28.26. 26. On the judiciary Combat between one of the Parties and one of
the Witnesses.
Beaumanoir informs us
[160]
that a person who saw a
witness going to swear against him might elude the other by telling the
judges that his adversary produced a false and slandering witness; and
if the witness was willing to maintain the quarrel, he gave pledges of
battle. The inquiry was no longer the question; for if the witness was
overcome, it was decided that the adversary had produced a false
witness, and he lost his cause.
It was necessary that the second witness should not be heard; for if
he had made his attestation, the affair would have been decided by the
deposition of two witnesses. But by staying the second, the deposition
of the first witness became void.
The second witness being thus rejected, the party was not allowed to
produce any others, but he lost his cause; in case, however, there had
been no pledges of battle, he might produce other witnesses.
Beaumanoir observes
[161]
that the witness might say to the party he
appeared for, before he made his deposition: "I do not care to fight for
your quarrel, nor to enter into any debate; but if you are willing to
stand by me, I am ready to tell the truth." The party was then obliged
to fight for the witness, and if he happened to be overcome, he did not
lose his cause,
[162]
but the witness was rejected.
This, I believe, was a modification of the ancient custom; and what
makes me think so is that we find this usage of challenging the
witnesses established in the laws of the Bavarians
[163]
and
Burgundians
[164]
without any restriction.
I have already made mention of the constitution of Gundebald,
against which Agobard
[165]
and St. Avitus
[166]
made such loud
complaints. "When the accused," says this prince, "produces witnesses to
swear that he has not committed the crime, the accuser may challenge one
of the witnesses to a combat; for it is very just that the person who
has offered to swear, and has declared that he was certain of the truth,
should make no difficulty of maintaining it by combat." Thus the
witnesses were deprived by this king of every kind of subterfuge to
avoid the judiciary combat.
Footnotes
[160]
Chapter 61, p. 315.
[162]
But if the battle was fought by champions, the champion that
was overcome had his hand cut off.
[163]
Tit. 16, section 2.
[165]
"Letter to Louis the Debonnaire."
[166]
"Life of St. Avitus."
