The Bounds prescribed to the Custom of judicial CombatsMarch 17, 2020
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 assassinated 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.
When the court of a lord had often determined after the same manner, and the usage was thus known,† 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.
When the accused had been acquitted,§ another relation could not insist on fighting him; otherwise disputes would never be terminated.
If a person appeared again in public, whose relations, 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.
If a man* who had been mortally wounded, had disculpated before his death the person accused, and named another, they did not proceed to a duel; but if he had mentioned nobody, his declaration was only looked upon as a forgiveness on his death-bed; the prosecution was continued, and even among gentlemen they could make war against each other.
When there was a war, and one of their relations had given or received pledges of battle, the right of war ceased; for then it was thought that the parties wanted to pursue the ordinary course of justice; therefore he that continued the war would have been sentenced to repair all damages.
Thus judiciary combats had the following advantages=
- it changed a general into a particular quarrel
- restored the courts of judicature to their authority
- reduced to a civil state those who were no longer governed but by the law of nations
There are an infinite number of wise things that are managed in a very foolish manner. Likewise, there are many foolish things that are very wisely conducted.
When a man† who was appealed of a crime, visibly shewed, that it had been committed by the appellant 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.
There were no duels in affairs decided by arbiters, nor by ecclesiastic courts= nor in cases relating to women’s dowries.
Beaumanoir says that a woman cannot fight. If a woman appealed 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 appeal, but she might be appealed without this authority.
If either the appellant, or the∥ appellee were under fifteen years of age, there could be no combat. 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 freedman, or even a gentleman, in case they were appellants; but if he was the appellant himself, the others might refuse to fight; and even the bondman’s lord had a right to take him out of the court. The bondman might by his lord’s charter† or by usage, fight with any freeman; and the church‡‡ pretended this right for her bondmen, as a mark of respect§§ due to her by the laity.
Chapter 26= The judiciary Combat between one of the Parties, and one of the Witnesses
BEAUMANOIR informs us that a person who saw a witness going to swear against him, might elude the second, by telling the judges, that his adversaries produced a false and slandering witness;
If the witness was willing to maintain the quarrel, he gave pledges of battle. They troubled themselves no farther about the inquest; for if the witness was overcome, it was decided, that the party had produced a false witness, and he lost his cause.
It was necessary the second witness should be prevented from swearing; 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 was of no manner of use.
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, 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, but the witness was rejected.
This, I believe, was a limitation of the antient custom; and what makes me think so, is, that we find this usage of appealing the witnesses, established in the laws of the Bavarians and Burgundians without any restrictions.
I have already made mention of the constitution of Gundebald, against which Agobard and St. Avitus 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 to maintain it.” Thus the witnesses were deprived by this king of every kind of subterfuge to avoid the judiciary combat.