Montesquieu
 

XXVIII.40 How the judicial forms were taken from the decretals

But how is it that in aban­do­ning the Establishments they pre­fer­red the judi­cial forms of Canon law to those of Roman law ? It is because they cons­tantly had before their eyes the cle­ri­cal tri­bu­nals, which fol­lo­wed the forms of Canon law, and they were unfa­mi­liar with any tri­bu­nal that fol­lo­wed those of Roman law. Moreover, the limits of eccle­sias­ti­cal and of secu­lar juris­dic­tion were lit­tle known in those times : there were peo­ple1 who plea­ded indif­fe­rently in the two courts2 ; there were issues for which the same was true. It seems3 that lay juris­dic­tion had kept, exclu­si­vely from the other, only the judg­ment of feu­dal mat­ters4 and of cri­mes com­mit­ted by lay­men in cases that did not offend reli­gion. For if, for rea­sons of conven­tions and contracts, they had to go to lay jus­tice,5 the par­ties could volun­ta­rily pro­ceed before cle­ri­cal tri­bu­nals, which, having no right to oblige lay jus­tice to exe­cute the sen­tence, for­ced sub­mis­sion by means of excom­mu­ni­ca­tion. In these cir­cum­stan­ces, when they wan­ted to change the prac­tice in the lay tri­bu­nals, they adop­ted that of the cle­rics, because it was fami­liar, and did not take that of Roman law, because they were not fami­liar with it : for when it comes to prac­tice, you know only what you prac­tice.

Beaumanoir, ch. xi, p. 58.

Widows, crusaders, and those who held property of the churches for reasons of those properties (ibid.).

See Beaumanoir, all of ch. xi.

Ecclesiastical tribunals, under pretext of oath, had even assumed jurisdiction, as we see in the famous concordat between Philip Augustus, the clergy, and the barons which is found in Laurière’s ordinances.

Beaumanoir, ch. xi, p. 60.