Chapter 19

Why the Salic and Roman Laws and the Capitularies were disused

March 22, 2020

The principal cause for the disuse of the Salic and Roman laws, and the Capitularies was the great extent given to judiciary combats.

The Salic laws did not admit of this custom and so they became useless and fell into oblivion. The Roman laws also rejected this custom. 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.

Towards the commencement of the third race, the jurisprudence of those times related entirely to personal quarrels, and was governed by the point [284] of honour. If the judge was not obeyed, he insisted upon satisfaction from the person that contemned his 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. Lewis the Fat reformed this custom.

The custom of legal duels prevailed at∥ Orleans, even in all demands of debt. Lewis 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. Lewis’s time* it was sufficient that the value was more than twelve deniers. Beaumanoir§ 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 shews that the usage of judiciary combats must have had, at that time, a prodigious extent.


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