Montesquieu
 

XXVIII.42 The revival of Roman law, and what resulted from it. Change in the tribunals

Justinian’s Digest having been redis­co­ve­red around the year 1137, Roman law see­med to have a second birth. Schools were esta­bli­shed in Italy where it was taught ; we already had the Justinian code and the Novellæ. I have already said that this law gai­ned such favor there that it cau­sed the law of the Lombards to be eclip­sed.

Italian scho­lars brought Justinian’s law to France, where we had known only the Theodosian code,1 because it was only after the esta­blish­ment of the bar­ba­rians in the Gauls that the laws of Justinian were made.2 That law was oppo­sed in some quar­ters, but it stood its ground des­pite the excom­mu­ni­ca­tions of popes who were pro­tec­ting their canons.3 St. Louis sought to accre­dit it through the trans­la­tions which he had made of Justinian’s works, which we still have in manus­cript in our libra­ries ; and I have already said that great use was made of them in the Establishments. Philip the Fair had Justinian’s laws taught, only as writ­ten rea­son, in the regions of France gover­ned by cus­toms,4 and they were adop­ted as law in the regions where Roman law was the law.

I have said above that the man­ner of pro­ce­ding by judi­cial com­bat requi­red very lit­tle com­pe­tence in those who jud­ged ; mat­ters were deci­ded in each loca­tion accor­ding to the prac­tice of each loca­tion, and fol­lo­wing some sim­ple cus­toms that were accep­ted by tra­di­tion. There were in the time of Beaumanoir two dif­fe­rent man­ners of dis­pen­sing jus­tice5 : in some pla­ces they jud­ged by peers,6 in others they jud­ged by bai­liffs ; when the first form was fol­lo­wed, peers jud­ged accor­ding to the prac­tice of their juris­dic­tion7 ; in the second, it was experts or old men who indi­ca­ted the same prac­tice to the bai­liff. All this requi­red no lite­racy, no abi­lity, no trai­ning. But when the obs­cure code of the Establishments appea­red ; when Roman law was trans­la­ted ; when it began to be taught in the schools ; when a cer­tain art of pro­ce­dure and a cer­tain art of juris­pru­dence began to deve­lop ; when prac­ti­cians and juris­consults sprang up, the peers and experts were no lon­ger in a posi­tion to judge ; the peers began to with­draw from the lord’s tri­bu­nals ; the lords were disin­cli­ned to assem­ble them, all the more so that judg­ments, ins­tead of being an arres­ting event, agreea­ble to the nobi­lity and attrac­tive to men of war, were no lon­ger any­thing but a prac­tice that they nei­ther knew nor wished to know. The prac­tice of jud­ging by peers became less com­mon,8 that of jud­ging by bai­liffs more com­mon. The bai­liffs did not judge9 ; they conduc­ted the pro­ce­dure and pro­noun­ced the ver­dict of the experts ; but the experts no lon­ger being in a posi­tion to judge, the bai­liffs them­sel­ves jud­ged.

That was done all the more rea­dily that they had before their eyes the prac­tice of the Church jud­ges : canon law and the new civil law hel­ped equally to abo­lish the peers.

Thus was lost the prac­tice cons­tantly obser­ved in the monar­chy that a judge would never judge alone, as we see from the Salic laws, the capi­tu­la­ries, and the first authors of prac­tice of the third dynasty.10 The contrary abuse, which occurs only in local jus­ti­ces, has been mode­ra­ted and to some degree cor­rec­ted by the intro­duc­tion in seve­ral pla­ces of a judge’s lieu­te­nant, whom the judge consults, and who repre­sents the for­mer experts ; by the judge’s obli­ga­tion to take two gra­dua­tes, in the cases that can deserve an afflic­tive punish­ment ; and finally it has become null through the extreme pre­va­lence of appeals.

In Italy they followed the code of Justinian ; that is why pope John VIII in his bull given after the Synod of Troyes speaks of this code, not because it was known in France, but because he knew it himself ; and his bull was general.

This emperor’s code was published about the year 530.

Decretals, book V, tit. De privilegiis, capite super specula.

By a charter of the year 1312 in favor of the university of Orléans, related by Dutillet.

Custom of Beauvaisis, ch. i of Office des baillis.

In the commune, the bourgeois were judged by other bourgeois, as the fief holders judged each other. See La Thaumassiere, ch. xix.

Thus all requests began with these words : “Your honor, it is the practice that in your jurisdiction, etc.,” as appears from the formula recorded in Boutillier, Somme rural, book 1, tit. 21.

The change was gradual ; we find peers being used still in the time of Boutillier, who was alive in 1402, date of his testament, who records this formula in book I, tit. 21 : “Sire Juge, en ma justice haute, moyenne et basse, que j’ai en tel lieu, cour, plaids, baillis, hommes féodaux, et Sergens,” but it was no longer anything but feudal matters that were judged by peers (ibid., book I, tit. 1, p. 16).

As it appears in the formula of the letters which the lord gave them, related by Boutillier (Somme rural, book 1, tit. 14), which is again proven by Beaumanoir (custom of Beauvaisis, ch. I of Baillis) ; they handled only the procedure : “le Bailli est tenu en la présence des hommes à penre les paroles des chaux qui plaident, and doit demander as parties se ils veulent avoir droit selon les raisons que ils ont dites, and se ils disent, Sire, oïl, le bailli doit contraindre les hommes, que ils fassent le jugement.” See also the Establishments of St. Louis, book I, ch. cv, and book II, ch. xv. “Li Juge, si ne doit pas faire le Jugement.”

Beaumanoir, ch. lxvii, p. 336, and ch. lxi, p. 315–316 ; Establishments, book II, ch. xv.