ducing before their tribunal a number of friendly witnesses, who solemnly declared their belief, or assurance, that he was not guilty. According to the weight of the charge, this legal number of compurgators was multiplied; seventy-two voices were required to absolve an incendiary or assassin: and, when the chastity of a queen of France was suspected, three hundred gallant nobles swore, without hesitation, that the infant prince had been actually begotten by her deceased husband.[1] The sin and scandal of manifest and frequent perjuries engaged the magistrates to remove these dangerous temptations; and to supply the defects of human testimony by the famous experiments of fire and water. These extraordinary trials were so capriciously contrived that in some cases guilt, and innocence in others, could not be proved without the interposition of a miracle. Such miracles were readily provided by fraud and credulity; the most intricate causes were determined by this easy and infallible method; and the turbulent Barbarians, who might have disdained the sentence of the magistrate, submissively acquiesced in the judgment of God.[2]
Judicial combats But the trials by single combat gradually obtained superior credit and authority among a warlike people, who could not believe that a brave man deserved to suffer, or that a coward deserved to live.[3] Both in civil and criminal proceedings, the plaintiff, or accuser, the defender, or even the witness, were exposed to mortal challenge from the antagonist who was destitute of legal proofs; and it was incumbent on them either to desert their cause or publicly to maintain their honour in the lists of battle. They fought either on foot or on horseback, according to the custom of their nation;[4] and the decision of the sword- ↑ Gregor. Turon. l. viii. c. 9, in tom. ii. p. 316. Montesquieu observes (Esprit des Loix, l. xxviii. c. 13) that the Salic law did not admit these negative proofs so universally established in the Barbaric codes. Yet this obscure concubine (Fredegundis) who became the wife of the grandson of Clovis must have followed the Salic law.
- ↑ Muratori, in the Antiquities of Italy, has given two Dissertations (xxxviii. xxxix.) on the judgments of God. It was expected that fire would not burn the innocent; and that the pure element of water would not allow the guilty to sink into its bosom.
- ↑ Montesquieu (Esprit des Loix, l. xxviii. c. 17) has condescended to explain and excuse "la manière de penser de nos pères," on the subject of judicial combats. He follows this strange institution from the age of Gundobald to that of St. Lewis; and the philosopher is sometimes lost in the legal antiquarian.
- ↑ In a memorable duel at Aix-la-Chapelle (A.D. 820), before the emperor Lewis the Pious, his biographer observes, secundum legem propriam, utpote quia uterque Gothus erat, equestri pugnâ [leg. proelio] congressus est (Vit. Lud. Pii, c. 33, in [Bouquet], tom. vi. p. 103). Ermoldus Nigellus (l. iii. 543-628, in tom. vi. p. 48-50), who describes the duel, admires the ars nova of fighting on horseback, which was unknown to the Franks.
