With such risks to be encountered, it is no wonder that the trade of the champion offered few attractions to honest men, who could keep body and soul together in any other way. In primitive times, the solidarity of the family no doubt caused the champion in most cases to be drawn from among the kindred; at a later period he might generally be procured from among the freedmen or clients of the principal, and an expression in the Lombard law justifies the assumption that this was habitual, among that race at least.[603] In the palmy days of chivalry, it was perhaps not uncommon for the generous knight to throw himself bodily into the lists in defence of persecuted and friendless innocence, as he was bound to do by the tenor of his oath of knighthood.[604] Even as late as the fifteenth century, indeed, in a collection of Welsh laws, among the modes by which a stranger acquired the rights of kindred is enumerated the act of voluntarily undergoing the duel in the place of a principal unable or unwilling to appear for himself.[605] A vast proportion of pleaders, however, would necessarily be destitute of these chances to avoid the personal appearance in the arena for which they might be unfitted or disinclined, and thus there arose the regular profession of the paid gladiator. Reckless desperadoes, skilled at quarter-staff, or those whose familiarity with sword and dagger, gained by a life spent in ceaseless brawls, gave them confidence in their own ability, might undertake it as an occupation which exposed them to little risk beyond what they habitually incurred, and of such was the profession generally composed. This evil must have made itself apparent early, for we find Charlemagne endeavoring to oppose it by decreeing that no robber should be allowed to appear in the lists as a champion, and the order needed to be frequently repeated.[606]
When the Roman law commenced to exercise its powerful influence in moulding the feudal customs into a regular body of procedure, and admiring jurists lost no opportunity of making use of the newly-discovered treasures of legal lore, whether applicable or not, it is easy to understand that the contempt and the civil disabilities lavished by the Imperial jurisprudence on the gladiator of antiquity came to be transferred to the mediæval champion; although the latter, by the theory of the law, stood forth to defend the innocent, while the former ignobly exposed his life for the gratification of an imbruted populace. This legacy of shame is clearly traceable in Pierre de Fontaines. To be a gladiator or an actor was, by the Roman law, a competent cause for disinheritance.[607] One of the texts prescribing it is translated bodily by de Fontaines, the arenarius of the Roman becoming the champions of the Frenchman;[608] and in another similar transcription from the Digest, the athleta of the original is transformed into a “champion.”[609] By the thirteenth century, the occupation of champion had thus become infamous. Its professors were classed with the vilest criminals, and with the unhappy females who exposed their charms for sale, as the champion did his skill and courage.[610] They were held incapable of appearing as witnesses, and the extraordinary anomaly was exhibited of seeking to learn the truth in affairs of the highest moment by a solemn appeal to God, through the instrumentality of those who were already considered as convicts of the worst kind, or who, by the very act, were branded with infamy if successful in justifying innocence, and if defeated were mutilated or hanged.[611] By the codes in force throughout Germany in the thirteenth and fourteenth centuries, they were not only, in common with bastards, actors, and jugglers, deprived of all legal privileges, such as succeeding to property, bearing witness, etc., but even their children were visited with the same disabilities.[612] The utter contempt in which they were held was moreover quaintly symbolized in the same codes by the provisions of a tariff of damages to be assessed for blows and other personal injuries. A graduated list of fines is given for such insults offered to nobles, merchants, peasants, etc., in compensation of their wounded honor; below the serf come the mountebank and juggler, who could only cuff the assailant’s shadow projected on the wall; and last of all are rated the champion and his children, whose only redress was a glance of sunshine cast upon them by the offender from a duelling shield. Deemed by law incapable of receiving an insult, the satisfaction awarded was as illusory as the honor to be repaired.[613] That this poetical justice was long in vogue is proved by the commentary upon it in the Richstich Landrecht, of which the date is shown to be not earlier than the close of the fourteenth century, by an allusion in the same chapter to accidental deaths arising from the use of firearms.[614]
The Italians, however, took a more sensible and practical view of the matter. Accepting as a necessity the existence of champions as a class, they were disposed rather to elevate than to degrade the profession. The law required that they should not be criminals or infamous, and the fact that they fought for hire did not render them so.[615] In the Veronese code of 1228, they appear as an established institution, consisting of individuals selected and appointed by the magistrates, who did not allow them to receive more than one hundred sous for the performance of their office.[616]
It is evident that the evils attendant upon the employment of champions were generally recognized, and it is not singular that efforts were occasionally made to abrogate or limit the practice. Otho II., whose laws did so much to give respectability to the duel, decreed that champions should be permitted only to counts, ecclesiastics, women, boys, old men, and cripples.[617] That this rule was strictly enforced in some places we may infer from the pleadings of a case occurring in 1010 before the Bishop of Arezzo, concerning a disputed property, wherein a crippled right hand is alleged as the reason for allowing a champion to one of the parties.[618] In other parts of Italy, however, the regulation must have been speedily disregarded, for about the same period Henry II. found it necessary to promulgate a law forbidding the employment of substitutes to able-bodied defendants in cases of parricide or of aggravated murder;[619] and when, two hundred years later, Frederic II. almost abolished the judicial combat in his Neapolitan dominions, we may fairly presume from one of his remarks that champions were universally employed.[620] Indeed, he made provision for supplying them at the public expense to widows, orphans, and paupers who might be unable to secure for themselves such assistance.[621] In Germany, early in the eleventh century, it would seem that champions were a matter of course, from the expressions made use of in describing the execution of a number of robbers convicted in this manner at Merseburg in 1017.[622] At a later period, it seems probable, from a comparison of two chapters of the Suabian laws, that efforts were made to prevent the hiring of professional gladiators,[623] and in the Saxon burgher laws a man could refuse the duel if he could prove that his antagonist was a champion serving for pay.[624] That these efforts to restrict the practice, however, were attended with little success may be inferred from the disabilities which were so copiously showered on the class by the same laws.
In England, where, as we have seen, the identity of champions and witnesses was clearly asserted, there were prolonged efforts to suppress their hiring. In 1150, Henry II. strictly prohibited the wager of battle with hired champions in his Norman territories;[625] although the Norman custom not only admitted them but required the principal to pay the full sum agreed upon to his champion whether defeated or not.[626] We learn from Glanville that a champion suspected of serving for money might be objected to by the opposite party, whence arose a secondary combat to determine his fitness for the primary one.[627] Bracton, moreover, develops this by asserting as a rule that a witness suspected of being a hired champion was not allowed to proceed to the combat, but was tried for the attempt by a jury, and if convicted suffered the penalty of perjury in the loss of a hand or a foot,[628] and in another passage he states that hired champions were not permitted.[629] How far these rules were enforced it would now be difficult to determine. Records show that a frequent defence against an adverse witness was an offer to prove that he was a hired champion.[630] On the other hand, the payment of champions was frequent and no concealment seems to have been thought necessary concerning it. Towards the close of the twelfth century, by a charter Stephen de Nerbana grants two virgata of land to William son of Ralph “propter duellum quod fecit pro me.”[631] In another charter of Bracton’s date John “quondam porcarius de Coldingham” grants to the Priory of Coldingham a tract of land which he had received from Adam de Riston in payment for victoriously fighting a duel for him.[632] Even more significant are the formal agreements with champions, such as that by which in 1276 Bishop Swinefeld declares to all men that he has appointed Thomas of Brydges his champion, on a salary of 6s. 8d. per annum, so long as he shall be able to fight, with extra compensation in case he is called upon to perform his functions.[633] Eventually, as we have seen (p. 183), in civil cases, both parties were compelled by law to employ champions, which presupposes, as a matter of course, that in a great majority of instances the substitutes must have been hired.[634] In criminal cases there seems to have been a compromise; in felonies, the defendant was obliged to appear personally, while in accusations of less moment he was at liberty to put forward a witness as champion;[635] and when the appellant, from sex or other disability, or the defendant from age, was unable to undergo the combat personally, it was forbidden, and the case was decided by a jury.[636] By the Scottish law of the thirteenth century, it is evident that champions were not allowed in any case, since those disabled by age or wounds were forced to undergo the ordeal in order to escape the duel.[637] This strictness became relaxed in time, though the practice of employing champions seems never to have received much encouragement. By a law of Alexander II., about the year 1250, it appears that a noble had the privilege of putting forward a substitute; but if a peasant challenged a noble, he was obliged to appear personally, unless his lord undertook the quarrel for him and presented the champion as from himself.[638]
The tendency exhibited by the English law in distinguishing between civil and criminal cases is also manifested elsewhere. Thus, in France and the Frankish kingdoms of the East, there were limitations placed by law on the employment of champions in prosecutions for crime,[639] while in civil actions there appear to have been, at least in France, no restrictions whatever.[640] This distinction between civil and criminal practice is very clearly enunciated by Pierre de Fontaines, who states that in appeal of judgment the appellant in criminal cases is bound to show satisfactory cause for employing a champion, while in civil affairs the right to do so requires no argument.[641] In practice, however, it is doubtful whether there was any effectual bar to their use in any case, for the Monk of St. Denis, in praising St. Louis for suppressing the battle-trial, gives as one of the benefits of its abrogation, the removal of the abuse by which a rich man could buy all the champions of the vicinity, so that a poorer antagonist had no resource to avoid the loss of life or heritage.[642] This hiring of champions, moreover, was legally recognized as a necessity attendant upon the privilege of employing them.[643] High rank, or a marked difference between the station of parties to an action, was also admitted as justifying the superior in putting forward a champion in his place.[644] Local variations, however, are observable in the customs regulating these matters. Thus the municipal laws of Reims, in the fourteenth century, not only restrict the admission of champions in criminal matters to cases in which age or physical disability may incapacitate the principals from personally taking part in the combat, but also require the accused to swear that the impediment has supervened since the date of the alleged offence; and even this was of no avail if the prosecutor had included in his appeal of battle an assertion that such disability had existed at the time specified.[645] Witnesses obliged to support their testimony by the duel were not only subject to the same restrictions, but in substituting a hired gladiator were obliged to swear that they had vainly sought among their friends for some one to assume the office voluntarily.[646] The whole tenor of these provisions, indeed, manifests a decided intention to surround the employment of champions with every practicable impediment. In Béarn, again, the appellant in cases of treason had a right to decide whether the defendant should be allowed to put forward a substitute, and from the expressions in the text it may be inferred that in the selection of champions there was an endeavor to secure equality of age, size, and strength.[647] This equalization of chances was thoroughly carried out in Italy, where the law required them to be selected with that view.[648] Thus in the Veronese code of 1228, where, as has been seen, the champions were a recognized body, regulated and controlled by the state, no one could engage a champion before a duel had been judicially decreed. Then the magistrate was bound to choose gladiators of equal prowess, and the choice between them was given to the defendant; an arrangement which rendered the mutilation inflicted on the vanquished combatant only justifiable on the score of suspected treachery.[649] A Bolognese regulation of the thirteenth century was even fairer, and reduced the combat to an affair of chance in which the judgment of God had the fullest scope, for when the champions were in the lists a child placed inside of the garments of each a card bearing the name of his principal, and until the combat was ended no one knew which of them represented the plaintiff and which the defendant.[650] In Bigorre, the only restriction seems to have been that champions should be natives and not foreigners, and their payment was recognized as a matter of course.[651] By the Spanish law of the thirteenth century, the employment of champions was so restricted as to show an evident desire on the part of the legislator to discourage it as far as possible. The defendant had the right to send a substitute into the field, but the appellant could do so only by consent of his adversary. The champion was required to be of birth equal to his principal, which rendered the hiring of champions almost impossible, and not superior to him in force and vigor. Women and minors appeared by their next of kin, and ecclesiastics by their advocates.[652] In Russia, until the sixteenth century, champions were never employed, contestants being always obliged to appear in person. In 1550, the code known as the Sudebtnick at length permitted the employment of champions in certain cases.[653]
There were two classes of pleaders, however, with whom the hiring of champions was a necessity, and who could not be bound by the limitations imposed on ordinary litigants. While the sexagenary, the infant, and the crippled might possibly find a representative among their kindred, and while the woman might appear by her husband or next of kin, the ecclesiastical foundations and chartered towns had no such resource. Thus, in a suit for taxes, in 1164, before the court of Verona, Bonuszeno of Soavo proved that the village of Soavo had exempted his father Petrobatalla from all local imposts for having served as champion in a duel between it and a neighboring community, and his claim to the reversion of the exemption was allowed.[654] So a charter of 1104 relates how the monks of Noailles were harassed by the seizure of some mills belonging to their abbey, claimed by an official of William Duke of Aquitaine, until at length the duke agreed to allow the matter to be decided by the duel, when the champion of the church was victorious and the disputed property was confirmed to the abbey.[655] At length the frequent necessity for this species of service led to the employment of regularly appointed champions, who fought the battles of their principals for an annual stipend, or for some other advantages bestowed in payment. Du Cange, for instance, gives the text of an agreement by which one Geoffry Blondel, in 1256, bound himself to the town of Beauvais as its champion for a yearly salary of twenty sous Parisis, with extra gratifications of ten livres Tournois every time that he appeared in arms to defend its cause, fifty livres if blows were exchanged, and a hundred livres if the combat were carried to a triumphant issue. It is a little singular that Beaumanoir, in digesting the customs of Beauvais but a few years later, speaks of this practice as an ancient and obsolete one, of which he had only heard through tradition.[656] That it continued to be in vogue until long after, is shown by Monteil, who alludes to several documents of the kind, bearing date as late as the fifteenth century.[657]
As a rule, ecclesiastical communities were likewise under the necessity of employing champions to defend their rights. Sometimes, as we have seen, these were hired, and were of no better character than those of common pleaders. They seem to have been well paid if we may judge from an agreement of 1258 between the Abbey of Glastonbury and Henry de Fernbureg, by which the latter bound himself to defend by battle the rights of the abbey to certain manors against the Bishop of Bath and Wells, for which he is to receive thirty sterling marks, of which ten are to be paid when battle is gaged, five when he is shaved for the combat, and on the day of the duel fifteen are to be placed in the hands of a third party to be paid over to him if he strikes a single blow.[658] Sometimes, however, gentlemen did not disdain to serve God by fighting for the Church in special cases, as when, so late as the middle of the fourteenth century, the priory of Tynemouth had a suit with a troublesome neighbor, Gerard de Widdrington, over the manor of Hawkshaw, and Sir Thomas Colville, who had won great renown in the French wars, appeared in court as its champion and offered the combat. No one could be found hardy enough to accept his challenge and the manor was adjudged to the priory.[659] There was, moreover, another class of champions of the Church who occupied a distinguished position, and were bound to defend the interests of their clients in the field as well as in the court and in the lists; they also led the armed retainers of the church when summoned by the suzerain to national war. The office was honorable and lucrative, and was eagerly sought by gentlemen of station, who turned to account the opportunities of aggrandizement which it afforded; and many a noble family traced its prosperity to the increase of ancestral property thus obtained, directly or indirectly, by espousing the cause of fat abbeys and wealthy bishoprics, as when, in the ninth century, the Abbot of Figeac, near Cahors, bestowed on a neighboring lord sixty churches and five hundred mansi on condition of his fighting the battles of the abbey.[660] The influence of feudalism early made itself felt, and the office of Vidame or Avoué became generally hereditary, after which its possessors, for the most part, rendered themselves independent of their benefactors, their exactions and spoliations becoming a favorite theme of objurgation among churchmen, who regarded them as the worst enemies of the foundations which they had sworn to protect.[661] In many instances the position was a consideration obtained for donations bestowed upon churches, so that in some countries, and particularly in England, the title of advocatus became gradually recognized as synonymous with patron. Thus, one of the worst abuses of the Anglican Church is derived from this source, and the forgotten wrongs of the Middle Ages are perpetuated, etymologically at least, in the advowson which renders the cure of souls too often a matter of bargain and sale.