Montesquieu

St. Louis abo­li­shed judi­cial com­bat in the tri­bu­nals of his domains, as appears from the ordi­nance1 he made on that sub­jec, and from the Establishments.2

But he did not sup­press it in the courts of his barons,3 except in the case of appeal for false judg­ment.

One could not impeach the court of one’s lord without deman­ding judi­cial com­bat against the jud­ges who had pro­noun­ced the ver­dict.4 But St. Louis intro­du­ced the prac­tice of impea­ching without a fight, a change that made a sort of revo­lu­tion.5

He decla­red that one could not impeach the judg­ments dis­pen­sed in the sei­gnio­ries of his domains because it was a crime of rebel­lion.6 Indeed, if it was a sort of crime of rebel­lion against the lord, it was a for­tiori one against the king. But it was his desire that one be able to ask for the amend­ment of judg­ments dis­pen­sed in his courts,7 not because they were wron­gly or mali­ciously dis­pen­sed, but because they did some pre­ju­dice.8 What he wan­ted, on the contrary, was that one be requi­red to impeach the judg­ments of the barons’ courts in order to lodge a com­plaint about them.9

One could not, accor­ding to the Establishments, impeach the courts of the king’s domains, as we have just said. One had to peti­tion the same tri­bu­nal for amend­ment ; and should the bai­liff did not wish to make the requi­red amend­ment, the king per­mit­ted the making of an appeal to his court10 ; or rather, by inter­pre­ting the Establishements by them­sel­ves, the pre­sen­ting to him of a peti­tion or sup­pli­ca­tion.11

With res­pect to the courts of lords, St. Louis, by allo­wing their impeach­ment, wan­ted the mat­ter to be taken before the tri­bu­nal of the king or the over­lord,12 not to be deci­ded there by com­bat,13 but by wit­nes­ses, fol­lo­wing a form of pro­cee­ding for which he set rules.14

Thus, whe­ther one could impeach as in the courts of the lords, or could not, as in the courts of his domains, he esta­bli­shed that one could chal­lenge without run­ning the risk of a com­bat.

Défontaines rela­tes the two first exam­ples he had seen where it this had been done without judi­cial com­bat : one in a mat­ter jud­ged at the court of Saint Quentin, which was in the king’s domain, and the other in the court of Ponthieu, where the count who was pre­sent oppo­sed the for­mer juris­pru­dence ; but these two affairs were jud­ged by law.15

The rea­der will ask, per­haps, why St. Louis pres­cri­bed for his barons’ courts a man­ner of pro­ce­ding dif­fe­rent from the one he esta­bli­shed in the tri­bu­nals of his domains. Here is the rea­son. St. Louis in making rules for for the courts of his domains was not inhi­bi­ted in his views ; but he had mea­su­res to keep with the lords, who enjoyed the ancient pre­ro­ga­tive of never having affairs taken from their courts unless one expo­sed one­self to the dan­gers of impea­ching them. St. Louis main­tai­ned this prac­tice of impeach­ment, but he wan­ted it to be pos­si­ble to impeach without com­bat ; in other words, so that the change would be less noti­cea­ble, he sup­pres­sed the thing and let the terms sub­sist.

It was not uni­ver­sally accep­ted in the courts of the lords. Beaumanoir says that in his time there were two man­ners of jud­ging, one fol­lo­wing the king’s Establishment, and the other fol­lo­wing the tra­di­tio­nal prac­tice ; that the lords were entit­led to fol­low either of these prac­ti­ces ; but that, when in a given case one had been cho­sen, one could no lon­ger revert to the other.16 He adds that the count of Clermont was fol­lo­wing the new prac­tice, whe­reas his vas­sals held to the for­mer one ; but that he could at will res­tore the for­mer one, other­wise he would have less autho­rity than his vas­sals.17

You must know that France at that time was divi­ded into lands of the king’s domain and in what was cal­led lands of the barons, or baro­nies18 ; and to use the terms of St. Louis’s Establishments, in lands of king’s obe­dience and lands out­side the king’s obe­dience. When the kings made ordi­nan­ces for the lands of their domains, they were using none but their own autho­rity ; but when they made some that also inclu­ded the lands of their barons, this was done in concert with them, or sea­led or endor­sed by them19 ; other­wise the barons accep­ted them or not, depen­ding on whe­ther they see­med to them to suit the wel­fare of their sei­gnio­ries. The under-vas­sals were on the same terms with the vas­sals. Now the Establishments were not issued with the consent of the lords, although they pro­noun­ced on things that were of great impor­tance to them ; but they were accep­ted only by those who thought it advan­ta­geous to them to accept them. Robert, son of St. Louis, allo­wed them in his county of Clermont, and his vas­sals did not think it appro­priate for them to enforce them in their fiefs.

In 1260.

Book I, ch. ii and vii, and book II, ch. x and xi.

As appears everywhere in the Establishments, and Beaumanoir, ch. lxi, p. 309.

In other words, appeal a wrong judgment.

Establishments, book I, ch. vi, and book II, ch. xv.

Ibid., book II, ch. xv.

Establishments, book I, ch. lxxviii, and book II, ch. xv.

Ibid., book I, ch. lxxviii.

Ibid., book II, ch. xv.

Ibid., ch. lxxviii.

Ibid., book II, ch. xv.

But if one did not impeach, and one wished to appeal, it was not received (Establishments, book II, ch. xv : “Li Sire en auroit le recort de sa Cour Droit faisant”).

Ibid., book I, ch. vi and xlvii, and book II, ch. xv ; and Beaumanoir, ch. xi, p. 58.

Establishments, book I, ch. i, ii, and iii.

Ch. xxii, art. 16–17.

Ch. lxi, p. 309.

Ibid.

See Beaumanoir, Défontaines, and Establishments, book II, ch. x, xi, xv, and others.

See the ordinances of the beginning of the third dynasty in the Laurière collection, especially those of Philip Augustus, on the ecclesiastic jurisdiction, and that of Louis VIII on the Jews ; and the charters recorded by Mr. [Nicolas] Brussel, notably that of St. Louis on the lease and redemption of lands and the feudal majority of daughters, vol. II, book III, p. 35, and ibid., the ordinance of Philip Augustus, p. 7.