Montesquieu

It could be conclu­ded from Agobard’s let­ter to Louis the Debonaire that proof by com­bat was not prac­ti­ced among the Franks, since after poin­ting out to that prince the abu­ses of the law of Gundebald, he asks that dis­pu­tes be jud­ged in Burgundy by the law of the Franks.1 But as we know from elsew­here that in that time judi­cial com­bat was the prac­tice in France, we have been in a quan­dary. It is explai­ned by what I have said : the law of the Salian Franks did not allow that proof, and the law of the Ripuarian Franks did.2

But des­pite the cla­mors of the eccle­sias­tics, the prac­tice of judi­cial com­bat spread every day in France, and I am going to prove pre­sently that it was they them­sel­ves who in large part who made it hap­pen.

It is the law of the Lombards that fur­ni­shes us this proof. “a detes­ta­ble cus­tom had long since been intro­du­ced” (says the pream­ble of the cons­ti­tu­tion of Otho II), “which is that if the char­ter of some estate was atta­cked as a for­gery, he who was pre­sen­ting it swore on the Gospels that it was authen­tic, and with no pre­ce­ding judg­ment he became owner of the estate : thus per­ju­rers were sure to acquire.”3 When the empe­ror Otho I had him­self crow­ned in Rome,4 with Pope John XII hol­ding a coun­cil, all the lords of Italy exclai­med that the empe­ror must make a law to cor­rect this unwor­thy abuse.5 The pope and the empe­ror jud­ged that the mat­ter had to be defer­red to the coun­cil that was to be held soon the­reaf­ter in Ravenna.6 There the lords made the same demands, and redou­bled their out­cries ; but pre­tex­ting the absence of some per­sons, they once more defer­red the mat­ter. When Otho II and Conrad king of Burgundy7 arri­ved in Italy, they held a confe­rence in Verona8 with the lords of Italy,9 and upon their repea­ted soli­ci­ta­tions, the empe­ror with una­ni­mous consent issued a law sta­ting that when there was some contes­ta­tion over inhe­ri­tan­ces, and one of the par­ties inten­ded to invoke a char­ter, and the other main­tai­ned that it was false, the mat­ter would be deci­ded by com­bat ; that the same rule would be obser­ved in dis­pu­tes per­tai­ning to fiefs ; and that the chur­ches would be sub­ject to the same law, and would com­bat through their cham­pions. We see that the nobi­lity deman­ded proof by com­bat because of the inconve­nience of the proof intro­du­ced in the chur­ches ; that des­pite the out­cries of this nobi­lity, des­pite abuse that itself cried out, and des­pite the autho­rity of Othon, who arri­ved in Italy to speak and act as mas­ter, the clergy held firm in two coun­cils ; that the com­bi­na­tion of the nobi­lity and the prin­ces having for­ced the eccle­sias­tics to yield, the prac­tice of judi­cial com­bat had to be regar­ded as a pri­vi­lege of nobi­lity, as a ram­part against injus­tice, and an assu­rance of its pro­perty, and that from that moment this prac­tice must have been exten­ded. And this took place in a time when the empe­rors were large and the popes small ; in a time when the Othos came to res­tore the dignity of the empire in Italy.

I will make an obser­va­tion which will confirm what I have said above : that the esta­blish­ment of proofs by nega­tion brought with it the juris­pru­dence of com­bat. The abuse which they were pro­tes­ting before the Othos was that a man whose char­ter was objec­ted to as false would defend him­self by a proof of nega­tion, decla­ring on the Gospels that it was not. What did they do to cor­rect the abuse of a law that had been trun­ca­ted ? They res­to­red the prac­tice of com­bat.

I have has­te­ned to speak of the cons­ti­tu­tion of Otho II in order to give a clear notion of the quar­rels of those times bet­ween the clergy and the laity. There had pre­viously been a cons­ti­tu­tion of Lotharius I10 which upon the same pro­tests and the same quar­rels, inten­ding to assure the pos­ses­sion of pro­perty, had pres­cri­bed that the notary would swear that his char­ter was not false ; and that if he was dead, the wit­nes­ses who had signed it would be made to swear. But the malady still remai­ned ; they had to resort to the remedy I have just des­cri­bed.

I find that before that time, in the gene­ral assem­blies held by Charlemagne, the nation argued before him that in the state of things it was very hard to avoid having the accu­ser or the accu­sed per­jure him­self, and that it would be bet­ter to res­tore judi­cial com­bat, which he did.11

The prac­tice of judi­cial com­bat spread to the Burgundians, and that of the oath was limi­ted. Among the Goths, the laws of Chaindasuinthus and of Recessuinthus left no trace of sin­gu­lar com­bat : the eccle­sias­tics inhi­bi­ted this cus­tom. Subsequently, these peo­ples put an end to the vio­lence done to them in this res­pect.12

The early kings of the Lombards res­trai­ned the prac­tice of com­bat.13 Charlemagne,14 Louis the Debonaire, and the Othos made various gene­ral cons­ti­tu­tions which we find inser­ted into the laws of the Lombards and appen­ded to the Salic laws, which exten­ded the duel, first in cri­mi­nal mat­ters and then in civil mat­ters. They were unsure how to pro­ceed. Proof by nega­tion under oath had disad­van­ta­ges, proof by com­bat as well ; they chan­ged as one set of disad­van­ta­ges or the other see­med to pre­vail.

On the one hand, the eccle­sias­tics enjoyed seeing that recourse was had in all secu­lar mat­ters to the chur­ches and the altars15 ; and on the other, a proud nobi­lity liked to main­tain its rights by the sword.

I am not saying that it was the clergy that had intro­du­ced the prac­tice which the nobi­lity was pro­tes­ting. That cus­tom deri­ved from the spi­rit of the bar­ba­rian laws and from the esta­blish­ment of proofs by nega­tion. But a pro­ce­dure that could pro­cure impu­nity for so many cri­mi­nals having pro­vo­ked the thought that they should use the sanc­tity of the chur­ches to strike the guilty with ter­ror and per­ju­rers with awe, the eccle­sias­tics sup­por­ted this pro­cess and the prac­tice to which it was tied ; for other­wise they were oppo­sed to proofs by nega­tion. We see in Beaumanoir that these proofs were never accep­ted in eccle­sias­ti­cal courts,16 which no doubt contri­bu­ted greatly to their decline and to wea­ke­ning the pro­vi­sion of the bar­ba­rian codes of laws in this res­pect.

This will also make evi­dent the link bet­ween the prac­tice of proofs by nega­tion and that of judi­cial com­bat which I have dis­cus­sed so exten­si­vely. Lay courts allo­wed both, and both were rejec­ted by cle­ri­cal courts.

In its choice of proof by com­bat, the nation fol­lo­wed its war­like genius : for while they were esta­bli­shing com­bat as a judg­ment of God, they were abo­li­shing proofs by the cross, cold water, and boi­ling water, which also had been regar­ded as judg­ments of God.

Charlemagne orde­red that should any dis­pu­tes arise among his chil­dren, it should be ended by the judg­ment of the cross. Louis the Debonaire17 limi­ted this judg­ment to eccle­sias­ti­cal mat­ters ; his son Lotharius abo­li­shed it in all cases ; he like­wise abo­li­shed proof by cold water.18

I am not saying that in a time when there were so few uni­ver­sally accep­ted prac­ti­ces, these proofs were not repro­du­ced in some chur­ches, all the more so that one char­ter of Philip Augustus men­tions them19 ; but I am saying that they were lit­tle used. Beaumanoir, who lived in the time of St. Louis and a lit­tle after, enu­me­ra­ting the dif­fe­rent kinds of proofs, men­tions proofs of judi­cial com­bat and nothing of the others.20

Si placeret Domino nostro ut eos transferret ad Legem Francorum.

See this law, tit. 59, §4, and tit. 67, §5.

Leges Langobardoroum, book II, tit. 55, ch. xxxiv.

In the year 962.

Ab Italiæ Proceribus est proclamatum, ut Imperator Sanctus, mutatâ lege, facinus indignum destrueret. Leges Langobardoroum, book II, tit. 55, ch. xxxiv.

It was held in the year 967 in the presence of Pope Jean XIII and the emperor Otho I.

Uncle of Otho II, son of Rodolphe, and king of Transjurane Burgundy.

Cum in hoc ab omnibus imperiales aures pulsarentur, Leges Langobardoroum, book II, tit. 55, ch. xxxiv.

In the year 988.

In Leges Langobardoroum, book II, tit. 55, §33. In the copy which Mr. Muratori used, it is attributed to the emperor Guy.

In Leges Langobardoroum, book II, tit. 55, §23.

In Palatio quoque Bera Comes Barcinonensis, cum impeteretur a quodam Sunila and infidelitatis argueretur, cum eodem secundum legem propriam, utpote quia uterque Gothus erat, equestri prælio congressus est and victus. I no longer know from where I have taken this passage.

See Leges Langobardoroum, book I, tit. 4, and tit. 9, §23, and book II, tit. 35, §4–5 and tit. 55, §1, 2, and 3, the statutes of Rotharis ; and §15, that of Luitprand.

Ibid., book II, tit. 55, §23.

The judicial oath was at that time taken in the churches, and in the first dynasty there was a chapel in the palace of the kings dedicated to matters being judged there. See formulas of Marculfus, book I, ch. xxxviii, the laws of the Ripuarians, tit. 59, §4, tit. 65, §5, the Hist. of Gregory of Tours, the capitulary of the year 803 appended to the Salic law.

Chapter xxxix, p. 212.

His constitutions are to be found inserted into Leges Langobardoroum and after the Salic laws.

In his constitution inserted into Leges Langobardoroum, book II, tit. 55, §31.

In the year 1200.

Custom of Beauvaisis, ch. xxxix.