第 85 页

191. Ibid.

192. Ibid., pp. 337, 338.

193. Défontaines, 22, art. 14.

194. Ibid.

195. Third capitulary of the year 812, art. 3, edition of Baluzius, p. 497, and of Charles the Bald, added to the law of the Lombards, ii, art. 3.

196. Third capitulary of the year 812, art. 2, edition of Baluzius, p. 497.

197. Capitulary of Louis the Debonnaire, edition of Baluzius, p. 667.

198. See the Capitulary of Charles the Bald, added to the law of the Lombards, ii, art. 3.

199. Third capitulary of the year 812, art. 8.

200. Placitum.

201. This appears by the formulas, charters, and the capitularies.

202. In the year 757, edition of Baluzius, p. 180, arts. 9 and 10, and the Synod apud Vernas, in the year 755, art. 29, edition of Baluzius, p. 175. These two capitularies were made under King Pepin.

203. The officers under the count, Scabini.

204. See the Law of the Lombards, ii, tit. 52, art. 22.

205. There are instances of appeals of default of justice as early as the time of Philip Augustus.

206. Chapter 61, p. 315.

207. Ibid.

208. Défontaines, 21, art. 24.

209. Ibid., art. 32.

210. Beaumanoir, 61, p. 312.

211. Défontaines, 21, art. 29.

212. This was the case in the famous difference between the Lord of Nesle and Joan, Countess of Flanders, during the reign of Louis VIII. He called upon her to have it tried within forty days, and thereupon challenged her at the king's court with default of justice. She answered that she would have it tried by her peers in Flanders. The king's court determined that it should not be sent there and that the countess should be cited.

213. Défontaines, 21, art. 34.

214. Ibid., art. 9.

215. Beaumanoir, 61, p. 311.

216. Ibid., 61, p. 312. But he that was neither tenant nor vassal to the lord paid only a fine of sixty livres. -- Ibid.

217. Ibid., p. 318.

218. Chapter 21, art. 35.

219. In the year 1260.

220. Book i. 2, 7, and ii. 10, 11.

221. As appears everywhere in the Institutions, &c., and Beaumanoir, 61, p. 309.

222. Institutions, i. 6, ii. 15.

223. Ibid., ii. 15.

224. Ibid., i. 78, ii. 15.

225. Ibid., i. 78.

226. Ibid., ii. 15.

227. Ibid., i. 78.

228. Ibid., ii. 15.

229. But if they wanted to appeal without falsifying the judgment, the appeal was not admitted. -- Ibid.

230. Ibid., i. 6, 67; ii. 15; and Beaumanoir, 11, p. 58.

231. Book i. 1-3.

232. Chapter 22, arts. 16, 17.

233. Chapter 61, p. 309.

234. Ibid.

235. See Beaumanoir, Défontaines, and the Institutions, ii. 10, 11, 15, and others.

236. See the ordinances at the beginning of the third race, in the collection of Lauriére, especially those of Philip Augustus, on ecclesiastic jurisdiction; that of Louis VIII concerning the Jews; and the charters related by Mr. Brussel; particularly that of St. Louis, on the release and recovery of lands, and the feodal majority of young women, ii, book iii, p. 35, and ibid., the ordinance of Philip Augustus, p. 7.

237. Chapter 63, p. 327: chapter 61, p. 312.

238. See the Institutions of St. Louis, ii. 15, and the Ordinance of Charles VII in the year 1453.

239. Chapter 21, arts. 21, 22.

240. Book i. 136.

241. Chapter 2, art. 8.

242. Ibid., 22, art. 7. This article, and the 21st of the 22nd chapter of the same author, have been hitherto very badly explained. Défontaines does not oppose the judgment of the lord to that of the gentleman, because it was the same thing; but he opposes the common villain to him who had the privilege of fighting.

243. Gentlemen may always be appointed judges. Ibid., 21, art. 48.

244. Ibid., 22, art. 14.

245. Ibid., 21, art. 33.

246. In the year 1332.

247. See the situation of things in Boutillier's time, who lived in the year 1402. -- Somme Rurale, i, pp. 19, 20.

248. See chapter 30.

249. Beaumanoir, 61, pp. 312 and 318.

250. Ibid.

251. Défontaines, 21, art. 14.

252. Of the Parliaments of France, i. 16.

253. Chapter 61, p. 315.

254. As Beaumanoir says, chapter 39, p. 209.

255. They proved by witnesses what had been already done, said, or decreed in court.

256. Chapter 39, p. 218.

257. Défontaines in his counsel, chapter 22, arts. 3, 8; and Beaumanoir, 33. Institutions, i. 90.

258. Chapter 22, art. 8.

259. At present when they are so inclined to appeal, says Boutillier -- Somme Rurale, i, tit. 3, p. 16, Paris, 1621.

260. In the year 1324.

261. Advocatus de parte publica.

262. See this constitution and this formula, in the second volume of the Historians of Italy, p. 175.

263. Collection of Muratori, p. 104. on the 88th law of Charlemagne, i, tit. 26, § 78.

264. Another formula, ibid., p. 87.

265. Ibid., p. 104.

266. Ibid., p. 95.

267. Ibid., p. 88.

268. Ibid., p. 98.

269. Ibid., p. 132.

270. Ibid.

271. Ibid., p. 137.

272. Ibid., p. 147.

273. Ibid.

274. Ibid., p. 168.

275. Ibid., p. 134.

276. Ibid., p. 107.

277. Book i, 1; ii, 11, 13.

278. Chapters 1,61.

279. See these laws in the Lives of the Saints, of the month of June, iii, p. 26.

280. Preface to the Institutions.

281. Chapter 29.

282. See above, chapter 29.

283. Chapter 61, p. 309.

284. As he says himself, in his prologue.

285. Nothing so vague as the title and prologue. At first they are the customs of Paris, Orleans, and the court of Barony; then they are the customs of all the lay courts of the kingdom, and of the provostships of France; at length, they are the customs of the whole kingdom, Anjou, and the court of Barony.

286. Institutions, ii. 15,

287. See Du Tillet on the court of peers. See also Laroche, Flavin, Budeus and Paulus ?milius, i. 3.

288. Other causes were decided by the ordinary tribunals.

289. See the President Henault's excellent abridgment of the history of France in the year 1313.

290. Beaumanoir, 11, p. 58.

291. Widows, croises, &c. -- Ibid.

292. See the whole eleventh chapter of Beaumanoir.

293. The spiritual tribunals had even laid hold of these, under the pretext of the oath, as may be seen by the famous Concordat between Philip Augustus, the clergy, and the barons, which is to be found in the ordinances of Lauriére.

294. Beaumanoir, 11, p. 60.

295. See Boutillier, Somme Rurale, tit. 9, what persons are incapable of suing in a temporal court; and Beaumanoir, 11, p. 56, and the regulations of Philip Augustus upon this subject; as also the regulation between Philip Augustus, the clergy, and the barons.

296. In the word "testamentary Executors."

297. March 19, 1409.

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, 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 Thaumassière, 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, i, 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., 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, I, tit. xiv, which is proved likewise by Beaumanoir, Ancient Custom of Beauvoisis, 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, i. 105, ii. 15.

307. Beaumanoir, 67, p. 336, and 61, pp. 315 and 316. The Institutions, ii. 15.

308. It was published in the year 1287.

309. See in what manner age and parentage were proved. -- Institutions, i. 71, 72.

310. Prologue to the Ancient Custom of Beauvoisis.

311. Chapter 12.

312. See the Collection of Ordinances, by Laurière.

313. This was observed at the digesting of the customs of Berry and of Paris. See La Thaumassière, 3.

314. In the Spectator.

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Book XXIX. Of the Manner of Composing Laws

1. Of the Spirit of a Legislator. I say it, and methinks I have undertaken this work with no other view than to prove it, the spirit of a legislator ought to be that of moderation; political, like moral good, lying always between two extremes.[1] Let us produce an example.

The set forms of justice are necessary to liberty, but the number of them might be so great as to be contrary to the end of the very laws that established them; processes would have no end; property would be uncertain; the goods of one of the parties would be adjudged to the other without examining, or they would both be ruined by examining too much.

The citizens would lose their liberty and security, the accusers would no longer have any means to convict, nor the accused to justify themselves.

2. The same Subject continued. Cecilius, in Aulus Gellius,[2] speaking of the law of the Twelve Tables which permitted the creditor to cut the insolvent debtor into pieces, justifies it even by its cruelty, which hindered people from borrowing beyond their ability of paying.[3] Shall then the cruellest laws be the best? Shall goodness consist in excess, and all the relations of things be destroyed?

3. That the Laws which seem to deviate from the Views of the Legislator are frequently agreeable to them. The law of Solon which declared those persons infamous who espoused no side in an insurrection seemed very extraordinary; but we ought to consider the circumstances in which Greece was at that time. It was divided into very small states; and there was reason to apprehend lest in a republic torn by intestine divisions the soberest part should keep retired, in consequence of which things might be carried to extremity.

In the seditions raised in those petty states the bulk of the citizens either made or engaged in the quarrel. In our large monarchies parties are formed by a few, and the people choose to live quietly, In the latter case it is natural to call back the seditious to the bulk of the citizens, and not these to the seditious; in the other it is necessary to oblige the small number of prudent people to enter among the seditious; it is thus the fermentation of one liquor may be stopped by a single drop of another.

4. Of the Laws contrary to the Views of the Legislator. There are laws so little understood by the legislator as to be contrary to the very end he proposed. Those who made this regulation among the French, that when one of the two competitors died the benefice should devolve to the survivor, had in view, without doubt, the extinction of quarrels; but the very reverse falls out; we see the clergy at variance every day, and like English mastiffs worrying one another to death.

5. The same Subject continued. The law I am going to speak of is to be found in this oath preserved by ?schines:[4] "I swear that I will never destroy a town of the Amphictyones, and that I will not divert the course of its running waters; if any nation shall presume to do such a thing, I will declare war against them and will destroy their towns." The last article of this law, which seems to confirm the first, is really contrary to it. Amphictyon is willing that the Greek towns should never be destroyed, and yet his law paves the way for their destruction. In order to establish a proper law of nations among the Greeks, they ought to have been accustomed early to think it a barbarous thing to destroy a Greek town; consequently they ought not even to ruin the destroyers. Amphictyon's law was just, but it was not prudent; this appears even from the abuse made of it. Did not Philip assume the power of demolishing towns, under the pretence of their having infringed the laws of the Greeks? Amphictyon might have inflicted other punishments; he might have ordained, for example, that a certain number of the magistrates of the destroying town, or of the chiefs of the infringing army, should be punished with death; that the destroying nation should cease for a while to enjoy the privileges of the Greeks; that they should pay a fine till the town was rebuilt. The law ought, above all things, to aim at the reparation of damages.

6. The Laws which appear the same have not always the same Effect. C?sar made a law to prohibit people from keeping above sixty sesterces in their houses.[5] This law was considered at Rome as extremely proper for reconciling the debtors to their creditors, because, by obliging the rich to lend to the poor, they enabled the latter to pay their debts. A law of the same nature made in France at the time of the System proved extremely fatal, because it was enacted under a most frightful situation. After depriving people of all possible means of laying out their money, they stripped them even of the last resource of keeping it at home, which was the same as taking it from them by open violence. C?sar's law was intended to make the money circulate; the French minister's design was to draw all the money into one hand. The former gave either lands or mortgages on private people for the money; the latter proposed in lieu of money nothing but effects which were of no value, and could have none by their very nature, because the law compelled people to accept of them.

7. The same Subject continued. Necessity of composing Laws in a proper Manner. The law of ostracism was established at Athens, at Argos,[6] and at Syracuse. At Syracuse it was productive of a thousand mischiefs, because it was imprudently enacted. The principal citizens banished one another by holding the leaf of a fig-tree in their hands, so that those who had any kind of merit withdrew from public affairs.[7] At Athens, where the legislator was sensible of the proper extent and limits of his law, ostracism proved an admirable regulation. They never condemned more than one person at a time; and such a number of suffrages were requisite for passing this sentence that it was extremely difficult for them to banish aperson whose absence was not necessary to the state.[8]