Montesquieu

What then is this com­pi­la­tion we have under the name Establishments of St. Louis ? What is this obs­cure, murky, and ambi­guous code which is cons­tantly mixing French juris­pru­dence with Roman law, which speaks like a legis­la­tor but has the appea­rance of a juris­consult, where we find an entire body of juris­pru­dence on all cases and on all points of civil law ? We must ima­gine our­sel­ves back in those times.

St. Louis, seeing the abu­ses of the juris­pru­dence of his time, sought to turn his peo­ples away from it : he made seve­ral sta­tu­tes for the tri­bu­nals of his domains and for those of his barons, and he had such suc­cess that Beaumanoir, who wrote very soon after the prince’s death, tells us that the man­ner of jud­ging esta­bli­shed by St. Louis was prac­ti­ced in a great num­ber of sei­gnio­rial courts.1

Thus the prince ful­filled his objec­tive, although his sta­tu­tes for the sei­gnio­rial tri­bu­nals had not been made to be a gene­ral law of the realm, but as an exam­ple that each lord might fol­low, and which each would even have an inte­rest in fol­lo­wing. He got rid of the bad by giving a sense of the bet­ter. When they saw in his tri­bu­nals, and when they saw in those of some lords, a more natu­ral, more rea­so­na­ble way of pro­cee­ding, more conso­nant with mora­lity, reli­gion, public tran­qui­lity, and the secu­rity of per­son and pro­perty, they adop­ted it and aban­do­ned the other.

To invite when one must not cons­train, to guide when one must not com­mand : that is supreme skill. Reason has a natu­ral ascen­dency ; it even has a tyran­ni­cal ascen­dency : it is resis­ted, but that resis­tance is its triumph ; a lit­tle while later one will be for­ced to revert to it.

St. Louis, to turn peo­ple away from French juris­pru­dence, had the books of Roman law trans­la­ted so they would be known by the men of the law of those times. Défontaines, who is the first wri­ter2 we have on prac­tice, made great use of these Roman laws ; his work is in a way a result of the old French juris­pru­dence, of the laws or Establishments of St. Louis, and of Roman law. Beaumanoir made lit­tle use of Roman law, but he reconci­led ancient French juris­pru­dence with the sta­tu­tes of St. Louis.

It is in the spi­rit of these two works, and espe­cially that of Défontaines, that some bai­liffs, I think, crea­ted the work of juris­pru­dence which we call the Establishments. It is sta­ted in the title of this work that it is writ­ten in accor­dance with the prac­tice of Paris and Orleans and of baro­nial courts, and in the pro­lo­gue that it deals with the prac­ti­ces of the whole realm and of Anjou, and of baro­nial courts. It is clear that this work was made for Paris, Orleans, and Anjou, as the works of Beaumanoir and Défontaines were made for the coun­ties of Clermont and Vermandois ; and as it appears from Beaumanoir that seve­ral laws of St. Louis had rea­ched into the baro­nial courts, the com­pi­ler was right to say that his work was also rele­vant to baro­nial courts.

It is clear that the per­son who crea­ted this work com­pi­led the cus­toms of coun­tries with the laws and the Establishments of St. Louis. This work is very pre­cious, because it contains the old cus­toms of Anjou and the Establishments of St. Louis as they were then prac­ti­ced, and finally what was prac­ti­ced there of the old French juris­pru­dence.

There is nothing so vague as the title and the pro­lo­gue of the Establishments, which have without doubt since been added. First there are the prac­ti­ces of Paris and Orleans and baro­nial courts ; next the prac­ti­ces of all the lay courts of the realm and of the pré­vôté3 of France ; next the prac­ti­ces of the whole realm and of Anjou and baro­nial courts.

I believe that St. Louis had this work begun, and that it was fini­shed by his suc­ces­sor ; and that it was one prince or the other, or both, who had some of the cus­toms of their domains writ­ten down ; and because the laws just made by St. Louis were mixed in, this work was named the Establishments of St. Louis. Indeed such a great name was sure to confer much favor on the work. All of that was put for­ward under a gene­ral form, and this whole pro­cee­ding was a great act of pru­dence. By having them writ­ten down, awa­re­ness of them was exten­ded ; by giving them a gene­ral form, their use was exten­ded. The laws of the realm were then just the cus­toms of each place, retai­ned in the memo­ries of old men. In this gene­ral insuf­fi­ciency, each lord could find in this new code what was lacking in his laws ; it was a spring from which eve­ryone could draw. The dif­fe­rence bet­ween this work and those of Défontaines and Beaumanoir is that it speaks in terms of com­mand, like legis­la­tors ; and it could be thus because it was a mix­ture of writ­ten cus­toms and laws.

Ch. lxi, p. 309.

He says of himself in his prologue : “Nus lui en prit onques mais cette chose dont j’ai.”

[Office of the provost (prévôt).]