SECTION I.

 

Prohibition on trial by judicial combat

2. The prohibition of the form of trial by judicial combat, was another considerable step towards the introduction of such regular government, as secured public order and private tranquility. As the right of private war left many of the quarrels among individuals to be decided, like those between nations, by arms; the form of trial by judicial combat, which was established in every country of Europe, banished equity from courts of justice, and rendered chance or force the arbiter of their determinations.

In civilized nations, all transactions of any importance are concluded in writing. The exhibition of the deed or instrument is full evidence of the fact, and ascertains with precision what each party has stipulated to perform. But among a rude people, when the arts of reading and writing were such uncommon attainments, that to be master of either entitled a person to the appellation of a clerk or learned man, scarcely any thing was committed to writing but treaties between princes, their grants and charters to their subjects, or such transactions between private parties as were of extraordinary consequence, or had an extensive effect.

The greater part of affairs in common life and business were carried on by verbal contracts or promises. This, in many civil questions, not only made it difficult to bring proof sufficient to establish any claim, but encouraged falsehood and fraud, by rendering them extremely easy. Even in criminal cases, where a particular fact must be ascertained, or an accusation must be disproved, the nature and effect of legal evidence were little understood by barbarous nations. To define with accuracy that species of evidence which a court had reason to expect; to determine when it ought to insist on positive proof, and when it should be satisfied with a proof from circumstances; to compare the testimony of discordant witnesses, and to fix the degree of credit due to each; were discussions too intricate and subtile for the jurisprudence of ignorant ages.

In order to avoid encumbering themselves with these, a more simple form of procedure was introduced into courts as well civil as criminal. In all cases where the notoriety of the fact did not furnish the clearest and most direct evidence, the person accused, or he against whom an action was brought, was called legally, or offered voluntarily, to purge himself by oath; and upon his declaring his innocence, he was instantly acquitted. This absurd practice effectually screened guilt and fraud from detection and punishment, by rendering the temptation to perjury so powerful, that it was not easy to resist it. The pernicious effects of it were sensibly felt; and in order to guard against them, the laws ordained, that oaths should be administered with great solemnity, and accompanied with every circumstance which could inspire religious reverence, or superstitious terror. This, however, proved a feeble remedy; these ceremonious rites became familiar, and their impression on the imagination gradually diminished; men who could venture to disregard truth, were not apt to startle at the solemnities of an oath. Their observation of this, put legislators upon devising a new expedient for rendering the purgation by oath more certain and satisfactory.

They required the person accused to appear with a certain number of freemen, his neighbors or relations, who corroborated the oath which he took, by swearing that they believed all that he uttered to be true. These were called Compurgators, and their number varied according to the importance of the subject in dispute, or the nature of the crime with which a person was charged. In some cases, the concurrence of no less than three hundred of these auxiliary witnesses was requisite to acquit the person accused. But even this device was found to be ineffectual.

It was a point of honor with every man in Europe, during several ages, not to desert the chief on whom be depended, and to stand by those with whom the ties of blood connected him. Whoever then was bold enough to violate the laws, was sure of devoted adherents, willing to abet, and eager to serve him in whatever manner he required. The formality of calling compurgators proved an apparent, not a real security, against falsehood and perjury; and the sentences of courts, while they continued to refer every point in question to the oath of the defendant, became so flagrantly, iniquitous, as excited universal indignation against this method of procedure.

Sensible of these defects, but strangers to the manner of correcting them, or of introducing a more proper form, our ancestors, as an infallible method of discovering truth, and of guarding against deception, appealed to Heaven, and referred every point in dispute to be determined, as they imagined, by the decisions of unerring wisdom and impartial justice. The person accused, in order to prove his innocence, submitted to trial, in certain cases, either by plunging his arm in boiling water; or by lifting a red-hot iron with his naked hand; or by walking barefoot over burning ploughshares; or by other experiments equally perilous and formidable On other occasions, he challenged his accuser to fight him in single combat. All these various forms of trial were conducted with many devout ceremonies; the ministers of religion were employed, the Almighty was called upon to interpose for the manifestation of guilt, and for the protection of innocence; and whoever escaped unhurt, or came off victorious, was pronounced to be acquitted by the Judgment of God.

Among all the whimsical and absurd institutions which owe their existence to the weakness of human reason, this, which submitted questions that affected the property, the reputation, and the lives of men, to the determination of chance, or of bodily strength and address, appears to be the most extravagant and preposterous. There were circumstances, however, which led the nations of Europe to consider this equivocal mode of deciding any point in contest, as a direct appeal to Heaven, and a certain method of discovering its will. As men are unable to comprehend the manner in which the Almighty carries on the government of the universe, by equal, fixed, and general laws, they are apt to imagine, that in every case which their passions or interest render important in their own eyes, the Supreme Ruler of all ought visibly to display his power in vindicating innocence and punishing guilt. It requires no inconsiderable degree of science and philosophy to correct this popular error.

But the sentiments prevalent in Europe during the dark ages, instead of correcting, strengthened it. Religion, for several centuries, consisted chiefly in believing the legendary history of those saints whose names crowd and disgrace the Romish calendar. The fabulous tales concerning their miracles, had been declared authentic by the bulls of popes, and the decrees of councils: they made the great subject of the instructions which the clergy offered to the people, and were received by them with implicit credulity and admiration. By attending to these, men were accustomed to believe that the established laws of nature might be violated on the most frivolous occasions, and were taught to look rather for particular and extraordinary acts of power under the divine administration, than to contemplate the regular progress and execution of a general plan. One superstition prepared the way for another and whoever believed that the Supreme Being had interposed miraculously on those trivial occasions mentioned in legends, could not but expect his intervention in matters of greater importance, when solemnly referred to his decision.

With this superstitious opinion, the martial spirit of Europe, during the middle ages, concurred in establishing the mode of trial by judicial combat. To be ready to maintain with his sword whatever his lips had uttered, was the first maxim of honor with every gentleman. To assert their own rights by force of arms, to inflict vengeance on those who had injured or affronted them, were the distinction and pride of high-spirited nobles. The form of trial by combat coinciding with this maxim, flattered and gratified these passions.

Every man was the guardian of his own honor, and of his own life; the justice of his cause, as well as his future reputation, depended on his own courage and prowess. This mode of decision was considered, accordingly, as one of the happiest efforts of wise policy; and as soon as it was introduced, all the forms of trial by fire or water, and other superstitious experiments, fell into disuse, or were employed only in controversies between persons of inferior rank. As it was the privilege of a gentleman to claim the trial by combat, it was quickly authorized over all Europe, and received in every country with equal satisfaction.

Not only questions concerning uncertain or contested facts, but general and abstract points in law, were determined by the issue of a combat; and the latter was deemed a method of discovering truth more liberal, as well as more satisfactory, than that by investigation and argument.

Not only might parties, whose minds were exasperated by the eagerness and the hostility of opposition, defy their antagonists, and require him to make good his charge, or to prove his innocence with his sword; but witnesses who had no interest in the issue of the question, though called to declare the truth by laws which ought to have afforded them protection, were equally exposed to the danger of a challenge, and equally bound to assert the veracity of their evidence by dint of arms.

To complete the absurdities of this military jurisprudence, even the character of a judge was not sacred from its violence. Any one of the parties might interrupt a judge when about to deliver his opinion; might accuse him of iniquity and corruption in the most reproachful terms, and throwing down the gauntlet, might challenge him to defend his integrity in the field; nor could he, without infamy, refuse to accept the defiance, or decline to enter the lists against such an adversary.

Thus the form of trial by combat, like other abuses, spread gradually, and extended to all persons, and almost to all cases. Ecclesiastics, women, minors, superannuated and infirm persons, who could not with decency or justice be compelled to take arms, or to maintain their own cause, were obliged to produce champions, who offered from affection, or were engaged by rewards, to fight their battles. The solemnities of a judicial combat were such as were natural in an action, which, was considered both as a formal appeal to God, and as the final decision of questions of the highest moment. Every circumstance relating to them was regulated by the edicts of princes, and explained in the comments of lawyers, with a minute and even superstitious accuracy. Skill in these laws and rights was frequently the only science of which warlike nobles boasted, or which they were ambitious to attain.

By this barbarous custom, the natural course of proceeding, both in civil and criminal questions, was entirely perverted. Force usurped the place of equity in courts of judicature, and justice was banished from her proper mansion. Discernment, learning, integrity, were qualities less necessary to a judge, than bodily strength and dexterity in the use of arms. Daring courage, and superior vigour of address, were of more moment towards securing the favorable issue of a suit, than the equity of a cause, or the clearness of the evidence. Men, of course, applied themselves to cultivate the talents which they found to be of greatest utility. As strength of body and address in arms were no less requisite in those lists which they were obliged to enter in defence of their private rights, than in the field of battle, where they met the enemies of their country, it became the great object of their education, as well as the chief employment of life, to acquire these martial accomplishments. The administration of justice, instead of accustoming men to listen to the voice of equity, or to reverence the decisions of law, added to the ferocity of their manners, and taught them to consider force as the great arbiter of right and wrong.

These pernicious effects of the trial by combat were so obvious, that they did not altogether escape the view of the unobserving age in which it was introduced. The clergy, from the beginning, remonstrated against it as repugnant to the spirit of Christianity, and subversive of justice and order. But the maxims and passions which favored it, had taken such hold of the minds of men, that they disregarded admonitions and censures, which, on other occasions, would have struck them with terror. The evil was too great and inveterate to yield to that remedy, and continuing to increase, the civil power at length found it necessary to interpose.

Conscious, however, of their own limited authority, monarchs proceeded with caution, and their first attempts to restrain, or to set any bounds to this practice, were extremely feeble. One of the earliest restrictions of this practice which occurs in the history of Europe, is that of Henry I of England. It extended no farther than to prohibit the trial by combat in questions concerning property of small value. Louis VII of France imitated his example, and issued an edict to the same effect.

St. Louis, whose ideas as a legislator were far superior to those of his age, endeavored to introduce a more perfect jurisprudence, and to substitute the trial by evidence, in place of that by combat. But his regulations, with respect to this, were confined to his own domains; for the great vassals of the crown possessed such independent authority, and were so fondly attached to the ancient practice, that he had not power to extend it to the whole kingdom. Some barons voluntarily adopted his regulations.

The spirit of courts of justice became averse to the mode of decision by combat, and discouraged it on every occasion. The nobles, nevertheless, thought it so honorable to depend for the security of their lives and fortunes on their own courage alone, and contended with so much vehemence for the preservation of this favorite privilege of their order, that the successors of St. Louis, unable to oppose, and afraid of offending such powerful subjects, were obliged not only to tolerate, but to authorize the practice which he had attempted to abolish. In other countries of Europe, efforts equally zealous were employed to maintain the established custom; and similar concessions were extorted from their respective sovereigns.

It continued, however, to be an object of policy with every monarch of abilities or vigour to explode the trial by combat; and various edicts were issued for this purpose. But the observation which was made concerning the right of private war, is equally applicable to the mode of trial under review. No custom, how absurd soever it may be, if it has subsisted long, or derives its force from the manners and prejudices of the age in which it prevails, was ever abolished by the bare promulgation of laws and statutes. The sentiments of the people must change, or some new power, sufficient to counteract the prevalent custom, must be introduced. Such a change accordingly took place in Europe, as science gradually increased, and society advanced towards more perfect order. In proportion as the prerogative of princes extended, and came to acquire new force, a power, interested in suppressing every practice favorable to the independence of the nobles, was introduced.

The struggle, nevertheless, subsisted for several centuries; sometimes the new regulations and ideas seemed to gain ground; sometimes ancient habits recurred: and though, upon the whole, the trial by combat went more and more into disuse, yet instances of it occur, as late as the sixteenth century, in the history both of France and of England. In proportion as it declined, the regular administration of justice was restored, the proceedings of courts were directed by known laws, the study of these became an object of attention to judges, and the people of Europe advanced fast towards civility, when this great cause of the ferocity of their manners was removed .

 

The Right of Appeal