The History of the Decline and Fall of the Roman Empire - Edward Gibbon [1982]
[Footnote 138: Entre seignor et homme ne n'a que la foi; .... mais tant que l'homme doit a son seignor reverence en toutes choses, (c. 206.) Tous les hommes dudit royaume sont par ladite Assise tenus les uns as autres .... et en celle maniere que le seignor mette main ou face mettre au cors ou au fie d'aucun d'yaus sans esgard et sans connoissans de court, que tous les autres doivent venir devant le seignor, &c., (212.) The form of their remonstrances is conceived with the noble simplicity of freedom.]
The trial by battle was established in all criminal cases which affected the life, or limb, or honor, of any person; and in all civil transactions, of or above the value of one mark of silver. It appears that in criminal cases the combat was the privilege of the accuser, who, except in a charge of treason, avenged his personal injury, or the death of those persons whom he had a right to represent; but wherever, from the nature of the charge, testimony could be obtained, it was necessary for him to produce witnesses of the fact. In civil cases, the combat was not allowed as the means of establishing the claim of the demandant; but he was obliged to produce witnesses who had, or assumed to have, knowledge of the fact. The combat was then the privilege of the defendant; because he charged the witness with an attempt by perjury to take away his right. He came therefore to be in the same situation as the appellant in criminal cases. It was not then as a mode of proof that the combat was received, nor as making negative evidence, (according to the supposition of Montesquieu; ^139) but in every case the right to offer battle was founded on the right to pursue by arms the redress of an injury; and the judicial combat was fought on the same principle, and with the same spirit, as a private duel. Champions were only allowed to women, and to men maimed or past the age of sixty. The consequence of a defeat was death to the person accused, or to the champion or witness, as well as to the accuser himself: but in civil cases, the demandant was punished with infamy and the loss of his suit, while his witness and champion suffered ignominious death. In many cases it was in the option of the judge to award or to refuse the combat: but two are specified, in which it was the inevitable result of the challenge; if a faithful vassal gave the lie to his compeer, who unjustly claimed any portion of their lord's demesnes; or if an unsuccessful suitor presumed to impeach the judgment and veracity of the court. He might impeach them, but the terms were severe and perilous: in the same day he successively fought all the members of the tribunal, even those who had been absent; a single defeat was followed by death and infamy; and where none could hope for victory, it is highly probable that none would adventure the trial. In the Assise of Jerusalem, the legal subtlety of the count of Jaffa is more laudably employed to elude, than to facilitate, the judicial combat, which he derives from a principle of honor rather than of superstition. ^140
[Footnote 139: See l'Esprit des Loix, l. xxviii. In the forty years since its publication, no work has been more read and criticized; and the spirit of inquiry which it has excited is not the least of our obligations to the author.]
[Footnote 140: For the intelligence of this obscure and obsolete jurisprudence (c. 80 - 111) I am deeply indebted to the friendship of a learned lord, who, with an accurate and discerning eye, has surveyed the philosophic history of law. By his studies, posterity might be enriched: the merit of the orator and the judge can be felt only by his contemporaries.]
Among the causes which enfranchised the plebeians from the yoke of feudal tyranny, the institution of cities and corporations is one of the most powerful; and if those of Palestine are coeval with the first crusade, they