In discussing the judicial combat, it is important to keep in view the wide distinction between the wager of battle as a judicial institution, and the custom of duelling which has obtained with more or less regularity among all races and at all ages. When the Horatii met the Curiatii, or when Antony challenged Octavius to decide the empire of the world with their two swords, or when Edward III. in 1340 proposed to Philippe de Valois to settle their rival claims to the heritage of France army to army, a hundred to a hundred, or body to body,[286] or when the ancient Hindus were in the habit of averting the carnage of battles in the same manner[287]—these were simply expedients to save the unnecessary effusion of blood, or to gratify individual hate. When the raffiné of the times of Henri Quatre, or the modern fire-eater, has wiped out some imaginary stain in the blood of his antagonist, the duel thus fought, though bearing a somewhat closer analogy to the judicial combat, is not derived from it, but from the right of private vengeance which was common to all the barbarian tribes, and from the cognate right of private warfare which was the exclusive privilege of the gentry during the feudal period.[288] The established euphuistic formula of demanding “the satisfaction of a gentleman,” thus designates both the object of the custom and its origin. The abolition of private wars gave a stimulus to the duel at nearly the period when the judicial combat fell gradually into desuetude. The one thus succeeded to the other, and, being kindred in form, it is not surprising that for a time there was some confusion in the minds of men respecting their distinctive characteristics. Yet it is not difficult to draw the line between them. The object of the one was vengeance and reparation; the theory of the other was the discovery of truth and the impartial ministration of justice.

It is easy to multiply examples illustrating this. John van Arckel, a knight of Holland, followed Godfrey of Bouillon to the first crusade. When some German forces joined the army, a Tyrolese noble, seeing van Arckel’s arms displayed before his tent, and recognizing them as identical with his own, ordered them torn down. The insult was flagrant, but the injured knight sought no immediate satisfaction for his honor. He laid the case before the chiefs of the crusade as a judicial matter; an examination was made, and both parties proved their ancestral right to the same bearings. To decide the conflicting and incompatible pretensions, the judges ordered the judicial combat, in which van Arckel deprived his antagonist of life and quarterings together, and vindicated his claim to the argent 2 bars gules, which in gratitude to Heaven he bore for eight long years in Palestine. This was not a quarrel on a punctilio, nor a mode of obtaining redress for an insult, but an examination into a legal question which admitted of no other solution according to the manners of the age.[289] When, after the Sicilian Vespers, the wily Charles of Anjou was sorely pressed by his victorious rival Pedro III. of Aragon, and desired to gain time in order to repress a threatened insurrection among his peninsular subjects, he sent a herald to Don Pedro to accuse him of bad faith in having commenced the war without defiance. The fiery Catalan fell into the snare, and in order to clear himself of the charge, which was not ill-founded, he offered to meet his accuser in combat and determine their rights to the Sicilian throne. The terms were laboriously settled by six representatives of each king and were signed by the principals December 26, 1282; they were to meet, with a hundred knights on each side, June 1, 1283, in the neutral territory of Bordeaux and fight it out in the presence of Edward I. of England or of his deputy, and each swore that if he failed to be present he would forever hold himself as false and perjured and deprived of the royal station and dignity. When Charles applied to his cousin Edward to grant the champ-clos the latter emphatically replied that for the crowns of the Two Sicilies he would not be judge in such a combat; Martin II. chimed in with a bull forbidding him to serve, and the combat never took place, Charles of Anjou having obtained his purpose in the intervening suspension of arms.[290] Nothing more picturesquely romantic is to be found in the annals of chivalry than Muntaner’s relation of Don Pedro’s secret ride to Bordeaux and his appearance on the day appointed in the lists where Edward’s seneschal was unable to guarantee him a fair field.[291] So the challenge which Richard II., in 1383, sent to Charles VI. wore the aspect of the judicial duel to decide their claims to the realms of France under the judgment of God.[292] Though practically these challenges may differ little from that of Antony, still their form and purport were those of the judicial duel in civil or criminal cases. So, when Charles V. offered to maintain in single combat the charge that Francis I. had villainously forfeited his faith in disregarding the treaty of Madrid, and Francis hotly replied with a demand for a secure field in which to defend his honor, the challenge and its acceptance wore the form of the judicial duel to decide the question of guilt; although Charles in appointing the Bidasoa as the place of meeting gave as his reasons the avoidance of bloodshed and the ending of the war as well as the maintenance of his just cause.[293] The celebrated duel, fought in 1547, between Jarnac and La Chastaigneraye, so piteously deplored by honest old Brantôme, shows the distinction maintained to the last. It was conducted with all judicial ceremonies, in presence of Henry II., not to settle a point of honor, but to justify Jarnac from a disgusting accusation brought by his adversary. Resulting most unexpectedly in the death of La Chastaigneraye, who was a favorite of the king, the monarch was induced to put an end to all legalized combats, though the illegal practice of the private duel not only continued to flourish, but increased beyond all precedent during the succeeding half century—Henry IV. having granted in twenty-two years no less than seven thousand letters of pardon for duels fought in contravention of the royal edicts. Such a mode of obtaining “satisfaction” is so repugnant to the spirit of our age that it is perhaps not to be wondered at if its advocates should endeavor to affiliate it upon the ancient wager of battle. Both relics of barbarism, it is true, are developments from the same primitive habits and customs, yet they are essentially distinct and have coexisted as separate institutions; and, however much occasionally intermingled by the passions of periods of violence, they were practised for different ends, and were conducted with different forms of procedure. We have only to deal with the combat as a strictly judicial process, and shall, therefore, leave untouched the vast harvest of curious anecdote afforded by the monomachial propensities of modern times.

[CHAPTER II.]
ORIGIN OF THE JUDICIAL DUEL.

The mediæval panegyrists of the wager of battle sought to strengthen its title to respect by affirming that it was as old as the human race, and that Cain and Abel, unable to settle their conflicting claims in any other mode, agreed to leave the decision to the chances of the duel; while the combat between David and Goliath was considered by the early schoolmen as an unanswerable proof of the favor with which God regarded such encounters. Leaving such speculations aside, it is enough for us to know that all the tribes which settled in Europe practised the combat with so general a unanimity that its origin must be sought at a period anterior to their separation from the common stock, although it has left no definite traces in the written records which have reached us of the Asiatic Aryans.[294]

That some vague notions of Divine justice making itself manifest through the sword must have existed in prehistoric Hellenic times is apparent from Homer’s elaborate description of the duel between Menelaus and Paris. This has all the characteristics of a judicial combat to decide the guilt or innocence of the claimants for the possession of the fair Helen. A preliminary sacrifice is offered to Zeus; Hector and Ulysses measure out the ground; lots are cast to decide which of the antagonists shall have the first throw of the spear; and the assembled armies put up a prayer to Zeus, entreating him to send to Hades the guilty one of the two combatants.[295] This is not merely a device to put an end to the slaughter of brave warriors—it is an appeal to Heaven to elicit justice by means of arms.

The Italiote branch of the Aryans affords us a more definite illustration of the same belief in the custom of the Umbrians, who settled quarrels by single combat, and deemed that he who slew his adversary thus proved that his cause was just.[296]

Although Cæsar makes no mention of such a custom in Gaul, it evidently prevailed among the Celtic tribes. Livy describes how some Spaniards seized the opportunity of a show of gladiators, given by Scipio, to settle various civil suits by combat, and he proceeds to particularize a case in which two rival cousins decided in this manner a disputed question in the law of descent, despite the earnest remonstrances of the Roman commander.[297] Among the Irish Celts, at their appearance in history, we find the judicial duel established with fixed regulations. In the Senchus Mor, a code claiming to be compiled under the supervision of St. Patrick, the delay of five days in a distress is explained by the history of a combat between two long previous in Magh-inis. “When they had all things ready for plying their arms, except a witness alone, they met a woman at the place of combat, and she requested of them a delay, saying, ‘If it were my husband that were there I would compel you to delay.’ ‘I would delay,’ said one of them, ‘but it would be prejudicial to the man who sues me; it is his cause that would be delayed.’ ‘I will delay,’ said the other. The combat was then put off, but they did not know till when it was put off, until Conchubhur and Sencha passed judgment respecting it; and Sencha asked, ‘What is the name of this woman?’ ‘Cuicthi,’ (five) said she, ‘is my name.’ ‘Let the combat be delayed,’ said Sencha, ‘in the name of this woman for five days.’”[298] The combative ardor of the Feini, indeed, was so strong, and the appeal to the wager of battle so general, that on their conversion to Christianity they found it difficult to understand that the holy ministers of Christ should be restricted from vindicating their rights by arms, and St. Patrick, in a synod held in 456, was obliged to threaten his clergy with expulsion from the church if they endeavored to escape by appeal to the sword from settling obligations which they had incurred by giving security for heathens.[299]

This prevalence of the wager of battle among the Irish Celts renders probable its existence likewise among the early inhabitants of Britain. If so, the long domination of the Romans was doubtless sufficient to extinguish all traces of it. The Welsh laws attributed to Hoel Dda in the early part of the tenth century, which are exceedingly minute and precise in their directions as to all forms of legal procedure, make no allusion to it whatever. It is true that an ancient collection of laws asserts that the code of Dyvnwal-moel-mud, a British king, prescribed the ordeals of battle, of hot iron, and of boiling water, and that Hoel in his legislation considered them unjust, abrogated them, and substituted the proof by men, or raith.[300] This legend, however, is very apocryphal. There is no allusion to such customs in the Welsh codes up to the close of the twelfth century, and the few indications which occur in subsequent collections would seem to indicate that these were rather innovations due to the influence of the English conquest than revivals of ancient institutions.