From Private Wars, whose best lesson is the Truce of God, by which for a time they were hushed, I come to the Judicial Combat, or Trial by Battle, where, as in a mirror, we behold the barbarism of War, without truce of any kind. Trial by Battle was a formal and legitimate mode of deciding controversies, principally between individuals. Like other ordeals, by walking barefoot and blindfold among burning ploughshares, by holding hot iron, by dipping the hand in hot water or hot oil, and like the great Ordeal of War, it was a presumptuous appeal to Providence, under the apprehension and hope that Heaven would give the victory to him who had the right. Its object was the very object of War,—the determination of Justice. It was sanctioned by Municipal Law as an arbitrament for individuals, as War, to the scandal of civilization is still sanctioned by International Law as an arbitrament for nations. "Men," says the brilliant Frenchman, Montesquieu, "subject even their prejudices to rules"; and Trial by Battle, which he does not hesitate to denounce as a "monstrous usage," was surrounded by artificial regulations of multifarious detail, constituting an extensive system, determining how and when it should be waged, as War is surrounded by a complex code, known as the Laws of War. "Nothing," says Montesquieu again, "could be more contrary to good sense, but, once established, it was executed with a certain prudence,"—which is equally true of War. No battle-field for an army is selected with more care than was the field for Trial by Battle. An open space in the neighborhood of a church was often reserved for this purpose. At the famous Abbey of Saint-Germain-des-Prés, in Paris, there was a tribune for the judges, overlooking the adjoining meadow, which served for the field.[39] The combat was inaugurated by a solemn mass, according to a form still preserved, Missa pro Duello, so that, in ceremonial and sanction, as in the field, the Church was constantly present. Champions were hired, as soldiers now.[40]
No question was too sacred, grave, or recondite for this tribunal. In France, the title of an Abbey to a neighboring church was decided by it; and an Emperor of Germany, according to a faithful ecclesiastic, "desirous of dealing honorably with his people and nobles" (mark here the standard of honor!), waived the judgment of the court on a grave question of law concerning the descent of property, and referred it to champions. Human folly did not stop here. In Spain, a subtile point of theology was submitted to the same determination.[41] But Trial by Battle was not confined to particular countries or to rare occasions. It prevailed everywhere in Europe, superseding in many places all other ordeals, and even Trials by Proofs, while it extended not only to criminal matters, but to questions of property. In Orléans it had an exceptional limitation, being denied in civil matters where the amount did not exceed five sous.[42]
Like War in our day, its justice and fitness as an arbitrament were early doubted or condemned. Liutprand, a king of the Lombards, during that middle period neither ancient nor modern, in a law bearing date A.D. 724, declares his distrust of it as a mode of determining justice; but the monarch is compelled to add, that, considering the custom of his Lombard people, he cannot forbid the impious law. His words deserve emphatic mention: "Propter consuetudinem gentis nostræ Langobardorum LEGEM IMPIAM vetare non possumus ..."[43] The appropriate epithet by which he branded Trial by Battle is the important bequest of the royal Lombard to a distant posterity. For this the lawgiver will be cherished with grateful regard in the annals of civilization.
This custom received another blow from Rome. In the latter part of the thirteenth century, Don Pedro of Aragon, after exchanging letters of defiance with Charles of Anjou, proposed a personal combat, which was accepted, on condition that Sicily should be the prize of success. Each called down upon himself all the vengeance of Heaven, and the last dishonor, if, at the appointed time, he failed to appear before the Seneschal of Aquitaine, or, in case of defeat, refused to consign Sicily undisturbed to the victor. While they were preparing for the lists, the Pope, Martin the Fourth, protested with all his might against this new Trial by Battle, which staked the sovereignty of a kingdom, a feudatory of the Holy See, on a wild stroke of chance. By a papal bull, dated at Civita Vecchia, April 5th, 1283, he threatened excommunication to either of the princes who should proceed to a combat which he pronounced criminal and abominable. By a letter of the same date, the Pope announced to Edward the First of England, Duke of Aquitaine, the agreement of the two princes, which he most earnestly declared to be full of indecency and rashness, hostile to the concord of Christendom, and reckless of Christian blood; and he urged upon the English monarch all possible effort to prevent the combat,—menacing him with excommunication, and his territories with interdict, if it should take place. Edward refusing to guaranty the safety of the combatants in Aquitaine, the parties retired without consummating their duel.[44] The judgment of the Holy See, which thus accomplished its immediate object, though not in terms directed to the suppression of the custom, remains, nevertheless, from its peculiar energy, a perpetual testimony against Trial by Battle.
To a monarch of France belongs the honor of first interposing the royal authority for the entire suppression within his jurisdiction of this impious custom, so universally adopted, so dear to the nobility, and so profoundly rooted in the institutions of the Feudal Age. And here let me pause with reverence as I pronounce the name of St. Louis, a prince whose unenlightened errors may find easy condemnation in an age of larger toleration and wider knowledge, but whose firm and upright soul, exalted sense of justice, fatherly regard for the happiness of his people, respect for the rights of others, conscience void of offence toward God or man, make him foremost among Christian rulers, and the highest example for Christian prince or Christian people,—in one word, a model of True Greatness. He was of angelic conscience, subjecting whatever he did to the single and exclusive test of moral rectitude, disregarding every consideration of worldly advantage, all fear of worldly consequences.
His soul, thus tremblingly sensitive to right, was shocked at the judicial combat. It was a sin, in his sight, thus to tempt God, by demanding of him a miracle, whenever judgment was pronounced. From these intimate convictions sprang a royal ordinance, promulgated first at a Parliament assembled in 1260: "We forbid to all persons throughout our dominions the Trial by Battle; ... and instead of battles, we establish proofs by witnesses.... And these battles we abolish in our dominions forever."[45]
Such were the restraints on the royal authority, that this beneficent ordinance was confined in operation to the demesnes of the king, not embracing those of the barons and feudatories. But where the power of the sovereign did not reach, there he labored by example, influence, and express intercession,—treating with the great vassals, and inducing many to renounce this unnatural usage. Though for years later it continued to vex parts of France, its overthrow commenced with the Ordinance of St. Louis.