The spirit of laws by Charles de Secondat, Baron de Montesquieu


party: not in order to know whether the judgment was good or bad (for



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party: not in order to know whether the judgment was good or bad (for
this judgment was out of the case, being reversed by the combat), but to
determine whether the demand was just or not; and it was on this new
point they fought. Thence proceeds our manner of pronouncing decrees,
"The court annuls the appeal; the court annuls the appeal and the
judgment against which the appeal was brought." In effect, when the
person who had made the challenge of false judgment happened to be
overcome, the appeal was reversed: when he proved victorious, both the
judgment and the appeal were reversed; then they were obliged to proceed
to a new judgment.

This is so far true that, when the cause was tried by inquests, this


manner of pronouncing did not take place: witness what M. de la Roche
Flavin says,[252] namely, that the chamber of inquiry could not use this
form at the beginning of its existence.

34. In what Manner the Proceedings at Law became secret. Duels had


introduced a public form of proceeding, so that both the attack and the
defence were equally known. "The witnesses," says Beaumanoir,[253]
"ought to give their testimony in open court."

Boutillier's commentator says he had learned of ancient practitioners,


and from some old manuscript law books, that criminal processes were
anciently carried on in public, and in a form not very different from
the public judgments of the Romans. This was owing to their not knowing
how to write; a thing in those days very common. The usage of writing
fixes the ideas, and keeps the secret; but when this usage is laid
aside, nothing but the notoriety of the proceeding is capable of fixing
those ideas.

And as uncertainty might easily arise in respect to what had been


adjudicated by vassals, or pleaded before them, they could, therefore,
refresh their memory[254] every time they held a court by what were
called proceedings on record.[255] In that case, it was not allowed to
challenge the witnesses to combat; for then there would be no end of
disputes.

In process of time a private form of proceeding was introduced.


Everything before had been public; everything now became secret; the
interrogatories, the informations, the re-examinations, the confronting
of witnesses, the opinion of the attorney-general; and this is the
present practice. The first form of proceeding was suitable to the
government of that time, as the new form was proper to the government
since established.

Boutillier's commentator fixes the epoch of this change to the ordinance


in the year 1539. I am apt to believe that the change was made
insensibly, and passed from one lordship to another, in proportion as
the lords renounced the ancient form of judging, and that derived from
the Institutions of St. Louis was improved. And indeed, Beaumanoir
says[256] that witnesses were publicly heard only in cases in which it
was allowed to give pledges of battle: in others they were heard in
secret, and their depositions were reduced to writing. The proceedings
became, therefore, secret, when they ceased to give pledges of battle.

35. Of the Costs. In former times no one was condemned in the lay courts


of France to the payment of costs.[257] The party cast was sufficiently
punished by pecuniary fines to the lord and his peers. From the manner
of proceeding by judicial combat it followed, that the party condemned
and deprived of life and fortune was punished as much as he could be:
and in the other cases of the judicial combat, there were fines
sometimes fixed, and sometimes dependent on the disposition of the lord,
which were sufficient to make people dread the consequences of suits.
The same may be said of causes that were not decided by combat. As the
lord had the chief profits, so he was also at the chief expense, either
to assemble his peers, or to enable them to proceed to judgment.
Besides, as disputes were generally determined at the same place, and
almost always at the same time, without that infinite multitude of
writings which afterwards followed, there was no necessity of allowing
costs to the parties.

The custom of appeals naturally introduced that of giving costs. Thus


Défontaines says,[258] that when they appealed by written law, that is,
when they followed the new laws of St. Louis, they gave costs; but that
in the ordinary practice, which did not permit them to appeal without
falsifying the judgment, no costs were allowed. They obtained only a
fine, and the possession for a year and a day of the thing contested, if
the cause was remanded to the lord.

But when the number of appeals increased from the new facility of


appealing;[259] when by the frequent usage of those appeals from one
court to another, the parties were continually removed from the place of
their residence; when the new method of procedure multiplied and
prolonged the suits; when the art of eluding the very justest demands
became refined; when the parties at law knew how to fly only in order to
be followed; when plaints were ruinous and defence easy; when the
arguments were lost in whole volumes of words and writings; when the
kingdom was filled with limbs of the law, who were strangers to justice;
when knavery found encouragement at the very place where it did not find
protection; then it was necessary to deter litigious people by the fear
of costs. They were obliged to pay costs for the judgment and for the
means they had employed to elude it. Charles the Fair made a general
ordinance on that subject.[260]

36. Of the public Prosecutor. As by the Salic, Ripuarian, and other


barbarous laws, crimes were punished with pecuniary fines; they had not
in those days, as we have at present, a public officer who had the care
of criminal prosecutions. And, indeed, the issue of all causes being
reduced to the reparation of injuries, every prosecution was in some
measure civil, and might be managed by any one. On the other hand, the
Roman law had popular forms for the prosecution of crimes which were
inconsistent with the functions of a public prosecutor.

The custom of judicial combats was no less opposite to this idea; for


who is it that would choose to be a public prosecutor and to make
himself every man's champion against all the world?

I find in the collection of formulas, inserted by Muratori in the laws


of the Lombards, that under our princes of the second race there was an
advocate for the public prosecutor.[261] But whoever pleases to read the
entire collection of these formulas will find that there was a total
difference between such officers and those we now call the public
prosecutor, our attorneys-general, our king's solicitors, or our
solicitors for the nobility. The former were rather agents to the public
for the management of political and domestic affairs, than for the
civil. And, indeed, we did not find in those formulas that they were
entrusted with criminal prosecutions, or with causes relating to minors,
to churches, or to the condition of any one.

I said that the establishment of a public prosecutor was repugnant to


the usage of judicial combats. I find, notwithstanding, 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; but he
reconciled the ancient French laws to the regulations of St. Louis.

I have a notion, therefore, that the law book known by the name of the


Institutions was compiled by some bailiffs, with the same design as that
of the authors of those two Works, and especially of Défontaines. The
title of this work mentions that it is written according to the usage of
Paris, Orleans, and the court of Barony; and the preamble says that it
treats of the usage of the whole kingdom, of Anjou and of the court of
Barony. It is plain that this work was made for Paris, Orleans and
Anjou, as the works of Beaumanoir and Défontaines were framed for the
counties of Clermont and Vermandois; and as it appears from Beaumanoir
that divers laws of St. Louis had been received in the courts of Barony,
the compiler was in the right to say that his work related also to those
courts.[285]

It is manifest that the person who composed this work compiled the


customs of the country together with the laws and Institutions of St.
Louis. This is a very valuable work, because it contains the ancient
customs of Anjou, the Institutions of St. Louis, as they were then in
use; and, in fine, the whole practice of the ancient French law.

The difference between this work and those of Défontaines and Beaumanoir


is its speaking in imperative terms as a legislator; and this might be
right, since it was a medley of written customs and laws.

There was an intrinsic defect in this compilation; it formed an


amphibious code, in which the French and Roman laws were mixed, and
where things were joined that were in no relation, but often
contradictory to each other.

I am not ignorant that the French courts of vassals or peers; the


judgments without power of appealing to another tribunal; the manner of
pronouncing sentence by these words "I condemn" or "I absolve,"[286] had
some conformity to the popular judgments of the Romans. But they made
very little use of that ancient jurisprudence; they rather chose that
which was afterwards introduced by the emperor, in order to regulate,
limit, correct, and extend the French jurisprudence.

39. The same Subject continued. The judiciary forms introduced by St.


Louis fell into disuse. This prince had not so much in view the thing
itself, that is, the best manner of trying causes, as the best manner of
supplying the ancient practice of trial. The principal intent was to
give a disrelish of the ancient jurisprudence, and the next to form a
new one. But when the inconveniences of the latter appeared, another
soon succeeded.

The Institutions of St. Louis did not, therefore, so much change the


French jurisprudence as they afforded the means of changing it; they
opened new tribunals, or rather ways to come at them. And when once the
public had easy access to the superior courts, the judgments which
before constituted only the usages of a particular lordship formed a
universal digest. By means of the Institutions, they had obtained
general decisions, which were entirely wanting in the kingdom; when the
building was finished, they let the scaffold fall to the ground.

Thus the Institutions produced effects which could hardly be expected


from a masterpiece of legislation. To prepare great changes whole ages
are sometimes requisite; the events ripen, and the revolutions follow.

The parliament judged in the last resort of almost all the affairs of


the kingdom. Before,[287] it took cognizance only of disputes between
the dukes, counts, barons, bishops, abbots, or between the king and his
vassals,[288] rather in the relation they bore to the political than to
the civil order. They were soon obliged to render it permanent, whereas
it used to be held only a few times in a year: and, in fine, a great
number were created; in order to be sufficient for the decision of all
manner of causes.

No sooner had the parliament become a fixed body, than they began to


compile its decrees. Jean de Monluc, in the reign of Philip the Fair,
made a collection which at present is known by the name of the Olim
registers.[289]

40. In what Manner the judiciary Forms were borrowed from the Decretals.


But how comes it, some will ask, that when the Institutions were laid
aside, the judicial forms of the canon law should be preferred to those
of the Roman? It was because they had constantly before their eyes the
ecclesiastic courts, which followed the forms of the canon law, and they
knew of no court that followed those of the Roman law. Besides, the
limits of the spiritual and temporal jurisdiction were at that time very
little understood; there were people who sued indifferently[290] and
causes that were tried indifferently, in either court.[291] It
seems[292] as if the temporal jurisdiction reserved no other cases
exclusively to itself than the judgment of feudal matters,[293] and of
such crimes committed by laymen as did not relate to religion. For[294]
if on the account of conventions and contracts, they had occasion to sue
in a temporal court, the parties might of their own accord proceed
before the spiritual tribunals; and as the latter had not a power to
oblige the temporal court to execute the sentence, they commanded
submission by means of excommunications. Under those circumstances, when
they wanted to change the course of proceedings in the temporal court,
they took that of the spiritual tribunals, because they knew it; but did
not meddle with that of the Roman law, by reason they were strangers to
it: for in point of practice people know only what is really practised.

41. Flux and Reflux of the ecclesiastic and temporal Jurisdiction. The


civil power being in the hands of an infinite number of lords, it was an
easy matter for the ecclesiastic jurisdiction to gain daily a greater
extent. But as the ecclesiastic courts weakened those of the lords, and
contributed thereby to give strength to the royal jurisdiction, the
latter gradually checked the jurisdiction of the clergy. The parliament,
which in its form of proceedings had adopted whatever was good and
useful in the spiritual courts, soon perceived nothing else but the
abuses which had crept into those tribunals; and as the royal
jurisdiction gained ground every day, it grew every day more capable of
correcting those abuses. And, indeed, they were intolerable; without
enumerating them I shall refer the reader to Beaumanoir, to Boutillier
and to the ordinances of our kings.[295] I shall mention only two in
which the public interest was more directly concerned. These abuses we
know by the decrees that reformed them; they had been introduced in the
times of the darkest ignorance, and upon the breaking out of the first
gleam of light, they vanished. From the silence of the clergy it may be
presumed that they forwarded this reformation: which, considering the
nature of the human mind, deserves commendation. Every man that died
without bequeathing a part of his estate to the church, which was called
dying "without confession," was deprived of the sacrament and of
Christian burial. If he died intestate, his relatives were obliged to
prevail upon the bishop that he would, jointly with them, name proper
arbiters to determine what sum the deceased ought to have given, in case
he had made a will. People could not lie together the first night of
their nuptials, or even the two following nights, without having
previously purchased leave; these, indeed, were the best three nights to
choose; for as to the others, they were not worth much. All this was
redressed by the parliament: we find in the glossary of the French
law,[296] by Ragau, the decree which it published against the Bishop of
Amiens.[297]

I return to the beginning of my chapter. Whenever we observe in any age


or government the different bodies of the state endeavouring to increase
their authority, and to take particular advantages of each other, we
should be often mistaken were we to consider their encroachments as an
evident mark of their corruption. Through a fatality inseparable from
human nature, moderation in great men is very rare: and as it is always
much easier to push on force in the direction in which it moves than to
stop its movement, so in the superior class of the people, it is less
difficult, perhaps, to find men extremely virtuous, than extremely
prudent.

The human mind feels such an exquisite pleasure in the exercise of


power; even those who are lovers of virtue are so excessively fond of
themselves that there is no man so happy as not still to have reason to
mistrust his honest intentions; and, indeed, our actions depend on so
many things that it is infinitely easier to do good, than to do it well.

42. The Revival of the Roman Law, and the Result thereof. Change of


Tribunals. Upon the discovery of Justinian's digest towards the year
1137, the Roman law seemed to rise out of its ashes. Schools were then
established in Italy, where it was publicly taught; they had already the
Justinian code and the Novellæ. I mentioned before that this code had
been so favourably received in that country as to eclipse the law of the
Lombards.

The Italian doctors brought the law of Justinian into France, where they


had only the Theodosian code;[298] because Justinian's laws were not
made till after the settlement of the Barbarians in Gaul.[299] This law
met with some opposition: but it stood its ground notwithstanding the
excommunications of the popes, who supported their own canons.[300] St
Louis endeavoured to bring it into repute by the translations of
Justinian's works, made according to his orders, which are still in
manuscript in our libraries; and I have already observed that they made
great use of them in compiling the Institutions. Philip the Fair ordered
the Laws of Justinian to be taught only as written reason in those
provinces of France that were governed by customs; and they were adopted
as a law in those provinces where the Roman law had been received.[301]

I have already noticed that the manner of proceeding by judicial combat


required very little knowledge in the judges; disputes were decided
according to the usage of each place, and to a few simple customs
received by tradition. In Beaumanoir's time there were two different
ways of administering justice;[302] in some places they tried by
peers,[303] in others by bailiffs: in following the former way, the
peers gave judgment according to the practice of their court; in the
latter, it was the prud'hommes, or old men, who pointed out this same
practice to the bailiffs.[304] This whole proceeding required neither
learning, capacity, nor study. But when the dark code of the
Institutions made its appearance; when the Roman law was translated and
taught in public schools; when a certain art of procedure and
jurisprudence began to be formed; when practitioners and civilians were
seen to rise, the peers and the prud'hommes were no longer capable of
judging: the peers began to withdraw from the lords' tribunals; and the
lords were very little inclined to assemble them; especially as the new
form of trial, instead of being a solemn proceeding, agreeable to the
nobility and interesting to a warlike people, had become a course of
pleading which they neither understood, nor cared to learn. The custom
of trying by peers began to be less used;[305] that of trying, by
bailiffs to be more so; the bailiffs did not give judgment
themselves,[306] they summed up the evidence and pronounced the judgment
of the prud'hommes; but the latter being no longer capable of judging,
the bailiffs themselves gave judgment.

This was effected so much the easier, as they had before their eyes the


practice of the ecclesiastic courts; the canon and new civil law both
concurred alike to abolish the peers.

Thus fell the usage hitherto constantly observed in the French monarchy,


that judgment should not be pronounced by a single person, as may be
seen in the Salic laws, the capitularies, and in the first law-writers
under the third race.[307] The contrary abuse which obtains only in
local jurisdictions has been moderated, and in some measure redressed,
by introducing in many places a judge's deputy, whom he consults, and
who represents the ancient prud'hommes by the obligation the judge is
under of taking two graduates in cases that deserve a corporal
punishment; and, in fine, it has become of no effect by the extreme
facility of appeals.

43. The same Subject continued. Thus there was no law to prohibit the


lords from holding their courts themselves; none to abolish the
functions of their peers; none to ordain the creation of bailiffs; none
to give them the power of judging. All this was effected insensibly, and
by the very necessity of the thing. The knowledge of the Roman law, the
decrees of the courts, the new digest of the customs, required a study
of which the nobility and illiterate people were incapable.

The only ordinance we have upon this subject is that which obliged the


lords to choose their bailiffs .from among the laity.[308] It is a
mistake to look upon this as a law of their creation; for it says no
such thing. Besides, the intention of the legislator is determined by
the reasons assigned in the ordinance: "to the end that the bailiffs may
be punished for their prevarications, it is necessary they be taken from
the order of the laity." The immunities of the clergy in those days are
very well known.

We must not imagine that the privileges which the nobility formerly


enjoyed, and of which they are now divested, were taken from them as
usurpations; no, many of those privileges were lost through neglect, and
others were given up because, as various changes had been introduced in
the course of so many ages, they were inconsistent with those changes.

44. Of the Proof by Witnesses. The judges, who had no other rule to go


by than the usages, inquired very often by witnesses into every cause
that was brought before them.

The usage of judicial combats beginning to decline, they made their


inquests in writing. But a verbal proof committed to writing is never
more than a verbal proof; so that this only increased the expenses of
law proceedings. Regulations were then made which rendered most of those
inquests useless;[309] public registers were established, which
ascertained most facts, as nobility, age, legitimacy, and marriage.
Writing is a witness very hard to corrupt; the customs were therefore
reduced to writing. All this is very reasonable; it is much easier to go
and see in the baptismal register whether Peter is the son of Paul than
to prove this fact by a tedious inquest. When there are a number of
usages in a country, it is much easier to write them all down in a code,
than to oblige individuals to prove every usage. At length the famous
ordinance was made which prohibited the admitting of the proof by
witnesses for a debt exceeding an hundred livres, except there was the
beginning of a proof in writing.

45. Of the Customs of France. France, as we have already observed, was


governed by written customs, and the particular usages of each lordship
constituted the civil law. Every lordship had its civil law, according
to Beaumanoir,[310] and so particular a law, that this author, who is
looked upon as a luminary; and a very great luminary of those times;
says he does not believe that throughout the whole kingdom there were
two lordships entirely governed by the same law.

This prodigious diversity had a twofold origin. With regard to the


first, the reader may recollect what has been already said concerning it
in the chapter of local customs:[311] and as to the second, we meet with
it in the different events of legal duels, it being natural that a
continual series of fortuitous cases must have been productive of new
usages.

These customs were preserved in the memory of old men, but insensibly


laws or written customs were formed.

1. At the commencement of the third race, the kings gave not only


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