28.19. 19. A new Reason of the Disuse of the Salic and Roman Laws, as also
of the Capitularies.
I have already mentioned the reasons that had
destroyed the authority of the Salic and Roman laws, as also of the
Capitularies; here I shall add that the principal cause was the great
extension given to judiciary combats.
As the Salic laws did not admit of this custom, they became in some
measure useless, and fell into oblivion, In like manner the Roman laws,
which also rejected this custom, were laid aside; their whole attention
was then taken up in establishing the law of judicial combats, and in
forming a proper digest of the several cases that might happen on those
occasions. The regulations of the Capitularies became likewise of no
manner of service. Thus it is that such a number of laws lost all their
authority, without our being able to tell the precise time in which it
was lost; they fell into oblivion, and we cannot find any others that
were substituted in their place.
Such a nation had no need of written laws; hence its written laws
might very easily fall into disuse.
If there happened to be any disputes between two parties, they had
only to order a single combat. For this no great knowledge or abilities
were requisite.
All civil and criminal actions are reduced to facts. It is upon
these facts they fought; and not only the substance of the affair, but
likewise the incidents and imparlances were decided by combat, as
Beaumanoir observes, who produces several instances.
[111]
I find that, towards the commencement of the third race, the
jurisprudence of those times related entirely to precedents; everything
was regulated by the point of honour. If the judge was not obeyed, he
insisted upon satisfaction from the person that contemned his authority.
At Bourges, if the provost had summoned a person and he refused to come,
his way of proceeding was to tell him, "I sent for thee, and thou didst
not think it worth thy while to come; I demand therefore satisfaction
for this thy contempt." Upon which they fought.
[112]
Louis the Fat
reformed this custom.
[113]
The custom of legal duels prevailed at Orleans, even in all demands
of debt.
[114]
Louis the Young declared that this custom should take
place only when the demand exceeded five sous. This ordinance was a
local law; for in St. Louis' time it was sufficient that the value was
more than twelve deniers.
[115]
Beaumanoir
[116]
had heard a gentleman of
the law affirm that formerly there had been a bad custom in France of
hiring a champion for a certain time to fight their battles in all
causes. This shows that the custom of judiciary combat must have
prevailed at that time to a wonderful extent.
Footnotes
[111]
Ibid., chap. 61, pp. 309, 310.
[112]
"Charter of Louis the Fat" in the year 1145, in the "Collection of
Ordinances."
[114]
"Charter of Louis the Young," in 1168, in the "Collection of
Ordinances."
[115]
See Beaumanoir, 63, p. 325.
[116]
See the Ancient Custom of Beauvoisis, 28, p. 203.
