How the Custom of judicial Combats gained Ground

We can infer from Agobard’s letter to Lewis the Debonnaire that the custom of judicial combats was not established among the Franks.

After having represented to that prince the abuses of the law of Gundebald, he desires* that private disputes should be decided in Burgundy by the law of the Franks.

But the trial by combat at that time in France has been the cause of some perplexity. The law of the Salian Franks did not allow of this kind of trial but the Ripuarian Franks did.

Despite the clamours of the clergy, the custom of judicial combats gained ground continually in France. The clergy themselves were the cause of it in a great measure. The Law of the Lombards furnishes us with this proof.

The preamble to the constitution of Otho 2nd says that judicial combats have been practiced for a long time. If the title to an estate was false, the person who claimed under that title made oath upon the gospels that it was genuine.

Without any farther judgment, he took possession of the estate. In this way, those who would perjure themselves were sure of gaining their point.

The emperor Otho 1st having caused himself to be crowned at Rome at the very time that a council was held there under Pope John 12th. All the lords of Italy told him the necessity of enacting a law to reform this horrid abuse.

The pope and the emperor thought that the affair should be referred to the council, which was to be shortly held at Ravenna.

There, the lords made their case and repeated their instances. But the affair was put off once more, under pretence of the absence of some persons. When Otho 2nd and Conrad king of Burgundy arrived in Italy, they had a conference at Verona with the Italian lords.

Otho 1st, with their unanimous consent, made a law that disputes about inheritances on estates and fiefs should be decided by combat. The clergy should be subject to the same law, but should fight by their champions.

The nobility called out against the notoriousness of the abuse by the clergy. Thus, the nobility insisted on the trial by combat, because of the inconveniency of the proof introduced by the clergy.

Despite Otho going into Italy to act as master, still the clergy held out in two councils. The joint concurrence of the nobility and the princes obliged the clergy to submit.

This made the custom of judicial combats a privilege of the nobility, as=

• a barrier against injustice
• a security of property

From that time, this custom gained ground. Back then=

• the power of the emperors was great
• the power of the popes was inconsiderable
• the Othos came to revive the dignity of the empire in Italy

The custom of negative proofs produced judicial combats. The abuse complained of to the Othos, was, that a person who was charged with having a false title to an estate, defended himself by a negative proof, declaring upon the gospels it was not false.

What was it they did to reform this abuse? They revived the custom of judicial combats.

I mention the constitution of Otho 2nd in order to give a clear idea of the disputes between the clergy and the laity of those times. The earlier constitution of Lotharius I ordained that the notary should make oath that the deed or title was not forged.

If the notary died, the witnesses should be sworn who had signed it. The evil however still continued.

Before that time, the general assemblies held by Charlemagne, the nation represented to him*, that in the actual stare of things it was extremely difficult, but that either the accuser or the accused must forswear themselves.

This is why it was much better to revive the judicial combat. This gained ground among the Burgundians and reduced the custom of oaths.

Theodoric king of Italy suppressed the single combat among the Ostrogoths; 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†.

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.

Charlemagne, Lewis the Debonnaire, and the Othos, made diverse general constitutions, which we find inserted in the laws of the Lombards, and added to the Salic laws, whereby the practice of legal duels, at first in criminal, and afterwards in civil cases, obtained a greater extent.

They didn’t know what to do. The negative proof by oath had its inconveniencies; that of legal duels had its inconveniencies 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 and on the other, a haughty nobility were fond of maintaining their rights by the sword.

The clergy did not introduce judicial combats. It was derived from=

• the spirit of the Barbarian laws, and
• the establishment of negative proofs.

But a practice that contributed to the impunity of such a number of criminals, having given some people reason to think it was proper to make use of the sanctity of the churches, in order to strike terror into the guilty, and to intimidate perjurers, the clergy maintained this usage, and the practice which attended it; for in other respects they were absolutely averse to negative proofs.

In Beaumanoir, 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.

Thus there is a connection between the usage of negative proofs and judicial combats. The lay tribunals admitted of both. Both were rejected by the ecclesiastic courts.

In choosing the trial by duel, the nation followed its military spirit. It abolished trials by cold or boiling waters.

Charlemagne ordained, that if any differences should arise between his children, they should be terminated by the judgment of the cross.

Lewis the Debonnaire confined this judgment to ecclesiastic affairs; his son Lotharius abolished it in all cases= nay, he suppressed† even the trial by cold water.

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= but I affirm, they were very seldom practised.

Beaumanoir lived at the time of St. Lewis and a little after. He enumerated the different kinds of trial and mentions only judicial combat.