[CHAPTER IV.]
CONFIDENCE REPOSED IN THE JUDICIAL DUEL.

Thus carefully moulded in conformity with the popular prejudices or convictions of every age and country, it may readily be imagined how large a part the judicial combat played in the affairs of daily life. It was so skilfully interwoven throughout the whole system of jurisprudence that no one could feel secure that he might not, at any moment, as plaintiff, defendant, or witness, be called upon to protect his estate or his life either by his own right hand or by the club of some professional and possibly treacherous bravo. This organized violence assumed for itself the sanction of a religion of love and peace, and human intelligence seemed too much blunted to recognize the contradiction.

There was, in fact, no question which might not be submitted to the arbitrament of the sword or club. If Charlemagne, in dividing his vast empire, forbade the employment of the wager of battle in settling the territorial questions which might arise between his heirs,[352] the prohibition merely shows that it was habitually used in affairs of the highest moment, and the constant reference to it in his laws proves that it was in no way repugnant to his general sense of justice and propriety.

The next century affords ample evidence of the growing favor in which the judicial combat was held. About the year 930, Hugh, King of Provence and Italy, becoming jealous of his uterine brother, Lambert, Duke of Tuscany, asserted him to be a supposititious child, and ordered him in future to claim no relationship between them. Lambert, being “vir ... bellicosus et ad quodlibet facinus audax,” contemptuously denied the aspersion on his birth, and offered to clear all doubts on the subject by the wager of battle. Hugh accordingly selected a warrior named Teudinus as his champion; Lambert was victor in the ensuing combat, and was universally received as the undoubted son of his mother. His triumph, however, was illegally brought to a sudden close, for Hugh soon after succeeded in making him prisoner and deprived him of eyesight.[353] Still, the practice continued to be denounced by some enlightened ecclesiastics, represented by Atto, Bishop of Vercelli, who declared it to be totally inapplicable to churchmen and not to be approved for laymen on account of the uncertainty of its results;[354] but representations of this kind were useless. About the middle of the century, Otho the Great appears, throwing the enormous weight of his influence in its favor. As a magnanimous and warlike prince, the wager of battle appears to have possessed peculiar attraction for his chivalrous instincts, and he extended its application as far as lay in his power. Not only did he force his daughter Liutgarda, in defending herself from a villanous accusation, to forego the safer modes of purgation, and to submit herself to the perilous decision of a combat,[355] but he also caused the abstract question of representation in the succession of estates to be settled in the same manner; and to this day in Germany the division of a patrimony among children and grandchildren is regulated in accordance with the law enacted by the doughty arms of the champions who fought together nine hundred years ago at Steil.[356] There was no question, indeed, which according to Otho could not be satisfactorily settled in this manner. Thus when, in 963, he was indulging in the bitter recriminations with Pope John XII. which preceded the subjugation of the papacy under the Saxon emperors, he had occasion to send Bishop Liutprand to Rome to repel certain accusations brought against him, and he ordered the armed followers of his ambassador to sustain his assertions by the duel; a proposition promptly declined by the pontiff, skilled though he was in the use of weapons.[357] A duellist, in fact, seems to have been reckoned a necessary adjunct to diplomacy, for when, in 968, the same Liutprand was dispatched by Otho to Constantinople on a matrimonial mission, and during the negotiations for the hand of Theophania a discussion arose as to the circumstances which had led to Otho’s conquest of Italy, the warlike prelate offered to prove his veracity by the sword of one of his attendants: a proposition which put a triumphant end to the argument.[358] A more formal assertion of the diplomatic value of the duel was made when in 1177 the conflicting claims of the kings of Castile and Navarre were referred to Henry II. of England for adjudication, and both embassies to the English court were supplied with champions as well as with lawyers, so as to be prepared in case the matter was submitted to the duel for decision.[359]

Nor were these solitary instances of the reference of the mightiest state questions to the chances of the single combat. Allusion has already been made to the challenge which passed between Charles of Anjou and Pedro of Aragon, and not dissimilar was that which resulted from the interview at Ipsch in 1053 between the Emperor Henry III. of Germany and Henry I. of France.[360] A hundred years earlier, in 948, when, at the Synod of Ingelheim, Louis d’Outremer invoked the aid of the Church in his death-struggle with the rising race of Capet, he closed the recital of the wrongs endured at the hands of Hugh le grand by offering to prove the justice of his complaints in single combat with the aggressor.[361] When the battle ordeal was thus thoroughly incorporated in the manners of the age, we need scarcely be surprised that, in a life of St. Matilda, written by command of her son Otho the Great, the author, after describing the desperate struggles of the Saxons against Charlemagne, should gravely inform us that the war was at last concluded by a duel between the Christian hero and his great antagonist Witikind, religion and empire being both staked on the issue as a prize of the victor; nor does the pious chronicler shudder at the thought that the destiny of Christianity was intrusted to the sword of the Frank.[362] His story could not seem improbable to those who witnessed in 1034 the efforts of Conrad the Salic to pacify the Saxon marches. On his inquiring into the causes of the mutual devastations of the neighboring races, the Saxons, who were really the aggressors, offered to prove by the duel that the Pagan Luitzes were in fault, trusting that their Christianity would overbalance the injustice of their cause. The defeat of their champion by his heathen adversary was, however, a memorable example of the impartial justice of God, and was received as a strong confirmation of the value of the battle trial.[363]

The second Otho was fully imbued with his father’s views, and so completely did he carry them out, that in a gloss on the Lombard law he is actually credited with the introduction of the duel.[364] In the preceding essay, allusion has been made to his substitution of the judicial combat for the compurgatorial oath in 983, and about the same period he made an exception, in favor of the battle ordeal, to the immemorial policy of the barbarians which permitted to all subject races the enjoyment of their ancestral usages. At the council of Verona, where all the nobles of Italy, secular and ecclesiastical, were assembled, he caused the adoption of a law which forced the Italians in this respect to follow the customs of their conquerors.[365] Even the church was deprived of any exemption which she might previously have enjoyed, and was only allowed the privilege of appearing by her advocati or champions.[366] There were small chances of escape from the stringency of these regulations, for an edict of Otho I. in 971 had decreed the punishment of confiscation against any one who should refuse to undergo the chances of the combat.[367] It may even be assumed, from the wording of a constitution of the Emperor Henry II., that in the early part of the eleventh century it was no longer necessary that there should be a doubt as to the guilt of the accused to entitle him to the privileges of the combat, and that even the most notorious criminal could have a chance of escape by an appeal to the sword.[368]

Thus it came to pass that nearly every question that could possibly arise was finally deemed liable to the decision of the wager of battle. If Otho the Great employed champions to legislate respecting a disputed point of law, he was not more eccentric than the Spaniards, who settled in the same manner a controversy regarding the canonical observances of religion, when Gregory VII. endeavored to force the introduction of the Roman liturgy into Castile and Leon, in lieu of the national Gothic or Mozarabic rite. With considerable difficulty, some years before, Navarre and Aragon had been led to consent to the change, but the Castilians were doggedly attached to the observances of their ancestors, and stoutly refused compliance. In 1077, Alfonso I. procured the assent of a national council, but the people rebelled, and after repeated negotiations the matter was finally referred to the umpirage of the sword. The champion of the Gothic ritual was victorious, and tradition adds that a second trial was made by the ordeal of fire; a missal of each kind was thrown into the flames, and the national liturgy emerged triumphantly unscathed.[369]

Nearly contemporary with this was the celebrated case of Otho, Duke of Bavaria, perhaps the most noteworthy example of a judicial appeal to the sword. A worthless adventurer, named Egeno, accused Otho of conspiring against the life of Henry IV. In a diet held at Mainz, the duke was commanded to disprove the charge by doing battle with his accuser within six weeks. According to some authorities, his pride revolted at meeting an adversary so far his inferior; according to others, he was prevented from appearing in the lists only by the refusal of the emperor to grant him a safe conduct. Be this as it may, the appointed term elapsed, his default of appearance caused judgment to be taken against him, and his duchy was accordingly confiscated. It was bestowed on Welf, son of Azo d’Este and of Cunigunda, descendant and heiress of the ancient Guelfic Agilolfings; and thus, on the basis of a judicial duel, was founded the second Bavarian house of Guelf, from which have sprung so many royal and noble lines, including their Guelfic Majesties of Britain. Some years later, the emperor himself offered to disprove by the same means a similar accusation brought against him by a certain Reginger, of endeavoring to assassinate his rival, Rodolph of Suabia. Ulric of Cosheim, however, who was involved in the accusation, insisted on taking his place, and a day was appointed for the combat, which was prevented only by the opportune death of Reginger.[370]

Scarcely less impressive in its results, and even more remarkable in itself, as exhibiting the duel invested with legislative as well as judicial functions, is the case wherein the wager of battle was employed in 1180 to break the overgrown power of Henry the Lion. That puissant Duke of Saxony and Bavaria had long divided the power of the empire and defied the repeated efforts of Frederic Barbarossa to punish his constantly recurring rebellions. Cited to appear and answer for his treasons in successive diets, he constantly refused, on the plea that the law required him to have a trial within his own dominions. At length, in the diet of Würzburg, a noble arose and declared himself ready to prove by the single combat that the emperor could legally cite his princes before him at any place that he might select within the limits of the empire. Of course there was none to take up the challenge, and Frederic was enabled to erect the principle thus asserted into a binding law. Henry was condemned by default, and his confiscated possessions were shared between those who had arranged and enacted the comedy.[371]