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CHAP. XXV.: Of the Bounds prescribed to the Custom of judicial Combats. - Charles Louis de Secondat, Baron de Montesquieu, Complete Works, vol. 2 The Spirit of Laws [1748]

Edition used:

The Complete Works of M. de Montesquieu (London: T. Evans, 1777), 4 vols. Vol. 2.

Part of: Complete Works of Montesquieu, 4 vols.

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CHAP. XXV.

Of the Bounds prescribed to the Custom of judicial Combats.

WHEN pledges of battle had been received upon a civil affair of small importance, the lord obliged the parties to withdraw them.

If a fact was notorious;* for instance, if a man had been assassinated in the open market-place, then there was neither a trial by witnesses, nor by combat; the judge gave his decision from the notoriety of the fact.

When the court of a lord had often determined after the same manner, and the usage was thus known, the lord refused to grant the parties the privilege of duelling, to the end that the usages might not be altered by the different success of the combats.

They were not allowed to insist upon duelling but for themselves, for some one belonging to their family, or for their liege lord.

When the accused had been acquitted,§ another relation could not insist on fighting him; otherwise disputes would never be terminated.

If a person appeared again in public, whose relations, upon a supposition of his being murdered, wanted to revenge his death, there was then no room for a combat: the same may be said if by a notorious absence the fact was proved to be impossible.

If a man* who had been mortally wounded, had disculpated before his death the person accused, and named another, they did not proceed to a duel; but if he had mentioned nobody, his declaration was only looked upon as a forgiveness on his death-bed; the prosecution was continued, and even among gentlemen they could make war against each other.

When there was a war, and one of their relations had given or received pledges of battle, the right of war ceased; for then it was thought that the parties wanted to pursue the ordinary course of justice; therefore he that continued the war would have been sentenced to repair all damages.

Thus the practice of judiciary combat had this advantage, that it was apt to change a general into a particular quarrel, to restore the courts of judicature to their authority, and to reduce to a civil state those who were no longer governed but by the law of nations.

As there are an infinite number of wise things that are managed in a very foolish manner; so there are many foolish things that are very wisely conducted.

When a man who was appealed of a crime, visibly shewed, that it had been committed by the appellant himself, there could be then no pledges of battle; for there is no criminal but would prefer a duel of uncertain event to a certain punishment.

There were no duels in affairs decided by arbiters, nor by ecclesiastic courts: nor in cases relating to women’s dowries.

A “woman,” says Beaumanoir, “cannot fight.” If a woman appealed a person without naming her champion, the pledges of battle were not accepted. It was also requisite that a woman should be authorized§ by her baron, that is, by her husband, to appeal, but she might be appealed without this authority.

If either the appellant, or the appellee were under fifteen years of age, there could be no combat. They might order it, indeed, in disputes relating to orphans, when their guardians or trustees were willing to run the risk of this procedure.

The cases in which a bondman was allowed to fight, are, I think, as follows. He was allowed to fight another bondman; to fight a freedman, or even a gentleman, in case they were appellants; but if he was the appellant* himself, the others might refuse to fight; and even the bondman’s lord had a right to take him out of the court. The bondman might by his lord’s charter or by usage, fight with any freeman; and the church‡‡ pretended this right for her bondmen, as a mark of respect§§ due to her by the laity.

[* ]Ibid. chap. 61, p. 308. Ibid. chap. 43, p. 239.

[]Beaumanoir, chap. 61, p. 314. See also Défontaines, chap. 22, art. 24.

[]Ibid. chap. 63, p. 322.

[§ ]Défontaines, chap. 63, p. 322.

[]Ibid.

[* ]Ibid. p. 323.

[]Beaumanoir, chap. 63, p. 324.

[]Beaumanoir, p. 325.

[§ ]Ibid. p. 325.

[]Ibid. chap. 63, p. 323. See also what I have said in the 18th book.

[* ]Ibid. chap. 63, p. 322.

[]Défontaines, chap. 22, art. 7.

[‡‡ ]Habeant bellandi et testificandi licentiam. Charter of Lewis the Fat, in the year 1118.

[§§ ]Ibid.