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.
