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upon that as a sacrilegious law which authorized the taking of an oath。
The trial by combat had some reason for it； founded on experience。 In a military nation； cowardice supposes other vices； it is an argument of a person's having deviated from the principles of his education； of his being insensible of honour； and of having refused to be directed by those maxims which govern other men； it shows that he neither fears their contempt； nor sets any value upon their esteem。 Men of any tolerable extraction seldom want either the dexterity requisite to co…operate with strength； or the strength necessary to concur with courage； for as they set a value upon honour； they are practised in matters without which this honour cannot be obtained。 Besides； in a military nation； where strength； courage and prowess are esteemed； crimes really odious are those which arise from fraud； artifice； and cunning； that is； from cowardice。
With regard to the trial by fire； after the party accused had put his hand on a hot iron； or in boiling water； they wrapped the hand in a bag and sealed it up； if after three days there appeared no mark； he was acquitted； Is it not plain； that among people inured to the handling of arms； the impression made on a rough or callous skin by the hot iron or by boiling water could not be so great as to be seen three days afterwards？ And if there appeared any mark； it showed that the person who had undergone the trial was an effeminate fellow。 Our peasants are not afraid to handle hot iron with their callous hands； and； with regard to the women； the hands of those who worked hard might be very well able to resist hot iron。 The ladies did not want champions to defend their cause； and in a nation where there was no luxury； there was no middle state。＇88＇
By the law of the Thuringians＇89＇ a woman accused of adultery was condemned to the trial by boiling water only when there was no champion to defend her； and the law of the Ripuarians admits of this trial＇90＇ only when a person had no witnesses to appear in justification。 Now a woman that could not prevail upon any one relative to defend her cause； or a man that could not produce one single witness to attest his honesty； was； from those very circumstances； sufficiently convicted。
I conclude； therefore； that under the circumstances of time in which the trial by combat and the trial by hot iron and boiling water obtained； there was such an agreement between those laws and the manners of the people； that the laws were rather unjust in themselves than productive of injustice； that the effects were more innocent than the cause； that they were more contrary to equity than prejudicial to its rights； more unreasonable than tyrannical。
18。 In what manner the Custom of judicial Combats gained Ground。 From Agobard's letter to Louis the Debonnaire； it might be inferred that the custom of judicial combats was not established among the Franks； for having represented to that prince the abuses of the law of Gundebald； he desires that private disputes should be decided in Burgundy by the law of the Franks。 But as it is well known from other quarters that the trial by combat prevailed at that time in France； this has been the cause of some perplexity。 However； the difficulty may be solved by what I have said； the law of the Salian Franks did not allow of this kind of trial and that of the Ripuarian Franks did。＇91＇
But； notwithstanding the clamours of the clergy； the custom of judicial combats gained ground continually in France； and I shall presently make it appear that the clergy themselves were in a great measure the occasion of it。
It is the law of the Lombards that furnishes us with this proof。 〃There has been long since a detestable custom introduced；〃 says the preamble to the constitution of Otho II：＇92＇ 〃this is； that if the title to an estate was said to be false； the person who claimed under that title made oath upon the Gospel that it was genuine； and without any preceding judgment he took possession of the estate； so that they who would perjure themselves were sure of gaining their point。〃 The Emperor Otho I having caused himself to be crowned at Rome＇93＇ at the very time that a council was there under Pope John XII； all the lords of Italy represented to that prince the necessity of enacting a law to reform this horrible abuse。＇94＇ The Pope and the Emperor were of opinion that the affair should be referred to the council which was to be shortly held at Ravenna。＇95＇ There the lords made the same demands； and redoubled their complaints； but the affair was put off once more； under pretence of the absence of particular persons。 When Otho II and Conrad； King of Burgundy； arrived in Italy；＇96＇ they had a conference at Verona＇97＇ with the Italian lords；＇98＇ and at their repeated solicitations； the Emperor； with their unanimous consent； made a law； that whenever there happened any disputes about inheritances； while one of the parties insisted upon the legality of his title and the other maintained its being false； the affair should be decided by combat； that the same rule should be observed in contests relating to fiefs； and that the clergy should be subject to the 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 notwithstanding the clamours 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 concurrence of the nobility and princes having obliged the clergy to submit； the custom of judicial combats must have been considered as a privilege of the nobility； as a barrier against injustice 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； declaring upon the Gospels it was not false。 What was done to reform 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＇99＇ of an earlier date； a sovereign who； upon the same complaints and disputes； being desirous of securing the just possession 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…mentioned。
Before that time I find that； in the general assemblies held by Charlemagne； the nation represented to him＇100＇ 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 reason it was much better to revive the judicial combat； which was accordingly done。
The usage of judicial combats gained ground among the Burgundians； and that of an oath was limited。 Theodoric； King of Italy； suppressed the single combat among the Ostrogoths；＇101＇ 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。＇102＇
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。＇103＇ Charlemagne；＇104＇ 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 practice 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； according as the one or the other affected them most。
On the one hand； the clergy were pleased to see that in all secular affairs people were obliged to have recourse to the altar；＇105＇ 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 introduced 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； having given some people reason to think it was proper to make use of the sanctity of the churches