Poverty on the part of one of the combatants, rendering him unable to equip himself properly for the combat, was not allowed to interfere with the course of justice. In such cases, under the law of Northern Germany, the judge was required to provide him with the requisite weapons.[559] In England, where the royal jurisdiction embraced all criminal cases, the king furnished the weapons and paid all expenses, and when the combatant was an “approver,” or criminal who had turned state’s evidence, he was supported until his duty was accomplished of fighting all whom he accused as accomplices. Thus in the accounts of the sheriff of Lincolnshire for 1190, there is an entry of 15s. 10d. for the approver Adam Godechap from Pask until Michaelmas at one penny per diem; also 6s. for his armor in three duels, and 38s. 6d. for carts to convey prisoners, sureties, and probators from Lincoln to London and elsewhere.[560] The crown likewise paid the expenses of administering the other ordeals: in 1166 a single entry in the Exchequer accounts shows payment for thirty-four ordeals and five battles.[561]

As regards the choice of weapons, much curious anecdote could be gathered from the pages of Brantôme and others learned in punctilio, without throwing additional light upon mediæval customs. It may be briefly observed, however, that when champions were employed on both sides, the law appears generally to have restricted them to the club and buckler, and to have prescribed perfect equality between the combatants.[562] An ordonnance of Philip Augustus, in 1215, directs that the club shall not exceed three feet in length.[563] In England the club or battoon was rendered more efficient with a “crook,” usually of horn, but sometimes of iron, giving to the weapon the truly formidable aspect of a pickaxe or tomahawk.[564] When the principals appeared personally, it would seem that in early times the appellant had the choice of weapons, which not only gave him an enormous advantage, but enabled him to indulge any whims which his taste or fancy might suggest, as in the case of a Gascon knight in the thirteenth century, who stipulated that each combatant should be crowned with a wreath of roses. As every detail of equipment was thus subject to the caprice of the challenger, those who were wealthy sometimes forced their poorer adversaries to lavish immense sums on horses and armor.[565] When, however, the spirit of legislation became hostile to the wager of battle, this advantage was taken from the appellant. Frederic II. appears to have been the first to promulgate this rational idea, and, in decreeing that in future the choice of arms shall rest with the defendant, he stigmatizes the previous custom as utterly iniquitous and unreasonable.[566] In this, as in so many other matters, he was in advance of his age, and the general rule was that neither antagonist should have any advantage over the other, except the fearful inequality, to which allusion has already been made, when a roturier dared to challenge a gentleman.[567] In the law of Northern Germany care was taken that the advantage of the sun was equally divided between the combatants; they fought on foot, with bare heads and feet, clad in tunics with sleeves reaching only to the elbow, simple gloves, and no defensive armor except a wooden target covered with hide, and bearing only an iron boss; each carried a drawn sword, but either might have as many more as he pleased in his belt.[568] Even when nobles were concerned, who fought on horseback, it was the rule that they should have no defensive armor save a leather-covered wooden shield and a glove to cover the thumb; the weapons allowed were lance, sword, and dagger, and they fought bare-headed and clad in linen tunics.[569] According to Upton, in the fifteenth century, the judges were bound to see that the arms were equal, but he admits that on many points there were no settled or definite rules.[570] In Wales, an extraordinary custom violated all the principles of equality. Under the Welsh law, twins were considered as one person, and as they were entitled to but one share in the patrimony of the family, so they were allowed to come into the field of combat as one man.[571] In Russia, each combatant followed his own pleasure; and a traveller in the sixteenth century relates that the Muscovites were in the habit of embarrassing themselves with defensive armor to an extent which rendered them almost helpless, so that in combats with Poles, Lithuanians, and Germans they were habitually worsted, until judicial duels between natives and foreigners were at length prohibited on this account.[572]

As a general rule the combat ended at sunset or when the stars became visible, and in such case if it was a drawn battle the case was decided in favor of the defendant, because the prosecutor had not proved his charge. Yet a charter of 961 recites that two gentlemen, Bernard and Gerbert, appeared before Count Raymond, each claiming the church of St. Médard and its appurtenances, which had been bequeathed by the late owner Ricaud, for the repose of his soul, to the Abbey of St. Peter of Beaulieu. The count granted them the trial by battle. At two o’clock their champions entered the lists and fought without result until sunset. Then the count declared the battle ended and adjudged the church to the abbey; the contestants acquiesced and signed the charter confirming its rights.[573] In Italy, however, the duel was fought to an end; if stopped by darkness the judge was instructed to note carefully the respective positions of the combatants and replace them exactly the next morning, so that neither might derive advantage from the adjournment.[574]

The issue at stake being death or dishonor, with severe penalties hanging over the vanquished, whether principal or champion, no chivalric courtesy was to be expected in these combats. They were fought to the bitter end with persistent and brutal ferocity, resembling the desperate encounters of wild beasts. A fairly illustrative example is furnished in an incident which followed the assassination of Charles the Good of Flanders in 1127. One of the accomplices, a knight named Guy, was challenged for complicity by another named Herman. Both were renowned warriors, but Herman was speedily unhorsed by his adversary, who with his lance frustrated all his attempts to remount. Then Herman disabled the horse of his opponent and the combat was renewed on foot with swords. Equally skilful in fence they continued the struggle till fatigue compelled them to drop sword and shield and they wrestled for the mastery. Guy threw his antagonist, fell on him and beat him in the face with his gauntlets till he seemed to be motionless, but Herman quietly slipped his hand below the other’s coat of mail, grasped his testicles and with a mighty effort wrenched them away. Guy fell over and expired; he we adjudged guilty and his body, after exposure in the pillory, was hung on the top of a mast along with that of the leader of the conspiracy who had been executed the same day, the two corpses being made to embrace each other, as though conferring about the plot.[575] Ghastly details such as these serve to emphasize the difference between the judicial combat and the modern duel.

[CHAPTER VII.]
CHAMPIONS.

Allusions have occurred above to the employment of champions, a peculiarity of these combats which received an application sufficiently extended to deserve some special notice.[576] It has been seen that those unable to wield the sword or club were not therefore exempted from the duel, and even the scantiest measure of justice would require that they should have the right to delegate their vindication to some more competent vehicle of the Divine decision. This would seem originally to have been the office of some member of the family, as in the cognate procedure of sacramental purgation. Among the Alamanni, for instance, a woman when accused could be defended by a kinsman cum tracta spata;[577] the same rule is prescribed by the Lombard law,[578] and by that of the Angli and Werini;[579] while the universal principle of family unity renders the presumption fair that it prevailed throughout the other races in whose codes it is not specifically indicated. Restricted to cases of disability, the use of champions was a necessity to the battle ordeal; but at a very early period the practice received a remarkable extension, which was directly in conflict with the original principles of the judicial duel, in permitting able-bodied antagonists to put forward substitutes, whether connected with them or not by ties of blood, who fought the battle for their principals. With regard to this there appears to have been a considerable diversity of practice among the races of primitive barbarians. The earliest Frisian laws not only grant unlimited permission for their employment, but even allow them to be hired for money.[580] The laws of the Franks, of the Alamanni, and of the Saxons make no allusion to such a privilege, and apparently expect the principal to defend his rights himself, and yet an instance occurs in 590, where, in a duel fought by order of Gontran, the defendant was allowed to intrust his cause to his nephew, though, as he was accused of killing a stag in the king’s forest, physical infirmity could hardly have been pleaded.[581] From some expressions made use of by St. Agobard, in his onslaught on the ordeal of battle, we may fairly presume that, under Louis le Débonnaire, the employment of champions, in the Burgundian law, was, if not forbidden, at least unusual as respects the defendant, even in cases where age or debility unfitted him for the combat, while it was allowed as a matter of course to the appellant.[582] On the other hand, the Baioarian law, which favored the duel more than any of the other cognate codes, alludes to the employment of champions in every reference to it, and with the Lombards the judicial combat and the champion seem to have been likewise convertible terms even with regard to defendants.[583] In a charter of the latter half of the tenth century in France, recording a judicial duel to decide a contest concerning property, the judge, in ordering the combat, calls upon the antagonists to produce skilled champions to defend their claims at the time and place indicated, which would show that the principals were not expected to appear personally.[584] Under the North German law it rested with the appellant to demand the duel either with or without champions. If the defendant were crippled, and was on that account obliged to appear by a hired champion, then the appellant could put forward another to meet him. A defendant, moreover, who had suffered a previous conviction for theft or rapine was always obliged to appear personally. When the duel was decreed by the court, and not demanded by the appellant, then the accused could decline it if he could prove that the prosecutor had hired a champion.[585] The practical spirit of the Italians led to the universal substitution of champions for the principals; they were selected by the magistrates and were paid by the state when the parties were too poor to bear the expense.[586]

In all these provisions for the putting forward of substitutes in the duel there is something so repugnant to the fierce and self-relying spirit in which the wager of battle found its origin, and the use of a professional gladiator is so inconsistent with the pious reference to the judgment of God, which was the ostensible excuse for the duel, that some external reason is required to account for its introduction. This reason is doubtless to be found in the liberty allowed of challenging witnesses, to which allusion has already been made (p. 121). The prevalence of this throughout Western Europe readily enabled parties, unwilling themselves to encounter the risks of a mortal struggle, to put forward some truculent bravo who swore unscrupulously, and whose evidence would require him to be forced out of court at the sword’s point.

This becomes very evident as early as we have detailed regulations of procedure in the books of the twelfth and thirteenth centuries. In England, for instance, until the first statute of Westminster, issued by Edward I., in 1275, the hired champion of the defendant, in a suit concerning real estate, was obliged to assume the position of a witness, by swearing that he had been personally present and had seen seizin given of the land, or that his father when dying had enjoined him by his filial duty to maintain the defendant’s title as though he had been present.[587] This legal fiction was common also to the Norman jurisprudence of the period, where in such cases the champion of the plaintiff was obliged to swear that he had heard and seen the matters alleged in support of the claim, while the opposing champion swore that they were false.[588] In a similar spirit, an earlier code of Normandy prescribes that champions shall be taken to see the lands and buildings in dispute, before receiving the oath of battle, in the same manner as a jury of view.[589] We have seen that in the Assises d’Antioche it was requisite for a prosecutor or a plaintiff to have a witness who was ready to offer battle, in default of which the unsupported oath of the other party was sufficient to secure a verdict.[590] It necessarily follows that this witness must in most cases have been a hired champion, and this connection between the two functions is further shown in the regulation of the Assises de Jerusalem and of the Sicilian constitutions, which directed that the champion should swear on the field of battle as to his belief in the justice of the quarrel which he was about to defend,[591] a practice which is also found in the Scottish law of the thirteenth century.[592] An English legal treatise of the period, indeed, assumes that the principals can put forward only witnesses as substitutes, and gives as a reason why combats in civil suits were always conducted by champions, that in such cases the principals could not act as witnesses for themselves.[593] In a similar spirit, if on the field of battle one of the parties presented a champion who was not receivable as a witness and had not been accepted by the court, the case could be decided against him by default.[594]

Looking on the profession of a champion in this light, as that of a witness swearing for hire, we can find a justification for the heavy penalties to which he was subjected in case of defeat—penalties of which the real purport presumably was to insure his fidelity to his principal. Thus, in the Norman coutumier above referred to, in civil suits as to disputed landed possessions, the champion swearing to the truth of his principal’s claim was, if defeated, visited with a heavy fine and was declared infamous, being thenceforth incapable of appearing in court either as plaintiff or as witness, while the penalty of the principal was merely the loss of the property in dispute;[595] and a similar principle was recognized in the English law of the period.[596] In criminal cases, from a very early period, while the principal perhaps escaped with fine or imprisonment, the hired ruffian was hanged, or at best lost a hand or foot, the immemorial punishment for perjury;[597] while the laws of the Kingdom of Jerusalem prescribe that in combats between champions, the defeated one shall be promptly hanged, whether dead or alive.[598] The Assises d’Antioche are somewhat more reasonable, for they provide merely that the vanquished champion and his principal shall suffer the same penalty, whether simply a forfeiture of civil rights in civil cases, or hanging as in accusations of homicide or other serious crime.[599] That, in the later periods, at least, the object of this severity was to prevent the champion from betraying his employer’s cause was freely admitted. Beaumanoir thus defends it on the ground of the liability of champions to be bought over by the adverse party, which rendered the gentle stimulus of prospective mutilation necessary to prevent them from being purchased by the adversary;[600] and it is probably owing to this that the full severity of the punishment is shown to be still in existence by a charter of so late a date as 1372, when the use of the judicial duel had fully entered on its decline.[601] In the same spirit, the Emperor Frederic II. prohibited champions from bargaining with each other not to use teeth and hands. He commanded them to inflict all the injury possible on their adversaries, and decreed that they should, in case of defeat, share the punishment incurred by the principal, if the judge of the combat should consider that through cowardice or treachery they had not conducted the duel with proper energy and perseverance.[602]