If the position of a witness was thus rendered unenviable, that of the judge 아밤 was little better. As though the duel had not received sufficient extension by the facilities for its employment just described, another mode of appealing to the sword in all cases was invented by which it became competent for the defeated party in any suit to challenge the court itself, and thus obtain a forcible reversal of judgment. It must be borne in mind that this was not quite as absurd a practice as it may seem to us in modern times, for under the feudal system the dispensing of justice was one of the most highly prized attributes of sovereignty; and, except in England, where the royal judges were frequently ecclesiastics, the seignorial courts were presided over by warriors. In Germany, indeed, where the magistrates of the lower tribunals were elective, they were required to be active and vigorous of body.339 Towards the end of the twelfth century in England we find Glanville acknowledging his uncertainty as to whether or not the court could depute the settlement of such an appeal to a champion, and also as to what, in case of defeat, was the legal position of124 the court thus convicted of injustice.340 These doubts would seem to indicate that the custom was still of recent introduction in England, and not as yet practised to an extent sufficient to afford a settled basis of precedents for its details. Elsewhere, however, it was firmly established. In 1195, the customs of St. Quentin allow to the disappointed pleader unlimited recourse against his judge.341 Towards the latter half of the thirteenth century, we find in the Conseil of Pierre de Fontaines the custom in its fullest vigor and just on the eve of its decline. No restriction appears to be imposed as to the cases in which appeal by battle was permitted, except that it was not allowed to override the customary law.342 The suitor selected any one of three judges agreeing in the verdict; he could appeal at any stage of the proceedings when a point was decided against him; if unsuccessful, he was only liable in a pecuniary penalty to the judges for the wrong done them, and the judge, if vanquished, was exposed to no bodily punishment.343 The villein, however, was not entitled to the privi125lege, except by special charter.344 While the feudal system was supreme, this appeal to arms was the only mode of reversing a judgment, and an appeal in any other form was an innovation introduced by the extension of the royal jurisdiction under St. Louis, who labored so strenuously and so effectually to modify the barbarism of feudal institutions by subordinating them to the principles of the Roman jurisprudence. De Fontaines, indeed, states that he himself conducted the first case ever known in Vermandois of an appeal without battle.345 At the same time the progress of more rational ideas is manifested by his admission that the combat was not necessary to reverse a judgment manifestly repugnant to the law, and that, on the other hand, the law was not to be set aside by the duel.

Twenty years later, we find in Beaumanoir abundant evidence of the success of St. Louis in setting bounds to the abuses which he was endeavoring to remove. The restrictions which he enumerates are greatly more efficacious than those alluded to by de Fontaines. In capital cases, the appeal did not lie; while in civil actions, the suzerain before whom the appeal was made could refuse it when the justice of the verdict was self-evident. Some caution, moreover, was requisite in conducting such cases, for the disappointed pleader who did not manage matters rightly might find himself pledged to a combat, single handed, with all his judges at once; and as the bench consisted of a collection of the neighboring gentry, the result might be the confirmation of the sentence in a manner more emphatic than agreeable. An important change is likewise observable in the severe penalty imposed upon a judge126 vanquished in such an appeal, being a heavy fine and deprivation of his functions in civil cases, while in criminal ones it was death and confiscation—“il pert le cors et quanques il a.”346

The king’s court, however, was an exception to the general rule. No appeals could be taken from its judgments, for there was no tribunal before which they could be carried.347 The judges of the royal court were therefore safe from the necessity of vindicating their decisions in the field, and they even carried this immunity with them and communicated it to those with whom they might be acting. De Fontaines accordingly advises the seigneur justicier who anticipates the appeal of battle in his court to obtain a royal judge to sit with him, and mentions an instance in which Philip (probably Philip Augustus) sent his whole council to sit in the court of the Abbey of Corbie, when an appeal was to be entered.348

By the German law of the same period, the privilege of reversing a sentence by the sword existed, but accompanied with regulations which seem evidently designed to embarrass, by enormous trouble and expense, the gratification of the impulse which disappointed suitors would have to establish their claims in such manner. Thus, by the Suabian law, it could only be done in the presence of the sovereign himself, and not in that of the immediate feudal superior;349 while the Saxon code127 requires the extraordinary expedient of a pitched battle, with seven on each side, in the king’s presence.350 It is not a little singular that the feudal law of the same period has no allusion to the custom, all appeals being regularly carried to and heard in the court of the suzerain.351

CHAPTER IV.
CONFIDENCE REPOSED IN THE JUDICIAL DUEL.
Thus carefully moulded in conformity with the popular prejudices or convictions of every age and country, it may readily be imagined how large a part the judicial combat played in the affairs of daily life. It was so skilfully interwoven throughout the whole system of jurisprudence that no one could feel secure that he might not, at any moment, as plaintiff, defendant, or witness, be called upon to protect his estate or his life either by his own right hand or by the club of some professional and possibly treacherous bravo. This organized violence assumed for itself the sanction of a religion of love and peace, and human intelligence seemed too much blunted to recognize the contradiction.

There was, in fact, no question which might not be submitted to the arbitrament of the sword or club. If Charlemagne, in dividing his vast empire, forbade the employment128 of the wager of battle in settling the territorial questions which might arise between his heirs,352 the prohibition merely shows that it was habitually used in affairs of the highest moment, and the constant reference to it in his laws proves that it was in no way repugnant to his general sense of justice and propriety.

The next century affords ample evidence of the growing favor in which the judicial combat was held. About the year 930, Hugh, King of Provence and Italy, becoming jealous of his uterine brother, Lambert, Duke of Tuscany, asserted him to be a supposititious child, and ordered him in future to claim no relationship between them. Lambert, being “vir ... bellicosus et ad quodlibet facinus audax,” contemptuously denied the aspersion on his birth, and offered to clear all doubts on the subject by the wager of battle. Hugh accordingly selected a warrior named Teudinus as his champion; Lambert was victor in the ensuing combat, and was universally received as the undoubted son of his mother. His triumph, however, was illegally brought to a sudden close, for Hugh soon after succeeded in making him prisoner and deprived him of eyesight.353 Still, the practice continued to be denounced by some enlightened ecclesiastics, represented by Atto, Bishop of Vercelli, who declared it to be totally inapplicable to churchmen and not to be approved for laymen on account of the uncertainty of its results;354 but representations of this kind were useless. About the middle of the century, Otho the Great appears, throwing the enormous weight of his influence in its favor. As a magnanimous and warlike prince, the wager of battle appears to have possessed peculiar attraction for his chivalrous instincts, and he extended its application as far as lay in his power. Not only did he force his daughter Liutgarda, in defending herself from a villanous accusation, to129 forego the safer modes of purgation, and to submit herself to the perilous decision of a combat,355 but he also caused the abstract question of representation in the succession of estates to be settled in the same manner; and to this day in Germany the division of a patrimony among children and grandchildren is regulated in accordance with the law enacted by the doughty arms of the champions who fought together nine hundred years ago at Steil.356 There was no question, indeed, which according to Otho could not be satisfactorily settled in this manner. Thus when, in 963, he was indulging in the bitter recriminations with Pope John XII. which preceded the subjugation of the papacy under the Saxon emperors, he had occasion to send Bishop Liutprand to Rome to repel certain accusations brought against him, and he ordered the armed followers of his ambassador to sustain his assertions by the duel; a proposition promptly declined by the pontiff, skilled though he was in the use of weapons.357 A duellist, in fact, seems to have been reckoned a necessary adjunct to diplomacy, for when, in 968, the same Liutprand was dispatched by Otho to Constantinople on a matrimonial mission, and during the negotiations for the hand of Theophania a discussion arose as to the circumstances which had led to Otho’s conquest of Italy, the warlike prelate offered to prove his veracity by the sword of one of his attendants: a proposition which put a triumphant end to the argument.358 A more formal assertion of the diplomatic value of the duel was made when in 1177 the conflicting claims of the kings of Castile and Navarre were referred to Henry II. of130 England for adjudication, and both embassies to the English court were supplied with champions as well as with lawyers, so as to be prepared in case the matter was submitted to the duel for decision.359

Nor were these solitary instances of the reference of the mightiest state questions to the chances of the single combat. Allusion has already been made to the challenge which passed between Charles of Anjou and Pedro of Aragon, and not dissimilar was that which resulted from the interview at Ipsch in 1053 between the Emperor Henry III. of Germany and Henry I. of France.360 A hundred years earlier, in 948, when, at the Synod of Ingelheim, Louis d’Outremer invoked the aid of the Church in his death-struggle with the rising race of Capet, he closed the recital of the wrongs endured at the hands of Hugh le grand by offering to prove the justice of his complaints in single combat with the aggressor.361 When the battle ordeal was thus thoroughly incorporated in the manners of the age, we need scarcely be surprised that, in a life of St. Matilda, written by command of her son Otho the Great, the author, after describing the desperate struggles of the Saxons against Charlemagne, should gravely inform us that the war was at last concluded by a duel between the Christian hero and his great antagonist Witikind, religion and empire being both staked on the issue as a prize of the victor; nor does the pious chronicler shudder at the thought that the destiny of Christianity was intrusted to the sword of the Frank.362 His story could not seem improbable to those who witnessed in 1034 the efforts of Conrad the Salic to pacify the Saxon marches. On his inquiring into the causes of the mutual devastations of the neighboring races, the Saxons, who were really the aggressors, offered to prove by the duel that the131 Pagan Luitzes were in fault, trusting that their Christianity would overbalance the injustice of their cause. The defeat of their champion by his heathen adversary was, however, a memorable example of the impartial justice of God, and was received as a strong confirmation of the value of the battle trial.363

The second Otho was fully imbued with his father’s views, and so completely did he carry them out, that in a gloss on the Lombard law he is actually credited with the introduction of the duel.364 In the preceding essay, allusion has been made to his substitution of the judicial combat for the compurgatorial oath in 983, and about the same period he made an exception, in favor of the battle ordeal, to the immemorial policy of the barbarians which permitted to all subject races the enjoyment of their ancestral usages. At the council of Verona, where all the nobles of Italy, secular and ecclesiastical, were assembled, he caused the adoption of a law which forced the Italians in this respect to follow the customs of their conquerors.365 Even the church was deprived of any exemption which she might previously have enjoyed, and was only allowed the privilege of appearing by her advocati or champions.366 There were small chances of escape from the stringency of these regulations, for an edict of Otho I. in 971 had decreed the punishment of confiscation against any one who should refuse to undergo the chances of the combat.367 It may even be assumed, from the wording of a constitution of the Emperor Henry II., that in the early part of the eleventh century it was no longer necessary that there should be a doubt as to the guilt of the accused to entitle him to the privileges of the combat, and that even the most notorious criminal could have a chance of escape by an appeal to the sword.368