[328] L. Baioar. Tit. XVI. c. 5.
[329] Beaumanoir, Coutumes du Beauvoisis, chap. lxi. § 58.—In the contemporary Italian law, however, there was some limitation on the facility of challenging witnesses—“Ita demum inter contrarios testes fit pugna, si ipsi inter se imponant nam pars testibus non potest pugnam imponere nisi velint.”—Odofredi Summa de Pugna, c. i. (Patetta, p. 483).
[330] Lib. Pract. de Consuetud. Remens. §§ 14, 40 (Archives Législat. de Reims, Pt. I. pp. 37, 40).
[331] Bracton de Legibus Angl. Lib. III. Tract. II. cap. xxxvii. § 5.—Fleta, Lib. I. cap. xxii.
[332] Thus in a case in 1220 involving a stolen mare, the accused gave a warrantor, and on the accuser challenging him to battle he gave a second warrantor. On investigation he was found to have received five marks for the service with a promise of five more, and he was mercifully treated by being condemned only to the loss of a foot—“Sciendum quod misericorditer agitur cum eo per consilium domini regis cum majorem pœnam de jure demeruisset.”—Maitland, Select Pleas of the Crown, I. 127.
[333] Beaumanoir, chap. vi. § 16.
[334] Beaumanoir, ch. xxxix. §§ 30, 31, 66.—Assises de Jerusalem, cap. 169. A somewhat similar principle is in force in the modern jurisprudence of China. Women, persons over eighty or under ten years of age, and cripples who have lost an eye or a limb are entitled to buy themselves off from punishment, except in a few cases of aggravated crime. They are, therefore, not allowed to appear as accusers, because they are enabled by this privilege to escape the penalties of false witness.—Staunton, Penal Code of China, Sects. 20-22, and 339. In the ancient Brahmanic law also there is a long enumeration of persons who are not receivable as witnesses, including women, children, and men over eighty years of age. In this, however, the exclusion of women would appear to be because they were presumably under tutelage.—Institutes of Vishnu, VIII. 2.
The exclusion of women as witnesses during the mediæval period was also one of the numerous disabilities by which the Church expressed its contempt for the sex which had tempted Adam to his fall. As early as the fourth century Hilary the Deacon, in a tract which long passed current under the name of St. Augustin, says: “Nec docere enim potest, nec testis esse, neque fidem dicere, neque judicare” (Hilari Diac. Quæstt. ex Vet. Testamento, c. xlv.—Migne, T. XXX. p. 2244). And this was carried through Ivo of Chartres (Decreti, P. VIII. c. 85) into the body of the canon law (Gratiani Decr. Caus. XXXIII. Q. v. cap. 17).
[335] The earliest of these charters is a grant from Louis le Gros in 1109 to the serfs of the church of Paris, confirmed by Pope Pascal II. in 1113 (Baluz. et Mansi III. 12, 62). D’Achery (Spicileg. III. 481) gives another from the same monarch in 1128 to the church of Chartres.
[336] Beaumanoir, chap. lxi. § 59.