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The trial by combat had some reason for it, founded on experience. In a military nation, cowardice supposes other vices; it is an argument of a person's having deviated from the principles of his education, of his being insensible of honour, and of having refused to be directed by those maxims which govern other men; it shows that he neither fears their contempt, nor sets any value upon their esteem. Men of any tolerable extraction seldom want either the dexterity requisite to co-operate with strength, or the strength necessary to concur with courage; for as they set a value upon honour, they are practised in matters without which this honour cannot be obtained. Besides, in a military nation, where strength, courage and prowess are esteemed, crimes really odious are those which arise from fraud, artifice, and cunning, that is, from cowardice.

With regard to the trial by fire, after the party accused had put his hand on a hot iron, or in boiling water, they wrapped the hand in a bag and sealed it up; if after three days there appeared no mark, he was acquitted, Is it not plain, that among people inured to the handling of arms, the impression made on a rough or callous skin by the hot iron or by boiling water could not be so great as to be seen three days afterwards? And if there appeared any mark, it showed that the person who had undergone the trial was an effeminate fellow. Our peasants are not afraid to handle hot iron with their callous hands; and, with regard to the women, the hands of those who worked hard might be very well able to resist hot iron. The ladies did not want champions to defend their cause; and in a nation where there was no luxury, there was no middle state.[88]

By the law of the Thuringians[89] a woman accused of adultery was condemned to the trial by boiling water only when there was no champion to defend her; and the law of the Ripuarians admits of this trial[90] only when a person had no witnesses to appear in justification. Now a woman that could not prevail upon any one relative to defend her cause, or a man that could not produce one single witness to attest his honesty, was, from those very circumstances, sufficiently convicted.

I conclude, therefore, that under the circumstances of time in which the trial by combat and the trial by hot iron and boiling water obtained, there was such an agreement between those laws and the manners of the people, that the laws were rather unjust in themselves than productive of injustice, that the effects were more innocent than the cause, that they were more contrary to equity than prejudicial to its rights, more unreasonable than tyrannical.

18. In what manner the Custom of judicial Combats gained Ground. From Agobard's letter to Louis the Debonnaire, it might be inferred that the custom of judicial combats was not established among the Franks; for having represented to that prince the abuses of the law of Gundebald, he desires that private disputes should be decided in Burgundy by the law of the Franks. But as it is well known from other quarters that the trial by combat prevailed at that time in France, this has been the cause of some perplexity. However, the difficulty may be solved by what I have said; the law of the Salian Franks did not allow of this kind of trial and that of the Ripuarian Franks did.[91]

But, notwithstanding the clamours of the clergy, the custom of judicial combats gained ground continually in France; and I shall presently make it appear that the clergy themselves were in a great measure the occasion of it.

It is the law of the Lombards that furnishes us with this proof. "There has been long since a detestable custom introduced," says the preamble to the constitution of Otho II:[92] "this is, that if the title to an estate was said to be false, the person who claimed under that title made oath upon the Gospel that it was genuine; and without any preceding judgment he took possession of the estate; so that they who would perjure themselves were sure of gaining their point." The Emperor Otho I having caused himself to be crowned at Rome[93] at the very time that a council was there under Pope John XII, all the lords of Italy represented to that prince the necessity of enacting a law to reform this horrible abuse.[94] The Pope and the Emperor were of opinion that the affair should be referred to the council which was to be shortly held at Ravenna.[95] There the lords made the same demands, and redoubled their complaints; but the affair was put off once more, under pretence of the absence of particular persons. When Otho II and Conrad, King of Burgundy, arrived in Italy,[96] they had a conference at Verona[97] with the Italian lords,[98] and at their repeated solicitations, the Emperor, with their unanimous consent, made a law, that whenever there happened any disputes about inheritances, while one of the parties insisted upon the legality of his title and the other maintained its being false, the affair should be decided by combat; that the same rule should be observed in contests relating to fiefs; and that the clergy should be subject to the same law, but should fight by their champions. Here we see that the nobility insisted on the trial by combat because of the inconvenience of the proof introduced by the clergy; that notwithstanding the clamours of the nobility, the notoriousness of the abuse which called out loudly for redress, and the authority of Otho who came into Italy to speak and act as master, still the clergy held out in two councils; in fine, that the joint concurrence of the nobility and princes having obliged the clergy to submit, the custom of judicial combats must have been considered as a privilege of the nobility, as a barrier against injustice and as a security of property, and from that very moment this custom must have gained ground. And this was effected at a time when the power of the Emperors was great, and that of the popes inconsiderable; at a time when the Othos came to revive the dignity of the empire in Italy.

I shall make one reflection which will corroborate what has been above said, namely, that the institution of negative proofs entailed that of judicial combats. The abuse complained of to the Othos was, that a person who was charged with having a false title to an estate, defended himself by a negative proof, declaring upon the Gospels it was not false. What was done to reform the abuse of a law which had been mutilated? The custom of combat was revived.

I hastened to speak of the constitution of Otho II, in order to give a clear idea of the disputes between the clergy and the laity of those times. There had been indeed a constitution of Lotharius I[99] of an earlier date, a sovereign who, upon the same complaints and disputes, being desirous of securing the just possession of property, had ordained that the notary should make oath that the deed or title was not forged; and if the notary should happen to die, the witnesses should be sworn who had signed it. The evil, however, still continued, till they were obliged at length to have recourse to the remedy above-mentioned.

Before that time I find that, in the general assemblies held by Charlemagne, the nation represented to him[100] that in the actual state of things it was extremely difficult for either the accuser or the accused to avoid perjuring themselves, and that for this reason it was much better to revive the judicial combat, which was accordingly done.

The usage of judicial combats gained ground among the Burgundians, and that of an oath was limited. Theodoric, King of Italy, suppressed the single combat among the Ostrogoths;[101] and the laws of Chaindasuinthus and Recessuinthus seemed as if they would abolish the very idea of it. But these laws were so little respected in Narbonne Gaul, that they looked upon the legal duel as a privilege of the Goths.[102]

The Lombards who conquered Italy after the Ostrogoths had been destroyed by the Greeks, introduced the custom of judicial combat into that country, but their first laws gave a check to it.[103] Charlemagne,[104] Louis the Debonnaire, and the Othos made divers general constitutions, which we find inserted in the laws of the Lombards and added to the Salic laws, whereby the practice of legal duels, at first in criminal, and afterwards in civil cases, obtained a greater extent. They knew not what to do. The negative proof by oath had its inconveniences; that of legal duels had its inconveniences also; hence they often changed, according as the one or the other affected them most.

On the one hand, the clergy were pleased to see that in all secular affairs people were obliged to have recourse to the altar,[105] and, on the other, a haughty nobility were fond of maintaining their rights by the sword.

I would not have it inferred that it was the clergy who introduced the custom so much complained of by the nobility. This custom was derived from the spirit of the Barbarian laws, and from the establishment of negative proofs. But a practice that contributed to the impunity of such a number of criminals, having given some people reason to think it was proper to make use of the sanctity of the churches in order to strike terror into the guilty, and to intimidate perjurers, the clergy maintained this usage and the practice which attended it: for in other respects they were absolutely averse to negative proofs. We find in Beaumanoir[106] that this kind of proof was never allowed in ecclesiastic courts, which contributed greatly, without doubt, to its suppression, and to weaken in this respect the regulation of the codes of the Barbarian laws.

This will convince us more strongly of the connection between the usage of negative proofs and that of judicial combats, of which I have said so much. The lay tribunals admitted of both, and both were rejected by the ecclesiastic courts.

In choosing the trial by duel the nation followed its military spirit; for while this was established as a divine decision, the trials by the cross, by cold or boiling waters, which had been also regarded in the same lights, were abolished.

Charlemagne ordained that, if any difference should arise between his children, it should be terminated by the judgment of the cross. Louis the Debonnaire[107] limited this judgment to ecclesiastic affairs; his son Lotharius abolished it in all cases; nay, he suppressed even the trial by cold water.[108]

I do not pretend to say that, at a time when so few usages were universally received, these trials were not revived in some churches, especially as they are mentioned in a charter of Philip Augustus,[109] but I affirm that they were very seldom practised. Beaumanoir,[110] who lived at the time of St. Louis and a little after, enumerating the different kinds of trial, mentions that of judicial combat, but not a word of the others.

19. A new Reason of the Disuse of the Salic and Roman Laws, as also of the Capitularies. I have already mentioned the reasons that had destroyed the authority of the Salic and Roman laws, as also of the Capitularies; here I shall add that the principal cause was the great extension given to judiciary combats.

As the Salic laws did not admit of this custom, they became in some measure useless, and fell into oblivion, In like manner the Roman laws, which also rejected this custom, were laid aside; 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.[111]

I find that, towards the commencement of the third race, the jurisprudence of those times related entirely to precedents; everything was regulated by the point of honour. If the judge was not obeyed, he insisted upon satisfaction from the person that contemned 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.[112] Louis the Fat reformed this custom.[113]

The custom of legal duels prevailed at Orleans, even in all demands of debt.[114] Louis 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. Louis' time it was sufficient that the value was more than twelve deniers.[115] Beaumanoir[116] had 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 shows that the custom of judiciary combat must have prevailed at that time to a wonderful extent.

20. Origin of the Point of Honour. We meet with inexplicable enigmas in the codes of laws of the Barbarians. The law of the Frisians[117] allows only half a sou in composition to a person that had been beaten with a stick, and yet for ever so small a wound it allows more. By the Salic law, if a freeman gave three blows with a stick to another freeman, he paid three sous; if he drew blood, he was punished as if he had wounded him with steel, and he paid fifteen sous: thus the punishment was proportioned to the greatness of the wound. The law of the Lombards established different compositions for one, two, three, four blows, and so on.[118] At present, a single blow is equivalent to a hundred thousand.

The constitution of Charlemagne, inserted in the law of the Lombards, ordains that those who were allowed the trial by combat should fight with bastons.[119] Perhaps this was out of regard to the clergy; or probably, as the usage of legal duels gained ground, they wanted to render them less sanguinary. The capitulary of Louis the Debonnaire allows the liberty of choosing to fight either with the sword or baston.[120] In process of time none but bondmen fought with the baston.[121]

Here I seethe first rise and formation of the particular articles of our point of honour. The accuser began by declaring in the presence of the judge that such a person had committed such an action, and the accused made answer that he lied,[122] upon which the judge gave orders for the duel. It became then an established rule that whenever a person had the lie given him, it was incumbent on him to fight.