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,
