In Germany, as a general rule, either party had a right to demand the judicial combat,[398] subject, however, in practice, to several important limitations. Thus, difference of rank between the parties afforded the superior a right to decline a challenge, as we shall see more fully hereafter.[399] Relationship between the contestants was also an impediment, of which either might avail himself,[400] and even the fact that the defendant was not a native of the territory in which the action was brought gave him the privilege of refusing the appeal.[401] Still, we find the principle laid down even in the fourteenth century that cases of homicide could not be determined in any other manner.[402] There were circumstances, indeed, in which the complainant, if he could bring the evidence of seven witnesses in his favor, could decline the duel; but if he choose to prove the charge by the combat, no examination or testimony was admitted. In the same way, if a man was slain while committing theft or robbery, and was prosecuted for the crime, the accuser was not bound to offer the duel if he could produce the evidence of seven witnesses; but if a relative of the dead man offered to vindicate him by combat, this annulled all the evidence, and conviction could not be had without the battle ordeal.[403] A curious provision in the Saxon burgher law allowed a man who had been assaulted to challenge to the duel as many men as he had wounds—but the wounds were required to be of a certain degree of severity—wunden kampffbaren.[404] So the contemporary law of Suabia provides that in accusations of personal violence, the duel was not to be allowed, unless the injury inflicted on the complainant had been sufficiently serious to cause permanent maiming,[405] thus showing how thoroughly different in spirit was the judicial combat from the modern code of honor which has been affiliated upon it. Yet a general rule is found expressed to the effect that it was necessary only in cases where no other evidence was obtainable, when the result could be safely left to the judgment of Omniscience.[406]
In the Latin kingdoms of the East, and among the Armenians, who, curiously enough, adopted the customs of their fellow Christians from the West, it would seem that in both the noble and the roturier courts, in civil as well as in criminal cases, the plaintiff or prosecutor was not obliged personally to fight, but that if one of his witnesses offered battle, the defendant or accused was not permitted to decline the challenge under pain of losing his suit or being condemned. On the other hand, unless the complainant or accuser had a witness who was willing to offer battle, the oath of denial of the other party was sufficient, and in criminal cases the accuser was subjected to the talio.[407]
By the English law of the thirteenth century, a man accused of crime had, in doubtful cases only, the right of election between trial by jury and the wager of battle. When a violent presumption existed against him, he was obliged to submit to the verdict of a jury; but in cases of suspected poisoning, as satisfactory evidence was deemed unattainable, the accused had only the choice between confession and the combat.[408] On the other hand, when the appellant demanded the duel, he was obliged to make out a probable case before it was granted.[409] When battle had been gaged, however, no withdrawal was permitted, and any composition between the parties to avoid it was punishable by fine and imprisonment[410]—a regulation, no doubt, intended to prevent pleaders from rashly undertaking it, and to obviate its abuse as a means of extortion. In accusations of treason, indeed, the royal consent alone could prevent the matter from being fought out.[411] Any bodily injury on the part of the plaintiff, tending to render him less capable of defence or aggression, likewise deprived the defendant of the right to the wager of battle, and this led to such nice distinctions that the loss of molar teeth was adjudged not to amount to disqualification, while the absence of incisors was considered sufficient excuse, because they were held to be important weapons of offence.[412] Notwithstanding these various restrictions, cases of treason were almost always determined by the judicial duel, according to both Glanville and Bracton.[413] This was in direct opposition to the custom of Lombardy, where such cases were especially exempted from decision by the sword.[414] These restrictions of the English law, such as they were, did not, however, extend to the Scottish Marches, where the trial by battle was the universal resource and no proof by witnesses was admitted.[415]
In Bearn, the duel was permitted at the option of the accuser in cases of murder and treason, but in civil suits only in default of testimony.[416] That in such cases it was in common use is shown by a treaty made, in the latter part of the eleventh century, between Centulla I. of Bearn and the Viscount of Soule, in which all doubtful questions arising between their respective subjects are directed to be settled by the combat, with the singular proviso that the combatants shall be men who have never taken part in war.[417] In the thirteenth century, however, a provision occurs which must have greatly reduced the number of duels, as it imposed a fine of only sixteen sous on the party who made default, while, if vanquished, he was visited with a mulct of sixty sous and the forfeiture of his arms.[418] In the neighboring region of Bigorre an exemption was allowed in favor of the widow whose husband had been slain in war. Until she remarried or her sons were of age to bear arms she was exempt from all legal process—a provision evidently intended to relieve her from the duel in which suits were liable to terminate.[419]
In some regions greater restrictions were imposed on the facility for such appeals to the sword. In Catalonia, for instance, the judge alone had the power of deciding whether they should be permitted,[420] and a similar right was reserved in doubtful cases to the podestà in a code of laws in force at Verona in 1228.[421] This must often have prevented the injustice inherent in the system, and an equally prudent reserve was exhibited in a statute of Montpellier, which required the assent of both parties.[422] On the other hand, in Normandy, at the commencement of the thirteenth century, many cases relating to real estate were examined in the first instance by a jury of twelve men, and, if they failed of an unanimous verdict, the question was decided by the duel, whether the parties were willing or not.[423]
By the criminal procedure in England, at about the same period, the duel was prescribed only for cases of felony or crimes of importance, and it was forbidden in trifling misdemeanors.[424] Appeal of battle could not lie between a vassal and his lord during the existence of the connection, nor between a serf and his master except in cases of treason.[425] It would also seem that the defendant could avoid the duel if he could prove that the motive of the appeal was hatred, for there is a curious case on record in which, when the appellant demanded battle, the accused offered to the king a silver mark for an impartial jury to decide this preliminary question, and it was granted to him.[426] In Southern Germany a fifteenth century MS. enumerates seven crimes for which the duel could be prescribed—detraction of the emperor or empire, treason, theft, robbery and depredation, rape, arson, and poisoning.[427]
From a very early period, a minimum limit of value was established, below which a pugnacious pleader was not allowed to put the life or limb of his adversary in jeopardy. This varied of course with the race and the period. Thus, among the Angli and Werini, the lowest sum for which the combat was permitted was two solidi,[428] while the Baioarians established the limit at the value of a cow.[429] In the tenth century, Otho II. decided that six solidi should be the smallest sum worth fighting for.[430] The so-called laws of Henry I. of England decreed that in civil cases the appeal of battle should not lie for an amount less than ten solidi.[431] In France, Louis le Jeune, by an edict of 1168, forbade the duel when the sum in debate was less than five sous,[432] and this remained in force for at least a century.[433] The custom of Normandy in the thirteenth century specifies ten sous as the line of demarcation between the lex apparens and the lex simplex in civil suits,[434] and the same provision retains its place in the Coutumier in use until the sixteenth century.[435] In the Latin States of the East founded by the Crusaders, the minimum was a silver marc in cases of both nobles and roturiers.[436] A law of Aragon, in 1247, places the limit at ten sous.[437]
As regards the inferior classes of society, innumerable documents attest the right of peasants to decide their quarrels by the ordeal of battle. By the old Lombard law, slaves were allowed to defend themselves in this manner;[438] and they could even employ the duel to claim their liberty from their masters, as we may infer from a law of King Grimoald denying this privilege to those who could be proved to have served the same master for thirty continuous years.[439] Similarly, among the Frisians, a litus claiming his liberty was allowed to prove it against his master with arms.[440] The institutions of feudalism widened the distance between the different classes of society, and we have already seen that, in the thirteenth century, serfs were enfranchised in order to enable them to support their testimony by the combat; yet this was only the result of inequality of rank. In the time of Beaumanoir (1283), though an appeal would not lie from a serf to a freeman, it may be safely inferred from the context that a combat could be legally decreed between two serfs if the consent of their masters were obtained,[441] and other contemporary authorities show that a man claimed as a serf could defend his freedom with the sword against his would-be master.[442] Even Jews were held liable to the appeal of battle, as we learn from a decision of 1207, preserved in an ancient register of assizes in Normandy,[443] and they no doubt purchased the exemption, which was granted to them, except in cases of flagrant murder, by Philippe le Long, as a special favor, in 1317.[444]
Difference of condition thus became an impediment to the duel, and formed the subject of many regulations, varying with circumstance and locality. The free mountaineers of Béarn, as has been seen, placed the prince and the subject on an equality before the law, but this was a rare example of independence, and the privileges of station were sometimes exhibited in their most odious form. In France, for instance, while the battle trial could take place between the gentilhomme and the vilain, the former was secured by the distinction that if the villein presumed to challenge him, he enjoyed the right of fighting on horseback with knightly weapons, while the challenger was on foot and armed only with shield and staff; but if the gentleman condescended to challenge the villein, they met on equal terms.[445] This last regulation was enforced with impartial justice, for Beaumanoir mentions a case in which a gentleman challenged a roturier, and presented himself in the lists mounted and armed with his knightly weapons. The defendant protested against this illegal advantage, and the judges decided that the gentleman had forfeited his horse and arms, and that if he desired to continue the combat he must do so in the condition in which he was left by the disarmament—in his shirt without armor or weapons, while his adversary should retain coat of mail, target, and club.[446] The barbarous injustice of the general rule, moreover, was by no means of universal application. Pierre de Fontaines, for instance, directs that in cases of appeal from a roturier to a gentleman the combat shall take place on foot between champions;[447] and I find a case recorded in 1280, in which a femme de corps of Aimeri de Rochechouart accused the Sire de Montricher of burning her houses, and as the duel was adjudged she placed in the lists an armed and mounted knight as her champion, to whom no objection seems to have been made.[448]
Throughout both Northern and Southern Germany, where the minute distinctions of birth were guarded with the most jealous care from a very early period, the codes of the thirteenth century, including even the burgher laws, provided that a difference of rank permitted the superior to decline the challenge of an inferior, while the latter was obliged to accept the appeal of the former. So thoroughly was this principle carried into practice, that, to compel the appearance of a Semperfri, or noble of sixteen quarterings, the appellant was required to prove himself of equally untarnished descent.[449] In the same spirit a Jew could not decline the appeal of battle offered by a Christian accuser, though we may safely infer that the Jew could not challenge the Christian.[450] So, in the Latin kingdom of Jerusalem, the Greek, the Syrian, and the Saracen could not challenge the Frank, but could not, in criminal cases, decline his challenge, though they might do so in civil suits.[451] In Aragon, no judicial duel was permitted between a Christian and a Jew or a Saracen,[452] while in Castile both combatants had to be gentlemen, quarrels between parties of different ranks being settled by the courts.[453] On the other hand, in Wales, extreme difference of rank was held to render the duel necessary, as in cases of treason against a lord, for there the lord was plaintiff against his vassal, and as no man could enter into law with his lord, the combat was considered the only mode of prosecution befitting his dignity.[454]