famous ordinance of 1190, providing for the administration of the realm, Philip II
Augustus did little more than change succession rules for fiefs and increase the widow’s
dower in her deceased husband’s property. And these two ordinances applied only to the
royal domain, not to the entire kingdom.
The king’s power to make laws binding on all of his subjects slowly increased through
the 13th century. Ideological support came from the study of Roman law, which in its
general attitude toward political power revived the image of the prince who was supreme
in his legislative authority and by analogy elevated the sovereign power of a king to make
laws for the entire realm. Beaumanoir paraphrased the texts of the Code and the Digest in
arguing that what pleases the prince is to be held as law or, moving as he could to the
feudal context, that as each feudal lord is sovereign in his particular lordship so is the
king sovereign over all. But while Louis IX issued ordinances and his son Philip III
issued more, the legislation of these kings concerned only the area of public law, the
principles and problems of governmental administration. None of their lawmaking
addressed the domain of private law, whereby the inhabitants of France sued and were
sued in the courts of the king. Certain kings encouraged the further collecting of local
customs. Even here, little was accomplished. Philip III sponsored the compilation of the
customs of Toulouse, and Philip V in the early 14th century pushed other projects of this
kind. Not until the 16th century would progress be made on a complete coutumier for all
of France.
The greatest progress in medieval French law came in the 13th century. This progress,
which concerned procedure as much as legal doctrine, affected justice as much as law. In
this century, the judicial duel received the first setback in its long history. Sometimes
called “the judgment of God,” the judicial duel was the system by which two litigants
reached judgment through physical combat. The Burgundians and the Bavarians used it
in the 6th century, and though it does not appear in Salic law there are incidents of the
practice in Gregory of Tours’s Liber historiae Francorum. It either subsided or
disappeared during the Carolingian period, because legal procedure was more organized
and proof consisted of written documents and witnesses. With the disappearance of the
Carolingian state in the 10th century, its legal system vanished or weakened and its
former territories became counties, duchies, and other feudal lordships, each with its own
court in which the judicial duel as a way of settling legal disputes revived and became
more frequent.
More is known about the judicial duel in the 13th century because the authors of the
coutumiers described it in detail for the first time. One could appeal from the “false
judgment” of an ordinary tribunal to judgment by combat in the belief that God would
give victory to the party who had right on his side. If the combatants were members of
the noble class, they would use the weapons of the noble class, the lance and the sword. If
the dispute was between a lay noble and a cleric, the latter would be obliged to find a
“champion” to fight for him since the clergy were forbidden to shed blood, and the
weapons would be nonnoble, that is, the staff and the shield. This would also be the case
in battle between a noble and a nonnoble. No vassal could appeal his lord to judgment by
combat except in an accusation of crime. Only in the 13th century, when we know most
about the judicial duel, did restrictions on its use appear. Beaumanoir listed seventeen
cases in which combat could not be used to decide a legal dispute. The resistance to this
method of trial came in part from the rising class of professional lawyers in France.
Medieval france: an encyclopedia 1008