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.
