Montesquieu
 

XXVIII.26 On judicial combat between one of the parties and one of the witnesses

Beaumanoir1 says that a man who saw that a wit­ness was going to depose against him could avoid the second by saying to the jud­ges that his adver­sary was pro­du­cing a false and libe­lous wit­ness ; and if the wit­ness wished to main­tain the quar­rel, he prof­fe­red the gages of bat­tle.2 The inves­ti­ga­tion was off : for if the wit­ness was defea­ted, it was ruled that the adver­sary had pro­du­ced a false wit­ness, and he lost his suit.

The second wit­ness could not be allo­wed to swear, for he would have utte­red his tes­ti­mony and the mat­ter would have been ended by the depo­si­tion of two wit­nes­ses. But by inter­rup­ting the second, the depo­si­tion of the first became moot.

The second wit­ness being thus rejec­ted, the adver­sary could not have others heard, and lost his suit ; but in cases where there were no gages of bat­tle, other wit­nes­ses could be pro­du­ced.3

Beaumanoir says that the wit­ness could say to his party before depo­sing : “I do not wish to fight for your quar­rel, nor enter a plea on my part ; but if you want to defend me, I shall willin­gly tell my truth.”4 The party found him­self obli­ged to fight for the wit­ness ; and if he were defea­ted, he did not lose5 the body, but the wit­ness was rejec­ted.

I think that this was a modi­fi­ca­tion of the older cus­tom, and what makes me think so is that this prac­tice of chal­len­ging wit­nes­ses is esta­bli­shed in the laws of the Bavarians6 and the Burgundians7 without any res­tric­tion.

I have already spo­ken of the cons­ti­tu­tion of Gundebald, against which Agobard8 and St. Avitus9 pro­tes­ted so loudly. “When the accu­sed,” says this prince, “pre­sents wit­nes­ses to swear that he has not com­mit­ted the crime, the accu­ser can chal­lenge one of the wit­nes­ses to com­bat ; for it is just that he who has offe­red to swear, and who has decla­red that he knew the truth, should not object to figh­ting to main­tain it.” The king left the wit­nes­ses no sub­ter­fuge for avoi­ding com­bat.

Ch. lxi, p. 315.

They must be asked, before they take any oath, for whom they wish to testify ; for “l’enques gist li point d’aus lever de faux témoignage” (Beaumanoir, ch. xxxix, p. 218).

Ibid., ch. lxi, p. 316.

Ch. vi, p. 39–40.

But if the combat took place by champions, the defeated champion had his hand cut off.

Tit. 16, §2.

Tit. 45.

Letter to Louis the Debonaire.

The Life of saint Avit.