Montesquieu
 

XXVIII.19 Another reason for the disuse of the Salic and Roman laws and the capitularies

I have already sta­ted the rea­sons that had cost the Salic and Roman laws and the capi­tu­la­ries their autho­rity ; I shall add that the great exten­sion of proof by com­bat was the prin­ci­pal cause.

The Salic laws, which did not allow this prac­tice, became more or less use­less, and disap­pea­red ; the Roman laws, which did not allow it either, also peri­shed. The sin­gle concern at this point was to cons­ti­tute the law of judi­cial com­bat, and cons­truct a solid juris­pru­dence on the cases which came up in connec­tion with them. The pro­vi­sions of the capi­tu­la­ries became no less use­less. Thus, while so many laws lost their autho­rity, we can­not point to the moment when they lost it ; they were for­got­ten without our being able to iden­tify others that took their place.

Such a nation did not need writ­ten laws, and its writ­ten laws could quite easily fall into disuse.

If there was some dis­cus­sion bet­ween two par­ties, com­bat was orde­red. For that, no great com­pe­tence was requi­red.

All civil and cri­mi­nal acts come down to facts. It is over these facts that they duel­led ; and it was not only the sub­stance of the mat­ter that was jud­ged by com­bat, but also the inci­den­tal and pre­li­mi­nary judg­ments, as Beaumanoir says, giving exam­ples.1

I find that at the begin­ning of the third dynasty juris­pru­dence was all pro­ce­du­res ; eve­ry­thing was deter­mi­ned by the point of honor. If one had not obeyed the judge, he pur­sued his offense. In Bourges,2 if the pro­vost had sum­mo­ned someone, and he had not come : “I sent for thee,” he would say, “thou didst not deign to come, ans­wer to me for this contempt” : and they fought. Louis the Fat refor­med this cus­tom.3

Judicial com­bat was prac­ti­ced in Orleans in all claims of debt.4 Louis the Young decla­red that this cus­tom would apply only when the claim was for more than five sous. This ordi­nance was a local law, for in the time of St. Louis it was suf­fi­cient that the value be over twelve deniers.5 Beaumanoir had heard a lord of the law say that a bad cus­tom once exis­ted in France that one could hire a cham­pion for a cer­tain time to fight in his cau­ses.6 The prac­tice of judi­cial com­bat must at that time have been pro­di­giously exten­ded.

Ch. lxi, p. 309–310.

Charter of Louis the Fat of the year 1145, in the compendium of ordinances.

[Prévôt : “He used to be the lord who administered justice himself, and did the same in the prévôtés as bailiffs in bailiwicks, senechals in sénéchaussées” (Furetière).]

Charter of Louis the Younger of the year 1168, in the compendium of ordinances.

See Beaumanoir, ch. lxiii, p. 325.

See custom of Beauvaisis, ch. xxviii, p. 203.