Montesquieu

France was admi­nis­te­red, as I have said, by unwrit­ten cus­toms, and the par­ti­cu­lar prac­ti­ces of each sei­gniory cons­ti­tu­ted the civil law. Each sei­gniory had its civil law, as Beaumanoir says,1 and a law so par­ti­cu­lar that this author, who is regar­ded as the light of those times, and a great light, says he does not believe in the whole realm there were two sei­gnio­ries that were gover­ned in every point by the same law.

This pro­di­gious diver­sity had a first ori­gin, and it had a second. For the first, the rea­der may remem­ber what I have said above in the chap­ter on local cus­toms2 ; and as for the second, we find it in the various out­co­mes of judi­cial com­bats, conti­nually for­tui­tous cases being natu­rally des­ti­ned to intro­duce new prac­ti­ces.

Those cus­toms were pre­ser­ved in the memo­ries of the old, but lit­tle by lit­tle writ­ten laws and cus­toms were for­med.

1st. At the begin­ning of the third dynasty,3 the kings issued indi­vi­dual char­ters, and even issued gene­ral ones, in the man­ner I have explai­ned above : such are the Establishments of Philip Augustus and those made by St. Louis. Likewise, the great vas­sals, in concert with the lords under them, issued in the assi­zes of their duchies or coun­ties cer­tain char­ters or esta­blish­ments accor­ding to the cir­cum­stan­ces : such were the assi­zes of Geoffroy, count of Britanny on the divi­sion of the nobles ; the cus­toms of Normandy gran­ted by Duke Raoul ; the cus­toms of Champagne, issued by king Theobald ; the laws of Simon, count of Montfort, and others. This pro­du­ced some writ­ten laws, and even more gene­ral ones than those they had pre­viously.

2nd. At the begin­ning of the third dynasty, almost all the popu­lace were serfs ; seve­ral rea­sons obli­ged the kings and lords to free them.

The lords in freeing their serfs gave them some pro­perty ; they had to be given civil laws to govern the dis­po­si­tion of that pro­perty. The lords in freeing their serfs depri­ved them­sel­ves of their pro­perty ; it was thus neces­sary to regu­late the rights which the lords reser­ved to them­sel­ves as equi­va­lent to their pro­perty. Both of these things were set­tled by the char­ters of eman­ci­pa­tion ; those char­ters for­med a part of our cus­toms, and that part was put down in wri­ting.

3rd. Under the reign of St. Louis and the next kings, able prac­ti­tio­ners such as Défontaines, Beaumanoir and others set down in wri­ting the cus­toms of their bai­li­wicks. Their pur­pose was rather to fur­nish a judi­ciary prac­tice than the cus­toms of their time on the dis­po­si­tion of pro­perty. But eve­ry­thing is there ; and although the only autho­rity of these par­ti­cu­lar wri­ters was in the truth and public nature of the things they were saying, we can­not doubt that they greatly abet­ted the revi­val of our French law. Such was in those times our writ­ten cus­toms law.

Here now is the great epoch. Charles VII and his suc­ces­sors had the various local cus­toms throu­ghout the realm set down in wri­ting, and pres­cri­bed for­ma­li­ties that were to be obser­ved in their redac­tion. Now as this redac­tion was done by pro­vin­ces, and from each sei­gniory they came to depose in the gene­ral assem­bly of the pro­vince the writ­ten or unwrit­ten prac­ti­ces of each place, they sought to make these cus­toms more gene­ral, as much as could be done without dama­ging the inte­rests of the indi­vi­duals which were reser­ved.4 Thus our cus­toms took on three cha­rac­te­ris­tics : they were writ­ten, they were more gene­ral, and they recei­ved the seal of royal autho­rity.

Several of these cus­toms having been again writ­ten, seve­ral chan­ges were made in them, either by remo­ving wha­te­ver was not com­pa­ti­ble with pre­sent juris­pru­dence, or by adding seve­ral things drawn from that juris­pru­dence.

Although the cus­to­mary law is regar­ded among us as contai­ning a sort of oppo­si­tion to Roman law, so that these two laws divide the ter­ri­to­ries, it is never­the­less true that seve­ral pro­vi­sions of Roman law have ente­red into our cus­toms, espe­cially when new redac­tions of them were made, at times not so dis­tant from our own ; when that law was the object of study of all those pre­pa­ring for civil employ­ment, in times when peo­ple no lon­ger boas­ted of not kno­wing what they should know, and of kno­wing what they should not ; when qui­ck­ness of mind ser­ved more to learn one’s pro­fes­sion than to exer­cise it, and when conti­nual amu­se­ments were not even the attri­bute of women.

All that I have said about the for­ma­tion of our civil laws would seem to lead me also to pro­vide the theory of our poli­ti­cal laws ; but that would be a major piece of work. I am like that anti­qua­rian of the Spectator who left his coun­try, arri­ved in Egypt, gla­ced at the pyra­mids, and retur­ned home.

Prologue on the custom of Beauvaisis.

Ch. xii.

See compendium of ordinances of Laurière.

It was done this way in the redaction of the customs of Berry and Paris. See La Thaumassiere, ch. iii.