Chapter 45

The Customs of France

March 4, 2020

FRANCE was governed by written customs. The particular usages of each lordship constituted the civil law.

Every lordship had its civil law, according to Beaumanoir, 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 intirely governed by the same law.

This prodigious diversity had a two-fold origin.

With regard to the first, the reader may recollect what has been already said concerning it in the chapter of local customs= 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. Lewis.

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.

  1. 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 infranchise them.

The lords by infranchising 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 infranchising 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 infranchisement; those charters formed a part of our customs, and this part was reduced to writing.

  1. Under the reign of St. Lewis and of the succeeding princes, some able practitioners, such as Défontaines, Beaumanoir, and others, committed the customs of their bailiwics 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 they contributed greatly to the restoration of our ancient French jurisprudence. Such was in those days our common law.

We are come now to the grand epocha.

Charles 7th 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 used to render the customs more general, as much as possible, without injuring the interests of individuals, which were carefully preserved. Thus our customs were characterized in a three-fold manner; They were committed to writing, they were made more general, and they received the stamp of the royal authority.

Many of these customs having been digested anew, several changes were made, either in suppressing whatever was incompatible with the actual practice of the law, or in adding several things drawn from this practice.

Though the common law is considered amongst us as in some measure opposite to the Roman, insomuch that these two laws divide the different territories;

It is notwithstanding true, that several regulations of the Roman law entered into our customs, especially when they made the new digests, at a time not very distant from ours, when this law was the principal study of those who were designed for civil employments; at a time when it was not usual for people to boast of not knowing what it was their duty to know, and of knowing what they should not know; at a time when a quickness of understanding was made more subservient towards learning, than pretending to, a profession; and when a continual pursuit of amusements was not even the characteristic of women.

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