Another phase of the relations between the church and the duel is to be seen in the extensive secular jurisdiction of its prelates in their capacity as temporal seigneurs. In this they were accustomed to award the duel as freely as any other form of legal procedure. To do this was not only one of the privileges which marked the feudal superior, but was also a source of revenue from the fees and penalties thence accruing, and these rights were as eagerly sought and as jealously guarded by the spiritual lords as by the warlike barons. It would scarce be necessary to multiply instances, but I may mention a charter granted by Fulk Nera, Count of Anjou, about the year 1010, bestowing these rights on the abbey of Beaulieu in Touraine,[496] and one by the Emperor Henry III., in 1052, to the bishop and church of Volterra in Italy.[497] The first authentic evidence of the existence of the battle trial in Scotland is a charter of Alexander I. in 1124 to the Abbey of Scone, in which he bestows on the abbot and monks the right to grant the duel and ordeal in their jurisdiction; and his brother, St. David I., conferred the same rights on the Abbey of Holyrood.[498] Some conscientious churchmen objected to a practice so antagonistic to all the teachings of the religion of which they were professors, and lifted up their voices to check the abuse. Thus, about the close of the eleventh century, we find the celebrated canonist, St. Ivo of Chartres, rebuking the Bishop of Orleans for ordering the combat to decide an important suit in his court.[499] Ivo even carried out his principles to the sacrifice of the jurisdiction usually so dear to the prelates of his day, for in another case he refused to give judgment because it necessarily involved a trial by battle, and he eluded the responsibility by transferring the cause to the court of the Countess of Chartres.[500] A century later Peter Cantor declared that as a priest he would in no case furnish relics on which the preliminary oaths were to be taken, for churchmen were prohibited from being concerned in bloodshed.[501] These precepts and examples were equally unavailing. Churchmen continued to award the wager of battle, and resolutely resisted any invasion of their privileges. In 1150 the statutes of the chapter of Lausanne direct that all duels shall be fought before the provost—and the provost was Arducius, Bishop of Geneva.[502] In 1201 we see the Abbot of St. Alban’s and the Abbot of Westminster pleading as to their rights over the manor of Aldenham, including that of the duel.[503] Even in the thirteenth century, in the archbishop’s court or officiality of Reims, the duel was a matter of course;[504] and a case is recorded, occurring in 1224, in a dispute about the ownership of a house, which was decided by a duel in the court of the abbey of St. Remy, where the abbot presided over the lists and they were guarded by the royal officials.[505] In 1239 the Bishop of Orleans contested with the king as to the right of the former to the jurisdiction of the duel in his diocese;[506] and in a judgment rendered in 1269, concerning a combat waged within the limits of the chapter of Nôtre Dame of Paris, we find that the first blows of the fight, usually known as ictus regis or les cous lou roi, are alluded to as ictus capituli.[507] How eagerly these rights were maintained is apparent from numerous decisions concerning contested cases. Thus, an agreement of 1193, between the Countess of St. Quentin and the chapter of Nôtre Dame, respecting the disputed jurisdiction of the town of Viry, gives the official of the chapter the right to decree duels, but places the lists under the supervision of both parties, and divides the spoils equally between each.[508] A charter of 1199, concerning the village of Marne, shows that the sergeant, or officer of the chapter, had the cognizance of causes up to the gaging of battle, after which further proceedings were reserved for the court of the bishop himself.[509] In 1219 the commune of Novara arrogated to itself the right of decreeing the duel, but the bishop resisted this invasion of his privileges, and on the matter being referred for arbitration to the Bishop of Turin he decided in favor of his episcopal brother. The Bishop of Modena had a long and expensive suit with his city on the same question, which ended in 1227 with a compromise by which he abandoned the right; the Bishops of Vercelli were more fortunate, for they maintained it until the beginning of the fourteenth century, when judicial duels were going out of fashion.[510] In 1257, while St. Louis was exerting himself with so much energy to restrict the custom, an abbey is found engaged in a suit with the crown to prove its rights to decree the duel, and to enjoy the fees and mulcts thence arising;[511] and in 1277 a similar suit on the part of the abbey of St. Vaast d’Arras was decided in its favor.[512] From a verdict given in 1293, the right of the chapter of Soissons to decree the judicial combat appears to be undoubted, as well as the earnestness of the worthy ecclesiastics to exercise the privilege.[513] Even more significant is a declaration of the authorities of Metz, as late as 1299, by which the granting of all wagers of battle is expressly admitted by the civil magistrates of the city to appertain to the court of the archbishop;[514] and even in 1311 a bishop of St. Brieuc ordered a duel between two squires pleading in his court, in consequence of high words between them. From some cause the combat did not take place, and the Christian prelate seized the arms and horses of the parties as his mulct. They appealed to the Parlement of Paris, which ordered the restoration of the confiscated articles, and fined the bishop for his disregard of the royal edicts prohibiting the single combat.[515] Not long before, Beaumanoir had definitely asserted that the church could not be concerned in cases which involved the judicial duel, or the infliction of death or mutilation;[516] but the church was not disposed to admit this limitation on its jurisdiction, and in spite of the attempted suppression of the wager of battle by the crown it continued in its multifarious capacity of seigneur to execute the cruel laws of the period with undiminished activity.[517]
In other lands, where the duel had not experienced as in France the hostility of the supreme power, prelates continued to decree it, regardless of the papal anathemas. It was to no purpose that canon lawyers proved that they thereby incurred mortal sin, and that if death ensued they became “irregular” and incompetent to perform divine service. To all this they turned a deaf ear, and John of Freiburg, towards the close of the thirteenth century, is reduced to wishing that preachers would expound these principles in the pulpit and make them understood by the people at large.[518]
There was one jurisdiction which held itself more carefully aloof from the prevailing influence of barbarism—that of the Admiralty Courts, which covered a large portion of practical mercantile law. This is a fact easily explicable, not only from the character of the parties and of the transactions for which those courts were erected, but from the direct descent of the maritime codes from the Roman law, less modified by transmission than any other portions of mediæval jurisprudence. These codes, though compiled at a period when the wager of battle flourished in full luxuriance, have no reference to it whatever, and the Assises de Jerusalem expressly allude to the Admiralty Courts as not admitting the judicial duel in proof,[519] while an English document of 12 Edward III. attests the same principle.[520] When, however, the case was one implying an accusation of theft or deception, as in denying the receipt of cargo, the matter entered into the province of criminal law, and the battle trial might be legitimately ordered.[521]
[CHAPTER VI.]
REGULATIONS OF THE JUDICIAL COMBAT.
The forms and ceremonies employed in the judicial duel may furnish an interesting subject of investigation for the admirers of chivalry, but they teach in their details little concerning the habits and modes of thought of the Middle Ages, and for the most part are therefore interesting only to the pure archæologist. Although minute directions have come down to us in the manuals compiled for the guidance of judges of the lists, to enumerate them in their varying fashions would hardly be worth the necessary space. Yet there are some details which are of interest as illustrating both the theory and practice of the duel in its legal aspect. Thus the general principle on which the combat was conducted was the absolute assertion by each party of the justice of his cause, confirmed by a solemn oath on the Gospels, or on a relic of approved sanctity, before the conflict commenced.[522] Defeat was thus not merely the loss of the suit, but was also a conviction of perjury, to be punished as such; and in criminal cases it was also a conviction of malicious prosecution on the part of a worsted appellant. That it was regarded as much more serious than the simple loss of a suit is shown by the provisions of the custom of Normandy, whereby a vanquished combatant was classed with perjurers, false witnesses, and other infamous persons, as incapable thenceforth of giving evidence in courts, or of serving on a jury.[523] Accordingly, we find the vanquished party, whether plaintiff or defendant, subjected to penalties more or less severe, varying with time and place.
This was a primeval custom, even in civil cases. In the ancient laws of the Alamanni, when there was controversy as to the ownership of land, the contestants brought to the court of the district some earth and branches of trees from the disputed property. These were wrapped and sealed and placed in the lists, where the combatants touched the bundle with their swords and called upon God to grant victory to the right; the land passed to the victor and the defeated party was fined twelve sous for having made an unjust claim.[524] The tendency, as civilization advanced, was to render the penalty more severe. Thus, in 819, Louis le Débonnaire decreed that, in cases where testimony was evenly balanced, one of the witnesses from each side should be chosen to fight it out, the defeated champion suffering the usual penalty of perjury—the loss of a hand; while the remaining witnesses on the losing side were allowed the privilege of redeeming their forfeited members at the regular legal rate.[525] William the Conqueror imposed a fine of forty sous on the losing side impartially;[526] this was increased to sixty sous by the compilation known as the laws of Henry I.;[527] and the same regulation is stated by Glanville, with the addition that the defeated person was forever disqualified as a witness or champion;[528] but in practice the amount seems to have been indefinite, for in the Pipe Rolls the fines levied for recreantise vary from one mark to a hundred.[529] In a case occurring in 1221 where the defendant was victorious the record simply states that the appellant was ordered into custody;[530] while in the time of Edward II. the loser, except in cases of felony, paid to the victor forty sous besides a small gratification under the name of ruaille, in addition to the loss of the suit.[531] By the Lombard customs, early in the eleventh century, the appellant, if vanquished, had the privilege of redeeming his hand; the defendant, if defeated, lost his hand, and was of course subject in addition to the penalties of the crime of which he was proved guilty.[532] About the same time the Béarnese legislation is more merciful, a fine of sixty-six sous Morlaas being imposed impartially on the losing party.[533] In process of time this system was abandoned in some countries. The English law of the thirteenth century admitted the justice of the lex talionis in principle, but did not put it in practice, a vanquished appellant in capital cases being merely imprisoned as a calumniator, while the defendant, if defeated, was executed and his property confiscated.[534] The same distinction is to be found in the contemporary custom of Normandy.[535] So, by the code in force in Verona in 1228, the Podestà in criminal cases had the power of ordering the duel, and of punishing at his pleasure the accuser if vanquished—the accused when convicted of course undergoing the penalty of his crime.[536] Towards the end of the thirteenth century, however, there were some sceptics in Italy who argued that conviction by the duel ought not to entail the same punishment as conviction by witnesses “quia pugna est incertum Dei judicium.” This struck directly at the root of the whole system, and Roffredo insists that the legal penalty is to be enforced.[537]
Mediæval legislation was not usually lenient to a worsted appellant. The application of the lex talionis to the man who brought a false charge, thus adjudging to him the penalty which was incurred by the defendant if convicted, was widely current during the Middle Ages. This principle is to be found enunciated in the broadest and most decided manner in the ecclesiastical law,[538] and it was naturally brought into play in regulating the fate of those engaged in the wager of battle. Thus Guillaume le Breton states that when Philip Augustus, in 1203, wrested Normandy from the feeble grasp of John Lackland, one of the few changes which he ventured to introduce in the local laws of the duchy was to substitute this rule of confiscation, mutilation, or death, according to the degree of criminality involved in the accusation, for the comparatively light pecuniary mulct and loss of legal status previously incurred by a worsted appellant.[539] The same system is followed throughout the legislation of St. Louis, whether the punishment be light or capital, of an equal responsibility on both parties.[540] In capital cases, when champions were employed, the principals were held in prison with the cord around them with which the defeated party was to be hanged; and if one were a woman, for the cord was substituted the spade wherewith she was to be buried alive.[541] The same principle of equal responsibility prevailed throughout the Frankish kingdoms of the East, where, in an appeal of murder, as we have seen, the appellant fought by means of one of his witnesses, and the defendant personally. In civil cases, in the Bourgeois Court, the party defeated, including the plaintiff, if his side was the loser, was forever debarred from giving testimony, and had no future standing in court; while in serious criminal cases, in both upper and lower courts, either side, when defeated, was hanged with the utmost impartiality;[542] and it finally established itself in England, where in the fourteenth century we find it positively declared as an imperative regulation by Thomas, Duke of Gloucester, in an elaborate treatise on the rules of single combat printed by Spelman.[543]
In Germany the custom was not uniform. In the Sachsenspiegel, and in one text of the Schwabenspiegel, the principle is laid down that a defeated appellant escaped with a fine to the judge and to his adversary, while the defendant, if vanquished, was visited with the punishment due to his crime, or even with a heavier penalty;[544] while the Saxon burgher law and another text of the Suabian code direct that whichever party be defeated should lose a hand, or be executed, according to the gravity of the crime alleged.[545] An exceptional case, moreover, was provided for, in which both antagonists might suffer the penalty; thus, when a convicted thief accused a receiver of stolen goods of having suggested the crime, the latter was bound to defend himself by the duel, and if defeated, both combatants were hanged without further ceremony.[546] That these penalties were not merely nominal is shown by a case which occurred at Frankfort in 1369, when the divine interference was requisite, not to determine the victor, but to evade the enforcement of the law. Two knights, Zierkin von Vola and Adolf Hanche, who had married two sisters, quarrelled over the inheritance of a deceased brother-in-law, and agreed to settle their difference by the duel. When the appointed day came, October 12, they entered the lists on their chargers, prepared to do battle to the death, while their pious wives were earnestly praying God to soften their hearts and incline them to peace. These prayers were heard. With a mutual impulse the two warriors leaped from their horses, throwing themselves into each other’s arms and exclaiming, “Brother, I confess myself vanquished.” The chief magistrate of the city, who presided over the combat, was not disposed to deprive the spectators of their promised entertainment, and indignantly declared that the law of the duel did not permit both antagonists to depart unhurt, for the one who yielded must be put to death; and he confirmed this sentence by a solemn oath that one or the other should die before he would taste food. Then an affecting contest arose between the late antagonists, each one proclaiming himself the vanquished and demanding the penalty on his own head, when suddenly divine vengeance visited the bloody and remorseless judge, who fell dead, thus fulfilling his impious vow that he would not eat until he had a victim.[547]