Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/72

 58 /. BEFORE THE NORMAN CONQUEST princes, but petty barons and seigneurs claim the right of pit and gallows, of toll, of forfeiture in their fiefs. One is inclined to wonder where the State, as we understand it, finds any place at all. Nowhere can we find a more instructive contrast between the England of Elizabeth and the France of that same day, than in a comparison of Coke's First Institute with one of the official Coutumiers of the sixteenth century. The English law-book describes, in crabbed lan- guage no doubt, a system which is uniform, simple, and intelligible; the Coutumier depicts a state of anarchy and disintegration, of anomalies and inconsistencies. And yet it speaks only of a single district; there are dozens of other Coutumiers, and the whole pays de droit ecrit, to be taken into account. And the mischief is not to be cured by ordinary remedies. Splendid as was the work of the great French jurists of the seventeenth and eighteenth centuries, of Mou- lin, Guy Coquille, Loisel, Domat, Pothier, it needed the red arm of the Revolution to make a Common Law for France. A word must be said as to the process by which these official Coutumiers were compiled; for it is illuminative of the history of Law. There is no thought of imposing new rules. The custom is, indeed, " projected " by the royal officials, and examined by commissaries of the Parlement of Paris ; but, before it can be declared to be law, it must be submitted to an assembly containing representatives of all orders and ranks in the district, and solemnly discussed and accepted by them.^ This is no mere form. In the great collection of Bourdot de Richebourg,^ published in the eighteenth century, we find the very names of those who were present, in person or by deputy, at the reading of the various pro jets; we know the very points upon which they raised objections. The object of the redaction is to render the use of the enquete par tourhe unnecessary for the future ; it declares the custom once and for all. But to do this it holds a great and final enquete par tourhe; it collects, but it does not make, the law. Turning to Germany, we find that there have been attempts
 * Estnein, op. cit., p. 749.
 * Bourdot de Richebourg, Coutumier g4n4ral. Paris, 1724.