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28.29. 29. Epoch of the Reign of St. Louis.

St. Louis abolished the judicial combats in all the courts of his demesne, as appears by the ordinance he published thereupon, [219] and by the Institutions. [220]

But he did not suppress them in the courts of his barons, except in the case of challenge of false judgment. [221]

A vassal could not challenge the court of his lord of false judgment, without demanding a judicial combat against the judges who pronounced sentence. But St. Louis introduced the practice of challenging of false judgment without fighting, a change that may be reckoned a kind of revolution. [222]

He declared [223] that there should be no challenge of false judgment in the lordships of his demesnes, because it was a crime of felony. In reality, if it was a kind of felony against the lord, by a much stronger reason it was felony against the king. But he consented that they might demand an amendment [224] of the judgments passed in his courts; not because they were false or iniquitous, but because they did some prejudice. [225] On the contrary, he ordained that they should be obliged to make a challenge of false judgment against the courts of the barons, [226] in case of any complaint.

It was not allowed by the Institutions, as we have already observed, to bring a challenge of false judgment against the courts in the king's demesnes. They were obliged to demand an amendment before the same court; and in case the bailiff refused the amendment demanded, the king gave leave to make an appeal to his court; [227] or rather, interpreting the Institutions by themselves, to present him a request or petition. [228]

With regard to the courts of the lords, St. Louis, by permitting them to be challenged of false judgment, would have the cause brought before the royal tribunal, [229] or that of the lord paramount, not to be decided by duel [230] but by witnesses, pursuant to a certain form of proceeding, the rules of which he laid down in the Institutions. [231]

Thus, whether they could falsify the judgment, as in the court of the barons; or whether they could not falsify, as in the court of his demesnes, he ordained that they might appeal without the hazard of a duel.

Dfontaines [232] gives us the first two examples he ever saw, in which they proceeded thus without a legal duel: one, in a cause tried at the court of St. Quentin, which belonged to the king's demesne; and the other, in the court of Ponthieu, where the count, who was present, opposed the ancient jurisprudence: but these two causes were decided by law.

Here, perhaps, it will be asked why St. Louis ordained for the courts of his barons a different form of proceeding from that which he had established in the courts of his demesne? The reason is this: when St. Louis made the regulation for the courts of his demesnes, he was not checked or limited in his views: but he had measures to keep with the lords who enjoyed this ancient prerogative, that causes should not be removed from their courts, unless the party was willing to expose himself to the dangers of an appeal of false judgment. St. Louis preserved the usage of this appeal; but he ordained that it should be made without a judicial combat; that is, in order to make the change less felt, he suppressed the thing, and continued the terms.

This regulation was not universally received in the courts of the lords. Beaumanoir says [233] that in his time there were two ways of trying causes; one according to the king's establishment, and the other pursuant to the ancient practice; that the lords were at liberty to follow which way they pleased; but when they had pitched upon one in any cause, they could not afterwards have recourse to the other. He adds, [234] that the Count of Clermont followed the new practice, while his vassals kept to the old one; but that it was in his power to reestablish the ancient practice whenever he pleased, otherwise he would have less authority than his vassals.

It is proper here to observe that France was at that time divided into the country of the king's demesne, and that which was called the country of the barons, or the baronies; and, to make use of the terms of St. Louis' Institutions, into the country under obedience to the king, and the country out of his obedience. [235] When the king made ordinances for the country of his demesne, he employed his own single authority. But when he published any ordinances that concerned also the country of his barons, these were made in concert with them, [236] or sealed and subscribed by them: otherwise the barons received or refused them, according as they seemed conducive to the good of their baronies. The rear-vassals were upon the same terms with the great-vassals. Now the Institutions were not made with the consent of the lords, though they regulated matters which to them were of great importance: but they were received only by those who believed they would redound to their advantage. Robert, son of St. Louis, received them in his county of Clermont; yet his vassals did not think proper to conform to this practice.

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