V. LIMITATIONS ON THE WAGER OF BATTLE…

V. LIMITATIONS ON THE WAGER OF BATTLE

The right of demanding the wager of battle between principals varied much with the age and race, though as a “bilateral” ordeal, as a rule, from the earliest times either party was entitled to claim it.[390] When Beaumanoir composed his Coutumes du Beauvoisis, in 1283, the practice may be considered to have entered upon its decadence; twenty years had elapsed since the determined efforts of St. Louis to abolish it; substitutes for it in legal processes had been provided; and the manner in which that enlightened jurist manifests his preference for peaceful forms of law shows that he fully appreciated the civilizing spirit in which the monarch had endeavored to soften the ferocity of his subjects. When, therefore, we see in Beaumanoir’s treatise how few restrictions existed in his time, we may comprehend the previous universality of the custom. In criminal cases, if an accuser offered battle, the defendant was forced either to accept it or to confess his guilt, unless he could prove an alibi, or unless the accuser was himself notoriously guilty of the crime in question, and the accusation was evidently a mere device to shift the guilt to the shoulders of another; or unless, in case of murder, the victim had disculpated him, when dying, and had named the real criminals.[391] If, on the other hand, the accused demanded to wage his battle, the judge could only refuse it when his guilt was too notorious for question.[392] A serf could not challenge a freeman, nor a bastard a man of legitimate birth (though an appeal of battle might lie between two bastards), nor a leper a sound man.[393] In civil actions, the battle trial was not allowed in cases relating to dower, to orphans under age,[394] to guardianships, or to the equity of redemption afforded by the feudal laws to kinsmen in the sale of heritable property, or where the matter at stake was of less value than twelve deniers.[395] St. Louis also prohibited the duel between brothers in civil cases, while permitting it in criminal accusations.[396] The slenderness of these restrictions shows what ample opportunities were afforded to belligerent pleaders.[397]

In Germany, as a general rule, either party had a right to demand the judicial combat,[398] subject, however, in practice, to several important limitations. Thus, difference of rank between the parties afforded the superior a right to decline a challenge, as we shall see more fully hereafter.[399] Relationship between the contestants was also an impediment, of which either might avail himself,[400] and even the fact that the defendant was not a native of the territory in which the action was brought gave him the privilege of refusing the appeal.[401] Still, we find the principle laid down even in the fourteenth century that cases of homicide could not be determined in any other manner.[402] There were circumstances, indeed, in which the complainant, if he could bring the evidence of seven witnesses in his favor, could decline the duel; but if he choose to prove the charge by the combat, no examination or testimony was admitted. In the same way, if a man was slain while committing theft or robbery, and was prosecuted for the crime, the accuser was not bound to offer the duel if he could produce the evidence of seven witnesses; but if a relative of the dead man offered to vindicate him by combat, this annulled all the evidence, and conviction could not be had without the battle ordeal.[403] A curious provision in the Saxon burgher law allowed a man who had been assaulted to challenge to the duel as many men as he had wounds—but the wounds were required to be of a certain degree of severity—wunden kampffbaren.[404] So the contemporary law of Suabia provides that in accusations of personal violence, the duel was not to be allowed, unless the injury inflicted on the complainant had been sufficiently serious to cause permanent maiming,[405] thus showing how thoroughly different in spirit was the judicial combat from the modern code of honor which has been affiliated upon it. Yet a general rule is found expressed to the effect that it was necessary only in cases where no other evidence was obtainable, when the result could be safely left to the judgment of Omniscience.[406]

In the Latin kingdoms of the East, and among the Armenians, who, curiously enough, adopted the customs of their fellow Christians from the West, it would seem that in both the noble and the roturier courts, in civil as well as in criminal cases, the plaintiff or prosecutor was not obliged personally to fight, but that if one of his witnesses offered battle, the defendant or accused was not permitted to decline the challenge under pain of losing his suit or being condemned. On the other hand, unless the complainant or accuser had a witness who was willing to offer battle, the oath of denial of the other party was sufficient, and in criminal cases the accuser was subjected to the talio.[407]

By the English law of the thirteenth century, a man accused of crime had, in doubtful cases only, the right of election between trial by jury and the wager of battle. When a violent presumption existed against him, he was obliged to submit to the verdict of a jury; but in cases of suspected poisoning, as satisfactory evidence was deemed unattainable, the accused had only the choice between confession and the combat.[408] On the other hand, when the appellant demanded the duel, he was obliged to make out a probable case before it was granted.[409] When battle had been gaged, however, no withdrawal was permitted, and any composition between the parties to avoid it was punishable by fine and imprisonment[410]—a regulation, no doubt, intended to prevent pleaders from rashly undertaking it, and to obviate its abuse as a means of extortion. In accusations of treason, indeed, the royal consent alone could prevent the matter from being fought out.[411] Any bodily injury on the part of the plaintiff, tending to render him less capable of defence or aggression, likewise deprived the defendant of the right to the wager of battle, and this led to such nice distinctions that the loss of molar teeth was adjudged not to amount to disqualification, while the absence of incisors was considered sufficient excuse, because they were held to be important weapons of offence.[412] Notwithstanding these various restrictions, cases of treason were almost always determined by the judicial duel, according to both Glanville and Bracton.[413] This was in direct opposition to the custom of Lombardy, where such cases were especially exempted from decision by the sword.[414] These restrictions of the English law, such as they were, did not, however, extend to the Scottish Marches, where the trial by battle was the universal resource and no proof by witnesses was admitted.[415]

In Bearn, the duel was permitted at the option of the accuser in cases of murder and treason, but in civil suits only in default of testimony.[416] That in such cases it was in common use is shown by a treaty made, in the latter part of the eleventh century, between Centulla I. of Bearn and the Viscount of Soule, in which all doubtful questions arising between their respective subjects are directed to be settled by the combat, with the singular proviso that the combatants shall be men who have never taken part in war.[417] In the thirteenth century, however, a provision occurs which must have greatly reduced the number of duels, as it imposed a fine of only sixteen sous on the party who made default, while, if vanquished, he was visited with a mulct of sixty sous and the forfeiture of his arms.[418] In the neighboring region of Bigorre an exemption was allowed in favor of the widow whose husband had been slain in war. Until she remarried or her sons were of age to bear arms she was exempt from all legal process—a provision evidently intended to relieve her from the duel in which suits were liable to terminate.[419]

In some regions greater restrictions were imposed on the facility for such appeals to the sword. In Catalonia, for instance, the judge alone had the power of deciding whether they should be permitted,[420] and a similar right was reserved in doubtful cases to the podestà in a code of laws in force at Verona in 1228.[421] This must often have prevented the injustice inherent in the system, and an equally prudent reserve was exhibited in a statute of Montpellier, which required the assent of both parties.[422] On the other hand, in Normandy, at the commencement of the thirteenth century, many cases relating to real estate were examined in the first instance by a jury of twelve men, and, if they failed of an unanimous verdict, the question was decided by the duel, whether the parties were willing or not.[423]

By the criminal procedure in England, at about the same period, the duel was prescribed only for cases of felony or crimes of importance, and it was forbidden in trifling misdemeanors.[424] Appeal of battle could not lie between a vassal and his lord during the existence of the connection, nor between a serf and his master except in cases of treason.[425] It would also seem that the defendant could avoid the duel if he could prove that the motive of the appeal was hatred, for there is a curious case on record in which, when the appellant demanded battle, the accused offered to the king a silver mark for an impartial jury to decide this preliminary question, and it was granted to him.[426] In Southern Germany a fifteenth century MS. enumerates seven crimes for which the duel could be prescribed—detraction of the emperor or empire, treason, theft, robbery and depredation, rape, arson, and poisoning.[427]

From a very early period, a minimum limit of value was established, below which a pugnacious pleader was not allowed to put the life or limb of his adversary in jeopardy. This varied of course with the race and the period. Thus, among the Angli and Werini, the lowest sum for which the combat was permitted was two solidi,[428] while the Baioarians established the limit at the value of a cow.[429] In the tenth century, Otho II. decided that six solidi should be the smallest sum worth fighting for.[430] The so-called laws of Henry I. of England decreed that in civil cases the appeal of battle should not lie for an amount less than ten solidi.[431] In France, Louis le Jeune, by an edict of 1168, forbade the duel when the sum in debate was less than five sous,[432] and this remained in force for at least a century.[433] The custom of Normandy in the thirteenth century specifies ten sous as the line of demarcation between the lex apparens and the lex simplex in civil suits,[434] and the same provision retains its place in the Coutumier in use until the sixteenth century.[435] In the Latin States of the East founded by the Crusaders, the minimum was a silver marc in cases of both nobles and roturiers.[436] A law of Aragon, in 1247, places the limit at ten sous.[437]

As regards the inferior classes of society, innumerable documents attest the right of peasants to decide their quarrels by the ordeal of battle. By the old Lombard law, slaves were allowed to defend themselves in this manner;[438] and they could even employ the duel to claim their liberty from their masters, as we may infer from a law of King Grimoald denying this privilege to those who could be proved to have served the same master for thirty continuous years.[439] Similarly, among the Frisians, a litus claiming his liberty was allowed to prove it against his master with arms.[440] The institutions of feudalism widened the distance between the different classes of society, and we have already seen that, in the thirteenth century, serfs were enfranchised in order to enable them to support their testimony by the combat; yet this was only the result of inequality of rank. In the time of Beaumanoir (1283), though an appeal would not lie from a serf to a freeman, it may be safely inferred from the context that a combat could be legally decreed between two serfs if the consent of their masters were obtained,[441] and other contemporary authorities show that a man claimed as a serf could defend his freedom with the sword against his would-be master.[442] Even Jews were held liable to the appeal of battle, as we learn from a decision of 1207, preserved in an ancient register of assizes in Normandy,[443] and they no doubt purchased the exemption, which was granted to them, except in cases of flagrant murder, by Philippe le Long, as a special favor, in 1317.[444]

Difference of condition thus became an impediment to the duel, and formed the subject of many regulations, varying with circumstance and locality. The free mountaineers of Béarn, as has been seen, placed the prince and the subject on an equality before the law, but this was a rare example of independence, and the privileges of station were sometimes exhibited in their most odious form. In France, for instance, while the battle trial could take place between the gentilhomme and the vilain, the former was secured by the distinction that if the villein presumed to challenge him, he enjoyed the right of fighting on horseback with knightly weapons, while the challenger was on foot and armed only with shield and staff; but if the gentleman condescended to challenge the villein, they met on equal terms.[445] This last regulation was enforced with impartial justice, for Beaumanoir mentions a case in which a gentleman challenged a roturier, and presented himself in the lists mounted and armed with his knightly weapons. The defendant protested against this illegal advantage, and the judges decided that the gentleman had forfeited his horse and arms, and that if he desired to continue the combat he must do so in the condition in which he was left by the disarmament—in his shirt without armor or weapons, while his adversary should retain coat of mail, target, and club.[446] The barbarous injustice of the general rule, moreover, was by no means of universal application. Pierre de Fontaines, for instance, directs that in cases of appeal from a roturier to a gentleman the combat shall take place on foot between champions;[447] and I find a case recorded in 1280, in which a femme de corps of Aimeri de Rochechouart accused the Sire de Montricher of burning her houses, and as the duel was adjudged she placed in the lists an armed and mounted knight as her champion, to whom no objection seems to have been made.[448]

Throughout both Northern and Southern Germany, where the minute distinctions of birth were guarded with the most jealous care from a very early period, the codes of the thirteenth century, including even the burgher laws, provided that a difference of rank permitted the superior to decline the challenge of an inferior, while the latter was obliged to accept the appeal of the former. So thoroughly was this principle carried into practice, that, to compel the appearance of a Semperfri, or noble of sixteen quarterings, the appellant was required to prove himself of equally untarnished descent.[449] In the same spirit a Jew could not decline the appeal of battle offered by a Christian accuser, though we may safely infer that the Jew could not challenge the Christian.[450] So, in the Latin kingdom of Jerusalem, the Greek, the Syrian, and the Saracen could not challenge the Frank, but could not, in criminal cases, decline his challenge, though they might do so in civil suits.[451] In Aragon, no judicial duel was permitted between a Christian and a Jew or a Saracen,[452] while in Castile both combatants had to be gentlemen, quarrels between parties of different ranks being settled by the courts.[453] On the other hand, in Wales, extreme difference of rank was held to render the duel necessary, as in cases of treason against a lord, for there the lord was plaintiff against his vassal, and as no man could enter into law with his lord, the combat was considered the only mode of prosecution befitting his dignity.[454]

A question of this nature was the remote occasion of the murder of Charles the Good, Count of Flanders, in 1127. Bertulf, Provost of the church of Bruges, was rich and powerful, although in reality his family were villeins of the count. He married his nieces to knights, one of whom, in presence of the count, appealed another knight to battle. The appellee refused on the ground that he was not obliged to notice the challenge of a villein, for according to the law of the land a freeman marrying a serf was reduced to the latter condition after the expiration of a year. The Count’s attention being thus called to his rights over the family of Bertulf, he proceeded to establish them, when Bertulf set on foot the conspiracy which ended in the assassination of the count.[455]

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There were three classes—women, ecclesiastics, and those suffering under physical incapacity—with whom personal appearance in the lists would appear to be impossible. When interested in cases involving the judicial duel they were therefore allowed the privilege of substituting a champion, who took their place and did battle for the justice of their cause. So careful were legislators to prevent any failure in the procedure prescribed by custom, that the North German law provided that the dead when prosecuted could appear in the lists by substitutes,[456] and the Assises de Jerusalem ordered the suzerain to supply the expenses for forty days, when a suitor unable to fight was also too poor to pay for a champion to take his place; and when a murdered man left no relatives to prosecute the murderer, the suzerain was likewise obliged to furnish the champion in any trial that might arise.[457] Equally directed to the same purpose was the German law which provided that when a crippled defendant refused or neglected to procure a substitute, the judge was to seize one-half of his property with which to pay the services of a gladiator, who could claim nothing more.[458] Guardians of women and minors, moreover, were bound to furnish battle in their behalf.[459]

Women, however, did not always restrict themselves to fighting thus vicariously. The German laws refer to cases in which a woman might demand justice of a man personally in the lists, and not only are instances on record in which this was done, as in a case at Berne in 1228, in which the woman was the victor,[460] but it was of sufficiently frequent occurrence to have an established mode of procedure, which is preserved to us in all its details by illuminated MSS. of the period.[461] The chances between such unequal adversaries were adjusted by placing the man up to the navel in a pit three feet wide, tying his left hand behind his back, and arming him only with a club, while his fair opponent had the free use of her limbs and was furnished with a stone as large as the fist, or weighing from one to five pounds, fastened in a piece of stuff. A curious regulation provided the man with three clubs. If in delivering a blow he touched the earth with hand or arm he forfeited one of the clubs; if this happened thrice his last weapon was gone, he was adjudged defeated, and the woman could order his execution. On the other hand, the woman was similarly furnished with three weapons. If she struck the man while he was disarmed she forfeited one, and with the loss of the third she was at his mercy, and was liable to be buried alive. According to the customs of Freisingen these combats were reserved for accusations of rape. If the man was vanquished, he was beheaded; if the woman, she only lost a hand, for the reason that the chances of the fight were against her.[462] In Bohemia, also, women over the age of eighteen had the privilege of the duel; the man was put into a pit as deep as his waist; the woman was armed with sword and buckler, but was not allowed to approach nearer than a circle traced around the mouth of the pit.[463]

The liability of ecclesiastics to the duel varied with the varying relations between the church and state. As early as the year 819, Louis le Débonnaire, in his additions to the Salic law, directs that, in doubtful cases arising between laymen and ecclesiastics, the duel between chosen witnesses shall be employed, but that when both parties are clerical it shall be forbidden.[464] This restriction was not long observed. A decree of the Emperor Guy, in 892, gives to churchmen the privilege of settling their quarrels either by combat or by witnesses, as they might prefer;[465] and, about the year 945, Atto of Vercelli complains that the tribunals allowed to ecclesiastics no exemption from the prevailing custom.[466] As we have seen (p. 131), Otho II., at the Council of Verona in 983, subjected the churches to the law of the duel, only granting them the privilege of employing champions. Some intricate questions involved in the coexistence of the Lombard and the Roman law arose in a celebrated case between the Abbey of Farfa and that of SS. Cosmo and Damianus of Rome, which was pleaded in 998 and 999 before Otho III. and Popes Gregory V. and Sylvester II. The Abbey of Farfa proved that it lived under the Lombard law, while the other was under the Roman law. It was decided, as the Abbey of Farfa desired, that after hearing testimony the case should be settled by the duel, but the witnesses of the Roman abbey were so manifestly perjured that it was held not to have made out a case justifying an appeal to the combat, and the churches in dispute were adjudged to Farfa.[467]

So far was this liability to the duel from being deemed a hardship by the turbulent spirits of the period, that clerks not infrequently disdained to sustain their rights by the intervention of a champion, and boldly entered the lists themselves. In 1080 the Synod of Lillebonne adopted a canon punishing by a fine such belligerent churchmen as indulged in the luxury of duels without having first obtained from their bishops a special license authorizing it.[468] About the same period, Geoffrey, Abbot of Vendôme, in a letter to the Bishop of Saintes, complains of one of his monks who had fought in a judicial duel with a clerk of Saintes.[469] The practice continued, and though forbidden by Pope Innocent II. in 1140,[470] Alexander III. and Clement III. found it necessary to repeat the prohibition before the close of the century.[471] Yet Alexander, when appealed to with respect to a priest of the Campagna who had lost a finger in a duel, decided that neither the offence nor the mutilation debarred him from the exercise of his sacerdotal functions, and only directed him to undergo due penance.[472] The progress of the age, however, was shown when, about thirty years afterwards, Celestin III. pronounced sentence of deposition in a similar case submitted to him;[473] and this was formally and peremptorily confirmed by Innocent III. at the great council of Lateran in 1215.[474]

That the peaceful ministers of Christ should vindicate their rights with the sword, either personally or by proxy, was a sacrilege abhorrent to pious minds. As early as the middle of the ninth century, Nicholas I., who did so much to establish the supremacy of the church, endeavored to emancipate it from this necessity, and declared that the duel was not recognized by ecclesiastical law.[475] The utmost privilege which the secular law accorded the clergy, however, was the right of presenting a champion in the lists, which zealous churchmen naturally resented as an arbitrary injustice.[476] How thoroughly it was carried out in practice, notwithstanding all remonstrances, is shown by a charter granted in 1024 by St. Stephen of Hungary to the monastery of St. Adrian of Zala, by which, among other privileges, the pious king bound himself to supply a champion in all suits against the abbey, in order that the holy meditations of the monks might not be interrupted.[477] Not long after, in 1033, the celebrated abbey of St. Clement at Pescara was involved in a dispute concerning some lands which had been cut off from its possessions by a change in the course of the river Pescara, and had been seized by the lords of the contiguous territory. At an assembly of the magnates of the district it was adjudged that the matter must be settled by the duel. The night before the combat was to take place the holy abbot Guido, after enjoining earnest prayers by all the monks, sallied forth alone to the banks of the stream and stretching forth his staff adjured the waters to repair the evil which they had wrought under the impulsion of the devil. The river forthwith returned to its old channel, and next morning the multitude which assembled to witness the combat were astounded to see the miracle. The godless men who had seized on the possessions of the church humbly sought pardon for their sin, and the abbey remained in quiet enjoyment of its rights.[478]

The scandal of maintaining the claims of the church by carnal weapons and bloodshed was not soon suppressed. In 1112 we find a certain Guillaume Maumarel, in a dispute with the chapter of Paris concerning some feudal rights over the domain of Sucy, appearing in the court of the Bishop of Paris for the purpose of settling the question by the duel, and though the matter was finally compromised without combat, there does not seem to have been anything irregular in his proceeding.[479] So, about the same period, in a case between the abbey of St. Aubin in Anjou and a neighboring knight, involving some rights of property, the monks not only challenged their adversary, but the duel was held in the seignorial court of another monastery;[480] and in 1164, we find a duel decreed at Monza, by the Archbishop of Cologne as chancellor of Italy, between an abbey and a layman of the vicinity.[481] That such cases, indeed, were by no means uncommon is shown by their special prohibition in 1195 by Celestin III.[482] Yet, notwithstanding the repeated efforts of the Holy See, it was almost impossible for the church to exempt itself from the universal liability. Though in 1174 Louis VII. granted a special privilege of exemption to the church of Jusiers and its men, on the ground that he was bound to abrogate all improper customs,[483] still no general reform appears to have been practicable. An important step was gained when in 1176 Henry II., as a concession to the papacy, agreed that ecclesiastics should not be forced to the duel,[484] but this did not extend to the Scottish Marches, where by law an ecclesiastic was as liable as a layman to personal appearance in the lists; if he presented a champion he was held in custody till the event of the duel, when, if the champion was defeated, his principal was promptly beheaded. Innocent III. sternly prohibited this in 1216, but ineffectually, as is seen by a complaint of the English clergy, in 1237, in which they mention the case of the Prior of Lide, who had thus recently suffered the penalty. This was equally fruitless, for the Leges Marchiarum, enacted in 1249, declare that exemption from battle is confined to the persons of the kings and of the Bishops of St. Andrews and Durham.[485]

In France, during the thirteenth century, the liability continued. In 1239 a knight of Orleans, Gui de Santillac, testified before the royal council that the chapter of Saint-Aignan had appealed him in wager of battle.[486] As late as the year 1245, some vassals of the chapter of Nôtre Dame at Paris denied the service due by them, and demanded that the claim of the chapter should be made good by the wager of battle. That they had a legal right to do so is shown by the fact that the churchmen were obliged to implore the intervention of the pope; and Innocent IV. accordingly granted to the chapter a special privilege, in which, on the ground that single combats were forbidden by the canons, he declared that the church of Nôtre Dame should be entitled to prove its rights by witnesses, deeds, and other legitimate proofs, notwithstanding the custom existing to the contrary.[487] It was probably his interference in this case that led him a few years later, in 1252, to issue a decretal in which he pointed out the manifest hardship of forcing the clergy in France, when prosecuting such claims against their serfs, to have recourse to the duel, and thus, under the canon law, to forfeit their positions. To remedy this he proclaimed as a general rule that all verdicts should be void when obtained against clerks either by means of the duel or through reason of their refusing the combat;[488] yet in the following year he was obliged to intervene to protect the Archbishop of Sens, who complained that in these cases he was obliged to make good his claims by battle.[489] In this, Innocent was consistent, for one of the accusations which he had brought against the Emperor Frederic II. when the latter was deposed at the Council of Lyons in 1245 was that he had forced ecclesiastics to undergo the duel, to the confusion of all distinctions between clerk and layman.[490] Even in Italy about 1220 the podestà of Florence ordered the duel to decide a suit concerning certain property between some citizens and the church of the Apostles; the latter invoked the intervention of Honorius III., who commanded the matter to be settled by regular judicial process, boldly alleging that the duel was unheard of in such matters,[491] but in spite of this and the repeated prohibitions of the popes, trial by combat was still towards the close of the thirteenth century regarded as the only mode of settling disputed questions between churches when the genuineness of a charter was impugned.[492] Yet at the same period the doctors of canon law held that an ecclesiastic appearing in the lists, either personally or by a champion, was subject to deposition; it was better, they said, to lose lands and fiefs than to incur mortal sin. Unfortunately this was scarce more than a mere brutum fulmen, for a dispensation could always be had from bishop or pope.[493] Custom was stubborn, moreover, and half a century later, when the judicial duel was going out of fashion, a bishop of Liége so vexed the burghers of Louvain, by repeated citations to the combat to settle disputed questions, that John III. Duke of Brabant was obliged to appeal to the Emperor Charles IV., who accordingly wrote to the bishops of Trèves, Cambrai, and Verdun desiring them to find some means of putting an end to the bellicose tendencies of their episcopal brother.[494]

These sporadic cases only show how difficult it was throughout the whole extent of Christendom to eradicate a custom so deeply rooted in ancestral modes of thought. By the middle of the thirteenth century the church had succeeded in virtually establishing the claim, for which it had long striven, that ecclesiastics were not subject to secular law in either civil or criminal matters. This exemption of course released them from liability to the duel and placed them exclusively under spiritual jurisdiction, in which the strongly marked papal aversion to the duel had full opportunity of making itself effective.[495]

Another phase of the relations between the church and the duel is to be seen in the extensive secular jurisdiction of its prelates in their capacity as temporal seigneurs. In this they were accustomed to award the duel as freely as any other form of legal procedure. To do this was not only one of the privileges which marked the feudal superior, but was also a source of revenue from the fees and penalties thence accruing, and these rights were as eagerly sought and as jealously guarded by the spiritual lords as by the warlike barons. It would scarce be necessary to multiply instances, but I may mention a charter granted by Fulk Nera, Count of Anjou, about the year 1010, bestowing these rights on the abbey of Beaulieu in Touraine,[496] and one by the Emperor Henry III., in 1052, to the bishop and church of Volterra in Italy.[497] The first authentic evidence of the existence of the battle trial in Scotland is a charter of Alexander I. in 1124 to the Abbey of Scone, in which he bestows on the abbot and monks the right to grant the duel and ordeal in their jurisdiction; and his brother, St. David I., conferred the same rights on the Abbey of Holyrood.[498] Some conscientious churchmen objected to a practice so antagonistic to all the teachings of the religion of which they were professors, and lifted up their voices to check the abuse. Thus, about the close of the eleventh century, we find the celebrated canonist, St. Ivo of Chartres, rebuking the Bishop of Orleans for ordering the combat to decide an important suit in his court.[499] Ivo even carried out his principles to the sacrifice of the jurisdiction usually so dear to the prelates of his day, for in another case he refused to give judgment because it necessarily involved a trial by battle, and he eluded the responsibility by transferring the cause to the court of the Countess of Chartres.[500] A century later Peter Cantor declared that as a priest he would in no case furnish relics on which the preliminary oaths were to be taken, for churchmen were prohibited from being concerned in bloodshed.[501] These precepts and examples were equally unavailing. Churchmen continued to award the wager of battle, and resolutely resisted any invasion of their privileges. In 1150 the statutes of the chapter of Lausanne direct that all duels shall be fought before the provost—and the provost was Arducius, Bishop of Geneva.[502] In 1201 we see the Abbot of St. Alban’s and the Abbot of Westminster pleading as to their rights over the manor of Aldenham, including that of the duel.[503] Even in the thirteenth century, in the archbishop’s court or officiality of Reims, the duel was a matter of course;[504] and a case is recorded, occurring in 1224, in a dispute about the ownership of a house, which was decided by a duel in the court of the abbey of St. Remy, where the abbot presided over the lists and they were guarded by the royal officials.[505] In 1239 the Bishop of Orleans contested with the king as to the right of the former to the jurisdiction of the duel in his diocese;[506] and in a judgment rendered in 1269, concerning a combat waged within the limits of the chapter of Nôtre Dame of Paris, we find that the first blows of the fight, usually known as ictus regis or les cous lou roi, are alluded to as ictus capituli.[507] How eagerly these rights were maintained is apparent from numerous decisions concerning contested cases. Thus, an agreement of 1193, between the Countess of St. Quentin and the chapter of Nôtre Dame, respecting the disputed jurisdiction of the town of Viry, gives the official of the chapter the right to decree duels, but places the lists under the supervision of both parties, and divides the spoils equally between each.[508] A charter of 1199, concerning the village of Marne, shows that the sergeant, or officer of the chapter, had the cognizance of causes up to the gaging of battle, after which further proceedings were reserved for the court of the bishop himself.[509] In 1219 the commune of Novara arrogated to itself the right of decreeing the duel, but the bishop resisted this invasion of his privileges, and on the matter being referred for arbitration to the Bishop of Turin he decided in favor of his episcopal brother. The Bishop of Modena had a long and expensive suit with his city on the same question, which ended in 1227 with a compromise by which he abandoned the right; the Bishops of Vercelli were more fortunate, for they maintained it until the beginning of the fourteenth century, when judicial duels were going out of fashion.[510] In 1257, while St. Louis was exerting himself with so much energy to restrict the custom, an abbey is found engaged in a suit with the crown to prove its rights to decree the duel, and to enjoy the fees and mulcts thence arising;[511] and in 1277 a similar suit on the part of the abbey of St. Vaast d’Arras was decided in its favor.[512] From a verdict given in 1293, the right of the chapter of Soissons to decree the judicial combat appears to be undoubted, as well as the earnestness of the worthy ecclesiastics to exercise the privilege.[513] Even more significant is a declaration of the authorities of Metz, as late as 1299, by which the granting of all wagers of battle is expressly admitted by the civil magistrates of the city to appertain to the court of the archbishop;[514] and even in 1311 a bishop of St. Brieuc ordered a duel between two squires pleading in his court, in consequence of high words between them. From some cause the combat did not take place, and the Christian prelate seized the arms and horses of the parties as his mulct. They appealed to the Parlement of Paris, which ordered the restoration of the confiscated articles, and fined the bishop for his disregard of the royal edicts prohibiting the single combat.[515] Not long before, Beaumanoir had definitely asserted that the church could not be concerned in cases which involved the judicial duel, or the infliction of death or mutilation;[516] but the church was not disposed to admit this limitation on its jurisdiction, and in spite of the attempted suppression of the wager of battle by the crown it continued in its multifarious capacity of seigneur to execute the cruel laws of the period with undiminished activity.[517]

In other lands, where the duel had not experienced as in France the hostility of the supreme power, prelates continued to decree it, regardless of the papal anathemas. It was to no purpose that canon lawyers proved that they thereby incurred mortal sin, and that if death ensued they became “irregular” and incompetent to perform divine service. To all this they turned a deaf ear, and John of Freiburg, towards the close of the thirteenth century, is reduced to wishing that preachers would expound these principles in the pulpit and make them understood by the people at large.[518]

* * * * *

There was one jurisdiction which held itself more carefully aloof from the prevailing influence of barbarism—that of the Admiralty Courts, which covered a large portion of practical mercantile law. This is a fact easily explicable, not only from the character of the parties and of the transactions for which those courts were erected, but from the direct descent of the maritime codes from the Roman law, less modified by transmission than any other portions of mediæval jurisprudence. These codes, though compiled at a period when the wager of battle flourished in full luxuriance, have no reference to it whatever, and the Assises de Jerusalem expressly allude to the Admiralty Courts as not admitting the judicial duel in proof,[519] while an English document of 12 Edward III. attests the same principle.[520] When, however, the case was one implying an accusation of theft or deception, as in denying the receipt of cargo, the matter entered into the province of criminal law, and the battle trial might be legitimately ordered.[521]

VI. REGULATIONS OF THE JUDICIAL COMBAT

The forms and ceremonies employed in the judicial duel may furnish an interesting subject of investigation for the admirers of chivalry, but they teach in their details little concerning the habits and modes of thought of the Middle Ages, and for the most part are therefore interesting only to the pure archæologist. Although minute directions have come down to us in the manuals compiled for the guidance of judges of the lists, to enumerate them in their varying fashions would hardly be worth the necessary space. Yet there are some details which are of interest as illustrating both the theory and practice of the duel in its legal aspect. Thus the general principle on which the combat was conducted was the absolute assertion by each party of the justice of his cause, confirmed by a solemn oath on the Gospels, or on a relic of approved sanctity, before the conflict commenced.[522] Defeat was thus not merely the loss of the suit, but was also a conviction of perjury, to be punished as such; and in criminal cases it was also a conviction of malicious prosecution on the part of a worsted appellant. That it was regarded as much more serious than the simple loss of a suit is shown by the provisions of the custom of Normandy, whereby a vanquished combatant was classed with perjurers, false witnesses, and other infamous persons, as incapable thenceforth of giving evidence in courts, or of serving on a jury.[523] Accordingly, we find the vanquished party, whether plaintiff or defendant, subjected to penalties more or less severe, varying with time and place.

This was a primeval custom, even in civil cases. In the ancient laws of the Alamanni, when there was controversy as to the ownership of land, the contestants brought to the court of the district some earth and branches of trees from the disputed property. These were wrapped and sealed and placed in the lists, where the combatants touched the bundle with their swords and called upon God to grant victory to the right; the land passed to the victor and the defeated party was fined twelve sous for having made an unjust claim.[524] The tendency, as civilization advanced, was to render the penalty more severe. Thus, in 819, Louis le Débonnaire decreed that, in cases where testimony was evenly balanced, one of the witnesses from each side should be chosen to fight it out, the defeated champion suffering the usual penalty of perjury—the loss of a hand; while the remaining witnesses on the losing side were allowed the privilege of redeeming their forfeited members at the regular legal rate.[525] William the Conqueror imposed a fine of forty sous on the losing side impartially;[526] this was increased to sixty sous by the compilation known as the laws of Henry I.;[527] and the same regulation is stated by Glanville, with the addition that the defeated person was forever disqualified as a witness or champion;[528] but in practice the amount seems to have been indefinite, for in the Pipe Rolls the fines levied for recreantise vary from one mark to a hundred.[529] In a case occurring in 1221 where the defendant was victorious the record simply states that the appellant was ordered into custody;[530] while in the time of Edward II. the loser, except in cases of felony, paid to the victor forty sous besides a small gratification under the name of ruaille, in addition to the loss of the suit.[531] By the Lombard customs, early in the eleventh century, the appellant, if vanquished, had the privilege of redeeming his hand; the defendant, if defeated, lost his hand, and was of course subject in addition to the penalties of the crime of which he was proved guilty.[532] About the same time the Béarnese legislation is more merciful, a fine of sixty-six sous Morlaas being imposed impartially on the losing party.[533] In process of time this system was abandoned in some countries. The English law of the thirteenth century admitted the justice of the lex talionis in principle, but did not put it in practice, a vanquished appellant in capital cases being merely imprisoned as a calumniator, while the defendant, if defeated, was executed and his property confiscated.[534] The same distinction is to be found in the contemporary custom of Normandy.[535] So, by the code in force in Verona in 1228, the Podestà in criminal cases had the power of ordering the duel, and of punishing at his pleasure the accuser if vanquished—the accused when convicted of course undergoing the penalty of his crime.[536] Towards the end of the thirteenth century, however, there were some sceptics in Italy who argued that conviction by the duel ought not to entail the same punishment as conviction by witnesses “quia pugna est incertum Dei judicium.” This struck directly at the root of the whole system, and Roffredo insists that the legal penalty is to be enforced.[537]

Mediæval legislation was not usually lenient to a worsted appellant. The application of the lex talionis to the man who brought a false charge, thus adjudging to him the penalty which was incurred by the defendant if convicted, was widely current during the Middle Ages. This principle is to be found enunciated in the broadest and most decided manner in the ecclesiastical law,[538] and it was naturally brought into play in regulating the fate of those engaged in the wager of battle. Thus Guillaume le Breton states that when Philip Augustus, in 1203, wrested Normandy from the feeble grasp of John Lackland, one of the few changes which he ventured to introduce in the local laws of the duchy was to substitute this rule of confiscation, mutilation, or death, according to the degree of criminality involved in the accusation, for the comparatively light pecuniary mulct and loss of legal status previously incurred by a worsted appellant.[539] The same system is followed throughout the legislation of St. Louis, whether the punishment be light or capital, of an equal responsibility on both parties.[540] In capital cases, when champions were employed, the principals were held in prison with the cord around them with which the defeated party was to be hanged; and if one were a woman, for the cord was substituted the spade wherewith she was to be buried alive.[541] The same principle of equal responsibility prevailed throughout the Frankish kingdoms of the East, where, in an appeal of murder, as we have seen, the appellant fought by means of one of his witnesses, and the defendant personally. In civil cases, in the Bourgeois Court, the party defeated, including the plaintiff, if his side was the loser, was forever debarred from giving testimony, and had no future standing in court; while in serious criminal cases, in both upper and lower courts, either side, when defeated, was hanged with the utmost impartiality;[542] and it finally established itself in England, where in the fourteenth century we find it positively declared as an imperative regulation by Thomas, Duke of Gloucester, in an elaborate treatise on the rules of single combat printed by Spelman.[543]

In Germany the custom was not uniform. In the Sachsenspiegel, and in one text of the Schwabenspiegel, the principle is laid down that a defeated appellant escaped with a fine to the judge and to his adversary, while the defendant, if vanquished, was visited with the punishment due to his crime, or even with a heavier penalty;[544] while the Saxon burgher law and another text of the Suabian code direct that whichever party be defeated should lose a hand, or be executed, according to the gravity of the crime alleged.[545] An exceptional case, moreover, was provided for, in which both antagonists might suffer the penalty; thus, when a convicted thief accused a receiver of stolen goods of having suggested the crime, the latter was bound to defend himself by the duel, and if defeated, both combatants were hanged without further ceremony.[546] That these penalties were not merely nominal is shown by a case which occurred at Frankfort in 1369, when the divine interference was requisite, not to determine the victor, but to evade the enforcement of the law. Two knights, Zierkin von Vola and Adolf Hanche, who had married two sisters, quarrelled over the inheritance of a deceased brother-in-law, and agreed to settle their difference by the duel. When the appointed day came, October 12, they entered the lists on their chargers, prepared to do battle to the death, while their pious wives were earnestly praying God to soften their hearts and incline them to peace. These prayers were heard. With a mutual impulse the two warriors leaped from their horses, throwing themselves into each other’s arms and exclaiming, “Brother, I confess myself vanquished.” The chief magistrate of the city, who presided over the combat, was not disposed to deprive the spectators of their promised entertainment, and indignantly declared that the law of the duel did not permit both antagonists to depart unhurt, for the one who yielded must be put to death; and he confirmed this sentence by a solemn oath that one or the other should die before he would taste food. Then an affecting contest arose between the late antagonists, each one proclaiming himself the vanquished and demanding the penalty on his own head, when suddenly divine vengeance visited the bloody and remorseless judge, who fell dead, thus fulfilling his impious vow that he would not eat until he had a victim.[547]

It was probably as an impressive symbol of the penalties affixed by law to defeat in these combats that in some places the suggestive custom was in force of placing in the lists two biers in readiness for their ghastly occupants. In a duel which occurred at Augsburg in 1409, between two men named Marschalck and Hachsenacker, the former threw his adversary on the ground, and then asked him what he would have done had he been the victor. Hachsenacker grimly replied that he would have slain his foe, whereupon Marschalck despatched him, and placing himself in his bier caused himself to be carried to the church of St. Ulric, where he returned thanks for his victory.[548]

The most hideous exaggeration of the system, however, was found in the Frankish kingdoms of the East, which reserved a special atrocity for women—one of the numerous instances to be observed in mediæval law of the injustice applied habitually to the weaker sex. When a woman appeared, either as appellant or defendant, in the lists by her champion, if he was defeated she was promptly burnt, no matter what was the crime for which the duel occurred—and as many accusations could only be determined by the wager of battle, she had no choice but to undergo the chance of the most dreadful of deaths.[549]

It was not customary to order the combat to take place immediately, but to allow a certain interval for the parties to put their affairs in order and to undergo the necessary training. In Southern Germany this delay was for nobles from four to six weeks, and for others a fortnight, and during this period any assault by one on the other was a capital offence.[550] They were required to give security for their due appearance at the appointed time, various fines and punishments being inflicted on defaulters. By the law of both Northern and Southern Germany, when default was made by the defendant he was held guilty of the crime charged upon him: and if he was allowed the privilege of redeeming hand or life either as defendant or appellant, he was declared infamous, and deprived of the protection of the law. According to some MSS., indeed, all the possessions of a defaulter were forfeited, either to his heirs or to his feudal superior.[551] In a case occurring in the twelfth century in Hainault, between a seigneur and a man whom he claimed as a serf, the latter demanded the duel, which was allowed, but on the appointed day he failed to appear by nine o’clock. His adversary had waited for him since daybreak, and claimed the verdict which was awarded him by the council of Hainault. At this moment the missing man presented himself, but was adjudged to be too late, and was delivered to his claimant as a serf. According to the custom of Flanders, indeed, the combatant who failed to appear suffered banishment, with confiscation of all his possessions.[552] This extreme rigor, however, did not obtain universally. Among the Béarnese, for instance, the forfeiture for a default was only sixteen sous Morlaas.[553] By the English law, the defaulter was declared infamous, and was also liable to a fine to the king, for which there was apparently no fixed amount.[554] The Scandinavians punished him popularly by erecting a “nithstong”—pertica execrationis—a post inscribed with defamatory runes, and so flagrant was this insult considered, that finally it was prohibited by law under pain of exile.[555] Perhaps the most emphatic assertion, however, of the obligation to appear is the rule in the law of the Scottish Marches in 1249, that if the accused should die before the appointed day his body must be brought to the lists, “for no man can essoin himself by death.”[556]

The bail, of course, was liable for all legal penalties incurred by a defaulter, and occasionally, indeed, was made to share the fate of his principal, when the latter appeared and was defeated. In the law of Southern Germany, according to one text, the bail under these circumstances was liable to the loss of a hand, which, however, he could redeem, while another version makes him suffer the penalty incurred by his principal.[557] This latter rule is announced in a miracle play of the fourteenth century, where a stranger knight at the court of Paris, compelled to fight in defence of the honor of the king’s daughter, is unable to find security. The queen and princess offer themselves as hostages and are accepted, but the king warns them—

Dame, par Dieu le roy celestre! Bien vous recevray pour hostage; Mais de tant vous fas-je bien sage, Se le dessus en peut avoir Ardré, je vous feray ardoir. Et mettre en cendre.[558]

Poverty on the part of one of the combatants, rendering him unable to equip himself properly for the combat, was not allowed to interfere with the course of justice. In such cases, under the law of Northern Germany, the judge was required to provide him with the requisite weapons.[559] In England, where the royal jurisdiction embraced all criminal cases, the king furnished the weapons and paid all expenses, and when the combatant was an “approver,” or criminal who had turned state’s evidence, he was supported until his duty was accomplished of fighting all whom he accused as accomplices. Thus in the accounts of the sheriff of Lincolnshire for 1190, there is an entry of 15_s._ 10_d._ for the approver Adam Godechap from Pask until Michaelmas at one penny per diem; also 6_s._ for his armor in three duels, and 38_s._ 6_d._ for carts to convey prisoners, sureties, and probators from Lincoln to London and elsewhere.[560] The crown likewise paid the expenses of administering the other ordeals: in 1166 a single entry in the Exchequer accounts shows payment for thirty-four ordeals and five battles.[561]

As regards the choice of weapons, much curious anecdote could be gathered from the pages of Brantôme and others learned in punctilio, without throwing additional light upon mediæval customs. It may be briefly observed, however, that when champions were employed on both sides, the law appears generally to have restricted them to the club and buckler, and to have prescribed perfect equality between the combatants.[562] An ordonnance of Philip Augustus, in 1215, directs that the club shall not exceed three feet in length.[563] In England the club or battoon was rendered more efficient with a “crook,” usually of horn, but sometimes of iron, giving to the weapon the truly formidable aspect of a pickaxe or tomahawk.[564] When the principals appeared personally, it would seem that in early times the appellant had the choice of weapons, which not only gave him an enormous advantage, but enabled him to indulge any whims which his taste or fancy might suggest, as in the case of a Gascon knight in the thirteenth century, who stipulated that each combatant should be crowned with a wreath of roses. As every detail of equipment was thus subject to the caprice of the challenger, those who were wealthy sometimes forced their poorer adversaries to lavish immense sums on horses and armor.[565] When, however, the spirit of legislation became hostile to the wager of battle, this advantage was taken from the appellant. Frederic II. appears to have been the first to promulgate this rational idea, and, in decreeing that in future the choice of arms shall rest with the defendant, he stigmatizes the previous custom as utterly iniquitous and unreasonable.[566] In this, as in so many other matters, he was in advance of his age, and the general rule was that neither antagonist should have any advantage over the other, except the fearful inequality, to which allusion has already been made, when a roturier dared to challenge a gentleman.[567] In the law of Northern Germany care was taken that the advantage of the sun was equally divided between the combatants; they fought on foot, with bare heads and feet, clad in tunics with sleeves reaching only to the elbow, simple gloves, and no defensive armor except a wooden target covered with hide, and bearing only an iron boss; each carried a drawn sword, but either might have as many more as he pleased in his belt.[568] Even when nobles were concerned, who fought on horseback, it was the rule that they should have no defensive armor save a leather-covered wooden shield and a glove to cover the thumb; the weapons allowed were lance, sword, and dagger, and they fought bare-headed and clad in linen tunics.[569] According to Upton, in the fifteenth century, the judges were bound to see that the arms were equal, but he admits that on many points there were no settled or definite rules.[570] In Wales, an extraordinary custom violated all the principles of equality. Under the Welsh law, twins were considered as one person, and as they were entitled to but one share in the patrimony of the family, so they were allowed to come into the field of combat as one man.[571] In Russia, each combatant followed his own pleasure; and a traveller in the sixteenth century relates that the Muscovites were in the habit of embarrassing themselves with defensive armor to an extent which rendered them almost helpless, so that in combats with Poles, Lithuanians, and Germans they were habitually worsted, until judicial duels between natives and foreigners were at length prohibited on this account.[572]

As a general rule the combat ended at sunset or when the stars became visible, and in such case if it was a drawn battle the case was decided in favor of the defendant, because the prosecutor had not proved his charge. Yet a charter of 961 recites that two gentlemen, Bernard and Gerbert, appeared before Count Raymond, each claiming the church of St. Médard and its appurtenances, which had been bequeathed by the late owner Ricaud, for the repose of his soul, to the Abbey of St. Peter of Beaulieu. The count granted them the trial by battle. At two o’clock their champions entered the lists and fought without result until sunset. Then the count declared the battle ended and adjudged the church to the abbey; the contestants acquiesced and signed the charter confirming its rights.[573] In Italy, however, the duel was fought to an end; if stopped by darkness the judge was instructed to note carefully the respective positions of the combatants and replace them exactly the next morning, so that neither might derive advantage from the adjournment.[574]

The issue at stake being death or dishonor, with severe penalties hanging over the vanquished, whether principal or champion, no chivalric courtesy was to be expected in these combats. They were fought to the bitter end with persistent and brutal ferocity, resembling the desperate encounters of wild beasts. A fairly illustrative example is furnished in an incident which followed the assassination of Charles the Good of Flanders in 1127. One of the accomplices, a knight named Guy, was challenged for complicity by another named Herman. Both were renowned warriors, but Herman was speedily unhorsed by his adversary, who with his lance frustrated all his attempts to remount. Then Herman disabled the horse of his opponent and the combat was renewed on foot with swords. Equally skilful in fence they continued the struggle till fatigue compelled them to drop sword and shield and they wrestled for the mastery. Guy threw his antagonist, fell on him and beat him in the face with his gauntlets till he seemed to be motionless, but Herman quietly slipped his hand below the other’s coat of mail, grasped his testicles and with a mighty effort wrenched them away. Guy fell over and expired; he we adjudged guilty and his body, after exposure in the pillory, was hung on the top of a mast along with that of the leader of the conspiracy who had been executed the same day, the two corpses being made to embrace each other, as though conferring about the plot.[575] Ghastly details such as these serve to emphasize the difference between the judicial combat and the modern duel.

VII. CHAMPIONS

Allusions have occurred above to the employment of champions, a peculiarity of these combats which received an application sufficiently extended to deserve some special notice.[576] It has been seen that those unable to wield the sword or club were not therefore exempted from the duel, and even the scantiest measure of justice would require that they should have the right to delegate their vindication to some more competent vehicle of the Divine decision. This would seem originally to have been the office of some member of the family, as in the cognate procedure of sacramental purgation. Among the Alamanni, for instance, a woman when accused could be defended by a kinsman cum tracta spata;[577] the same rule is prescribed by the Lombard law,[578] and by that of the Angli and Werini;[579] while the universal principle of family unity renders the presumption fair that it prevailed throughout the other races in whose codes it is not specifically indicated. Restricted to cases of disability, the use of champions was a necessity to the battle ordeal; but at a very early period the practice received a remarkable extension, which was directly in conflict with the original principles of the judicial duel, in permitting able-bodied antagonists to put forward substitutes, whether connected with them or not by ties of blood, who fought the battle for their principals. With regard to this there appears to have been a considerable diversity of practice among the races of primitive barbarians. The earliest Frisian laws not only grant unlimited permission for their employment, but even allow them to be hired for money.[580] The laws of the Franks, of the Alamanni, and of the Saxons make no allusion to such a privilege, and apparently expect the principal to defend his rights himself, and yet an instance occurs in 590, where, in a duel fought by order of Gontran, the defendant was allowed to intrust his cause to his nephew, though, as he was accused of killing a stag in the king’s forest, physical infirmity could hardly have been pleaded.[581] From some expressions made use of by St. Agobard, in his onslaught on the ordeal of battle, we may fairly presume that, under Louis le Débonnaire, the employment of champions, in the Burgundian law, was, if not forbidden, at least unusual as respects the defendant, even in cases where age or debility unfitted him for the combat, while it was allowed as a matter of course to the appellant.[582] On the other hand, the Baioarian law, which favored the duel more than any of the other cognate codes, alludes to the employment of champions in every reference to it, and with the Lombards the judicial combat and the champion seem to have been likewise convertible terms even with regard to defendants.[583] In a charter of the latter half of the tenth century in France, recording a judicial duel to decide a contest concerning property, the judge, in ordering the combat, calls upon the antagonists to produce skilled champions to defend their claims at the time and place indicated, which would show that the principals were not expected to appear personally.[584] Under the North German law it rested with the appellant to demand the duel either with or without champions. If the defendant were crippled, and was on that account obliged to appear by a hired champion, then the appellant could put forward another to meet him. A defendant, moreover, who had suffered a previous conviction for theft or rapine was always obliged to appear personally. When the duel was decreed by the court, and not demanded by the appellant, then the accused could decline it if he could prove that the prosecutor had hired a champion.[585] The practical spirit of the Italians led to the universal substitution of champions for the principals; they were selected by the magistrates and were paid by the state when the parties were too poor to bear the expense.[586]

In all these provisions for the putting forward of substitutes in the duel there is something so repugnant to the fierce and self-relying spirit in which the wager of battle found its origin, and the use of a professional gladiator is so inconsistent with the pious reference to the judgment of God, which was the ostensible excuse for the duel, that some external reason is required to account for its introduction. This reason is doubtless to be found in the liberty allowed of challenging witnesses, to which allusion has already been made (p. 121). The prevalence of this throughout Western Europe readily enabled parties, unwilling themselves to encounter the risks of a mortal struggle, to put forward some truculent bravo who swore unscrupulously, and whose evidence would require him to be forced out of court at the sword’s point.

This becomes very evident as early as we have detailed regulations of procedure in the books of the twelfth and thirteenth centuries. In England, for instance, until the first statute of Westminster, issued by Edward I., in 1275, the hired champion of the defendant, in a suit concerning real estate, was obliged to assume the position of a witness, by swearing that he had been personally present and had seen seizin given of the land, or that his father when dying had enjoined him by his filial duty to maintain the defendant’s title as though he had been present.[587] This legal fiction was common also to the Norman jurisprudence of the period, where in such cases the champion of the plaintiff was obliged to swear that he had heard and seen the matters alleged in support of the claim, while the opposing champion swore that they were false.[588] In a similar spirit, an earlier code of Normandy prescribes that champions shall be taken to see the lands and buildings in dispute, before receiving the oath of battle, in the same manner as a jury of view.[589] We have seen that in the Assises d’Antioche it was requisite for a prosecutor or a plaintiff to have a witness who was ready to offer battle, in default of which the unsupported oath of the other party was sufficient to secure a verdict.[590] It necessarily follows that this witness must in most cases have been a hired champion, and this connection between the two functions is further shown in the regulation of the Assises de Jerusalem and of the Sicilian constitutions, which directed that the champion should swear on the field of battle as to his belief in the justice of the quarrel which he was about to defend,[591] a practice which is also found in the Scottish law of the thirteenth century.[592] An English legal treatise of the period, indeed, assumes that the principals can put forward only witnesses as substitutes, and gives as a reason why combats in civil suits were always conducted by champions, that in such cases the principals could not act as witnesses for themselves.[593] In a similar spirit, if on the field of battle one of the parties presented a champion who was not receivable as a witness and had not been accepted by the court, the case could be decided against him by default.[594]

Looking on the profession of a champion in this light, as that of a witness swearing for hire, we can find a justification for the heavy penalties to which he was subjected in case of defeat—penalties of which the real purport presumably was to insure his fidelity to his principal. Thus, in the Norman coutumier above referred to, in civil suits as to disputed landed possessions, the champion swearing to the truth of his principal’s claim was, if defeated, visited with a heavy fine and was declared infamous, being thenceforth incapable of appearing in court either as plaintiff or as witness, while the penalty of the principal was merely the loss of the property in dispute;[595] and a similar principle was recognized in the English law of the period.[596] In criminal cases, from a very early period, while the principal perhaps escaped with fine or imprisonment, the hired ruffian was hanged, or at best lost a hand or foot, the immemorial punishment for perjury;[597] while the laws of the Kingdom of Jerusalem prescribe that in combats between champions, the defeated one shall be promptly hanged, whether dead or alive.[598] The Assises d’Antioche are somewhat more reasonable, for they provide merely that the vanquished champion and his principal shall suffer the same penalty, whether simply a forfeiture of civil rights in civil cases, or hanging as in accusations of homicide or other serious crime.[599] That, in the later periods, at least, the object of this severity was to prevent the champion from betraying his employer’s cause was freely admitted. Beaumanoir thus defends it on the ground of the liability of champions to be bought over by the adverse party, which rendered the gentle stimulus of prospective mutilation necessary to prevent them from being purchased by the adversary;[600] and it is probably owing to this that the full severity of the punishment is shown to be still in existence by a charter of so late a date as 1372, when the use of the judicial duel had fully entered on its decline.[601] In the same spirit, the Emperor Frederic II. prohibited champions from bargaining with each other not to use teeth and hands. He commanded them to inflict all the injury possible on their adversaries, and decreed that they should, in case of defeat, share the punishment incurred by the principal, if the judge of the combat should consider that through cowardice or treachery they had not conducted the duel with proper energy and perseverance.[602]

With such risks to be encountered, it is no wonder that the trade of the champion offered few attractions to honest men, who could keep body and soul together in any other way. In primitive times, the solidarity of the family no doubt caused the champion in most cases to be drawn from among the kindred; at a later period he might generally be procured from among the freedmen or clients of the principal, and an expression in the Lombard law justifies the assumption that this was habitual, among that race at least.[603] In the palmy days of chivalry, it was perhaps not uncommon for the generous knight to throw himself bodily into the lists in defence of persecuted and friendless innocence, as he was bound to do by the tenor of his oath of knighthood.[604] Even as late as the fifteenth century, indeed, in a collection of Welsh laws, among the modes by which a stranger acquired the rights of kindred is enumerated the act of voluntarily undergoing the duel in the place of a principal unable or unwilling to appear for himself.[605] A vast proportion of pleaders, however, would necessarily be destitute of these chances to avoid the personal appearance in the arena for which they might be unfitted or disinclined, and thus there arose the regular profession of the paid gladiator. Reckless desperadoes, skilled at quarter-staff, or those whose familiarity with sword and dagger, gained by a life spent in ceaseless brawls, gave them confidence in their own ability, might undertake it as an occupation which exposed them to little risk beyond what they habitually incurred, and of such was the profession generally composed. This evil must have made itself apparent early, for we find Charlemagne endeavoring to oppose it by decreeing that no robber should be allowed to appear in the lists as a champion, and the order needed to be frequently repeated.[606]

When the Roman law commenced to exercise its powerful influence in moulding the feudal customs into a regular body of procedure, and admiring jurists lost no opportunity of making use of the newly-discovered treasures of legal lore, whether applicable or not, it is easy to understand that the contempt and the civil disabilities lavished by the Imperial jurisprudence on the gladiator of antiquity came to be transferred to the mediæval champion; although the latter, by the theory of the law, stood forth to defend the innocent, while the former ignobly exposed his life for the gratification of an imbruted populace. This legacy of shame is clearly traceable in Pierre de Fontaines. To be a gladiator or an actor was, by the Roman law, a competent cause for disinheritance.[607] One of the texts prescribing it is translated bodily by de Fontaines, the arenarius of the Roman becoming the champions of the Frenchman;[608] and in another similar transcription from the Digest, the athleta of the original is transformed into a “champion.”[609] By the thirteenth century, the occupation of champion had thus become infamous. Its professors were classed with the vilest criminals, and with the unhappy females who exposed their charms for sale, as the champion did his skill and courage.[610] They were held incapable of appearing as witnesses, and the extraordinary anomaly was exhibited of seeking to learn the truth in affairs of the highest moment by a solemn appeal to God, through the instrumentality of those who were already considered as convicts of the worst kind, or who, by the very act, were branded with infamy if successful in justifying innocence, and if defeated were mutilated or hanged.[611] By the codes in force throughout Germany in the thirteenth and fourteenth centuries, they were not only, in common with bastards, actors, and jugglers, deprived of all legal privileges, such as succeeding to property, bearing witness, etc., but even their children were visited with the same disabilities.[612] The utter contempt in which they were held was moreover quaintly symbolized in the same codes by the provisions of a tariff of damages to be assessed for blows and other personal injuries. A graduated list of fines is given for such insults offered to nobles, merchants, peasants, etc., in compensation of their wounded honor; below the serf come the mountebank and juggler, who could only cuff the assailant’s shadow projected on the wall; and last of all are rated the champion and his children, whose only redress was a glance of sunshine cast upon them by the offender from a duelling shield. Deemed by law incapable of receiving an insult, the satisfaction awarded was as illusory as the honor to be repaired.[613] That this poetical justice was long in vogue is proved by the commentary upon it in the Richstich Landrecht, of which the date is shown to be not earlier than the close of the fourteenth century, by an allusion in the same chapter to accidental deaths arising from the use of firearms.[614]

The Italians, however, took a more sensible and practical view of the matter. Accepting as a necessity the existence of champions as a class, they were disposed rather to elevate than to degrade the profession. The law required that they should not be criminals or infamous, and the fact that they fought for hire did not render them so.[615] In the Veronese code of 1228, they appear as an established institution, consisting of individuals selected and appointed by the magistrates, who did not allow them to receive more than one hundred sous for the performance of their office.[616]

It is evident that the evils attendant upon the employment of champions were generally recognized, and it is not singular that efforts were occasionally made to abrogate or limit the practice. Otho II., whose laws did so much to give respectability to the duel, decreed that champions should be permitted only to counts, ecclesiastics, women, boys, old men, and cripples.[617] That this rule was strictly enforced in some places we may infer from the pleadings of a case occurring in 1010 before the Bishop of Arezzo, concerning a disputed property, wherein a crippled right hand is alleged as the reason for allowing a champion to one of the parties.[618] In other parts of Italy, however, the regulation must have been speedily disregarded, for about the same period Henry II. found it necessary to promulgate a law forbidding the employment of substitutes to able-bodied defendants in cases of parricide or of aggravated murder;[619] and when, two hundred years later, Frederic II. almost abolished the judicial combat in his Neapolitan dominions, we may fairly presume from one of his remarks that champions were universally employed.[620] Indeed, he made provision for supplying them at the public expense to widows, orphans, and paupers who might be unable to secure for themselves such assistance.[621] In Germany, early in the eleventh century, it would seem that champions were a matter of course, from the expressions made use of in describing the execution of a number of robbers convicted in this manner at Merseburg in 1017.[622] At a later period, it seems probable, from a comparison of two chapters of the Suabian laws, that efforts were made to prevent the hiring of professional gladiators,[623] and in the Saxon burgher laws a man could refuse the duel if he could prove that his antagonist was a champion serving for pay.[624] That these efforts to restrict the practice, however, were attended with little success may be inferred from the disabilities which were so copiously showered on the class by the same laws.

In England, where, as we have seen, the identity of champions and witnesses was clearly asserted, there were prolonged efforts to suppress their hiring. In 1150, Henry II. strictly prohibited the wager of battle with hired champions in his Norman territories;[625] although the Norman custom not only admitted them but required the principal to pay the full sum agreed upon to his champion whether defeated or not.[626] We learn from Glanville that a champion suspected of serving for money might be objected to by the opposite party, whence arose a secondary combat to determine his fitness for the primary one.[627] Bracton, moreover, develops this by asserting as a rule that a witness suspected of being a hired champion was not allowed to proceed to the combat, but was tried for the attempt by a jury, and if convicted suffered the penalty of perjury in the loss of a hand or a foot,[628] and in another passage he states that hired champions were not permitted.[629] How far these rules were enforced it would now be difficult to determine. Records show that a frequent defence against an adverse witness was an offer to prove that he was a hired champion.[630] On the other hand, the payment of champions was frequent and no concealment seems to have been thought necessary concerning it. Towards the close of the twelfth century, by a charter Stephen de Nerbana grants two virgata of land to William son of Ralph “propter duellum quod fecit pro me.”[631] In another charter of Bracton’s date John “quondam porcarius de Coldingham” grants to the Priory of Coldingham a tract of land which he had received from Adam de Riston in payment for victoriously fighting a duel for him.[632] Even more significant are the formal agreements with champions, such as that by which in 1276 Bishop Swinefeld declares to all men that he has appointed Thomas of Brydges his champion, on a salary of 6s. 8d. per annum, so long as he shall be able to fight, with extra compensation in case he is called upon to perform his functions.[633] Eventually, as we have seen (p. 183), in civil cases, both parties were compelled by law to employ champions, which presupposes, as a matter of course, that in a great majority of instances the substitutes must have been hired.[634] In criminal cases there seems to have been a compromise; in felonies, the defendant was obliged to appear personally, while in accusations of less moment he was at liberty to put forward a witness as champion;[635] and when the appellant, from sex or other disability, or the defendant from age, was unable to undergo the combat personally, it was forbidden, and the case was decided by a jury.[636] By the Scottish law of the thirteenth century, it is evident that champions were not allowed in any case, since those disabled by age or wounds were forced to undergo the ordeal in order to escape the duel.[637] This strictness became relaxed in time, though the practice of employing champions seems never to have received much encouragement. By a law of Alexander II., about the year 1250, it appears that a noble had the privilege of putting forward a substitute; but if a peasant challenged a noble, he was obliged to appear personally, unless his lord undertook the quarrel for him and presented the champion as from himself.[638]

The tendency exhibited by the English law in distinguishing between civil and criminal cases is also manifested elsewhere. Thus, in France and the Frankish kingdoms of the East, there were limitations placed by law on the employment of champions in prosecutions for crime,[639] while in civil actions there appear to have been, at least in France, no restrictions whatever.[640] This distinction between civil and criminal practice is very clearly enunciated by Pierre de Fontaines, who states that in appeal of judgment the appellant in criminal cases is bound to show satisfactory cause for employing a champion, while in civil affairs the right to do so requires no argument.[641] In practice, however, it is doubtful whether there was any effectual bar to their use in any case, for the Monk of St. Denis, in praising St. Louis for suppressing the battle-trial, gives as one of the benefits of its abrogation, the removal of the abuse by which a rich man could buy all the champions of the vicinity, so that a poorer antagonist had no resource to avoid the loss of life or heritage.[642] This hiring of champions, moreover, was legally recognized as a necessity attendant upon the privilege of employing them.[643] High rank, or a marked difference between the station of parties to an action, was also admitted as justifying the superior in putting forward a champion in his place.[644] Local variations, however, are observable in the customs regulating these matters. Thus the municipal laws of Reims, in the fourteenth century, not only restrict the admission of champions in criminal matters to cases in which age or physical disability may incapacitate the principals from personally taking part in the combat, but also require the accused to swear that the impediment has supervened since the date of the alleged offence; and even this was of no avail if the prosecutor had included in his appeal of battle an assertion that such disability had existed at the time specified.[645] Witnesses obliged to support their testimony by the duel were not only subject to the same restrictions, but in substituting a hired gladiator were obliged to swear that they had vainly sought among their friends for some one to assume the office voluntarily.[646] The whole tenor of these provisions, indeed, manifests a decided intention to surround the employment of champions with every practicable impediment. In Béarn, again, the appellant in cases of treason had a right to decide whether the defendant should be allowed to put forward a substitute, and from the expressions in the text it may be inferred that in the selection of champions there was an endeavor to secure equality of age, size, and strength.[647] This equalization of chances was thoroughly carried out in Italy, where the law required them to be selected with that view.[648] Thus in the Veronese code of 1228, where, as has been seen, the champions were a recognized body, regulated and controlled by the state, no one could engage a champion before a duel had been judicially decreed. Then the magistrate was bound to choose gladiators of equal prowess, and the choice between them was given to the defendant; an arrangement which rendered the mutilation inflicted on the vanquished combatant only justifiable on the score of suspected treachery.[649] A Bolognese regulation of the thirteenth century was even fairer, and reduced the combat to an affair of chance in which the judgment of God had the fullest scope, for when the champions were in the lists a child placed inside of the garments of each a card bearing the name of his principal, and until the combat was ended no one knew which of them represented the plaintiff and which the defendant.[650] In Bigorre, the only restriction seems to have been that champions should be natives and not foreigners, and their payment was recognized as a matter of course.[651] By the Spanish law of the thirteenth century, the employment of champions was so restricted as to show an evident desire on the part of the legislator to discourage it as far as possible. The defendant had the right to send a substitute into the field, but the appellant could do so only by consent of his adversary. The champion was required to be of birth equal to his principal, which rendered the hiring of champions almost impossible, and not superior to him in force and vigor. Women and minors appeared by their next of kin, and ecclesiastics by their advocates.[652] In Russia, until the sixteenth century, champions were never employed, contestants being always obliged to appear in person. In 1550, the code known as the Sudebtnick at length permitted the employment of champions in certain cases.[653]

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There were two classes of pleaders, however, with whom the hiring of champions was a necessity, and who could not be bound by the limitations imposed on ordinary litigants. While the sexagenary, the infant, and the crippled might possibly find a representative among their kindred, and while the woman might appear by her husband or next of kin, the ecclesiastical foundations and chartered towns had no such resource. Thus, in a suit for taxes, in 1164, before the court of Verona, Bonuszeno of Soavo proved that the village of Soavo had exempted his father Petrobatalla from all local imposts for having served as champion in a duel between it and a neighboring community, and his claim to the reversion of the exemption was allowed.[654] So a charter of 1104 relates how the monks of Noailles were harassed by the seizure of some mills belonging to their abbey, claimed by an official of William Duke of Aquitaine, until at length the duke agreed to allow the matter to be decided by the duel, when the champion of the church was victorious and the disputed property was confirmed to the abbey.[655] At length the frequent necessity for this species of service led to the employment of regularly appointed champions, who fought the battles of their principals for an annual stipend, or for some other advantages bestowed in payment. Du Cange, for instance, gives the text of an agreement by which one Geoffry Blondel, in 1256, bound himself to the town of Beauvais as its champion for a yearly salary of twenty sous Parisis, with extra gratifications of ten livres Tournois every time that he appeared in arms to defend its cause, fifty livres if blows were exchanged, and a hundred livres if the combat were carried to a triumphant issue. It is a little singular that Beaumanoir, in digesting the customs of Beauvais but a few years later, speaks of this practice as an ancient and obsolete one, of which he had only heard through tradition.[656] That it continued to be in vogue until long after, is shown by Monteil, who alludes to several documents of the kind, bearing date as late as the fifteenth century.[657]

As a rule, ecclesiastical communities were likewise under the necessity of employing champions to defend their rights. Sometimes, as we have seen, these were hired, and were of no better character than those of common pleaders. They seem to have been well paid if we may judge from an agreement of 1258 between the Abbey of Glastonbury and Henry de Fernbureg, by which the latter bound himself to defend by battle the rights of the abbey to certain manors against the Bishop of Bath and Wells, for which he is to receive thirty sterling marks, of which ten are to be paid when battle is gaged, five when he is shaved for the combat, and on the day of the duel fifteen are to be placed in the hands of a third party to be paid over to him if he strikes a single blow.[658] Sometimes, however, gentlemen did not disdain to serve God by fighting for the Church in special cases, as when, so late as the middle of the fourteenth century, the priory of Tynemouth had a suit with a troublesome neighbor, Gerard de Widdrington, over the manor of Hawkshaw, and Sir Thomas Colville, who had won great renown in the French wars, appeared in court as its champion and offered the combat. No one could be found hardy enough to accept his challenge and the manor was adjudged to the priory.[659] There was, moreover, another class of champions of the Church who occupied a distinguished position, and were bound to defend the interests of their clients in the field as well as in the court and in the lists; they also led the armed retainers of the church when summoned by the suzerain to national war. The office was honorable and lucrative, and was eagerly sought by gentlemen of station, who turned to account the opportunities of aggrandizement which it afforded; and many a noble family traced its prosperity to the increase of ancestral property thus obtained, directly or indirectly, by espousing the cause of fat abbeys and wealthy bishoprics, as when, in the ninth century, the Abbot of Figeac, near Cahors, bestowed on a neighboring lord sixty churches and five hundred mansi on condition of his fighting the battles of the abbey.[660] The influence of feudalism early made itself felt, and the office of Vidame or Avoué became generally hereditary, after which its possessors, for the most part, rendered themselves independent of their benefactors, their exactions and spoliations becoming a favorite theme of objurgation among churchmen, who regarded them as the worst enemies of the foundations which they had sworn to protect.[661] In many instances the position was a consideration obtained for donations bestowed upon churches, so that in some countries, and particularly in England, the title of advocatus became gradually recognized as synonymous with patron. Thus, one of the worst abuses of the Anglican Church is derived from this source, and the forgotten wrongs of the Middle Ages are perpetuated, etymologically at least, in the advowson which renders the cure of souls too often a matter of bargain and sale.

VIII. DECLINE OF THE JUDICIAL COMBAT

So many influences were at work in favor of the judicial duel, and it was so thoroughly engrafted in the convictions and prejudices of Europe, that centuries were requisite for its extirpation. Curiously enough, the earliest decisive action against it took place in Iceland, where it was formally interdicted as a judicial proceeding in 1011;[662] and though the assumption that this was owing to the introduction of Christianity has been disproved, still, the fact that both events were contemporaneous allows us to conclude that some influence may have been exercised by even so imperfect a religion as that taught to the new converts, though the immediate cause was a holm-gang between two skalds of distinction, Gunnlaug Ormstunga and Skald-Rafn.[663] Norway was not long in following the example, for about the same period the Jarls Erik and Sven Hakonsen abolished the holm-gang, while paganism was as yet widely prevalent.[664] Denmark was almost equally prompt: indeed Saxo Grammaticus in one passage attributes to it the priority, asserting that when Poppo, in 965, converted Harold Blaatand by the ordeal of red-hot iron, it produced so powerful an effect as to induce the substitution of that mode of trial for the previously existing wager of battle.[665] Yet it evidently was not abolished for a century later, for when Harold the Simple, son of Sven Estrith, ascended the throne in 1074, among the legal innovations which he introduced was the substitution of the purgatorial oath for all other forms of defence, which, as Saxo specifically states, put an end to the wager of battle, and opened the door to great abuses.[666]

Fiercer tribes than these in Europe there were none, and their abrogation of the battle trial at this early age is an inexplicable anomaly. It was an exceptional movement, however, without results beyond their own narrow boundaries. Other causes had to work slowly and painfully for ages before man could throw off the bonds of ancestral prejudice. One of the most powerful of these causes was the gradual rise of the Tiers-État to consideration and importance. The sturdy bourgeois, though ready enough with morion and pike to defend their privileges, were usually addicted to a more peaceful mode of settling private quarrels. Devoted to the arts of peace, seeing their interest in the pursuits of industry and commerce, enjoying the advantage of settled and permanent tribunals, and exposed to all the humanizing and civilizing influences of close association in communities, they speedily acquired ideas of progress very different from those of the savage feudal nobles living isolated in their fastnesses, or of the wretched serfs who crouched for protection around the castles of their masters. Accordingly, the desire to escape from the necessity of purgation by battle is almost coeval with the founding of the first communes. The earliest instance of this tendency that I have met with is contained in the charter granted to Pisa by the Emperor Henry IV. in 1081, by which he agrees that any accusations which he may bring against citizens can be tried without battle by the oaths of twelve compurgators, except when the penalties of death or mutilation are involved; and in questions concerning land, the duel is forbidden when competent testimony can be procured.[667] Limited as these concessions may seem, they were an immense innovation on the prejudices of the age, and are important as affording the earliest indication of the direction which the new civilization was assuming. More comprehensive was the privilege granted soon afterwards by Henry I. to the citizens of London, by which he released them wholly from the duel, and this was followed by similar exemptions during the twelfth century bestowed on one town after another; but it was not till near the end of the century that in Scotland William the Lion granted the first charter of this kind to Inverness.[668] About the year 1105, the citizens of Amiens received a charter from their bishop, St. Godfrey, in which the duel is subjected to some restriction—not enough in itself, perhaps, to effect much reform, yet clearly showing the tendency which existed. According to the terms of this charter no duel could be decreed concerning any agreement entered into before two or three magistrates if they could bear witness to its terms.[669] One of the earliest instances of absolute freedom from the judicial combat occurs in a charter granted to the town of Ypres, in 1116 by Baldwin VII. of Flanders, when he substituted the oath with four conjurators in all cases where the duel or the ordeal was previously in use.[670] This was followed by a similar grant to the inhabitants of Bari by Roger, King of Naples, in 1132.[671] Curiously enough, almost contemporary with this is a similar exemption bestowed on the rude mountaineers of the Pyrenees. Centulla I. of Bigorre, who died in 1138, in the Privileges of Lourdes, authorizes the inhabitants to prosecute their claims without the duel;[672] and his desire to discourage the custom is further shown by a clause permitting the pleader who has gaged his battle to withdraw on payment of a fine of only five sous to the seigneur, in addition to what the authorities of the town may levy.[673] Still more decided was a provision of the laws of Soest in Westphalia, somewhat earlier than this, by which the citizens were absolutely prohibited from appealing each other in battle;[674] and this is also to be found in a charter granted to the town of Tournay by Philip Augustus in 1187, though in the latter the cold water ordeal is prescribed for cases of murder and of wounding by night.[675] In the laws of Ghent, granted by Philip of Alsace in 1178, there is no allusion to any species of ordeal, and all proceedings seem to be based on the ordinary processes of law, while in the charter of Nieuport, bestowed by the same prince in 1163, although the ordeal of red-hot iron and compurgatorial oaths are freely alluded to as means of rebutting accusations, there is no reference whatever to the battle trial, showing that it must then have been no longer in use.[676] The charters granted to Medina de Pomar in 1219 by Fernando III. of Castile, and to Treviño by Alfonso X. in 1254, provide that there shall be no trial by single combat.[677] Louis VIII. in the charter of Crespy, granted in 1223, promised that neither himself nor his officials should in future have the right to demand the wager of battle from its inhabitants;[678] and shortly after, the laws of Arques, conceded by the abbey of St. Bertin in 1231, provided that the duel could only be decreed between two citizens of that commune when both parties should assent to it.[679] In the same spirit the laws of Riom, granted by Alphonse de Poitiers, the son of St. Louis, in 1270, declared that no inhabitant of the town should be forced to submit to the wager of battle.[680] In the customs of Maubourguet, granted in 1309, by Bernard VI. of Armagnac, privileges similar to those of Lourdes, alluded to above, were included, rendering the duel a purely voluntary matter.[681] Even in Scotland, partial exemptions of the same kind in favor of towns are found as early as the twelfth century. A stranger could not force a burgher to fight, except on an accusation of treachery or theft, while, if a burgher desired to compel a stranger to the duel, he was obliged to go beyond the confines of the town. A special privilege was granted to the royal burghs, for their citizens could not be challenged by the burghers of nobles or prelates, while they had the right to offer battle to the latter.[682] Much more efficient was the clause of the third Keure of Bruges, granted in 1304 by Philip son of Count Guy of Flanders, which strictly prohibited the duel. Any one who gave or received a wager of battle was fined sixty sols, one-half for the benefit of the town, and the other for the count.[683]

The special influence exercised by the practical spirit of trade in rendering the duel obsolete is well illustrated by the privilege granted, in 1127, by William Clito, to the merchants of St. Omer, declaring that they should be free from all appeals to single combat in all the markets of Flanders.[684] In a similar spirit, when Frederic Barbarossa, in 1173, was desirous of attracting to the markets of Aix-la-Chapelle and Duisbourg the traders of Flanders, in the code which he established for the protection of such as might come, he specially enacted that they should enjoy immunity from the duel.[685] Even Russia found it advantageous to extend the same exemption to foreign merchants, and in the treaty which Mstislas Davidovich made in 1228 with the Hanse-town of Riga, he granted to the Germans who might seek his dominions immunity from liability to the red-hot iron ordeal and wager of battle.[686]

Germany seems to have been somewhat later than France or Italy in the movement, yet her burghers evidently regarded it with favor. Frederic II., who recorded his disapproval of the duel in his Sicilian Constitutions, was ready to encourage them in this tendency, and in his charters to Ratisbon and Vienna he authorized their citizens to decline the duel and clear themselves by compurgation,[687] while as early as 1219 he exempted the Nürnbergers from the appeal of battle throughout the empire.[688] The burgher law of Northern Germany alludes to the judicial combat only in criminal charges, such as violence, homicide, housebreaking, and theft;[689] and this is limited in the statutes of Eisenach, of 1283, which provide that no duel shall be adjudged in the town, except in cases of homicide, and then only when the hand of the murdered man shall be produced in court at the trial.[690] In 1291, Rodolph of Hapsburg issued a constitution declaring that the burghers of the free imperial cities should not be liable to the duel outside of the limits of their individual towns,[691] and in the Kayser-Recht this privilege is extended by declaring the burghers exempt from all challenge to combat, except in a suit brought by a fellow-citizen.[692] Notwithstanding this, special immunities continued to be granted, showing that these general laws were of little effect unless supported by the temper of the people. Thus Louis IV. in 1332 gave such a privilege to Dortmund, and so late as 1355 Charles IV. bestowed it on the citizens of Worms.[693]

A somewhat noteworthy exception to this tendency on the part of the municipalities is to be found in Moravia. There, under the laws of Ottokar Premizlas, in 1229 the duel was forbidden between natives and only allowed when one of the parties was a foreigner. Yet his son Wenceslas, some years later, confirmed the customs of the town of Iglau, in which the duel was a recognized feature enforced by an ascending scale of fines. If the accused compounded with the prosecutor before the duel was ordered he paid the judge one mark; after it was adjudged, two marks; after the lists were entered, three marks; after weapons were taken, four marks; and if he waited till the weapons were drawn he had to pay five marks.[694]

* * * * *

All these were local regulations which had no direct bearing on general legislation, except in so far as they might assist in softening the manners of their generation and aiding in the general spread of civilization. A more efficient cause was to be found in the opposition of the Church. From Liutprand the Lombard to Frederic II., a period of five centuries, no secular lawgiver, south of Denmark, seems to have thought of abolishing the judicial combat as a measure of general policy, and those whose influence was largest were the most conspicuous in fostering it. During the whole of this period the Church was consistently engaged in discrediting it, notwithstanding that the local interests or pride of individual prelates might lead them to defend the vested privileges connected with it in their jurisdictions.

When King Gundobald gave form and shape to the battle ordeal in digesting the Burgundian laws, Avitus, Bishop of Vienne, remonstrated loudly against the practice as unjust and unchristian. A new controversy arose on the occasion of the duel between the Counts Bera and Sanila, to which allusion has already been made as one of the important events in the reign of Louis le Débonnaire. St. Agobard, Archbishop of Lyons, took advantage of the opportunity to address to the Emperor a treatise in which he strongly deprecated the settlement of judicial questions by the sword; and he subsequently wrote another tract against ordeals in general, consisting principally of scriptural texts with a running commentary, proving the incompatibility of Christian doctrines with these unchristian practices.[695] Some thirty-five years later the Council of Valence, in 855, denounced the wager of battle in the most decided terms, praying the Emperor Lothair to abolish it throughout his dominions, and adopting a canon which not only excommunicated the victor in such contests, but refused the rights of Christian sepulture to the victim.[696] By this time the forces of the church were becoming consolidated in the papacy, and the Vicegerent of God was beginning to make his voice heard authoritatively throughout Europe. The popes accordingly were not long in protesting energetically against the custom. Nicholas I. denounced it vigorously as a tempting of God, unauthorized by divine law,[697] and his successors consistently endeavored, as we have already seen, to discredit it. In the latter half of the twelfth century, Peter Cantor argues that a champion undertaking the combat relies either on his superior strength and skill, which is manifest injustice; or on the justice of his cause, which is presumption; or on a special miracle, which is a devilish tempting of God.[698] Alexander III. decided that a cleric engaging in a duel, whether willingly or unwillingly, whether victor or vanquished, was subject to deposition, but that his bishop could grant him a dispensation provided there had been loss of neither life nor limb.[699] Towards the close of the century Celestine III. went further, and in the case of a priest who had put forward a champion who had slain his antagonist he decided that both principal and champion were guilty of homicide and the priest could no longer perform his functions, though he might have a dispensation to hold his benefice.[700] These cases suggest one of the reasons why the repeated papal prohibitions were so ineffective. The all-pervading venality of the Church of the period found in the dispensing power an exhaustless source of profit, and dispensations for “irregularities” of all kinds were so habitually issued that the threatened punishments lost their terrors, and as Rome gradually absorbed the episcopal jurisdiction, offenders of all kinds knew that relief from the operation of the canons could always be had there. Some reason for setting them aside was never hard to find. In 1208 a canon of Bourges was elected prior; his disappointed competitor claimed that he was ineligible because he had once served as judge in a duel in which there was effusion of blood. Innocent III. was appealed to, who decided that the canon was capable of promotion to any dignity, and the chief reason alleged was that the evil custom of the duel was so universal in some regions that ecclesiastics of all classes from the lowest to the highest were habitually concerned in them.[701]

Innocent III., however, took care that the great council of Lateran in 1215 should confirm all the previous prohibitions of the practice.[702] It was probably this papal influence that led Simon de Montfort, the special champion of the church, to limit the use of the duel in the territories which he won in his crusade against the Count of Toulouse. In a charter given December 1, 1212, he forbids its use in all the seignorial courts in his dominions, except in cases of treason, theft, robbery, and murder.[703] De Montfort’s dependence on Rome, however, was exceptional, and Christendom at large was not as yet prepared to appreciate the reformatory efforts of the popes. The most that the Council of Paris, held in 1212 for the reformation of the church by the cardinal-legate Robert de Curzon, could do was to order the bishops not to permit the duel in cemeteries or other sacred places.[704]

The opposition of the church as represented by its worthiest and most authoritative spokesmen continued. St. Ramon de Peñafort, the leading canonist of his time, about 1240, asserts uncompromisingly that all concerned in judicial combats are guilty of mortal sin; the sin is somewhat lightened indeed when the pleader is obliged to accept the combat by order of the judge, but the judge himself, the assessors who counsel it, and the priest who gives the benediction all sin most gravely; if death occurs they are all homicides and are rendered “irregular.”[705] About the same time Alexander Hales ingeniously argued away the precedent of David and Goliath by showing that it was simply a prefiguration of the Passion, in which Christ triumphed over Satan as in a duel.[706] With the development, moreover, of the subtilties of scholastic theology the doctors found that the duel was less objectionable than the other forms of ordeal, because, as Thomas Aquinas remarks, the hot iron or boiling water is a direct tempting of God, while the duel is only a matter of chance, for no one expects miraculous interposition unless the champions are very unequal in age or strength.[707] This struck at the very root of the faith on which confidence in the battle ordeal was based, yet in spite of it the persistence of ecclesiastical belief in the divine interposition is fairly illustrated by a case, related with great triumph by monkish chroniclers, as late as the fourteenth century, when a duel was undertaken by direction of the Virgin Mary herself. In 1325, according to the story, a French Jew feigned conversion to Christianity in order to gratify his spleen by mutilating the images in the churches, and at length he committed the sacrilege of carrying off the holy wafer to aid in the hideous rites of his fellows. The patience of the Virgin being at last exhausted, she appeared in a vision to a certain smith, commanding him to summon the impious Israelite to the field. A second and a third time was the vision repeated without effect, till at last the smith, on entering a church, was confronted by the Virgin in person, scolded for his remissness, promised an easy victory, and forbidden to pass the church door until his duty should be accomplished. He obeyed and sought the authorities. The duel was decreed, and the unhappy Hebrew, on being brought into the lists, yielded without a blow, falling on his knees, confessing his unpardonable sins, and crying that he could not resist the thousands of armed men who appeared around his adversary with threatening weapons. He was accordingly promptly burned, to the great satisfaction of all believers.[708]

Evidently the clergy at large did not second the reformatory efforts of their pontiffs. There was not only the ancestral belief implanted in the minds of those from among whom they were drawn, but the seignorial rights enjoyed by prelates and abbeys were not to be willingly abandoned. The progress of enlightenment was slow and the teachings of the papacy can only be enumerated as one of the factors at work to discredit the judicial duel.[709] We can estimate how deeply rooted were the prejudices to be overcome when we find Dante seriously arguing that property acquired by the duel is justly acquired; that God may be relied upon to render the just cause triumphant; that it is wicked to doubt it, while it is folly to believe that a champion can be the weaker when God strengthens him.[710]

In its endeavors to suppress the judicial duel the Church had to weigh opposing difficulties. It could, as we have seen (p. 156), enjoin its members from taking part in such combats and from adjudging them in their jurisdictions; it could decree that priests became “irregular” if death ensued in duels where they gave the benediction, or perhaps even where they had only brought relics on which the combatants took the oaths. But over the secular courts it had only the power of persuasion, or at most of moral coercion, and among the canon doctors there was considerable discussion as to the extent to which it could pronounce participation in the duel a mortal sin, entailing excommunication and denial of the rites of sepulture. When a man sought the duel, when he demanded it of the judge and provoked his adversary to it, he could be pronounced guilty of homicide if death ensued. It was otherwise where an innocent man was accused of a mortal crime and would be hanged if he refused the duel adjudged to him by court. It was argued that the Church was a harsh mother if she forced her children thus to submit to death and infamy for a scruple of recent origin, raised merely by papal command, though the more rigid casuists insisted even on this. All agreed, however, that in civil cases a man ought rather to undergo the loss of his property than to imperil his soul and disobey the Church.[711]

* * * * *

Perhaps the most powerful cause at work was the revival of the Roman jurisprudence, which in the thirteenth century commenced to undermine all the institutions of feudalism. Its theory of royal supremacy was most agreeable to sovereigns whose authority over powerful vassals was scarcely more than nominal; its perfection of equity between man and man could not fail to render it enticing to clear-minded jurists, wearied with the complicated and fantastic privileges of ecclesiastical, feudal, and customary law. Thus recommended, its progress was rapid. Monarchs lost no opportunity of inculcating respect for that which served their purpose so well, and the civil lawyers, who were their most useful instruments, speedily rose to be a power in the state. Of course the struggle was long, for feudalism had arisen from the necessities of the age, and a system on which were based all the existing institutions of Europe could only be attacked in detail, and could only be destroyed when the advance of civilization and the general diffusion of enlightenment had finally rendered it obsolete. The French Revolution was the final battle-field, and that terrible upheaval was requisite to obliterate a form of society whose existence had numbered nine hundred years.

The wager of battle was not long in experiencing the first assaults of the new power. The earliest efficient steps towards its abolition were taken in 1231 by the Emperor Frederic II. in his Neapolitan code. He pronounces it to be in no sense a legal proof, but only a species of divination, incompatible with every notion of equity and justice; and he prohibits it for the future, except in cases of poisoning or secret murder and treason where other proof is unattainable; and even in these it is placed at the option of the accuser alone; moreover, if the accuser commences by offering proof and fails he cannot then have recourse to combat; the accused must be acquitted.[712] The German Imperial code, known as the Kayser-Recht, which was probably compiled about the same time, contains a similar denunciation of the uncertainty of the duel, but does not venture on a prohibition, merely renouncing all responsibility for it, while recognizing it as a settled custom.[713] In the portion, however, devoted to municipal law, which is probably somewhat later in date, the prohibition is much more stringently expressed, manifesting the influences at work;[714] but even this is contradicted by a passage almost immediately preceding it. How little influence these wise counsels had, in a state so intensely feudal and aristocratic, is exemplified in the Suabian and Saxon codes, where the duel plays so important a part. Yet the desire to escape it was not altogether confined to the honest burghers of the cities, for in 1277 Rodolph of Hapsburg, even before he granted immunity to the imperial towns, gave a charter to the duchy of Styria, securing to the Styrians their privileges and rights, and in this he forbade the duel in all cases where sufficient testimony could be otherwise obtained; while the general tenor of the document shows that this was regarded as a favor.[715] The Emperor Albert I. was no less desirous of restricting the duel, and in ordinary criminal cases endeavored to substitute compurgation.[716]

Still, as late as 1487, the Inquisitor Sprenger, in discountenancing the red-hot iron ordeal in witch-trials, feels himself obliged to meet the arguments of those who urged the lawfulness of the duel as a reason for permitting the cognate appeal to the ordeal. To this he naïvely replies, as Thomas Aquinas had done, that they are essentially different, as the champions in a duel are about equally matched, and the killing of one of them is a simple affair, while the iron ordeal, or that of drinking boiling water, is a tempting of God by requiring a miracle.[717] This shows at the same time how thoroughly the judicial combat had degenerated from its original theory, and that the appeal to the God of battles had become a mere question of chance, or of the comparative strength and skill of a couple of professional bravos.

In Spain the influence of Roman institutions, transmitted through the Wisigothic laws, had allowed to the judicial duel less foothold than in other mediæval lands, and the process of suppressing it began early. In Aragon the chivalrous Jayme I., el Conquistador, in the franchises granted to Majorca, on its conquest in 1230, prohibited the judicial combat in both civil and criminal cases.[718] Within forty years from this, Alfonso the Wise of Castile issued the code generally known as Las Siete Partidas. In this he evidently desired to curb the practice as far as possible, stigmatizing it as a custom peculiar to the military class (por lid de caballeros ò de peones), and as reprehensible both as a tempting of God and as a source of perpetual injustice.[719] Accordingly, he subjected it to very important limitations. The wager of battle could only be granted by the king himself; it could only take place between gentlemen, and in personal actions alone which savored of treachery, such as murder, blows, or other dishonor, inflicted without warning or by surprise. Offences committed against property, burning, forcible seizure, and other wrongs, even without defiance, were specifically declared not subject to its decision, the body of the plaintiff being its only recognized justification.[720] Even in this limited sphere, the consent of both parties was requisite, for the appellant could prosecute in the ordinary legal manner, and the defendant, if challenged to battle, could elect to have the case tried by witnesses or inquest, nor could the king himself refuse him the right to do so.[721] When to this is added that a preliminary trial was requisite to decide whether the alleged offence was treacherous in its character or not, it will be seen that the combat was hedged around with such difficulties as rendered its presence on the statute book scarcely more than an unmeaning concession to popular prejudice; and if anything were wanting to prove the utter contempt of the legislator for the decisions of the battle-trial, it is to be found in the regulation that if the accused was killed on the field, without confessing the imputed crime, he was to be pronounced innocent, as one who had fallen in vindicating the truth.[722] The same desire to restrict the duel within the narrowest possible limits is shown in the rules concerning the employment of champions, which have been already alluded to. Although the Partidas as a scheme of legislation was not confirmed until the cortes of 1348 these provisions were lasting and produced the effect designed. It is true that in 1342 we hear of a combat ordered by Alfonso XI. between Pay Rodriguez de Ambia and Ruy Paez de Biedma, who mutually accused each other of treason. It was fought before the king and lasted for three days without either party obtaining the victory, till, on the evening of the third day, the king entered the lists and pacified the quarrel, saying that both antagonists could serve him better by fighting the Moors, with whom he was at war, than by killing each other.[723] Not long afterwards Alfonso in the Ordenamiento de Alcalá, issued in 1348, repeated the restrictions of the Partidas, but in a very cursory manner, and rather incidently than directly, showing that the judicial combat was then a matter of little importance.[724] In fact, the jurisprudence of Spain was derived so directly from the Roman law through the Wisigothic code and its Romance recension, the Fuero Juzgo, that the wager of battle could never have become so deeply rooted in the national faith as among the more purely barbarian races. It was therefore more readily eradicated, and yet, as late as the sixteenth century, a case occurred in which the judicial duel was prescribed by Charles V., in whose presence the combat took place.[725]

The varying phases of the struggle between progress and centralization on the one side, and chivalry and feudalism on the other, were exceedingly well marked in France, and as the materials for tracing them are abundant, a more detailed account of the gradual reform may perhaps have interest, as illustrating the long and painful strife which has been necessary to evoke order and civilization out of the incongruous elements from which modern European society has sprung. The sagacity of St. Louis, so rarely at fault in the details of civil administration, saw in the duel not only an unchristian and unrighteous practice, but a symbol of the disorganizing feudalism which he so energetically labored to suppress. His temper led him rather to adopt pacific measures, in sapping by the forms of law the foundations of the feudal power, than to break it down by force of arms as his predecessors had attempted. The centralization of the Roman polity might well appear to him and his advisers the ideal of a well-ordered state, and the royal supremacy had by this time advanced to a point where the gradual extension of the judicial prerogatives of the crown might prove the surest mode of humbling eventually the haughty vassals who had so often bearded the sovereign. No legal procedure was more closely connected with feudalism, or embodied its spirit more thoroughly, than the wager of battle, and Louis accordingly did all that lay in his power to abrogate the custom. The royal authority was strictly circumscribed, however, and though, in his celebrated Ordonnance of 1260, he formally prohibited the battle trial in the territory subject to his jurisdiction,[726] he was obliged to admit that he had no power to control the courts of his barons beyond the domains of the crown.[727] Even within this comparatively limited sphere, we may fairly assume from some passages in the Établissements, compiled about the year 1270, that he was unable to do away entirely with the practice. It is to be found permitted in some cases both civil and criminal, of peculiarly knotty character, admitting of no other apparent solution.[728] It seems, indeed, remarkable that he should even have authorized personal combat between brothers, in criminal accusations, only restricting them in civil suits to fighting by champions,[729] when the German law of nearly the same period forbids the duel, like marriage, between relations in the fifth degree, and states that previously it had been prohibited to those connected in the seventh degree.[730]

Even this qualified reform provoked determined opposition. Every motive of pride and interest prompted resistance. The prejudices of birth, the strength of the feudal principle, the force of chivalric superstition, the pride of self-reliance gave keener edge to the apprehension of losing an assured source of revenue. The right of granting the wager of battle was one of those appertaining to the hauts-justiciers, and so highly was it esteemed that paintings of champions fighting frequently adorned their halls as emblems of their prerogatives; Loysel, indeed, deduces from it a maxim, “The pillory, the gibbet, the iron collar, and paintings of champions engaged, are marks of high jurisdiction.”[731] This right had a considerable money value, for the seigneur at whose court an appeal of battle was tried received from the defeated party a fine of sixty livres if he was a gentleman, and sixty sous if a roturier, besides a perquisite of the horses and arms employed, and heavy mulcts for any delays which might be asked,[732] besides fines from those who withdrew after the combat was decreed.[733] Nor was this all, for during the centuries of its existence there had grown and clustered around the custom an immeasurable mass of rights and privileges which struggled lustily against destruction. Thus, hardly had the ordonnance of prohibition been issued when, in 1260, a knight named Mathieu le Voyer actually brought suit against the king for the loss it inflicted upon him. He dolefully set forth that he enjoyed the privilege of guarding the lists in all duels adjudged in the royal court at Corbon, for which he was entitled to receive a fee of five sous in each case; and, as his occupation thus was gone, he claimed compensation, modestly suggesting that he be allowed the same tax on all inquests held under the new law.[734] How closely all such sources of revenue were watched is illustrated by a case occurring in 1286, when Philippe le Bel remitted the fines accruing to him from a duel between two squires adjudged in the royal court of Tours. The seneschal of Anjou and Touraine brought suit before the Parlement of Paris to recover one-third of the amount, as he was entitled to that proportion of all dues arising from combats held within his jurisdiction, and he argued that the liberality of the king was not to be exercised to his disadvantage. His claim was pronounced just, and a verdict was rendered in his favor.[735]

But the loss of money was less important than the curtailment of privilege and the threatened absorption of power of which this reform was the precursor. Every step in advancing the influence of peaceful justice, as expounded by the jurists of the royal courts, was a heavy blow to the independence of the feudatories. They felt their ancestral rights assailed at the weakest point, and they instinctively recognized that, as the jurisdiction of the royal bailiffs became extended, and as appeals to the court of the Parlement of Paris became more frequent, their importance was diminished, and their means of exercising a petty tyranny over those around them were abridged. Entangled in the mazes of a code in which the unwonted maxims of Roman law were daily quoted with increasing veneration, the impetuous seigneur found himself the prey of those whom he despised, and he saw that subtle lawyers were busily undoing the work at which his ancestors had labored for centuries. These feelings are well portrayed in a song of the period, exhumed not long since by Le Roux de Lincy. Written apparently by one of the sufferers, it gives so truthful a view of the conservative ideas of the thirteenth century that a translation of the first stanza may not be amiss:—

Gent de France, mult estes esbahis! Je di à touz ceus qui sont nez des fiez, etc.[736]

Ye men of France, dismayed and sore Ye well may be. In sooth, I swear, Gentles, so help me God, no more Are ye the freemen that ye were! Where is your freedom? Ye are brought To trust your rights to inquest law, Where tricks and quibbles set at naught The sword your fathers wont to draw. Land of the Franks!—no more that name Is thine—a land of slaves art thou, Of bondsmen, wittols, who to shame And wrong must bend submissive now!

Even legists—de Fontaines, whose admiration of the Digest led him on all occasions to seek an incongruous alliance between the customary and imperial law, and Beaumanoir, who in most things was far in advance of his age, and who assisted so energetically in the work of centralization—even these enlightened lawyers hesitate to object to the principles involved in the battle trial, and while disapproving of the custom, express their views in language which contrasts strongly with the vigorous denunciations of Frederic II. half a century earlier.[737]

How powerful were the influences thus brought to bear against the innovation is shown by the fact that when the mild but firm hand of St. Louis no longer grasped the sceptre, his son and successor could not maintain his father’s laws. In 1280 there is a record of a duel adjudged in the king’s court between Jeanne de la Valete and the Sire of Montricher on an accusation of arson;[738] and about 1283 Philippe even allowed himself to preside at a judicial duel, scarcely more than twenty years after the promulgation of the ordonnance of prohibition.[739] The next monarch, Philippe le Bel, was at first guilty of the same weakness, for when in 1293 the Count of Armagnac accused Raymond Bernard of Foix of treason, a duel between them was decreed, and they were compelled to fight before the king at Gisors; though Robert d’Artois interfered after the combat had commenced, and induced Philippe to separate the antagonists.[740] Philippe, however, was too astute not to see that his interests lay in humbling feudalism in all its forms; while the rapid extension of the jurisdiction of the crown, and the limitations on the seignorial courts, so successfully invented and asserted by the lawyers, acting by means of the Parlement through the royal bailiffs, gave him power to carry his views into effect such as had been enjoyed by none of his predecessors. Able and unscrupulous, he took full advantage of his opportunities in every way, and the wager of battle was not long in experiencing the effect of his encroachments. Still, he proceeded step by step, and the vacillation of his legislation shows how obstinate was the spirit with which he had to deal. In 1296 he prohibited the judicial duel in time of war, and in 1303 he was obliged to repeat the prohibition.[741] It was probably not long after this that he interdicted the duel wholly[742]—possibly impelled thereto by a case occurring in 1303, in which he is described as forced to grant the combat between two nobles, on an accusation of murder, very greatly against his wishes, and in spite of all his efforts to dissuade the appellant.[743]

In thus abrogating the wager of battle, Philippe le Bel was in advance of his age. Before three years were over he was forced to abandon the position he had assumed; and though he gave as a reason for the restoration of the duel that its absence had proved a fruitful source of encouragement for crime and villany,[744] yet at the same time he took care to place on record the assertion of his own conviction that it was worthless as a means of seeking justice.[745] In thus legalizing it by the Ordonnance of 1306, however, he by no means replaced it on its former footing. It was restricted to criminal cases involving the death penalty, excepting theft, and it was only permitted when the crime was notorious, the guilt of the accused probable, and no other evidence attainable.[746] The ceremonies prescribed, moreover, were fearfully expensive, and put it out of the reach of all except the wealthiest pleaders. As the ordonnance, which is very carefully drawn, only refers to appeals made by the prosecutor, it may fairly be assumed that the defendant could merely accept the challenge and had no right to offer it.

Even with these limitations, Philippe was not disposed to sanction the practice within the domains of the crown, for, the next year (1307), we find him commanding the seneschal of Toulouse to allow no duel to be adjudged in his court, but to send all cases in which the combat might arise to the Parlement of Paris for decision.[747] This was equivalent to a formal prohibition. During the whole of the period under consideration, numerous causes came before the Parlement concerning challenges to battle, on appeals from various jurisdictions throughout the country, and it is interesting to observe how uniformly some valid reason was found for its refusal. In the public register of decisions, extending from 1254 to 1318, scarcely a single example of its permission is to be found.[748] One doubtful instance which I have observed is a curious case occurring in 1292, wherein a man accused a woman of homicide in the court of the Chapter of Soissons, and the royal officers interfered on the ground that the plaintiff was a bastard. As by the local custom he thus was in some sort a serf of the crown, they assumed that he could not risk his body without the express permission of the king. The Chapter contended for the appellant’s legitimacy, and the case became so much obscured by the loss of the record of examination made, that the Parlement finally shuffled it out of court without any definite decision.[749]

Two decisions, in 1309, show that the Ordonnance of 1306 was in force, for while they admit that the duel was legally possible, the cases are settled by inquest as capable of proof by investigation. One of these was an incident in the old quarrel between the Counts of Foix and Armagnac, and its decision shows how great a stride had been made since their duel of 1293. Raymond de Cardone, a kinsman of Foix, gaged his battle in the king’s court against Armagnac; Armagnac did the same against Foix and claimed that his challenge had priority over that of Raymond, while Bernard de Comminges also demanded battle of Foix. All these challenges arose out of predatory border incursions between these nobles, and in its verdict the Parlement refuses to grant the combat in any of them, orders all the parties to swear peace and give bail to keep it, and moreover condemns Foix in heavy damages to his adversaries and to the king, whose territories he had invaded in one of his forays. The Count of Foix made some objection to submitting to the sentence, but a short imprisonment brought him to his senses.[750] A more thorough vindication of the royal jurisdiction over powerful feudatories could scarcely be imagined, and the work of the civil lawyers seemed to be perfectly accomplished. It was the same with all the variety of cases involving the duel which were brought to the cognizance of the Parlement. Some ingenious excuse was always found for refusing it, whether by denying the jurisdiction of the court which had granted it, or by alleging other reasons more or less frivolous, the evident intention of all the arrêts being to restrict the custom, as allowed under the ordonnance, within limits so narrow as to render it practically a nullity. The astute lawyers who composed the royal court knew too well the work committed to them to hesitate as to their conclusions, while Philippe’s distaste for the duel probably received a stimulus when, at the Council of Vienne in 1312 he endeavored to obtain the condemnation of the memory of Boniface VIII., and two Catalan knights offered to prove by the single combat that the late pope had been legitimately elected and had not been a heretic.[751]

In spite of these efforts, the progress of reform was slow. On the breaking out afresh of the perennial contest with Flanders, Philippe found himself, in 1314, obliged to repeat his order of 1296, forbidding all judicial combats during the war, and holding suspended such as were in progress.[752] As these duels could have little real importance in crippling his military resources, it is evident that he seized such occasions to accomplish under the war power what his peaceful prerogative was unable to effect, and it is a striking manifestation of his zeal in the cause, that he could turn aside to give attention to it amid the preoccupations of the exhausting struggle with the Flemings. Yet how little impression he made, and how instinctively the popular mind still turned to the battle ordeal, as the surest resource in all cases of doubt, is well illustrated by a passage in a rhyming chronicle of the day. When the close of Philippe’s long and prosperous reign was darkened by the terrible scandal of his three daughters-in-law, and two of them were convicted of adultery, Godefroy de Paris makes the third, Jeanne, wife of Philippe le Long, offer at once to prove her innocence by the combat:—

Gentil roy, je vous requier, sire, Que vous m’oiez en defendant. Se nul ou nule demandant Me vait chose de mauvestie, Mon cuer sens si pur, si haitie, Que bonement me deffendrai, Ou tel champion baillerai, Qui bien saura mon droit deffendre, S’il vous plest à mon gage prendre.[753]

* * * * *

The iron hand of Philippe was no sooner withdrawn than the nobles made desperate efforts to throw off the yoke which he had so skilfully and relentlessly imposed on them. His son, Louis Hutin, not yet firmly seated on the throne, was constrained to yield a portion of the newly-acquired prerogative. The nobles of Burgundy, for instance, in their formal list of grievances, demanded the restoration of the wager of battle as a right of the accused in criminal cases, and Louis was obliged to promise that they should enjoy it according to ancient custom.[754] Those of Amiens and Vermandois were equally clamorous, and for their benefit he re-enacted the Ordonnance of 1306, permitting the duel in criminal prosecutions where other evidence was deficient, with an important extension authorizing its application to cases of theft, in opposition to previous usage.[755] A legal record, compiled about 1325 to illustrate the customs of Picardy, shows by a group of cases that it was still quite common, and that indeed it was the ordinary defence in accusations of homicide.[756] The nobles of Champagne demanded similar privileges, but Louis, by the right of his mother, Jeanne de Champagne, was Count of Champagne, and his authority was less open to dispute. He did not venture on a decided refusal, but an evasive answer, which was tantamount to a denial of the request,[757] showed that his previous concessions were extorted, and not willingly granted. Not content with this, the Champenois repeated their demand, and received the dry response, that the existing edicts on the subject must be observed.[758]

The threatened disturbances were avoided, and during the succeeding years the centralization of jurisdiction in the royal courts made rapid progress. It is a striking evidence of the successful working of the plans of St. Louis and Philippe le Bel that several ordonnances and charters granted by Philippe le Long in 1318 and 1319, while promising reforms in the procedures of the bailiffs and seneschals, and in the manner of holding inquests, are wholly silent on the subject of the duel, affording a fair inference that complaints on that score were no longer made.[759] Philip of Valois was especially energetic in maintaining the royal jurisdiction, and when in 1330 he was obliged to restrict the abusive use of appeals from the local courts to the Parlement,[760] it is evident that the question of granting or withholding the wager of battle had become practically a prerogative of the crown. That the challenging of witnesses must ere long have fallen into desuetude is shown by an edict of Charles VI., issued in 1396, by which he ordered that the testimony of women should be received in evidence in all the courts throughout his kingdom.[761]

Though the duel was thus deprived, in France, of its importance as an ordinary legal procedure, yet it was by no means extinguished, nor had it lost its hold upon the confidence of the people. An instructive illustration of this is afforded by the well-known story of the Dog of Montargis. Though the learned Bullet[762] has demonstrated the fabulous nature of this legend, and has traced its paternity up to the Carlovingian romances, still, the fact is indubitable that it was long believed to have occurred in 1371, under the reign of Charles le Sage, and that authors nearly contemporary with that period recount the combat of the dog and the knight as an unquestionable fact, admiring greatly the sagacity of the animal, and regarding as a matter of course both the extraordinary judicial proceedings and the righteous judgment of God which gave the victory to the greyhound.

In 1371 there was battle gaged between Sir Thomas Felton, Seneschal of Aquitaine, and Raymond de Caussade, Seigneur de Puycornet. Apparently they felt that a fair field could not be had in either French or English territory, and they applied to Pedro el Ceremonioso of Aragon to provide the lists for them. Pedro acceded to the request and promised to preside, provided there was due cause for a judicial duel and that the arms were agreed upon in advance, and he sent the combatants safe-conducts to come to Aragon. He assigned the city of Valencia as the place of combat, and when there was an endeavor to break off the affair on the ground that it concerned the kings of France and England, he replied that it was now too late and that the battle must take place.[763]

In 1386, the Parlement of Paris was occupied with a subtle discussion as to whether the accused was obliged, in cases where battle was gaged, to give the lie to the appellant, under pain of being considered to confess the crime charged, and it was decided that the lie was not essential.[764] The same year occurred the celebrated duel between the Chevalier de Carrouges and Jacques le Gris, to witness which the king shortened a campaign, and in which the appellant was seconded by Waleran, Count of St. Pol, son-in-law of the Black Prince. Nothing can well be more impressive than the scene so picturesquely described by Froissart. The cruelly wronged Dame de Carrouges, clothed in black, is mounted on a sable scaffold, watching the varying chances of the unequal combat between her husband, weakened by disease, and his vigorous antagonist, with the fearful certainty that, if strength alone prevail, he must die a shameful death and she be consigned to the stake. Hope grows faint and fainter; a grievous wound seems to place Carrouges at the mercy of his adversary, until at the last moment, when all appeared lost, she sees the avenger drive his sword through the body of his prostrate enemy, vindicating at once his wife’s honor and his own good cause.[765] Froissart, however, was rather an artist than an historian; he would not risk the effect of his picture by too rigid an adherence to facts, and he omits to mention, what is told by the cooler Juvenal des Ursins, that Le Gris was subsequently proved innocent by the death-bed confession of the real offender.[766] To make the tragedy complete, the Anonyme de S. Denis adds that the miserable Dame de Carrouges, overwhelmed with remorse at having unwittingly caused the disgrace and death of an innocent man, ended her days in a convent.[767] So striking a proof of the injustice of the battle ordeal is said by some writers to have caused the abandonment of the practice; but this, as will be seen, is an error, though no further trace of the combat as a judicial procedure is to be found on the registers of the Parlement of Paris.[768]

Still, it was popularly regarded as an unfailing resource. Thus, in 1390, two women were accused at the Châtelet of Paris of sorcery. After repeated torture, a confession implicating both was extracted from one of them, but the other persisted in her denial, and challenged her companion to the duel by way of disproving her evidence. In the record of the proceedings the challenge is duly entered, but no notice whatever seems to have been taken of it by the court, showing that it was no longer a legal mode of trial in such cases.[769]

In 1409, the battle trial was materially limited by an ordonnance of Charles VI. prohibiting its employment except when specially granted by the king or the Parlement;[770] and though the latter body may never have exercised the privilege thus conferred upon it, the king occasionally did, as we find him during the same year presiding at a judicial duel between Guillaume Bariller, a Breton knight, and John Carrington, an Englishman.[771] The English occupation of France, under Henry V. and the Regent Bedford, revived the practice, and removed for a time the obstacles to its employment. Nicholas Upton, writing in the middle of the fifteenth century, repeatedly alludes to the numerous cases in which he assisted as officer of the Earl of Salisbury, Lieutenant of the King of England; and in his chapters devoted to defining the different species of duel he betrays a singular confusion between the modern ideas of reparation of honor and the original object of judicial investigation, thus fairly illustrating the transitional character of the period.[772]

It was about this time that Philippe le Bon, Duke of Burgundy, formally abolished the wager of battle, as far as lay in his power, throughout the extensive dominions of which he was sovereign, and in the Coutumier of Burgundy, as revised by him in 1459, there is no trace of it to be found. The code in force in Britanny until 1539 permitted it in cases of contested estates, and of treason, theft, and perjury—the latter, as usual, extending it over a considerable range of civil actions, while the careful particularization of details by the code shows that it was not merely a judicial antiquity.[773] In Normandy, the legal existence of the judicial duel was even more prolonged, for it was not until the revision of the coutumier in 1583, under Henry III., that the privilege of deciding in this way numerous cases, both civil and criminal, was formally abolished.[774] Still, it may be assumed that, practically, the custom had long been obsolete, though the tardy process of revising the local customs allowed it to remain upon the statute book to so late a date. The fierce mountaineers of remote Béarn clung to it more obstinately, and in the last revision of their code, in 1552, which remained unaltered until 1789, it retains its place as a legitimate means of proof, in default of other testimony, with a heavy penalty on the party who did not appear upon the field at the appointed time.[775]

During this long period, examples are to be found which show that although the combat was falling into disuse, it was still a legal procedure, which in certain cases could be claimed as a right, or which could be decreed and enforced by competent judicial authority. Among the privileges of the town of Valenciennes was one to the effect that any homicide taking refuge there could swear that the act had been committed in self-defence, when he could be appealed only in battle. This gave occasion to a combat in 1455 between a certain Mahuot and Jacotin Plouvier, the former of whom had killed a kinsman of the latter. Neither party desired the battle, but the municipal government insisted upon it, and furnished them with instructors to teach the use of the club and buckler allowed as arms. The Comte de Charolois, Charles le Téméraire, endeavored to prevent the useless cruelty, but the city held any interference as an infringement of its chartered rights; and, after long negotiations, Philippe le Bon, the suzerain, authorized the combat and was present at it. The combatants, according to custom, had the head shaved and the nails pared on both hands and feet; they were dressed from head to foot in a tight-fitting suit of hardened leather, and each was anointed with grease to prevent his antagonist from clutching him. The combat was long and desperate, but at length the appellant literally tore out the heart of his antagonist.[776] Such incidents among roturiers, however, were rare. More frequently some fiery gentleman claimed the right of vindicating his quarrel at the risk of his life. Thus, in 1482, shortly after the battle of Nancy had reinstated René, Duke of Lorraine, on the ruins of the second house of Burgundy, two gentlemen of the victor’s court, quarrelling over the spoils of the battle-field, demanded the champ-clos; it was duly granted, and on the appointed day the appellant was missing, to the great discomfiture and no little loss of his bail.[777] When Charles d’Armagnac, in 1484, complained to the States General of the inhuman destruction of his family, committed by order of Louis XI., the Sieur de Castlenau, whom he accused of having poisoned his mother, the Comtesse d’Armagnac, appeared before the assembly, and, his advocate denying the charge, presented his offer to prove his innocence by single combat.[778] In 1518, Henry II. of Navarre ordered a judicial duel at Pau between two contestants, of whom the appellant made default; the defendant was accordingly pronounced innocent, and was empowered to drag through all cities, villages, and other places through which he might pass, the escutcheon and effigy of his adversary, who was further punished by the prohibition thenceforth to wear arms or knightly bearings.[779] In 1538, Francis I. granted the combat between Jean du Plessis and Gautier de Dinteville, which would appear to have been essentially a judicial proceeding, since the defendant, not appearing at the appointed time, was condemned to death by sentence of the high council, Feb. 20, 1538.[780] The duel thus was evidently still a matter of law, which vindicated its majesty by punishing the unlucky contestant who shrank from the arbitrament of the sword.

Allusion has already been made to the celebrated combat between Chastaigneraye and Jarnac, in 1547, wherein the death of the former, a favorite of Henry II., led the monarch to take a solemn oath never to authorize another judicial duel. Two years later, two young nobles of his court, Jacques de Fontaine, Sieur de Fendilles, and Claude des Guerres, Baron de Vienne-le-Chatel, desired to settle in this manner a disgusting accusation brought against the latter by the former. The king, having debarred himself from granting the appeal, arranged the matter by allowing Robert de la Marck, Marshal of France, and sovereign Prince of Sedan, to permit it in the territory of which he was suzerain. Fendilles was so sure of success that he refused to enter the lists until a gallows was erected and a stake lighted, where his adversary after defeat was to be gibbeted and burned. Their only weapons were broad-swords, and at the first pass Fendilles inflicted on his opponent a fearful gash in the thigh. Des Guerres, seeing that loss of blood would soon reduce him to extremity, closed with his antagonist, and being a skilful wrestler speedily threw him. Reduced to his natural weapons, he could only inflict blows with the fist, which failing strength rendered less and less effective, when a scaffold crowded with ladies and gentlemen gave way, throwing down the spectators in a shrieking mass. Taking advantage of the confusion, the friends of Des Guerres violated the law which imposed absolute silence and neutrality on all, and called to him to blind and suffocate his adversary with sand. Des Guerres promptly took the hint, and Fendilles succumbed to this unknightly weapon. Whether he formally yielded or not was disputed. Des Guerres claimed that he should undergo the punishment of the gallows and stake prepared for himself, but de la Marck interfered, and the combatants were both suffered to retire in peace.[781] This is the last recorded instance of the wager of battle in France. The custom appears never to have been formally abolished, and so little did it represent the thoughts and feelings of the age which witnessed the Reformation, that when, in 1566, Charles IX. issued an edict prohibiting duels, no allusion was made to the judicial combat. The encounters which he sought to prevent were solely those which arose from points of honor between gentlemen, and the offended party was ordered not to appeal to the courts, but to lay his case before the Marshals of France, or the governor of his province.[782] The custom had died a natural death. No ordonnance was necessary to abrogate it; and, seemingly, from forgetfulness, the crown and the Parlement appear never to have been divested of the right to adjudge the wager of battle.

* * * * *

In Italy many causes conspired to lead to the abrogation of the judicial duel. On the one hand there were the prescriptions of the popes, and on the other the spirit of scepticism fostered by the example of Frederic II. The influence of the resuscitated Roman law was early felt and its principles were diffused by the illustrious jurists who rendered the Italian schools famous. Burgher life, moreover, was precociously developed in the social and political organization, and as the imperial influence diminished with the fall of the House of Hohenstaufen, the cities assumed self-government and fashioned their local legislation after their own ideals. The judgments of God were not indigenous in Italy; they were not ancestral customs rooted in the prehistoric past, but were foreign devices introduced by conquerors—first by the Lombards and then by the Othos. There were thus many reasons why the trial by combat should disappear early from the Italian statute books. There is no trace of it in the elaborate criminal code of Milan compiled in 1338, nor in that of Piacenza somewhat later; in fact, it was no longer needed, for the inquisitional process was in full operation and in doubtful cases the judge had all the resources of torture at his disposal.[783]

Although by the middle of the fourteenth century it had thus disappeared from the written law, the rulers retained the right to grant it in special cases, and it thus continued in existence as a lawful though extra-legal mode of settling disputed cases. Where suzerains were so numerous there was thus ample opportunity for belligerent pleaders to gratify their desires. Even as late as 1507 Giovanni Paolo Baglioni, lord of Spello (a village in the Duchy of Spoleto, near Foligno), granted a licence for a month to Giovanni Batta Gaddi and Raffaello Altoviti to settle their suits by fighting within his domain with three comrades.[784] Two years after this, Julius II., in issuing a constitution directed against duels of honor, took occasion also to include in his prohibition all such purgationes vulgares, even though permitted by the laws; the combatants were ordered, in all the States of the Church, to be arrested and punished for homicide or maiming according to the common law.[785] In 1519 Leo X. reissued this bull with vastly sharper penalties on all concerned, but in his additions to it he seems merely to have in mind the duel of honor, which was habitually conducted in public, in lists prepared for the purpose, and in presence of the prince or noble who had granted licence for it.[786] The legal combat may be considered to have virtually disappeared, but the duel of honor which succeeded it inherited some of its sanctions, and in the learned treatises on the subject which appeared during the first half of the sixteenth century there are still faint traces to be found of the survival of the idea of the judgment of God.[787]

In Hungary, it was not until 1486 that any attempt was made to restrict the judicial duel. In that year Matthias Corvinus prohibited it in cases where direct testimony was procurable: where such evidence was unattainable, he still permitted it, both in civil and criminal matters.[788] In 1492 Vladislas II. repeated this prohibition, alleging as his reason for the restriction the almost universal employment of champions who sometimes sold out their principals. The terms of the decree show that previously its use was general, though it is declared to be a custom unknown elsewhere.[789]

In Flanders, it is somewhat remarkable that the duel should have lingered until late in the sixteenth century, although, as we have seen above, the commercial spirit of that region had sought its abrogation at a very early period, and had been seconded by the efforts of Philippe le Bon in the fifteenth century. Damhouder, writing about the middle of the sixteenth century, states that it was still legal in matters of public concern, and even his severe training as a civil lawyer cannot prevent his declaring it to be laudable in such affairs.[790] Indeed, when the Council of Trent, in 1563, stigmatized the duel as the work of the devil and prohibited all potentates from granting it under pain of excommunication and forfeiture of all feudal possessions,[791] the state Council of Flanders, in their report to the Duchess of Parma on the reception of the Council, took exception to this canon, and decided that the ruler ought not to be deprived of the power of ordering the combat.[792] In this view, the Council of Namur agreed.[793]

In Germany, in spite of the imperial legislation referred to above (p. 212), feudal influences were too strong to permit an early abrogation of the custom. Throughout the fifteenth century the wager of battle continued to flourish, and MSS. of the period give full directions as to the details of the various procedures for patricians and plebeians. The sixteenth century saw its wane, though it kept its place in the statute books, and Fechtbücher of 1543 and 1556 describe fully the use of the club and the knife. Yet when in 1535 Friedrich von Schwartzenberg demanded a judicial duel to settle a suit with Ludwig von Hutten, the latter contemptuously replied that such things might be permitted in the times of Goliath and Dietrich of Bern, but that now they were not in accordance with law, right, or custom, and von Schwartzenberg was obliged to settle the case in more peaceful fashion. Still, occasional instances of its use are said to have occurred until the close of the century,[794] and as late as 1607, Henry, Duke of Lorraine, procured from the Emperor Rodolph II. the confirmation of a privilege which he claimed as ancestral that all combats occurring between the Rhine and the Meuse should be fought out in his presence.[795]

In Russia, under the code known as the Ulogenié Zakonof, promulgated in 1498, any culprit, after his accuser’s testimony was in, could claim the duel; and as both parties went to the field accompanied by all the friends they could muster, the result was not infrequently a bloody skirmish. These abuses were put an end to by the Sudebtnick, issued in 1550, and the duel was regulated after a more decent fashion, but it continued to flourish legally until it was finally abrogated in 1649 by the Czar Alexis Mikhailovich, in the code known as the Sobornoié Ulogenié. The more enlightened branch of the Slavonic race, however, the Poles, abolished it in the fourteenth century; but Macieiowski states that in Servia and Bulgaria the custom has been preserved to the present day.[796]

In other countries, the custom likewise lingered to a comparatively late period. Scotland, indeed, was somewhat more forward than her neighbors; for in the year 1400, her Parliament showed the influence of advancing civilization by limiting the practice in several important particulars, which, if strictly observed, must have rendered it almost obsolete. Four conditions were pronounced essential prerequisites: the accusation must be for a capital crime; the offence must have been committed secretly and by treachery; reasonable cause of suspicion must be shown against the accused, and direct testimony both of witnesses and documents must be wanting.[797]

Still the “perfervidum ingenium Scotorum” clung to the arbitrament of the sword with great tenacity. In 1532 Sir James Douglass accused his son-in-law Robert Charteris of treason, and the charge was settled by a judicial duel in the presence of James V., who put an end to it when Charteris’s sword broke.[798] Knox relates that in 1562, when the Earl of Arran was consulting with him and others respecting a proposed accusation against Bothwell for high treason, arising out of a plan for seizing Queen Mary which Bothwell had suggested, the earl remarked, “I know that he will offer the combate unto me, but that would not be suffered in France, but I will do that which I have proposed.” In 1567, also, when Bothwell underwent a mock trial for the murder of Darnley, he offered to justify himself by the duel; and when the Lords of the Congregation took up arms against him, alleging as a reason the murder and his presumed designs against the infant James VI., Queen Mary’s proclamation against the rebels recites his challenge as a full disproval of the charges. When the armies were drawn up at Carberry Hill, Bothwell again came forward and renewed his challenge. James Murray, who had already offered to accept it, took it up at once, but Bothwell refused to meet him on account of the inequality in their rank. Murray’s brother, William of Tullibardin, then offered himself, and Bothwell again declined, as the Laird of Tullibardin was not a peer of the realm. Many nobles then eagerly proposed to take his place, and Lord Lindsay especially insisted on being allowed the privilege of proving the charge on Bothwell’s body, but the latter delayed on various pretexts, until Queen Mary was able to prohibit the combat.[799] The last judicial duels fought in Scotland were two which occurred as the sixteenth century was closing. In 1595, under a warrant from James VI. John Brown met George Hepburn and was vanquished, though his life was spared at the request of the judges. In 1597 Adam Bruntfield charged James Carmichael with causing the death of his brother, and under royal licence fought and slew him before a crowd of five thousand spectators. Yet even this was not the end of the legal custom, for in 1603 an accusation of treason against Francis Mowbray was adjudged to be settled by the duel, though the combat was prevented by Mowbray meeting his death in an attempt to escape from prison, after which he was duly hanged and quartered.[800]

In England, the resolute conservatism, which resists innovation to the last, prolonged the existence of the wager of battle until a period unknown in other enlightened nations. No doubt a reason for this may be found in the rise of the jury trial towards the end of the twelfth century, which, as we have seen above (p. 144), furnished an effective substitute for the combat in doubtful cases. As the jury system developed itself in both civil and criminal matters the sphere of the duel became more limited, in practice if not in theory, and its evils being thus less felt the necessity for its formal abrogation was less pressing.[801] It was thus enabled to hold its place as a recognized form of procedure to a later period than in any other civilized land. Already in the first quarter of the thirteenth century Mr. Maitland tells us that in criminal cases it had become uncommon, but the number of examples of it which he gives shows that this can only be in comparison with its greater frequency in the preceding century and that it was still in common use notwithstanding the tendency of the judges to disallow it.[802] At the close of the fourteenth century, when France was engaged in rendering it rapidly obsolete, Thomas, Duke of Gloucester, dedicated to his nephew Richard II. a treatise detailing elaborately the practice followed in the Marshal’s court with respect to judicial duels.[803] Even a century later, legislation was obtained to prevent its avoidance in certain cases. The “Statute of Gloucester” (6 Ed. II. cap. 9), in 1333, had given to the appellant a year and a day in which to bring his appeal of death—a privilege allowed the widow or next of kin to put the accused on a second trial after an acquittal on a public indictment—which, as a private suit, was usually determined by the combat. In practice, this privilege was generally rendered unavailing by postponing the public prosecution until the expiration of the delay, so as to prevent the appeal. In 1486, however, a law was passed to diminish the frequency of murder, which required the trial to be finished before the expiration of the year and day, and ordered the justices, in case of acquittal, to hold the defendant in prison or on bail until the time had passed, so as to insure to the widow or next of kin the opportunity of prosecuting the appeal of death.[804] Another evidence of the prevalence of the custom is to be found in the rule which, in the fifteenth century, permitted a priest to shrive a man who was about to wage his battle, without regard to the fact as to whose parishioner he might legally be—

And of mon that schal go fyghte In a bateyl for hys ryghte, Hys schryft also thou myghte here, Thagh he thy pareschen neuer were.[805]

With the advance of civilization and refinement, the custom gradually declined, but it was not abolished. The last duel fought out in England is said to be one in 1492 between Sir James Parker and Hugh Vaughan, arising from a grant of armorial bearings to Vaughan; it was fought on horseback with lances, and at the first course Vaughan slew his antagonist.[806] Still the old laws remained unaltered, and an occasional appeal to them, while it offended men’s common sense, was insufficient to cause their repeal. In 1571 a case occurred, as Spelman says, “non sine magna jurisconsultorum perturbatione,” when, to determine the title to an estate in Kent, Westminster Hall was forced to adjourn to Tothill Fields, and all the preliminary forms of a combat were literally enacted with the most punctilious exactness, though an accommodation between the parties saved the skulls of their champions.[807] In 1583, however, a judicial duel was actually fought in Ireland between two O’Connors on an accusation of treason brought by one against the other, which ended by the appellant cutting off the defendant’s head and presenting it on his sword’s point to the justices.[808]

A device, peculiar to the English jurisprudence, allowed a man indicted for a capital offence to turn “approver,” by confessing the crime and charging or appealing any one he choose as an accomplice, and this appeal was usually settled by the single combat. Indeed, even when a criminal had confessed he was sometimes pardoned on condition of his being victorious in a specified number of duels, and thus compounding for his own life by the service rendered to society in relieving it of so many malefactors, as in a case in 1221 where a confessed thief “became approver to fight five battles.”[809] The custom continued to be a feature of criminal jurisprudence sufficiently important to require legislation as late as the year 1599, when the Act 41 Eliz. chap. 3 was passed to regulate the nice questions which attended appeals of several persons against one, or of one person against several. In the former case, the appellee, if victorious in the first duel, was acquitted; in the latter, the appellor was obliged to fight successively with all the appellees.[810] In civil suits the last case on record, I believe, is that of Claxton v. Lilburn, which shows curiously enough the indisposition to put an end to what was regarded by common consent as a solecism. A valuable estate in Durham, said to be worth more than £200 a year, was the subject in dispute. Claxton had been unsuccessful in a suit for its recovery, and had brought a new action, to which Lilburn responded, Aug. 6th, 1638, by producing in court his champion, George Cheney, in array, armed with a sandbag and battoon, who cast into the court his gauntlet with five small pence in it, and demanded battle. Claxton rejoined by producing a champion similarly armed, and gaged his battle. The court was nonplussed, putting off the proceedings from day to day, and seeking some excuse for refusing the combat. The champions were interrogated, and both admitted that they were hired for money. King Charles demanded the opinion of the Chief Justice and all his barons whether this was sufficient to invalidate the proceedings, but they unanimously replied that after battle was gaged and sureties given, such confession was no bar to its being carried out. The King then ordered his judges if possible to find some just way for its prevention, but they apparently could do nothing save procrastinate the matter for years, for in 1641 Lilburn petitioned the Long Parliament, setting forth that he had repeatedly claimed his right of battle and had produced his champion, but was ever put off by the judges finding some error in the record. Parliament thereupon ordered a bill to be brought in taking away the judicial combat.[811] It was not enacted however, and Sir Matthew Hale, writing towards the close of the century, feels obliged to describe with considerable minuteness the various niceties of the law, though he is able to speak of the combat as “an unusual trial at this day.”[812]

In 1774, the subject incidentally attracted attention in a manner not very creditable to the enlightenment of English legislation. When, to punish the rebellious Bostonians for destroying the obnoxious tea, a “Bill for the improved administration of justice in the province of Massachusetts Bay” was passed, it originally contained a clause depriving the New Englanders of the appeal of death, by which, it will be remembered, a man acquitted of a charge of murder could be again prosecuted by the next of kin, and the question could be determined by the wager of battle. The denial of this ancestral right aroused the indignation of the liberal party in the House of Commons, and the point was warmly contested. The learned and eloquent Dunning, afterwards Lord Ashburton, one of the leaders of opposition, defended the ancient custom in the strongest terms. “I rise,” said he, “to support that great pillar of the constitution, the appeal for murder; I fear there is a wish to establish a precedent for taking it away in England as well as in the colonies. It is called a remnant of barbarism and gothicism. The whole of our constitution, for aught I know, is gothic.... I wish, sir, that gentlemen would be a little more cautious, and consider that the yoke we are framing for the despised colonists may be tied round our own necks!” Even Burke was heard to lift a warning voice against the proposed innovation, and the obnoxious clause had to be struck out before the ministerial majority could pass the bill.[813] Something was said about reforming the law throughout the empire, but it was not done, and the beauty of the “great pillar of the constitution,” the appeal of death, was shown when the nineteenth century was disgraced by the resurrection of all the barbaric elements of criminal jurisprudence. In 1818, the case of Ashford vs. Thornton created much excitement. Ashford was the brother of a murdered girl, whose death, under circumstances of peculiar atrocity, was charged upon Thornton, with much appearance of probability. Acquitted on a jury trial, Thornton was appealed by Ashford, when he pleaded “Not guilty, and I am ready to defend the same by my body.” After elaborate argument, Lord Ellenborough, with the unanimous assent of his brother justices, sustained the appellee’s right to this as “the usual and constitutional mode of trial,” expounding the law in almost the same terms as those which we read in Bracton and Beaumanoir.[814] The curious crowd was sorely disappointed when the appellant withdrew, and the chief justice was relieved from the necessity of presiding over a gladiatorial exhibition. A similar case occurred almost simultaneously in Ireland, and the next year the Act 59 Geo. III. chap. 46, at length put an end to this remnant of Teutonic barbarism.[815]

* * * * *

America, inheriting the blessings of English law, inherited also its defects. The colonies enjoyed the privilege of the appeal of death, against the abrogation of which, in the province of Massachusetts Bay, Dunning protested so vehemently. At least one instance of its employment is to be found here, when in 1765, in Maryland, Sarah Soaper appealed a negro slave named Tom for the murder of her husband. The negro, however, was probably not aware of his privilege to demand the wager of battle, so he submitted to be tried by a jury, and was duly condemned and executed.[816] John C. Gray, Jr., Esq., of Boston, to whom I am indebted for calling my attention to this and some other sources of information on the subject, informs me of a tradition that a disputed question of boundary between two townships in New Hampshire was once settled by combat between champions; but the most conservative State in this respect appears to be South Carolina. An act of that colony, in 1712, enumerating the English laws to be held in force, specifically includes those concerning appeal of death, and Dr. Cooper, in his “Statutes at Large of South Carolina,” writing in 1837, seems to think that both the wager of battle and appeal of death were still legally in force there at that time.[817] So Chancellor Kilty, in his Report on English Statutes applicable to Maryland, made in 1811, apparently considers that the appeal of death was still legally existent, but regards it as unimportant in view of the pardoning power and other considerations.[818]

III.

THE ORDEAL.

I. UNIVERSAL INVOCATION OF THE JUDGMENT OF GOD

Although the wager of battle and the other ordeals have much in common, there is sufficient distinction between them to render convenient their separate consideration, even at the risk of a little occasional repetition. The development and career of these forms of the judgment of God were not in all respects similar, nor was their employment in all cases the same. The mere fact that the duel was necessarily a bilateral ordeal, to which both sides had to submit, in itself establishes a limit as to the cases fitted for its employment, nor were all races of mankind adapted by character for its use. Moreover, in its origin it was simply a device for regulating under conditions of comparative fairness the primitive law of force, and the conception of the intervention of a Divine Power, whereby victory would enure to the right, probably was a belief subsequently engrafted on it. In the other ordeals this is the fundamental idea on which they were based, and we may perhaps assume that they represent a later development in human progress, in which brute strength has declined somewhat from its earliest savage supremacy, and a reliance upon the interposition of a superhuman agency, whether the spirit of a fetish or an omnipotent and just Godhead, single or multiform, has grown sufficiently strong to be a controlling principle in the guidance of daily life.

Yet this, too, is only a step in the evolution of human thought, before it can grasp the conception of an Omnipotence that shall work out its destined ends, and yet allow its mortal creatures free scope to mould their own fragmentary portions of the great whole—a Power so infinitely great that its goodness, mercy, and justice are compatible with the existence of evil in the world which it has formed, so that man has full liberty to obey the dictates of his baser passions, without being released from responsibility, and, at the same time, without disturbing the preordained results of Divine wisdom and beneficence. Accordingly, we find in the religious history of almost all races that a belief in a Divine Being is accompanied with the expectation that special manifestations of power will be made on all occasions, and that the interposition of Providence may be had for the asking, whenever man, in the pride of his littleness, condescends to waive his own judgment, and undertakes to test the inscrutable ways of his Creator by the touchstone of his own limited reason. Thus miracles come to be expected as matters of every-day occurrence, and the laws of nature are to be suspended whenever man chooses to tempt his God with the promise of right and the threat of injustice to be committed in His name.

To this tendency of the human mind is attributable the almost universal adoption of the so-called Judgment of God, by which men, oppressed with doubt, have essayed in all ages to relieve themselves from responsibility by calling in the assistance of Heaven. Nor, in so doing, have they seemed to appreciate the self-exaltation implied in the act itself, but in all humility have cast themselves and their sorrows at the feet of the Great Judge, making a merit of abnegating the reason which, however limited, has been bestowed to be used and not rejected. In the Carlovingian Capitularies there occurs a passage, dictated doubtless by the spirit of genuine trust in God, which well expresses the pious sentiments presiding over acts of the grossest practical impiety. “Let doubtful cases be determined by the judgment of God. The judges may decide that which they clearly know, but that which they cannot know shall be reserved for Divine judgment. Whom God hath kept for his own judgment may not be condemned by human means. ‘Therefore judge nothing before the time, until the Lord come, who both will bring to light the hidden things of darkness, and will make manifest the counsels of the hearts’”[819] (1 Cor. iv. 5). That Heaven would interpose to save the guiltless was taught in too many ways to admit of doubt. An innocent man, we are told, was accused of a murder and pursued till he took refuge in the cell of St. Macarius, who at once proposed to determine the question of his guilt by an appeal to God. Adjourning to the grave of the slain the saint addressed a prayer to Christ and then called upon the dead man to declare whether the accused had killed him. A voice from the tomb responded in the negative and the fugitive was released; but when the saint was asked to pursue the investigation and ascertain the name of the murderer, he replied that this was none of his duty, for the sinner might already have repented.[820]

The superstition which we here find dignified with the forms of Christian faith manifests itself among so many races and under such diverse stages of civilization that it may be regarded as an inevitable incident in human evolution, only to be outgrown at the latest periods of development. In this, however, as in so many other particulars, China furnishes virtually an exception. Her arrested thought exhibits itself, in the King or sacred books collected by Confucius five hundred years before the Christian era, in nearly the same form as is found in the orthodox opinion of to-day. In this, religious belief is but a system of cold morality, which avoids the virtues as well as the errors of more imaginative faiths. In the most revered and authoritative of the Chinese Scriptures, the Shu-King, or Holy Book, we find a theo-philosophy based on a Supreme Power, Tai-Ki, or Heaven, which is pure reason, or the embodiment of the laws and forces of nature acting under the pressure of blind destiny. It is true that some forms of divination were practised, and even enjoined, but no fuller expression of belief in direct interposition from above is to be found than that contained in the saying attributed to Muh-Wang (about 1000 B. C.) in his instructions to his judges in criminal cases: “Say not that Heaven is unjust; it is man who brings these evils on himself. If it were not that Heaven inflicts these severe punishments the world would be ungoverned.”[821] It is, therefore, in strict compliance with this philosophy that in the modern jurisprudence of China there is no allusion to any evidence save that of facts duly substantiated by witnesses, and even oaths are neither required nor admitted in judicial proceedings.[822]

These teachings, however, are too refined and sublimated for ordinary human nature, and along-side of official Confucianism, Taoism and Buddhism flourish with a wealth of legends and marvels that may fairly rival the most exuberant fancies of Teutonic or Latin mediævalism. In the popular mind, therefore, the divine interposition may perpetually be expected to vindicate innocence and to punish crime, and moral teaching to a great extent consists of histories illustrating this belief in all its phases and in every possible contingency of common-place life. Thus it is related that in A. D. 1626 the learned Doctor Wang-i had two servants, one stupid and the other cunning. The latter stole from his master a sum of money, and caused the blame to fall upon his comrade, who was unable to justify himself. By way of securing him, he was tied to a flagstaff, and his accuser was set to watch him through the night. At midnight the flagstaff broke in twain with a loud noise, the upper portion falling upon the guilty man and killing him, while the innocent was left unhurt; and next morning, when the effects of the dead man were examined, the stolen money was found among them, thus completely establishing the innocence of his intended victim.[823] Popular beliefs such as these naturally find their expression in irregular judicial proceedings, in spite of the strict materialism of the written law, and, at least in some parts of China, a curious form of the ordeal of chance is employed in default of testimony. If an injured husband surprises his wife flagrante delicto he is at liberty to slay the adulterous pair on the spot; but he must then cut off their heads and carry them to the nearest magistrate, before whom it is incumbent on him to prove his innocence and demonstrate the truth of his story. As external evidence is not often to be had in such cases, the usual mode of trial is to place the heads in a large tub of water, which is violently stirred. The heads, in revolving, naturally come together in the centre, when, if they meet back to back, the victims are pronounced guiltless, and the husband is punished as a murderer; but if they meet face to face, the truth of his statement is accepted as demonstrated, he is gently bastinadoed to teach him that wives should be more closely watched, and is presented with a small sum of money wherewith to purchase another spouse.[824]

The cognate civilization of Japan yields even more readily to the temptation of seeking from the Deity a solution of doubt. Anciently there were in general use the judgments of God, so well known in mediæval Europe, of the wager of battle and the ordeal of boiling water, and the latter is still customarily employed among the Ainos, or aborigines. Even yet two antagonists may be seen to plunge their hands in scalding water, the one who suffers the most being convicted, while the innocent is expected to escape with injuries so slight that they will readily heal.[825]

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Turning to the still savage races of the old world we everywhere find these superstitions in full force. Africa furnishes an ample store of them, varying from the crudest simplicity to the most deadly devices. Among the Kalabarese the afia-edet-ibom is administered with the curved fang of a snake, which is dexterously inserted under the lid and around the ball of the eye of the accused; if innocent, he is expected to eject it by rolling the eye, while, if unable to do so, it is removed with a leopard’s tooth, and he is condemned. Even ruder, and more under the control of the operator, is the afia-ibnot-idiok, in which a white and a black line are drawn on the skull of a chimpanzee: this is held up before the defendant, when an apparent attraction of the white line towards him demonstrates his innocence, or an inclination of the black line in his direction pronounces his guilt. More formidable than these is the ordeal-nut, containing a deadly poison which causes frothing at the mouth, convulsions, paralysis, and speedy death. In capital cases, or even when sickness is attributed to hostile machinations, the abiadiong, or sorcerer, decides who shall undergo the trial; and as the active principle of the nut can be extracted by preliminary boiling, judicious liberality on the part of the individual selected is supposed to render the ordeal comparatively harmless.[826]

Throughout a wide region of Western Africa, one of the most popular forms of ordeal is that of the red water, or “sassy-bark.” In the neighborhood of Sierra-Leone, as described by Dr. Winterbottom, it is administered by requiring the accused to fast for twelve hours, and then to swallow a small quantity of rice. After this the infusion of the bark is taken in large quantities, as much as a gallon being sometimes employed; if it produces emesia, so as to eject all of the rice, the proof of innocence is complete, but if it fails in this, or if it acts as a purgative, the accused is pronounced guilty. It has narcotic properties, also, a manifestation of which is likewise decisive against the sufferer. Among some of the tribes this is determined by placing on the ground small sticks about eighteen inches apart, or by forming an archway of limbs of trees bent to the ground, and requiring the patient to pick his way among them, a feat rendered difficult by the vertiginous effects of the poison. Although death not infrequently results from the ordeal itself, yet the faith reposed in these trials is so absolute that, according to Dr. Livingston, they are demanded with eagerness by those accused of witchcraft, confident in their own innocence and believing that the guilty alone can suffer. When the red water is administered for its emetic effects, the popular explanation is that the fetish enters with the draught, examines the heart of the accused, and, on finding him innocent, returns with the rice as evidence.[827] A system directly the reverse of all this is found in Ashantee, where sickness in the ordeal is a sign of innocence, and the lex talionis is strictly observed. When evidence is insufficient to support a charge, the accuser is made to take an oath as to the truth of his accusation, and the defendant is then required to chew a piece of odum wood and drink a pitcher of water. If no ill effects ensue, he is deemed guilty, and is put to death; while if he becomes sick, he is acquitted and the accuser suffers in his stead.[828]

Further to the east in the African continent, the Niam-Niam and the neighboring tribes illustrate the endless variety of form of which the ordeal is susceptible. These savages resort to various kinds of divination which are equally employed as a guidance for the future in all important undertakings, and as means to discover the guilt or the innocence of those accused of crime. The principal of these is the borru, in which two polished pieces of damma wood are rubbed together, after being moistened with a few drops of water. If they glide easily on each other the sign is favorable; if they adhere together it is unfavorable. Life and death are also brought in play, but vicarious victims are made the subject of experiment. Thus a cock is taken and its head is repeatedly immersed in water until the creature is rigid and insensible; if it recovers, the indication is favorable, if it dies, adverse. Or an oil extracted from the bengye wood is administered to a hen, and the same conclusions are drawn from its survival or death.[829]

The Somali of Ethiopia employ the ordeals of red-hot iron and boiling water or oil in virtually the same form as we shall see them used in India and Europe, examining the hand of the accused after twenty-four hours to determine his guilt from its condition.[830]

In Madagascar the poison ordeal is customarily administered, with a decoction of the deadly nut of the Tangena (Tanghinia venenifera). One of the modes of its application is evidently based on the same theory as the ordeal of red water and rice, to which it bears a notable resemblance. A fowl is boiled, and three pieces of its skin are placed in the broth. Then a cupful of the decoction of the Tangena nut is given to the accused, followed by the same quantity of the broth, with the pieces of skin. Unless the poison speedily causes vomiting, it soon kills the patient, which is a satisfactory proof of his guilt. If vomiting ensues, it is kept up by repeated doses of the broth and warm water, and if the bits of skin are ejected the accused is declared innocent; but if they are retained he is deemed convicted and is summarily despatched with another bowl of the poison. In the persecutions of 1836 and 1849 directed against the Malagasy Christians, many of the converts were tried with the Tangena nut, and numbers of them perished.[831] The ordeals of red-hot iron and boiling water are also used.[832]

Springing from the same belief is the process used in Tahiti for discovering the criminal in cases of theft. The priest, when applied to, digs a hole in the clay floor of his hut, fills it with water, and stands over it with a young plantain in his hand, while invoking his god. The deity thereupon conducts the spirit of the thief over the water, and his reflection is recognized by the priest.[833]

The races of the Indian archipelago are fully equipped with resources of the same kind for settling doubtful cases. Among the Dyaks of Borneo questions for which no other solution is apparent are settled by giving to each litigant a lump of salt, which they drop simultaneously into water, and he whose lump dissolves soonest is adjudged the loser; or each takes a living shell and places it on a plate, when lime-juice is squeezed over them, and the one whose shell first moves under this gentle stimulant is declared the winner.[834]

In the Philippines there are various peculiar ordeals in use. A needle is sometimes thrust into the scalp of two antagonists, and he from whom the blood flows most profusely is adjudged the loser; or two chickens are roasted to death and then opened, and the owner of the one which is found to have the largest liver is defeated.[835]

The black Australioid Khonds of the hill districts of Orissa confirm the universality of these practices by customs peculiar to themselves which may be assumed as handed down by tradition from prehistoric times. Not only do they constantly employ the ordeals of boiling water and oil and red-hot iron, which they may have borrowed from their Hindu neighbors, but they administer judicial oaths with imprecations that are decidedly of the character of ordeals. Thus an oath is taken on a tiger’s skin with an invocation of destruction from that animal upon the perjured; or upon a lizard’s skin whose scaliness is invited upon him who may forswear himself; or over an ant-hill with an imprecation that he who swears falsely may be reduced to powder. A more characteristic ordeal is that used in litigation concerning land, when a portion of earth from the disputed possession is swallowed by each claimant in the belief that it will destroy him whose pretensions are false. On very solemn occasions a sheep is killed in the name of Tari Pennu, the dreadful earth-goddess: rice is then moistened with its blood, and this is administered, in the full conviction that she will slay the rash litigant who insults her power by perjury.[836]

The hill-tribes of Rajmahal, who represent another of the pre-Aryan Indian races, furnish us with further developments of the same principle, in details bearing a marked analogy to those practised by the most diverse families of mankind. Thus the process by which the guilt of Achan was discovered (Joshua vii. 16-18), and that by which, as we shall see hereafter, Master Anselm proposed to identify the thief of the sacred vessels of Laon, are not unlike the ceremony used when a district is ravaged by tigers or by pestilence, which is regarded as a retribution for sin committed by some inhabitant, whose identification thus becomes all-important for the salvation of the rest. In the process known as Satane a person sits on the ground with a branch of the bale tree planted opposite to him; rice is handed to him to eat in the name of each village of the district, and when the one is named in which the culprit lives, he is expected to throw up the rice. Having thus determined the village, the same plan is adopted with respect to each family in it, and when the family is identified, the individual is discovered in the same manner. Another form, named Cherreen, is not unlike the ordeal of the Bible and key, not as yet obsolete among Christians. A stone is suspended by a string, and the names of the villages, families, and individuals are repeated, when it indicates the guilty by its vibrations. Thieves are also discovered and convicted by these processes, and by another mode known as Gobereen, which is a modification of the hot-water ordeal. A mixture of cow-dung, oil, and water is made to boil briskly in a pot. A ring is thrown in, and each suspected person, after invoking the Supreme Deity, is required to find and bring out the ring with his hand—the belief being that the innocent will not be burned, while the guilty will not be able to put his hand into the pot, as the mixture will rise up to meet it.[837]

Among the ancient Aztecs the oath assumed the proportions of an ordeal; the accused in taking it touched with his finger first the ground and then his tongue, and a perjury thus committed was expected to be followed with speedy misfortune. So among the Ostiaks and Samoiedes a disculpatory oath with imprecations taken on the head of a bear is held to have the same virtue.[838]

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Reverting to the older races, we find no trace of formal ordeals in the fragmentary remains out of which Egyptologists thus far have succeeded in reconstructing the antique civilization of the Nile valley, but this is not attributable to an intellectual development which had cast them aside as worthless. The intimate dependence of man on the gods, and the daily interposition of the latter in human affairs, were taught by the prophets of the temples and reverently accepted by the people. It was merely a question as to the manner in which the judgment of God was to be obtained, and this apparently took the form of reference to the oracles which abounded in every Egyptian nome. In this we are not left to mere conjecture, for a story related by Herodotus shows that such an interpellation of the divine power was habitual in prosecutions when evidence of guilt was deficient. Aames II., before he gained the crown, was noted for his reckless and dissolute life, and was frequently accused of theft and carried to the nearest oracle, when he was convicted or acquitted according to the response. On ascending the throne, he paid great respect to the shrines where he had been condemned, and neglected altogether those where he had been absolved, saying that the former gave true and the latter lying responses.[839]

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The Semitic races, while not giving to the ordeal the development which it has received among the Aryans, still afford sufficient manifestation of its existence among them. Chaldean and Assyrian institutions have not as yet been sufficiently explored for us to state with positiveness whether or not the judgment of God was a recognized resource of the puzzled dispenser of justice; but the probabilities are strongly in favor of some processes of the kind being discovered when we are more fully acquainted with their judicial system. The constant invocation of the gods, which forms so marked a feature of the cuneiform inscriptions, indicates a belief in the divine guidance of human affairs which could hardly fail to find expression in direct appeals for light in the administration of justice. The nearest approach however to the principle of the ordeal which has thus far been deciphered is found in the imprecations commonly expressed in contracts, donations, and deeds, by which the gods are invoked to shed all the curses that can assail humanity on the heads of those who shall evade the execution of their plighted faith, or seek to present false claims. Akin to this, moreover, was the penalty frequently expressed in contracts whereby their violation was to be punished by heavy fines, the greater part of which was payable into the treasury of some temple.[840]

Among the Hebrews, as a rule, the interposition of Yahveh was expected directly, without the formulas which human ingenuity has invented to invite and ascertain the decisions of the divine will. Still, the combat of David and Goliath has been cited as a model and justification of the judicial duel; and there are some practices described in Scripture which are strictly ordeals, and which were duly put forth by the local clergy throughout Europe when struggling to defend the system against the prohibitions of the papacy. When the man who blasphemed the Lord (Levit. xxiv. 11-16) was kept in ward “that the mind of the Lord might be showed them,” and the Lord ordered Moses to have him stoned by the whole congregation, we are not told the exact means adopted to ascertain the will of Yahveh, but the appeal was identical in principle with that which prompted the mediæval judgment of God. The use of the lot, moreover, which was so constantly employed in the most important and sacred matters, was not a mere appeal to chance, but was a sacred ceremony performed “before the Lord at the door of the tabernacle of the congregation” to learn what was the decision of Yahveh.[841] The lot was also used, if not as a regular judicial expedient, at all events in unusual cases as a mode of discovering criminals, and its results were held to be the undoubted revelation of Omniscience. It is more than probable that the Urim and Thummin were lots, and that they were not infrequently used, as in the cases of Achan and Jonathan.[842] And the popular belief in the efficacy of the lot is manifested in the account of Jonah’s adventure (Jonah i. 7) when the sailors are described as casting lots to discover the sinner whose presence brought the tempest upon them. The most formal and absolute example of the ordeal, however, was the Bitter Water by which conjugal infidelity was convicted and punished (Numb. v. 11-31). This curious and elaborate ceremony, which bears so marked an analogy to the poison ordeals, was abandoned by order of R. Johanan ben Saccai about the time of the Christian era, and is too well known to require more than a passing allusion to the wealth of Haggadistic legend and the interminable controversies and speculations to which it has given rise. I may add, however, that Aben Ezra and other Jewish commentators hold that when Moses burnt the golden calf and made the Israelites drink the water in which its ashes were cast (Exod. xxxii. 20), he administered an ordeal, like that of the Bitter Water, which in some way revealed those who had been guilty of idolatry, so that the Levites could slay them; and Selden explains this by reference to a tradition, according to which the gold of the calf reddened the beards of those who had worshipped it, and thus rendered them conspicuous.[843]

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The teachings of Mahomet were too directly derived from the later Judaism for him to admit into his jurisprudence any formal system depending on miracles to establish justice between man and man whenever Allah might be invoked to manifest his power. Like the Jews, however, he taught that the constant supervision of the divine power is spontaneously exerted, and he carried this so far as to inculcate the belief that a judge pure from self-seeking would be inspired constantly from above. “He who asks to be made judge will not be assisted; and he who is made judge by compulsion, God sends down to him an angel, who causes his actions and sentences to be just.” To one who hesitated to accept the office, the Prophet said, “God will direct your heart, and show you judicial ways, and fix your tongue in truth and justice.” On the other hand, when a judge is unjust, “he separates from himself the assistance and favor of God, and the devil is always with him.” It was hard on litigants when the tribunal might be presided over by either Allah or Eblis, but they had no recourse, except in the oath, which was the corner-stone of Mahomet’s judicial system. In the absence of evidence, the oath of the defendant was final, and this incitement to perjury could only be repressed by investing the oath with the qualities of the ordeal. Accordingly he lost no opportunity of insisting upon the punishment, here and hereafter, of those who perjured themselves before the judgment-seat. Sometimes this failed to deter an eager pleader, and then he consoled the defeated party with the assurance that his successful adversary would suffer in the end, as when the chief of the Cindah tribe urged that a Jew, against whom he brought suit for land unjustly held, would swear falsely, and the Prophet rejoined, “Swearing is lawful, but he who takes a false oath will have no luck in futurity.” Tradition relates, however, that frequently he succeeded thus in frightening those who were ready to forswear themselves, as when a man of Hadramut claimed land occupied by a Cindah, and, being without evidence, the defendant was ready to take the oath, when Mahomet interposed, “No one takes the property of another by oath but will meet God with his tongue cut off,” and the Cindah feared God and said, “The land is his.” In another case, when two men were quarrelling over an inheritance, and neither had a witness, he warned them, “In whose favor soever I may order a thing which is not his right, then I lay apart for him nothing less than a piece of hell-fire,” whereupon each litigant exclaimed, “O messenger of God, I give up my right to him.” Sometimes, however, even Mahomet had recourse to a more direct invocation of the supreme power, as in a case wherein two men disputed as to the ownership of an animal, and neither had witnesses, when he directed them to cast lots upon oath.[844]

These cases do not bear out the tradition that, when the Prophet was perplexed beyond his ability, he had the resource of appealing to the angel Gabriel for enlightenment. There is one legend respecting him, however, which manifests the popular belief that in doubtful cases God may be relied on to interpose for the vindication of innocence. A youth brought before Mahomet on an accusation of murder, protested that the act was committed in self-defence. The Prophet ordered the corpse to be entombed, and postponed the trial until the next day. The brethren of the slain, still insisting on vengeance, were then told that they might inflict upon the murderer precisely the same wounds as those which they should find on the body. On opening the sepulchre for the purpose of ascertaining the exact measure of the punishment conceded, they returned affrighted to the judgment-seat, and reported that they had found nothing but the smoke and stench of Gehenna; whereupon Mahomet pronounced that Eblis had carried off the corpse of the guilty, and that the accused was innocent.[845] The prevalence of superstitions kindred to this, in spite of the principles laid down in the law, is shown by the custom which exists among some tribes of Arabs, of employing the ordeal of red-hot iron in the shape of a gigantic spoon, to which, when duly heated, the accused applies his tongue, his guilt or innocence being manifested by his suffering, or escaping injury.[846] A species of vulgar divination, common among the Turks, moreover, belongs to the same category of thought, as it is used in the detection of thieves by observing the marks on wax slowly melted, while certain magic formulas are recited over it.[847]

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It is among the Aryan races that we are to look for the fullest and most enduring evidences of the beliefs which developed into the ordeal, and gave it currency from the rudest stages of nomadic existence to periods of polished and enlightened civilization. In the perfect dualism of Mazdeism, the Yazatas, or angels of the good creation, were always prompt to help the pure and innocent against the machinations of Ahriman and his Daevas, their power to do so depending only upon the righteousness of him who needed assistance.[848] The man unjustly accused, or seeking to obtain or defend his right, could therefore safely trust that any trial to which he might be subjected would be harmless, however much the ordinary course of nature would have to be turned aside in order to save him. Thus Zoroaster could readily explain and maintain the ancestral practices, the common use of which by both the Zend and the Hindu branches of the Aryan family points to their origin at a period anterior to the separation between the kindred tribes. In the fragments of the Avesta, which embody what remains to us of the prehistoric law of the ancient Persians, we find a reference to the ordeal of boiling water, showing it to be an accepted legal process, with a definite penalty affixed for him who failed to exculpate himself in it:—

“Creator! he who knowingly approaches the hot, golden, boiling water, as if speaking truth, but lying to Mithra;

“What is the punishment for it?

“Then answered Ahura-Mazda: Let them strike seven hundred blows with the horse-goad, seven hundred with the craosho-charana!”[849]

The fire ordeal is also seen in the legend which relates how Sudabeh, the favorite wife of Kai Kaoos, became enamored of his son Siawush, and on his rejecting her advances accused him to his father of endeavoring to seduce her. Kai Kaoos sent out a hundred caravans of dromedaries to gather wood, of which two immense piles were built separated by a passage barely admitting a horseman. These were soaked with naphtha and fired in a hundred places, when Siawush mounted on a charger, after an invocation to God, rode through the flames and emerged without even a discoloration of his garments. Sudabeh was sentenced to death, but pardoned on the intercession of Siawush.[850] Another reminiscence of the same ordeal may be traced among the crowd of fantastic legends with which the career of Zoroaster is embroidered. It is related that when an infant he was seized by the magicians, who foresaw their future destruction at his hands, and was thrown upon a huge pile composed of wood, naphtha, and sulphur, which was forthwith kindled; but, through the interposition of Hormazd, “the devouring flame became as water, in the midst of which slumbered the pearl of Zardusht.”[851]

In Pehlvi the judicial ordeal was known as var nirang, and thirty-three doubtful conjunctures are enumerated as requiring its employment. The ordinary form was the pouring of molten metal on the body of the patient, though sometimes the heated substance was applied to the tongue or the feet.[852] Of the former, a celebrated instance, curiously anticipating the story told, as we shall see hereafter, of Bishop Poppo when he converted the Danes, is related as a leading incident in the reformation of the Mazdiasni religion when the Persian monarchy was reconstructed by the Sassanids. Eighty thousand heretics remained obstinate until Sapor I. was so urgent with his Magi to procure their conversion that the Dustoor Adurabad offered to prove the truth of orthodoxy by suffering eighteen pounds of melted copper to be poured over his naked shoulders if the dissenters would agree to yield their convictions in case he escaped unhurt. The bargain was agreed to, and carried out with the happiest results. Not a hair of the Dustoor’s body was singed by the rivulets of fiery metal, and the recusants were gathered into the fold.[853]

Among the Hindu Aryans so thoroughly was the divine interposition expected in the affairs of daily life that, according to the Manava Dharma Sastra, if a witness, within a week after giving testimony, should suffer from sickness, or undergo loss by fire, or the death of a relation, it was held to be a manifestation of the divine wrath, drawn down upon him in punishment for perjured testimony.[854] There was, therefore, no inducement to abandon the resource of the ordeal, of which traces may be found as far back as the Vedic period, in the forms both of fire and red-hot iron.[855] In the Ramayana, when Rama, the incarnate Vishnu, distrusts the purity of his beloved Sita, whom he has rescued from the Rakshasha Ravana, she vindicates herself by mounting a blazing pyre, from which she is rescued unhurt by the fire-god, Agni, himself.[856] Manu declares, in the most absolute fashion—

“Let the judge cause him who is under trial to take fire in his hand, or to plunge in water, or to touch separately the heads of his children and of his wife.

“Whom the flame burneth not, whom the water rejects not from its depths, whom misfortune overtakes not speedily, his oath shall be received as undoubted.

“When the Rishi Vatsa was accused by his young half-brother, who stigmatized him as the son of a Sudra, he swore that it was false, and, passing through fire, proved the truth of his oath; the fire, which attests the guilt and the innocence of all men, harmed not a hair of his head, for he spake the truth.”

And the practical application of the rule is seen in the injunction on both plaintiff and defendant to undergo the ordeal, even in certain civil cases.[857]

In the more developed code of Vishnu we find the ordeal system exceedingly complicated, pervading every branch of jurisprudence and only limited by the amount at stake or the character or caste of the defendant.[858] Yet Hindu antiquity is so remote and there have been so many schools of teachers that the custom apparently did not prevail in all times and places. One of the most ancient books of law is the Dharmasastra of Gautama, who says nothing of ordeals and relies for proof wholly on the evidence of witnesses, adding the very relaxed rule that “No guilt is incurred in giving false evidence in case the life of a man depends thereon.”[859]

This, however, is exceptional, and the ordeal maintained its existence from the most ancient periods to modern times. Under the name of purrikeh, or parikyah, it is prescribed in the native Hindu law in all cases, civil and criminal, which cannot be determined by written or oral evidence, or by oath, and is sometimes incumbent upon the plaintiff and sometimes upon the defendant. In its various forms it bears so marked a resemblance to the judgments of God current in mediæval Europe that the further consideration of its use in India may be more conveniently deferred till we come to discuss its varieties in detail, except to add that in Hindu, as in Christian courts, it has always been a religious as well as a judicial ceremony, conducted in the presence of Brahmans, and with the use of invocations to the higher powers.[860]

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Buddhism naturally followed the legal institutions which it found established, and accepted the ordeal, though it could scarce form a logical incident in the great system of transmigration whereby the good and evil of the universe distributed itself automatically, without supervision from the thirty-two heavens. We have seen the influence which Buddhism exercised on Chinese materialism, and Tibetan Shamanism could hardly expect to escape it. Thus in Tibet we find the hot water ordeal assume a form which is literally even-handed, and which, if generally enforced, must exert a happily repressive influence over litigation. Both plaintiff and defendant thrust their arms into a caldron of boiling water containing a black and a white stone, the verdict being in favor of him who brings up the white.[861]

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The Hellenic tribes had already, in prehistoric times, reached a point of mental development superior to the grosser forms of the ordeal as a recognized instrument of judicial investigation. These were replaced, as we have seen in Egypt, by habitual resort to oracles, but that some recollection of the ancestral practices was handed down to later ages is shown by the allusions in the Antigone of Sophocles, when the guards protest to Creon their innocence as to the burial of Polynices, and offer to prove it by the ordeal:—

“Ready with hands to bear the red-hot iron, To pass through fire, and by the gods to swear That we nor did the deed, nor do we know Who counselled it, or who performed it” (264-267).

And a remnant of the primæval customs was preserved in the solemnities under which litigation was sometimes determined by one of the parties taking an oath on the heads of his children, or with curses on himself and his family, or passing through fire.[862] The poison ordeal, also, was not wholly obsolete. The Gæum or temple of the broad-breasted Earth, Gæa Eurysternus, at Ægæ in Achaia, was served by a priestess who, though not necessarily a virgin, was yet required to preserve strict celibacy when once invested with her sacred functions. If any doubts arose as to her virtue, it was tested with a draught of bull’s blood, which speedily wrought her punishment if she was guilty. The same temple also furnished an illustration of ascertaining the divine will by means of the lot, for when a vacancy occurred in the priestship, and there were several applicants, the choice between them was determined by a reference to chance.[863]

Even these traces of the ancient customs of the race disappear among the Latins, though they preserved in full force the habits of thought from which the ordeal took its rise. This is seen in the most solemn form of imprecation known to the Romans as lending irrevocable force to promissory oaths—the “Jovem lapidem jurare,”—whether we take the ceremony mentioned by Festus, of casting a stone from the hand while adjuring Jupiter to reject in like manner the swearer if he should prove forsworn, or the form described by Livy as preceding the combat between the Horatii and Curiatii, in which a victim was knocked on the head with a stone under a somewhat similar invocation.[864] Even without this ceremony, imprecatory oaths were used which were based on the belief that the gods would take men at their word and punish them, for forswearing themselves, with the evils which they thus invoked. Thus, after the battle of Cannæ, P. Cornelius Scipio forced the nobles who were plotting to leave Italy to abandon their design and take an oath in which they adjured Jupiter to visit them and all belonging to them with the worst of deaths if they proved false.[865] In the legends of Rome, moreover, sporadic instances may be found of special miraculous interposition to decide the question of innocence or guilt, when the gods properly appealed to would intervene to save their worshippers. These manifestations were principally vouchsafed in favor of the Vestals, as when the pupil of Æmilia was accused of having allowed the sacred fire to be extinguished, and was preserved by its spontaneous ignition on her placing the skirt of her garment upon the altar; or when Tucca, falsely arraigned for unchastity, vindicated her purity by carrying water in a sieve; or when Claudia Quinta, under a similar charge, made good her defence by dragging, with a slender cord, a ship against the rapid current of the Tiber after it had run aground and resisted all efforts to move it—and this with an invocation to the goddess to absolve or condemn her, as she was innocent or guilty, which gives to the affair a marked resemblance to an established form of judicial ordeal.[866] Occasional instances such as these had, however, no influence on the forms and principles of Roman jurisprudence, which was based on reason and not on superstition. With the exception of the use of torture, as we shall see hereafter, the accused was not required to exculpate himself. He was presumed to be innocent, and the burden of proof lay not on him but on the prosecutor. The maxim of the civil law—“Accusatore non probante, reus absolvitur”—is entirely incompatible with the whole theory upon which the system of ordeals is based.[867]

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The barbarian Aryans who occupied Europe brought with them the ancestral beliefs in a form more easily recognizable than the remnants which survived through Hellenic and Italiote civilization. The Feini, or Irish Celts, boasted that their ancient Brehons, or judges, were warned by supernatural manifestations as to the equity of the judgments which they rendered. Sometimes these took the shape of blotches on their cheeks when they pronounced false judgments. Sen Mac Aige was subject to these marks, but with him they disappeared when he decided righteously, while Sencha Mac Aillila was less fortunate, for he was visited with three permanent blotches for each mistake. Fachtna received the surname of Tulbrethach because, whenever he delivered a false judgment, “if in the time of fruit, all the fruit in the territory in which it happened fell off in one night; if in time of milk, the cows refused their calves; but if he passed a true judgment, the fruit was perfect on the trees.” Morann never pronounced a judgment without wearing around his neck a chain, which tightened upon him if the judgment was false, but expanded down upon him if it were true. These quaint legends have their interest as manifesting the importance attached by the ancient Irish to the impartial administration of absolute justice, and the belief entertained that a supernatural power was ever on the watch over the tribunals, but these manifestations were too late to arrest injustice, as they did not occur until after it was committed. The Feini therefore did not abandon the ancient resource of the ordeal, as is shown by a provision in the Senchus Mor, which grants a delay of ten days to a man obliged to undergo the test of boiling water.[868] The Celts of the Rhinelands also had a local custom of determining the legitimacy of children by an ordeal of the purest chance, which became a common-place of Roman rhetoric, and is thus described in the Anthology:—

Θαρσαλέοι Κελτοὶ ποταμῷ ζηλήμονι Ρήνω χ. τ. λ.

Upon the waters of the jealous Rhine The savage Celts their children cast, nor own Themselves as fathers till the power divine Of the chaste river shall the truth make known. Scarce breathed its first faint cry, the husband tears Away the new-born babe, and to the wave Commits it on his shield, nor for it cares Till the wife-judging stream the infant save, And prove himself the sire. All trembling lies The mother, racked with anguish, knowing well The truth, but forced to risk her cherished prize On the inconstant waters’ reckless swell.[869]

The Teutonic tribes, anterior to their conversion, likewise exhibit the ordeal as a recognized resource in judicial proceedings. The Norræna branch, as we have seen, cultivated the holm-gang, or duel, with ardor, and they likewise employed the hot-water ordeal, besides a milder form peculiar to themselves entitled the skirsla, in which one of the parties to a suit could prove the truth of his oath by passing under a strip of turf raised so that it formed an arch with each end resting on the ground, the belief being that if he had forsworn himself the turf would fall on him as he passed beneath it.[870] The Germanic tribes, in their earliest jurisprudence, afford similar evidence of adherence to the customs of their eastern brethren. The most ancient extant recension of the Salic law may safely be assumed as coeval with the conversion of Clovis, as it is free from all allusions to Christian rules, such as appear in the later versions, and in this the trial by boiling water finds its place as a judicial process in regular use.[871] Among the Bavarians, the decree of Duke Tassilo in 772 condemns as a relic of pagan rites a custom named stapfsaken, used in cases of disputed debt, which is evidently a kind of ordeal from the formula employed, “Let us stretch forth our right hands to the just judgment of God!”[872]

The Slavs equally bear witness to the ancestral practice of the ordeal as a judicial process. The prauda jeliezo, or hot-iron ordeal, was in use among them in early times.[873] In Bohemia, the laws of Brzetislas, promulgated in 1039, make no allusion to any other form of evidence in contested cases, while in Russia it was the final resort in all prosecutions for murder, theft, and false accusation.[874]

As the Barbarians established themselves on the ruins of the Roman Empire and embraced Christianity they, with one exception, cultivated the institution of the ordeal with increased ardor. This exception is found in the Gothic nations, and is ascribable, as we have seen when treating of the judicial combat, to the influence of the Roman customs and laws which they adopted. For nearly two centuries after their settlement, there is no allusion in their body of laws to any form of ordeal. It was not until 693, long after the destruction of their supremacy in the south of France, and but little prior to their overthrow in Spain by the Saracens, that King Egiza, with the sanction of a Council of Toledo, issued an edict commanding the employment of the æneum or ordeal of boiling water.[875]

Various causes were at work among the other tribes to stimulate the favor with which the ordeal was regarded. As respects the wager of battle I have already traced its career as a peculiarly European form of the Judgment of God, which was fostered by the advantage which it gave, in the times of nascent feudalism, to the bold and reckless. With regard to the other forms, one reason for their increased prevalence is doubtless to be found in the universal principle of the Barbarians, in their successive settlements, to allow all races to retain their own jurisprudence, however much individuals might be intermingled, socially and politically. The confusion to which this gave birth is well set forth by St. Agobard, when he remarks that frequently five men shall be found in close companionship, each one owning obedience to a different law. He also states that under the Burgundian rules of procedure, no one was allowed to bear witness against a man of different race.[876] Under these circumstances, in a large proportion of cases there could be no legal evidence attainable, and recourse was had of necessity to the Judgment of God. Even when this rule was not in force, a man who appealed to Heaven against the testimony of a witness of different origin would be apt to find the court disposed to grant his request. If the judge, moreover, was a compatriot of one of the pleaders, the other would naturally distrust his impartiality, and would prefer to have the case decided by the Omniscient whose direct interposition he was taught to regard as undoubted. That the assumed fairness of the ordeal was highly prized under such circumstances we have evidence in the provisions of a treaty between the Welsh and the Saxons, about the year 1000, according to which all questions between individuals of the two races were to be settled in this manner, in the absence of a special agreement between the parties.[877]

The most efficient cause of the increased use of the ordeal was, however, to be found in the Church. With her customary tact, in converting the Barbarians, she adopted such of their customs as she could adapt to Christian belief and practice; and she accepted the ordeal as an undoubted appeal to God, whose response was regarded as unquestionable, warrant being easily found for this in the Jewish practices already described. The pagan ceremonies were moulded into Christian rites, and the most solemn forms of religion were thrown around the rude expedients invented thousands of years before by the Bactrian nomads. Elaborate rituals were constructed, including celebration of mass and impressive prayers, adjurations and exorcisms of the person to undergo the trial and of the materials used in it, and the most implicit faith was inculcated in the interposition of God to defend the right and to punish guilt.[878] The administration of the ordeal being thus reserved for priestly hands, the Church acquired a vastly increased influence as the minister of justice, to say nothing of the revenues thence arising, and the facility with which ecclesiastics could thus defend themselves when legally assailed by their turbulent flocks. We are not without evidence of the manner in which the church thus favored the use of this Christianized paganism, and introduced it along with Christianity among people to whom it was previously unknown. Thus among the Turanian Majjars, the laws of King Stephen, promulgated in 1216, soon after his conversion, contain no allusion to the ordeal, but in those of Ladislas and Coloman, issued towards the end of the century, it is found, in its various forms, thoroughly established as a means of legal proof.[879] So, when in the twelfth century Bishop Geroldus converted the Slavs of Mecklenburg, they were at once forbidden to settle questions by oaths taken on trees, fountains, and stones, as before, but were required to bring their criminals before the priest to be tried by the hot iron or ploughshares.[880] Under the Crusaders, the ordeal was carried back towards the home of its birth, even contaminating the Byzantine civilization, and various instances of its use are related by the historians of the Lower Empire to a period as late as the middle of the fourteenth century.

The ingenuity of the church and the superstition of the people increased somewhat the varieties of the ordeal which we have seen employed in the East. Besides the judicial combat, the modes by which the will of Heaven was ascertained may be classed as the ordeal of boiling water, of red-hot iron, of fire, of cold water, of the balance, of the cross, of the corsnœd or swallowing bread or cheese, of the Eucharist, of the lot, bier-right, oaths on relics, and poison ordeals. In some of these, it will be seen, a miraculous interposition was required for an acquittal, in others for a condemnation; some depended altogether on volition, others on the purest chance; while others, again, derived their efficacy from the influence exerted over the mind of the patient.