So barbarous a custom was generally adopted: not satisfied with having recourse to judicial combat in criminal cases, civil questions were subject to its decisions. A gentleman had not only a right to defy his adversary, he might also challenge the witnesses themselves, and force sometimes even the judges to descend with him into the arena. Justice was then only seen in victory, or rather victory became the sole justice. Thus the Franks, in the crusades, often expressed their astonishment that God should sometimes allow the Mussulmans to conquer the Christians.
The sword decided everything; the places where justice pronounced her decrees resounded with the cries of fury and hatred. They were stained, by turns, with the blood of the innocent or with the blood of the guilty, as skill, strength, or fortune favoured the arms of the combatants. In the face of such combats, how was it possible to preserve the idea of justice or injustice? Must not ferocity of manners have increased, and education become unnatural?
We ought, however, to remember the circumstances which brought about this custom, and which may render it excusable in the eyes of enlightened philosophy. In the impossibility in which the judges often found themselves of ascertaining the truth or pronouncing with certainty, fraud, perjury, and falsehood triumphed over the laws, and threatened to invade the whole of society. No better means could be discovered to prevent this misfortune than to terrify imposture and perfidy, by the preparations, “pomp, and circumstance,” of a judicial combat. Justice, being unable to reveal herself amidst the darkness of barbarism, surrounded herself with terrible images, and would only allow her sanctuary to be approached with mistrust and fear. The terror which the idea even of a judicial combat inspired, the uncertainty of such a judgment, must have prevented many contests, and that was a great advantage. No other more certain means, besides, were to be found to appease quarrels, which could not be prolonged without perilling the whole of society. In an age in which the passions were mixed with everything, it was doubtless important for society that justice should terminate debates in an equitable manner; but it was likewise important that these debates should terminate promptly.
At the first aspect, we only see in this custom a privilege and a monstrous employment of physical force. But without this employment of physical force, the world was perhaps likely to become the prey of perjured, faithless men. We ought then to sigh less over this revolting abuse than over the state of society in which it appeared necessary, in order to prevent abuses still more revolting. It required much trouble afterwards to reform the judicial combat. The prejudices most difficult to be destroyed are those in which bravery and the point of honour believe themselves interested. Neither the power of kings, nor religion, nor philosophy, have been able to abolish duels among modern nations; and duels, in some respects, are nothing but the justice which was rendered by the sword in the middle ages.
We have not yet made known all the obstacles which the triumph of justice met with in the manners and customs of these remote times. The absence of laws caused great disorders; but the yoke of the laws was more insupportable to the barons than anarchy itself. The confidence which the barons felt in their arms, rendered them at least indifferent to all kinds of legislation. In any society whatever, the men who have power or force in their hands are seldom the first to appeal to laws; because nobody can be unjust towards them with impunity, and they have always the means of doing themselves justice.[114]
Judicial order, as we understand it now-a-days, could be nothing, in the twelfth century, but an abstraction which did not enter into men’s minds. The warlike nobility of Europe would have had nothing to do with any kind of justice which did not present an image of war. The barons could not form an idea that legislation might be a safeguard for themselves as well as society. They only felt an injustice as they felt a wound in the field of battle; and personal resentment was the only motive which animated them to the pursuit of the guilty. Equity then scarcely passed for a virtue, but revenge was a duty. There were no laws against those who were unjust, but there were laws against those who did not avenge themselves.
With these manners and this character, the barons were not able to renounce the practice of private wars, which the Franks and other barbarians had brought with them into Europe. Every noble who fancied himself attacked in either his honour or his property, took arms to defend his rights or avenge his quarrel. All the relations and vassals of the belligerent parties were obliged to take part in the quarrel. Fields were ravaged, towns and villages were burnt, and it was thus they demanded or rendered justice. During many centuries Europe was desolated by these intestine wars. Sanguinary discords, which were transmitted from generation to generation, became an habitual state, for which customs and regulations were invoked; and whilst society was without laws, civil war had its jurisprudence.
It was not easy to remedy such vast disorders. How could force be disarmed, and despoiled of a prerogative it seemed to prefer to all other privileges? Society, such as it then was, had but one single power capable of counterbalancing that of the warlike passions which desolated Europe; this was the force of religious ideas and the ascendancy of Christianity. The authority of councils was invoked against private wars; the saints were made to speak; superstition itself was called in; visions, revelations, and prodigies were had recourse to. The Church put forth all its threats and launched all its thunders. These means sometimes suspended the progress of the evil, but the principle of discord always subsisted. It was not possible to put an end to private wars, but they were at length suppressed during certain days of the week; and all the good that such a powerful religion could do was to bring about the adoption of the Truce of God. It was here the crusades wonderfully seconded the zeal of the clergy. Whenever war was declared against the Saracens, discords were all at once appeased, as if by miracle, and Europe remained in profound silence before the standard of the cross.
The efforts of the clergy, however, in conjunction with some other favourable circumstances, were destined in the end to bring about the triumph of justice and humanity. Before civil justice was established, the Church possessed a holy jurisdiction which judged the faithful. This justice stood in no need of pursuing the guilty; the guilty came to give themselves up to its judgments: it was not blind, like human justice; the most secret folds of the conscience developed themselves before it: it met with no resistance, it excited no murmurs; those whom it condemned, condemned themselves. To cause its laws to be executed, and to sanction its decisions, it had the power of remorse, the fear of an avenging God, the promises of heaven, the menaces of hell. Such was the tribunal of penitence, which, in the absence of civil laws, held the place sometimes of other tribunals, and watched over public order, as a triumph of religion. A tribunal so formidable necessarily increased the influence of the clergy, and contributed, no doubt, to extend their jurisdiction even to affairs in which evangelical morality was not at all interested. People, persuaded that all justice comes from God, were likely to be led to believe that God pronounced his least judgments by the organs of his ministers upon earth. When the popes were reproached with interfering in the policy of princes, they answered that the acts of that policy might be sins, and thence these acts came under the pontifical jurisdiction. The clergy usurped judicial authority in civil affairs, as the sovereign pontiffs had usurped temporal authority.[115] In the middle ages the clergy declared themselves arbiters of the just and the unjust; and as their jurisdiction was much more favourable to humanity, more conformable to reason than that of the barons, it made rapid progress. Among the privileges which the popes granted to the Crusaders, that of being judged by the ecclesiastical laws was placed in the first rank. The clergy took advantage of the absence, the death, or the ruin of the nobles who were gone to the crusades, to extend their jurisdiction, as the commons availed themselves of this circumstance to obtain their liberty, and kings to increase their power. At last this jurisdiction became so powerful that it awakened the jealousy of the feudal nobility. Towards the middle of the thirteenth century, the nobles formed a league against the clergy, and in a manifesto, which we still possess, they demanded that “they should render to Cæsar that which belonged to Cæsar.” They forbade their vassals to appeal to the ecclesiastical tribunals, except in cases of heresy, marriage, and usury, and threatened delinquents with the loss of their property and the mutilation of a member. “The clerks,” added they, “enriched at our expense, shall be brought back to the state of the primitive church and to a contemplative life, leaving to us the action which becomes us, and presenting to us the miracles which we have not seen for a long time.”
As the influence of the clergy arose from Christianity, the nobles, in their manifesto, wished to claim the advantage of having alone converted the Gauls by their arms. All that they said in support of this assertion gave reason to predict that they would not triumph in a contest in which Victory would range herself on the side of knowledge and intelligence.