Of the Origin and Revolutions of the Civil Laws
among the French
1. Different Character of the Laws of the several
People of Germany. After the Franks had quitted their own country,
they made a compilation of the Salic laws with the assistance of the sages
of their own nation.1 The tribe of
the Ripuarian Franks having joined itself under Clovis2
to that of the Salians preserved its own customs; and Theodoric,3
King of Austrasia, ordered them to be reduced to writing. He collected
likewise the customs of those Bavarians and Germans, who were dependent on
his kingdom.4 For Germany having
been weakened by the migration of such a multitude of people, the Franks,
after conquering all before them, made a retrograde march and extended
their dominion into the forests of their ancestors. Very likely the
Thuringian code was given by the same Theodoric, since the Thuringians
were also his subjects.5 As the
Frisians were subdued by Charles Martel and Pepin, their law cannot be
prior to those princes.6
Charlemagne, the first that reduced the Saxons, gave them the law still
extant; and we need only read these last two codes to be convinced they
came from the hands of conquerors. As soon as the Visigoths, the
Burgundians, and the Lombards had founded their respective kingdoms, they
reduced their laws to writing, not with an intent of obliging the
vanquished nations to conform to their customs, but with a design of
following them themselves.
There is an admirable simplicity in the Salic and Ripuarian laws, as
well as in those of the Alemans, Bavarians, Thuringians, and Frisians.
They breathe an original coarseness and a spirit which no change or
corruption of manners had weakened. They received but very few
alterations, because all those people, except the Franks, remained in
Germany. Even the Franks themselves laid there the foundation of a great
part of their empire, so that they had none but German laws. The same
cannot be said of the laws of the Visigoths, of the Lombards and
Burgundians; their character considerably altered from the great change
which happened in the character of those people after they had settled in
their new habitations.
The kingdom of the Burgundians did not last long enough to admit of
great changes in the laws of the conquering nation. Gundebald and
Sigismond, who collected their customs, were almost the last of their
kings. The laws of the Lombards received additions rather than changes.
The laws of Rotharis were followed by those of Grimoaldus, Luitprandus,
Rachis, and Astulphus, but did not assume a new form. It was not so with
the laws of the Visigoths;7 their
kings new-moulded them, and had them also new-moulded by the clergy.
The kings indeed of the first race struck out of the Salic and Ripuarian
laws whatever was absolutely inconsistent with Christianity, but left the
main part untouched.8 This cannot
be said of the laws of the Visigoths.
The laws of the Burgundians, and especially those of the Visigoths,
admitted of corporal punishments; these were not tolerated by the Salic
and Ripuarian laws;9 they preserved
their character much better.
The Burgundians and Visigoths, whose provinces were greatly exposed,
endeavoured to conciliate the affections of the ancient inhabitants, and
to give them the most impartial civil laws;10
but as the Kings of the Franks had established their power, they had no
The Saxons, who lived under the dominion of the Franks, were of an
intractable temper, and prone to revolt. Hence we find in their laws the
severities of a conqueror,12 which
are not to be met with in the other codes of the laws of the barbarians.
We see the spirit of the German laws in the pecuniary punishments, and
the spirit of a conqueror in those of an afflictive nature.
The crimes they commit in their own country are subject to corporal
punishment; and the spirit of the German laws is followed only in the
punishment of crimes committed beyond the extent of their own territory.
They are plainly told that their crimes shall meet with no mercy, and
they are refused even the asylum of churches.
The bishops had an immense authority at the court of the Visigoth Kings,
the most important affairs being debated in councils. All the maxims,
principles and views of the present inquisition are owing to the code of
the Visigoths; and the monks have only copied against the Jews the laws
formerly enacted by bishops.
In other respects the laws of Gundebald for the Burgundians seem pretty
judicious; and those of Rotharis, and of the other Lombard princes, are
still more so. But the laws of the Visigoths, those for instance of
Recessuinthus, Chaindasuinthus, and Egigas are puerile, ridiculous and
foolish; they attain not their end; they are stuffed with rhetoric and
void of sense, frivolous in the substance and bombastic in the style.
2. That the Laws of the Barbarians were all
personal. It is a distinguishing character of these laws of the
barbarians that they were not confined to a certain district; the Frank
was tried by the law of the Franks, the Aleman by that of the Alemans, the
Burgundian by that of the Burgundians, and the Roman by the Roman law;
nay, so far were the conquerors in those days from reducing their laws to
a uniform system or body, that they did not even think of becoming
legislators to the people they had conquered.
The original of this I find in the manners of the Germans. These people
were parted asunder by marshes, lakes, and forests; and Cæsar
observes13 they were fond of such
separations. Their dread of the Romans brought about their reunion; and
yet each individual among these mixed people was still to be tried by the
established customs of his own nation. Each tribe apart was free and
independent; and when they came to be intermixed, the independence still
continued; the country was common, the government peculiar; the territory
the same, and the nations different. The spirit of personal laws prevailed
therefore among those people before ever they set out from their own
homes, and they carried it with them into the conquered provinces.
We find this custom established in the formulas of Marculfus,14
in the codes of the laws of the barbarians, but chiefly in the law of the
Ripuarians15 and the decrees of the
kings of the first race,16 whence
the capitularies on that subject in the second race were derived.17
The children followed the laws of their father,18
the wife that of her husband,19 the
widow came back to her own original law,20
and the freedman was under that of his patron.21
Besides, every man could make choice of what laws he pleased; but the
constitution of Lotharius I22
required that this choice should be made public.
3. Capital Difference between the Salic Laws and
those of the Visigoths and Burgundians. We have already observed that
the laws of the Burgundians and Visigoths were impartial; but it was
otherwise with regard to the Salic law, for it established between the
Franks and Romans the most mortifying distinctions. When a Frank, a
barbarian, or one living under the Salic law happened to be killed, a
composition of 200 sols was to be paid to his relatives;23
only 100 upon the killing of a Roman proprietor,24
and no more than forty-five for a Roman tributary. The composition for the
murder of one of the king's vassals, if a Frank, was 600 sols;25
if a Roman, though the king's guest,26
only 300.27 The Salic law made
therefore a cruel distinction between the Frank and Roman lord, and the
Frank and Roman commoner.
Further, if a number of people were got together to assault a Frank in
his house,28 and he happened to be
killed, the Salic law ordained a composition of 600 sols; but if a Roman
or a freedman was assaulted, only one-half that composition.29
By the same law,30 if a Roman put a
Frank in irons, he was liable to a composition of 30 sols; but if a Frank
had thus used a Roman, he paid only 15. A Frank, stripped by a Roman, was
entitled to the composition of 62 1/2 sols, and a Roman stripped by a
Frank received only 30. Such unequal treatment must needs have been very
grievous to a Roman.
And yet a celebrated author31
forms a system of the establishment of the Franks in Gaul, on a
supposition that they were the best friends of the Romans. The Franks
then, the best friends of the Romans, they who did, and they who suffered
from the Romans such an infinite deal of mischief!32
The Franks, the friends of the Romans, they who, after subduing them by
their arms, oppressed them in cold blood by their laws! They were exactly
the friends of the Romans as the Tartars who conquered China were the
friends of the Chinese. If some Catholic bishops thought fit to make use
of the Franks in destroying the Arian Kings, does it follow that they had
a desire of living under those barbarous people? And can we hence conclude
that the Franks had any particular regard for the Romans? I should draw
quite different consequences; the less the Franks had to fear from the
Romans, the less indulgence they showed them.
The Abbé du Bos has consulted but indifferent authorities for his
history, such as poets and orators; works of parade and ostentation are
improper foundations for building systems.
4. In what manner the Roman Law came to be lost
in the Country subject to the Franks, and preserved in that subject to the
Goths and Burgundians. What has been above said will throw some light
upon other things, which have hitherto been involved in great obscurity.
The country at this day called France was under the first race governed
by the Roman law, or the Theodosian code, and by the different laws of the
Barbarians,33 who settled in those
In the country subject to the Franks, the Salic law was established for
the Franks, and the Theodosian code34
for the Romans. In that subject to the Visigoths, a compilation of the
Theodosian code, made by order of Alaric,35
regulated disputes among the Romans; and the national customs, which Euric
caused to be reduced to writing,36
determined those among the Visigoths. But how comes it, some will say,
that the Salic laws gained almost a general authority in the country of
the Franks, and the Roman law gradually declined; whilst in the
jurisdiction of the Visigoths the Roman law spread itself, and obtained at
last a general sway?
My answer is that the Roman law came to be disused among the Franks
because of the great advantages accruing from being a Frank, a Barbarian,37
or a person living under the Salic law; every one, in that case, readily
quitting the Roman to live under the Salic law.
The clergy alone retained it,38
as a change would be of no advantage to them. The difference of conditions
and ranks consisted only in the largeness of the composition, as I shall
show in another place. Now particular laws39
allowed the clergy as favourable compositions as those of the Franks, for
which reason they retained the Roman law. This law brought no hardships
upon them; and in other respects it was most proper for them, as it was
the work of Christian emperors.
On the other hand, in the patrimony of the Visigoths, as the Visigoth
law40 gave no civil advantages to
the Visigoths over the Romans, the latter had no reason to discontinue
living under their own law in order to embrace another. They retained
therefore their own laws without adopting those of the Visigoths.
This is still further confirmed in proportion as we proceed in our
inquiry. The law of Gundebald was extremely impartial, not favouring the
Burgundians more than the Romans. It appears by the preamble to that law
that it was made for the Burgundians, and to regulate the disputes which
might arise between them and the Romans; and in the latter case the judges
were equally divided of a side. This was necessary for particular reasons,
drawn from the political regulations of those times.41
The Roman law was continued in Burgundy, in order to regulate the disputes
of Romans among themselves. The latter had no inducement to quit their own
law, as in the country of the Franks; and rather as the Salic law was not
established in Burgundy, as appears by the famous letter which Agobard
wrote to Louis the Pious.
Agobard42 desired that prince to
establish the Salic law in Burgundy; consequently it had not been
established there at that time. Thus the Roman law did, and still does
subsist in so many provinces, which formerly depended on this kingdom.
The Roman and Gothic laws continued likewise in the country of the
establishment of the Goths, where the Salic law was never received. When
Pepin and Charles Martel expelled the Saracens, the towns and provinces
which submitted to these princes petitioned for a continuance of their own
laws and obtained it;43 this, in
spite of the usages of those times, when all laws were personal, soon made
the Roman law to be considered as a real and territorial law in those
This appears by the edict of Charles the Bald, given at Pistes in the
year 864, which distinguishes the countries where causes were decided by
the Roman law from where it was otherwise.44
The edict of Pistes shows two things; one, that there were countries
where causes were decided by the Roman law, and others where they were
not; and the other, that those countries where the Roman law obtained were
precisely the same where it is still followed at this very day, as appears
by the said edict:45 thus the
distinction of the provinces of France under custom and those under
written law was already established at the time of the edict of Pistes.
I have observed that in the beginning of the monarchy all laws were
personal; and thus when the edict of Pistes distinguishes the countries of
the Roman law from those which were otherwise, the meaning is that, in
countries which were not of the Roman law, such a multitude of people had
chosen to live under some or other of the laws of the Barbarians that
there were scarcely any who would be subject to the Roman law; and that in
the countries of the Roman law there were few who would choose to live
under the laws of the Barbarians.
I am not ignorant that what is here advanced will be reckoned new; but
if the things which I assert be true, surely they are very ancient. After
all, what great matter is it, whether they come from me, from the
Valesiuses, or from the Bignons?
5. The same Subject continued. The law of
Gundebald subsisted a long time among the Burgundians, in conjunction with
the Roman law; it was still in use under Louis the Pious, as Agobard's
letter plainly evinces. In like manner, though the edict of Pistes calls
the country occupied by the Visigoths the country of the Roman law, yet
the law of the Visigoths was always in force there; as appears by the
synod of Troyes held under Louis the Stammerer, in the year 878, that is,
fourteen years after the edict of Pistes.
In process of time the Gothic and Burgundian laws fell into disuse even
in their own country, which was owing to those general causes that
everywhere suppressed the personal laws of the Barbarians.
6. How the Roman Law kept its Ground in the Demesne
of the Lombards. The facts all coincide with my principles. The law of the
Lombards was impartial, and the Romans were under no temptation to quit
their own for it. The motive which prevailed with the Romans under the
Franks to make choice of the Salic law did not take place in Italy; hence
the Roman law maintained itself there, together with that of the Lombards.
It even fell out that the latter gave way to the Roman institutes, and
ceased to be the law of the ruling nation; and though it continued to be
that of the principal nobility, yet the greatest part of the cities formed
themselves into republics, and the nobility mouldered away of themselves,
or were destroyed.46 The citizens
of the new republics had no inclination to adopt a law which established
the custom of judiciary combats, and whose institutions retained much of
the customs and usages of chivalry. As the clergy of those days, a clergy
even then so powerful in Italy, lived almost all under the Roman law, the
number of those who followed the institutions of the Lombards must have
Besides, the institutions of the Lombards had not that extent, that
majesty of the Roman law, by which Italy was reminded of her universal
dominion. The institutions of the Lombards and the Roman law could be then
of no other use than to furnish out statutes for those cities that were
erected into republics. Now which could better furnish them, the
institutions of the Lombards that determined on some particular cases, or
the Roman law which embraced them all?
7. How the Roman Law came to be lost in Spain. Things
happened otherwise in Spain. The law of the Visigoths prevailed, and the
Roman law was lost. Chaindasuinthus47
and Recessuinthus proscribed the Roman laws,48
and even forbade citing them in their courts of judicature. Recessuinthus
was likewise author of the law which took off the prohibition of marriage
between the Goths and Romans.49 It
is evident that these two laws had the same spirit; this king wanted to
remove the principal causes of separation which subsisted between the
Goths and the Romans. Now it was thought that nothing made a wider
separation than the prohibition of intermarriages, and the liberty of
living under different institutions.
But though the kings of the Visigoths had proscribed the Roman law, it
still subsisted in the demesnes they possessed in South Gaul.50
These countries being distant from the centre of the monarchy lived in a
state of great independence. We see from the history of Vamba, who
ascended the throne in 672, that the natives of the country had become the
prevailing party.51 Hence the Roman
law had greater authority and the Gothic less. The Spanish laws neither
suited their manners nor their actual situation; the people might likewise
be obstinately attached to the Roman law, because they had annexed to it
the idea of liberty. Besides, the laws of Chaindasuinthus and of
Recessuinthus contained most severe regulations against the Jews; but
these Jews had a vast deal of power in South Gaul. The author of the
history of King Vamba calls these provinces the brothel of the Jews. When
the Saracens invaded these provinces, it was by invitation; and who could
have invited them but the Jews or the Romans? The Goths were the first
that were oppressed, because they were the ruling nation. We see in
Procopius, that during their calamities they withdrew out of Narbonne Gaul
into Spain.52 Doubtless, under this
misfortune; they took refuge in those provinces of Spain which still held
out; and the number of those who in South Gaul lived under the law of the
Visigoths was thereby greatly diminished.
8. A false Capitulary. Did not that wretched
compiler Benedictus Levita attempt to transform this Visigoth
establishment, which prohibited the use of Roman law, into a capitulary53
ascribed since to Charlemagne? He made of this particular institution a
general one, as if he intended to exterminate the Roman law throughout the
9. In what manner the Codes of Barbarian Laws and
the Capitularies came to be lost. The Salic, the Ripuarian,
Burgundian, and Visigoth laws came, by degrees, to be disused among the
French in the following manner:
As fiefs became hereditary, and arrière-fiefs extended, many
usages were introduced, to which these laws were no longer applicable.
Their spirit indeed was continued, which was to regulate most disputes by
fines. But as the value of money was, doubtless, subject to change, the
fines were also changed; and we see several charters,54
where the lords fixed the fines, that were payable in their petty courts.
Thus the spirit of the law was followed, without adhering to the law
Besides, as France was divided into a number of petty lordships, which
acknowledged rather a feudal than a political dependence, it was very
difficult for only one law to be authorised. And, indeed, it would be
impossible to see it observed. The custom no longer prevailed of sending
extraordinary officers55 into the
provinces to inspect the administration of justice and political affairs;
it appears, even by the charters, that when new fiefs were established our
kings divested themselves of the right of sending those officers. Thus,
when almost everything had become a fief, these officers could not be
employed; there was no longer a common law because no one could enforce
the observance of it.
The Salic, Burgundian, and Visigoth laws were, therefore, extremely
neglected at the end of the second race; and at the beginning of the
third, they were scarcely ever mentioned.
Under the first and second race, the nation was often assembled; that
is, the lords and bishops; the commons were not yet thought of. In these
assemblies, attempts were made to regulate the clergy, a body which formed
itself, if I may so speak, under the conquerors, and established its
privileges. The laws made in these assemblies are what we call the
Capitularies. Hence four things ensued: the feudal laws were established
and a great part of the church revenues was administered by those laws;
the clergy effected a wider separation, and neglected those decrees of
reformation where they themselves were not the only reformers;56
a collection was made of the canons of councils and of the decretals of
popes;57 and these the clergy
received, as coming from a purer source. Ever since the erection of the
grand fiefs, our kings, as we have already observed, had no longer any
deputies in the provinces to enforce the observance of their laws; and
hence it is that, under the third race, we find no more mention made of
10. The same Subject continued. Several
capitularies were added to the law of the Lombards, as well as to the
Salic and Bavarian laws. The reason of this has been a matter of inquiry;
but it must be sought for in the thing itself. There were several sorts of
capitularies. Some had relation to political government, others to
economical, most of them to ecclesiastical polity, and some few to civil
government. Those of the last species were added to the civil law, that
is, to the personal laws of each nation; for which reason it is said in
the Capitularies that there is nothing stipulated therein contrary to the
Roman law.58 In effect, those
capitularies regarding economical, ecclesiastical, or political government
had no relation to that law; and those concerning civil government had
reference only to the laws of the barbarous people, which were explained,
amended, enlarged, or abridged. But the adding of these capitularies to
the personal laws occasioned, I imagine, the neglect of the very body of
the Capitularies themselves; in times of ignorance, the abridgment of a
work often causes the loss of the work itself.
11. Other Causes of the Disuse of the Codes of
Barbarian Laws, as well as of the Roman Law, and of the Capitularies.
When the German nations subdued the Roman empire, they learned the use of
writing; and, in imitation of the Romans, they wrote down their own
usages, and digested them into codes.59
The unhappy reigns which followed that of Charlemagne, the invasions of
the Normans and the civil wars, plunged the conquering nations again into
the darkness out of which they had emerged, so that reading and writing
were quite neglected. Hence it is, that in France and Germany the written
laws of the Barbarians, as well as the Roman law and the Capitularies fell
into oblivion. The use of writing was better preserved in Italy, where
reigned the Popes and the Greek Emperors, and where there were flourishing
cities, which enjoyed almost the only commerce in those days. To this
neighbourhood of Italy it was owing that the Roman law was preserved in
the provinces of Gaul, formerly subject to the Goths and Burgundians; and
so much the more, as this law was there a territorial institution, and a
kind of privilege. It is probable that the disuse of the Visigoth laws in
Spain proceeded from the want of writing, and by the loss of so many laws,
customs were everywhere established.
Personal laws fell to the ground. Compositions, and what they call
Freda,60 were regulated more by
custom than by the text of these laws. Thus, as in the establishment of
the monarchy, they had passed from German customs to written laws; some
ages after, they came back from written laws to unwritten customs.
12. Of local Customs. Revolution of the Laws of
barbarous Nations, as well as of the Roman Law. By several memorials
it appears, that there were local customs, as early as the first and
second race. We find mention made of the "custom of the place,"61
of the "ancient usage,"62
of "custom,"63 of "laws,"64
and of "customs." It has been the opinion of some authors that
what went by the name of customs were the laws of the barbarous nations,
and what had the appellation of law were the Roman institutes. This cannot
possibly be. King Pepin ordained65
that wherever there should happen to be no law, custom should be complied
with; but that it should never be preferred to the law. Now, to pretend
that the Roman law was preferred to the codes of the laws of the
Barbarians is subverting all memorials of antiquity, and especially those
codes of Barbarian laws, which constantly affirm the contrary.
So far were the laws of the barbarous nations from being those customs,
that it was these very laws, as personal institutions, which introduced
them. The Salic law, for instance, was a personal law; but generally, or
almost generally, in places inhabited by the Salian Franks, this Salic
law, how personal soever, became, in respect to those Salian Franks, a
territorial institution, and was personal only in regard to those Franks
who lived elsewhere. Now if several Burgundians, Alemans, or even Romans
should happen to have frequent disputes, in a place where the Salic law
was territorial, they must have been determined by the laws of those
people; and a great number of decisions agreeable to some of those laws
must have introduced new customs into the country. This explains the
constitution of Pepin. It was natural that those customs should affect
even the Franks who lived on the spot, in cases not decided by the Salic
law; but it was not natural that they should prevail over the Salic law
Thus there were in each place an established law and received customs
which served as a supplement to that law when they did not contradict it.
They might even happen to supply a law that was in no way territorial;
and to continue the same example, if a Burgundian was judged by the law of
his own nation, in a place where the Salic law was territorial, and the
case happened not to be explicitly mentioned in the very text of this law,
there is no manner of doubt but that judgment would have been passed upon
him according to the custom of the place.
In the reign of King Pepin, the customs then established had not the
same force as the laws; but it was not long before the laws gave way to
the customs. And as new regulations are generally remedies that imply a
present evil, it may well be imagined that as early as Pepin's time, they
began to prefer the customs to the established laws.
What has been said sufficiently explains the manner in which the Roman
law began so very early to become territorial, as may be seen in the edict
of Pistes; and how the Gothic law continued still in force, as appears by
the synod of Troyes above-mentioned.66
The Roman had become the general personal law, and the Gothic the
particular personal law; consequently the Roman law was territorial. But
how came it, some will ask, that the personal laws of the Barbarians fell
everywhere into disuse, while the Roman law was continued as a territorial
institution in the Visigoth and Burgundian provinces? I answer that even
the Roman law had very nearly the same fate as the other personal
institutions; otherwise we would still have the Theodosian code in those
provinces where the Roman law was territorial, whereas we have the
institutes of Justinian. Those provinces retained scarcely anything more
than the name of the country under the Roman, or written law, than the
natural affection which people have for their own institutions, especially
when they consider them as privileges, and a few regulations of the Roman
law which were not yet forgotten. This was, however, sufficient to produce
such an effect that, when Justinian's compilation appeared, it was
received in the provinces of the Gothic and Burgundian demesne as a
written law, whereas it was admitted only as written reason in the ancient
demesne of the Franks.
13. Difference between the Salic law, or that of
the Salian Franks, and that of the Ripuarian Franks and other barbarous
Nations. The Salic law did not allow of the custom of negative proofs;
that is, if a person brought a demand or charge against another, he was
obliged by the Salic law to prove it, and it was not sufficient for the
second to deny it, which is agreeable to the laws of almost all nations.
The law of the Ripuarian Franks had quite a different spirit;67
it was contented with negative proofs, and the person) against whom a
demand or accusation was brought, might clear himself, in most cases, by
swearing, in conjunction with a certain number of witnesses, that he had
not committed the crime laid to his charge. The number of witnesses who
were obliged to swear68 increased
in proportion to the importance of the affair; sometimes it amounted to
seventy-two.69 The laws of the
Alemans, Bavarians, Thuringians, Frisians, Saxons, Lombards, and
Burgundians were formed on the same plan as those of the Ripuarian.
I observed that the Salic law did not allow of negative proofs. There
was one case, however, in which they were allowed:70
but even then they were not admitted alone, and without the concurrence of
positive proofs. The plaintiff caused witnesses to be heard,71
in order to ground his action, the defendant produced also witnesses on
his side, and the judge was to come at the truth by comparing those
testimonies.72 This practice was
vastly different from that of the Ripuarian, and other barbarous laws,
where it was customary for the party accused to clear himself by swearing
he was not guilty, and by making his relatives also swear that he had told
the truth. These laws could be suitable only to a people remarkable for
their natural simplicity and candour; we shall see presently that the
legislators were obliged to take proper methods to prevent their being
14. Another Difference. The Salic law did not
admit of the trial by combat, though it had been received by the laws of
the Ripuarians73 and of almost all
the barbarous nations.74 To me it
seems that the law of combat was a natural consequence and a remedy of the
law which established negative proofs. When an action was brought, and it
appeared that the defendant was going to elude it by an oath, what other
remedy was left to a military man,75
who saw himself upon the point of being confounded, than to demand
satisfaction for the injury done to him: and even for the attempt of
perjury? The Salic law, which did not allow the custom of negative proofs,
neither admitted nor had any need of the trial by combat; but the laws of
the Ripuarians76 and of the other
barbarous nations77 who had adopted
the practice of negative proofs, were obliged to establish the trial by
Whoever will please to examine the two famous regulations of Gundebald,
King of Burgundy, concerning this subject will find they are derived from
the very nature of the thing.78 It
was necessary, according to the language of the Barbarian laws, to rescue
the oath out of the hands of a person who was going to abuse it.
Among the Lombards, the law of Rotharis admits of cases in which a man
who had made his defence by oath should not be suffered to undergo the
hardship of a duel. This custom spread itself further:79
we shall presently see the mischiefs that arose from it, and how they were
obliged to return to the ancient practice.
15. A Reflection. I do not pretend to deny
that in the changes made in the code of the Barbarian laws, in the
regulations added to that code, and in the body of the Capitularies, it is
possible to find some passages where the trial by combat is not a
consequence of the negative proof. Particular circumstances might, in the
course of many ages, give rise to particular laws. I speak only of the
general spirit of the laws of the Germans, of their nature and origin; I
speak of the ancient customs of those people that were either hinted at or
established by those laws; and this is the only matter in question.
16. Of the Ordeal or Trial by boiling Water,
established by the Salic Law. The Salic law80
allowed of the ordeal, or trial by boiling water; and as this trial was
excessively cruel, the law found an expedient to soften its rigour.81
It permitted the person, who had been summoned to make the trial with
boiling water, to ransom his hand, with the consent of the adverse party.
The accuser, for a particular sum determined by the law, might be
satisfied with the oath of a few witnesses, declaring that the accused had
not committed the crime. This was a particular case, in which the Salic
law admitted of the negative proof.
This trial was a thing privately agreed upon, which the law permitted
only, but did not ordain. The law gave a particular indemnity to the
accuser, who would allow the accused to make his defence by a negative
proof: the plaintiff was at liberty to be satisfied with the oath of the
defendant, as he was at liberty to forgive him the injury.
The law contrived a middle course,82
that before sentence passed, both 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
The Germans, who had never been subdued,83
enjoyed an excessive independence. Different families waged war with each
other84 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 Thuringians89 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 trial90 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 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 Rome93 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
Verona97 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 I99
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 him100
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
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
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 Beaumanoir106
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
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
Debonnaire107 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
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
Beaumanoir116 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 Frisians117 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
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 ordains128
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 law131
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
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 magistrate139
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
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
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
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
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
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 bondmen158 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 us160
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 observes161 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 Bavarians163
and Burgundians164 without any
I have already made mention of the constitution of Gundebald, against
which Agobard165 and St. Avitus166
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.
Défontaines174 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
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
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
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
says187 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
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.
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
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
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
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
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
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 security201
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 Metz202
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 sheriffs203
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
Beaumanoir says206 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
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
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
He declared223 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 amendment224
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 duel230
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.
Défontaines232 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 says233 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
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
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 villains242
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
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 ordained246 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 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
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 memory254 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 says256
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
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
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 Institutions277
and Beaumanoir278 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
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 above281
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 us283
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
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
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
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 indifferently290 and
causes that were tried indifferently, in either court.291
It seems292 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. For294
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
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
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
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
particular charters, but likewise general ones, in the manner above
explained; such are the institutions of Philip Augustus and those made by
St. Louis. In like manner the great vassals, in concurrence with the lords
who held under them, granted certain charters or establishments, according
to particular circumstances at the assizes of their duchies or counties;
such were the assize of Godfrey, Count of Brittany, on the division of the
nobles; the customs of Normandy, granted by Duke Ralph; the customs of
Champagne, given by King Theobald; the laws of Simon, Count of Montfort,
and others. This produced some written laws, and even more general ones
than those they had before.
2. At the beginning of the third race, almost all the common people were
bondmen; but there were several reasons which afterwards determined the
kings and lords to enfranchise them.
The lords by enfranchising their bondmen gave them property; it was
necessary therefore to give them civil laws, in order to regulate the
disposal of that property. But by enfranchising their bondmen, they
likewise deprived themselves of their property; there was a necessity,
therefore, of regulating the rights which they reserved to themselves, as
an equivalent for that property. Both these things were regulated by the
charters of enfranchisement; those charters formed a part of our customs,
and this part was reduced to writing.312
3. Under the reign of St. Louis, and of the succeeding princes, some
able practitioners, such as Défontaines, Beaumanoir, and others,
committed the customs of their bailiwicks to writing. Their design was
rather to give the course of judicial proceedings, than the usages of
their time in respect to the disposal of property. But the whole is there,
and though these particular authors have no authority but what they derive
from the truth and notoriety of the things they speak of, yet there is no
manner of doubt but that they contributed greatly to the restoration of
our ancient French jurisprudence. Such was in those days our common law.
We have come now to the grand epoch. Charles VII and his successors
caused the different local customs throughout the kingdom to be reduced to
writing, and prescribed set forms to be observed to their digesting. Now,
as this digesting was made through all the provinces, and as people came
from each lordship to declare in the general assembly of the province the
written or unwritten usages of each place, endeavours were made to render
the customs more general, as much as possible, without injuring the
interests of individuals, which were carefully preserved.313
Thus our customs were characterised in a threefold manner; they were
committed to writing, they were made more general, and they received the
stamp of the royal authority.
Many of these customs having been digested anew, several changes were
made either in suppressing whatever was incompatible with the actual
practice of the law, or in adding several things drawn from this practice.
Though the common law is considered among us as in some measure opposite
to the Roman, insomuch that these two laws divide the different
territories, it is, notwithstanding, true that several regulations of the
Roman law entered into our customs, especially when they made the new
digests, at a time not very distant from ours, when this law was the
principal study of those who were designed for civil employments, at a
time when it was not usual for people to boast of not knowing what it was
their duty to know, and of knowing what they ought not to know, at a time
when a quickness of understanding was made more subservient to learning
than pretending to a profession, and when a continual pursuit of
amusements was not even the characteristic of women.
I should have been more diffuse at the end of this book, and, entering
into the several details, should have traced all the insensible changes
which from the opening of appeals have formed the great corpus of our
French jurisprudence. But this would have been ingrafting one large work
upon another. I am like that antiquarian314
who set out from his own country, arrived in Egypt, cast an eye on. the
pyramids and returned home.
1. See the prologue to the Salic Law.
Mr. Leibnitz says, in his treatise of the origin of the Franks, that this
law was made before the reign of Clovis: but it could not be before the
Franks had quitted Germany, for at that time they did not understand the
2. See Gregory of Tours.
3. See the prologue to the Law of the
Bavarians, and that to the Salic Law.
5. Lex Angliorum Werinorum, hoc
6. They did not know how to write.
7. They were made by Euric, and
amended by Leovigildus. See Isidorus's chronicle. Chaindasuinthus and
Recessuinthus reformed them. Egigas ordered the code now extant to be
made, and commissioned bishops for that purpose; nevertheless the laws of
Chaindasuinthus and Recessuinthus were preserved, as appears by the sixth
council of Toledo.
8. See the prologue to the Law of the
9. We find only a few in Childebert's
10. See the prologue to the Code of
the Burgundians, and the code itself, especially tit. 12, § 5, and
tit. 38. See also Gregory of Tours, ii. 33, and the code of the Visigoths.
11. See lower down, chapter 3.
12. See cap. ii. §§ 8 and
9, and cap. iv. §§ 2 and 7.
13. De Bello Gall., vi.
14. Book i, formul. 8.
15. Chapter 31.
16. That of Clotarius in the year
560, in the edition of the Capitularies of Baluzius, i, art. 4, ib. in
17. Capitularies added to the Law of
the Lombards, i, tit. 25, 71, ii, tit. 41, 7, and tit. 56, 1, 2.
18. Ibid., ii, tit. 5.
19. Ibid., ii, tit. 7, 1.
20. Ibid., 2.
21. Ibid., ii, tit. 35, 2.
22. In the Law of the Lombards, ii,
23. Salic Law, tit. 44, § 1.
24. Ibid., tit. 44, §§
25. Ibid., tit. 41, § 4.
26. Ibid., § 6.
27. The principal Romans followed the
court, as may be seen by the lives of several bishops, who were there
educated; there were hardly any but Romans that knew how to write.
28. Salic Law, tit. 45.
29. Lidus whose condition was better
than that of a bondman. — Law of the Alemans, 95.
30. Tit. 35, §§ 3, 4.
31. The Abbé du Bos.
32. Witness the expedition of
Arbogastes, in Gregory of Tours, History, ii.
33. The Franks, the Visigoths, and
34. It was finished in 438.
35. The 20th year of the reign of
this prince, and published two years after by Anian, as appears from the
preface to that code.
36. The year 504 of the Spanish era,
the Chronicle of Isidorus.
37. Francum, aut Barbarum, aut
hominem qui Salica lege vivit. — Salic Law, tit. 45, § 1.
38. "According to the Roman law
under which the church lives," as is said in the law of the
Ripuarians, tit. 58, § 1. See also the numberless authorities on this
head pronounced by Du Cange, under the words Lex Romana.
39. See the Capitularies added to the
Salic law in Lindembrock, at the end of that law, and the different codes
of the laws of the Barbarians concerning the privileges of ecclesiastics
in this respect. See also the letter of Charlemagne to his son Pepin, King
of Italy, in the year 807, in the edition of Baluzius, i, 462, where it is
said, that an ecclesiastic should receive a triple compensation; and the
Collection of the Capitularies, v, art. 302, i. Edition of Baluzius.
40. See that law.
41. Of this I shall speak in another
place, xxx. 6-9.
42. Agobard, Opera.
43. See Gervais of Tilbury, in
Duchesne's Collection, iii, p. 366. And a chronicle of the year 759,
produced by Catel, Hist. of Languedoc. And the uncertain author of the
Life of Louis the Debonnaire, upon the demand made by the people of
Septimania, at the assembly in Carisiaco, in Duchesne's Collection, ii, p.
44. Art. 16. See also art. 20.
45. See arts. 12 and 16 of the edict
of Pistes in Cavilono, in Narbona, &c.
46. See what Machiavelli says of the
ruin of the ancient nobility of Florence.
47. He began to reign in the year
48. "We will no longer be
harassed either by foreign or by the Roman laws." — Law of the
Visigoths, ii, tit. 1, §§ 9, 10.
49. Law of the Visigoths, iii, tit.
50. See Book iv.
51. The revolt of these provinces was
a general defection, as appears by the sentence in the sequel of the
history. Paulus and his adherents were Romans; they were even favoured by
the bishops. Vamba durst not put to death the rebels whom he had quelled.
The author of the history calls Narbonne Gaul the nursery of treason.
52. De Bello Gothorum, i. 13.
53. Capitularies, vi, 343, year 1613,
edition of Baluzius, i, p. 981.
54. M. de la Thaumassière has
collected many of them. See, for instance, chapters 41, 46, and others.
55. Missi Dominici.
56. Let not the bishops, says Charles
the Bald, in the Capitulary of 844, art. 8, under pretence of the
authority of making canons, oppose this constitution, or neglect the
observance of it. It seems he already foresaw the fall thereof.
57. In the collection of canons a
vast number of the decretals of the popes were inserted; they were very
few in the ancient collection. Dionysius Exiguus put a great many into
his; but that of Isidorus Mercator was stuffed with genuine and spurious
decretals. The old collection obtained in France till Charlemagne. This
prince received from the hand of Pope Adrian I the collection of Dionysius
Exiguus, and caused it to be accepted. The collection of Isidorus Mercator
appeared in France about the reign of Charlemagne; people grew
passionately fond of it: to this succeeded what we now call the course of
58. See the edict of Pistes, art. 20.
59. This is expressly set down in
some preambles to these codes: we even find in the laws of the Saxons and
Frisians different regulations, according to the different districts. To
these usages were added some particular regulations suitable to the
exigency of circumstances; such were the severe laws against the Saxons.
60. Of this I shall speak elsewhere (xxx.
61. Preface to Marculfus, Formulæ.
62. Law of the Lombards, ii, tit. 58,
63. Ibid., tit. 41, § 6.
64. Life of St. Leger.
65. Law of the Lombards, ii, tit. 41,
66. See chapter 5.
67. This relates to what Tacitus
says. De Moribus Germanorum, 28, that the Germans had general and
68. Law of the Ripuarians, tit. 6, 7,
8, and others.
69. Ibid., tit. 11, 12, 17.
70. It was when an accusation was
brought against an Antrustio, that is, the king's vassal, who was supposed
to be possessed of a greater degree of liberty. See Pactus legis Salicæ,
72. According to the practice now
followed in England.
73. Tit. 32; tit. 57, § 2; tit.
59, § 4.
74. See the following note.
75. This spirit appears in the Law of
Ripuarians, tit. 59, § 4, and tit. 67, § 5, and in the
Capitulary of Louis the Debonnaire, added to the law of the Ripuarians in
the year 803, art. 22.
76. See that law.
77. The law of the Frisians,
Lombards, Bavarians, Saxons, Thuringians, and Burgundians.
78. In the Law of the Burgundians,
tit. 8, §§ 1 and 2, on criminal affairs; and tit. 45, which
extends also to civil affairs. See also the law of the Thuringians, tit.
1, § 31; tit. 7, § 6; and tit. 8; and the law of the Alemans,
tit. 89; the law of the Bavarians, tit. 8, cap. ii, § 6, and cap.
iii, § 1, and tit. 9, cap. iv, § 4; the law of the Frisians,
tit. 2, § 3, and tit. 14, § 4; the law of the Lombards, i, tit.
32, § 3, and tit. 35, § 1, and ii, tit. 35, § 2.
79. See cap. xviii, towards the end.
80. As also some other laws of the
81. Tit. 56.
83. This appears by what Tacitus
says, Omnibus idem habitus. — De Moribus Germanorum, 4.
84. Velleius Paterculus, ii. 118,
says that the Germans decided all their disputes by the sword.
85. See the codes of Barbarian laws,
and in respect to less ancient times, Beaumanoir, Ancient Custom of
86. Law of the Burgundians, cap. xlv.
87. See the works of Agobard.
88. See Beaumanoir, Ancient
Customs of Beauvoisis, 61. See also the Law of the Angli, cap. xiv,
where the trial by boiling water is only a subsidiary proof.
89. Tit. 14.
90. Cap. xxxi, § 5.
91. See this law, tit. 59, § 4,
and tit. 67, § 5.
92. Law of the Lombards, ii, tit. 55,
93. The year 962.
94. Law of the Lombards, ii, tit. 55,
95. It was held in the year 967, in
the presence of Pope John XIII and of the Emperor Otho I.
96. Otho II's uncle, son to
Rodolphus, and King of Transjurian Burgundy.
97. In the year 988.
98. Law of the Lombards, ii, tit. 55,
99. Ibid., § 33. In the
copy that Muratori made use of it is attributed to the Emperor Guido.
100. Ibid., § 23.
101. Cassiodorus, iii. 23, 24.
102. The anonymous author of the
life of Louis the Debonnaire.
103. See in the Law of the Lombards,
i, tit. 4, and tit. 9, § 23, and ii, tit. 35 §§ 4 and 5,
and tit. 55 §§ 1,2,3. The regulations of Rotharis; and in §
15, that of Luitprandus.
104. Ibid., ii, tit. 55,
105. The judicial oaths were made at
that time in the churches, and during the first race of our kings there
was a chapel set apart in the royal palace for the affairs that were to be
thus decided. See Marculfus, Formulæ i. 38. The Law of the
Ripuarians, tit. 59, § 4, tit. 65, § 5. The History of
Gregory of Tours; and the Capitulary of the year 803, added to the Salic
106. Chapter 39, P. 212.
107. We find his Constitutions
inserted in the Law of the Lombards, and at the end of the Salic Laws.
108. In a constitution inserted in
the Law of the Lombards, ii, tit. 55, § 31.
109. In the year 1200.
110. Ancient Custom of
111. Ibid., 61, pp. 309,
112. Charter of Louis the Fat in the
year 1145, in the Collection of Ordinances.
114. Charter of Louis the Young, in
1168, in the Collection of Ordinances.
115. See Beaumanoir, 63, p. 325.
116. See the Ancient Custom of
Beauvoisis, 28, p. 203.
117. Additio sapientium Wilemari,
118. Book i, tit. 6, § 3.
119. Book ii, tit. 5, § 23.
120. Added to the Salic law in 819.
121. See Beaumanoir, 64, p. 328.
122. Ibid., p. 329.
123. See Beaumanoir, 3, p. 25 and
124. See in regard to the arms of
the combatants, Beaumanoir, 61, p. 308, and 64, p. 328.
125. Ibid., 74, p. 328. See
also the Charters of St. Aubin of Anjou, quoted by Galland, p. 263.
126. Among the Romans, it was not
infamous to be beaten with a stick.
127. They had only the baston and
buckler. — Beaumanoir, 64, p. 328.
128. Book i, tit. 6, § 1.
129. Ibid.; § 2.
130. De Moribus Germanorum,
131. In the Pactus legis Salicæ,
132. We have both the ancient law
and that which was amended by this prince.
133. Book ii, tit. 55, § 11.
134. See the Greek romances of the
135. In the year 1283.
136. Beaumanoir, 6, pp. 40, 41.
137. Ibid., 64, p. 328.
138. Ibid., p. 330.
141. The great vassals had
142. Beaumanoir, 64, p. 330, says he
lost his jurisdiction: these words in the authors of those days have not a
general signification, but a signification limited to the affair in
question. Défontaines, 21, art. 29.
143. This custom, which we meet with
in the Capitularies, was still subsisting at the time of Beaumanoir. See
61, p. 315.
144. Beaumanoir, 64, p. 330.
145. Ibid., 61, p. 309.
146. Ibid., p. 308; 43, p.
147. Ibid., 61, p. 314. See
also Défontaines, 22, art. 24.
148. Beaumanoir, 63, p. 322.
151. Ibid., p. 323.
152. Ibid., 63, p. 324.
153. Ibid., p. 325.
155. Ibid., p. 323. See also
what I have said in book
156. Ibid., p. 327.
157. Défontaines, 22, art. 7.
158. Charter of Louis the Fat, in
the year 1118.
160. Chapter 61, p. 315.
161. Chapter 6, p. 40.
162. But if the battle was fought by
champions, the champion that was overcome had his hand cut off.
163. Tit. 16, § 2.
164. Tit. 45.
165. Letter to Louis the Debonnaire.
166. Life of St. Avitus.
167. Beaumanoir, 2, p. 22.
168. Ibid., 61, p. 312, and
67, p. 338.
169. Book ii. 15.
170. Beaumanoir, 61, pp. 310 and
311, and 67, p. 337.
171. Ibid., 61, p. 313.
172. Ibid., p. 314.
174. Chapter 22, art. 1, 10, and 11,
he says only that each of them was allowed a small fine.
175. Beaumanoir, 61, p. 314.
176. Ibid. Défontaines,
22, art. 9.
178. Beaumanoir, 61, p. 316, and Défontaines,
22, art. 21.
179. Beaumanoir, 61, p. 314.
180. Défontaines, 22, art. 7.
181. See Défontaines, 21,
arts. 11 and 12, and following, who distinguishes the cases in which the
appellant of false judgment loses his life, the point contested, or only
182. Beaumanoir, 62, p. 322. Défontaines,
22, art. 3.
183. The count was not obliged to
lend any. Beaumanoir, 67, p. 337.
184. Nobody can pass judgment in his
court. Ibid., pp. 336, 337.
185. Ibid., 62, p. 322.
186. Défontaines, 21, arts.
27 and 28.
187. Ibid., art. 28.
188. Chapter 21, art. 37.
189. This number at least was
necessary. Défontaines, 21, art. 36.
190. Beaumanoir, 67, p. 337.
192. Ibid., pp. 337, 338.
193. Défontaines, 22, art.
195. Third capitulary of the year
812, art. 3, edition of Baluzius, p. 497, and of Charles the Bald, added
to the law of the Lombards, ii, art. 3.
196. Third capitulary of the year
812, art. 2, edition of Baluzius, p. 497.
197. Capitulary of Louis the
Debonnaire, edition of Baluzius, p. 667.
198. See the Capitulary of Charles
the Bald, added to the law of the Lombards, ii, art. 3.
199. Third capitulary of the year
812, art. 8.
201. This appears by the formulas,
charters, and the capitularies.
202. In the year 757, edition of
Baluzius, p. 180, arts. 9 and 10, and the Synod apud Vernas, in the year
755, art. 29, edition of Baluzius, p. 175. These two capitularies were
made under King Pepin.
203. The officers under the count,
204. See the Law of the Lombards,
ii, tit. 52, art. 22.
205. There are instances of appeals
of default of justice as early as the time of Philip Augustus.
206. Chapter 61, p. 315.
208. Défontaines, 21, art.
209. Ibid., art. 32.
210. Beaumanoir, 61, p. 312.
211. Défontaines, 21, art.
212. This was the case in the famous
difference between the Lord of Nesle and Joan, Countess of Flanders,
during the reign of Louis VIII. He called upon her to have it tried within
forty days, and thereupon challenged her at the king's court with default
of justice. She answered that she would have it tried by her peers in
Flanders. The king's court determined that it should not be sent there and
that the countess should be cited.
213. Défontaines, 21, art.
214. Ibid., art. 9.
215. Beaumanoir, 61, p. 311.
216. Ibid., 61, p. 312. But
he that was neither tenant nor vassal to the lord paid only a fine of
sixty livres. — Ibid.
217. Ibid., p. 318.
218. Chapter 21, art. 35.
219. In the year 1260.
220. Book i. 2, 7, and ii. 10, 11.
221. As appears everywhere in the
Institutions, &c., and Beaumanoir, 61, p. 309.
222. Institutions, i. 6, ii.
223. Ibid., ii. 15.
224. Ibid., i. 78, ii. 15.
225. Ibid., i. 78.
226. Ibid., ii. 15.
227. Ibid., i. 78.
228. Ibid., ii. 15.
229. But if they wanted to appeal
without falsifying the judgment, the appeal was not admitted. — Ibid.
230. Ibid., i. 6, 67; ii.
15; and Beaumanoir, 11, p. 58.
231. Book i. 1-3.
232. Chapter 22, arts. 16, 17.
233. Chapter 61, p. 309.
235. See Beaumanoir, Défontaines,
and the Institutions, ii. 10, 11, 15, and others.
236. See the ordinances at the
beginning of the third race, in the collection of Lauriére,
especially those of Philip Augustus, on ecclesiastic jurisdiction; that of
Louis VIII concerning the Jews; and the charters related by Mr. Brussel;
particularly that of St. Louis, on the release and recovery of lands, and
the feodal majority of young women, ii, book iii, p. 35, and ibid.,
the ordinance of Philip Augustus, p. 7.
237. Chapter 63, p. 327: chapter 61,
238. See the Institutions of
St. Louis, ii. 15, and the Ordinance of Charles VII in the year 1453.
239. Chapter 21, arts. 21, 22.
240. Book i. 136.
241. Chapter 2, art. 8.
242. Ibid., 22, art. 7. This
article, and the 21st of the 22nd chapter of the same author, have been
hitherto very badly explained. Défontaines does not oppose the
judgment of the lord to that of the gentleman, because it was the same
thing; but he opposes the common villain to him who had the privilege of
243. Gentlemen may always be
appointed judges. Ibid., 21, art. 48.
244. Ibid., 22, art. 14.
245. Ibid., 21, art. 33.
246. In the year 1332.
247. See the situation of things in
Boutillier's time, who lived in the year 1402. — Somme Rurale,
i, pp. 19, 20.
248. See chapter 30.
249. Beaumanoir, 61, pp. 312 and
251. Défontaines, 21, art.
252. Of the Parliaments of
France, i. 16.
253. Chapter 61, p. 315.
254. As Beaumanoir says, chapter 39,
255. They proved by witnesses what
had been already done, said, or decreed in court.
256. Chapter 39, p. 218.
257. Défontaines in his
counsel, chapter 22, arts. 3, 8; and Beaumanoir, 33. Institutions,
258. Chapter 22, art. 8.
259. At present when they are so
inclined to appeal, says Boutillier — Somme Rurale, i, tit.
3, p. 16, Paris, 1621.
260. In the year 1324.
261. Advocatus de parte publicâ.
262. See this constitution and this
formula, in the second volume of the Historians of Italy, p. 175.
263. Collection of Muratori, p. 104.
on the 88th law of Charlemagne, i, tit. 26, § 78.
264. Another formula, ibid.,
265. Ibid., p. 104.
266. Ibid., p. 95.
267. Ibid., p. 88.
268. Ibid., p. 98.
269. Ibid., p. 132.
271. Ibid., p. 137.
272. Ibid., p. 147.
274. Ibid., p. 168.
275. Ibid., p. 134.
276. Ibid., p. 107.
277. Book i, 1; ii, 11, 13.
278. Chapters 1,61.
279. See these laws in the Lives
of the Saints, of the month of June, iii, p. 26.
280. Preface to the Institutions.
281. Chapter 29.
282. See above, chapter
283. Chapter 61, p. 309.
284. As he says himself, in his
285. Nothing so vague as the title
and prologue. At first they are the customs of Paris, Orleans, and the
court of Barony; then they are the customs of all the lay courts of the
kingdom, and of the provostships of France; at length, they are the
customs of the whole kingdom, Anjou, and the court of Barony.
286. Institutions, ii. 15,
287. See Du Tillet on the court of
peers. See also Laroche, Flavin, Budeus and Paulus Æmilius, i. 3.
288. Other causes were decided by
the ordinary tribunals.
289. See the President Henault's
excellent abridgment of the history of France in the year 1313.
290. Beaumanoir, 11, p. 58.
291. Widows, croises, &c. —
292. See the whole eleventh chapter
293. The spiritual tribunals had
even laid hold of these, under the pretext of the oath, as may be seen by
the famous Concordat between Philip Augustus, the clergy, and the barons,
which is to be found in the ordinances of Lauriére.
294. Beaumanoir, 11, p. 60.
295. See Boutillier, Somme
Rurale, tit. 9, what persons are incapable of suing in a temporal
court; and Beaumanoir, 11, p. 56, and the regulations of Philip Augustus
upon this subject; as also the regulation between Philip Augustus, the
clergy, and the barons.
296. In the word "testamentary
297. March 19, 1409.
298. In Italy they followed
Justinian's code; hence Pope John VIII, in his constitution published
after the Synod of Troyes, makes mention of this code, not because it was
known in France, but because he knew it himself, and his constitution was
299. This emperor's code was
published towards the year 530.
300. Decretals, v. tit. de
privilegiis, cap. 28, super specula.
301. By a charter in the year 1312,
in favour of the university of Orleans, quoted by Du Tillet.
302. Ancient Custom of
Beauvoisis, 1, "Of the Office of Bailiffs."
303. Among the common people the
burghers were tried by burghers, as the feudatory tenants were tried by
one another. See La Thaumassière, 19.
304. Thus all requests began with
these words: "My lord judge, it is customary that in your court,"
&c, as appears from the formula quoted by Boutillier,Somme Rurale,
i, tit. xxi.
305. The change was insensible: we
meet with trials by peers, even in Boutillier's time, who lived in the
year 1402, which is the date of his will: Yet nothing but feodal matters
were tried any longer by the peers. Ibid., i, tit. i, p. 16.
306. As appears by the formula of
the letters which their lord used to give them, quoted by Boutillier, Somme
Rurale, I, tit. xiv, which is proved likewise by Beaumanoir, Ancient
Custom of Beauvoisis, 1, of the bailiffs: they only directed the
proceedings. "The bailiff is obliged in the presence of the peers to
take down the words of those who plead, and to ask the parties whether
they are willing to have judgment given according to the reasons alleged;
and if they say, yes, my lord; the bailiff ought to oblige the peers to
give judgment." See also the Institutions of St. Louis, i.
105, ii. 15.
307. Beaumanoir, 67, p. 336, and 61,
pp. 315 and 316. The Institutions, ii. 15.
308. It was published in the year
309. See in what manner age and
parentage were proved. — Institutions, i. 71, 72.
310. Prologue to the Ancient
Custom of Beauvoisis.
311. Chapter 12.
312. See the Collection of
Ordinances, by Laurière.
313. This was observed at the
digesting of the customs of Berry and of Paris. See La Thaumassière,
314. In the Spectator.
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