o See this law, tit. 59, sec. 4, and tit. 5 It was held in the year 967, in the 67, sec. 5. presence of Pope John XIII and of the p Law of the Lombards, book II. tit. Emperor Otho I.
55, chap. 34. t Otho II's uncle, son to Rodolphus, q The year 962. and King of Transjurian Burgundy.
r " Ab Italiae proceribus est proclama- « In the year 988.
turn, ut imperator sanctus mutata lege, v " Cum in hoc ab omnibus imperiales facinus indignum destrueret." — Law of aures pulsarentur." — Law of the Lomthe Lombards, book II. tit. 55, chap. bards, book II. tit. 55, chap, xxxiv. xxxiv.
THE SPIRIT OF LAWS 113 same law, but should fight by their champions. Here we see, that the nobility insisted on the trial by combat, because of the inconvenience of the proof introduced by the clergy, that not- withstanding the clamors of the nobility, the notoriousness of the abuse which called out loudly for redress, and the authority of Otho who came into Italy to speak and act as master, still the clergy held out in two Councils; in fine, that the joint con- currence of the nobility and princes having obliged the clergy to submit, the custom of judicial combats must have been con- sidered as a privilege of the nobility, as a barrier against injus- tice, and as a security of property, and from that very moment this custom must have gained ground. And this was effected at a time when the power of the emperors was great, and that of the popes inconsiderable; at a time when the Othos came to revive the dignity of the empire in Italy.
I shall make one reflection which will corroborate what has been above said, namely, that the institution of negative proofs entailed that of judicial combats. The abuse, complained of to the Othos, was, that a person who was charged with having a false title to an estate, defended himself by a negative proof, de- claring upon the Gospels it was not false. What was done to re- form the abuse of a law which had been mutilated? The custom of combat was revived.
I hastened to speak of the constitution of Otho II, in order to give a clear idea of the disputes between the clergy and the laity of those times. There had been indeed a constitution of Lotharius I w of an earlier date, a sovereign who, upon the same complaints and disputes, being dfesirous of securing the just pos- session of property, had ordained that the notary should make oath that the deed or title was not forged; and if the notary should happen to die, the witnesses should be sworn who had signed it. The evil, however, still continued, till they were obliged at length to have recourse to the remedy above men- tioned.
Before that time I find that, in the general assemblies, held by Charlemagne, the nation represented to him,^ that in the actual state of things it was extremely difficult for either the accuser or the accused to avoid perjuring themselves, and that for this w In the law of the Lombards, book Muratori made use of it is attributed to II. tit. 55, sec. 33. In the copy which the Emperor Guido. x Ibid., sec. 23.
Vol. II.— 8 114 MONTESQUIEU reason it was much better to revive the judicial combat, which was accordingly done.
The usage of judicial combats gained ground among the Bur- gundians, and that of an oath was limited. Theodoric, King of Italy, suppressed the single combat among the Ostrogoths; 3* and the laws of Chaindasuinthus and Recessuinthus seemed as if they would abolish the very idea of it. But these laws were so little respected in Narbonne Gaul, that they looked upon the legal duel as a privilege of the Goths.-^ The Lombards who conquered Italy after the Ostrogoths had been destroyed by the Greeks, introduced the custom of judicial combat into that country, but their first laws gave a check to it.* Charlemagne,o Louis the Debonnaire, and the Othos made divers general constitutions, which we find inserted in the laws of the Lombards and added to the Salic laws, whereby the prac- tice of legal duels, at first in criminal, and afterwards in civil cases, obtained a greater extent. They knew not what to do. The negative proof by oath had its inconveniences; that of legal duels had its inconveniences also; hence they often changed, ac- cording as the one or the other affected them most.
On the one hand, the clergy were pleased to see that in all secular afifairs people were obliged to have recourse to the altar,& and, on the other, a haughty nobility were fond of maintaining their rights by the sword.
I would not have it inferred that it was the clergy who intro- duced the custom so much complained of by the nobility. This custom was derived from the spirit of the barbarian laws, and from the establishment of negative proofs. But a practice that contributed to the impunity of such a number of criminals, hav- ing given some people reason to think it was proper to make use of the sanctity of the churches in order to strike terror into the guilty, and to intimidate perjurers, the clergy maintained this y Cassiod, iii., let. 23 and 24. Rotharis; and in sec. is, that of Luitz " In palatio quoque, Bera comes prandus.
Barcinonensis, cum impeteretur a quo- a Ibid, book II. tit. 55, sec. 23.
dam vocato Sunila, et infidelitatis argue- b The judicial oaths were made at that retur, cum eodem secundum legem time in the churches, and during the propriam, utpote quia uterque Gothus first race of our kings there was a chapel erat, equestn praelio congressus est et set apart in the royal palace for the victus." — The anonymous author of the affairs that were to be thus decided.
" Life of Louis the Debonnaire." See the formulas of Marculfus, book I.
* See in the law of the Lombards, chap, xxxviii. The laws of the Ripubook I. tit. 4 and tit. 9, sec. 23, and arians, tit. 59, sec. 4, tit. 65, sec. 5. The book II, tit. 35, sees. 4 and 5, and tit. history of Gregory of Tours; and the SS, sees. I, 2, and 3. The regulations of Capitulary of the year 803, added to the Salic law.
THE SPIRIT OF LAWS 115 usage and the practice which attended it: for in other respects they were absolutely averse to negative proofs. We find in Beaumanoir c that this kind of proof was never allowed in ec- clesiastic courts, which contributed greatly without doubt to its suppression, and to weaken in this respect the regulation of the codes of the barbarian laws.
This will convince us more strongly of the connection between the usage of negative proofs and that of judicial combats, of which I have said so much. The lay tribunals admitted of both, and both were rejected by the ecclesiastic courts.
In choosing the trial by duel the nation followed its military spirit; for while this was established as a divine decision, the trials by the cross, by cold or boiling waters, which had been also regarded in the same lights, were abolished.
Charlemagne ordained, that if any difference should arise be- tween his children, it should be terminated by the judgment of the cross. Louis the Debonnaire,<^ limited this judgment to ec- clesiastic affairs; his son Lotharius abolished it in all cases; nay, he suppressed even the trial by cold water.^ I do not pretend to say, that at a time when so few usages were universally received, these trials were not revived in some churches, especially as they are mentioned in a charter of Philip Augustus,/^ but I affirm that they were very seldom practised. Beaumanoir,g who lived at the time of St. Louis and a little after, enumerating the different kinds of trial, mentions that of judicial combat, but not a word of the others.
19. — A new Reason of the Disuse of the Salic and Roman Laws, as also of the Capitularies I have already mentioned the reasons that had destroyed the authority of the Salic and Roman laws, as also of the Capitu- laries; here I shall add, that the principal cause was the great extension given to judiciary combats.
As the Salic laws did not admit of this custom, they became in some measure useless, and fell into oblivion. In like manner the c Chap, xxxix. p. 212. of the Lombards, book II. tit. 55, sec.
dWe find his Constitutions inserted 31.
in the law of the Lombards and at the / In the year 1*00.
end of the Salic laws. g " Custom of Beauvoisis," chap.
e In a constitution inserted in the law xxxix.
ii6 MONTESQUIEU Roman laws, which also rejected this custom, were laid aside; their whole attention was then taken up in establishing the law of judicial combats, and in forming a proper digest of the several cases that might happen on those occasions. The regulations of the Capitularies became likewise of no manner of service. Thus it is that such a number of laws lost all their authority, without our being able to tell the precise time in which it was "lost; they fell into oblivion, and we cannot find any others that were sub- stituted in their place.
Such a nation had no need of written laws; hence its written laws very easily fall into disuse.
If there happened to be any disputes between two parties, they had only to order a single combat. For this no great knowledge or abilities were requisite.
All civil and criminal actions are reduced to facts. It is upon these facts they fought; and not only the substance of the afifair, but Ukewise the incidents and imparlances were decided by com- bat, as Beaumanoir observes, who produces several instances.^ I find that towards the commencement of the third race, the jurisprudence of those times related entirely to precedents, every- thing was regulated by the point of honor. If the judge was not obeyed, he insisted upon satisfaction from the person that con- temned his authority. At Bourges if the provost had summoned a person and he refused to come, his way of proceeding was to tell him, " I sent for thee, and thou didst not think it worth thy while to come; I demand therefore satisfaction for this thy con- tempt." Upon which they fought.* Louis the Fat reformed this custom.;' The custom of legal duels prevailed at Orleans, even in all demands of debt.fe Louis the Young, declared that this custom should take place only when the demand exceeded five sous. This ordinance was a local law; for in St. Louis's time it was sufficient that the value was more than twelve deniers.^ Beau- manoir fn had heard a gentleman of the law affirm, that formerly there had been a bad custom in France of hiring a champion for a certain time to fight their battles in all causes. This shows h Chap. Ixi. pp. 309, 310. k Charter of Louis the Young, in 1168, t Charter of Louis the Fat, in the in the Collection of Ordinances.
year 1145, in the Collection of Ordi- / See Beaumanoir, chap. Ixiii. p. 325.
nances. m See the " Custom of Beauvoisis," ; Ibid. chap, xxviii. p. 203.
THE SPIRIT OF LAWS 117 that the custom of judiciary combat must have prevailed at that time to a wonderful extent.
20. — Origin of the Point of Honor We meet with inexplicable enigmas in the codes of laws of the barbarians. The law of the Frisians n allows only half a sou in composition to a person that had been beaten with a stick, and yet for ever so small a wound it allows more. By the Salic law, if a freeman gave three blows with a stick to another free- man, he paid three sous; if he drew blood, he was punished as if he had wounded him with steel, and he paid fifteen sous: thus the punishment was proportioned to the greatness of the wound. The law of the Lombards established different compositions for one, two, three, four blows, and so on.o At present, a single blow is equivalent to a hundred thousand.
The constitution of Charlemagne, inserted in the law of the Lombards, ordains that those who were allowed the trial by combat should fight with bastons./* Perhaps this was out of re- gard to the clergy; or probably, as the usage of legal duels gained ground, they wMited to render them less sanguinary. The Capitulary of Louis the Debonnaire, allows the liberty of choosing to fight either with the sword or baston.9 In process of time none but bondmen fought with the baston.r Here I see the first rise and formation of the particular articles of our point of honor. The accuser began by declaring in the presence of the judge that such a person had committed such an action, and the accused made answer that he lied,-? upon which the judge gave orders for the duel. It became then an established rule, that whenever a person had the lie given him, it was incum- bent on him to fight.
Upon a man's declaring that he would fight* he could not afterwards depart from his word; if he did, he was condemned to a penalty. Hence this rule ensued, that whenever a person had engaged his word, honor forbade him to recall it.
Gentlemen fought one another on horseback, and armed at all points; « villains fought on foot and with bastons.^' Hence it n " Additio sapientium Willemari," t See Beaumanoir, iii. pp. 25 and 320.
tit. s. « See in regard to the arms of the o Book I. tit. 6, sec. 3. combatants, Beaumanoir, chap. Ixi. p.
p Book II. tit. s, sec. 23. 308, and chap. Ixiv. p. 328.
q Added to the Salic law in 819. v Ibid. chap. Ixiv. p. 328. See also r See Beaumanoir, Ixiv. p. 323. the Charters of St. Aubin of Anjou, ii8 MONTESQUIEU followed that the baston was looked upon as the instrument of insults and aflfronts,w because to strike a man with it was treat- ing him like a villain.
None but villains fought with their faces uncovered,-*^ so that none but they could receive a blow on the face. Therefore, a box on the ear became an injury that must be expiated with blood, because the person who received it had been treated as a villain.
The several peoples of Germany were no less sensible than we of the point of honor; nay, they were more so. Thus the most distant relatives took a very considerable share to themselves in every affront, and on this all their codes are founded. The law of the Lombards ordains,3' that whosoever goes attended with servants to beat a man unawares, in order to load him with shame and to render him ridiculous, should pay half the compo- sition which he would owe if he had killed him; z and if through the same motive he tied or bound him, he would pay three- quarters of the same composition.
Let us then conclude that our forefathers were extremely sensible of affronts; but that affronts of a particular kind, such as being struck with a certain instrument on a certain part of the body, and in a certain manner, were as yet unknown to them. All this was included in the affront of being beaten, and in this case the amount of violence determined the magnitude of the outrage.
21. — A new Reflection upon the Point of Honor among the Germans " It was a great infamy," says Tacitus,o " among the Germans for a person to leave his buckler behind him in battle; for which reason many after a misfortune of this kind have destroyed themselves." Thus the ancient SaUc law b allows a composition of fifteen sous to any person that had been injuriously reproached with having left his buckler behind him.
When Charlemagne amended the Salic law,c he allowed in this case no more than three sous in composition. As this prince cannot be suspected of having had a design to enervate the miliw Among the Romans, it was not in- y Book I. tit. 6, sec. i.
famous to be beaten with a stick, " lege 2 Book I. tit. 6, sec. 2.
ictus fustium. De iis qui notantur in- a " De Moribus Germanorum."
famia." b In the " Pactus legis Salicae."
X They had only the baston and c We have both the ancient law and buckler. — Beaumanoir, chap. Ixiv. p. 328. that which was amended by this prince.
THE SPIRIT OF LAWS tary discipline, it is manifest that such an alteration was due to a change of weapons, and that from this change of weapons a great number of usages derive their origin.
22. — Of the Manners in relation to judicial Combats Our connections with the fair sex are founded on the pleasure of enjoyment; on the happiness of loving and being loved; and likewise on the ambition of pleasing the ladies, because they are the best judges of some of those things which constitute per- sonal merit. This general desire of pleasing produces gallantry which is not love itself, but the delicate, the volatile, the perpetual simulation of love.
According to the different circumstances of every country and age, love inclines more to one of those three things than to the other two. Now I maintain, that the prevailing spirit at the time of our judicial combats must have been that of gallantry.
I find in the law of the Lombards,^ that if one of the two champions was found to have any magic herbs about him, the judge ordered them to be taken from him, and obliged him to swear he had no more. This law could be founded only on the vulgar opinion; it was fear, the alleged inventor of much that made them imagine this kind of prestige. As in single combats the champions were armed at all points, and as with heavy arms, both of the offensive and defensive kind, those of a particular temper and strength gave immense advantages, the notion of some champions having enchanted arms must certainly have turned the brains of a great many people.
Hence arose the marvellous system of chivalry. The minds of all sorts of people quickly imbibed these extravagant ideas. In romances are found knights-errant, necromancers, and fairies, winged or intelligent horses, invisible or invulnerable men, ma- gicians who concerned themselves in the birth and education of great personages, enchanted and disenchanted palaces, a new world in the midst of the old one, the usual course of nature be- ing left only to the lower class of mankind.
Knights-errant ever in armor, in a part of the world abound- ing in castles, forts, and robbers, placed all their glory in punish- ing injustice, and in protecting weakness. Hence our romances I20 MONTESQUIEU are full of gallantry founded on the idea of love joined to that of strength and protection.
Such was the origin of gallantry, when they formed the no- tion of an extraordinary race of men, who at the sight of a vir- tuous and beautiful lady in distress were inclined to expose themselves to all hazards for her sake, and to endeavor to please her in the common actions of life.
Our romances of chivalry flattered this desire of pleasing, and communicated to a part of Europe that spirit of gallantry which we may venture to affirm was very little known to the ancients.
The prodigious luxury of that immense city of Rome en- couraged sensuous pleasures. The tranquillity of the plains of Greece gave rise to the description of the sentiments of love.^ The idea of knights-errant, protectors of the virtue and beauty of the fair sex, led to that of gallantry.
This spirit was continued by the custom of tournaments, which uniting the rights of valor and love, added still a consider- able importance to gallantry.
23. — Of the Code of Laws on judicial Combats Some perhaps will have a curiosity to see this abominable cus- tom of judiciary combat reduced to principles and to find the groundwork of such an extraordinary code of laws. Men, though reasonable in the main, reduce their very prejudices to rule. Nothing was more contrary to good sense, than those combats, and yet when once this point was laid down, a kind of prudential management was used in carrying it into execution.
In order to be thoroughly acquainted with the jurisprudence of those times, it is necessary to read with attention the regula- tions of St. Louis, who made such great changes in the judiciary order. Defontaines was contemporary with that prince; Beau- manoir wrote after him; f and the rest lived since his time. We must, therefore, look for the ancient practice in the amendments that have been made of it.
24. — Rules established in the judicial Combat When there happened to be several accusers, they were obliged to agree among themselves that the action might be carried on by a single prosecutor; and, if they could not agree, the person bee See the Greek romances of the Middle Age. f In the year 1283.
THE SPIRIT OF LAWS X2X fore whom the action was brought, appointed one of them to prosecute the quarrel.g When a gentleman challenged a villain, he was obliged to present himself on foot with buckler and baston; but if he came on horseback and armed like a gentleman, they took his horse and his arms from him, and stripping him to his shirt, they com- pelled him to fight in that condition with the villain^ Before the combat the magistrates ordered three bans to be published. By the first the relatives of the parties were com- manded to retire; by the second the people were warned to be silent; and the third prohibited the giving of any assistance to either of the parties, under severe penalties, nay, even on pain of death if by this assistance either of the combatants should happen to be vanquished.* The officers belonging to the civil magistrate; guarded the list or enclosure where the battle was fought; and in case either of the parties declared himself desirous of peace, they took particu- lar notice of the actual state in which they mutually stood at that very moment, to the end that they might be restored to the same situation, in case they did not come to an understanding.^ When the pledges were received either for a crime or for false judgment, the parties could not make up the matter without the consent of the lord; and when one of the parties was overcome, there could be no accommodation without the permission of the count, which had some analogy to our letters of grace.^ But if it happened to be a capital crime, and the lord, cor- rupted by presents, consented to an accommodation, he was obliged to pay a fine of sixty livres, and the right he had of pun- ishing the malefactor devolved upon the count.w There were a great many people incapable either of offering, or of accepting battle. But liberty was given them, on cause being shown, to choose a champion; and that he might have a stronger interest in defending the party, in whose behalf he ap- peared, his hand was cut off if he lost the battle.w g Beaumanoir, chap. vi. pp. 40 and 41. the authors of those days have not a h Ibid. chap. Ixiv. p. 328. general signification, but a signification » Ibid. chap. Ixiv. p. 330. limited to the aflfair in question. D6- j Ibid. fontaines, chap. xxi. art. 29.
k Ibid. n This custom, which we meet with in /The great vassals had particular the Capitularies, was still subsisting at privileges. the time of Beaumanoir. See chap. Ixi.
he lost his jurisdiction: these words in 122 MONTESQUIEU - When capital laws were made in the last century against duels, perhaps it would have been sufficient to have deprived a warrior of his military capacity by the loss of his hand; nothing in gen- eral being a greater mortification to mankind than to survive the loss of their character.
When, in capital cases, the duel was fought by champions, the parties were placed where they could not behold the battle; each was bound with the cord that was to be used at his execution in case his champion was overcome.^ The person overcome in battle did not always lose the point contested; if, for instance, they fought on an imparlance, he lost only the imparlance./' 25. — Of the Bounds prescribed to the Custom of judicial Combats When pledges of battle had been received upon a civil affair of small importance, the lord obliged the parties to withdraw them.
If a fact was notorious; for instance, if a man had been assas- sinated in the open market-place, then there was neither ai trial by witnesses, nor by combat; the judge gave his decision from the notoriety of the fact.9 When the court of a lord had often determined after the same manner, and the usage was thus known,** the lord refused to grant the parties the privilege of duelling, to the end that the usages might not be altered by the different success of the com- bats.
They were not allowed to insist upon duelling but for them- selves, for some one belonging to their family, or for their liege lord.^ When the accused had been acquitted, another relative could not insist on fighting him; otherwise disputes would never be terminated.* If a person appeared again in public whose relatives, upon a supposition of his being murdered, wanted to revenge his death, there was then no room for a combat; the same may be said if by a notorious absence the fact was proved to be impossible.** o Beaumanoir, chap. Ixiv. p. 330.; Beaumanoir, chap. Ixiii. p. 322.
P Ibid. chap. Ixi. p. 3051. t Ibid, r Ibid., chap. Ixi. p. 314. See also Defontaines, chap. xxii. art 24.
THE SPIRIT OF LAWS 123 If a man who had been mortally wounded had exculpated be- fore his death the person accused and named another, they did not proceed to a duel; but if he had mentioned nobody his dec- laration was looked upon as a forgiveness on his death-bed; the prosecution was continued, and even among gentlemen they could make war against each other.t' When there was a conflict, and one of the relatives had given or received pledges of battle, the right of contest ceased; for then it was thought that the parties wanted to pursue the ordinary course of justice; therefore he that would have continued the contest would have been sentenced to make good all the losses.
Thus the practice of judiciary combat had this advantage, that it was apt to change a general into an individual quarrel, to re- store the courts of judicature to their authority, and to bring back into the civil state those who were no longer governed but by the law of nations.
. As there are an infinite number of wise things that are man- aged in a very foolish manner; so there are many foolish things that are very wisely conducted.
When a man who was challenged with a crime visibly showed that it had been committed by the challenger himself, there could be then no pledges of battle; for there is no criminal but would prefer a duel of uncertain event to a certain punishment.w There were no duels in affairs decided by arbiters,^ nor by ec- clesiastical courts, nor in cases relating to women's dowries.
" A woman," says Beaumanoir, " cannot fight." If a woman challenged a person without naming her champion, the pledges of battle were not accepted. It was also requisite that a woman should be authorized by her baron, that is, by her husband, to challenge; but she might be challenged without this authority.y If either the challenger or the person challenged were under fifteen years of age, there could be no combat.^ They might order it, indeed, in disputes relating to orphans when their guar- dians or trustees were willing to run the risk of this procedure.
The cases in which a bondman was allowed to fight are, I think, as follows. He was allowed to fight another bondman; to fight a freed-man, or even a gentleman, in case he were chal- lenged; but if he himself challenged, the other might refuse to V Beaumanoir, chap. Ixiii. p. 323- y Ibid.
X Ibid. p. 325. said in book XVIII.)
124 MONTESQUIEU fight; and even the bondman's lord had a right to take him out of the court.o The bondman might by his lord's charter or by usage fight with any freeman; b and the church claimed this right for her bondmen c as a mark of respect due to her by the laity.rf 26. — On the judiciary Combat between one of the Parties and one of the Witnesses Beaumanoir informs us,^ that a person who saw a witness going to swear against him might elude the other, by telling the judges that his adversary produced a false and slandering witness; and if the witness was willing to maintain the quarrel, he gave pledges of battle. The enquiry was no longer the ques- tion; for if the witness was overcome, it was decided that the adversary had produced a false witness, and he lost his cause.
It was necessary that the second witness should not be heard; for if he had made his attestation, the aflfair would have been decided by the deposition of two witnesses. But by staying the second, the deposition of the first witness became void.
The second witness being thus rejected, the party was not al- lowed to produce any others, but he lost his cause; in case, how- ever, there had been no pledges of battle he might produce other witnesses.
Beaumanoir observes,/^ that the witness might say to the party he appeared for, before he made his deposition: " I do not care to fight for your quarrel, nor to enter into any debate; but if you are willing to stand by me, I am ready to tell the truth." The party was then obliged to fight for the witness, and if he hap- pened to be overcome, he did not lose his cause,g but the witness was rejected.
This, I believe, was a modification of the ancient custom; and what makes me think so is, that we find this usage of challeng- ing the witnesses established in the laws of the Bavarians h and Burgundians * without any restriction.
I have already made mention of the constitution of Gundebald, a Beaumanoir, chap. Ixiii. p. 322. / Chap. vi. pp. 39 and 40.
b Defontaines, chap. xxii. art. 7. g But if the battle was fought by c " Habeant bellandi et testificandi champions, the champion that was overlicentiam."— Charter of Louis the Fat, come had his hand cut off.
in the year 11 18. h Tit. 16, sec. 7.
dibid. tTit. 45.