Montesquieu
 

XXVIII.37 How the « Establishments » of St. Louis fell into oblivion

It was the fate of the Establishments that they were born, aged, and died in very lit­tle time.

I will make a few obser­va­tions about that. The code which we have under the name of Establishment of St. Louis was never made to serve as law for the whole realm, although that is what the pre­face of this code sta­tes. This com­pi­la­tion is a gene­ral code that pro­noun­ces on all civil mat­ters, the dis­po­si­tions of assets by tes­ta­ment or bet­ween living per­sons, dowries and advan­ta­ges of women, the pro­fits and pre­ro­ga­ti­ves of fiefs, affairs of public order, etc. Now at a time when every city, burg or vil­lage had its cus­toms, to issue a gene­ral body of civil laws was to attempt to over­turn in an ins­tant all the par­ti­cu­lar laws under which peo­ple lived in each place in the king­dom. To make a gene­ral cus­tom of all the sepa­rate cus­toms would be impru­dent, even in these pre­sent times when the prin­ces encoun­ter only obe­dience eve­ryw­here. For if it is true that one must not change when the disad­van­ta­ges equal the advan­ta­ges, one should even less do so when the advan­ta­ges are small and the disad­van­ta­ges immense. Now if we look clo­sely at the state of the realm at that time, when eve­ryone was heady at the thought of his sove­rei­gnty and autho­rity, we see clearly that under­ta­king to change the laws and recei­ved prac­ti­ces eve­ryw­here was some­thing that could not occur to those who gover­ned.

What I have just said pro­ves again that this code of Establishments was not confir­med in par­le­ment by the barons and men of law in the king­dom, as it is said in a manus­cript of the city hall of Amiens cited by Mr. Ducange.1 We see in the other manus­cripts that this code was issued by St. Louis in the year 1270 before he left for Tunis : this fact is not more true, for St. Louis left in 1269, as Mr. Ducange has noted, whence he conclu­des that this code must have been publi­shed in his absence. But I say that this can­not be. Why would St. Louis have taken the time of his absence to do som­thing that would have been a sowing of unrest, and which could have pro­du­ced not chan­ges but revo­lu­tions ? Such an under­ta­king cal­led more than ano­ther for being fol­lo­wed clo­sely, and was not the doing of a fee­ble regency and even one com­po­sed of lords2 whose had an inte­rest in the thing not suc­cee­ding.

I say in the third place that it is very likely the code we have is some­thing dif­fe­rent from the Establishments of St. Louis on the judi­cial order. This code cites the Establishments : it is the­re­fore a work on the Establishments, and not the Establishments. Moreover Beaumanoir, who speaks often of the Establishments of St. Louis, cites only par­ti­cu­lar esta­blish­ments of that prince, and not this com­pi­la­tion of Establishments. Défontaines,3 who wrote under that prince, speaks to us of the first two times his Establishments on judi­ciary order were exe­cu­ted as a thing long past. The Establishments of St. Louis the­re­fore ante­date the com­pi­la­tion I am spea­king of, which strictly spea­king, and adop­ting the erro­neous pro­lo­gues pla­ced by some igno­ra­mu­ses at the head of this work, could have appea­red only in the last year in the life of St. Louis, or even after the prince’s death.

Preface of the Establishments.

Matthew [de Vendôme], abbé of St. Denis, Simon of Clermont, count of Nelle, and in case of death Philip, bishop of Évreux, and Jean, count of Ponthieu. We have seen above in ch. xxx that the count of Ponthieu opposed in his seigniory the execution of a new judicial order. It is Défontaines who relates this fact.

See above, ch. xxx.