conqueror in those of an afflictive nature.
The crimes they commit in their own country are subject to corporal
punishment; and the spirit of the German laws is followed only in the
punishment of crimes committed beyond the extent of their own territory.
They are plainly told that their crimes shall meet with no mercy,
and they are refused even the asylum of churches.
The bishops had an immense authority at the court of the Visigoth
Kings, the most important affairs being debated in councils. All the
maxims, principles and views of the present inquisition are owing to the
code of the Visigoths; and the monks have only copied against the Jews
the laws formerly enacted by bishops.
In other respects the laws of Gundebald for the Burgundians seem
pretty judicious; and those of Rotharis, and of the other Lombard
princes, are still more so. But the laws of the Visigoths, those for
instance of Recessuinthus, Chaindasuinthus, and Egigas are puerile,
ridiculous and foolish; they attain not their end; they are stuffed with
rhetoric and void of sense, frivolous in the substance and bombastic in
the style.
Footnotes
[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.
[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, section 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, sections 8 and 9, and cap. iv, sections 2 and 7.
28.2. 2. That the Laws of the Barbarians were all personal.
It is a distinguishing character of these laws of the barbarians that they were
not confined to a certain district; the Frank was tried by the law of
the Franks, the Aleman by that of the Alemans, the Burgundian by that of
the Burgundians, and the Roman by the Roman law; nay, so far were the
conquerors in those days from reducing their laws to a uniform system or
body, that they did not even think of becoming legislators to the people
they had conquered.
The original of this I find in the manners of the Germans. These
people were parted asunder by marshes, lakes, and forests; and Cæsar
observes
[13]
they were fond of such separations. Their dread of the
Romans brought about their reunion; and yet each individual among these
mixed people was still to be tried by the established customs of his own
nation. Each tribe apart was free and independent; and when they came to
be intermixed, the independence still continued; the country was common,
the government peculiar; the territory the same, and the nations
different. The spirit of personal laws prevailed therefore among those
people before ever they set out from their own homes, and they carried
it with them into the conquered provinces.
We find this custom established in the formulas of Marculfus,
[14]
in
the codes of the laws of the barbarians, but chiefly in the law of the
Ripuarians
[15]
and the decrees of the kings of the first race,
[16]
whence the capitularies on that subject in the second race were
derived.
[17]
The children followed the laws of their father,
[18]
the
wife that of her husband,
[19]
the widow came back to her own original
law,
[20]
and the freedman was under that of his patron.
[21]
Besides,
every man could make choice of what laws he pleased; but the
constitution of Lotharius I
[22]
required that this choice should be made
public.
Footnotes
[13]
"De Bello Gall.," lib. vi.
[16]
That of Clotarius in the year 560, in the edition of the
"Capitularies of Baluzius," vol. i, art. 4, ib. in fine.
[17]
Capitularies added to the "Law of the Lombards," lib. i, tit. 25, cap. 71,
lib. ii, tit. 41, cap. 7, and tit. 56, chaps. 1 and 2.
[18]
Ibid., lib. ii, tit. 5.
[19]
Ibid., ii, tit. 7, chap. 1.
[21]
Ibid., lib. ii, tit. 35, chap. 2.
[22]
In the "Law of the Lombards," lib. ii, tit. 37.
28.3. 3. Capital Difference between the Salic Laws and those of the
Visigoths and Burgundians.
We have already observed that the laws of the
Burgundians and Visigoths were impartial; but it was otherwise with
regard to the Salic law, for it established between the Franks and
Romans the most mortifying distinctions. When a Frank, a barbarian, or
one living under the Salic law happened to be killed, a composition of
200 sols was to be paid to his relatives;
[23]
only 100 upon the killing
of a Roman proprietor,
[24]
and no more than forty-five for a Roman
tributary. The composition for the murder of one of the king's vassals,
if a Frank, was 600 sols;
[25]
if a Roman, though the king's guest,
[26]
only 300.
[27]
The Salic law made therefore a cruel distinction between
the Frank and Roman lord, and the Frank and Roman commoner.
Further, if a number of people were got together to assault a Frank
in his house,
[28]
and he happened to be killed, the Salic law ordained a
composition of 600 sols; but if a Roman or a freedman was assaulted,
only one-half that composition.
[29]
By the same law,
[30]
if a Roman put
a Frank in irons, he was liable to a composition of 30 sols; but if a
Frank had thus used a Roman, he paid only 15. A Frank, stripped by a
Roman, was entitled to the composition of 62 1/2 sols, and a Roman
stripped by a Frank received only 30. Such unequal treatment must needs
have been very grievous to a Roman.
And yet a celebrated author
[31]
forms a system of the establishment of the Franks in Gaul, on a supposition
that they were the best friends of the Romans. The Franks then, the best
friends of the Romans, they who did, and they who suffered from the Romans
such an infinite deal of mischief!
[32]
The Franks, the friends of the Romans, they who, after
subduing them by their arms, oppressed them in cold blood by their laws!
They were exactly the friends of the Romans as the Tartars who conquered
China were the friends of the Chinese. If some Catholic bishops thought
fit to make use of the Franks in destroying the Arian Kings, does it
follow that they had a desire of living under those barbarous people?
And can we hence conclude that the Franks had any particular regard for
the Romans? I should draw quite different consequences; the less the
Franks had to fear from the Romans, the less indulgence they showed
them.
The Abbé du Bos has consulted but indifferent authorities for his
history, such as poets and orators; works of parade and ostentation are
improper foundations for building systems.
Footnotes
[23]
Salic Law, tit. 44, section 1.
[24]
Ibid., tit. 44, section 15.
[25]
Ibid., tit. 41, section 4.
[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.
[29]
Lidus whose condition was better than that of a bondman. — "Law
of the Alemans," chap. 95.
[30]
Tit. 35, sections 3 and 4.
[32]
Witness the expedition of Arbogastes, in Gregory of Tours,
"History," lib. ii.
28.4. 4. In what manner the Roman Law came to be lost in the Country
subject to the Franks, and preserved in that subject to the Goths and
Burgundians.
What has been above said will throw some light upon other
things, which have hitherto been involved in great obscurity.
The country at this day called France was under the first race
governed by the Roman law, or the Theodosian code, and by the different
laws of the Barbarians,
[33]
who settled in those parts.
In the country subject to the Franks, the Salic law was established
for the Franks, and the Theodosian code
[34]
for the Romans. In that
subject to the Visigoths, a compilation of the Theodosian code, made by
order of Alaric,
[35]
regulated disputes among the Romans; and the
national customs, which Euric caused to be reduced to writing,
[36]
determined those among the Visigoths. But how comes it, some will say,
that the Salic laws gained almost a general authority in the country of
the Franks, and the Roman law gradually declined; whilst in the
jurisdiction of the Visigoths the Roman law spread itself, and obtained
at last a general sway?
My answer is that the Roman law came to be disused among the Franks
because of the great advantages accruing from being a Frank, a
Barbarian,
[37]
or a person living under the Salic law; every one, in
that case, readily quitting the Roman to live under the Salic law.
The clergy alone retained it,
[38]
as a change would be of no
advantage to them. The difference of conditions and ranks consisted only
in the largeness of the composition, as I shall show in another place.
Now particular laws
[39]
allowed the clergy as favourable compositions as
those of the Franks, for which reason they retained the Roman law. This
law brought no hardships upon them; and in other respects it was most
proper for them, as it was the work of Christian emperors.
On the other hand, in the patrimony of the Visigoths, as the
Visigoth law
[40]
gave no civil advantages to the Visigoths over the
Romans, the latter had no reason to discontinue living under their own
law in order to embrace another. They retained therefore their own laws
without adopting those of the Visigoths.
This is still further confirmed in proportion as we proceed in our
inquiry. The law of Gundebald was extremely impartial, not favouring the
Burgundians more than the Romans. It appears by the preamble to that law
that it was made for the Burgundians, and to regulate the disputes which
might arise between them and the Romans; and in the latter case the
judges were equally divided of a side. This was necessary for particular
reasons, drawn from the political regulations of those times.
[41]
The Roman law was continued in Burgundy, in order to regulate the disputes
of Romans among themselves. The latter had no inducement to quit their
own law, as in the country of the Franks; and rather as the Salic law
was not established in Burgundy, as appears by the famous letter which
Agobard wrote to Louis the Pious.
Agobard
[42]
desired that prince to establish the Salic law in
Burgundy; consequently it had not been established there at that time.
Thus the Roman law did, and still does subsist in so many provinces,
which formerly depended on this kingdom.
The Roman and Gothic laws continued likewise in the country of the
establishment of the Goths, where the Salic law was never received. When
Pepin and Charles Martel expelled the Saracens, the towns and provinces
which submitted to these princes petitioned for a continuance of their
own laws and obtained it;
[43]
this, in spite of the usages of those
times, when all laws were personal, soon made the Roman law to be
considered as a real and territorial law in those countries.
This appears by the edict of Charles the Bald, given at Pistes in
the year 864, which distinguishes the countries where causes were
decided by the Roman law from where it was otherwise.
[44]
The edict of Pistes shows two things; one, that there were countries
where causes were decided by the Roman law, and others where they were
not; and the other, that those countries where the Roman law obtained
were precisely the same where it is still followed at this very day, as
appears by the said edict:
[45]
thus the distinction of the provinces of
France under custom and those under written law was already established
at the time of the edict of Pistes.
I have observed that in the beginning of the monarchy all laws were
personal; and thus when the edict of Pistes distinguishes the countries
of the Roman law from those which were otherwise, the meaning is that,
in countries which were not of the Roman law, such a multitude of people
had chosen to live under some or other of the laws of the Barbarians
that there were scarcely any who would be subject to the Roman law; and
that in the countries of the Roman law there were few who would choose
to live under the laws of the Barbarians.
I am not ignorant that what is here advanced will be reckoned new;
but if the things which I assert be true, surely they are very ancient.
After all, what great matter is it, whether they come from me, from the
Valesiuses, or from the Bignons?
Footnotes
[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. 44, section 1.
[38]
"According to the Roman law under which the church lives," as is
said in the "Law of the Ripuarians," tit. 58, section 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, tome i, 462, where it is said, that
an ecclesiastic should receive a triple compensation; and the "Collection
of the Capitularies," lib. v, art. 302, tome i. Edition of Baluzius.
[41]
Of this I shall speak in another place, Book xxx, chaps. 5, 6, and 7.
[43]
See Gervais of Tilbury, in Duchesne's "Collection," tome 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," tome 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.
28.5. 5. The same Subject continued.
The law of Gundebald subsisted a long
time among the Burgundians, in conjunction with the Roman law; it was
still in use under Louis the Pious, as Agobard's letter plainly evinces.
In like manner, though the edict of Pistes calls the country occupied by
the Visigoths the country of the Roman law, yet the law of the Visigoths
was always in force there; as appears by the synod of Troyes held under
Louis the Stammerer, in the year 878, that is, fourteen years after the
edict of Pistes.
In process of time the Gothic and Burgundian laws fell into disuse
even in their own country, which was owing to those general causes that
everywhere suppressed the personal laws of the Barbarians.
6. How the Roman Law kept its Ground in the Demesne of the Lombards.
The facts all coincide with my principles. The law of the Lombards was
impartial, and the Romans were under no temptation to quit their own for
it. The motive which prevailed with the Romans under the Franks to make
choice of the Salic law did not take place in Italy; hence the Roman law
maintained itself there, together with that of the Lombards.
It even fell out that the latter gave way to the Roman institutes,
and ceased to be the law of the ruling nation; and though it continued
to be that of the principal nobility, yet the greatest part of the
cities formed themselves into republics, and the nobility mouldered away
of themselves, or were destroyed.
[46]
The citizens of the new republics
had no inclination to adopt a law which established the custom of
judiciary combats, and whose institutions retained much of the customs
and usages of chivalry. As the clergy of those days, a clergy even then
so powerful in Italy, lived almost all under the Roman law, the number
of those who followed the institutions of the Lombards must have daily
diminished.
Besides, the institutions of the Lombards had not that extent, that
majesty of the Roman law, by which Italy was reminded of her universal
dominion. The institutions of the Lombards and the Roman law could be
then of no other use than to furnish out statutes for those cities that
were erected into republics. Now which could better furnish them, the
institutions of the Lombards that determined on some particular cases,
or the Roman law which embraced them all?
Footnotes
[46]
See what Machiavelli says of the ruin of the ancient nobility of
Florence.
28.7. 7. How the Roman Law came to be lost in Spain.
Things happened
otherwise in Spain. The law of the Visigoths prevailed, and the Roman
law was lost. Chaindasuinthus
[47]
and Recessuinthus proscribed the Roman
laws,
[48]
and even forbade citing them in their courts of judicature.
Recessuinthus was likewise author of the law which took off the
prohibition of marriage between the Goths and Romans.
[49]
It is evident
that these two laws had the same spirit; this king wanted to remove the
principal causes of separation which subsisted between the Goths and the
Romans. Now it was thought that nothing made a wider separation than the
prohibition of intermarriages, and the liberty of living under different
institutions.
But though the kings of the Visigoths had proscribed the Roman law,
it still subsisted in the demesnes they possessed in South Gaul.
[50]
These countries being distant from the centre of the monarchy lived in a
state of great independence. We see from the history of Vamba, who
ascended the throne in 672, that the natives of the country had become
the prevailing party.
[51]
Hence the Roman law had greater authority and
the Gothic less. The Spanish laws neither suited their manners nor their
actual situation; the people might likewise be obstinately attached to
the Roman law, because they had annexed to it the idea of liberty.
Besides, the laws of Chaindasuinthus and of Recessuinthus contained most
severe regulations against the Jews; but these Jews had a vast deal of
power in South Gaul. The author of the history of King Vamba calls these
provinces the brothel of the Jews. When the Saracens invaded these
provinces, it was by invitation; and who could have invited them but the
Jews or the Romans? The Goths were the first that were oppressed,
because they were the ruling nation. We see in Procopius, that during
their calamities they withdrew out of Narbonne Gaul into Spain.
[52]
Doubtless, under this misfortune; they took refuge in those provinces of
Spain which still held out; and the number of those who in South Gaul
lived under the law of the Visigoths was thereby greatly diminished.
Footnotes
[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," lib. ii, tit. 1, sections 9 and 10.
[49]
"Law of the Visigoths," lib. iii, tit. 1, chap. 1.
[50]
See Book iv, 19 and 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," lib. i, chap. 13.
28.8. 8. A false Capitulary.
Did not that wretched compiler Benedictus
Levita attempt to transform this Visigoth establishment, which
prohibited the use of Roman law, into a capitulary
[53]
ascribed since to
Charlemagne? He made of this particular institution a general one, as
if he intended to exterminate the Roman law throughout the universe.
Footnotes
[53]
"Capitularies," lib. vi, chap. 343, year 1613, edition of Baluzius, i, p.
981.
28.9. 9. In what manner the Codes of Barbarian Laws and the Capitularies
came to be lost.
The Salic, the Ripuarian, Burgundian, and Visigoth laws
came, by degrees, to be disused among the French in the following
manner:
As fiefs became hereditary, and arrire-fiefs extended, many usages
were introduced, to which these laws were no longer applicable. Their
spirit indeed was continued, which was to regulate most disputes by
fines. But as the value of money was, doubtless, subject to change, the
fines were also changed; and we see several charters,
[54]
where the
lords fixed the fines, that were payable in their petty courts. Thus the
spirit of the law was followed, without adhering to the law itself.
Besides, as France was divided into a number of petty lordships,
which acknowledged rather a feudal than a political dependence, it was
very difficult for only one law to be authorised. And, indeed, it would
be impossible to see it observed. The custom no longer prevailed of
sending extraordinary officers
[55]
into the provinces to inspect the
administration of justice and political affairs; it appears, even by the
charters, that when new fiefs were established our kings divested
themselves of the right of sending those officers. Thus, when almost
everything had become a fief, these officers could not be employed;
there was no longer a common law because no one could enforce the
observance of it.
The Salic, Burgundian, and Visigoth laws were, therefore, extremely
neglected at the end of the second race; and at the beginning of the
third, they were scarcely ever mentioned.
Under the first and second race, the nation was often assembled;
that is, the lords and bishops; the commons were not yet thought of. In
these assemblies, attempts were made to regulate the clergy, a body
which formed itself, if I may so speak, under the conquerors, and
established its privileges. The laws made in these assemblies are what
we call the Capitularies. Hence four things ensued: the feudal laws were
established and a great part of the church revenues was administered by
those laws; the clergy effected a wider separation, and neglected those
decrees of reformation where they themselves were not the only
reformers;
[56]
a collection was made of the canons of councils and of
the decretals of popes;
[57]
and these the clergy received, as coming
from a purer source. Ever since the erection of the grand fiefs, our
kings, as we have already observed, had no longer any deputies in the
provinces to enforce the observance of their laws; and hence it is that,
under the third race, we find no more mention made of Capitularies.
Footnotes
[54]
M. de la Thaumassire has collected many of them. See, for
instance, chapters 41, 46, and others.
[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.
28.10. 10. The same Subject continued.
Several capitularies were added to
the law of the Lombards, as well as to the Salic and Bavarian laws. The
reason of this has been a matter of inquiry; but it must be sought for
in the thing itself. There were several sorts of capitularies. Some had
relation to political government, others to economical, most of them to
ecclesiastical polity, and some few to civil government. Those of the
last species were added to the civil law, that is, to the personal laws
of each nation; for which reason it is said in the Capitularies that
there is nothing stipulated therein contrary to the Roman law.
[58]
In
effect, those capitularies regarding economical, ecclesiastical, or
political government had no relation to that law; and those concerning
civil government had reference only to the laws of the barbarous people,
which were explained, amended, enlarged, or abridged. But the adding of
these capitularies to the personal laws occasioned, I imagine, the
neglect of the very body of the Capitularies themselves; in times of
ignorance, the abridgment of a work often causes the loss of the work
itself.
Footnotes
[58]
See the edict of Pistes, art. 20.
28.11. 11. Other Causes of the Disuse of the Codes of Barbarian Laws, as
well as of the Roman Law, and of the Capitularies.
When the German
nations subdued the Roman empire, they learned the use of writing; and,
in imitation of the Romans, they wrote down their own usages, and
digested them into codes.
[59]
The unhappy reigns which followed that of
Charlemagne, the invasions of the Normans and the civil wars, plunged
the conquering nations again into the darkness out of which they had
emerged, so that reading and writing were quite neglected. Hence it is,
that in France and Germany the written laws of the Barbarians, as well
as the Roman law and the Capitularies fell into oblivion. The use of
writing was better preserved in Italy, where reigned the Popes and the
Greek Emperors, and where there were flourishing cities, which enjoyed
almost the only commerce in those days. To this neighbourhood of Italy
it was owing that the Roman law was preserved in the provinces of Gaul,
formerly subject to the Goths and Burgundians; and so much the more, as
this law was there a territorial institution, and a kind of privilege.
It is probable that the disuse of the Visigoth laws in Spain proceeded
from the want of writing, and by the loss of so many laws, customs were
everywhere established.
Personal laws fell to the ground. Compositions, and what they call
Freda,
[60]
were regulated more by custom than by the text of these laws.
Thus, as in the establishment of the monarchy, they had passed from
German customs to written laws; some ages after, they came back from
written laws to unwritten customs.
Footnotes
[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 (Book xxx, chap. 14).
28.12. 12. Of local Customs. Revolution of the Laws of barbarous Nations,
as well as of the Roman Law.
By several memorials it appears, that there
were local customs, as early as the first and second race. We find
mention made of the custom of the place,
[61]
of the ancient usage,
[62]
of custom,
[63]
of laws,
[64]
and of customs. It has
been the opinion of some authors that what went by the name of customs
were the laws of the barbarous nations, and what had the appellation of
law were the Roman institutes. This cannot possibly be. King Pepin
ordained
[65]
that wherever there should happen to be no law, custom
should be complied with; but that it should never be preferred to the
law. Now, to pretend that the Roman law was preferred to the codes of
the laws of the Barbarians is subverting all memorials of antiquity, and
especially those codes of Barbarian laws, which constantly affirm the
contrary.
So far were the laws of the barbarous nations from being those
customs, that it was these very laws, as personal institutions, which
introduced them. The Salic law, for instance, was a personal law; but
generally, or almost generally, in places inhabited by the Salian
Franks, this Salic law, how personal soever, became, in respect to those
Salian Franks, a territorial institution, and was personal only in
regard to those Franks who lived elsewhere. Now if several Burgundians,
Alemans, or even Romans should happen to have frequent disputes, in a
place where the Salic law was territorial, they must have been
determined by the laws of those people; and a great number of decisions
agreeable to some of those laws must have introduced new customs into
the country. This explains the constitution of Pepin. It was natural
that those customs should affect even the Franks who lived on the spot,
in cases not decided by the Salic law; but it was not natural that they
should prevail over the Salic law itself.
Thus there were in each place an established law and received
customs which served as a supplement to that law when they did not
contradict it.
They might even happen to supply a law that was in no way
territorial; and to continue the same example, if a Burgundian was
judged by the law of his own nation, in a place where the Salic law was
territorial, and the case happened not to be explicitly mentioned in the
very text of this law, there is no manner of doubt but that judgment
would have been passed upon him according to the custom of the place.
In the reign of King Pepin, the customs then established had not the
same force as the laws; but it was not long before the laws gave way to
the customs. And as new regulations are generally remedies that imply a
present evil, it may well be imagined that as early as Pepin's time,
they began to prefer the customs to the established laws.
What has been said sufficiently explains the manner in which the
Roman law began so very early to become territorial, as may be seen in
the edict of Pistes; and how the Gothic law continued still in force, as
appears by the synod of Troyes above-mentioned.
[66]
The Roman had become
the general personal law, and the Gothic the particular personal law;
consequently the Roman law was territorial. But how came it, some will
ask, that the personal laws of the Barbarians fell everywhere into
disuse, while the Roman law was continued as a territorial institution
in the Visigoth and Burgundian provinces? I answer that even the Roman
law had very nearly the same fate as the other personal institutions;
otherwise we would still have the Theodosian code in those provinces
where the Roman law was territorial, whereas we have the institutes of
Justinian. Those provinces retained scarcely anything more than the name
of the country under the Roman, or written law, than the natural
affection which people have for their own institutions, especially when
they consider them as privileges, and a few regulations of the Roman law
which were not yet forgotten. This was, however, sufficient to produce
such an effect that, when Justinian's compilation appeared, it was
received in the provinces of the Gothic and Burgundian demesne as a
written law, whereas it was admitted only as written reason in the
ancient demesne of the Franks.
Footnotes
[61]
Preface to Marculfus, "Formulæ".
[62]
"Law of the Lombards," book ii, tit. 58, section 3.
[63]
Ibid., tit. 41, section 6.
[64]
"Life of St. Leger."
[65]
"Law of the Lombards," book ii, tit. 41, section 6.
28.13. 13. Difference between the Salic law, or that of the Salian Franks,
and that of thee Ripuarian Franks and other barbarous Nations.
The Salic law did not allow of the custom of negative proofs; that is, if a person
brought a demand or charge against another, he was obliged by the Salic
law to prove it, and it was not sufficient for the second to deny it,
which is agreeable to the laws of almost all nations.
The law of the Ripuarian Franks had quite a different spirit;
[67]
it
was contented with negative proofs, and the person) against whom a
demand or accusation was brought, might clear himself, in most cases, by
swearing, in conjunction with a certain number of witnesses, that he had
not committed the crime laid to his charge. The number of witnesses who
were obliged to swear
[68]
increased in proportion to the importance of
the affair; sometimes it amounted to seventy-two.
[69]
The laws of the
Alemans, Bavarians, Thuringians, Frisians, Saxons, Lombards, and
Burgundians were formed on the same plan as those of the Ripuarian.
I observed that the Salic law did not allow of negative proofs.
There was one case, however, in which they were allowed:
[70]
but even
then they were not admitted alone, and without the concurrence of
positive proofs. The plaintiff caused witnesses to be heard,
[71]
in
order to ground his action, the defendant produced also witnesses on his
side, and the judge was to come at the truth by comparing those
testimonies.
[72]
This practice was vastly different from that of the
Ripuarian, and other barbarous laws, where it was customary for the
party accused to clear himself by swearing he was not guilty, and by
making his relatives also swear that he had told the truth. These laws
could be suitable only to a people remarkable for their natural
simplicity and candour; we shall see presently that the legislators were
obliged to take proper methods to prevent their being abused.
Footnotes
[67]
This relates to what Tacitus says. "De Moribus Germanorum," 28,
that the Germans had general and particular customs.
[68]
Law of the Ripuarians, tits. 6, 7, 8, and others.
[69]
Ibid., tits. 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 Salicæ", tit. 76.
[72]
According to the practice now followed in England.
28.14. 14. Another Difference.
The Salic law did not admit of the trial by
combat, though it had been received by the laws of the Ripuarians
[73]
and of almost all the barbarous nations.
[74]
To me it seems that the law
of combat was a natural consequence and a remedy of the law which
established negative proofs. When an action was brought, and it appeared
that the defendant was going to elude it by an oath, what other remedy
was left to a military man,
[75]
who saw himself upon the point of being
confounded, than to demand satisfaction for the injury done to him: and
even for the attempt of perjury? The Salic law, which did not allow the
custom of negative proofs, neither admitted nor had any need of the
trial by combat; but the laws of the Ripuarians
[76]
and of the other
barbarous nations
[77]
who had adopted the practice of negative proofs,
were obliged to establish the trial by combat.
Whoever will please to examine the two famous regulations of
Gundebald, King of Burgundy, concerning this subject will find they are
derived from the very nature of the thing.
[78]
It was necessary,
according to the language of the Barbarian laws, to rescue the oath out
of the hands of a person who was going to abuse it.
Among the Lombards, the law of Rotharis admits of cases in which a
man who had made his defence by oath should not be suffered to undergo
the hardship of a duel. This custom spread itself further:
[79]
we shall
presently see the mischiefs that arose from it, and how they were
obliged to return to the ancient practice.
Footnotes
[73]
Tit. 32; tit. 57, section 2; tit. 59, section 4.
[74]
See the following note.
[75]
This spirit appears in the "Law of Ripuarians," tit. 59, 4,
and tit. 67, section 5, and in the "Capitulary of Louis the Debonnaire,"
added to the "Law of the Ripuarians" in the year 803, art. 22.
[77]
The law of the Frisians, Lombards, Bavarians, Saxons,
Thuringians, and Burgundians.
[78]
In the "Law of the Burgundians," tit. 8, sectons 1 and 2, on
criminal affairs; and tit. 45, which extends also to civil affairs. See
also the "Law of the Thuringians," tit. 1, section 31; tit. 7, section 6; and
tit. 8; and the "Law of the Alemans," tit. 89; the "Law of the Bavarians,"
tit. 8, cap. ii, section 6, and cap. iii, section 1, and tit. 9, cap. iv, section 4; the "Law of the Frisians," tit. 2, section 3, and tit. 14, section 4; the "Law
of the Lombards," book i, tit. 32, section 3, and tit. 35, section 1, and book ii, tit.
35, section 2.
[79]
See chap. xiv, toward the end.
28.15. 15. A Reflection.
I do not pretend to deny that in the changes made
in the code of the Barbarian laws, in the regulations added to that
code, and in the body of the Capitularies, it is possible to find some
passages where the trial by combat is not a consequence of the negative
proof. Particular circumstances might, in the course of many ages, give
rise to particular laws. I speak only of the general spirit of the laws
of the Germans, of their nature and origin; I speak of the ancient
customs of those people that were either hinted at or established by
those laws; and this is the only matter in question.
28.16. 16. Of the Ordeal or Trial by boiling Water, established by the
Salic Law.
The Salic law
[80]
allowed of the ordeal, or trial by boiling
water; and as this trial was excessively cruel, the law found an
expedient to soften its rigour.
[81]
It permitted the person, who had
been summoned to make the trial with boiling water, to ransom his hand,
with the consent of the adverse party. The accuser, for a particular sum
determined by the law, might be satisfied with the oath of a few
witnesses, declaring that the accused had not committed the crime. This
was a particular case, in which the Salic law admitted of the negative
proof.
This trial was a thing privately agreed upon, which the law
permitted only, but did not ordain. The law gave a particular indemnity
to the accuser, who would allow the accused to make his defence by a
negative proof: the plaintiff was at liberty to be satisfied with the
oath of the defendant, as he was at liberty to forgive him the injury.
The law contrived a middle course,
[82]
that before sentence passed,
both parties, the one through fear of a terrible trial, the other for
the sake of a small indemnity, should terminate their disputes, and put
an end to their animosities. It is plain, that when once this negative
proof was completed, nothing more was requisite; and, therefore, that
the practice of legal duels could not be a consequence of this
particular regulation of the Salic law.
Footnotes
[80]
As also some other laws of the Barbarians.
28.17. 17. Particular Notions of our Ancestors.
It is astonishing that our
ancestors should thus rest the honour, fortune and life of the subject,
on things that depended less on reason than on hazard, and that they
should incessantly make use of proofs incapable of convicting, and that
had no manner of connection either with innocence or guilt.
The Germans, who had never been subdued,
[83]
enjoyed an excessive
independence. Different families waged war with each other
[84]
to obtain
satisfaction for murders, robberies or affronts. This custom was
moderated by subjecting these hostilities to rules; it was ordained that
they should be no longer committed but by the direction and under the
eye of the magistrate.
[85]
This was far preferable to a general licence
of annoying each other.
As the Turks in their civil wars look upon the first victory as a
decision of heaven in favour of the victor, so the inhabitants of
Germany in their private quarrels considered the event of a combat as a
decree of Providence, ever attentive to punish the criminal or the
usurper.
Tacitus informs us that when one German nation intended to declare
war against another, they looked out for a prisoner who was to fight
with one of their people, and by the event they judged of the success of
the war. A nation who believed that public quarrels could be determined
by a single combat might very well think that it was proper also for
deciding the disputes of individuals.
Gundebald, King of Burgundy, gave the greatest sanction to the
custom of legal duels.
[86]
The reason he assigns for this law is
mentioned in his edict, "It is," says he, "in order to prevent our
subjects from attesting by oath what is uncertain, and perjuring
themselves about what is certain." Thus, while the clergy declared that
an impious law which permitted combats,
[87]
the Burgundian Kings looked
upon that as a sacrilegious law which authorized the taking of an oath.
The trial by combat had some reason for it, founded on experience.
In a military nation, cowardice supposes other vices; it is an argument
of a person's having deviated from the principles of his education, of
his being insensible of honour, and of having refused to be directed by
those maxims which govern other men; it shows that he neither fears
their contempt, nor sets any value upon their esteem. Men of any
tolerable extraction seldom want either the dexterity requisite to
co-operate with strength, or the strength necessary to concur with
courage; for as they set a value upon honour, they are practised in
matters without which this honour cannot be obtained. Besides, in a
military nation, where strength, courage and prowess are esteemed,
crimes really odious are those which arise from fraud, artifice, and
cunning, that is, from cowardice.
With regard to the trial by fire, after the party accused had put
his hand on a hot iron, or in boiling water, they wrapped the hand in a
bag and sealed it up; if after three days there appeared no mark, he was
acquitted, Is it not plain, that among people inured to the handling of
arms, the impression made on a rough or callous skin by the hot iron or
by boiling water could not be so great as to be seen three days
afterwards? And if there appeared any mark, it showed that the person
who had undergone the trial was an effeminate fellow. Our peasants are
not afraid to handle hot iron with their callous hands; and, with regard
to the women, the hands of those who worked hard might be very well able
to resist hot iron. The ladies did not want champions to defend their
cause; and in a nation where there was no luxury, there was no middle
state.
[88]
By the law of the Thuringians
[89]
a woman accused of adultery was
condemned to the trial by boiling water only when there was no champion
to defend her; and the law of the Ripuarians admits of this trial
[90]
only when a person had no witnesses to appear in justification. Now a
woman that could not prevail upon any one relative to defend her cause,
or a man that could not produce one single witness to attest his
honesty, was, from those very circumstances, sufficiently convicted.
I conclude, therefore, that under the circumstances of time in which
the trial by combat and the trial by hot iron and boiling water
obtained, there was such an agreement between those laws and the manners
of the people, that the laws were rather unjust in themselves than
productive of injustice, that the effects were more innocent than the
cause, that they were more contrary to equity than prejudicial to its
rights, more unreasonable than tyrannical.
Footnotes
[83]
This appears by what Tacitus says, "Omnibus idem habitus." — "De
Moribus Germanorum," 4.
[84]
Velleius Paterculus, lib. ii, chap. 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, chap. 61. See also the
"Law of the Angli," cap. xiv, where the trial by boiling water is only a
subsidiary proof.
[90]
Cap. xxxi, section 5.
28.18. 18. In what manner the Custom of judicial Combats gained Ground.
From Agobard's letter to Louis the Debonnaire, it might be inferred that
the custom of judicial combats was not established among the Franks; for
having represented to that prince the abuses of the law of Gundebald, he
desires that private disputes should be decided in Burgundy by the law
of the Franks. But as it is well known from other quarters that the
trial by combat prevailed at that time in France, this has been the
cause of some perplexity. However, the difficulty may be solved by what
I have said; the law of the Salian Franks did not allow of this kind of
trial and that of the Ripuarian Franks did.
[91]
But, notwithstanding the clamours of the clergy, the custom of
judicial combats gained ground continually in France; and I shall
presently make it appear that the clergy themselves were in a great
measure the occasion of it.
It is the law of the Lombards that furnishes us with this proof.
"There has been long since a detestable custom introduced," says the
preamble to the constitution of Otho II:
[92]
"this is, that if the title
to an estate was said to be false, the person who claimed under that
title made oath upon the Gospel that it was genuine; and without any
preceding judgment he took possession of the estate; so that they who
would perjure themselves were sure of gaining their point." The Emperor
Otho I having caused himself to be crowned at Rome
[93]
at the very time
that a council was there under Pope John XII, all the lords of Italy
represented to that prince the necessity of enacting a law to reform
this horrible abuse.
[94]
The Pope and the Emperor were of opinion that
the affair should be referred to the council which was to be shortly
held at Ravenna.
[95]
There the lords made the same demands, and
redoubled their complaints; but the affair was put off once more, under
pretence of the absence of particular persons. When Otho II and Conrad,
King of Burgundy, arrived in Italy,
[96]
they had a conference at
Verona
[97]
with the Italian lords,
[98]
and at their repeated
solicitations, the Emperor, with their unanimous consent, made a law,
that whenever there happened any disputes about inheritances, while one
of the parties insisted upon the legality of his title and the other
maintained its being false, the affair should be decided by combat; that
the same rule should be observed in contests relating to fiefs; and that
the clergy should be subject to the same law, but should fight by their
champions. Here we see that the nobility insisted on the trial by combat
because of the inconvenience of the proof introduced by the clergy; that
notwithstanding the clamours of the nobility, the notoriousness of the
abuse which called out loudly for redress, and the authority of Otho who
came into Italy to speak and act as master, still the clergy held out in
two councils; in fine, that the joint concurrence of the nobility and
princes having obliged the clergy to submit, the custom of judicial
combats must have been considered as a privilege of the nobility, as a
barrier against injustice and as a security of property, and from that
very moment this custom must have gained ground. And this was effected
at a time when the power of the Emperors was great, and that of the
popes inconsiderable; at a time when the Othos came to revive the
dignity of the empire in Italy.
I shall make one reflection which will corroborate what has been
above said, namely, that the institution of negative proofs entailed
that of judicial combats. The abuse complained of to the Othos was, that
a person who was charged with having a false title to an estate,
defended himself by a negative proof, declaring upon the Gospels it was
not false. What was done to reform the abuse of a law which had been
mutilated? The custom of combat was revived.
I hastened to speak of the constitution of Otho II, in order to give
a clear idea of the disputes between the clergy and the laity of those
times. There had been indeed a constitution of Lotharius I
[99]
of an
earlier date, a sovereign who, upon the same complaints and disputes,
being desirous of securing the just possession of property, had ordained
that the notary should make oath that the deed or title was not forged;
and if the notary should happen to die, the witnesses should be sworn
who had signed it. The evil, however, still continued, till they were
obliged at length to have recourse to the remedy above-mentioned.
Before that time I find that, in the general assemblies held by
Charlemagne, the nation represented to him
[100]
that in the actual state
of things it was extremely difficult for either the accuser or the
accused to avoid perjuring themselves, and that for this reason it was
much better to revive the judicial combat, which was accordingly done.
The usage of judicial combats gained ground among the Burgundians,
and that of an oath was limited. Theodoric, King of Italy, suppressed
the single combat among the Ostrogoths;
[101]
and the laws of
Chaindasuinthus and Recessuinthus seemed as if they would abolish the
very idea of it. But these laws were so little respected in Narbonne
Gaul, that they looked upon the legal duel as a privilege of the
Goths.
[102]
The Lombards who conquered Italy after the Ostrogoths had been
destroyed by the Greeks, introduced the custom of judicial combat into
that country, but their first laws gave a check to it.
[103]
Charlemagne,
[104]
Louis the Debonnaire, and the Othos made divers
general constitutions, which we find inserted in the laws of the
Lombards and added to the Salic laws, whereby the practice of legal
duels, at first in criminal, and afterwards in civil cases, obtained a
greater extent. They knew not what to do. The negative proof by oath had
its inconveniences; that of legal duels had its inconveniences also;
hence they often changed, according as the one or the other affected
them most.
On the one hand, the clergy were pleased to see that in all secular
affairs people were obliged to have recourse to the altar,
[105]
and, on
the other, a haughty nobility were fond of maintaining their rights by
the sword.
I would not have it inferred that it was the clergy who introduced
the custom so much complained of by the nobility. This custom was
derived from the spirit of the Barbarian laws, and from the
establishment of negative proofs. But a practice that contributed to the
impunity of such a number of criminals, having given some people reason
to think it was proper to make use of the sanctity of the churches in
order to strike terror into the guilty, and to intimidate perjurers, the
clergy maintained this usage and the practice which attended it: for in
other respects they were absolutely averse to negative proofs. We find
in Beaumanoir
[106]
that this kind of proof was never allowed in
ecclesiastic courts, which contributed greatly, without doubt, to its
suppression, and to weaken in this respect the regulation of the codes
of the Barbarian laws.
This will convince us more strongly of the connection between the
usage of negative proofs and that of judicial combats, of which I have
said so much. The lay tribunals admitted of both, and both were rejected
by the ecclesiastic courts.
In choosing the trial by duel the nation followed its military
spirit; for while this was established as a divine decision, the trials
by the cross, by cold or boiling waters, which had been also regarded in
the same lights, were abolished.
Charlemagne ordained that, if any difference should arise between
his children, it should be terminated by the judgment of the cross.
Louis the Debonnaire
[107]
limited this judgment to ecclesiastic affairs;
his son Lotharius abolished it in all cases; nay, he suppressed even the
trial by cold water.
[108]
I do not pretend to say that, at a time when so few usages were
universally received, these trials were not revived in some churches,
especially as they are mentioned in a charter of Philip Augustus,
[109]
but I affirm that they were very seldom practised. Beaumanoir,
[110]
who
lived at the time of St. Louis and a little after, enumerating the
different kinds of trial, mentions that of judicial combat, but not a
word of the others.
Footnotes
[91]
See this law, tit. 59, section 4, and tit. 67, section 5.
[92]
"Law of the Lombards," book ii, tit. 55, cap. xxxiv.
[94]
"Law of the Lombards," book 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.
[98]
"Law of the Lombards," book ii, tit. 55, cap. xxxiv.
[99]
Ibid., section 33. In the copy that Muratori made use of it is
attributed to the Emperor Guido.
[101]
Cassiodorus, iii, let. 23, 24.
[102]
The anonymous author of the "Life of Louis the Debonnaire."
[103]
See in the "Law of the Lombards,"book i, tit. 4, and tit. 9, 23,
and ii, tit. 35 4 and 5, and tit. 55 sections 1, 2, and 3. The
regulations of Rotharis; and in sections 15, that of Luitprandus.
[104]
Ibid., book ii, tit. 55, section 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, "Formulas," Book i. 38. The "Laws of the Ripuarians," tit. 59, section 4,
tit. 65, section 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," book ii, tit.
55, section 31.
[110]
"Ancient Custom of Beauvoisis," chap. 39.
28.19. 19. A new Reason of the Disuse of the Salic and Roman Laws, as also
of the Capitularies.
I have already mentioned the reasons that had
destroyed the authority of the Salic and Roman laws, as also of the
Capitularies; here I shall add that the principal cause was the great
extension given to judiciary combats.
As the Salic laws did not admit of this custom, they became in some
measure useless, and fell into oblivion, In like manner the Roman laws,
which also rejected this custom, were laid aside; their whole attention
was then taken up in establishing the law of judicial combats, and in
forming a proper digest of the several cases that might happen on those
occasions. The regulations of the Capitularies became likewise of no
manner of service. Thus it is that such a number of laws lost all their
authority, without our being able to tell the precise time in which it
was lost; they fell into oblivion, and we cannot find any others that
were substituted in their place.
Such a nation had no need of written laws; hence its written laws
might very easily fall into disuse.
If there happened to be any disputes between two parties, they had
only to order a single combat. For this no great knowledge or abilities
were requisite.
All civil and criminal actions are reduced to facts. It is upon
these facts they fought; and not only the substance of the affair, but
likewise the incidents and imparlances were decided by combat, as
Beaumanoir observes, who produces several instances.
[111]
I find that, towards the commencement of the third race, the
jurisprudence of those times related entirely to precedents; everything
was regulated by the point of honour. If the judge was not obeyed, he
insisted upon satisfaction from the person that contemned his authority.
At Bourges, if the provost had summoned a person and he refused to come,
his way of proceeding was to tell him, "I sent for thee, and thou didst
not think it worth thy while to come; I demand therefore satisfaction
for this thy contempt." Upon which they fought.
[112]
Louis the Fat
reformed this custom.
[113]
The custom of legal duels prevailed at Orleans, even in all demands
of debt.
[114]
Louis the Young declared that this custom should take
place only when the demand exceeded five sous. This ordinance was a
local law; for in St. Louis' time it was sufficient that the value was
more than twelve deniers.
[115]
Beaumanoir
[116]
had heard a gentleman of
the law affirm that formerly there had been a bad custom in France of
hiring a champion for a certain time to fight their battles in all
causes. This shows that the custom of judiciary combat must have
prevailed at that time to a wonderful extent.
Footnotes
[111]
Ibid., chap. 61, pp. 309, 310.
[112]
"Charter of Louis the Fat" in the year 1145, in the "Collection of
Ordinances."
[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.
28.20. 20. Origin of the Point of Honour.
We meet with inexplicable enigmas
in the codes of laws of the Barbarians. The law of the Frisians
[117]
allows only half a sou in composition to a person that had been beaten
with a stick, and yet for ever so small a wound it allows more. By the
Salic law, if a freeman gave three blows with a stick to another
freeman, he paid three sous; if he drew blood, he was punished as if he
had wounded him with steel, and he paid fifteen sous: thus the
punishment was proportioned to the greatness of the wound. The law of
the Lombards established different compositions for one, two, three,
four blows, and so on.
[118]
At present, a single blow is equivalent to a
hundred thousand.
The constitution of Charlemagne, inserted in the law of the
Lombards, ordains that those who were allowed the trial by combat should
fight with bastons.
[119]
Perhaps this was out of regard to the clergy;
or probably, as the usage of legal duels gained ground, they wanted to
render them less sanguinary. The capitulary of Louis the Debonnaire
allows the liberty of choosing to fight either with the sword or
baston.
[120]
In process of time none but bondmen fought with the
baston.
[121]
Here I seethe first rise and formation of the particular articles of
our point of honour. The accuser began by declaring in the presence of
the judge that such a person had committed such an action, and the
accused made answer that he lied,
[122]
upon which the judge gave orders
for the duel. It became then an established rule that whenever a person
had the lie given him, it was incumbent on him to fight.
Upon a man's declaring that he would fight,
[123]
he could not
afterwards depart from his word; if he did, he was condemned to a
penalty. Hence this rule ensued, that whenever a person had engaged his
word, honour forbade him to recall it.
Gentlemen fought one another on horseback, and armed at all
points;
[124]
villains fought on foot and with bastons.
[125]
Hence it
followed that the baston was looked upon as the instrument of insults
and affronts,
[126]
because to strike a man with it was treating him like
a villain.
None but villains fought with their faces uncovered,
[127]
so that
none but they could receive a blow on the face. Therefore, a box on the
ear became an injury that must be expiated with blood, because the
person who received it had been treated as a villain.
The several people of Germany were no less sensible than we of the
point of honour; nay, they were more so. Thus the most distant relatives
took a very considerable share to themselves in every affront, and on
this all their codes are founded. The law of the Lombards ordains
[128]
that whosoever goes attended with servants to beat a man unawares, in
order to load him with shame and to render him ridiculous, should pay
half the composition which he would owe if he had killed him;
[129]
and
if through the same motive he tied or bound him, he would pay
three-quarters of the same composition.
Let us then conclude that our forefathers were extremely sensible of
affronts; but that affronts of a particular kind, such as being struck
with a certain instrument on a certain part of the body, and in a
certain manner, were as yet unknown to them. All this was included in
the affront of being beaten, and in this case the amount of violence
determined the magnitude of the outrage.
Footnotes
[117]
"Additio sapientium Wilemari," tit. 5.
[118]
Book i, tit. 6, section 3.
[119]
Book ii, tit. 5, section 23.
[120]
Added to the Salic law in 819.
[121]
See Beaumanoir, 64, p. 328.
[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, section 1.
28.21. 21. A new Reflection upon the Point of Honour among the Germans.
"It was a great infamy," says Tacitus,
[130]
"among the Germans for a person
to leave his buckler behind him in battle; for which reason many after a
misfortune of this kind have destroyed themselves." Thus the ancient
Salic law
[131]
allows a composition of fifteen sous to any person that
had been injuriously reproached with having left his buckler behind him.
When Charlemagne amended the Salic law,
[132]
he allowed in this case
no more than three sous in composition. As this prince cannot be
suspected of having had a design to enervate the military discipline, it
is manifest that such an alteration was due to a change of weapons, and
that from this change of weapons a great number of usages derive their
origin.
Footnotes
[130]
"De Moribus Germanorum," 6.
[131]
In the "Pactus legis Salicæ," 6.
[132]
We have both the ancient law and that which was amended by this
prince.
28.22. 22. Of the Manners in relation to judicial Combats.
Our connections
with the fair sex are founded on the pleasure of enjoyment; on the
happiness of loving and being loved; and likewise on the ambition of
pleasing the ladies, because they are the best judges of some of those
things which constitute personal merit. This general desire of pleasing
produces gallantry, which is not love itself, but the delicate, the
volatile, the perpetual simulation of love.
According to the different circumstances of every country and age,
love inclines more to one of those three things than to the other two.
Now I maintain that the prevailing spirit at the time of our judicial
combats must have been that of gallantry.
I find in the law of the Lombards,
[133]
that if one of the two
champions was found to have any magic herbs about him, the judge ordered
them to be taken from him, and obliged him to swear he had no more. This
law could be founded only on the vulgar opinion; it was fear, the
alleged inventor of much that made them imagine this kind of prestige.
As in single combats the champions were armed at all points, and as with
heavy arms, both of the offensive and defensive kind, those of a
particular temper and strength gave immense advantages, the notion of
some champions having enchanted arms must certainly have turned the
brains of a great many people.
Hence arose the marvellous system of chivalry. The minds of all
sorts of people quickly imbibed these extravagant ideas, In romances are
found knights-errant, necromancers, and fairies, winged or intelligent
horses, invisible or invulnerable men, magicians who concerned
themselves in the birth and education of great personages, enchanted and
disenchanted palaces, a new world in the midst of the old one, the usual
course of nature being left only to the lower class of mankind.
Knights-errant ever in armour, in a part of the world abounding in
castles, forts, and robbers, placed all their glory in punishing
injustice, and in protecting weakness. Hence our romances are full of
gallantry founded on the idea of love joined to that of strength and
protection.
Such was the origin of gallantry, when they formed the notion of an
extraordinary race of men who at the sight of a virtuous and beautiful
lady in distress were inclined to expose themselves to all hazards for
her sake, and to endeavour to please her in the common actions of life.
Our romances of chivalry flattered this desire of pleasing, and
communicated to a part of Europe that spirit of gallantry which we may
venture to affirm was very little known to the ancients.
The prodigious luxury of that immense city of Rome encouraged
sensuous pleasures. The tranquillity of the plains of Greece gave rise
to the description of the sentiments of love.
[134]
The idea of
knights-errant, protectors of the virtue and beauty of the fair sex, led
to that of gallantry.
This spirit was continued by the custom of tournaments, which,
uniting the rights of valour and love, added still a considerable
importance to gallantry.
Footnotes
[133]
Book ii, tit. 55, section 11.
[134]
See the Greek romances of the middle age.
28.23. 23. Of the Code of Laws on judicial Combats.
Some perhaps will have
a curiosity to see this abominable custom of judiciary combat reduced to
principles and to find the groundwork of such an extraordinary code of
laws. Men, though reasonable in the main, reduce their very prejudices
to rule. Nothing was more contrary to good sense, than those combats,
and yet when once this point was laid down, a kind of prudential
management was used in carrying it into execution.
In order to be thoroughly acquainted with the jurisprudence of those
times, it is necessary to read with attention the regulations of St.
Louis, who made such great changes in the judiciary order. Dfontaines
was contemporary with that prince; Beaumanoir wrote after him,
[135]
and
the rest lived since his time. We must, therefore, look for the ancient
practice in the amendments that have been made of it.
Footnotes
28.24. 24. Rules established in the judicial Combat.
When there happened to
be several accusers, they were obliged to agree among themselves that
the action might be carried on by a single prosecutor; and, if they
could not agree, the person before whom the action was brought,
appointed one of them to prosecute the quarrel.
[136]
When a gentleman challenged a villain, he was obliged to present
himself on foot with buckler and baston; but if he came on horseback and
armed like a gentleman, they took. his horse and his arms from him and,
stripping him to his shirt, they compelled him to fight in that
condition with the villain.
[137]
Before the combat the magistrates ordered three bans to be
published. By the first the relatives of the parties were commanded to
retire; by the second the people were warned to be silent; and the third
prohibited the giving of any assistance to either of the parties, under
severe penalties, nay, even on pain of death if by this assistance
either of the combatants should happen to be vanquished.
[138]
The officers belonging to the civil magistrate
[139]
guarded the list
or enclosure where the battle was fought; and in case either of the
parties declared himself desirous of peace, they took particular notice
of the actual state in which they mutually stood at that very moment, to
the end that they might be restored to the same situation in case they
did not come to an understanding.
[140]
When the pledges were received either for a crime or for false
judgment, the parties could not make up the matter without the consent
of the lord; and when one of the parties was overcome, there could be no
accommodation without the permission of the count, which had some
analogy to our letters of grace.
[141]
But if it happened to be a capital crime, and the lord, corrupted by
presents, consented to an accommodation, he was obliged to pay a fine of
sixty livres, and the right he had of punishing the malefactor devolved
upon the count.
[142]
There were a great many people incapable either of offering, or of
accepting battle. But liberty was given them, on cause being shown, to
choose a champion; and that he might have a stronger interest in
defending the party in whose behalf he appeared, his hand was cut off if
he lost the battle.
[143]
When capital laws were made in the last century against duels,
perhaps it would have been sufficient to have deprived a warrior of his
military capacity by the loss of his hand; nothing in general being a
greater mortification to mankind than to survive the loss of their
character.
When, in capital cases, the duel was fought by champions, the
parties were placed where they could not behold the battle; each was
bound with the cord that was to be used at his execution in case his
champion was overcome.
[144]
The person overcome in battle did not always
lose the point contested; if, for instance, they fought on an
imparlance, he lost only the imparlance.
[145]
Footnotes
[136]
Beaumanoir, chap. 6, pp. 40, 41.
[141]
The great vassals had particular privileges.
[142]
Beaumanoir, chap. 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. Defontaines, chap. 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, chap. 64, p. 330.
[145]
Ibid., chap. 61, p. 309.
28.25. 25. Of the Bounds prescribed to the Custom of judicial Combats.
When pledges of battle had been received upon a civil affair of small
importance, the lord obliged the parties to withdraw them.
If a fact was notorious; for instance, if a man had been
assassinated in the open marketplace, then there was neither a trial by
witnesses, nor by combat; the judge gave his decision from the notoriety
of the fact.
[146]
When the court of a lord had often determined after the same manner,
and the usage was thus known,
[147]
the lord refused to grant the parties
the privilege of duelling, to the end that the usages might not be
altered by the different success of the combats.
They were not allowed to insist upon duelling but for themselves,
for some one belonging to their family, or for their liege lord.
[148]
When the accused had been acquitted, another relative could not
insist on fighting him; otherwise disputes would never be
terminated.
[149]
If a person appeared again in public whose relatives, upon a
supposition of his being murdered, wanted to revenge his death, there
was then no room for a combat; the same may be said if by a notorious
absence the fact was proved to be impossible.
[150]
If a man who had been mortally wounded had exculpated before his
death the person accused and named another, they did not proceed to a
duel; but if he had mentioned nobody his declaration was looked upon as
a forgiveness on his death-bed; the prosecution was continued, and even
among gentlemen they could make war against each other.
[151]
When there was a conflict, and one of the relatives had given or
received pledges of battle, the right of contest ceased; for then it was
thought that the parties wanted to pursue the ordinary course of
justice; therefore he that would have continued the contest would have
been sentenced to make good all the losses.
Thus the practice of judiciary combat had this advantage, that it
was apt to change a general into an individual quarrel, to restore the
courts of judicature to their authority, and to bring back into the
civil state those who were no longer governed but by the law of nations.
As there are an infinite number of wise things that are managed in a
very foolish manner; so there are many foolish things that are very
wisely conducted.
When a man who was challenged with a crime visibly showed that it
had been committed by the challenger himself, there could be then no
pledges of battle; for there is no criminal but would prefer a duel of
uncertain event to a certain punishment.
[152]
There were no duels in affairs decided by arbiters,
[153]
nor by
ecclesiastical courts, nor in cases relating to women's dowries.
"A woman," says Beaumanoir, "cannot fight." if a woman challenged a
person without naming her champion, the pledges of battle were not
accepted. It was also requisite that a woman should be authorised by her
baron, that is, by her husband, to challenge; but she might be
challenged without this authority.
[154]
If either the challenger or the person challenged were under fifteen
years of age, there could be no combat.
[155]
They might order it,
indeed, in disputes relating to orphans when their guardians or trustees
were willing to run the risk of this procedure.
The cases in which a bondman was allowed to fight are, I think, as
follows. He was allowed to fight another bondman; to fight a freedman,
or even a gentleman, in case he were challenged; but if he himself
challenged, the other might refuse to fight; and even the bondman's lord
had a right to take him out of the court.
[156]
The bondman might by his
lord's charter or by usage fight with any freeman;
[157]
and the church
claimed this right for her bondmen
[158]
as a mark of respect due to her
by the laity.
[159]
Footnotes
[146]
Ibid., p. 308; chap. 43, p. 239.
[147]
Ibid., chap. 61, p. 314. See also Defontaines, chap. 22, art. 24.
[148]
Beaumanoir, chap. 63, p. 322.
[152]
Ibid., chap. 63, p. 324.
[155]
Ibid., p. 323. See also what I have said in book
[157]
Defontaines, chap. 22, art. 7.
[158]
"Charter of Louis the Fat," in the year 1118.
28.26. 26. On the judiciary Combat between one of the Parties and one of
the Witnesses.
Beaumanoir informs us
[160]
that a person who saw a
witness going to swear against him might elude the other by telling the
judges that his adversary produced a false and slandering witness; and
if the witness was willing to maintain the quarrel, he gave pledges of
battle. The inquiry was no longer the question; for if the witness was
overcome, it was decided that the adversary had produced a false
witness, and he lost his cause.
It was necessary that the second witness should not be heard; for if
he had made his attestation, the affair would have been decided by the
deposition of two witnesses. But by staying the second, the deposition
of the first witness became void.
The second witness being thus rejected, the party was not allowed to
produce any others, but he lost his cause; in case, however, there had
been no pledges of battle, he might produce other witnesses.
Beaumanoir observes
[161]
that the witness might say to the party he
appeared for, before he made his deposition: "I do not care to fight for
your quarrel, nor to enter into any debate; but if you are willing to
stand by me, I am ready to tell the truth." The party was then obliged
to fight for the witness, and if he happened to be overcome, he did not
lose his cause,
[162]
but the witness was rejected.
This, I believe, was a modification of the ancient custom; and what
makes me think so is that we find this usage of challenging the
witnesses established in the laws of the Bavarians
[163]
and
Burgundians
[164]
without any restriction.
I have already made mention of the constitution of Gundebald,
against which Agobard
[165]
and St. Avitus
[166]
made such loud
complaints. "When the accused," says this prince, "produces witnesses to
swear that he has not committed the crime, the accuser may challenge one
of the witnesses to a combat; for it is very just that the person who
has offered to swear, and has declared that he was certain of the truth,
should make no difficulty of maintaining it by combat." Thus the
witnesses were deprived by this king of every kind of subterfuge to
avoid the judiciary combat.
Footnotes
[160]
Chapter 61, p. 315.
[162]
But if the battle was fought by champions, the champion that
was overcome had his hand cut off.
[163]
Tit. 16, section 2.
[165]
"Letter to Louis the Debonnaire."
[166]
"Life of St. Avitus."
28.27. 27. Of the judicial Combat between one of the Parties and one of the
Lords' Peers.
Appeal of false Judgment. As the nature of judicial
combats was to terminate the affair for ever, and was incompatible with
a new judgment and new prosecutions,
[167]
an appeal, such as is
established by the Roman and Canon laws, that is, to a superior court in
order to rejudge the proceedings of an inferior, was a thing unknown in
France.
This is a form of proceeding to which a warlike nation, governed
solely by the point of honour, was quite a stranger; and agreeably to
this very spirit, the same methods were used against the judges as were
allowed against the parties.
[168]
An appeal among the people of this nation was a challenge to fight
with arms, a challenge to be decided by blood; and not that invitation
to a paper quarrel, the knowledge of which was reserved for succeeding
ages.
Thus St. Louis, in his Institutions,
[169]
says that an appeal
includes both felony and iniquity. Thus Beaumanoir tells us that if a
vassal wanted to make his complaint of an outrage committed against him
by his lord,
[170]
he was first obliged to announce that he quitted his
fief; after which he appealed to his lord paramount, and offered pledges
of battle, In like manner the lord renounced the homage of his vassal,
if he challenged him before the count.
For a vassal to challenge his lord of false judgment was as much as
to say to him that his sentence was unjust and malicious; now to utter
such words against his lord was in some measure committing the crime of
felony.
Hence, instead of bringing a challenge of false judgment against the
lord who appointed and directed the court, they challenged the peers of
whom the court itself was formed, by which means they avoided the crime
of felony, for they insulted only their peers, with whom they could
always account for the affront.
It was a very dangerous thing to challenge the peers of false
judgment.
[171]
If the party waited till judgment was pronounced, he was
obliged to fight them all when they offered to make good their
judgment.
[172]
If the appeal was made before all the judges had given
their opinion, he was obliged to fight all who had agreed in their
judgment. To avoid this danger, it was usual to petition the lord to
direct that each peer should give his opinion aloud;
[173]
and when the
first had pronounced, and the second was going to do the same, the party
told him that he was a liar, a knave and a slanderer, and then he had to
fight only with that peer.
Dfontaines
[174]
would have it that, before a challenge was made of
false judgment, it was customary to let three judges pronounce; and he
does not say that it was necessary to fight them all three; much less
that there was any obligation to fight all those who had declared
themselves of the same opinion. These differences arose from this, that
in those times there were few usages exactly in all parts the same;
Beaumanoir gives an account of what passed in the county of Clermont;
and Dfontaines of what was practised in Vermandois.
When one of the peers or a vassal had declared that he would
maintain the judgment, the judge ordered pledges of battle to be given,
and likewise took security of the challenger that he would maintain his
case.
[175]
But the peer who was challenged gave no security, because he
was the lord's vasal, and was obliged to defend the challenge, or to pay
the lord a fine of sixty livres.
If he who challenged did not prove that the judgment was bad,
[176]
he paid the lord a fine of sixty livres, the same fine to the peer whom
he had challenged, and as much to every one of those who had openly
consented to the judgment.
[177]
When a person, strongly suspected of a capital crime, had been taken
and condemned, he could make no appeal of false judgment:
[178]
for he
would always appeal either to prolong his life, or to get an absolute
discharge.
If a person said that the judgment was false and bad and did not
offer to prove it so, that is, to fight, he was condemned to a fine of
ten sous if a gentleman, and to five sous if a bondman, for the
injurious expressions he had uttered.
[179]
The judges or peers who were overcome forfeited neither life nor
limbs,
[180]
but the person who challenged them was punished with death,
if it happened to be a capital crime.
[181]
This manner of challenging the vassals with false judgment was to
avoid challenging the lord himself. But if the lord had no peers,
[182]
or had not a sufficient number, he might at his own expense borrow peers
of his lord paramount;
[183]
but these peers were not obliged to
pronounce judgment if they did not like it; they might declare that they
were come only to give their opinion: in that particular case, the lord
himself judged and pronounced sentence as judge;
[184]
and if an appeal
of false judgment was made against him, it was his business to answer to
the challenge.
If the lord happened to be so very poor as not to be able to hire
peers of his paramount,
[185]
or if he neglected to ask for them, or the
paramount refused to give them, then, as the lord could not judge by
himself, and as nobody was obliged to plead before a tribunal where
judgment could not be given, the affair was brought before the lord
paramount.
This, I believe, was one of the principal causes of the separation
between the jurisdiction and the fief, whence arose the maxim of the
French lawyers, "The fief is one thing, and the jurisdiction is
another." For as there were a vast number of peers who had no
subordinate vassals under them, they were incapable of holding their
court; all affairs were then brought before their lord paramount, and
they lost the privilege of pronouncing judgment, because they had
neither power nor will to claim it.
All the judges who had been at the judgment were obliged to be
present when it was pronounced, that they might follow one another, and
say aye to the person who, wanting to make an appeal of false judgment,
asked them whether they followed;
[186]
for Dfontaines says
[187]
that it
is an affair of courtesy and loyalty, and there is no such thing as
evasion or delay. Hence, I imagine, arose the custom still followed in
England of obliging the jury to be all unanimous in their verdict in
cases relating to life and death.
Judgment was therefore given, according to the opinion of the
majority; and if there was an equal division, sentence was pronounced,
in criminal cases, in favour of the accused; in cases of debt, in favour
of the debtor; and in cases of inheritance, in favour of the defendant.
Dfontaines observes
[188]
that a peer could not excuse himself by
saying that he would not sit in court if there were only four,
[189]
or
if the whole number, or at least the wisest part, were not present. This
is just as if he were to say, in the heat of an engagement, that he
would not assist his lord because he had not all his vassals with him.
But it was the lord's business to cause his court to be respected, and
to choose the bravest and most knowing of his tenants. This I mention,
in order to show the duty of vassals, which was to fight, and to give
judgment: and such, indeed, was this duty, that to give judgment was all
the same as to fight.
It was lawful for a lord, who went to law with his vassal in his own
court, and was cast, to challenge one of his tenants with false
judgment. But as the latter owed a respect to his lord for the fealty he
had vowed, and the lord, on the other hand, owed benevolence to his
vassal for the fealty accepted, it was customary to make a distinction
between the lord's affirming in general that the judgment was false and
unjust,
[190]
and imputing personal prevarications to his tenant.
[191]
In
the former case he affronted his own court, and in some measure himself,
so that there was no room for pledges of battle. But there was room in
the latter, because he attacked his vassal's honour; and the person
overcome was deprived of life and property, in order to maintain the
public tranquillity.
This distinction, which was necessary in that particular case, had
afterwards a greater extent. Beaumanoir says that when the challenger of
false judgment attacked one of the peers by personal imputation, battle
ensued; but if he attacked only the judgment, the peer challenged was at
liberty to determine the dispute either by battle or by law.
[192]
But as
the prevailing spirit in Beaumanoir's time was to restrain the usage of
judicial combats, and as this liberty, which had been granted to the
peer challenged, of defending the judgment by combat or not is equally
contrary to the ideas of honour established in those days, and to the
obligation the vassal lay under of defending his lord's jurisdiction, I
am apt to think that this distinction of Beaumanoir's was a novelty in
French jurisprudence.
I would not have it thought that all appeals of false judgment were
decided by battle; it fared with this appeal as with all others. The
reader may recollect the exceptions mentioned in the 25th chapter. Here
it was the business of the superior court to examine whether it was
proper to withdraw the pledges of battle or not.
There could be no appeal of false judgment against the king's court,
because, as there was no one equal to the king, no one could challenge
him; and as the king had no superior, none could appeal from his court.
This fundamental regulation, which was necessary as a political law,
diminished also as a civil law the abuses of the judicial proceedings of
those times. When a lord was afraid that his court would be challenged
with false judgment, or perceived that they were determined to
challenge, if the interests of justice required that it should not be
challenged, he might demand from the king's court men whose judgment
could not be set aside.
[193]
Thus King Philip, says Dfontaines,
[194]
sent his whole council to judge an affair in the court of the Abbot of
Corbey.
But if the lord could not have judges from the king, he might remove
his court into the king's, if he held immediately of him; and if there
were intermediate lords, he had recourse to his suzerain, removing from
one lord to another till he came to the sovereign.
Thus, notwithstanding they had in those days neither the practice
nor even the idea of our modern appeals, yet they had recourse to the
king, who was the source whence all those rivers flowed, and the sea
into which they returned.
Footnotes
[167]
Beaumanoir, chap. 2, p. 22.
[168]
Ibid., chap. 61, p. 312, and chap. 67, p. 338.
[170]
Beaumanoir, chap. 61, pp. 310 and 311, and chap. 67, p. 337.
[171]
Ibid., chap. 61, p. 313.
[174]
Chapter 22, art. 1, 10, and 11, he says only that each of them
was allowed a small fine.
[175]
Beaumanoir, chap. 61, p. 314.
[176]
Ibid. Defontaines, chap. 22, art. 9.
[178]
Beaumanoir, chap. 61, p. 316, and Defontaines, chap. 22, art. 21.
[179]
Beaumanoir, chap. 61, p. 314.
[180]
Defontaines, chap. 22, art. 7.
[181]
See Defontaines, 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, chap. 62, p. 322. Defontaines, chap. 22, art. 3.
[183]
The count was not obliged to lend any. Beaumanoir, chap. 67, p. 337.
[184]
Nobody can pass judgment in his court. Ibid., pp. 336, 337.
[185]
Ibid., chap. 62, p. 322.
[186]
Defontaines, chap. 21, arts. 27 and 28.
[188]
Chapter 21, art. 37.
[189]
This number at least was necessary. Defontaines, chap. 21, art. 36.
[190]
Beaumanoir, chap. 67, p. 337.
[192]
Ibid., pp. 337, 338.
[193]
Defontaines, chap. 22, art. 14.
28.28. 28. Of the Appeal of Default of Justice.
The appeal of default of
justice was, when the court of a particular lord deferred, evaded, or
refused to do justice to the parties.
During the time of our princes of the second race, though the count
had several officers under him, their person was subordinate, but not
their jurisdiction. These officers in their court days, assizes, or
placita, gave judgment in the last resort as the count himself; all the
difference consisted in the division of the jurisdiction. For instance,
the count had the power of condemning to death, of judging of liberty,
and of the restitution of goods, which the centenarii had not.
[195]
For the same reason there were greater cases which were reserved to
the king; namely, those which directly concerned the political order of
the state.
[196]
Such were the disputes between bishops, abbots, counts,
and other grandees, which were determined by the king together with the
great vassals.
[197]
What some authors have advanced, namely, that an appeal lay from the
count to the king's commissary, or Missus Dominicus, is not
well-grounded. The count and the Missus had an equal jurisdiction,
independent of each other.
[198]
The whole difference was that the Missus
held his Placita, or assizes, four months in the year,
[199]
and the count the other eight.
If a person, who had been condemned at an assize, demanded to have
his cause tried over again, and was afterwards cast, he paid a fine of
fifteen sous, or received fifteen blows from the judges who had decided
the affair.
[200]
When the counts, or the king's commissaries did not find themselves
able to bring the great lords to reason, they made them give bail or
security
[201]
that they would appear in the king's court: this was to
try the cause, and not to rejudge it. I find in the capitulary of
Metz
[202]
a law by which the appeal of false judgment to the king's
court is established, and all other kinds of appeal are proscribed and
punished.
If they refused to submit to the judgment of the sheriffs
[203]
and
made no complaint, they were imprisoned till they had submitted, but if
they complained, they were conducted under a proper guard before the
king, and the affair was examined in his court.
There could be hardly any room then for an appeal of default of
justice. For instead of its being usual in those days to complain that
the counts and others who had a right of holding assizes were not exact
in discharging this duty,
[204]
it was a general complaint that they were
too exact. Hence we find such numbers of ordinances, by which the counts
and all other officers of justice are forbidden to hold their assizes
above thrice a year. It was not so necessary to chastise their
indolence, as to check their activity.
But, after an infinite number of petty lordships had been formed,
and different degrees of vassalage established, the neglect of certain
vassals in holding their courts gave rise to this kind of appeal;
[205]
especially as very considerable profits accrued to the lord paramount
from the several fines.
As the custom of judicial combats gained every day more ground,
there were places, cases, and times, in which it was difficult to
assemble the peers, and consequently in which justice was delayed. The
appeal of default of justice was therefore introduced, an appeal that
has been often a remarkable era in our history; because most of the wars
of those days were imputed to a violation of the political law; as the
cause, or at least the pretence, of our modern wars is the infringement
of the laws of nations.
Beaumanoir says
[206]
that, in case of default of justice, battle was
not allowed: the reasons are these: 1. They could not challenge the lord
himself, because of the respect due to his person; neither could they
challenge the lord's peers, because the case was clear, and they had
only to reckon the days of the summons, or of the other delays; there
had been no judgment passed, consequently there could be no appeal of
false judgment: in fine, the crime of the peers offended the lord as
well as the party, and it was against rule that there should be battle
between the lord and his peers.
But as the default was proved by witnesses before the superior
court,
[207]
the witnesses might be challenged, and then neither the lord
nor his court were offended.
In case the default was owing to the lord's tenants or peers, who
had delayed to administer justice, or had avoided giving judgment after
past delays, then these peers were appealed of default of justice before
the paramount; and if they were cast, they paid a fine to their
lord.
[208]
The latter could not give them any assistance; on the
contrary, he seized their fief, till they had each paid a fine of sixty
livres.
2. When the default was owing to the lord, which was the case
whenever there happened not to be a sufficient number of peers in his
court to pass judgment, or when he had not assembled his tenants or
appointed somebody in his place to assemble them, an appeal might be
made of the default before the lord paramount; but then the party and
not the lord was summoned, because of the respect due to the
latter.
[209]
The lord demanded to be tried before the paramount, and if he was
acquitted of the default, the cause was remanded to him, and he was
likewise paid a fine of sixty livres.
[210]
But if the default was
proved, the penalty inflicted on him was to lose the trial of the
cause,
[211]
which was to be then determined in the superior court. And,
indeed, the complaint of default was made with no other view.
3. If the lord was sued in his own court,
[212]
which never happened
but upon disputes in relation to the fief, after letting all the delays
pass, the lord himself was summoned before the peers in the sovereign's
name,
[213]
whose permission was necessary on that occasion. The peers
did not make the summons in their own name, because they could not
summon their lord, but they could summon for their lord.
[214]
Sometimes the appeal of default of justice was followed by an appeal
of false judgment, when the lord had caused judgment to be passed,
notwithstanding the default.
[215]
The vassal who had wrongfully challenged his lord of default of
justice was sentenced to pay a fine according to his lord's
pleasure.
[216]
The inhabitants of Gaunt had challenged the Earl of Flanders of
default of justice before the king, for having delayed to give judgment
in his own court.
[217]
Upon examination it was found that he had used
fewer delays than even the custom of the country allowed. They were
therefore remanded to him; upon which their effects to the value of
sixty thousand livres were seized. They returned to the king's court in
order to have the fine moderated; but it was decided that the earl might
insist upon the fine, and even upon more if he pleased. Beaumanoir was
present at those judgments.
4. In other disputes which the lord might have with his vassal, in
respect to the person or honour of the latter, or to property that did
not belong to the fief, there was no room for a challenge of default of
justice; because the cause was not tried in the lord's court, but in
that of the paramount: vassals, says Dfontaines,
[218]
having no power to
give judgment on the person of their lord.
I have been at some trouble to give a clear idea of those things,
which are so obscure and confused in ancient authors that to disentangle
them from the chaos in which they were involved may be reckoned a new
discovery.
Footnotes
[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," book 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,"book ii, art. 3.
[199]
Third capitulary of the year 812, art. 8.
[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 and 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," book 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.
[208]
Defontaines, chap. 21, art. 24.
[210]
Beaumanoir, chap. 61, p. 312.
[211]
Defontaines, chap. 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]
Defontaines, chap. 21, art. 34.
[215]
Beaumanoir, chap. 61, p. 311.
[216]
Ibid., chap. 61, p. 312. But he that was neither tenant nor vassal to
the lord paid only a fine of sixty livres. — Ibid.
[218]
Chapter 21, art. 35.
28.29. 29. Epoch of the Reign of St. Louis.
St. Louis abolished the
judicial combats in all the courts of his demesne, as appears by the
ordinance he published thereupon,
[219]
and by the Institutions.
[220]
But he did not suppress them in the courts of his barons, except in
the case of challenge of false judgment.
[221]
A vassal could not challenge the court of his lord of false
judgment, without demanding a judicial combat against the judges who
pronounced sentence. But St. Louis introduced the practice of
challenging of false judgment without fighting, a change that may be
reckoned a kind of revolution.
[222]
He declared
[223]
that there should be no challenge of false judgment
in the lordships of his demesnes, because it was a crime of felony. In
reality, if it was a kind of felony against the lord, by a much stronger
reason it was felony against the king. But he consented that they might
demand an amendment
[224]
of the judgments passed in his courts; not
because they were false or iniquitous, but because they did some
prejudice.
[225]
On the contrary, he ordained that they should be obliged
to make a challenge of false judgment against the courts of the
barons,
[226]
in case of any complaint.
It was not allowed by the Institutions, as we have already observed,
to bring a challenge of false judgment against the courts in the king's
demesnes. They were obliged to demand an amendment before the same
court; and in case the bailiff refused the amendment demanded, the king
gave leave to make an appeal to his court;
[227]
or rather, interpreting
the Institutions by themselves, to present him a request or
petition.
[228]
With regard to the courts of the lords, St. Louis, by permitting
them to be challenged of false judgment, would have the cause brought
before the royal tribunal,
[229]
or that of the lord paramount, not to be
decided by duel
[230]
but by witnesses, pursuant to a certain form of
proceeding, the rules of which he laid down in the Institutions.
[231]
Thus, whether they could falsify the judgment, as in the court of
the barons; or whether they could not falsify, as in the court of his
demesnes, he ordained that they might appeal without the hazard of a
duel.
Dfontaines
[232]
gives us the first two examples he ever saw, in
which they proceeded thus without a legal duel: one, in a cause tried at
the court of St. Quentin, which belonged to the king's demesne; and the
other, in the court of Ponthieu, where the count, who was present,
opposed the ancient jurisprudence: but these two causes were decided by
law.
Here, perhaps, it will be asked why St. Louis ordained for the
courts of his barons a different form of proceeding from that which he
had established in the courts of his demesne? The reason is this: when
St. Louis made the regulation for the courts of his demesnes, he was
not checked or limited in his views: but he had measures to keep with
the lords who enjoyed this ancient prerogative, that causes should not
be removed from their courts, unless the party was willing to expose
himself to the dangers of an appeal of false judgment. St. Louis
preserved the usage of this appeal; but he ordained that it should be
made without a judicial combat; that is, in order to make the change
less felt, he suppressed the thing, and continued the terms.
This regulation was not universally received in the courts of the
lords. Beaumanoir says
[233]
that in his time there were two ways of
trying causes; one according to the king's establishment, and the other
pursuant to the ancient practice; that the lords were at liberty to
follow which way they pleased; but when they had pitched upon one in any
cause, they could not afterwards have recourse to the other. He
adds,
[234]
that the Count of Clermont followed the new practice, while
his vassals kept to the old one; but that it was in his power to
reestablish the ancient practice whenever he pleased, otherwise he would
have less authority than his vassals.
It is proper here to observe that France was at that time divided
into the country of the king's demesne, and that which was called the
country of the barons, or the baronies; and, to make use of the terms of
St. Louis' Institutions, into the country under obedience to the king,
and the country out of his obedience.
[235]
When the king made ordinances
for the country of his demesne, he employed his own single authority.
But when he published any ordinances that concerned also the country of
his barons, these were made in concert with them,
[236]
or sealed and
subscribed by them: otherwise the barons received or refused them,
according as they seemed conducive to the good of their baronies. The
rear-vassals were upon the same terms with the great-vassals. Now the
Institutions were not made with the consent of the lords, though they
regulated matters which to them were of great importance: but they were
received only by those who believed they would redound to their
advantage. Robert, son of St. Louis, received them in his county of
Clermont; yet his vassals did not think proper to conform to this
practice.
Footnotes
[220]
Book i, chaps. 2 and 7, and Book ii, chaps. 10 and 11.
[221]
As appears everywhere in the "Institutions," &c., and
Beaumanoir, chap. 61, p. 309.
[222]
"Institutions," book i, chap. 6, book ii, chap. 15.
[223]
Ibid., book ii. 15.
[224]
Ibid., book i, chap. 78, book ii, chap. 15.
[225]
Ibid., book i, chap. 78.
[226]
Ibid., book ii, chap. 15.
[227]
Ibid., book i, chap. 78.
[228]
Ibid., book ii, chap. 15.
[229]
But if they wanted to appeal without falsifying the judgment,
the appeal was not admitted. — Ibid.
[230]
Ibid., book i, chaps. 6 and 67; book ii, chap. 15; and Beaumanoir, chap. 11, p. 58.
[232]
Chapter 22, arts. 16, 17.
[233]
Chapter 61, p. 309.
[235]
See Beaumanoir, Defontaines, and the "Institutions," book ii, chaps. 10, 11,
15, and others.
[236]
See the ordinances at the beginning of the third race, in the
collection of Laurire, 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, tome ii, book iii, p. 35, and ibid., the ordinance of Philip Augustus,
p. 7.
28.30. 30. Observation on Appeals.
I apprehend that appeals, which were
challenges to a combat, must have been made immediately on the spot. "If
the party leaves the court without appealing," says Beaumanoir,
[237]
"he
loses his appeal, and the judgment stands good." This continued still in
force, even after all the restrictions of judicial combat.
[238]
Footnotes
[237]
Chapter 63, p. 327: chapter 61, p. 312.
[238]
See the "Institutions of St. Louis," book ii, chap. 15, and the "Ordinances of
Charles VII" in the year 1453.
28.31. 31. The same Subject continued.
The villain could not bring a
challenge of false judgment against the court of his lord. This we learn
from Dfontaines,
[239]
and he is confirmed moreover by the
Institutions.
[240]
Hence Dfontaines says,
[241]
"between the lord and his
villain there is no other judge but God."
It was the custom of judicial combats that deprived the villains of
the privilege of challenging their lord's court of false judgment. And
so true is this, that those villains
[242]
who by charter or custom had a
right to fight had also the privilege of challenging their lord's court
of false judgment, even though the peers who tried them were
gentlemen;
[243]
and Dfontaines proposes expedients to gentlemen in order
to avoid the scandal of fighting with a villain by whom they had been
challenged of false judgment.
[244]
As the practice of judicial combats began to decline, and the usage
of new appeals to be introduced, it was reckoned unfair that freemen
should have a remedy against the injustice of the courts of their lords,
and the villains should not; hence the parliament received their appeals
all the same as those of freemen.
Footnotes
[239]
Chapter 21, arts. 21, 22.
[242]
Ibid., 22, art. 7. This article, and the 21st of the 22nd
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.
[243]
Gentlemen may always be appointed judges. Ibid., chap. 21, art. 48.
[244]
Ibid., chap. 22, art. 14.
28.32. 32. The same Subject continued.
When a challenge of false judgment
was brought against the lord's court, the lord appeared in person before
his paramount to defend the judgment of his court. In like manner, in
the appeal of default of justice, the party summoned before the lord
paramount brought his lord along with him, to the end that if the
default was not proved, he might recover his jurisdiction.
[245]
In process of time as the practice observed in these two particular
cases became general, by the introduction of all sorts of appeals, it
seemed very extraordinary that the lord should be obliged to spend his
whole life in strange tribunals, and for other people's affairs. Philip
of Valois ordained
[246]
that none but the bailiffs should be summoned;
and when the usage of appeals became still more frequent, the parties
were obliged to defend the appeal: the deed of the judge became that of
the party.
[247]
I took notice that in the appeal of default of justice,
[248]
the
lord lost only the privilege of having the cause tried in his own court.
But if the lord himself was sued as party,
[249]
which became a very
common practice,
[250]
he paid a fine of sixty livres to the king, or to
the paramount, before whom the appeal was brought. Thence arose the
usage, after appeals had been generally received, of making the fine
payable to the lord upon the reversal of the sentence of his judge; a
usage which lasted a long time, and was confirmed by the ordinance of
Rousillon, but fell, at length, to the ground through its own absurdity.
Footnotes
[245]
Ibid., 21, art. 33.
[247]
See the situation of things in Boutillier's time, who lived in
the year 1402. — Somme Rurale, i, pp. 19, 20.
[249]
Beaumanoir, 61, pp. 312 and 318.
28.33. 33. The same Subject continued.
In the practice of judicial combats,
the person who had challenged one of the judges of false judgment might
lose his cause by the combat, but could not possibly gain it.
[251]
And,
indeed, the party who had a judgment in his favour ought not to have
been deprived of it by another man's act. The appellant, therefore, who
had gained the battle was obliged to fight likewise against the adverse
party: not in order to know whether the judgment was good or bad (for
this judgment was out of the case, being reversed by the combat), but to
determine whether the demand was just or not; and it was on this new
point they fought. Thence proceeds our manner of pronouncing decrees,
"The court annuls the appeal; the court annuls the appeal and the
judgment against which the appeal was brought." In effect, when the
person who had made the challenge of false judgment happened to be
overcome, the appeal was reversed: when he proved victorious, both the
judgment and the appeal were reversed; then they were obliged to proceed
to a new judgment.
This is so far true that, when the cause was tried by inquests, this
manner of pronouncing did not take place: witness what M. de la Roche
Flavin says,
[252]
namely, that the chamber of inquiry could not use this
form at the beginning of its existence.
Footnotes
[251]
Defontaines, 21, art. 14.
[252]
Of the Parliaments of France, i. 16.
28.34. 34. In what Manner the Proceedings at Law became secret.
Duels had
introduced a public form of proceeding, so that both the attack and the
defence were equally known. "The witnesses," says Beaumanoir,
[253]
"ought to give their testimony in open court."
Boutillier's commentator says he had learned of ancient
practitioners, and from some old manuscript law books, that criminal
processes were anciently carried on in public, and in a form not very
different from the public judgments of the Romans. This was owing to
their not knowing how to write; a thing in those days very common. The
usage of writing fixes the ideas, and keeps the secret; but when this
usage is laid aside, nothing but the notoriety of the proceeding is
capable of fixing those ideas.
And as uncertainty might easily arise in respect to what had been
adjudicated by vassals, or pleaded before them, they could, therefore,
refresh their memory
[254]
every time they held a court by what were
called proceedings on record.
[255]
In that case, it was not allowed to
challenge the witnesses to combat; for then there would be no end of
disputes.
In process of time a private form of proceeding was introduced.
Everything before had been public; everything now became secret; the
interrogatories, the informations, the re-examinations, the confronting
of witnesses, the opinion of the attorney-general; and this is the
present practice. The first form of proceeding was suitable to the
government of that time, as the new form was proper to the government
since established.
Boutillier's commentator fixes the epoch of this change to the
ordinance in the year 1539. I am apt to believe that the change was made
insensibly, and passed from one lordship to another, in proportion as
the lords renounced the ancient form of judging, and that derived from
the Institutions of St. Louis was improved. And indeed, Beaumanoir
says
[256]
that witnesses were publicly heard only in cases in which it
was allowed to give pledges of battle: in others they were heard in
secret, and their depositions were reduced to writing. The proceedings
became, therefore, secret, when they ceased to give pledges of battle.
Footnotes
[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.
28.35. 35. Of the Costs.
In former times no one was condemned in the lay
courts of France to the payment of costs.
[257]
The party cast was
sufficiently punished by pecuniary fines to the lord and his peers. From
the manner of proceeding by judicial combat it followed, that the party
condemned and deprived of life and fortune was punished as much as he
could be: and in the other cases of the judicial combat, there were
fines sometimes fixed, and sometimes dependent on the disposition of the
lord, which were sufficient to make people dread the consequences of
suits. The same may be said of causes that were not decided by combat.
As the lord had the chief profits, so he was also at the chief expense,
either to assemble his peers, or to enable them to proceed to judgment.
Besides, as disputes were generally determined at the same place, and
almost always at the same time, without that infinite multitude of
writings which afterwards followed, there was no necessity of allowing
costs to the parties.
The custom of appeals naturally introduced that of giving costs.
Thus Dfontaines says,
[258]
that when they appealed by written law, that
is, when they followed the new laws of St. Louis, they gave costs; but
that in the ordinary practice, which did not permit them to appeal
without falsifying the judgment, no costs were allowed. They obtained
only a fine, and the possession for a year and a day of the thing
contested, if the cause was remanded to the lord.
But when the number of appeals increased from the new facility of
appealing;
[259]
when by the frequent usage of those appeals from one
court to another, the parties were continually removed from the place of
their residence; when the new method of procedure multiplied and
prolonged the suits; when the art of eluding the very justest demands
became refined; when the parties at law knew how to fly only in order to
be followed; when plaints were ruinous and defence easy; when the
arguments were lost in whole volumes of words and writings; when the
kingdom was filled with limbs of the law, who were strangers to justice;
when knavery found encouragement at the very place where it did not find
protection; then it was necessary to deter litigious people by the fear
of costs. They were obliged to pay costs for the judgment and for the
means they had employed to elude it. Charles the Fair made a general
ordinance on that subject.
[260]
Footnotes
[257]
Defontaines 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," book i, tit. 3, p. 16, Paris, 1621.
28.36. 36. Of the public Prosecutor.
As by the Salic, Ripuarian, and other
barbarous laws, crimes were punished with pecuniary fines; they had not
in those days, as we have at present, a public officer who had the care
of criminal prosecutions. And, indeed, the issue of all causes being
reduced to the reparation of injuries, every prosecution was in some
measure civil, and might be managed by any one. On the other hand, the
Roman law had popular forms for the prosecution of crimes which were
inconsistent with the functions of a public prosecutor.
The custom of judicial combats was no less opposite to this idea;
for who is it that would choose to be a public prosecutor and to make
himself every man's champion against all the world?
I find in the collection of formulas, inserted by Muratori in the
laws of the Lombards, that under our princes of the second race there
was an advocate for the public prosecutor.
[261]
But whoever pleases to
read the entire collection of these formulas will find that there was a
total difference between such officers and those we now call the public
prosecutor, our attorneys-general, our king's solicitors, or our
solicitors for the nobility. The former were rather agents to the public
for the management of political and domestic affairs, than for the
civil. And, indeed, we did not find in those formulas that they were
entrusted with criminal prosecutions, or with causes relating to minors,
to churches, or to the condition of any one.
I said that the establishment of a public prosecutor was repugnant
to the usage of judicial combats. I find, notwithstanding, in one of
those formulas, an advocate for the public prosecutor, who had the
liberty to fight. Muratori has placed it just after the constitution of
Henry I, for which it was made.
[262]
In this constitution it is said,
"That if any man kills his father, his brother, or any of his other
relatives, he shall lose their succession, which shall pass to the other
relatives, and his own property shall go to the exchequer." Now it was
in suing for the estate which had devolved to the exchequer, that the
advocate for the public prosecutor, by whom its rights were defended,
had the privilege of fighting: this case fell within the general rule.
We see in those formulas the advocate for the public prosecutor
proceeding against a person who had taken a robber, but had not brought
him before the count;
[263]
against another who had raised an
insurrection or tumult against the count;
[264]
against another who had
saved a man's life whom the count had ordered to be put to death;
[265]
against the advocate of some churches, whom the count had commanded to
bring a robber before him, but had not obeyed;
[266]
against another who
had revealed the king's secret to strangers;
[267]
against another, who
with open violence had attacked the emperor's commissary;
[268]
against
another who had been guilty of contempt to the emperor's rescripts, and
he was prosecuted either by the emperor's advocate or by the emperor
himself;
[269]
against another who refused to accept of the prince's
coin;
[270]
in fine, this advocate sued for things which by the law were
adjudged to the exchequer.
[271]
But in criminal causes, we never meet with the advocate for the
public prosecutor; not even where duels are used;
[272]
not even in the
case of incendiaries;
[273]
not even when the judge is killed on his
bench;
[274]
not even in causes relating to the conditions of
persons,
[275]
to liberty and slavery.
[276]
These formulas are made, not only for the laws of the Lombards, but
likewise for the capitularies added to them, so that we have no reason
to doubt of their giving us the practice observed with regard to this
subject under our princes of the second race.
It is obvious that these advocates for a public prosecutor must have
ended with our second race of kings, in the same manner as the king's
commissioners in the provinces; because there was no longer a general
law nor general exchequer, and because there were no longer any counts
in the provinces to hold the assizes, and, of course, there were no more
of those officers whose principal function was to support the authority
of the counts.
As the usage of combats became more frequent under the third race,
it did not allow of any such thing as a public prosecutor. Hence
Boutillier, in his Somme Rurale,
speaking of the officers of justice, takes notice only of the bailiffs,
the peers and serjeants. See the Institutions
[277]
and Beaumanoir
[278]
concerning the manner in which
prosecutions were managed in those days.
I find in the laws of James II, King of Majorca,
[279]
a creation of
the office of king's attorney-general, with the very same functions as
are exercised at present by the officers of that name among us. It is
manifest that this office was not instituted till we had changed the
form of our judiciary proceedings.
Footnotes
[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, section 78.
[264]
Another formula, ibid., p. 87.
[277]
Book i, 1; ii, 11, 13.
[279]
See these laws in the "Lives of the Saints," of the month of
June, tome iii, p. 26.
28.37. 37. In what Manner the Institutions of St. Louis fell into Oblivion.
It was the fate of the Institutions that their origin, progress, and
decline were comprised within a very short period.
I shall make a few reflections upon this subject. The code we have
now under the name of St. Louis' Institutions was never designed as a
law for the whole kingdom, though such a design is mentioned in the
preface. The compilation is a general code, which determines all points
relating to civil affairs, to the disposal of property by will or
otherwise, the dowries and privileges of women, and emoluments and
privileges of fiefs, with the affairs in relation to the police, &c.
Now, to give a general body of civil laws, at a time when each city,
town, or village, had its customs, was attempting to subvert in one
moment all the particular laws then in force in every part of the
kingdom. To reduce all the particular customs to a general one would be
a very inconsiderate thing, even at present when our princes find
everywhere the most passive obedience. But if it be true that we ought
not to change when the inconveniences are equal to the advantages, much
less should we change when the advantages are small and the
inconveniences immense. Now, if we attentively consider the situation
which the kingdom was in at that time, when every lord was puffed up
with the notion of his sovereignty and power, we shall find that to
attempt a general alteration of the received laws and customs must be a
thing that could never enter into the heads of those who were then in
the administration.
What I have been saying proves likewise that this code of
institutions was not confirmed in parliament by the barons and
magistrates of the kingdom, as is mentioned in a manuscript of the
town-hall of Amiens, quoted by M. Du Cange.
[280]
We find in other
manuscripts that this code was given by St. Louis in the year 1270,
before he set out for Tunis. But this fact is not truer than the other;
for St. Louis set out upon that expedition in 1269, as M. Du Cange
observes: whence he concludes that this code might have been published
in his absence. But this I say is impossible. How can St. Louis be
imagined to have pitched upon the time of his absence for transacting an
affair which would have been a sowing of troubles, and might have
produced not only changes, but revolutions? An enterprise of that kind
had need, more than any other, of being closely pursued, and could not
be the work of a feeble regency, composed moreover of lords, whose
interest it was that it should not succeed. These were Mathieu, Abbot of
St. Denis, Simon of Clermont, Count of Nesle, and, in case of death,
Philip, Bishop of Evreux, and Jean, Count of Ponthieu. We have seen
above
[281]
that the Count of Ponthieu opposed the execution of a new
judiciary order in his lordship.
Thirdly, I affirm it to be very probable that the code now extant is
quite a different thing from St. Louis' Institutions, It cites the
Institutions; therefore it is a comment upon the Institutions, and not
the institutions themselves. Besides, Beaumanoir, who frequently makes
mention of St. Louis' Institutions, quotes only some particular laws of
that prince, and not this compilation. Dfontaines,
[282]
who wrote in
that prince's reign, makes mention of the first two times that his
Institutions on judicial proceedings were put in execution, as of a
thing long since elapsed. The institutions of St. Louis were prior,
therefore, to the compilation I am now speaking of, which from their
rigour, and their adopting the erroneous prefaces inserted by some
ignorant persons in that work, could not have been published before the
last year of St. Louis or even not till after his death.
Footnotes
[280]
Preface to the "Institutions."
[282]
See above, chapter 29.
28.38. 38. The same Subject continued.
What is this compilation then which
goes at present under the name of St. Louis' Institutions? What is this
obscure, confused, and ambiguous code, where the French law is
continually mixed with the Roman, where a legislator speaks and yet we
see a civilian, where we find a complete digest of all cases and points
of the civil law? To understand this thoroughly, we must transfer
ourselves in imagination to those times.
St. Louis, seeing the abuses in the jurisprudence of his time,
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. Dfontaines, 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 Dfontaines.
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 Dfontaines 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 Dfontaines 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.
Footnotes
[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," book ii, chap. 15,
28.39. 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]
Footnotes
[287]
See Du Tillet on the court of peers. See also Laroche, Flavin,
Budeus and Paulus Æmilius, book i, chap. 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.
28.40. 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.
Footnotes
[290]
Beaumanoir, chap. 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 Laurire.
[294]
Beaumanoir, chap. 11, p. 60.
28.41. 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.
Footnotes
[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."
28.42. 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.
Footnotes
[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," chap. 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 Thaumassiere, 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," Book iv, 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., book 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," book I, tit. xiv, which is
proved likewise by Beaumanoir, "Ancient Custom of Beauvoisis," chap. 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," book i, chap. 105, book ii, chap. 15.
[307]
Beaumanoir, chap. 67, p. 336, and chap. 61, pp. 315 and 316. The
"Institutions," Book ii, chap. 15.
28.43. 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.
Footnotes
[308]
It was published in the year 1287.
28.44. 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.
Footnotes
[309]
See in what manner age and parentage were proved. --
"Institutions," book i, chaps. 71, 72.
28.45. 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 Dfontaines, 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.
Footnotes
[310]
Prologue to the "Ancient Custom of Beauvoisis."
[312]
See the "Collection of Ordinances," by Lauriere.
[313]
This was observed at the digesting of the customs of Berry and
of Paris. See La Thaumassire, 3.
[314]
In the "Spectator."
