Allusion has already been made to the celebrated combat between Chastaigneraye and Jarnac, in 1547, wherein the death of the former, a favorite of Henry II., led the monarch to take a solemn oath never to authorize another judicial duel. Two years later, two young nobles of his court, Jacques de Fontaine, Sieur de Fendilles, and Claude des Guerres, Baron de Vienne-le-Chatel, desired to settle in this manner a disgusting accusation brought against the latter by the former. The king, having debarred himself from granting the appeal, arranged the matter by allowing Robert de la Marck, Marshal of France, and sovereign Prince of Sedan, to permit it in the territory of which he was suzerain. Fendilles was so sure of success that he refused to enter the lists until a gallows was erected and a stake lighted, where his adversary after defeat was to be gibbeted and burned. Their only weapons were broad-swords, and at the first pass Fendilles inflicted on his opponent a fearful gash in the thigh. Des Guerres, seeing that loss of blood would soon reduce him to extremity, closed with his antagonist, and being a skilful wrestler speedily threw him. Reduced to his natural weapons, he could only inflict blows with the fist, which failing strength rendered less and less effective, when a scaffold crowded with ladies and gentlemen gave way, throwing down the spectators in a shrieking mass. Taking advantage of the confusion, the friends of Des Guerres violated the law which imposed absolute silence and neutrality on all, and called to him to blind and suffocate his adversary with sand. Des Guerres promptly took the hint, and Fendilles succumbed to this unknightly weapon. Whether he formally yielded or not was disputed. Des Guerres claimed that he should undergo the punishment of the gallows and stake prepared for himself, but de la Marck interfered, and the combatants were both suffered to retire in peace.[781] This is the last recorded instance of the wager of battle in France. The custom appears never to have been formally abolished, and so little did it represent the thoughts and feelings of the age which witnessed the Reformation, that when, in 1566, Charles IX. issued an edict prohibiting duels, no allusion was made to the judicial combat. The encounters which he sought to prevent were solely those which arose from points of honor between gentlemen, and the offended party was ordered not to appeal to the courts, but to lay his case before the Marshals of France, or the governor of his province.[782] The custom had died a natural death. No ordonnance was necessary to abrogate it; and, seemingly, from forgetfulness, the crown and the Parlement appear never to have been divested of the right to adjudge the wager of battle.
In Italy many causes conspired to lead to the abrogation of the judicial duel. On the one hand there were the prescriptions of the popes, and on the other the spirit of scepticism fostered by the example of Frederic II. The influence of the resuscitated Roman law was early felt and its principles were diffused by the illustrious jurists who rendered the Italian schools famous. Burgher life, moreover, was precociously developed in the social and political organization, and as the imperial influence diminished with the fall of the House of Hohenstaufen, the cities assumed self-government and fashioned their local legislation after their own ideals. The judgments of God were not indigenous in Italy; they were not ancestral customs rooted in the prehistoric past, but were foreign devices introduced by conquerors—first by the Lombards and then by the Othos. There were thus many reasons why the trial by combat should disappear early from the Italian statute books. There is no trace of it in the elaborate criminal code of Milan compiled in 1338, nor in that of Piacenza somewhat later; in fact, it was no longer needed, for the inquisitional process was in full operation and in doubtful cases the judge had all the resources of torture at his disposal.[783]
Although by the middle of the fourteenth century it had thus disappeared from the written law, the rulers retained the right to grant it in special cases, and it thus continued in existence as a lawful though extra-legal mode of settling disputed cases. Where suzerains were so numerous there was thus ample opportunity for belligerent pleaders to gratify their desires. Even as late as 1507 Giovanni Paolo Baglioni, lord of Spello (a village in the Duchy of Spoleto, near Foligno), granted a licence for a month to Giovanni Batta Gaddi and Raffaello Altoviti to settle their suits by fighting within his domain with three comrades.[784] Two years after this, Julius II., in issuing a constitution directed against duels of honor, took occasion also to include in his prohibition all such purgationes vulgares, even though permitted by the laws; the combatants were ordered, in all the States of the Church, to be arrested and punished for homicide or maiming according to the common law.[785] In 1519 Leo X. reissued this bull with vastly sharper penalties on all concerned, but in his additions to it he seems merely to have in mind the duel of honor, which was habitually conducted in public, in lists prepared for the purpose, and in presence of the prince or noble who had granted licence for it.[786] The legal combat may be considered to have virtually disappeared, but the duel of honor which succeeded it inherited some of its sanctions, and in the learned treatises on the subject which appeared during the first half of the sixteenth century there are still faint traces to be found of the survival of the idea of the judgment of God.[787]
In Hungary, it was not until 1486 that any attempt was made to restrict the judicial duel. In that year Matthias Corvinus prohibited it in cases where direct testimony was procurable: where such evidence was unattainable, he still permitted it, both in civil and criminal matters.[788] In 1492 Vladislas II. repeated this prohibition, alleging as his reason for the restriction the almost universal employment of champions who sometimes sold out their principals. The terms of the decree show that previously its use was general, though it is declared to be a custom unknown elsewhere.[789]
In Flanders, it is somewhat remarkable that the duel should have lingered until late in the sixteenth century, although, as we have seen above, the commercial spirit of that region had sought its abrogation at a very early period, and had been seconded by the efforts of Philippe le Bon in the fifteenth century. Damhouder, writing about the middle of the sixteenth century, states that it was still legal in matters of public concern, and even his severe training as a civil lawyer cannot prevent his declaring it to be laudable in such affairs.[790] Indeed, when the Council of Trent, in 1563, stigmatized the duel as the work of the devil and prohibited all potentates from granting it under pain of excommunication and forfeiture of all feudal possessions,[791] the state Council of Flanders, in their report to the Duchess of Parma on the reception of the Council, took exception to this canon, and decided that the ruler ought not to be deprived of the power of ordering the combat.[792] In this view, the Council of Namur agreed.[793]
In Germany, in spite of the imperial legislation referred to above (p. 212), feudal influences were too strong to permit an early abrogation of the custom. Throughout the fifteenth century the wager of battle continued to flourish, and MSS. of the period give full directions as to the details of the various procedures for patricians and plebeians. The sixteenth century saw its wane, though it kept its place in the statute books, and Fechtbücher of 1543 and 1556 describe fully the use of the club and the knife. Yet when in 1535 Friedrich von Schwartzenberg demanded a judicial duel to settle a suit with Ludwig von Hutten, the latter contemptuously replied that such things might be permitted in the times of Goliath and Dietrich of Bern, but that now they were not in accordance with law, right, or custom, and von Schwartzenberg was obliged to settle the case in more peaceful fashion. Still, occasional instances of its use are said to have occurred until the close of the century,[794] and as late as 1607, Henry, Duke of Lorraine, procured from the Emperor Rodolph II. the confirmation of a privilege which he claimed as ancestral that all combats occurring between the Rhine and the Meuse should be fought out in his presence.[795]
In Russia, under the code known as the Ulogenié Zakonof, promulgated in 1498, any culprit, after his accuser’s testimony was in, could claim the duel; and as both parties went to the field accompanied by all the friends they could muster, the result was not infrequently a bloody skirmish. These abuses were put an end to by the Sudebtnick, issued in 1550, and the duel was regulated after a more decent fashion, but it continued to flourish legally until it was finally abrogated in 1649 by the Czar Alexis Mikhailovich, in the code known as the Sobornoié Ulogenié. The more enlightened branch of the Slavonic race, however, the Poles, abolished it in the fourteenth century; but Macieiowski states that in Servia and Bulgaria the custom has been preserved to the present day.[796]
In other countries, the custom likewise lingered to a comparatively late period. Scotland, indeed, was somewhat more forward than her neighbors; for in the year 1400, her Parliament showed the influence of advancing civilization by limiting the practice in several important particulars, which, if strictly observed, must have rendered it almost obsolete. Four conditions were pronounced essential prerequisites: the accusation must be for a capital crime; the offence must have been committed secretly and by treachery; reasonable cause of suspicion must be shown against the accused, and direct testimony both of witnesses and documents must be wanting.[797]
Still the “perfervidum ingenium Scotorum” clung to the arbitrament of the sword with great tenacity. In 1532 Sir James Douglass accused his son-in-law Robert Charteris of treason, and the charge was settled by a judicial duel in the presence of James V., who put an end to it when Charteris’s sword broke.[798] Knox relates that in 1562, when the Earl of Arran was consulting with him and others respecting a proposed accusation against Bothwell for high treason, arising out of a plan for seizing Queen Mary which Bothwell had suggested, the earl remarked, “I know that he will offer the combate unto me, but that would not be suffered in France, but I will do that which I have proposed.” In 1567, also, when Bothwell underwent a mock trial for the murder of Darnley, he offered to justify himself by the duel; and when the Lords of the Congregation took up arms against him, alleging as a reason the murder and his presumed designs against the infant James VI., Queen Mary’s proclamation against the rebels recites his challenge as a full disproval of the charges. When the armies were drawn up at Carberry Hill, Bothwell again came forward and renewed his challenge. James Murray, who had already offered to accept it, took it up at once, but Bothwell refused to meet him on account of the inequality in their rank. Murray’s brother, William of Tullibardin, then offered himself, and Bothwell again declined, as the Laird of Tullibardin was not a peer of the realm. Many nobles then eagerly proposed to take his place, and Lord Lindsay especially insisted on being allowed the privilege of proving the charge on Bothwell’s body, but the latter delayed on various pretexts, until Queen Mary was able to prohibit the combat.[799] The last judicial duels fought in Scotland were two which occurred as the sixteenth century was closing. In 1595, under a warrant from James VI. John Brown met George Hepburn and was vanquished, though his life was spared at the request of the judges. In 1597 Adam Bruntfield charged James Carmichael with causing the death of his brother, and under royal licence fought and slew him before a crowd of five thousand spectators. Yet even this was not the end of the legal custom, for in 1603 an accusation of treason against Francis Mowbray was adjudged to be settled by the duel, though the combat was prevented by Mowbray meeting his death in an attempt to escape from prison, after which he was duly hanged and quartered.[800]