I took notice that in the appeal of default of justice 0 the lord lost only the privilege of having the cause tried in his own court. But if the lord himself was sued as party,/* which became a very common practice,? he paid a fine of sixty livres to the king, or to the paramount, before whom the appeal was brought. Thence arose the usage after appeals had been generally received, of making the fine payable to the lord upon the reversal of the sen- tence of his judge; a usage which lasted a long time, and was confirmed by the ordinance of Rousillon, but fell, at length, to the ground through its own absurdity.
33. — The same Subject continued In the practice of judicial combats, the person who had chal- lenged one of the judges of false judgment might lose his cause by the combat, but could not possibly gain it.r And, indeed, the party who had a judgment in his favor ought not to have been / Defontaines, chap. xxi. art. 33. o See chap. xxx.
m In the year 1332. p Beaumanoir, chap. Ixi. pp. 312 and _«See the situation of things in Bou- 318. tillier's time, who lived in the year q Ibid.
1402.—" Somme Rurale," book I. pp. r Defontaines, chap. xxi. art. 14.
ig and 20.
138 MONTESQUIEU deprived of it by another man's act. The appellant, therefore, who had gained the battle was obliged to fight likewise against the adverse party: not in order to know whether the judgment was good or bad (for this judgment was out of the case, being reversed by the combat), but to determine whether the demand was just or not; and it was on this new point they fought. Thence proceeds our manner of pronouncing decrees. " The court annuls the appeal; the court annuls the appeal and the judgment against which the appeal was brought." In effect, when the person who had made the challenge of false judgment happened to be overcome the appeal was reversed: when he proved victorious both the judgment and the appeal were re- versed; then they were obliged to proceed to a new judgment.
This is so far true, that when the cause was tried by inquests this manner of pronouncing did not take place: witness what M. de la Roche Flavin says,-? namely, that the chamber of enquiry could not use this form at the beginning of its existence.
34. — In what Manner the Proceedings at Law became secret Duels had introduced a public form of proceeding so that both the attack and the defence were equally known. " The wit- nesses," says Beaumanoir,^ " ought to give their testimony in open court."
Boutillier's commentator says he had learned of ancient prac- titioners, and from some old manuscript law books, that criminal processes were anciently carried on in public, and in a form not very different from the public judgments of the Romans. This was owing to their not knowing how to write; a thing in those days very common. The usage of writing fixes the ideas, and keeps the secret; but when this usage is laid aside, nothing but the notoriety of the proceeding is capable of fixing those ideas. And as uncertainty might easily arise in respect to what had been adjudicated by vassals, or pleaded before them, they could, therefore, refresh their memory m every time they held a court by what were called proceedings on record.^ In that case, it was not allowed to challenge the witnesses to combat; for then there would be no end of disputes.
* Of the Parliaments of France, book v They proved by witnesses what had XII. chap. xvi. been already done, said, or decreed in t Chap. Ixi. p. 315. court.
M As Beaumanoir says, chap, xxxix.
THE SPIRIT OF LAWS 139 In process of time a private form of proceeding was intro- duced. Everything before had been public; everything now became secret; the interrogatories, the informations, the re-ex- aminations, the confronting of witnesses, the opinion of the at- torney-general; and this is the present practice. The first form of proceeding was suitable to the government of that time, as the new form was proper to the government since established, Boutillier's commentator fixes the epoch of this change to the ordinance in the year 1539. I am apt to believe that the change was made insensibly, and passed from one lordship to another, in proportion as the lords renounced the ancient form of judging, and that derived from the Institutions of St. Louis was improved. And, indeed, Beaumanoir says w that witnesses were pubUcly heard only in cases in which it was allowed to give pledges of battle: in others they were heard in secret, and their depo- sitions were reduced to writing. The proceedings became, there- fore, secret, when they ceased to give pledges of battle.
35. — Of the Costs In former times no one was condemned in the lay courts of France to the payment of costs.^ The party cast was sufficiently punished by pecuniary fines to the lord and his peers. From the manner of proceeding by judicial combat it followed, that the party condemned and deprived of life and fortune was pun- ished as much as he could be: and in the other cases of the ju- dicial combat, there were fines sometimes fixed, and sometimes dependent on the disposition of the lord, which were sufficient to make people dread the consequences of suits. The same may be said of causes that were not decided by combat. As the lord had the chief profits, so he was also at the chief expense, either to assemble his peers, or to enable them to proceed to judgment. Besides, as disputes were generally determined at the same place, and almost always at the same time, without that infinite multi- tude of writings which afterwards followed, there was no neces- sity of allowing costs to the parties.
The custom of appeals naturally introduced that of giving costs. Thus Defontaines says,^ that when they appealed by w Chap, xxxix. p. 218. chap, xxxiii. " Institutions," book I.
X Defontaines in his counsel, chap. chap. xc. xxii. arts. 3 and 8; and Beaumanoir, y Chap. xxii. art. 8.
I40 MONTESQUIEU written law, that is, when they followed the new laws of St. Louis, they gave costs; but that in the ordinary practice, which did not permit them to appeal without falsifying the judgment, no costs were allowed. They obtained only a fine, and the possession for a year and a day of the thing contested, if the cause was re- manded to the lord.
But when the number of appeals increased from the new fa- ciHty of appealing; s when by the frequent usage of those appeals from one court to another, the parties were continually removed from the place of their residence; when the new method of pro- cedure multiplied and prolonged the suits; when the art of elud- ing the very justest demands became refined; when the parties at law knew how to fly only in order to be followed; when plaints were ruinous and defence easy; when the arguments were lost in whole volumes of words and writings; when the kingdom ' was filled with limbs of the law, who were strangers to justice; when knavery found encouragement at the very place where it did not find protection; then it was necessary to deter litigious people by the fear of costs. They were obliged to pay costs for the judgment and for the means they had employed to elude it. Charles the Fair, made a general ordinance on that subject.o 36. — Of the public Prosecutor As by the Salic, Ripuarian, and other barbarous xaws, crimes were punished with pecuniary fines; they had not in those days, as we have at present, a public officer who had the care of criminal prosecutions. And, indeed, the issue of all causes being reduced to the reparation of injuries, every prosecution was in some meas- ure civil, and might be managed by anyone. On the other hand, the Roman law had popular forms for the prosecution of crimes which were inconsistent with the functions of a pubHc prosecutor.
The custom of judicial combats was no less opposite to this idea; for who is it that would choose to be a public prosecutor and to make himself every man's champion against all the world?
I find in the collection of formulas, inserted by Muratori in the laws of the Lombards, that under our princes of' the second race there was an advocate for the public prosecutor.^ But whoe At present when they are so in- a In the year 1324.
clined to appeal, says Boutillier.— b " Advocatus de parte publica."
THE SPIRIT OF LAWS 141 ever pleases to read the entire collection of these formulas will find that there was a total difference between such officers and those we now call the public prosecutor, our attorneys-general, our king's sohcitors, or our solicitors for the nobility. The for- mer were rather agents to the public for the management of po- litical and domestic affairs, than for the civil. And, indeed, we did not find in those formulas that they were intrusted with criminal prosecutions, or with causes relating to minors, to churches, or to the condition of anyone.
I said that the establishment of a public prosecutor was repug- nant to the usage of judicial combats. I find, notwithstanding, in one of those formulas, an advocate for the public prosecutor, who had the liberty to fight. Muratori has placed it just after the constitution of Henry I, for which it was made.c In this constitution it is said, " That if any man kills his father, his brother, or any of his other relatives, he shall lose their succes- sion, which shall pass to the other relatives, and his own prop- erty shall go to the exchequer." Now it was in suing for the estate which had devolved to the exchequer, that the advocate for the pubHc prosecutor, by whom its rights were defended, had the privilege of fighting: this case fell within the general rule.
We see in those formulas the advocate for the public prose- cutor proceeding against a person who had taken a robber, but had not brought him before the count; d against another who had raised an insurrection or tumult against the count; e against an- other who had saved a man's life whom the count had ordered to be put to death; f against the advocate of some churches, whom the count had commanded to bring a robber before him, but had not obeyed;^ against another who had revealed the king's secret to strangers; h against another, who with open vio- lence had attacked the emperor's commissary; i against another who had been guilty of contempt to the emperor's rescripts, and he was prosecuted either by the emperor's advocate or by the emperor himself;; against another, who refused to accept of the prince's coin; k in fine, this advocate sued for things, which by the law were adjudged to the exchequer./ c See this constitution and this for- / Ibid. p. 104.
mula, in the second volume of the g Collection of Muratori, p. 95.
the 88th law of Charlemagne, book I. / Ibid. p. 132.
142 MONTESQUIEU But in criminal causes, we never meet with the advocate for the public prosecutor; not even where duels are used; w not even in the case of incendiaries; w not even when the judge is killed on his bench; o not even in causes relating to the conditions of per- sons,/" to liberty and slavery.?
These formulas are made, not only for the laws of the Lom- bards, but likewise for the capitularies added to them, so that we have no reason to doubt of their giving us the practice observed with regard to this subject under our princes of the second race.
It is obvious, that these advocates for a public prosecutor must have ended with our second race of kings, in the same manner as the king's commissioners in the provinces; because there was no longer a general law nor general exchequer, and because there were no longer any counts m the provmces to hold the assizes, and, of course, there were no more of those officers, whose princi- pal function was to support the authority of the counts.
As the usage of combats became more frequent under the third race, it did not allow of any such thing as a public prosecu- tor. Hence Boutillier, in his " Somme Rurale," speaking of the officers of justice, takes notice only of the bailiffs, the peers, and sergeants. See the Institutions,** and Beaumanoir,^ concerning the manner in which prosecutions were managed in those days.
I find in the laws of James II, King of Majorca,^ a creation of the office of king's attorney-general, with the Very same func- tions as are exercised at present by the officers of that name among us." It is manifest that this office was not instituted till we had changed the form of our judiciary proceedmgs.
37. — In what Manner the Institutions of St. Louis fell into Oblivion It was the fate of the Institutions, that their origin, progress, and decline were comprised within a very short period.
I shall make a few reflections upon this subject. The code we have now under the name of St, Louis's Institutions was never designed as a law for the whole kingdom, though such a m Collection of Muratori, p. 147. / See these laws in the " Lives of the It Ibid. Saints," of the month of June, torn. iii.
p Ibid. p. 134. « " Qui continue nostram sacram q Ibid. p. 107. curiam sequi teneatur, instituatur qui r Book I. chap. i.; and book II. facta et causas in ipsa curia promoveat chaps, xi. and xiii. ^tque prosequatur, s Cap. i. and Ixi.
THE SPIRIT OF LAWS 143 design is mentioned in the preface. The compilation is a gen- eral code, which determines all points relating to civil affairs, to the disposal of property by will or otherwise, the dowries and privileges of women, and emoluments and privileges of fiefs, with the affairs in relation to the police, etc. 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 everywhere the most passive obedience. But if it be true 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. Now, if we atten- tively consider the situation which the kingdom was in at that time, when every lord was puffed up with the notion of his sovereignty and power, we shall find that to attempt a general al- teration of the received laws and customs must be a thing that could never enter into the heads of those who were then in the administration.
What I have been saying proves likewise that this code of institutions was not confirmed in parliament by the barons and magistrates of the kingdom, as is mentioned in a manuscript of the town-hall of Amiens, quoted by M. Ducange.t^ We find in other manuscripts that this code was given by St. Louis in the year 1270, before he set out for Tunis. But this fact is not truer than the other; for St. Louis set out upon that expedition in 1269, as M. Ducange observes: whence he concludes, that this code might have been published in his absence. But this I say is impossible. How can St. Louis be imagined to have pitched upon the time of his absence for transacting an affair which would have been a sowing 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 pur- sued, and could not be the work of a feeble regency, composed moreover of lords, whose interest it was that it should not suc- ceed. These were Matthew, Abbot of St. Denis, Simon of Cler- mont, Count of Nesle, and, in case of death, Philip, Bishop of Evreux, and John, Count of Ponthieu. We have seen above w V Preface to the " Institutions." w Chap. xxix.
144 MONTESQUIEU that the Count of Ponthieu opposed the execution of a new ju- diciary.order in his lordship.
Thirdly, I affirm it to be very probable, that the code now ex- tant is quite a different thing from St. Louis's Institutions. It cites the Institutions, therefore it is a comment upon the Institu- tions, and not the Institutions themselves. Besides, Beaumanoir, who frequently maices mention of St. Louis's Institutions, quotes only some particular laws of that prince, and not this compila- tion. Defontaines,^ who wrote in that prince's reign, makes mention of the first two times that his Institutions on judicial proceedings were put in execution, as of a thing long since elapsed. The Institutions of St. Louis were prior, therefore, to the compilation I am now speaking of, which from their rigor, and their adopting the erroneous prefaces inserted by some ig- norant persons in that work, could not have been published be- fore the last year of St. Louis or even not till after his death.
38. — The same Subject continued What is this compilation then which goes at present under the name of St. Louis's Institutions? What is this obscure, con- fused, and ambiguous code, where the French law is continually mixed with the Roman, where a 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 trans- fer ourselves in imagination to those times.
St. Louis, seeing the abuses in the jurisprudence of his time, endeavored 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 Beau- manoir, who wrote a little after the death of that prince, informs us y that the manner of trying causes which had been established by St. Louis 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 everyone might follow, and would even find his advantage in it. He removed the bad prac- tice by showing them a better. When it appeared that his courts, and those of some lords, had chosen a form of proceeding more K See above, chap. xxix. '' y Chap. Ixi. p. 309.
THE SPIRIT OF LAWS 145 natural, more reasonable, more conformable to morality, to re- ligion, to the public tranquillity, 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, shows 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 entire sub- mission.
St. Louis, in order to give a distaste of the French jurispru- dence, caused the books of the Roman law to be translated; by which means they were made known to the lawyers of those times. Defontaines, who is the oldest law writer we have, made great use of those Roman laws..s His work is, in some measure, a result from the ancient French jurisprudence, of the laws or Institutions of St. Louis, 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. Louis.
I have a notion, therefore, that the law book, known by the name of the Institutions, was compiled by some bailiflfs, with the same design as that of the authors of those two works, and especially of Defontaines, 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 usage of the whole kingdom, 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 Defontaines were framed for the counties of Clermont and Vermandois; and as it appears from Beaumanoir that divers laws of St. Louis had been received in the courts of barony, the compiler was in the right to say that his work related also to those courts.o It is manifest that the person who composed this work com- piled the customs of the country together with the laws and In- stitutions of St. Louis. This is a very valuable work, because it contains the ancient customs of Anjou, the Institutions of St.
^ He says of himself, in his prologue, of barony; then they are the customs " Nus luy en prit onques mais cette of all the lay courts of the kingdom, chose dont j'ay, * and of the provostships of France; at o Nothing so vague as the title and length, they are the customs of the prologue. At first they are the cus- whole kingdom, Anjou, and the court toms of Paris, Orleans, and the court of barony.
Vol II— 10 146 MONTESQUIEU Louis, 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 Defontaines 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 compilation; it formed an amphibious code, in which the French and Roman laws were mixed, and where things were joined that were in no relation, 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 con- demn " or " I absolve," b 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.
39. — The same Subject continued The judiciary forms introduced by St. Louis 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. The principal intent was to give a disrelish of the ancient jurisprudence, and the next to form a new one. But when the inconveniences of the latter appeared, an- other soon succeeded.
The Institutions of St. Louis did not, therefore, so much change the French jurisprudence, as they afforded the means of changing it; they opened new tribunals, or rather ways to come at them. And when once the public had easy access to the su- perior courts, the judgments which before constituted only the usages of a particular lordship formed a universal digest. By means of the Institutions, they had obtained general decisions, which were entirely wanting in the kingdom; 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 b " Institutions," book II. chap. xv.
THE SPIRIT OF LAWS 147 changes whole ages are sometimes requisite; the events ripen, and the revolutions follow.
The Parliament judged in the last resort of almost all the af- fairs of the kingdom. Before,c it took cognizance only of dis- putes between the dukes, counts, barons, bishops, abbots, or be- tween the king and his vassals,c? rather in the relation they bore 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: and, in fine, a great number were created, in order to be suflticient for the decision of all manner of causes.
No sooner had the Parliament become a fixed body, than they began to compile its decrees. John de Monluc, in the reign of Philip the Fair, made a collection which at present is known by the name of the Olim registers.^ 40. — In what Manner the judiciary Forms were borrowed from the Decretals But how comes it, some will ask, that when the Institutions were laid aside the judicial forms of the canon law should be pre- ferred to those of the Roman? It was because they had con- stantly before their eyes the ecclesiastic courts, which followed the forms of the canon law, and they knew of no court that fol- lowed those of the Roman law? Besides, the limits of the spirit- ual and temporal jurisdiction were at that time very Httle under- stood; there were people who sued indifferently ^and causes that were tried indifferently, in either court.^ It seems h as if the temporal jurisdiction reserved no other cases exclusively to it- self than the judgment of feudal matters,* and of such crimes committed by laymen as did not relate to religion. For; if, on account of conventions and contracts, they had occasion to sue in a temporal court, the parties might of their own accord proceed before the spiritual tribunals; and as the latter had not a power to oblige the temporal court to execute the sentence, they comc See Du Tillet on the court of peers. h See the whole eleventh chapter of See also Laroche, Flavin, book I. chap. Beaumanoir.
iii., Budeus and Paulus ^Emilius. i The spiritual tribunals had even laid d Other causes were decided by the hold of tnese, under the pretext of the ordinary tribunals. oath, as may be seen by the famous e See the President Renault's excel- Concordat between Philip Augustus, lent abridgment of the " History of the clergy, and the barons, which is to France " in the year 1313. be_ found in the Ordinances of Lauriere.
f Beaumanoir, chap. xi. p. 58. _; Beaumanoir, chap. xi. p. 60.
e Widows, croises, etc. — Beaumanois, 148 MONTESQUIEU manded submission by means of excommunications. Under those circumstances, when they wanted to change the course of proceedings in the temporal court, they took that of the spiritual tribunals, because they knew it; but did not meddle with that of the Roman law, by reason they were strangers to it: for in point of practice people know only what is really practised.
41. — Flux and Reflux of the ecclesiastic and temporal Jurisdiction The civil power being in the hands of an infinite number of lords, it wa$ an easy matter for the ecclesiastic jurisdiction to gain daily a greater extent. But as the ecclesiastic courts weak- ened those of the lords, and contributed thereby to give strength to the royal jurisdiction, the latter gradually checked the juris- diction of the clergy. The Parliament, which in its form of pro- ceedings had adopted whatever was good and useful in the spirit- ual courts, soon perceived nothing else but the abuses which had crept into those tribunals; and as the royal jurisdiction gained ground every day, it grew every day more capable of correcting those abuses. And, indeed, they were intolerable; without enu- merating them I shall refer the reader to Beaumanoir, to Boutil- lier, and to the ordinances of our kings.^ I shall mention only two, in which the public interest was more directly concerned. These abuses we know by the decrees that reformed them; they had been introduced in the times of the darkest ignorance, and upon the breaking out of the first gleam of light, they vanished. From the silence of the clergy it may be presumed that they for- warded this reformation: which, considering the nature of the human mind, deserves commendation. Every man that died without bequeathing a part of his estate to the church, which was called dying without confession, was deprived of the sacra- ment and of Christian burial. If he died intestate, his relatives were obliged to prevail upon the bishop that he would, jointly with them, name proper arbiters to determine what sum the deceased ought to have given, in case he had made a will. Peo- ple could not lie together the first night of their nuptials, or even the two following nights without having previously purchased k See Boutillier, " Somme Rurale," tions of Philip Augustus upon this sub- tit. 9, what persons are incapable of Jfct; as also the regulation between suing in a temporal court; and Beau- Philip Augustus, the clergy, and the manoir, chap. xi. p. 56, and the regula- barons.
THE SPIRIT OF LAWS 149 leave; these, indeed, were the best three nights to choose; for as to the others, they were not worth much. All this was re- dressed by the Parliament: we find in the glossary of the French law,^ by Ragneau, the decree which it published against the Bishop of Amiens.wt I return to the beginning of my chapter. Whenever we ob- serve in any age or government the different bodies of the state endeavoring to increase their authority, and to take particular advantages of each other, we should be often mistaken were we to consider their enroachments as an evident mark of their cor- ruption. Through a fatality inseparable from human nature, moderation in great men is very rare: and as it is always much easier to push on force in the direction in which it moves than to stop its movement, so in the superior class of the people, it is less difficult, perhaps, to find men extremely virtuous, than ex- tremely prudent.