In what Manner the Proceedings at Law became secret.
DUELS had introduced a public form of proceeding, so that both the attack and the defence were equally known. “The witnesses,” says Beaumanoir, “ought to give their testimony in open court.”
Boutillier’s commentator says, he had learnt of ancient practitioners, and from some old manuscript law books, that criminal processes were anciently carried on in public, and in a form nor 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 preserves 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 tried by vassals, they could therefore refresh their memory every time they held a court, by what was called proceedings on record. 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 secret form of proceeding was introduced. Every thing before had been public; every thing 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. Lewis was improved. And indeed, Beaumanoir says, 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.