Chapter 42

The Revival of the Roman Law and the Change in the Tribunals

March 6, 2020

The Roman law seemed to rise out of its ashes upon the discovery of Justinian’s digest towards the year 1137

Schools were then established in Italy, where it was publicly taught. They had the Justinian code, and the Novellae. This code was so favourably received in Italy 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. Justinian’s laws were not made until after the settlement of the Barbarians in Gaul.

This law had some opposition. But it stood its ground despite the excommunications of the popes, who supported their own canons.

St. Lewis tried to bring it into repute by translating Justinian’s works, made according to his orders, which are still in manuscript in our libraries.

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. They were adopted as a law in those provinces where the Roman law had been received.

Judicial combats required very little knowledge in the judges. Disputes were decided according to the usage of each place, and to a few simple traditional customs.

In Beaumanoir’s time there were two ways of administering justice=

  • by peers, with the peers gave judgment according to the practice of their court
  • by bailiffs, with old men, who pointed out this same practice to the bailiff

These required neither learning, capacity, nor study.

But the peers and the old men were no longer capable of judging when=

  • the dark code of the institutions made its appearance
  • the Roman law was translated and taught in public schools
  • a certain art of procedure and jurisprudence began to be formed
  • practitioners and civilians were seen to rise

The peers began to withdraw from the lords tribunals. The old way of trial by solemn proceeding was=

  • agreeable to the nobility
  • interesting to a warlike people

It was replaced by a course of pleading. The lords did not understand nor cared to learn about it. They were not interested in assembling the peers for such trials.

The custom of trying by peers began to be less used. The custom of trying by bailiffs was more used.

The bailiffs did not give judgment themselves. They summoned the evidence and pronounced the judgment of the prodes homines who were no longer capable of judging. And so 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.

A judge’s deputy was introduced to moderate the abuse in local jurisdictions. This deputy consults and represents the ancient prodes homines by the obligation the judge is under of taking two graduates, in cases that deserve a corporal punishment.

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. ul li 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 chuse their bailiffs from among the laity.

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 punishedfor 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.

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