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 D嶨ontaines 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.
D嶨ontaines 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 D嶨ontaines,[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.
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 D嶨ontaines,[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.
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.
D嶨ontaines[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 deme, sne? 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.
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]
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 D嶨ontaines,[239] and he is confirmed moreover by the Institutions.[240] Hence D嶨ontaines 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 D嶨ontaines 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.
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.
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.
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.
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 D嶨ontaines 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]
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.
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. D嶨ontaines,[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.
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
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 D嶨ontaines 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.
D嶨ontaines 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 D嶨ontaines,[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.
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 D嶨ontaines,[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.
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.
D嶨ontaines[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 deme, sne? 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.
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]
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 D嶨ontaines,[239] and he is confirmed moreover by the Institutions.[240] Hence D嶨ontaines 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 D嶨ontaines 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.
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.
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.
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.
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 D嶨ontaines 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]
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.
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. D嶨ontaines,[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.
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