or lance was ratified by the sanction of Heaven, of the judge, and of the people. This sanguinary law was introduced into Gaul by the Burgundians; and their legislator Gundobald[1] condescended to answer the complaints and objections of his subject Avitus. "Is it not true," said the king of Burgundy to the bishop, "that the event of national wars, and private combats, is directed by the judgment of God; and that his providence awards the victory to the juster cause?" By such prevailing arguments, the absurd and cruel practice of judicial duels, which had been peculiar to some tribes of Germany, was propagated and established in all the monarchies of Europe, from Sicily to the Baltic. At the end of ten centuries, the reign of legal violence was not totally extinguished; and the ineffectual censures of saints, of popes, and of synods may seem to prove that the influence of superstition is weakened by its unnatural alliance with reason and humanity. The tribunals were stained with the blood, perhaps, of innocent and respectable citizens; the law, which now favours the rich, then yielded to the strong; and the old, the feeble, and the infirm were condemned either to renounce their fairest claims and possessions, to sustain the dangers of an unequal conflict,[2] or to trust the doubtful aid of a mercenary champion. This oppressive jurisprudence was imposed on the provincials of Gaul, who complained of any injuries in their persons and property. Whatever might be the strength or courage of individuals, the victorious Barbarians excelled in the love and exercise of arms; and the vanquished Roman was unjustly summoned to repeat, in his own person, the bloody contest which had been already decided against his country.[3]
- ↑ In his original edict, published at Lyons (A.D. 501), Gundobald establishes and justifies the use of judicial combat (Leg. Burgund. tit. xlv. in tom. ii. p. 267-268). Three hundred years afterwards, Agobard, bishop of Lyons, solicited Lewis the Pious to abolish the law of an Arian tyrant (in tom. vi. p. 356-358). He relates the conversation of Gundobald and Avitus.
- ↑ "Accidit (says Agobard) ut non solum valentes viribus, sed etiam infirmi et senes lacessantur ad [certamen et] pugnam, etiam pro vilissimis rebus. Quibus foralibus certaminibus contingunt homicidia injusta; et crudeles ac perversi eventus judiciorum." Like a prudent rhetorician, he suppresses the legal privilege of hiring champions.
- ↑ Montesquieu (Esprit des Loix, xxviii. c. 14), who understands why the judicial combat was admitted by the Burgundians, Ripuarians, Alemanni, Bavarians, Lombards, Thuringians, Frisons, and Saxons, is satisfied (and Agobard seems to countenance the assertion) that it was not allowed by the Salic law. Yet the same custom, at least in cases of treason, is mentioned by Ermoldus Nigellus (l. iii. 543, in tom. vi. p. 48), and the anonymous biographer of Lewis the Pious (c. 46, in tom. vi. p. 112), as the "mos antiquus Francorum, more Francis solito," &c., expressions too general to exclude the noblest of their tribes.
