The Spirit Of Laws Part 27

What has been said sufficiently explains the manner in which the Roman law began so very early to become territorial, as may be seen in the edict of Pistes; and how the Gothic law continued still in force, as appears by the synod of Troyes above mentioned.67 The Roman had become the general personal law, and the Gothic the particular personal law; consequently the Roman law was territorial. But how came it, some will ask, that the personal laws of the barbarians fell everywhere into disuse, while the Roman law was continued as a territorial inst.i.tution in the Visigoth and Burgundian provinces? I answer, that even the Roman law had very nearly the same fate as the other personal inst.i.tutions; otherwise we would still have the Theodosian code in those provinces where the Roman law was territorial, whereas we have the Inst.i.tutes of Justinian. Those provinces retained scarcely anything more than the name of the country under the Roman, or written law, than the natural affection which people have for their own inst.i.tutions, especially when they consider them as privileges, and a few regulations of the Roman law which were not yet forgotten. This was, however, sufficient to produce such an effect, that when Justinian's compilation appeared, it was received in the provinces of the Gothic and Burgundian demesne as a written law, whereas it was admitted only as written reason in the ancient demesne of the Franks.

13.-Difference between the Salic law, or that of the Salian Franks, and that of the Ripuarian Franks and other barbarous Nations.

The Salic law did not allow of the custom of negative proofs; that is, if a person brought a demand or charge against another, he was obliged by the Salic law to prove it, and it was not sufficient for the second to deny it, which is agreeable to the laws of almost all nations.

The law of the Ripuarian Franks had quite a different spirit;68 it was contended with negative proofs, and the person, against whom a demand or accusation was brought, might clear himself, in most cases, by swearing, in conjunction with a certain number of witnesses, that he had not committed the crime laid to his charge. The number of witnesses who were obliged to swear69 increased in proportion to the importance of the affair; sometimes it amounted to seventy-two.70 The laws of the Alemans, Bavarians, Thuringians, Frisians, Saxons, Lombards, and Burgundians were formed on the same plan as those of the Ripuarians.

I observed, that the Salic law did not allow of negative proofs. There was one case, however, in which they were allowed:71 but even then they were not admitted alone, and without the concurrence of positive proofs. The plaintiff caused witnesses to be heard,72 in order to ground his action, the defendant produced also witnesses on his side, and the judge was to come at the truth by comparing those testimonies.73 This practice was vastly different from that of the Ripuarian, and other barbarous laws, where it was customary for the party accused to clear himself by swearing he was not guilty, and by making his relatives also swear that he had told the truth. These laws could be suitable only to a people remarkable for their natural simplicity and candor; we shall see presently that the legislators were obliged to take proper methods to prevent their being abused.

14.-Another Difference The Salic law did not admit of the trial by combat; though it had been received by the laws of the Ripuarians74 and of almost all the barbarous nations.75 To me it seems, that the law of combat was a natural consequence, and a remedy of the law which established negative proofs. When an action was brought, and it appeared that the defendant was going to elude it by an oath, what other remedy was left to a military man,76 who saw himself upon the point of being confounded, than to demand satisfaction for the injury done to him: and even for the attempt of perjury? The Salic law, which did not allow the custom of negative proofs, neither admitted nor had any need of the trial by combat; but the laws of the Ripuarians77 and of the other barbarous nations78 who had adopted the practice of negative proofs, were obliged to establish the trial by combat.

Whoever will please to examine the two famous regulations of Gundebald, King of Burgundy, concerning this subject will find they are derived from the very nature of the thing.79 It was necessary, according to the language of the barbarian laws, to rescue the oath out of the hands of a person who was going to abuse it.

Among the Lombards, the law of Rotharis admits of cases in which a man who had made his defence by oath should not be suffered to undergo the hards.h.i.+p of a duel. This custom spread itself further:80 we shall presently see the mischiefs that arose from it, and how they were obliged to return to the ancient practice.

15.-A Reflection I do not pretend to deny that in the changes made in the code of the barbarian laws, in the regulations added to that code, and in the body of the Capitularies, it is possible to find some pa.s.sages where the trial by combat is not a consequence of the negative proof. Particular circ.u.mstances might, in the course of many ages, give rise to particular laws. I speak only of the general spirit of the laws of the Germans, of their nature and origin; I speak of the ancient customs of those people, that were either hinted at or established by those laws; and this is the only matter in question.

16.-Of the Ordeal or Trial by boiling Water, established by the Salic Law The Salic law81 allowed of the ordeal, or trial by boiling water; and as this trial was excessively cruel, the law found an expedient to soften its rigor.82 It permitted the person, who had been summoned to make the trial with boiling water, to ransom his hand, with the consent of the adverse party. The accuser, for a particular sum determined by the law, might be satisfied with the oath of a few witnesses, declaring that the accused had not committed the crime. This was a particular case, in which the Salic law admitted of the negative proof.

This trial was a thing privately agreed upon, which the law permitted only, but did not ordain. The law gave a particular indemnity to the accuser, who would allow the accused to make his defence by a negative proof: the plaintiff was at liberty to be satisfied with the oath of the defendant, as he was at liberty to forgive him the injury.

The law contrived a middle course,83 that before sentence pa.s.sed, both parties, the one through fear of a terrible trial, the other for the sake of a small indemnity, should terminate their disputes, and put an end to their animosities. It is plain, that when once this negative proof was completed, nothing more was requisite; and, therefore, that the practice of legal duels could not be a consequence of this particular regulation of the Salic law.

17.-Particular Notions of our Ancestors It is astonis.h.i.+ng that our ancestors should thus rest the honor, fortune, and life of the subject, on things that depended less on reason than on hazard, and that they should incessantly make use of proofs incapable of convicting, and that had no manner of connection either with innocence or guilt.

The Germans, who had never been subdued,84 enjoyed an excessive independence. Different families waged war with each other85 to obtain satisfaction for murders, robberies, or affronts. This custom was moderated by subjecting these hostilities to rules; it was ordained that they should be no longer committed but by the direction and under the eye of the magistrate.86 This was far preferable to a general license of annoying each other.

As the Turks in their civil wars look upon the first victory as a decision of heaven in favor of the victor, so the inhabitants of Germany in their private quarrels considered the event of a combat as a decree of Providence, ever attentive to punish the criminal or the usurper.

Tacitus informs us, that when one German nation intended to declare war against another, they looked out for a prisoner who was to fight with one of their people, and by the event they judged of the success of the war. A nation who believed that public quarrels could be determined by a single combat might very well think that it was proper also for deciding the disputes of individuals.

Gundebald, King of Burgundy, gave the greatest sanction to the custom of legal duels.87 The reason he a.s.signs for this law is mentioned in his edict. "It is," says he, "in order to prevent our subjects from attesting by oath what is uncertain, and perjuring themselves about what is certain." Thus, while the clergy declared that an impious law which permitted combats,88 the Burgundian kings looked upon that as a sacrilegious law which authorized the taking of an oath.

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

With regard to the trial by fire, after the party accused had put his hand on a hot iron, or in boiling water, they wrapped the hand in a bag and sealed it up; if after three days there appeared no mark, he was acquitted. Is it not plain, that among people inured to the handling of arms, the impression made on a rough or callous skin by the hot iron or by boiling water could not be so great as to be seen three days afterwards? And if there appeared any mark it showed that the person who had undergone the trial was an effeminate fellow. Our peasants are not afraid to handle hot iron with their callous hands; and, with regard to the women, the hands of those who worked hard might be very well able to resist hot iron. The ladies did not want champions to defend their cause; and in a nation where there was no luxury, there was no middle state.89 By the law of the Thuringians90 a woman accused of adultery was condemned to the trial by boiling water only when there was no champion to defend her; and the law of the Ripuarians admits of this trial91 only when a person had no witnesses to appear in justification. Now a woman that could not prevail upon any one relative to defend her cause, or a man that could not produce one single witness to attest his honesty were, from those very circ.u.mstances, sufficiently convicted.

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

18.-In what manner the Custom of judicial Combats gained Ground From Agobard's letter to Louis the Debonnaire it might be inferred that the custom of judicial combats was not established among the Franks; for having represented to that prince the abuses of the law of Gundebald, he desires that private disputes should be decided in Burgundy by the law of the Franks.92 But as it is well known from other quarters that the trial by combat prevailed at that time in France, this has been the cause of some perplexity. However, the difficulty may be solved by what I have said; the law of the Salian Franks did not allow of this kind of trial and that of the Ripuarian Franks did.93 But, notwithstanding the clamors of the clergy, the custom of judicial combats gained ground continually in France; and I shall presently make it appear, that the clergy themselves were in a great measure the occasion of it.

It is the law of the Lombards that furnishes us with this proof. "There has been long since a detestable custom introduced," says the preamble to the const.i.tution of Otho II:94 "this is, that if the t.i.tle to an estate was said to be false, the person who claimed under that t.i.tle made oath upon the Gospel that it was genuine; and without any preceding judgment he took possession of the estate; so that they who would perjure themselves were sure of gaining their point." The Emperor Otho I having caused himself to be crowned at Rome95 at the very time that a Council was there under Pope John XII all the lords of Italy represented to that prince the necessity of enacting a law to reform this horrible abuse.96 The Pope and the Emperor were of opinion that the affair should be referred to the Council which was to be shortly held at Ravenna.97 There the lords made the same demands, and redoubled their complaints; but the affair was put off once more under pretence of the absence of particular persons. When Otho II and Conrad, King of Burgundy, arrived in Italy,98 they had a conference at Verona99 with the Italian lords;100 and at their repeated solicitations, the Emperor, with their unanimous consent, made a law, that whenever there happened any disputes about inheritances while one of the parties insisted upon the legality of his t.i.tle and the other maintained its being false, the affair should be decided by combat; that the same rule should be observed in contests relating to fiefs; and that the clergy should be subject to the same law, but should fight by their champions. Here we see, that the n.o.bility insisted on the trial by combat, because of the inconvenience of the proof introduced by the clergy, that notwithstanding the clamors of the n.o.bility, the notoriousness of the abuse which called out loudly for redress, and the authority of Otho who came into Italy to speak and act as master, still the clergy held out in two Councils; in fine, that the joint concurrence of the n.o.bility and princes having obliged the clergy to submit, the custom of judicial combats must have been considered as a privilege of the n.o.bility, as a barrier against injustice, and as a security of property, and from that very moment this custom must have gained ground. And this was effected at a time when the power of the emperors was great, and that of the popes inconsiderable; at a time when the Othos came to revive the dignity of the empire in Italy.

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

I hastened to speak of the const.i.tution of Otho II, in order to give a clear idea of the disputes between the clergy and the laity of those times. There had been indeed a const.i.tution of Lotharius I101 of an earlier date, a sovereign who, upon the same complaints and disputes, being desirous of securing the just possession of property, had ordained that the notary should make oath that the deed or t.i.tle was not forged; and if the notary should happen to die, the witnesses should be sworn who had signed it. The evil, however, still continued, till they were obliged at length to have recourse to the remedy above mentioned.

Before that time I find that, in the general a.s.semblies, held by Charlemagne, the nation represented to him,102 that in the actual state of things it was extremely difficult for either the accuser or the accused to avoid perjuring themselves, and that for this reason it was much better to revive the judicial combat, which was accordingly done.

The usage of judicial combats gained ground among the Burgundians, and that of an oath was limited. Theodoric, King of Italy, suppressed the single combat among the Ostrogoths;103 and the laws of Chaindasuinthus and Recessuinthus seemed as if they would abolish the very idea of it. But these laws were so little respected in Narbonne Gaul, that they looked upon the legal duel as a privilege of the Goths.104 The Lombards who conquered Italy after the Ostrogoths had been destroyed by the Greeks, introduced the custom of judicial combat into that country, but their first laws gave a check to it.105 Charlemagne,106 Louis the Debonnaire, and the Othos made divers general const.i.tutions, which we find inserted in the laws of the Lombards and added to the Salic laws, whereby the practice of legal duels, at first in criminal, and afterwards in civil cases, obtained a greater extent. They knew not what to do. The negative proof by oath had its inconveniences; that of legal duels had its inconveniences also; hence they often changed, according as the one or the other affected them most.

On the one hand, the clergy were pleased to see that in all secular affairs people were obliged to have recourse to the altar,107 and, on the other, a haughty n.o.bility were fond of maintaining their rights by the sword.

I would not have it inferred that it was the clergy who introduced the custom so much complained of by the n.o.bility. This custom was derived from the spirit of the barbarian laws, and from the establishment of negative proofs. But a practice that contributed to the impunity of such a number of criminals, having given some people reason to think it was proper to make use of the sanct.i.ty of the churches in order to strike terror into the guilty, and to intimidate perjurers, the clergy maintained this usage and the practice which attended it: for in other respects they were absolutely averse to negative proofs. We find in Beaumanoir108 that this kind of proof was never allowed in ecclesiastic courts, which contributed greatly without doubt to its suppression, and to weaken in this respect the regulation of the codes of the barbarian laws.

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

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

Charlemagne ordained, that if any difference should arise between his children, it should be terminated by the judgment of the cross. Louis the Debonnaire,109 limited this judgment to ecclesiastic affairs; his son Lotharius abolished it in all cases; nay, he suppressed even the trial by cold water.110 I do not pretend to say, that at a time when so few usages were universally received, these trials were not revived in some churches, especially as they are mentioned in a charter of Philip Augustus,111 but I affirm that they were very seldom practised. Beaumanoir,112 who lived at the time of St. Louis and a little after, enumerating the different kinds of trial, mentions that of judicial combat, but not a word of the others.

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

As the Salic laws did not admit of this custom, they became in some measure useless, and fell into oblivion. In like manner the Roman laws, which also rejected this custom, were laid aside; their whole attention was then taken up in establis.h.i.+ng the law of judicial combats, and in forming a proper digest of the several cases that might happen on those occasions. The regulations of the Capitularies became likewise of no manner of service. Thus it is that such a number of laws lost all their authority, without our being able to tell the precise time in which it was lost; they fell into oblivion, and we cannot find any others that were subst.i.tuted in their place.

Such a nation had no need of written laws; hence its written laws very easily fall into disuse.

If there happened to be any disputes between two parties, they had only to order a single combat. For this no great knowledge or abilities were requisite.

All civil and criminal actions are reduced to facts. It is upon these facts they fought; and not only the substance of the affair, but likewise the incidents and imparlances were decided by combat, as Beaumanoir observes, who produces several instances.113 I find that towards the commencement of the third race, the jurisprudence of those times related entirely to precedents, everything was regulated by the point of honor. If the judge was not obeyed, he insisted upon satisfaction from the person that contemned his authority. At Bourges if the provost had summoned a person and he refused to come, his way of proceeding was to tell him, "I sent for thee, and thou didst not think it worth thy while to come; I demand therefore satisfaction for this thy contempt." Upon which they fought.114 Louis the Fat reformed this custom.115 The custom of legal duels prevailed at Orleans, even in all demands of debt.116 Louis the Young, declared that this custom should take place only when the demand exceeded five sous. This ordinance was a local law; for in St. Louis's time it was sufficient that the value was more than twelve deniers.117 Beaumanoir118 had heard a gentleman of the law affirm, that formerly there had been a bad custom in France of hiring a champion for a certain time to fight their battles in all causes. This shows that the custom of judiciary combat must have prevailed at that time to a wonderful extent.

20.-Origin of the Point of Honor We meet with inexplicable enigmas in the codes of laws of the barbarians. The law of the Frisians119 allows only half a sou in composition to a person that had been beaten with a stick, and yet for ever so small a wound it allows more. By the Salic law, if a freeman gave three blows with a stick to another freeman, he paid three sous; if he drew blood, he was punished as if he had wounded him with steel, and he paid fifteen sous: thus the punishment was proportioned to the greatness of the wound. The law of the Lombards established different compositions for one, two, three, four blows, and so on.120 At present, a single blow is equivalent to a hundred thousand.

The const.i.tution of Charlemagne, inserted in the law of the Lombards, ordains that those who were allowed the trial by combat should fight with bastons.121 Perhaps this was out of regard to the clergy; or probably, as the usage of legal duels gained ground, they wanted to render them less sanguinary. The Capitulary of Louis the Debonnaire, allows the liberty of choosing to fight either with the sword or baston.122 In process of time none but bondmen fought with the baston.123 Here I see the first rise and formation of the particular articles of our point of honor. The accuser began by declaring in the presence of the judge that such a person had committed such an action, and the accused made answer that he lied,124 upon which the judge gave orders for the duel. It became then an established rule, that whenever a person had the lie given him, it was inc.u.mbent on him to fight.

Upon a man's declaring that he would fight125 he could not afterwards depart from his word; if he did, he was condemned to a penalty. Hence this rule ensued, that whenever a person had engaged his word, honor forbade him to recall it.

Gentlemen fought one another on horseback, and armed at all points;126 villains fought on foot and with bastons.127 Hence it followed that the baston was looked upon as the instrument of insults and affronts,128 because to strike a man with it was treating him like a villain.

None but villains fought with their faces uncovered,129 so that none but they could receive a blow on the face. Therefore, a box on the ear became an injury that must be expiated with blood, because the person who received it had been treated as a villain.

The several peoples of Germany were no less sensible than we of the point of honor; nay, they were more so. Thus the most distant relatives took a very considerable share to themselves in every affront, and on this all their codes are founded. The law of the Lombards ordains,130 that whosoever goes attended with servants to beat a man unawares, in order to load him with shame and to render him ridiculous, should pay half the composition which he would owe if he had killed him;131 and if through the same motive he tied or bound him, he would pay three-quarters of the same composition.

Let us then conclude that our forefathers were extremely sensible of affronts; but that affronts of a particular kind, such as being struck with a certain instrument on a certain part of the body, and in a certain manner, were as yet unknown to them. All this was included in the affront of being beaten, and in this case the amount of violence determined the magnitude of the outrage.

21.-A new Reflection upon the Point of Honor among the Germans "It was a great infamy," says Tacitus,132 "among the Germans for a person to leave his buckler behind him in battle; for which reason many after a misfortune of this kind have destroyed themselves." Thus the ancient Salic law133 allows a composition of fifteen sous to any person that had been injuriously reproached with having left his buckler behind him.

When Charlemagne amended the Salic law,134 he allowed in this case no more than three sous in composition. As this prince cannot be suspected of having had a design to enervate the military discipline, it is manifest that such an alteration was due to a change of weapons, and that from this change of weapons a great number of usages derive their origin.

22.-Of the Manners in relation to judicial Combats Our connections with the fair s.e.x are founded on the pleasure of enjoyment; on the happiness of loving and being loved; and likewise on the ambition of pleasing the ladies, because they are the best judges of some of those things which const.i.tute personal merit. This general desire of pleasing produces gallantry which is not love itself, but the delicate, the volatile, the perpetual simulation of love.

According to the different circ.u.mstances of every country and age, love inclines more to one of those three things than to the other two. Now I maintain, that the prevailing spirit at the time of our judicial combats must have been that of gallantry.

I find in the law of the Lombards,135 that if one of the two champions was found to have any magic herbs about him, the judge ordered them to be taken from him, and obliged him to swear he had no more. This law could be founded only on the vulgar opinion; it was fear, the alleged inventor of much that made them imagine this kind of prestige. As in single combats the champions were armed at all points, and as with heavy arms, both of the offensive and defensive kind, those of a particular temper and strength gave immense advantages, the notion of some champions having enchanted arms must certainly have turned the brains of a great many people.

Hence arose the marvellous system of chivalry. The minds of all sorts of people quickly imbibed these extravagant ideas. In romances are found knights-errant, necromancers, and fairies, winged or intelligent horses, invisible or invulnerable men, magicians who concerned themselves in the birth and education of great personages, enchanted and disenchanted palaces, a new world in the midst of the old one, the usual course of nature being left only to the lower cla.s.s of mankind.

Knights-errant ever in armor, in a part of the world abounding in castles, forts, and robbers, placed all their glory in punis.h.i.+ng injustice, and in protecting weakness. Hence our romances are full of gallantry founded on the idea of love joined to that of strength and protection.

Such was the origin of gallantry, when they formed the notion of an extraordinary race of men, who at the sight of a virtuous and beautiful lady in distress were inclined to expose themselves to all hazards for her sake, and to endeavor to please her in the common actions of life.

Our romances of chivalry flattered this desire of pleasing, and communicated to a part of Europe that spirit of gallantry which we may venture to affirm was very little known to the ancients.

The prodigious luxury of that immense city of Rome encouraged sensuous pleasures. The tranquillity of the plains of Greece gave rise to the description of the sentiments of love.136 The idea of knights-errant, protectors of the virtue and beauty of the fair s.e.x, led to that of gallantry.

This spirit was continued by the custom of tournaments, which uniting the rights of valor and love, added still a considerable importance to gallantry.

23.-Of the Code of Laws on judicial Combats Some perhaps will have a curiosity to see this abominable custom of judiciary combat reduced to principles and to find the groundwork of such an extraordinary code of laws. Men, though reasonable in the main, reduce their very prejudices to rule. Nothing was more contrary to good sense, than those combats, and yet when once this point was laid down, a kind of prudential management was used in carrying it into execution.

In order to be thoroughly acquainted with the jurisprudence of those times, it is necessary to read with attention the regulations of St. Louis, who made such great changes in the judiciary order. Defontaines was contemporary with that prince; Beaumanoir wrote after him;137 and the rest lived since his time. We must, therefore, look for the ancient practice in the amendments that have been made of it.

24.-Rules established in the judicial Combat When there happened to be several accusers, they were obliged to agree among themselves that the action might be carried on by a single prosecutor; and, if they could not agree, the person before whom the action was brought, appointed one of them to prosecute the quarrel.138 When a gentleman challenged a villain, he was obliged to present himself on foot with buckler and baston; but if he came on horseback and armed like a gentleman, they took his horse and his arms from him, and stripping him to his s.h.i.+rt, they compelled him to fight in that condition with the villain.139 Before the combat the magistrates ordered three bans to be published. By the first the relatives of the parties were commanded to retire; by the second the people were warned to be silent; and the third prohibited the giving of any a.s.sistance to either of the parties, under severe penalties, nay, even on pain of death if by this a.s.sistance either of the combatants should happen to be vanquished.140 The officers belonging to the civil magistrate141 guarded the list or enclosure where the battle was fought; and in case either of the parties declared himself desirous of peace, they took particular notice of the actual state in which they mutually stood at that very moment, to the end that they might be restored to the same situation, in case they did not come to an understanding.142 When the pledges were received either for a crime or for false judgment, the parties could not make up the matter without the consent of the lord; and when one of the parties was overcome, there could be no accommodation without the permission of the count, which had some a.n.a.logy to our letters of grace.143 But if it happened to be a capital crime, and the lord, corrupted by presents, consented to an accommodation, he was obliged to pay a fine of sixty livres, and the right he had of punis.h.i.+ng the malefactor devolved upon the count.144 There were a great many people incapable either of offering, or of accepting battle. But liberty was given them, on cause being shown, to choose a champion; and that he might have a stronger interest in defending the party, in whose behalf he appeared, his hand was cut off if he lost the battle.145 When capital laws were made in the last century against duels, perhaps it would have been sufficient to have deprived a warrior of his military capacity by the loss of his hand; nothing in general being a greater mortification to mankind than to survive the loss of their character.

When, in capital cases, the duel was fought by champions, the parties were placed where they could not behold the battle; each was bound with the cord that was to be used at his execution in case his champion was overcome.146 The person overcome in battle did not always lose the point contested; if, for instance, they fought on an imparlance, he lost only the imparlance.147 25.-Of the Bounds prescribed to the Custom of judicial Combats When pledges of battle had been received upon a civil affair of small importance, the lord obliged the parties to withdraw them.

If a fact was notorious; for instance, if a man had been a.s.sa.s.sinated in the open market-place, then there was neither a trial by witnesses, nor by combat; the judge gave his decision from the notoriety of the fact.148 When the court of a lord had often determined after the same manner, and the usage was thus known,149 the lord refused to grant the parties the privilege of duelling, to the end that the usages might not be altered by the different success of the combats.

They were not allowed to insist upon duelling but for themselves, for some one belonging to their family, or for their liege lord.150 When the accused had been acquitted, another relative could not insist on fighting him; otherwise disputes would never be terminated.151 If a person appeared again in public whose relatives, upon a supposition of his being murdered, wanted to revenge his death, there was then no room for a combat; the same may be said if by a notorious absence the fact was proved to be impossible.152 If a man who had been mortally wounded had exculpated before his death the person accused and named another, they did not proceed to a duel; but if he had mentioned n.o.body his declaration was looked upon as a forgiveness on his death-bed; the prosecution was continued, and even among gentlemen they could make war against each other.153 When there was a conflict, and one of the relatives had given or received pledges of battle, the right of contest ceased; for then it was thought that the parties wanted to pursue the ordinary course of justice; therefore he that would have continued the contest would have been sentenced to make good all the losses.

Thus the practice of judiciary combat had this advantage, that it was apt to change a general into an individual quarrel, to restore the courts of judicature to their authority, and to bring back into the civil state those who were no longer governed but by the law of nations.

As there are an infinite number of wise things that are managed in a very foolish manner; so there are many foolish things that are very wisely conducted.

When a man who was challenged with a crime visibly showed that it had been committed by the challenger himself, there could be then no pledges of battle; for there is no criminal but would prefer a duel of uncertain event to a certain punishment.154 There were no duels in affairs decided by arbiters,155 nor by ecclesiastical courts, nor in cases relating to women's dowries.

"A woman," says Beaumanoir, "cannot fight." If a woman challenged a person without naming her champion, the pledges of battle were not accepted. It was also requisite that a woman should be authorized by her baron, that is, by her husband, to challenge; but she might be challenged without this authority.156 If either the challenger or the person challenged were under fifteen years of age, there could be no combat.157 They might order it, indeed, in disputes relating to orphans when their guardians or trustees were willing to run the risk of this procedure.

The cases in which a bondman was allowed to fight are, I think, as follows. He was allowed to fight another bondman; to fight a freed-man, or even a gentleman, in case he were challenged; but if he himself challenged, the other might refuse to fight; and even the bondman's lord had a right to take him out of the court.158 The bondman might by his lord's charter or by usage fight with any freeman;159 and the church claimed this right for her bondmen160 as a mark of respect due to her by the laity.161 26.-On the judiciary Combat between one of the Parties and one of the Witnesses Beaumanoir informs us,162 that a person who saw a witness going to swear against him might elude the other, by telling the judges that his adversary produced a false and slandering witness; and if the witness was willing to maintain the quarrel, he gave pledges of battle. The enquiry was no longer the question; for if the witness was overcome, it was decided that the adversary had produced a false witness, and he lost his cause.

It was necessary that the second witness should not be heard; for if he had made his attestation, the affair would have been decided by the deposition of two witnesses. But by staying the second, the deposition of the first witness became void.

The second witness being thus rejected, the party was not allowed to produce any others, but he lost his cause; in case, however, there had been no pledges of battle he might produce other witnesses.

Beaumanoir observes,163 that the witness might say to the party he appeared for, before he made his deposition: "I do not care to fight for your quarrel, nor to enter into any debate; but if you are willing to stand by me, I am ready to tell the truth." The party was then obliged to fight for the witness, and if he happened to be overcome, he did not lose his cause,164 but the witness was rejected.

This, I believe, was a modification of the ancient custom; and what makes me think so is, that we find this usage of challenging the witnesses established in the laws of the Bavarians165 and Burgundians166 without any restriction.

I have already made mention of the const.i.tution of Gundebald, against which Agobard167 and St. Avitus168 made such loud complaints. "When the accused," says this prince, "produces witnesses to swear that he has not committed the crime, the accuser may challenge one of the witnesses to a combat; for it is very just that the person who has offered to swear, and has declared that he was certain of the truth, should make no difficulty of maintaining it by combat." Thus the witnesses were deprived by this king of every kind of subterfuge to avoid the judiciary combat.

27.-Of the judiciary Combat between one of the Parties and one of the Lords' Peers. Appeal of false Judgment As the nature of judicial combats was to terminate the affair forever, and was incompatible with a new judgment and new prosecutions,169 an appeal, such as is established by the Roman and Canon laws, that is, to a superior court in order to rejudge the proceedings of an inferior, was a thing unknown in France.

This is a form of proceeding to which a warlike nation, governed solely by the point of honor, was quite a stranger; and agreeably to this very spirit, the same methods were used against the judges as were allowed against the parties.170 An appeal among the people of this nation was a challenge to fight with arms, a challenge to be decided by blood; and not that invitation to a paper quarrel, the knowledge of which was reserved for succeeding ages.171 Thus St. Louis in his Inst.i.tutions says, that an appeal includes both felony and iniquity. Thus Beaumanoir tells us, that if a va.s.sal wanted to make his complaint of an outrage committed against him by his lord,172 he was first obliged to announce that he quitted his fief; after which he appealed to his lord paramount, and offered pledges of battle. In like manner the lord renounced the homage of his va.s.sal, if he challenged him before the count.

For a va.s.sal to challenge his lord of false judgment, was as much as to say to him, that his sentence was unjust and malicious; now to utter such words against his lord was in some measure committing the crime of felony.

Hence, instead of bringing a challenge of false judgment against the lord who appointed and directed the court, they challenged the peers of whom the court itself was formed, by which means they avoided the crime of felony, for they insulted only their peers, with whom they could always account for the affront.

It was a very dangerous thing to challenge the peers of false judgment.173 If the party waited till judgment was p.r.o.nounced, he was obliged to fight them all when they offered to make good their judgment.174 If the appeal was made before all the judges had given their opinion, he was obliged to fight all who had agreed in their judgment. To avoid this danger, it was usual to pet.i.tion the lord to direct that each peer should give his opinion aloud;175 and when the first had p.r.o.nounced, and the second was going to do the same, the party told him that he was a liar, a knave, and a slanderer, and then he had to fight only with that peer.

Defontaines176 would have it, that before a challenge was made of false judgment, it was customary to let three judges p.r.o.nounce; and he does not say that it was necessary to fight them all three, much less that there was any obligation to fight all those who had declared themselves of the same opinion. These differences arose from this, that in those times there were few usages exactly in all parts the same; Beaumanoir gives an account of what pa.s.sed in the county of Clermont; and Defontaines of what was practised in Vermandois.

When one of the peers or a va.s.sal had declared that he would maintain the judgment, the judge ordered pledges of battle to be given, and likewise took security of the challenger, that he would maintain his case.177 But the peer who was challenged gave no security, because he was the lord's va.s.sal, and was obliged to defend the challenge, or to pay the lord a fine of sixty livres.

If he who challenged did not prove that the judgment was bad,178 he paid the lord a fine of sixty livres, the same fine to the peer whom he had challenged, and as much to every one of those who had openly consented to the judgment.179 When a person, strongly suspected of a capital crime, had been taken and condemned, he could make no appeal of false judgment:180 for he would always appeal either to prolong his life, or to get an absolute discharge.

If a person said that the judgment was false and bad, and did not offer to prove it so, that is to fight, he was condemned to a fine of ten sous if a gentleman, and to five sous if a bondman, for the injurious expressions he had uttered.181 The judges or peers who were overcome, forfeited neither life nor limbs;182 but the person who challenged them was punished with death, if it happened to be a capital crime.183 This manner of challenging the va.s.sals with false judgment was to avoid challenging the lord himself. But if the lord had no peers,184 or had not a sufficient number, he might at his own expense borrow peers of his lord paramount;185 but these peers were not obliged to p.r.o.nounce judgment if they did not like it; they might declare that they were come only to give their opinion: in that particular case, the lord himself judged and p.r.o.nounced sentence as judge;186 and if an appeal of false judgment was made against him, it was his business to answer to the challenge.

If the lord happened to be so very poor as not to be able to hire peers of his paramount,187 or if he neglected to ask for them or the paramount refused to give them, then, as the lord could not judge by himself, and as n.o.body was obliged to plead before a tribunal where judgment could not be given, the affair was brought before the lord paramount.

This, I believe, was one of the princ.i.p.al causes of the separation between the jurisdiction and the fief, whence arose the maxim of the French lawyers, "The fief is one thing, and the jurisdiction is another." For as there were a vast number of peers who had no subordinate va.s.sals under them, they were incapable of holding their court; all affairs were then brought before their lord paramount, and they lost the privilege of p.r.o.nouncing judgment, because they had neither power nor will to claim it.

All the judges who had been at the judgment were obliged to be present when it was p.r.o.nounced, that they might follow one another, and say aye to the person who, wanting to make an appeal of false judgment, asked them whether they followed;188 for Defontaines says,189 "that it is an affair of courtesy and loyalty, and there is no such thing as evasion or delay." Hence, I imagine, arose the custom still followed in England, of obliging the jury to be all unanimous in their verdict, in cases relating to life and death.

Judgment was therefore given, according to the opinion of the majority; and if there was an equal division, sentence was p.r.o.nounced, in criminal cases, in favor of the accused; in cases of debt, in favor of the debtor; and in cases of inheritance, in favor of the defendant.

Defontaines observes,190 that a peer could not excuse himself by saying that he would not sit in court if there were only four,191 or if the whole number, or at least the wisest part, were not present. This is just as if he were to say in the heat of an engagement, that he would not a.s.sist his lord, because he had not all his va.s.sals with him. But it was the lord's business to cause his court to be respected, and to choose the bravest and most knowing of his tenants. This, I mention, in order to show the duty of va.s.sals, which was to fight, and to give judgment: and such, indeed, was this duty, that to give judgment was all the same as to fight.

It was lawful for a lord, who went to law with his va.s.sal in his own court, and was cast, to challenge one of his tenants with false judgment. But as the latter owed a respect to his lord for the fealty he had vowed, and the lord, on the other hand, owed benevolence to his va.s.sal for the fealty accepted; it was customary to make a distinction between the lord's affirming in general that the judgment was false and unjust,192 and imputing personal prevarications to his tenant.193 In the former case he affronted his own court, and in some measure himself, so that there was no room for pledges of battle. But there was room in the latter, because he attacked his va.s.sal's honor; and the person overcome was deprived of life and property, in order to maintain the public tranquillity.

This distinction, which was necessary in that particular case, had afterwards a greater extent. Beaumanoir says, that when the challenger of false judgment attacked one of the peers by personal imputation, battle ensued; but if he attacked only the judgment, the peer challenged was at liberty to determine the dispute either by battle or by law.194 But as the prevailing spirit in Beaumanoir's time was to restrain the usage of judicial combats, and as this liberty which had been granted to the peer challenged of defending the judgment by combat or not is equally contrary to the ideas of honor established in those days, and to the obligation the va.s.sal lay under of defending his lord's jurisdiction, I am apt to think, that this distinction of Beaumanoir's was a novelty in French jurisprudence.

I would not have it thought that all appeals of false judgment were decided by battle; it fared with this appeal as with all others. The reader may recollect the exceptions mentioned in the 25th chapter. Here it was the business of the superior court to examine whether it was proper to withdraw the pledges of battle or not.

There could be no appeal of false judgment against the king's court; because, as there was no one equal to the king, no one could challenge him; and as the king had no superior, none could appeal from his court.

This fundamental regulation, which was necessary as a political law, diminished also as a civil law the abuses of the judicial proceedings of those times. When a lord was afraid that his court would be challenged with false judgment, or perceived that they were determined to challenge, if the interests of justice required that it should not be challenged, he might demand from the king's court, men whose judgment could not be set aside.195 Thus King Philip, says Defontaines,196 sent his whole Council to judge an affair in the court of the Abbot of Corbey.

But if the lord could not have judges from the king, he might remove his court into the king's, if he held immediately of him; and if there were intermediate lords, he had recourse to his suzerain, removing from one lord to another till he came to the sovereign.

Thus, notwithstanding they had in those days neither the practice nor even the idea of our modern appeals, yet they had recourse to the king, who was the source whence all those rivers flowed, and the sea into which they returned.

28.-Of the Appeal of Default of Justice The appeal of default of justice was, when the court of a particular lord deferred, evaded, or refused to do justice to the parties.

During the time of our princes of the second race, though the count had several officers under him, their person was subordinate, but not their jurisdiction. These officers in their court days, a.s.sizes, or placita, gave judgment in the last resort as the count himself; all the difference consisted in the division of the jurisdiction. For instance, the count had the power of condemning to death, of judging of liberty, and of the rest.i.tution of goods, which the centenarii had not.197 For the same reason there were greater cases which were reserved to the king; namely, those which directly concerned the political order of the state.198 Such were the disputes between bishops, abbots, counts, and other grandees, which were determined by the king, together with the great va.s.sals.199 What some authors have advanced, namely, that an appeal lay from the count to the king's commissary, or missus dominicus, is not well grounded. The count and the missus had an equal jurisdiction, independent of each other.200 The whole difference was, that the missus held his placita, or a.s.sizes, four months in the year,201 and the count the other eight.

If a person, who had been condemned at an a.s.size, demanded to have his cause tried over again, and was afterwards cast, he paid a fine of fifteen sous, or received fifteen blows from the judges who had decided the affair.202 When the counts, or the king's commissaries did not find themselves able to bring the great lords to reason, they made them give bail or security203 that they would appear in the king's court: this was to try the cause, and not to rejudge it. I find in the Capitulary of Metz204 a law by which the appeal of false judgment to the king's court is established, and all other kinds of appeal are proscribed and punished.

If they refused to submit to the judgment of the sheriffs205 and made no complaint, they were imprisoned till they had submitted, but if they complained, they were conducted under a proper guard before the king, and the affair was examined in his court.

There could be hardly any room then for an appeal of default of justice. For instead of its being usual in those days to complain that the counts and others who had a right of holding a.s.sizes were not exact in discharging this duty,206 it was a general complaint that they were too exact. Hence we find such numbers of ordinances, by which the counts and all other officers of justice are forbidden to hold their a.s.sizes above thrice a year. It was not so necessary to chastise their indolence, as to check their activity.

But, after an infinite number of petty lords.h.i.+ps had been formed, and different degrees of va.s.salage established, the neglect of certain va.s.sals in holding their courts gave rise to this kind of appeal;207 especially as very considerable profits accrued to the lord paramount from the several fines.

As the custom of judicial combats gained every day more ground, there were places, cases, and times, in which it was difficult to a.s.semble the peers, and consequently in which justice was delayed. The appeal of default of justice was therefore introduced, an appeal that has been often a remarkable era in our history; because most of the wars of those days were imputed to a violation of the political law; as the cause, or at least the pretence, of our modern wars is the infringement of the laws of nations.

Beaumanoir says208 that, in case of default of justice, battle was not allowed: the reasons are these: 1. They could not challenge the lord himself, because of the respect due to his person; neither could they challenge the lord's peers, because the case was clear, and they had only to reckon the days of the summons, or of the other delays; there had been no judgment pa.s.sed, consequently there could be no appeal of false judgment: in fine, the crime of the peers offended the lord as well as the party, and it was against rule that there should be battle between the lord and his peers.

But as the default was proved by witnesses before the superior court:209 the witnesses might be challenged, and then neither the lord nor his court were offended.