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


parties, the one through fear of a terrible trial, the other for the



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parties, the one through fear of a terrible trial, the other for the
sake of a small indemnity, should terminate their disputes, and put an
end to their animosities. It is plain, that when once this negative
proof was completed, nothing more was requisite; and, therefore, that
the practice of legal duels could not be a consequence of this
particular regulation of the Salic law.

17. Particular Notions of our Ancestors. It is astonishing that our


ancestors should thus rest the honour, fortune and life of the subject,
on things that depended less on reason than on hazard, and that they
should incessantly make use of proofs incapable of convicting, and that
had no manner of connection either with innocence or guilt.

The Germans, who had never been subdued,[83] enjoyed an excessive


independence. Different families waged war with each other[84] to obtain
satisfaction for murders, robberies or affronts. This custom was
moderated by subjecting these hostilities to rules; it was ordained that
they should be no longer committed but by the direction and under the
eye of the magistrate.[85] This was far preferable to a general licence
of annoying each other.

As the Turks in their civil wars look upon the first victory as a


decision of heaven in favour of the victor, so the inhabitants of
Germany in their private quarrels considered the event of a combat as a
decree of Providence, ever attentive to punish the criminal or the
usurper.

Tacitus informs us that when one German nation intended to declare war


against another, they looked out for a prisoner who was to fight with
one of their people, and by the event they judged of the success of the
war. A nation who believed that public quarrels could be determined by a
single combat might very well think that it was proper also for deciding
the disputes of individuals.

Gundebald, King of Burgundy, gave the greatest sanction to the custom of


legal duels.[86] The reason he assigns for this law is mentioned in his
edict, "It is," says he, "in order to prevent our subjects from
attesting by oath what is uncertain, and perjuring themselves about what
is certain." Thus, while the clergy declared that an impious law which
permitted combats,[87] the Burgundian Kings looked upon that as a
sacrilegious law which authorized the taking of an oath.

The trial by combat had some reason for it, founded on experience. In a


military nation, cowardice supposes other vices; it is an argument of a
person's having deviated from the principles of his education, of his
being insensible of honour, and of having refused to be directed by
those maxims which govern other men; it shows that he neither fears
their contempt, nor sets any value upon their esteem. Men of any
tolerable extraction seldom want either the dexterity requisite to
co-operate with strength, or the strength necessary to concur with
courage; for as they set a value upon honour, they are practised in
matters without which this honour cannot be obtained. Besides, in a
military nation, where strength, courage and prowess are esteemed,
crimes really odious are those which arise from fraud, artifice, and
cunning, that is, from cowardice.

With regard to the trial by fire, after the party accused had put his


hand on a hot iron, or in boiling water, they wrapped the hand in a bag
and sealed it up; if after three days there appeared no mark, he was
acquitted, Is it not plain, that among people inured to the handling of
arms, the impression made on a rough or callous skin by the hot iron or
by boiling water could not be so great as to be seen three days
afterwards? And if there appeared any mark, it showed that the person
who had undergone the trial was an effeminate fellow. Our peasants are
not afraid to handle hot iron with their callous hands; and, with regard
to the women, the hands of those who worked hard might be very well able
to resist hot iron. The ladies did not want champions to defend their
cause; and in a nation where there was no luxury, there was no middle
state.[88]

By the law of the Thuringians[89] a woman accused of adultery was


condemned to the trial by boiling water only when there was no champion
to defend her; and the law of the Ripuarians admits of this trial[90]
only when a person had no witnesses to appear in justification. Now a
woman that could not prevail upon any one relative to defend her cause,
or a man that could not produce one single witness to attest his
honesty, was, from those very circumstances, sufficiently convicted.

I conclude, therefore, that under the circumstances of time in which the


trial by combat and the trial by hot iron and boiling water obtained,
there was such an agreement between those laws and the manners of the
people, that the laws were rather unjust in themselves than productive
of injustice, that the effects were more innocent than the cause, that
they were more contrary to equity than prejudicial to its rights, more
unreasonable than tyrannical.

18. In what manner the Custom of judicial Combats gained Ground. From


Agobard's letter to Louis the Debonnaire, it might be inferred that the
custom of judicial combats was not established among the Franks; for
having represented to that prince the abuses of the law of Gundebald, he
desires that private disputes should be decided in Burgundy by the law
of the Franks. But as it is well known from other quarters that the
trial by combat prevailed at that time in France, this has been the
cause of some perplexity. However, the difficulty may be solved by what
I have said; the law of the Salian Franks did not allow of this kind of
trial and that of the Ripuarian Franks did.[91]

But, notwithstanding the clamours of the clergy, the custom of judicial


combats gained ground continually in France; and I shall presently make
it appear that the clergy themselves were in a great measure the
occasion of it.

It is the law of the Lombards that furnishes us with this proof. "There


has been long since a detestable custom introduced," says the preamble
to the constitution of Otho II:[92] "this is, that if the title to an
estate was said to be false, the person who claimed under that title
made oath upon the Gospel that it was genuine; and without any preceding
judgment he took possession of the estate; so that they who would
perjure themselves were sure of gaining their point." The Emperor Otho I
having caused himself to be crowned at Rome[93] at the very time that a
council was there under Pope John XII, all the lords of Italy
represented to that prince the necessity of enacting a law to reform
this horrible abuse.[94] The Pope and the Emperor were of opinion that
the affair should be referred to the council which was to be shortly
held at Ravenna.[95] There the lords made the same demands, and
redoubled their complaints; but the affair was put off once more, under
pretence of the absence of particular persons. When Otho II and Conrad,
King of Burgundy, arrived in Italy,[96] they had a conference at
Verona[97] with the Italian lords,[98] and at their repeated
solicitations, the Emperor, with their unanimous consent, made a law,
that whenever there happened any disputes about inheritances, while one
of the parties insisted upon the legality of his title and the other
maintained its being false, the affair should be decided by combat; that
the same rule should be observed in contests relating to fiefs; and that
the clergy should be subject to the same law, but should fight by their
champions. Here we see that the nobility insisted on the trial by combat
because of the inconvenience of the proof introduced by the clergy; that
notwithstanding the clamours of the nobility, the notoriousness of the
abuse which called out loudly for redress, and the authority of Otho who
came into Italy to speak and act as master, still the clergy held out in
two councils; in fine, that the joint concurrence of the nobility and
princes having obliged the clergy to submit, the custom of judicial
combats must have been considered as a privilege of the nobility, as a
barrier against injustice and as a security of property, and from that
very moment this custom must have gained ground. And this was effected
at a time when the power of the Emperors was great, and that of the
popes inconsiderable; at a time when the Othos came to revive the
dignity of the empire in Italy.

I shall make one reflection which will corroborate what has been above


said, namely, that the institution of negative proofs entailed that of
judicial combats. The abuse complained of to the Othos was, that a
person who was charged with having a false title to an estate, defended
himself by a negative proof, declaring upon the Gospels it was not
false. What was done to reform the abuse of a law which had been
mutilated? The custom of combat was revived.

I hastened to speak of the constitution of Otho II, in order to give a


clear idea of the disputes between the clergy and the laity of those
times. There had been indeed a constitution of Lotharius I[99] of an
earlier date, a sovereign who, upon the same complaints and disputes,
being desirous of securing the just possession of property, had ordained
that the notary should make oath that the deed or title was not forged;
and if the notary should happen to die, the witnesses should be sworn
who had signed it. The evil, however, still continued, till they were
obliged at length to have recourse to the remedy above-mentioned.

Before that time I find that, in the general assemblies held by


Charlemagne, the nation represented to him[100] that in the actual state
of things it was extremely difficult for either the accuser or the
accused to avoid perjuring themselves, and that for this reason it was
much better to revive the judicial combat, which was accordingly done.

The usage of judicial combats gained ground among the Burgundians, and


that of an oath was limited. Theodoric, King of Italy, suppressed the
single combat among the Ostrogoths;[101] and the laws of Chaindasuinthus
and Recessuinthus seemed as if they would abolish the very idea of it.
But these laws were so little respected in Narbonne Gaul, that they
looked upon the legal duel as a privilege of the Goths.[102]

The Lombards who conquered Italy after the Ostrogoths had been destroyed


by the Greeks, introduced the custom of judicial combat into that
country, but their first laws gave a check to it.[103] Charlemagne,[104]
Louis the Debonnaire, and the Othos made divers general constitutions,
which we find inserted in the laws of the Lombards and added to the
Salic laws, whereby the practice of legal duels, at first in criminal,
and afterwards in civil cases, obtained a greater extent. They knew not
what to do. The negative proof by oath had its inconveniences; that of
legal duels had its inconveniences also; hence they often changed,
according as the one or the other affected them most.

On the one hand, the clergy were pleased to see that in all secular


affairs people were obliged to have recourse to the altar,[105] and, on
the other, a haughty nobility were fond of maintaining their rights by
the sword.

I would not have it inferred that it was the clergy who introduced the


custom so much complained of by the nobility. This custom was derived
from the spirit of the Barbarian laws, and from the establishment of
negative proofs. But a practice that contributed to the impunity of such
a number of criminals, having given some people reason to think it was
proper to make use of the sanctity of the churches in order to strike
terror into the guilty, and to intimidate perjurers, the clergy
maintained this usage and the practice which attended it: for in other
respects they were absolutely averse to negative proofs. We find in
Beaumanoir[106] that this kind of proof was never allowed in
ecclesiastic courts, which contributed greatly, without doubt, to its
suppression, and to weaken in this respect the regulation of the codes
of the Barbarian laws.

This will convince us more strongly of the connection between the usage


of negative proofs and that of judicial combats, of which I have said so
much. The lay tribunals admitted of both, and both were rejected by the
ecclesiastic courts.

In choosing the trial by duel the nation followed its military spirit;


for while this was established as a divine decision, the trials by the
cross, by cold or boiling waters, which had been also regarded in the
same lights, were abolished.

Charlemagne ordained that, if any difference should arise between his


children, it should be terminated by the judgment of the cross. Louis
the Debonnaire[107] limited this judgment to ecclesiastic affairs; his
son Lotharius abolished it in all cases; nay, he suppressed even the
trial by cold water.[108]

I do not pretend to say that, at a time when so few usages were


universally received, these trials were not revived in some churches,
especially as they are mentioned in a charter of Philip Augustus,[109]
but I affirm that they were very seldom practised. Beaumanoir,[110] who
lived at the time of St. Louis and a little after, enumerating the
different kinds of trial, mentions that of judicial combat, but not a
word of the others.

19. A new Reason of the Disuse of the Salic and Roman Laws, as also of


the Capitularies. I have already mentioned the reasons that had
destroyed the authority of the Salic and Roman laws, as also of the
Capitularies; here I shall add that the principal cause was the great
extension given to judiciary combats.

As the Salic laws did not admit of this custom, they became in some


measure useless, and fell into oblivion, In like manner the Roman laws,
which also rejected this custom, were laid aside; their whole attention
was then taken up in establishing the law of judicial combats, and in
forming a proper digest of the several cases that might happen on those
occasions. The regulations of the Capitularies became likewise of no
manner of service. Thus it is that such a number of laws lost all their
authority, without our being able to tell the precise time in which it
was lost; they fell into oblivion, and we cannot find any others that
were substituted in their place.

Such a nation had no need of written laws; hence its written laws might


very easily fall into disuse.

If there happened to be any disputes between two parties, they had only


to order a single combat. For this no great knowledge or abilities were
requisite.

All civil and criminal actions are reduced to facts. It is upon these


facts they fought; and not only the substance of the affair, but
likewise the incidents and imparlances were decided by combat, as
Beaumanoir observes, who produces several instances.[111]

I find that, towards the commencement of the third race, the


jurisprudence of those times related entirely to precedents; everything
was regulated by the point of honour. If the judge was not obeyed, he
insisted upon satisfaction from the person that contemned his authority.
At Bourges, if the provost had summoned a person and he refused to come,
his way of proceeding was to tell him, "I sent for thee, and thou didst
not think it worth thy while to come; I demand therefore satisfaction
for this thy contempt." Upon which they fought.[112] Louis the Fat
reformed this custom.[113]

The custom of legal duels prevailed at Orleans, even in all demands of


debt.[114] Louis the Young declared that this custom should take place
only when the demand exceeded five sous. This ordinance was a local law;
for in St. Louis' time it was sufficient that the value was more than
twelve deniers.[115] Beaumanoir[116] had heard a gentleman of the law
affirm that formerly there had been a bad custom in France of hiring a
champion for a certain time to fight their battles in all causes. This
shows that the custom of judiciary combat must have prevailed at that
time to a wonderful extent.

20. Origin of the Point of Honour. We meet with inexplicable enigmas in


the codes of laws of the Barbarians. The law of the Frisians[117] allows
only half a sou in composition to a person that had been beaten with a
stick, and yet for ever so small a wound it allows more. By the Salic
law, if a freeman gave three blows with a stick to another freeman, he
paid three sous; if he drew blood, he was punished as if he had wounded
him with steel, and he paid fifteen sous: thus the punishment was
proportioned to the greatness of the wound. The law of the Lombards
established different compositions for one, two, three, four blows, and
so on.[118] At present, a single blow is equivalent to a hundred
thousand.

The constitution of Charlemagne, inserted in the law of the Lombards,


ordains that those who were allowed the trial by combat should fight
with bastons.[119] Perhaps this was out of regard to the clergy; or
probably, as the usage of legal duels gained ground, they wanted to
render them less sanguinary. The capitulary of Louis the Debonnaire
allows the liberty of choosing to fight either with the sword or
baston.[120] In process of time none but bondmen fought with the
baston.[121]

Here I seethe first rise and formation of the particular articles of our


point of honour. The accuser began by declaring in the presence of the
judge that such a person had committed such an action, and the accused
made answer that he lied,[122] upon which the judge gave orders for the
duel. It became then an established rule that whenever a person had the
lie given him, it was incumbent on him to fight.

Upon a man's declaring that he would fight,[123] he could not afterwards


depart from his word; if he did, he was condemned to a penalty. Hence
this rule ensued, that whenever a person had engaged his word, honour
forbade him to recall it.

Gentlemen fought one another on horseback, and armed at all points;[124]


villains fought on foot and with bastons.[125] Hence it followed that
the baston was looked upon as the instrument of insults and
affronts,[126] because to strike a man with it was treating him like a
villain.

None but villains fought with their faces uncovered,[127] so that none


but they could receive a blow on the face. Therefore, a box on the ear
became an injury that must be expiated with blood, because the person
who received it had been treated as a villain.

The several people of Germany were no less sensible than we of the point


of honour; nay, they were more so. Thus the most distant relatives took
a very considerable share to themselves in every affront, and on this
all their codes are founded. The law of the Lombards ordains[128] that
whosoever goes attended with servants to beat a man unawares, in order
to load him with shame and to render him ridiculous, should pay half the
composition which he would owe if he had killed him;[129] and if through
the same motive he tied or bound him, he would pay three-quarters of the
same composition.

Let us then conclude that our forefathers were extremely sensible of


affronts; but that affronts of a particular kind, such as being struck
with a certain instrument on a certain part of the body, and in a
certain manner, were as yet unknown to them. All this was included in
the affront of being beaten, and in this case the amount of violence
determined the magnitude of the outrage.

21. A new Reflection upon the Point of Honour among the Germans. "It was


a great infamy," says Tacitus,[130] "among the Germans for a person to
leave his buckler behind him in battle; for which reason many after a
misfortune of this kind have destroyed themselves." Thus the ancient
Salic law[131] allows a composition of fifteen sous to any person that
had been injuriously reproached with having left his buckler behind him.

When Charlemagne amended the Salic law,[132] he allowed in this case no


more than three sous in composition. As this prince cannot be suspected
of having had a design to enervate the military discipline, it is
manifest that such an alteration was due to a change of weapons, and
that from this change of weapons a great number of usages derive their
origin.

22. Of the Manners in relation to judicial Combats. Our connections with


the fair sex are founded on the pleasure of enjoyment; on the happiness
of loving and being loved; and likewise on the ambition of pleasing the
ladies, because they are the best judges of some of those things which
constitute personal merit. This general desire of pleasing produces
gallantry, which is not love itself, but the delicate, the volatile, the
perpetual simulation of love.

According to the different circumstances of every country and age, love


inclines more to one of those three things than to the other two. Now I
maintain that the prevailing spirit at the time of our judicial combats
must have been that of gallantry.

I find in the law of the Lombards,[133] that if one of the two champions


was found to have any magic herbs about him, the judge ordered them to
be taken from him, and obliged him to swear he had no more. This law
could be founded only on the vulgar opinion; it was fear, the alleged
inventor of much that made them imagine this kind of prestige. As in
single combats the champions were armed at all points, and as with heavy
arms, both of the offensive and defensive kind, those of a particular
temper and strength gave immense advantages, the notion of some
champions having enchanted arms must certainly have turned the brains of
a great many people.

Hence arose the marvellous system of chivalry. The minds of all sorts of


people quickly imbibed these extravagant ideas, In romances are found
knights-errant, necromancers, and fairies, winged or intelligent horses,
invisible or invulnerable men, magicians who concerned themselves in the
birth and education of great personages, enchanted and disenchanted
palaces, a new world in the midst of the old one, the usual course of
nature being left only to the lower class of mankind. Knights-errant
ever in armour, in a part of the world abounding in castles, forts, and
robbers, placed all their glory in punishing injustice, and in
protecting weakness. Hence our romances are full of gallantry founded on
the idea of love joined to that of strength and protection.

Such was the origin of gallantry, when they formed the notion of an


extraordinary race of men who at the sight of a virtuous and beautiful
lady in distress were inclined to expose themselves to all hazards for
her sake, and to endeavour to please her in the common actions of life.

Our romances of chivalry flattered this desire of pleasing, and


communicated to a part of Europe that spirit of gallantry which we may
venture to affirm was very little known to the ancients.

The prodigious luxury of that immense city of Rome encouraged sensuous


pleasures. The tranquillity of the plains of Greece gave rise to the
description of the sentiments of love.[134] The idea of knights-errant,
protectors of the virtue and beauty of the fair sex, led to that of
gallantry.

This spirit was continued by the custom of tournaments, which, uniting


the rights of valour and love, added still a considerable importance to
gallantry.

23. Of the Code of Laws on judicial Combats. Some perhaps will have a


curiosity to see this abominable custom of judiciary combat reduced to
principles and to find the groundwork of such an extraordinary code of
laws. Men, though reasonable in the main, reduce their very prejudices
to rule. Nothing was more contrary to good sense, than those combats,
and yet when once this point was laid down, a kind of prudential
management was used in carrying it into execution.

In order to be thoroughly acquainted with the jurisprudence of those


times, it is necessary to read with attention the regulations of St.
Louis, who made such great changes in the judiciary order. Défontaines
was contemporary with that prince; Beaumanoir wrote after him,[135] and
the rest lived since his time. We must, therefore, look for the ancient
practice in the amendments that have been made of it.

24. Rules established in the judicial Combat. When there happened to be


several accusers, they were obliged to agree among themselves that the
action might be carried on by a single prosecutor; and, if they could
not agree, the person before whom the action was brought, appointed one
of them to prosecute the quarrel.[136]

When a gentleman challenged a villain, he was obliged to present himself


on foot with buckler and baston; but if he came on horseback and armed
like a gentleman, they took. his horse and his arms from him and,
stripping him to his shirt, they compelled him to fight in that
condition with the villain.[137]

Before the combat the magistrates ordered three bans to be published. By


the first the relatives of the parties were commanded to retire; by the
second the people were warned to be silent; and the third prohibited the
giving of any assistance to either of the parties, under severe
penalties, nay, even on pain of death if by this assistance either of
the combatants should happen to be vanquished.[138]

The officers belonging to the civil magistrate[139] guarded the list or


enclosure where the battle was fought; and in case either of the parties
declared himself desirous of peace, they took particular notice of the
actual state in which they mutually stood at that very moment, to the
end that they might be restored to the same situation in case they did
not come to an understanding.[140]

When the pledges were received either for a crime or for false judgment,


the parties could not make up the matter without the consent of the
lord; and when one of the parties was overcome, there could be no
accommodation without the permission of the count, which had some
analogy to our letters of grace.[141]

But if it happened to be a capital crime, and the lord, corrupted by


presents, consented to an accommodation, he was obliged to pay a fine of
sixty livres, and the right he had of punishing the malefactor devolved
upon the count.[142]

There were a great many people incapable either of offering, or of


accepting battle. But liberty was given them, on cause being shown, to
choose a champion; and that he might have a stronger interest in
defending the party in whose behalf he appeared, his hand was cut off if
he lost the battle.[143]

When capital laws were made in the last century against duels, perhaps


it would have been sufficient to have deprived a warrior of his military
capacity by the loss of his hand; nothing in general being a greater
mortification to mankind than to survive the loss of their character.

When, in capital cases, the duel was fought by champions, the parties


were placed where they could not behold the battle; each was bound with
the cord that was to be used at his execution in case his champion was
overcome.[144] The person overcome in battle did not always lose the
point contested; if, for instance, they fought on an imparlance, he lost
only the imparlance.[145]

25. Of the Bounds prescribed to the Custom of judicial Combats. When


pledges of battle had been received upon a civil affair of small
importance, the lord obliged the parties to withdraw them.

If a fact was notorious; for instance, if a man had been assassinated in


the open marketplace, then there was neither a trial by witnesses, nor
by combat; the judge gave his decision from the notoriety of the
fact.[146]

When the court of a lord had often determined after the same manner, and


the usage was thus known,[147] the lord refused to grant the parties the
privilege of duelling, to the end that the usages might not be altered
by the different success of the combats.

They were not allowed to insist upon duelling but for themselves, for


some one belonging to their family, or for their liege lord.[148]

When the accused had been acquitted, another relative could not insist


on fighting him; otherwise disputes would never be terminated.[149]

If a person appeared again in public whose relatives, upon a supposition


of his being murdered, wanted to revenge his death, there was then no
room for a combat; the same may be said if by a notorious absence the
fact was proved to be impossible.[150]

If a man who had been mortally wounded had exculpated before his death


the person accused and named another, they did not proceed to a duel;
but if he had mentioned nobody his declaration was looked upon as a
forgiveness on his death-bed; the prosecution was continued, and even
among gentlemen they could make war against each other.[151]

When there was a conflict, and one of the relatives had given or


received pledges of battle, the right of contest ceased; for then it was
thought that the parties wanted to pursue the ordinary course of
justice; therefore he that would have continued the contest would have
been sentenced to make good all the losses.

Thus the practice of judiciary combat had this advantage, that it was


apt to change a general into an individual quarrel, to restore the
courts of judicature to their authority, and to bring back into the
civil state those who were no longer governed but by the law of nations.

As there are an infinite number of wise things that are managed in a


very foolish manner; so there are many foolish things that are very
wisely conducted.

When a man who was challenged with a crime visibly showed that it had


been committed by the challenger himself, there could be then no pledges
of battle; for there is no criminal but would prefer a duel of uncertain
event to a certain punishment.[152]

There were no duels in affairs decided by arbiters,[153] nor by


ecclesiastical courts, nor in cases relating to women's dowries.

"A woman," says Beaumanoir, "cannot fight." if a woman challenged a


person without naming her champion, the pledges of battle were not
accepted. It was also requisite that a woman should be authorised by her
baron, that is, by her husband, to challenge; but she might be
challenged without this authority.[154]

If either the challenger or the person challenged were under fifteen


years of age, there could be no combat.[155] They might order it,
indeed, in disputes relating to orphans when their guardians or trustees
were willing to run the risk of this procedure.

The cases in which a bondman was allowed to fight are, I think, as


follows. He was allowed to fight another bondman; to fight a freedman,
or even a gentleman, in case he were challenged; but if he himself
challenged, the other might refuse to fight; and even the bondman's lord
had a right to take him out of the court.[156] The bondman might by his
lord's charter or by usage fight with any freeman;[157] and the church
claimed this right for her bondmen[158] as a mark of respect due to her
by the laity.[159]

26. On the judiciary Combat between one of the Parties and one of the


Witnesses. Beaumanoir informs us[160] that a person who saw a witness
going to swear against him might elude the other by telling the judges
that his adversary produced a false and slandering witness; and if the
witness was willing to maintain the quarrel, he gave pledges of battle.
The inquiry was no longer the question; for if the witness was overcome,
it was decided that the adversary had produced a false witness, and he
lost his cause.

It was necessary that the second witness should not be heard; for if he


had made his attestation, the affair would have been decided by the
deposition of two witnesses. But by staying the second, the deposition
of the first witness became void.

The second witness being thus rejected, the party was not allowed to


produce any others, but he lost his cause; in case, however, there had
been no pledges of battle, he might produce other witnesses.

Beaumanoir observes[161] that the witness might say to the party he


appeared for, before he made his deposition: "I do not care to fight for
your quarrel, nor to enter into any debate; but if you are willing to
stand by me, I am ready to tell the truth." The party was then obliged
to fight for the witness, and if he happened to be overcome, he did not
lose his cause,[162] but the witness was rejected.

This, I believe, was a modification of the ancient custom; and what


makes me think so is that we find this usage of challenging the
witnesses established in the laws of the Bavarians[163] and
Burgundians[164] without any restriction.

I have already made mention of the constitution of Gundebald, against


which Agobard[165] and St. Avitus[166] made such loud complaints. "When
the accused," says this prince, "produces witnesses to swear that he has
not committed the crime, the accuser may challenge one of the witnesses
to a combat; for it is very just that the person who has offered to
swear, and has declared that he was certain of the truth, should make no
difficulty of maintaining it by combat." Thus the witnesses were
deprived by this king of every kind of subterfuge to avoid the judiciary
combat.

27. Of the judicial Combat between one of the Parties and one of the


Lords' Peers. Appeal of false Judgment. As the nature of judicial
combats was to terminate the affair for ever, and was incompatible with
a new judgment and new prosecutions,[167] an appeal, such as is
established by the Roman and Canon laws, that is, to a superior court in
order to rejudge the proceedings of an inferior, was a thing unknown in
France.

This is a form of proceeding to which a warlike nation, governed solely


by the point of honour, was quite a stranger; and agreeably to this very
spirit, the same methods were used against the judges as were allowed
against the parties.[168]

An appeal among the people of this nation was a challenge to fight with


arms, a challenge to be decided by blood; and not that invitation to a
paper quarrel, the knowledge of which was reserved for succeeding ages.

Thus St. Louis, in his Institutions,[169] says that an appeal includes


both felony and iniquity. Thus Beaumanoir tells us that if a vassal
wanted to make his complaint of an outrage committed against him by his
lord,[170] he was first obliged to announce that he quitted his fief;
after which he appealed to his lord paramount, and offered pledges of
battle, In like manner the lord renounced the homage of his vassal, if
he challenged him before the count.

For a vassal to challenge his lord of false judgment was as much as to


say to him that his sentence was unjust and malicious; now to utter such
words against his lord was in some measure committing the crime of
felony.

Hence, instead of bringing a challenge of false judgment against the


lord who appointed and directed the court, they challenged the peers of
whom the court itself was formed, by which means they avoided the crime
of felony, for they insulted only their peers, with whom they could
always account for the affront.

It was a very dangerous thing to challenge the peers of false


judgment.[171] If the party waited till judgment was pronounced, he was
obliged to fight them all when they offered to make good their
judgment.[172] If the appeal was made before all the judges had given
their opinion, he was obliged to fight all who had agreed in their
judgment. To avoid this danger, it was usual to petition the lord to
direct that each peer should give his opinion aloud;[173] and when the
first had pronounced, and the second was going to do the same, the party
told him that he was a liar, a knave and a slanderer, and then he had to
fight only with that peer.

Défontaines[174] would have it that, before a challenge was made of


false judgment, it was customary to let three judges pronounce; and he
does not say that it was necessary to fight them all three; much less
that there was any obligation to fight all those who had declared
themselves of the same opinion. These differences arose from this, that
in those times there were few usages exactly in all parts the same;
Beaumanoir gives an account of what passed in the county of Clermont;
and Défontaines of what was practised in Vermandois.

When one of the peers or a vassal had declared that he would maintain


the judgment, the judge ordered pledges of battle to be given, and
likewise took security of the challenger that he would maintain his
case.[175] But the peer who was challenged gave no security, because he
was the lord's vasal, and was obliged to defend the challenge, or to pay
the lord a fine of sixty livres.

If he who challenged did not prove that the judgment was bad,[176] he


paid the lord a fine of sixty livres, the same fine to the peer whom he
had challenged, and as much to every one of those who had openly
consented to the judgment.[177]

When a person, strongly suspected of a capital crime, had been taken and


condemned, he could make no appeal of false judgment:[178] for he would
always appeal either to prolong his life, or to get an absolute
discharge.

If a person said that the judgment was false and bad and did not offer


to prove it so, that is, to fight, he was condemned to a fine of ten
sous if a gentleman, and to five sous if a bondman, for the injurious
expressions he had uttered.[179]

The judges or peers who were overcome forfeited neither life nor


limbs,[180] but the person who challenged them was punished with death,
if it happened to be a capital crime.[181]

This manner of challenging the vassals with false judgment was to avoid


challenging the lord himself. But if the lord had no peers,[182] or had
not a sufficient number, he might at his own expense borrow peers of his
lord paramount;[183] but these peers were not obliged to pronounce
judgment if they did not like it; they might declare that they were come
only to give their opinion: in that particular case, the lord himself
judged and pronounced sentence as judge;[184] and if an appeal of false
judgment was made against him, it was his business to answer to the
challenge.

If the lord happened to be so very poor as not to be able to hire peers


of his paramount,[185] or if he neglected to ask for them, or the
paramount refused to give them, then, as the lord could not judge by
himself, and as nobody was obliged to plead before a tribunal where
judgment could not be given, the affair was brought before the lord
paramount.

This, I believe, was one of the principal causes of the separation


between the jurisdiction and the fief, whence arose the maxim of the
French lawyers, "The fief is one thing, and the jurisdiction is
another." For as there were a vast number of peers who had no
subordinate vassals under them, they were incapable of holding their
court; all affairs were then brought before their lord paramount, and
they lost the privilege of pronouncing judgment, because they had
neither power nor will to claim it.

All the judges who had been at the judgment were obliged to be present


when it was pronounced, that they might follow one another, and say aye
to the person who, wanting to make an appeal of false judgment, asked
them whether they followed;[186] for Défontaines says[187] that it is an
affair of courtesy and loyalty, and there is no such thing as evasion or
delay. Hence, I imagine, arose the custom still followed in England of
obliging the jury to be all unanimous in their verdict in cases relating
to life and death.

Judgment was therefore given, according to the opinion of the majority;


and if there was an equal division, sentence was pronounced, in criminal
cases, in favour of the accused; in cases of debt, in favour of the
debtor; and in cases of inheritance, in favour of the defendant.

Défontaines observes[188] that a peer could not excuse himself by saying


that he would not sit in court if there were only four,[189] or if the
whole number, or at least the wisest part, were not present. This is
just as if he were to say, in the heat of an engagement, that he would
not assist his lord because he had not all his vassals with him. But it
was the lord's business to cause his court to be respected, and to
choose the bravest and most knowing of his tenants. This I mention, in
order to show the duty of vassals, which was to fight, and to give
judgment: and such, indeed, was this duty, that to give judgment was all
the same as to fight.

It was lawful for a lord, who went to law with his vassal in his own


court, and was cast, to challenge one of his tenants with false
judgment. But as the latter owed a respect to his lord for the fealty he
had vowed, and the lord, on the other hand, owed benevolence to his
vassal for the fealty accepted, it was customary to make a distinction
between the lord's affirming in general that the judgment was false and
unjust,[190] and imputing personal prevarications to his tenant.[191] In
the former case he affronted his own court, and in some measure himself,
so that there was no room for pledges of battle. But there was room in
the latter, because he attacked his vassal's honour; and the person
overcome was deprived of life and property, in order to maintain the
public tranquillity.

This distinction, which was necessary in that particular case, had


afterwards a greater extent. Beaumanoir says that when the challenger of
false judgment attacked one of the peers by personal imputation, battle
ensued; but if he attacked only the judgment, the peer challenged was at
liberty to determine the dispute either by battle or by law.[192] But as
the prevailing spirit in Beaumanoir's time was to restrain the usage of
judicial combats, and as this liberty, which had been granted to the
peer challenged, of defending the judgment by combat or not is equally
contrary to the ideas of honour established in those days, and to the
obligation the vassal lay under of defending his lord's jurisdiction, I
am apt to think that this distinction of Beaumanoir's was a novelty in
French jurisprudence.

I would not have it thought that all appeals of false judgment were


decided by battle; it fared with this appeal as with all others. The
reader may recollect the exceptions mentioned in the 25th chapter. Here
it was the business of the superior court to examine whether it was
proper to withdraw the pledges of battle or not.

There could be no appeal of false judgment against the king's court,


because, as there was no one equal to the king, no one could challenge
him; and as the king had no superior, none could appeal from his court.

This fundamental regulation, which was necessary as a political law,


diminished also as a civil law the abuses of the judicial proceedings of
those times. When a lord was afraid that his court would be challenged
with false judgment, or perceived that they were determined to
challenge, if the interests of justice required that it should not be
challenged, he might demand from the king's court men whose judgment
could not be set aside.[193] Thus King Philip, says Défontaines,[194]
sent his whole council to judge an affair in the court of the Abbot of
Corbey.

But if the lord could not have judges from the king, he might remove his


court into the king's, if he held immediately of him; and if there were
intermediate lords, he had recourse to his suzerain, removing from one
lord to another till he came to the sovereign.

Thus, notwithstanding they had in those days neither the practice nor


even the idea of our modern appeals, yet they had recourse to the king,
who was the source whence all those rivers flowed, and the sea into
which they returned.

28. Of the Appeal of Default of Justice. The appeal of default of


justice was, when the court of a particular lord deferred, evaded, or
refused to do justice to the parties.

During the time of our princes of the second race, though the count had


several officers under him, their person was subordinate, but not their
jurisdiction. These officers in their court days, assizes, or Placita,
gave judgment in the last resort as the count himself; all the
difference consisted in the division of the jurisdiction. For instance,
the count had the power of condemning to death, of judging of liberty,
and of the restitution of goods, which the centenarii had not.[195]

For the same reason there were greater cases which were reserved to the


king; namely, those which directly concerned the political order of the
state.[196] Such were the disputes between bishops, abbots, counts, and
other grandees, which were determined by the king together with the
great vassals.[197]

What some authors have advanced, namely, that an appeal lay from the


count to the king's commissary, or Missus Dominicus, is not
well-grounded. The count and the Missus had an equal jurisdiction,
independent of each other.[198] The whole difference was that the Missus
held his Placita, or assizes, four months in the year,[199] and the
count the other eight.

If a person, who had been condemned at an assize, demanded to have his


cause tried over again, and was afterwards cast, he paid a fine of
fifteen sous, or received fifteen blows from the judges who had decided
the affair.[200]

When the counts, or the king's commissaries did not find themselves able


to bring the great lords to reason, they made them give bail or
security[201] that they would appear in the king's court: this was to
try the cause, and not to rejudge it. I find in the capitulary of
Metz[202] a law by which the appeal of false judgment to the king's
court is established, and all other kinds of appeal are proscribed and
punished.

If they refused to submit to the judgment of the sheriffs[203] and made


no complaint, they were imprisoned till they had submitted, but if they
complained, they were conducted under a proper guard before the king,
and the affair was examined in his court.

There could be hardly any room then for an appeal of default of justice.


For instead of its being usual in those days to complain that the counts
and others who had a right of holding assizes were not exact in
discharging this duty,[204] it was a general complaint that they were
too exact. Hence we find such numbers of ordinances, by which the counts
and all other officers of justice are forbidden to hold their assizes
above thrice a year. It was not so necessary to chastise their
indolence, as to check their activity.

But, after an infinite number of petty lordships had been formed, and


different degrees of vassalage established, the neglect of certain
vassals in holding their courts gave rise to this kind of appeal;[205]
especially as very considerable profits accrued to the lord paramount
from the several fines.

As the custom of judicial combats gained every day more ground, there


were places, cases, and times, in which it was difficult to assemble the
peers, and consequently in which justice was delayed. The appeal of
default of justice was therefore introduced, an appeal that has been
often a remarkable era in our history; because most of the wars of those
days were imputed to a violation of the political law; as the cause, or
at least the pretence, of our modern wars is the infringement of the
laws of nations.

Beaumanoir says[206] that, in case of default of justice, battle was not


allowed: the reasons are these: 1. They could not challenge the lord
himself, because of the respect due to his person; neither could they
challenge the lord's peers, because the case was clear, and they had
only to reckon the days of the summons, or of the other delays; there
had been no judgment passed, consequently there could be no appeal of
false judgment: in fine, the crime of the peers offended the lord as
well as the party, and it was against rule that there should be battle
between the lord and his peers.

But as the default was proved by witnesses before the superior


court,[207] the witnesses might be challenged, and then neither the lord
nor his court were offended.

In case the default was owing to the lord's tenants or peers, who had


delayed to administer justice, or had avoided giving judgment after past
delays, then these peers were appealed of default of justice before the
paramount; and if they were cast, they paid a fine to their lord.[208]
The latter could not give them any assistance; on the contrary, he
seized their fief, till they had each paid a fine of sixty livres.

2. When the default was owing to the lord, which was the case whenever


there happened not to be a sufficient number of peers in his court to
pass judgment, or when he had not assembled his tenants or appointed
somebody in his place to assemble them, an appeal might be made of the
default before the lord paramount; but then the party and not the lord
was summoned, because of the respect due to the latter.[209]

The lord demanded to be tried before the paramount, and if he was


acquitted of the default, the cause was remanded to him, and he was
likewise paid a fine of sixty livres.[210] But if the default was
proved, the penalty inflicted on him was to lose the trial of the
cause,[211] which was to be then determined in the superior court. And,
indeed, the complaint of default was made with no other view.

3. If the lord was sued in his own court,[212] which never happened but


upon disputes in relation to the fief, after letting all the delays
pass, the lord himself was summoned before the peers in the sovereign's
name,[213] whose permission was necessary on that occasion. The peers
did not make the summons in their own name, because they could not
summon their lord, but they could summon for their lord.[214]

Sometimes the appeal of default of justice was followed by an appeal of


false judgment, when the lord had caused judgment to be passed,
notwithstanding the default.[215]

The vassal who had wrongfully challenged his lord of default of justice


was sentenced to pay a fine according to his lord's pleasure.[216]

The inhabitants of Gaunt had challenged the Earl of Flanders of default


of justice before the king, for having delayed to give judgment in his
own court.[217] Upon examination it was found that he had used fewer
delays than even the custom of the country allowed. They were therefore
remanded to him; upon which their effects to the value of sixty thousand
livres were seized. They returned to the king's court in order to have
the fine moderated; but it was decided that the earl might insist upon
the fine, and even upon more if he pleased. Beaumanoir was present at
those judgments.

4. In other disputes which the lord might have with his vassal, in


respect to the person or honour of the latter, or to property that did
not belong to the fief, there was no room for a challenge of default of
justice; because the cause was not tried in the lord's court, but in
that of the paramount: vassals, says Défontaines,[218] having no power
to give judgment on the person of their lord.

I have been at some trouble to give a clear idea of those things, which


are so obscure and confused in ancient authors that to disentangle them
from the chaos in which they were involved may be reckoned a new
discovery.

29. Epoch of the Reign of St. Louis. St. Louis abolished the judicial


combats in all the courts of his demesne, as appears by the ordinance he
published thereupon,[219] and by the Institutions.[220]

But he did not suppress them in the courts of his barons, except in the


case of challenge of false judgment.[221]

A vassal could not challenge the court of his lord of false judgment,


without demanding a judicial combat against the judges who pronounced
sentence. But St. Louis introduced the practice of challenging of false
judgment without fighting, a change that may be reckoned a kind of
revolution.[222]

He declared[223] that there should be no challenge of false judgment in


the lordships of his demesnes, because it was a crime of felony. In
reality, if it was a kind of felony against the lord, by a much stronger
reason it was felony against the king. But he consented that they might
demand an amendment[224] of the judgments passed in his courts; not
because they were false or iniquitous, but because they did some
prejudice.[225] On the contrary, he ordained that they should be obliged
to make a challenge of false judgment against the courts of the
barons,[226] in case of any complaint.

It was not allowed by the Institutions, as we have already observed, to


bring a challenge of false judgment against the courts in the king's
demesnes. They were obliged to demand an amendment before the same
court; and in case the bailiff refused the amendment demanded, the king
gave leave to make an appeal to his court;[227] or rather, interpreting
the Institutions by themselves, to present him a request or
petition.[228]

With regard to the courts of the lords, St. Louis, by permitting them to


be challenged of false judgment, would have the cause brought before the
royal tribunal,[229] or that of the lord paramount, not to be decided by
duel[230] but by witnesses, pursuant to a certain form of proceeding,
the rules of which he laid down in the Institutions.[231]

Thus, whether they could falsify the judgment, as in the court of the


barons; or whether they could not falsify, as in the court of his
demesnes, he ordained that they might appeal without the hazard of a
duel.

Défontaines[232] gives us the first two examples he ever saw, in which


they proceeded thus without a legal duel: one, in a cause tried at the
court of St. Quentin, which belonged to the king's demesne; and the
other, in the court of Ponthieu, where the count, who was present,
opposed the ancient jurisprudence: but these two causes were decided by
law.

Here, perhaps, it will be asked why St. Louis ordained for the courts of


his barons a different form of proceeding from that which he had
established in the courts of his demesne? The reason is this: when St.
Louis made the regulation for the courts of his demesnes, he was not
checked or limited in his views: but he had measures to keep with the
lords who enjoyed this ancient prerogative, that causes should not be
removed from their courts, unless the party was willing to expose
himself to the dangers of an appeal of false judgment. St. Louis
preserved the usage of this appeal; but he ordained that it should be
made without a judicial combat; that is, in order to make the change
less felt, he suppressed the thing, and continued the terms.

This regulation was not universally received in the courts of the lords.


Beaumanoir says[233] that in his time there were two ways of trying
causes; one according to the king's establishment, and the other
pursuant to the ancient practice; that the lords were at liberty to
follow which way they pleased; but when they had pitched upon one in any
cause, they could not afterwards have recourse to the other. He
adds,[234] that the Count of Clermont followed the new practice, while
his vassals kept to the old one; but that it was in his power to
reestablish the ancient practice whenever he pleased, otherwise he would
have less authority than his vassals.

It is proper here to observe that France was at that time divided into


the country of the king's demesne, and that which was called the country
of the barons, or the baronies; and, to make use of the terms of St.
Louis' Institutions, into the country under obedience to the king, and
the country out of his obedience.[235] When the king made ordinances for
the country of his demesne, he employed his own single authority. But
when he published any ordinances that concerned also the country of his
barons, these were made in concert with them,[236] or sealed and
subscribed by them: otherwise the barons received or refused them,
according as they seemed conducive to the good of their baronies. The
rear-vassals were upon the same terms with the great-vassals. Now the
Institutions were not made with the consent of the lords, though they
regulated matters which to them were of great importance: but they were
received only by those who believed they would redound to their
advantage. Robert, son of St. Louis, received them in his county of
Clermont; yet his vassals did not think proper to conform to this
practice.

30. Observation on Appeals. I apprehend that appeals, which were


challenges to a combat, must have been made immediately on the spot. "If
the party leaves the court without appealing," says Beaumanoir,[237] "he
loses his appeal, and the judgment stands good." This continued still in
force, even after all the restrictions of judicial combat.[238]

31. The same Subject continued. The villain could not bring a challenge


of false judgment against the court of his lord. This we learn from
Défontaines,[239] and he is confirmed moreover by the Institutions.[240]
Hence Défontaines says,[241] "between the lord and his villain there is
no other judge but God."

It was the custom of judicial combats that deprived the villains of the


privilege of challenging their lord's court of false judgment. And so
true is this, that those villains[242] who by charter or custom had a
right to fight had also the privilege of challenging their lord's court
of false judgment, even though the peers who tried them were
gentlemen;[243] and Défontaines proposes expedients to gentlemen in
order to avoid the scandal of fighting with a villain by whom they had
been challenged of false judgment.[244]

As the practice of judicial combats began to decline, and the usage of


new appeals to be introduced, it was reckoned unfair that freemen should
have a remedy against the injustice of the courts of their lords, and
the villains should not; hence the parliament received their appeals all
the same as those of freemen.

32. The same Subject continued. When a challenge of false judgment was


brought against the lord's court, the lord appeared in person before his
paramount to defend the judgment of his court. In like manner, in the
appeal of default of justice, the party summoned before the lord
paramount brought his lord along with him, to the end that if the
default was not proved, he might recover his jurisdiction.[245]

In process of time as the practice observed in these two particular


cases became general, by the introduction of all sorts of appeals, it
seemed very extraordinary that the lord should be obliged to spend his
whole life in strange tribunals, and for other people's affairs. Philip
of Valois ordained[246] that none but the bailiffs should be summoned;
and when the usage of appeals became still more frequent, the parties
were obliged to defend the appeal: the deed of the judge became that of
the party.[247]

I took notice that in the appeal of default of justice,[248] the lord


lost only the privilege of having the cause tried in his own court. But
if the lord himself was sued as party,[249] which became a very common
practice,[250] he paid a fine of sixty livres to the king, or to the
paramount, before whom the appeal was brought. Thence arose the usage,
after appeals had been generally received, of making the fine payable to
the lord upon the reversal of the sentence of his judge; a usage which
lasted a long time, and was confirmed by the ordinance of Rousillon, but
fell, at length, to the ground through its own absurdity.

33. The same Subject continued. In the practice of judicial combats, the


person who had challenged one of the judges of false judgment might lose
his cause by the combat, but could not possibly gain it.[251] And,
indeed, the party who had a judgment in his favour ought not to have
been deprived of it by another man's act. The appellant, therefore, who
had gained the battle was obliged to fight likewise against the adverse
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