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.
