The Lombards who conquered Italy after the Ostrogoths had been destroyed by the Greeks, introduced the custom of judicialcombat 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 haughtynobility 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 in order to strike terror into the guilty, and to intimidate perjurers, the clergy maintained this usage and the practice which attended it: for in other respects they were absolutely averse to negative proofs. We find in Beaumanoir[106] that this kind of proof was never allowed in ecclesiastic courts, which contributed greatly, without doubt, to its suppression, and to weaken in this respect the regulation of the codes of the Barbarian laws.



　　This will convince us more strongly of the connection between the usage of negative proofs and that of judicialcombats, of which I have said so much. The lay tribunals admitted of both, and both were rejected by the ecclesiastic courts.



　　In choosing the trial by duel the nation followed its military spirit; for while this was established as a divine decision, the trials by the cross, by cold or boiling waters, which had been also regarded in the same lights, were abolished.



　　Charlemagne ordained that, if any difference should arise between his children, it should be terminated by the judgment of the cross. Louis the Debonnaire[107] limited this judgment to ecclesiastic affairs; his son Lotharius abolished it in all cases; nay, he suppressed even the trial by cold water.[108]



　　I do not pretend to say that, at a time when so few usages were universally received, these trials were not revived in some churches, especially as they are mentioned in a charter of Philip Augustus,[109] but I affirm that they were very seldom practised. Beaumanoir,[110] who lived at the time of St. Louis and a little after, enumerating the different kinds of trial, mentions that of judicialcombat, but not a word of the others.

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