Montesquieu
 

XXVIII.25 On the limits placed on the practice of judiciary combat

When the gages of bat­tle had been recei­ved over a civil mat­ter of lit­tle impor­tance, the lord obli­ged the par­ties to take them back.

If a fact was noto­rious,1 for exem­ple if a man had been mur­de­red in the mar­ket place, nei­ther proof by wit­nes­ses nor proof by com­bat was pres­cri­bed : the judge pro­noun­ced based on com­mon know­ledge.

When in the lord’s court the same judg­ment had often been ren­de­red, and thus the pro­ce­dure was known,2 the lord would refuse com­bat to the par­ties so the cus­toms would not be chan­ged by dif­fe­rent out­co­mes of the com­bats.

One could demand com­bat only for one­self3 or for someone of one’s lineage, or for one’s liege lord.

When an accu­sed per­son had been absol­ved,4 ano­ther rela­tive could not demand com­bat ; other­wise dis­pu­tes would have no end.

If a man whose death the family wished to avenge should chance to reap­pear, the whole com­bat was drop­ped ; the same was true if, through a nota­rial absence, it could not be car­ried out.5

If a man who had been killed had, before his death, exculpa­ted the per­son who was accu­sed, and had named ano­ther, they did not pro­ceed to com­bat6 ; but if he had named no one, his decla­ra­tion was regar­ded sim­ply as a par­don for his death ; the pro­se­cu­tion was conti­nued, and even among gent­le­men they could wage war.

When there was a war, and one of the family gave or recei­ved the gages of bat­tle, the right of war cea­sed ; it was assu­med that the par­ties meant to fol­low the ordi­nary course of jus­tice ; and were there one who conti­nued the war, he would have been sen­ten­ced to repair all the los­ses.

Thus the prac­tice of judi­ciary com­bat had the advan­tage that it could change a gene­ral quar­rel into an indi­vi­dual quar­rel, res­tore their strength to the law courts, and res­tore to the civil state those who were now gover­ned only by the law of nations.

As there are an infi­nite num­ber of wise things which are pur­sued in a very foo­lish man­ner, there are also fol­lies which are conduc­ted in a very wise man­ner.

When a man chal­len­ged for a crime sho­wed visi­bly that it was the chal­len­ger him­self who had com­mit­ted it, there were no more gages of bat­tle7 : for there is no guilty party who would not have pre­fer­red a doubt­ful com­bat to cer­tain punish­ment.

There was no com­bat in mat­ters that were deci­ded by arbi­ters or by the eccle­sias­ti­cal courts8 ; nor was there any in dis­pu­tes over women’s dowries.

“One can­not fight with a woman,” says Beaumanoir. If a woman chal­len­ged someone without naming her cham­pion, gages of bat­tle were not accep­ted. Even then the woman had to be autho­ri­zed by her baron,9 that is, her hus­band, to chal­lenge ; but without this autho­rity she could be chal­len­ged.

If the chal­len­ger10 or the chal­len­ged was under fif­teen years of age, there was no com­bat. It could, howe­ver, be pres­cri­bed in affairs concer­ning pupils, when the tutor or trus­tee was willing to run the risks of this pro­ce­dure.

It seems to me that these are the cases where a serf was allo­wed to fight : he fought against ano­ther serf ; he fought against a free per­son, and even against gent­le­man, if he was chal­len­ged ; but if he chal­len­ged him, the other could refuse the com­bat,11 and even the serf’s lord had the right to with­draw him from the court. The serf could, by a char­ter from the lord,12 or by cus­tom, fight against all free per­sons ; and the Church13 clai­med this same right for serfs as a mark14 of res­pect for itself.

Ibid., p. 308. Ibid., ch. xliii, p. 239.

Beaumanoir, ch. lxi, p. 314. See also Défontaines, ch. xxii, art. 24.

Beaumanoir, ch. lxiii, p. 322.

Ibid.

Ibid.

Ibid., p. 323.

Beaumanoir, ch. lxiii, p. 324.

Beaumanoir, ch. lxiii, p. 325.

Ibid., p. 325.

Ibid., p. 323. See also what I have said in book XVIII.

Beaumanoir, ch. lxiii, p. 322.

Défontaines, ch. xxii, art. 7.

Habeant bellandi and testificandi licentiam, Charter of Louis the Fat, year 1118.

Ibidem.