Montesquieu

Duels had intro­du­ced a form of public pro­ce­dure ; the attack and the defense were equally known : “The wit­nes­ses,” says Beaumanoir, “must state their tes­ti­mony openly.”1

Boutillier’s com­men­ta­tor says he lear­ned from for­mer prac­ti­tio­ners and from some old hand­writ­ten trials that for­merly cri­mi­nal trials in France were held publi­cly, and in a form hardly dif­fe­rent from the public judg­ments of the Romans.2 This was tied to the igno­rance of wri­ting, com­mon in those times. The prac­tice of wri­ting cap­tu­res thoughts, and can esta­blish secrecy ; but when it is not prac­ti­ced, only publi­city of the pro­ce­dure can fix those same thoughts.

And as there could be uncer­tainty about what had been jud­ged by men or plea­ded before men,3 the memory of it could be recal­led whe­ne­ver court was held by what was cal­led pro­ce­dure by attes­ta­tion4 ; and in this case chal­len­ging wit­nes­ses to com­bat was not allo­wed, for cases would never have seen their end.

Subsequently, a new form of hid­den pro­ce­dure was intro­du­ced. Everything was public ; eve­ry­thing became hid­den : inter­ro­ga­tions, inqui­ries, veri­fi­ca­tion, confron­ta­tion, the conclu­sions of the public pro­se­cu­tor5 : and that is the prac­tice today. The first form of pro­cee­ding sui­ted the govern­ment then, as the new one was appro­priate to the govern­ment esta­bli­shed since.

Boutillier’s com­men­ta­tor dates this change to the ordi­nance of 1539. I think it occur­red lit­tle by lit­tle, and that it pas­sed from one sei­gniory to the next, as lords were giving up the old prac­tice of jud­ging, and the one taken from the Establishments of St. Louis was pro­gres­si­vely impro­ved. Indeed Beaumanoir says that it was only in the cases where gages of bat­tle could be prof­fe­red that wit­nes­ses were heard publi­cly ; in the others, they were heard pri­va­tely, and their depo­si­tions were writ­ten down.6 Thus pro­ce­du­res became pri­vate when there were no more gau­ges of bat­tle.

Ch. lxi, p. 315.

[Allusion to new edition of Boutillier in 1603 by Louis le Caron.]

As says Beaumanoir, ch. xxxix, p. 209.

One proved by witnesses what had already taken place, said, or ordered in justice.

[La partie publique “is the general prosecutor, or his substitutes, who have the right to punish crimes and conclude on corporal punishment” (Trévoux).]

Ch. xxxix, p. 218.