Montesquieu
 

XXVIII.41 The ebb and flow of ecclesiastical jurisdiction and lay jurisdiction

Civil autho­rity being in the hands of count­less lords, it had been easy for eccle­sias­ti­cal juris­dic­tion to allow itself ever grea­ter scope ; but as eccle­sias­ti­cal juris­dic­tion sap­ped the juris­dic­tion of lords, and in that way hel­ped add strength to royal juris­dic­tion, royal juris­dic­tion gra­dually res­trai­ned eccle­sias­ti­cal juris­dic­tion, and the lat­ter retrea­ted before the for­mer. The par­le­ment, which had adop­ted in its pro­ce­du­ral form all that was good and use­ful in that of the cle­ri­cal tri­bu­nal, soon could see nothing but its abu­ses ; and with royal juris­dic­tion gai­ning ground every day, it was always in a bet­ter posi­tion to cor­rect those very abu­ses. Indeed, they were into­le­ra­ble ; and without enu­me­ra­ting them, I shall refer the rea­der to Beaumanoir, Boutillier, and the ordi­nan­ces of our kings.1 I shall speak only of those that directly involve the public inte­rest. We know of these abu­ses from the decrees that refor­med them : dense igno­rance had intro­du­ced them ; a sort of cla­rity appea­red, and they were gone. We can judge from the silence of the clergy, which itself anti­ci­pa­ted the cor­rec­tion, which, given the nature of the human mind, deser­ves praise. Any man who died without giving some of his pos­ses­sions to the Church, which was cal­led dying unsh­ri­ven, was denied com­mu­nion and burial. If one died without making a will, the family had to get the bishop to name, along with them, arbi­tra­tors to deter­mine what the decea­sed should have given had he made a will. A cou­ple could not sleep toge­ther on their wed­ding night, nor even the next two, without having pur­cha­sed per­mis­sion to do so ; it was indeed those three nights that had to be cho­sen, since they would not have paid much money for the others. The par­le­ment cor­rec­ted all that : in the glos­sary of Ragau’s French law2 we find the decree which it issued3 against the bishop of Amiens.

To return to the begin­ning of my chap­ter : when in any cen­tury or under any govern­ment we see the various bodies of the state see­king to expand their autho­rity, and take cer­tain advan­ta­ges over each other, we would often be wrong if we regar­ded their enter­pri­ses as a cer­tain sign of their cor­rup­tion. By a mis­for­tune atta­ched to the human condi­tion, great and mode­rate men are rare ; and since it is always easier to fol­low one’s strength than to check it, it is per­haps easier in the class of super­ior per­sons to find extre­mely vir­tuous per­sons than extre­mely wise men.

The mind tas­tes such delights in domi­na­ting other minds ; even those who love the good love them­sel­ves so much that there is no one who is not unhappy enough the he still must sus­pect his good inten­tions ; and in truth, our acts depend on so many things that it is a thou­sand times easier to do good than to do it well.

See Boutillier, Somme rural, tit. 9, which persons cannot make a demand in lay court ; and Beaumanoir, ch. xi, p. 56 ; and the statutes of Philip Auguste on this subject, and the establishment of Philip Augustus made with the clergy, the king, and the barons.

At the word “Exécuteurs testamentaires.”

Of 19 March 1409.