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.
