No rank of life in fact procured exemption from the duel between antagonists of equal station. When in 1002, on the death of Otho III., the German throne was filled by the election of Henry the Lame, Duke of Bavaria, one of his disappointed competitors, Hermann, Duke of Suabia, is said to have demanded that their respective claims should be determined by a judicial combat, and the new king, feeling himself bound to accept the wager of battle, proceeded to the appointed place, and waited in vain for the appearance of his antagonist.[372] Thus the champion of England, who until 1821 figured in the coronation pageant of Westminster Abbey, was a relic of the times when it was not an idle ceremony for the armed and mounted knight to fling the gauntlet and proclaim aloud that he was ready to do battle with any one who challenged the right of the new monarch to his crown.[373] A striking example of the liability attaching to even the most exalted rank is afforded by a declaration of the privileges of the Duchy of Austria, granted by Frederic Barbarossa in 1156, and confirmed by Frederic II. in 1245. These privileges rendered the dukes virtually independent sovereigns, and among them is enumerated the right of employing a champion to represent the reigning duke when summoned to the judicial duel.[374] Even more instructive is the inference deducible from the For de Morlaas, granted to his subjects by Gaston IV. of Béarn about the year 1100. The privileges contained in it are guaranteed by a clause providing that, should they be infringed by the prince, the injured subject shall substantiate his complaint by his simple oath, and shall not be compelled to prove the illegality of the sovereign’s acts by the judicial combat, thus indicating a pre-existing custom of the duel between the prince and his vassals.[375]
It is not to be supposed, however, from these instances that the duel was an aristocratic institution, reserved for nobles and affairs of state. It was an integral part of the ordinary law, both civil and criminal, employed habitually for the decision of the most every-day affairs. Thus a chronicler happens to mention that in 1017 the Emperor St. Henry II. coming to Merseburg hanged a number of robbers who had been convicted in single combat by champions, and then proceeding to Magdeburg he had all the thieves assembled and treated them in the same manner.[376] So much was it a matter of course, that, by the English law of the thirteenth century, a pleader was sometimes allowed to alter the record of his preliminary plea, by producing a man who would offer to prove with his body that the record was incorrect, the sole excuse for the absurdity being that it was only allowed in matters which could not injure the other side;[377] and a malefactor turning king’s evidence was obliged, before receiving his pardon, to pledge himself to convict all his accomplices, if required, by the duel.[378]
The habitual use of such a method of administering justice required no little robustness of faith in the expected intervention of God to control the event. Even in the fifteenth century, when the combat was rapidly becoming obsolete, this faith is pictorially embodied in an illuminated MS. of Tallhöfer’s Kamp-recht, where a miniature represents the victor kneeling and returning thanks to God, while the vanquished is lying on his back with Satan grasping at his open mouth as though already seizing the soul of the criminal.[379] This robustness of faith was proof against experience and common sense, and sought to explain the frequent miscarriage of justice by any process of reasoning rather than the right one. Thus about the year 1100 a sacrilegious thief named Anselm stole the sacred vessels from the church of Laon and sold them to a merchant, from whom he exacted an oath of secrecy. Frightened at the excommunications fulminated by the authorities of the plundered church, the unhappy trader revealed the name of the robber. Anselm denied the accusation, offered the wager of battle, defeated the unfortunate receiver of stolen goods, and was proclaimed innocent. Encouraged by impunity, he repeated the offence, and after his conviction by the ordeal of cold water he confessed the previous crime. The doubts cast by this event on the efficacy of the judicial combat were, however, happily removed by the suggestion that the merchant had suffered for the violation of the oath which he had sworn to Anselm, and the reputation of the duel remained intact.[380]
The frequent cases of this nature often did not admit of so ingenious an explanation of the criminal’s escape, and legal casuists assumed a condition of being, guilty in the sight of God, but not in that of man—a refinement of speculation which even finds place in the German codes of the thirteenth century;[381] and men contented themselves then, as they do still, with predicting future misfortunes and an eternity of punishment. The more direct solution, in cases of unjust condemnation, was very much like that which justified the defeat of Anselm’s merchant—that the unfortunate victim, though innocent of the special offence charged, suffered in consequence of other sins. This doctrine was even supported by the infallible authority of the papacy, as enunciated in 1203 by Innocent III. in a case wherein the priory of St. Sergius was unjustly convicted of theft by the judicial duel, and its possessions were consequently seized by the authorities of Spoleto.[382]
An example justifying this theory is found in the case of Henry of Essex in 1163. He was a favorite of Henry II. and one of the most powerful nobles of his day, till he was accused of treason by his kinsman Robert de Montfort for having abandoned his king when in desperate straits in the Welsh war of 1157. A duel ensued, fought on an island of the Thames near Reading, in presence of an immense assemblage. Henry had been a bad neighbor to the Abbey of St. Edmund, and when engaged in the desperate contest he was dismayed at seeing the angry saint hovering in the air and threatening him; nor was this all, for Gilbert de Cerivilla, whom he had unjustly put to death, likewise appeared and menaced him. The inevitable result of this was his defeat; he was left for dead on the field, but at the instance of his powerful kindred his body was allowed Christian burial in the Abbey of Reading. Carried thither he unexpectedly revived and embraced a religious life in the abbey, where years afterwards he related the story of his discomfiture to the veracious chronicler who has handed it down.[383]
That the combatants themselves did not always feel implicit confidence in the event, or rely solely upon the righteousness of their cause, is shown by the custom of occasionally bribing Heaven either to assist the right or to defend the wrong. Thus, in the eleventh century, we find the monastery of St. Peter at Bèze in the enjoyment of certain lands bestowed on the Saint by Sir Miles the Stammerer, who in this way endeavored to purchase his assistance in a combat about to take place—a bargain no doubt highly appreciated by the worthy monks.[384] According to the belief of the pious, Heaven might be propitiated by less venal means, for Cæsarius of Heisterbach relates on the authority of an eye-witness that when Henry VI. entered Lombardy in 1196, a castellan was accused before him of oppression and rapine by his neighbors, who produced a champion of enormous size to vindicate their case. The Emperor decreed the battle, when the brother of the accused offered himself for the defence—a slender and most unequal antagonist. He prepared himself for the strife, however, by assiduous confession and prayer, and easily overcame his huge adversary; and thus, exclaims the worthy chronicler, a guilty man escaped the death he had deserved, solely by virtue of the humble confession of his brother.[385] Cæsarius also mentions another case, in a duel decreed by Frederic Barbarossa between a knight and a gigantic champion, where the inequality was more than counterbalanced by the fact that the knight piously took the precaution of receiving the sacrament before entering the lists, and thus was enabled to overcome his adversary.[386]
Less creditable means were sometimes employed, and men did not hesitate, with the unreasoning inconsistency characteristic of superstition, to appeal to God and at the same time endeavor to influence God’s judgment by the use of unlawful expedients. This was not confined to the laity. In 1355 there was an important suit between the Bishop of Salisbury and the Earl of Salisbury respecting the ownership of a castle, in which the combat was adjudged. When the champions entered the lists the customary examination of their arms and accoutrements was made, and the combat was adjourned in consequence, as it was said, of finding in the coat of the episcopal champion certain rolls containing prayers and charms. The case was finally compromised by the bishop paying fifteen hundred marks to the earl for the disputed property.[387] That precautions against such devices were deemed necessary is shown by the oath required of all combatants, whether principals or champions, that they had on them no charms or conjurations to affect the result.[388] A quaint formula for this is the oath of the champion in the case of Low vs. Paramore in 1571—“This hear you justices that I have this day neither eat, drunk, nor have upon me either bone, stone, ne glass or any enchantment, sorcery, or witchcraft where-through the power of the Word of God might be inleased or diminished and the devil’s power increased, and that my appeal is true, so help me God and his saints and by this Book.”[389]
[CHAPTER V.]
LIMITATIONS ON THE WAGER OF BATTLE.
The right of demanding the wager of battle between principals varied much with the age and race, though as a “bilateral” ordeal, as a rule, from the earliest times either party was entitled to claim it.[390] When Beaumanoir composed his Coutumes du Beauvoisis, in 1283, the practice may be considered to have entered upon its decadence; twenty years had elapsed since the determined efforts of St. Louis to abolish it; substitutes for it in legal processes had been provided; and the manner in which that enlightened jurist manifests his preference for peaceful forms of law shows that he fully appreciated the civilizing spirit in which the monarch had endeavored to soften the ferocity of his subjects. When, therefore, we see in Beaumanoir’s treatise how few restrictions existed in his time, we may comprehend the previous universality of the custom. In criminal cases, if an accuser offered battle, the defendant was forced either to accept it or to confess his guilt, unless he could prove an alibi, or unless the accuser was himself notoriously guilty of the crime in question, and the accusation was evidently a mere device to shift the guilt to the shoulders of another; or unless, in case of murder, the victim had disculpated him, when dying, and had named the real criminals.[391] If, on the other hand, the accused demanded to wage his battle, the judge could only refuse it when his guilt was too notorious for question.[392] A serf could not challenge a freeman, nor a bastard a man of legitimate birth (though an appeal of battle might lie between two bastards), nor a leper a sound man.[393] In civil actions, the battle trial was not allowed in cases relating to dower, to orphans under age,[394] to guardianships, or to the equity of redemption afforded by the feudal laws to kinsmen in the sale of heritable property, or where the matter at stake was of less value than twelve deniers.[395] St. Louis also prohibited the duel between brothers in civil cases, while permitting it in criminal accusations.[396] The slenderness of these restrictions shows what ample opportunities were afforded to belligerent pleaders.[397]