the spirit of laws-第136节
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anding； in one of those formulas； an advocate for the public prosecutor； who had the liberty to fight。 Muratori has placed it just after the constitution of Henry I； for which it was made。＇262＇ In this constitution it is said； 〃That if any man kills his father； his brother； or any of his other relatives； he shall lose their succession； which shall pass to the other relatives； and his own property shall go to the exchequer。〃 Now it was in suing for the estate which had devolved to the exchequer； that the advocate for the public prosecutor； by whom its rights were defended； had the privilege of fighting： this case fell within the general rule。
We see in those formulas the advocate for the public prosecutor proceeding against a person who had taken a robber； but had not brought him before the count；＇263＇ against another who had raised an insurrection or tumult against the count；＇264＇ against another who had saved a man's life whom the count had ordered to be put to death；＇265＇ against the advocate of some churches； whom the count had commanded to bring a robber before him； but had not obeyed；＇266＇ against another who had revealed the king's secret to strangers；＇267＇ against another； who with open violence had attacked the emperor's commissary；＇268＇ against another who had been guilty of contempt to the emperor's rescripts； and he was prosecuted either by the emperor's advocate or by the emperor himself；＇269＇ against another who refused to accept of the prince's coin；＇270＇ in fine； this advocate sued for things which by the law were adjudged to the exchequer。＇271＇
But in criminal causes； we never meet with the advocate for the public prosecutor； not even where duels are used；＇272＇ not even in the case of incendiaries；＇273＇ not even when the judge is killed on his bench；＇274＇ not even in causes relating to the conditions of persons；＇275＇ to liberty and slavery。＇276＇
These formulas are made； not only for the laws of the Lombards； but likewise for the capitularies added to them； so that we have no reason to doubt of their giving us the practice observed with regard to this subject under our princes of the second race。
It is obvious that these advocates for a public prosecutor must have ended with our second race of kings； in the same manner as the king's commissioners in the provinces； because there was no longer a general law nor general exchequer； and because there were no longer any counts in the provinces to hold the assizes； and； of course； there were no more of those officers whose principal function was to support the authority of the counts。
As the usage of combats became more frequent under the third race； it did not allow of any such thing as a public prosecutor。 Hence Boutillier； in his Somme Rurale； speaking of the officers of justice； takes notice only of the bailiffs； the peers and serjeants。 See the Institutions＇277＇ and Beaumanoir＇278＇ concerning the manner in which prosecutions were managed in those days。
I find in the laws of James II； King of Majorca；＇279＇ a creation of the office of king's attorney…general； with the very same functions as are exercised at present by the officers of that name among us。 It is manifest that this office was not instituted till we had changed the form of our judiciary proceedings。
37。 In what Manner the Institutions of St。 Louis fell into Oblivion。 It was the fate of the Institutions that their origin； progress； and decline were comprised within a very short period。
I shall make a few reflections upon this subject。 The code we have now under the name of St。 Louis' Institutions was never designed as a law for the whole kingdom； though such a design is mentioned in the preface。 The compilation is a general code； which determines all points relating to civil affairs； to the disposal of property by will or otherwise； the dowries and privileges of women； and emoluments and privileges of fiefs； with the affairs in relation to the police； &c。 Now； to give a general body of civil laws； at a time when each city； town； or village； had its customs； was attempting to subvert in one moment all the particular laws then in force in every part of the kingdom。 To reduce all the particular customs to a general one would be a very inconsiderate thing； even at present when our princes find everywhere the most passive obedience。 But if it be true that we ought not to change when the inconveniences are equal to the advantages； much less should we change when the advantages are small and the inconveniences immense。 Now； if we attentively consider the situation which the kingdom was in at that time； when every lord was puffed up with the notion of his sovereignty and power； we shall find that to attempt a general alteration of the received laws and customs must be a thing that could never enter into the heads of those who were then in the administration。
What I have been saying proves likewise that this code of institutions was not confirmed in parliament by the barons and magistrates of the kingdom； as is mentioned in a manuscript of the town…hall of Amiens； quoted by M。 Du Cange。＇280＇ We find in other manuscripts that this code was given by St。 Louis in the year 1270； before he set out for Tunis。 But this fact is not truer than the other； for St。 Louis set out upon that expedition in 1269； as M。 Du Cange observes： whence he concludes that this code might have been published in his absence。 But this I say is impossible。 How can St。 Louis be imagined to have pitched upon the time of his absence for transacting an affair which would have been a sowing of troubles； and might have produced not only changes； but revolutions？ An enterprise of that kind had need； more than any other； of being closely pursued； and could not be the work of a feeble regency； composed moreover of lords； whose interest it was that it should not succeed。 These were Mathieu； Abbot of St。 Denis； Simon of Clermont； Count of Nesle； and； in case of death； Philip； Bishop of Evreux； and Jean； Count of Ponthieu。 We have seen above＇281＇ that the Count of Ponthieu opposed the execution of a new judiciary order in his lordship。
Thirdly； I affirm it to be very probable that the code now extant is quite a different thing from St。 Louis' Institutions； It cites the Institutions； therefore it is a comment upon the Institutions； and not the institutions themselves。 Besides； Beaumanoir； who frequently makes mention of St。 Louis' Institutions； quotes only some particular laws of that prince； and not this compilation。 Défontaines；＇282＇ who wrote in that prince's reign； makes mention of the first two times that his Institutions on judicial proceedings were put in execution； as of a thing long since elapsed。 The institutions of St。 Louis were prior； therefore； to the compilation I am now speaking of； which from their rigour； and their adopting the erroneous prefaces inserted by some ignorant persons in that work； could not have been published before the last year of St。 Louis or even not till after his death。
38。 The same Subject continued。 What is this compilation then which goes at present under the name of St。 Louis' Institutions？ What is this obscure； confused； and ambiguous code； where the French law is continually mixed with the Roman； where a legislator speaks and yet we see a civilian； where we find a complete digest of all cases and points of the civil law？ To understand this thoroughly； we must transfer ourselves in imagination to those times。
St。 Louis； seeing the abuses in the jurisprudence of his time； endeavoured to give the people a dislike to it。 With this view he made several regulations for the court of his demesnes； and for those of his barons。 And such was his success that Beaumanoir； who wrote a little after the death of that prince； informs us＇283＇ that the manner of trying causes which had been established by St。 Louis obtained in a great number of the courts of the barons。
Thus this prince attained his end； though his regulations for the courts of the lords were not designed as a general law for the kingdom； but as a model which every one might follow； and would even find his advantage in it。 He removed the bad practice by showing them a better。 When it appeared that his courts； and those of some lords； had chosen a form of proceeding more natural； more reasonable； more conformable to morality； to religion； to the public tranquillity； and to the security of person and property； this form was soon adopted； and the other rejected。
To allure when it is rash to constrain； to win by pleasing means when it is improper to exert authority； shows the man of abilities。 Reason has a natural； and even a tyrannical sway； it meets with resistance； but this very resistance constitutes its triumph； for after a short struggle it commands an entire submission。
St。 Louis； in order to give a distaste of the French jurisprudence； caused the books of the Roman law to be translated； by which means they were made known to the lawyers of those times。 Défontaines； who is the oldest law writer we have； made great use of those Roman laws。＇284＇ His work is； in some measure； a result from the ancient French jurisprudence； of the laws or Institutions of St。 Louis； and of the Roman law。 Beaumanoir made very little use of the latter；
