Duels had
introduced a public form of proceeding, so that both the attack and the
defence were equally known. "The witnesses," says Beaumanoir,
[253]
"ought to give their testimony in open court."
Boutillier's commentator says he had learned of ancient
practitioners, and from some old manuscript law books, that criminal
processes were anciently carried on in public, and in a form not very
different from the public judgments of the Romans. This was owing to
their not knowing how to write; a thing in those days very common. The
usage of writing fixes the ideas, and keeps the secret; but when this
usage is laid aside, nothing but the notoriety of the proceeding is
capable of fixing those ideas.
And as uncertainty might easily arise in respect to what had been
adjudicated by vassals, or pleaded before them, they could, therefore,
refresh their memory
[254]
every time they held a court by what were
called proceedings on record.
[255]
In that case, it was not allowed to
challenge the witnesses to combat; for then there would be no end of
disputes.
In process of time a private form of proceeding was introduced.
Everything before had been public; everything now became secret; the
interrogatories, the informations, the re-examinations, the confronting
of witnesses, the opinion of the attorney-general; and this is the
present practice. The first form of proceeding was suitable to the
government of that time, as the new form was proper to the government
since established.
Boutillier's commentator fixes the epoch of this change to the
ordinance in the year 1539. I am apt to believe that the change was made
insensibly, and passed from one lordship to another, in proportion as
the lords renounced the ancient form of judging, and that derived from
the Institutions of St. Louis was improved. And indeed, Beaumanoir
says
[256]
that witnesses were publicly heard only in cases in which it
was allowed to give pledges of battle: in others they were heard in
secret, and their depositions were reduced to writing. The proceedings
became, therefore, secret, when they ceased to give pledges of battle.
