Montesquieu
 

XXVIII.27 On judicial combat between a party and one of the lord’s peers. Appeal of false verdict

The nature of the deci­sion by com­bat being to end the mat­ter fore­ver, and being incom­pa­ti­ble1 with a new trial and new pro­se­cu­tions, the appeal, such as it is esta­bli­shed by Roman laws and Canon laws, which is to say to a super­ior court, for review of the judg­ment of ano­ther court, was unk­nown in France.

This form of pro­cee­ding was foreign to a war­like nation solely gover­ned by the point of honor, and still fol­lo­wing the same spi­rit, it took against jud­ges the paths it could have used against the par­ties.2

The appeal, in this nation, was a chal­lenge to armed com­bat, which had to end in blood, and not the invi­ta­tion to a quar­rel by pen that we came to know only later.

Thus does St. Louis say in his Establishments that the chal­lenge entails rebel­lion and ini­quity.3 Thus does Beaumanoir tell us that if a man wished to com­plain of some attack com­mit­ted against him by his lord, he had to declare to him that he was aban­do­ning his fief, after which he chal­len­ged him before his over­lord and prof­fe­red the gages of bat­tle.4 Likewise, the lord renoun­ced his homage if he chal­len­ged his man before the count.

To chal­lenge his lord for false judg­ment was to say that his judg­ment had been fal­sely and mali­ciously ren­de­red ; now to advance such words against one’s lord was to com­mit a sort of crime of rebel­lion.

Thus, ins­tead of chal­len­ging for false judg­ment the lord who set up and ran the tri­bu­nal, one chal­len­ged the peers who made up the tri­bu­nal itself ; one avoi­ded the­reby the crime of rebel­lion, offen­ding only one’s peers, to whom one could always ans­wer for the affront.

To belie the judg­ment of peers was greatly to expose one­self.5 If you wai­ted until the ver­dict was made and announ­ced, you were obli­ged to fight them all when they offe­red to make good their ver­dict.6 If you chal­len­ged before all the jud­ges had ente­red their opi­nion, you had to fight all those who had agreed on the same opi­nion.7 To avoid this dan­ger, you entrea­ted the lord to order each peer to state his opi­nion out loud ; and when the first had pro­noun­ced, and the second was about to do like­wise, you told him that he was a liar, wicked and libel­lous, and then it was only against him that you had to fight.8

Défontaines9 thought that before belying10 you should let three jud­ges pro­nounce, and he does not say that you had to fight all three of them, and even less that there were cases where you would have to fight all those who had decla­red for their opi­nion. These dif­fe­ren­ces are owing to the fact that in those times there were vir­tually no prac­ti­ces that were pre­ci­sely the same. Beaumanoir was accoun­ting for what took place in the county of Clermont, Défontaines for what was prac­ti­ced in Vermandois.

When one of the peers or a vas­sal had decla­red that he would main­tain the ver­dict, the judge had gages of bat­tle prof­fe­red, and besi­des requi­red secu­rity from the chal­len­ger that he would main­tain his chal­lenge.11 But the peer who was chal­len­ged gave no secu­rity because he was the lord’s man, and had to defend the chal­lenge or pay the lord a fine of sixty livres.

If the man who was chal­len­ging did not prove that the ver­dict was wrong, he paid the lord a fine of sixty livres,12 the same fine to the peer he had chal­len­ged,13 and as much again to each of those who had openly appro­ved the ver­dict.

When a man stron­gly sus­pec­ted of a crime that deser­ved death had been taken and condem­ned, he could not chal­lenge for false judg­ment,14 for he would always have chal­len­ged, either to pro­long his life, or to make peace.

If someone said that the ver­dict was false and wrong, and did not offer to make it so, in other words to fight, he was sen­ten­ced to a fine of ten sous if he was a gent­le­man, and five if he was a serf, for the mali­cious words he had utte­red.15

The jud­ges or peers who had been defea­ted were to lose nei­ther life nor mem­bers16 ; but he who chal­len­ged them was puni­shed with death when the mat­ter was capi­tal.17

This man­ner of chal­len­ging vas­sals for false ver­dict was to avoid chal­len­ging the lord him­self. But if the lord had no peers, or not enough,18 he could at his expense bor­row19 peers from his over­lord ; but these peers were not obli­ged to judge if they did not wish to ; they could declare that they had come only to offer their coun­sel, and in this par­ti­cu­lar case, the lord jud­ging and pro­noun­cing the ver­dict him­self, if he was chal­len­ged for false judg­ment it was up to him to ans­wer the chal­lenge.20

If the lord was so poor that he was not in a posi­tion to take peers from his over­lord, or if he neglec­ted to ask him for some, or the lat­ter refu­sed to give him any, the lord not being able to judge alone, and no one being obli­ged to plead before a tri­bu­nal which can­not ren­der a judg­ment, the mat­ter was taken to the over­lord’s court.21

I think this was one of the main cau­ses of the sepa­ra­tion of jus­tice from the fief, whence was for­med the rule of French juris­consults : The fief is one thing, and jus­tice is ano­ther. For there being an infi­nite num­ber of vas­sals who had no men under them, they were not in a posi­tion to hold their court ; all conten­tions were taken to the court of their over­lord ; they lost the right to dis­pense jus­tice, because they had nei­ther the power nor the will to claim it.

All the jud­ges who had par­ti­ci­pa­ted in the judg­ment had to be pre­sent when it was pro­noun­ced, so they could in turn say aye to the per­son who, hoping to belie, asked them whe­ther they fol­lo­wed22 ; for, says Défontaines, “it is a mat­ter of cour­tesy and loyalty, and there is no fleeing nor defer­ring.”23 I think it is from this man­ner of thin­king that we got the prac­tice which is still fol­lo­wed today in England, that all the jurors be in agree­ment in order to condemn to death.

They the­re­fore had to declare for the majo­rity opi­nion ; and if it was divi­ded, the ver­dict was pro­noun­ced, in case of crime, for the accu­sed ; in case of debts, for the deb­tor ; in case of inhe­ri­tan­ces, for the defen­dant.

A peer, says Défontaines,24 could not say that he would not judge if there were only four of them,25 or if they were not all pre­sent, or if the wisest of them were not ; it is as if he had said, amidst the strug­gle, that he would not come to his lord’s assis­tance because he had only part of his men with him. But it was for the lord to do honor to his court, and take his most valiant and wisest men. I cite this to show the vas­sals’ duty to fight and judge ; and this duty was even such that to judge was to fight.

A lord who was plea­ding in his court against his vas­sal, and who lost there, could chal­lenge one of his men for false judg­ment.26 But given the res­pect which the vas­sal owed to his lord for fealty pled­ged, and the bene­vo­lence which the lord owed to his vas­sal for fealty recei­ved, a dis­tinc­tion was made : either the lord would say in gene­ral that the ver­dict was false and wrong,27 or he impu­ted per­so­nal mal­prac­tice to his man.28 In the first case he was offen­ding his own court, and in a way him­self, and there could be no gages of bat­tle ; there were some in the second case, because he was atta­cking the honor of his vas­sal ; and whi­che­ver of the two was defea­ted lost his life and pro­perty to main­tain the public peace.

This dis­tinc­tion, neces­sary in this par­ti­cu­lar case, was exten­ded. Beaumanoir says that when the man who chal­len­ged for false judg­ment atta­cked one of the men with per­so­nal impu­ta­tions, bat­tle would ensue ; but if he was only atta­cking the ver­dict, whi­che­ver of the peers was chal­len­ged was free to have the mat­ter jud­ged by bat­tle or by law.29 But as the spi­rit that rei­gned in the time of Beaumanoir was to res­train the prac­tice of judi­cial com­bat, and as the free­dom accor­ded the chal­len­ged peer to defend the ver­dict by com­bat or not is equally contrary to the notions of honor esta­bli­shed in those times and to his obli­ga­tions towards his lord to defend his court, I think this dis­tinc­tion of Beaumanoir’s was a new juris­pru­dence among the French.

I am not saying that all the chal­len­ges of false judg­ment were deci­ded by bat­tle ; this appeal was like all the others. The rea­der may remem­ber the excep­tions I cited in chap­ter xxv. Here, it was up to the suze­rain tri­bu­nal to see whe­ther gages of bat­tle should be drop­ped or not.

One could not belie ver­dicts han­ded down in the king’s court, for there being no one who was equal to the king, there was no one who could chal­lenge him ; and the king having no super­ior, there was no one who could appeal from his court.

This fun­da­men­tal law, neces­sary as poli­ti­cal law, fur­ther dimi­ni­shed as civil law the abu­ses of the judi­cial prac­tice of those times. When a lord fea­red lest his court be belied, or saw someone coming forth to belie it, if it was in the cause of jus­tice that it not be belied, he could request men from the king’s court, whose ver­dict could not be belied30 ; and king Philip, says Défontaines, sent his entire coun­cil to judge a case in the court of the abbé de Corbie.31

But if the lord could not obtain jud­ges from the king, he could put his court within that of the king, if he held it directly from him ; and if there were inter­me­diate lords, he would contact his over­lord, going from lord to lord as far as the king.

Thus, although in those days they did not have the prac­tice nor even the notion of today’s appeals, they had recourse to the king, who was always the source from which all rivers flo­wed and the sea to which they retur­ned.

“Car en la Cour où l’on va par la raison de l’appel pour les gages maintenir, se bataille est faite, la querelle est venue à fin, si que il n’y a métier de plus d’apiaux.” (Beaumanoir, ch. ii, p. 22).

Ibid., ch. lxi, p. 312, and ch. lxvii, p. 338.

Book II, ch. xv.

Beaumanoir, ch. lxi, p. 310–311, and ch. lxvii, p. 337.

Beaumanoir, ch. lxi, p. 313.

Ibid., p. 314.

Who had agreed on the judgment.

Beaumanoir, ch. lxi, p. 314.

Ch. xxii, art. 1, 10, and 11, he says only that each was paid a fine.

Appeal on false judgment.

Beaumanoir, ch. lxi, p. 314.

Beaumanoir, ibid., Défontaines, ch. xxii, art. 9.

Défontaines, ibid.

Beaumanoir, ch. lxi, p. 316, and Défontaines, ch. xxii, art. 21.

Beaumanoir, ch. lxi, p. 314.

Défontaines, ch. xxii, art. 7.

See Défontaines, chap. xxi, art. 11–12, and following, who distinguishes the cases where the impeacher lost his life, the thing contested, or only the preliminary judgment.

Beaumanoir, ch. lxii, p. 322, Défontaines, ch. xxii, art. 3.

The count was not obliged to lend any (Beaumanoir, ch. lxvii, p. 337).

None may dispense judgment in his court, says Beaumanoir, ch. lxvii, p. 336–337.

Ibid., ch. lxii, p. 322.

Défontaines, ch. xxi, art. 27–28.

Ibid., art. 28.

Ch. xxi, art. 37.

At least this number were required (Défontaines, chap. xxi, art. 36).

See Beaumanoir, ch. lxvi, p. 337.

Which judgment is false and wrong (ibid., ch. lxvii, p. 337).

“Vous avez fait ce jugement faux and mauvais comme mauvais que vous êtes, ou par lovier ou par pramesse” (Beaumanoir, ch. lxvii., p. 337).

Ibid., p. 337–338.

Défontaines, ch. xxii, art. 14.

Ibid.