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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]

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.

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.

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.

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.

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.

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 Défontaines, 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.