How the Institutions of St. Lewis fell into OblivionMarch 9, 2020
The origin, progress, and decline of institutions happened within a very short period.
The code called St. Lewis’s institutions, was never designed as a law for the whole kingdom, though such a design is mentioned in the preface. It is a general code which determines=
- civil affairs,
- the disposal of property by will or otherwise,
- the dowries and advantages of women, and
- emoluments and privileges of fiefs, with the affairs relative 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 every where the most passive obedience. But if it be a rule 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.
Back then, every lord was puffed up with the notion of his sovereignty and power. They would never think of changing their received laws and customs.
This code was not confirmed in parliament by the barons and magistrates of the kingdom, as is mentioned in a manuscript of the town-house of Amiens, quoted by Mons. Ducange.
This code was given by St. Lewis in 1270, before he set out for Tunis. St. Lewis set went that expedition in 1269.
From this, Mr. Ducange concludes that this code might have been published in his absence. But I think this is impossible. How can St. Lewis be imagined to have pitched upon the time of his absence for transacting an affair which would have been the seed 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 Matthew abbot of St. Denis, Simon of Clermont count of Nelle, and in case of death Philip bishop of Evreux, and John count of Ponthieu. We have seen above† that the count of Ponthieu opposed the execution of a new judiciary order in his lordship.
The current code is quite different from St. Lewis’s institutions. It is a comment on the institutions, and not the institutions themselves.
Besides, Beaumanoir frequently mentions St. Lewis’s institutions. He quotes only some particular laws of that prince, and not this compilement.
Défontaines wrote during St. Lewis’ reign. He mentions of the two first times that his institutions on judicial proceedings were put in execution, as of a thing long since elapsed.
The institutions of St. Lewis were prior therefore to the compilement I am now speaking of, which in rigor, and adopting the erroneous prefaces inserted by some ignorant persons in that work, could not have been published before the last year of St. Lewis, or even not till after his death.
WHAT is this compilement then which goes at present under the name of St. Lewis’s institutions? What is this obscure, confused, and ambiguous code, where the French law is continually mixed with the Roman, where the legislator speaks and yet we see a civilian, where we find a complete digest of all cases and points of the civil law? To understand this thoroughly, we must transfer ourselves in imagination to those times.
St. Lewis seeing the abuses in the jurisprudence of his time, endeavoured to give the people a dislike to it= with this view he made several regulations for the court of his demesnes and for those of his barons. And such was his success, that Beaumanoir†, who wrote a little after the death of that prince, informs us, that the manner of trying causes which had been established by St. Lewis, obtained in a great number of the courts of the barons.
Thus this prince attained his end, though his regulations for the courts of the lords were not designed as a general law for the kingdom, but as a model which every one might follow, and would even find his advantage in it. He removed the bad practice by shewing them a better.
When it appeared that his courts, and those of some lords, had chosen a form of proceeding more natural, more reasonable, more conformable to morality, to religion, to the public tranquility, and to the security of person and property; this form was soon adopted, and the other rejected.
To allure when it is rash to constrain, to win by pleasing means when it is improper to exert authority, shews the man of abilities. Reason has a natural, and even a tyrannical sway; it meets with resistance, but this very resistance constitutes its triumph; for after a short struggle it commands an intire submission.
St. Lewis, in order to give a distaste of the French jurisprudence, caused the books of the Roman law to be translated; by which means they were made known to the lawyers of those times. Défontaines, who is the oldest* law writer we have, made great use of those Roman laws.
His work is in some measure a result of the ancient French jurisprudence, of the laws or institutions of St. Lewis, and of the Roman law. Beaumanoir made very little use of the latter; but he reconciled the ancient French laws to the regulations of St. Lewis.
The law book, named The Institutions, was compiled by some bailiffs, with the same design as that of the authors of those two works, and especially of Défontaines.
The title of this work mentions, that it is written according to the usage of Paris, Orleans, and the court of Barony; The preamble says that it treats of the usages of the whole kingdom, and of Anjou, and of the court of Barony.
It was made for Paris, Orleans, and Anjou, just as the works of Beaumanoir and Défontaines were made for the counties of Clermont and Vermandois.
As it appears from Beaumanoir, that divers laws of St. Lewis had been received in the courts of Barony, the compiler was in the right to say, that his work* related also to those courts.
Its author compiled the customs of France together with the laws and institutions of St. Lewis. This is a very valuable work because it contains=
- the ancient customs of Anjou,
- the institutions of St. Lewis
- the whole practice of the ancient French law.
Unlike those of Défontaines and Beaumanoir, this work speaks in imperative terms as a legislator.
There was an intrinsic defect in this compilement= it formed an amphibious code, in which the French and Roman laws were mixed, and where things were joined that were no way relative, but often contradictory to each other.
These conformed to the popular judgments of the Romans=
- the French courts of vassals or peers,
- the judgments without power of appealing to another tribunal,
- the manner of pronouncing sentence by the words ‘I condemn’ or ‘I absolve’
But they made very little use of that ancient jurisprudence. They rather chose that which was afterwards introduced by the emperor, in order to regulate, limit, correct, and extend the French jurisprudence.
THE judiciary forms introduced by St. Lewis fell into disuse. This prince had not so much in view the thing itself, that is, the best manner of trying causes, as the best manner of supplying the ancient practice of trial.
Its main intent was to give a disrelish of the ancient jurisprudence and create a new one. But when the inconveniencies of the new jurisprudence appeared, another jurisprudence soon succeeded.
The Institutions afforded the means of changing French jurisprudence. They opened new tribunals, or rather ways to come at them. When once the public had easy access to the superior courts, the judgments which before constituted only the usages of a particular lordship, formed an universal digest.
Through The Institutions, they could get general judgments which were entirely lacking in France. When the building was finished, they let the scaffold fall to the ground.
Thus, The Institutions produced effects which could hardly be expected from a masterpiece of legislation. To prepare great changes, sometimes whole ages are needed. The events ripen, and the revolutions follow.
The parliament judged in the last resort of almost all the affairs of the kingdom. Before, it took cognizance only of disputes between the dukes, counts, barons, bishops, abbots, or between the king and his vassals†, rather in the relation they had 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. In the end, a great number were created, in order to be sufficient for the decision of all manner of causes.
No sooner was the parliament become a fixed body, than they began to compile its decrees. | John de Monluc, under the reign of Philip the Fair, made a collection, which, at present, is known by the name of the registers.