so that there should be an end of all disputing on the matter (et sit...
omnis lis et altercatio sopita).^37 The great wealth of the Paris tolls, with-
held ‘by force’ by the mayor of the palace, was returned to Saint Denis;
against the protests of the dead tenants’ heirs, land was restored to
churches which maintained that it had been held only in precariam—as
leasehold for life; and two years before he usurped the throne of the last
Merovingian, Pippin, the mayor of the palace himself, declared a will
pleaded by another abbey against the claims of Saint Denis ‘for ever null
and void’.^38 The ninth-century Formulae Imperialesinclude a series of
orders de rebus redditis—to restore property or free status which had
been found by, for instance, the king’s travelling justices (the missi), to
have been taken away ‘unjustly and against the law’, and by then it was
possible for laymen to win suits in the king’s courts, even against
churches.^39
The judges in the first courts of law were assessors presided over by
the count of the palace or of the pagus. It was on the basis of a report
(testimoniatio) on the outcome of the pleadings before the nobles
(proceres) in his palace that the king ordered the concluding of a
dispute. The count would certify that the case had been conducted and
investigated according to the proper procedure (acta vel inquisita per
ordinem).^40 Most cases throughout the entire history of civil litigation
have been decided in the pleading-contest. Interrogated by the ‘good
men’ of the court, one party was compelled to accept the force of the
other’s written ‘instruments’, or to admit his own lack of title-deeds—
perhaps simply by failing to appear when required to produce them.^41
The limit of human judgment was the allocation of the burden and the
prescription of the means of proof: the presentation of a deed, or an
oath by a specified number of oath-helpers.^42 If pleading did not con-
clude the matter, it could be finally concluded only by iudicium Dei, ‘the
judgment of God’ who alone searches the hearts of men, given through
a solemn oath on a sacred relic or through an ordeal.^43 The king or the
20 Frankish and Anglo-Saxon Justice
(^37) Formulae, 67–8 (nos. 37, 38); Diplomata... Merowingica, nos. 49 (p. 167. 45 ), 60, 77,
78 (p. 69. 45 , where it is the mayor of the palace who orders the inquest).
(^38) Diplomata... Merowingica, nos. 64, 77; and of the mayors, nos. 10, 21.
(^39) Formulae, 321–5, esp. no. 50.
(^40) Tessier, Diplomatique, 36–8; Diplomata... Merowingica, nos. 41. 94 etc.
(^41) Diplomata... Merowingica, nos. 34, 59, 70, 73, 76, 77; and of the mayors of the palace,
18, 21; cf. Chris Wickham, Early Medieval Italy(London, 1981), 123, for the pleading of
charters in the courts of Lombard and Carolingian Italy.
(^42) Diplomata... Merowingica, nos. 49, 59, 60, 78, etc.
(^43) F.-L. Ganshof, ‘La Preuve dans le droit franc’, and J. Gaudemet, ‘Les Ordalies au moyen
âge’, in La Preuve, Recueils de la Société Jean Bodin, 17 (Brussels, 1965), part 2, pp. 71–135;
Formulae, 232–3 (Noticia de cruce evindicata), 257. 10 , 604 ff.; ‘the ordeal of the cross’ was a
form of judgment sometimes used in land cases: the parties stood facing each other before a
cross, their arms outstretched, and the first to let them fall lost the case; Capitularia, i. 117. 30 ,
- 10 , 129. 20 , 149. 20 , 160. 25 , 230. 30 , 268. 10 , 269. 30 , 279. 25.