Montesquieu

It will come as a sur­prise that our fathers thus made the honor, the for­tune and the life of citi­zens depend on things that had less to do with rea­son than with chance, and that they cons­tantly made use of proofs that pro­ved nothing, and which had no connec­tion either with inno­cence or with the crime.

The Germans who had never been sub­ju­ga­ted1 enjoyed extreme inde­pen­dence. Families war­red with each other over mur­ders, thefts, and affronts.2 This cus­tom was modi­fied by sub­jec­ting these wars to rules : they were waged by the order, and before the eyes,3 of the magis­trate, which was pre­fe­ra­ble to a gene­ral licence to inflict harm on each other.

As today the Turks in their civil wars regard the first vic­tory as a judg­ment of God who deci­des, so the German peo­ples in their indi­vi­dual conflicts took the out­come of com­bat as a decree of Providence, always care­ful to punish the cri­mi­nal or usur­per.

Tacitus says that among the Germans, when a nation wished to enter into war with ano­ther, it tried to take some pri­so­ner who could duel with one of his own, and that the result of the war was jud­ged by the out­come of that duel. Peoples who belie­ved that sin­gle com­bat would set­tle public affairs could well think that it could equally the set­tle pri­vate dis­pu­tes.

Gundebald, king of Burgundy, was of all kings the one who most autho­ri­zed the prac­tice of com­bat.4 This prince jus­ti­fies his law within the law itself : “It is so that our sub­jects will no lon­ger take an oath over obs­cure facts, and will not per­jure them­sel­ves over cer­tain facts.” Thus, while eccle­sias­tics were decla­ring the law autho­ri­zing com­bat impious,5 the king of the Burgundians was consi­de­ring the law esta­bli­shing the oath as sacri­le­gious.

There was for proof by sin­gu­lar com­bat some rea­son based on expe­rience. In a uni­quely war­like nation, cowar­dice sup­po­ses other vices : it pro­ves that one has not imbi­bed the edu­ca­tion he has recei­ved, and has not been jea­lous of honor nor gui­ded by the prin­ci­ples which have gover­ned other men ; it shows that he does not fear their dis­dain, and cares lit­tle about their esteem. Any man of good bree­ding will not ordi­na­rily be wan­ting in that the skill that must join with strength, nor the strength that must rein­force cou­rage, because, hol­ding honor high, he will have been exer­ci­sed his whole life in things without which it can­not be obtai­ned. Moreover, in a war­like nation, where strength, cou­rage, and pro­wess are in honor, truly loa­the­some cri­mes are those which come from trea­chery, arti­fice, and cun­ning, in other words cowar­dice.

As to proof by fire, after the accu­sed had put his hand onto a hot iron or into boi­ling water, it was wrap­ped in a bag which was sea­led ; if three days later there was no sign of a burn, he was decla­red inno­cent. Who does not see that among a peo­ple accus­to­med to hand­ling wea­pons, rough and cal­lous skin should not be so mar­ked by a hot iron or boi­ling water as to be visi­ble three days later ? And if it could be seen, it was a sign that the man who under­went the ordeal was effe­mi­nate. Our pea­sants with their cal­lous hands handle hot iron at will ; and as for women, the hands of those who wor­ked could stand a hot iron. Ladies did not want for cham­pions to defend them,6 and in a nation where there was no luxury, there was scar­cely any inter­me­diate state.

By the law of the Thuringians, a woman accu­sed of adul­tery was sen­ten­ced to the ordeal by boi­ling water only when no cham­pion came for­ward for her7 ; and the law of the Ripuarians allows this ordeal only when one can find no wit­nes­ses to jus­tify one­self.8 But a woman whom none of her family wan­ted to defend, a man who could allege no tes­ti­mony to his pro­bity, were by that token already convic­ted.

So I say that in the cir­cum­stan­ces of the times when proof by com­bat and proof by hot iron and boi­ling water were in use, there was such har­mony bet­ween these laws and their ways that the laws did not so much pro­duce injus­ti­ces as they were unjust, that the effects were more inno­cent than the cau­ses, that they cla­shed more with equity than they vio­la­ted its rights, and that they were more unrea­so­na­ble than tyran­ni­cal.

This appears in what Tacitus says : omnibus idem habitus. [De moribus Germanorum, ch. iv, paraphrase]

Velleius Paterculus, book II, ch. cxviii, says that the Germans decided all disputes by combat.

See the law codes of the barbarians, and for more modern times Beaumanoir on the custom of Beauvaisis.

Law of the Burgundians, ch. xlv.

See the works of Agobard.

See Beaumanoir, custom of Beauvaisis, ch. lxi. See also the law of the Angles, ch. xiv, where the proof by boiling water is only subsidiary.

Title 14.

Chapter xxxi, §5.