TRANSLATED FROM THE FRENCH, WITH AN INTRODUCTION, APPENDIX, AND NOTES, BY WILLIAM DAVID EVANS, Esq. BARRISTER AT LAW. IN TWO VOLUMES. VOL. I. LONDON: PRINTED BY A. STRAHAN, LAW PRINTER TO THE KING'S MOST EXCELLENT MAJESTY. FOR JOSEPH BUTTERWORTH, LAW-BOOKSELLER, FLEET-STREET; 1806. ELOGE OF M. POTHIER; Pronounced upon his deceafe, in the University of Orleans, by M. Le Trofne, the King's Advocate, in the Prefidial of Orleans. M. -FIRST PART. POTHIER was born at Orleans, on the 9th of. January, 1699, of an honourable family, his father was a Counsellor of the Prefidial there. He was born with an extremely feeble conflitution, which he strengthened by temperance and fobriety, and by the difpofitions afterwards excited by ftudy and application. The mind, like the body, by want of proper exercise, loses the use of its faculties, which are rendered torpid by inaction. The chief advantage of an inftructor confists in fubduing levity by application, in regulating and moderating the imagination, in forming the judgment, in giving refources to the mind, by accuftoming it to reflect, to examine, to difcufs. But talent in inftructors is infinitely more rare, than fuitable difpofitions in pupils; and how many perfons are rendered incapable of ferious and connected ftudy, for want of adequate cultivation ! Pothier was entirely deftitute of fuch affiftance. He loft his father at the age of five, and had no refources for his education, but in himself. The College of Jesuits was then very feebly supported, he studied there with advantage, because perfons of genius, if placed in their proper courfe, are indebted for their progrefs. only to themselves. The great authors of antiquity were his mafters; as foon as he was capable of understanding their works, he conceived that relish for them, which is the fureft harbinger of fuccefs. Affifted by a happy memory, and a great readiness of perception, he completed his ftore of erudition without affiftance, and acquired a fund of literature, which he ever afterwards retained, without having leifure to cultivate it, and that accuracy of difcrimination, which is the most valuable fruit of a judicious study. VOL. I. 2 He He graduated in the fcience of law, (il fit fon droit) in the university of Orleans, upon which he was deftined to reflect fuch great celebrity; and had there even lefs affiftance in this purfuit, than he had received at the college, in the cultivation of literature. The profeffors who then occupied the chairs of the university were abfolutely indifferent to the progrefs of the students, and fatisfied themfelves with delivering fome unintelligible lectures, without deigning to accommodate themselves to the capacity of their hearers. What they taught was not properly the fcience of jurisprudence, a fcience in itself fo beautiful and luminous, but of which they prefented nothing but the perplexitics and contradictions, foreign to its nature, and introduced by the incapacity and infidelity of the compilers of the.pandects; inftead of giving an inftructive explanation of the texts, they entirely filled their lectures with the fubtle queftions invented and multiplied in the fchools of controverfy From their. mode of tuition, it might be fuppofed, that their only object was to exclude the ftudents from the fanctuary of the laws, by the difguft which their inftruction was calculated to excite like the ancient Patricians, who in order to keep the people in fubjection, concealed from them with fo much care the formulæ of actions; and appropriated to themselves the knowledge of the laws, which they ftudioufly enveloped with a veil of mystery. A tuition fo defective could not fatisfy the folid and judicious mind of Pothier; fortunately he was capable of furmounting it; he perceived the defects of it, and supplied by his own industry the want of other affistance. In every fcience the first steps are attended with the greateft difficulty, thefe he furmounted by the serious study of the inftitutes, affifted by the commentaries of Vinnius, and thus prepared himself for penetrating to the very fources of juridical fcience; and it was ordained that he fhould exhibit in the intercourse of civil life the most striking example of every focial virtue, and become the oracle of jurif prudence to his contemporaries and posterity. He decided upon embracing the functions of magiftraey, and was received a counsellor of the Prefidial, in 1720. His choice of fituation entirely determined that of his ftudies: from that time literature was only admitted as a tranfient amufement, and he was afterwards obliged entirely to abandon it, by the multiplicity of his occupations; but from these flowers he had gathered the most valuable fruits, an acquaintance with the best authors, and the habit of writing in Latin, which became fo neceflary to him. In converfation with his friends, his memory prefented the finest paffages of Horace, and of Juvenal, to whofe force and energy energy he was principally attached, and he recited them with a fpirit peculiar to himself. For the first ten or twelve years after his reception, he joined to the study of jurisprudence that of religion and theology, which he was fond of deriving from their fources, and principally from St. Auguftin, and those great men, the Messieurs de Port Royal, for whom he had the highest veneration. M. Nicole was always his favourite author, as he is of all judicious perfons, who prefer folidity of reafoning to the charms of eloquence. But this particular study never infringed upon the duties of his employments. His great facility, and a rigorous economy of his time, gave him sufficient opportunity for both. He was the first magistrate in the bailliage of Orleans, who exercised the right of giving an opinion in the cafes which they are appointed to report, while under twenty-five years of age; and never was a deviation made from the general practice with greater advantage. While he was beginning in his study to acquire that fund of knowledge, which from the most affiduous application of fifty years became fo rich and extenfive, he was learning the application of it at the Palace by that practice, of which nothing can fupply the deficiency. To this he added frequent conversations with an advocate of great erudition; his very walks were conferences; and he most frequently affociated with a friend, with whom he had learned Italian, and they difcuffed the questions that occurred to them in that language, for the fake of preferving their familiarity with it. He had scarcely attained his majority, (25) when the extent of his acquifitions was perceived at the Palace. When he had to study any fubject, he composed a treatise upon it, being persuaded that the best, and perhaps the only method of becoming master of a fcience, is to difcufs it in writing. The neceflity of a just conception, in order to produce a juft expreffion, of arranging his ideas in proper order, of contemplating them in their various afpects, habituates the mind to application, and accuftoms it to accuracy and method; an advantage which can never be acquired by reading, however frequently repeated. Pothier no fooner began to study the digeft, than he perceived that invincible attraction, which Mallebranche experienced in the reading of Descartes. He felt his vocation, and followed it. The laws of the Romans form a more interesting part of their history than their victories and conquefts. But if the knowledge of them had been nothing more than an object of curiofity, the labour of Pothier would have only been of moderate utility, and we may be affured, that he would not have undertaken it. But the a 2 |