CHAP. XXXVIII.: The same Subject continued.

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 Chap 61. page 309. ^†808, 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 He says of himself, in his prologue, Nus lui en prit onques mais cette chose dont j’ay ^†809 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.

I have a notion therefore that the law book, known by the name of 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; and the preamble says that it treats of the usages of the whole kingdom, and of Anjou, and of the court of Barony. It is plain, that this work was made for Paris, Orleans, and Anjou, as the works of Beaumanoir and Défontaines were framed for the counties of Clermont and Vermandois; and 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 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 custom, of the whole kingdom, Anjou, and the court of Barony. ^†810 related also to those courts.

It is manifest, that the person who composed this work, compiled the customs of the country, 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, as they were then in use; and, in fine, the whole practice of the ancient French law.

The difference between this work, and those of Défontaines and Beaumanoir, is, its speaking in imperative terms as a legislator; and this might be right, since it was a medley of written customs and laws.

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.

I am not ignorant, that the French courts of vassals or peers, the judgments without power of appealing

to another tribunal, the manner of pronouncing sentence by these words, I condemn Institutions, book. ii. chap. 15. ^†811, or, I absolve, had some conformity to the popular judgments of the Romans. 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,