person accused.* But even this device was found to be ineffectual. It was a point of honour with every man in Europe, during several ages, not to desert the chief on whom he depended, and to stand by those with whom the ties of blood connected him. Whoever then was bold enough to violate the laws, was sure of devoted adherents, willing to abet, and eager to serve him in whatever manner he required. The formality of calling compurgators proved an apparent, not a real security, against falsehood and perjury; and the sentences of courts, while they continued to refer every point in question to the oath of the defendant, became so flagrantly iniquitous, as excited universal indignation against this method of procedure.t

Sensible of these defects, but strangers to the manner of correcting them, or of introducing a more proper form, our ancestors, as an infallible method of discovering truth, and of guarding against deception, appealed to Heaven, and referred every point in dispute to be determined, as they imagined, by the decisions of unerring wisdom and impartial justice. The person accused, in order to prove his innocence, submitted to trial, in certain cases, either by plunging his arm in boiling water; or by lifting a red-hot iron with his naked hand; or by walking barefoot over burning ploughshares; or by other experiments equally perilous and formidable On other occasions, he challenged his accuser to fight him in single combat. All these various forms of trial were conducted with many devout ceremonies; the ministers of religion were employed, the Almighty was called upon to interpose for the manifestation of guilt, and for the protection of innocence; and whoever escaped unhurt, or came off victorious, was pronounced to be acquitted by the Judgment of God.

Among all the whimsical and absurd institutions which owe their existence to the weakness of human reason, this, which submitted questions that affected the property, the reputation, and the lives of men, to the determination of chance, or of bodily strength and address, appears to be the most extravagant and preposterous. There were circumstances, however, which led the nations of Europe to consider this equivocal mode of deciding any point in contest, as a direct appeal to Heaven, and a certain method of discovering its will. As men are unable to comprehend the manner in which the Almighty carries on the government of the universe, by equal, fixed, and general laws, they are apt to imagine, that in every case which their passions or interest render important in their own eyes, the Supreme Ruler of all ought visibly to display his power in vindicating innocence and punishing guilt. It requires no inconsiderable degree of science and philosophy to correct this popular error. But the sentiments prevalent in Europe during the dark ages, instead of correcting, strengthened it. Religion, for several centuries, consisted chiefly in believing the legendary history of those saints whose names crowd and disgrace the Romish calendar. The fabulous tales concerning their miracles, had been declared authentic by the bulls of popes, and the decrees of councils: they made the great subject of the instructions which the clergy offered to the people, and were received by them with implicit credulity and admiration. By attending to these, men were accustomed to believe that the established laws of nature might be violated on the most frivolous occasions, and were taught to look rather for particular and extraordinary acts of power under the divine administration, than to contemplate the regular progress and execution of a general plan. One superstition prepared the way for another and whoever believed that the Supreme Being had interposed miraculously on those trivial occasions mentioned in legends, could not but expect his

Spelman Glossar, voc. Assath. Gregor. Turon. Hist. lib. viii. c. 9. † Leg. Langobard. lib. ii. tit. 55, sect. 34. Murat. dissertatio de judiciis Dei Antiquit. Ital. vol. iii. p. 612.

intervention in matters of greater importance, when solemnly referred to his decision.

With this superstitious opinion, the martial spirit of Europe, during the middle ages, concurred in establishing the mode of trial by judicial combat. To be ready to maintain with his sword whatever his lips had uttered, was the first maxim of honour with every gentleman. To assert their own rights by force of arms, to inflict vengeance on those who had injured or affronted them, were the distinction and pride of high-spirited nobles. The form of trial by combat coinciding with this maxim, flattered and gratified these passions. Every man was the guardian of his own honour, and of his own life; the justice of his cause, as well as his future reputation, depended on his own courage and prowess. This mode of decision was considered, accordingly, as one of the happiest efforts of wise policy; and as soon as it was introduced, all the forms of trial by fire or water, and other superstitious experiments, fell into disuse, or were employed only in controversies between persons of inferior rank. As it was the privilege of a gentleman to claim the trial by combat, it was quickly authorized over all Europe, and received in every country with equal satisfaction. Not only questions concerning uncertain or contested facts, but general and abstract points in law, were determined by the issue of a combat ; and the latter was deemed a method of discovering truth more liberal, as well as more satisfactory, than that by investigation and arguinent. Not only might parties, whose minds were exasperated by the eagerness and the hostility of opposition, defy their antagonists, and require him to make good his charge, or to prove his innocence with his sword; but witnesses who had no interest in the issue of the question, though called to declare the truth by laws which ought to have afforded them protection, were equally exposed to the danger of a challenge, and equally bound to assert the veracity of their evidence by dint of arms. To complete the absurdities of this military jurisprudence, even the character of a judge was not sacred from its violence. Any one of the parties might interrupt a judge when about to deliver his opinion; might accuse him of iniquity and corruption in the most reproachtul terms, and throwing down the gauntlet, might challenge him to defend his integrity in the field; nor could he, without infamy, refuse to accept the defiance, or decline to enter the lists against such an adversary.

Thus the form of trial by combat, like other abuses, spread gradually, and extended to all persons, and almost to all cases. Ecclesiastics, women, minors, superannuated and infirm persons, who could not with decency or justice be compelled to take arms, or to maintain their own cause, were obliged to produce champions, who offered from affection, or were engaged by rewards, to fight their battles. The solemnities of a judicial combat were such as were natural in an action, which was considered both as a formal appeal to God, and as the final decision of questions of the highest moment. Every circumstance relating to them was regulated by the edicts of princes, and explained in the comments of lawyers, with a minute and even superstitious accuracy. Skill in these laws and rights was frequently the only science of which warlike nobles boasted, or which they were

ambitious to attain.*

By this barbarous custom, the natural course of proceeding, both in civil and criminal questions, was entirely perverted. Force usurped the place of equity in courts of judicature, and justice was banished from her proper mansion. Discernment, learning, integrity, were qualities less necessary to a judge, than bodily strength and dexterity in the use of arms. Daring courage, and superior vigour of address, were of more moment towards securing

*See a curious discourse concerning the laws of judicial combat, by Thomas of Woodstock, duke of Gloucester, uncle to Richard II. in Spelman's Glossar, voc. Campus,

the favourable issue of a suit, than the equity of a cause, or the clearness of the evidence. Men, of course, applied themselves to cultivate the talents which they found to be of greatest utility. As strength of body and address in arms were no less requisite in those lists which they were obliged to enter in defence of their private rights, than in the field of battle, where they met the enemies of their country, it became the great object of their education, as well as the chief employment of life, to acquire these martial accomplishments. The administration of justice, instead of accustoming men to listen to the voice of equity, or to reverence the decisions of law, added to the ferocity of their manners, and taught then to consider force as the great arbiter of right and wrong,

These pernicious effects of the trial by combat were so obvious, tha they did not altogether escape the view of the unobserving age in which it was introduced. The clergy, from the beginning, remonstrated agains it as repugnant to the spirit of Christianity, and subversive of justice and order. But the maxims and passions which favoured it, had taken such hold of the minds of men, that they disregarded admonitions and censures, which, on other occasions, would have struck them with terror. The evil was too great and inveterate to yield to that remedy, and continuing to increase, the civil power at length found it necessary to interpose. Conscious, however, of their own limited authority, monarchs proceeded with caution, and their first attempts to restrain, or to set any bounds to this practice, were extremely feeble. One of the earliest restrictions of this practice which occurs in the history of Europe, is that of Henry I. of England. It extended no farther than to prohibit the trial by combat in questions concerning property of small value. Louis VII. of France imitated his example, and issued an edict to the same effect. St. Louis, whose ideas as a legislator were far superior to those of his age, endeavoured to introduce a more perfect jurisprudence, and to substitute the trial by evidence, in place of that by combat. But his regulations, with respect to this, were confined to his own domains; for the great vassals of the crown possessed such independent authority, and were so fondly attached to the ancient practice, that he had not power to extend it to the whole kingdom. Some barons voluntarily adopted his regulations. The spirit of courts of justice became averse to the mode of decision by combat, and discouraged it on every occasion. The nobles, nevertheless, thought it so honourable to depend for the security of their lives and fortunes on their own courage alone, and contended with so much vehemence for the preservation of this favourite privilege of their order, that the successors of St. Louis, unable to oppose, and afraid of offending such powerful subjects, were obliged not only to tolerate, but to authorize the practice which he had attempted to abolish. In other countries of Europe, efforts equally zealous were employed to maintain the established custom; and similar concessions were extorted from their respective sovereigns. It continued, however, to be an object of policy with every monarch of abilities or vigour to explode the trial by combat; and various edicts were issued for this purpose. But the observation which was made concerning the right of private war, is equally applicable to the mode of trial under review. No custoin. how absurd soever it may be, if it has subsisted long, or derives its force from the manners and prejudices of the age in which it prevails, was ever abolished by the bare promulgation of laws and statutes. The sentiments of the people must change, or some new power, sufficient to counteract the prevalent custom, must be introduced. Such a change accordingly took place in Europe, as science gradually increased, and society advanced towards more perfect order. In propor

↑ Brussel Usage des Fiefs, vol. i Ibid. tom. i. p. 325, 300. 435.

• Du Cange Glossar, voc. Duellum, vo', ii. p. 1675. Ordon. toni. 1. p. 1's.

p. 962.

tion as the prerogative of princes extended, and came to acquire new force, a power, interested in suppressing every practice favourable to the independence of the nobles, was introduced. The struggle, nevertheless, subsisted for several centuries; sometimes the new regulations and ideas seemed to gain ground; sometimes ancient habits recurred: and though, upon the whole, the trial by combat went more and more into disuse, yet instances of it occur, as late as the sixteenth century, in the history both of France and of England. In proportion as it declined, the regular administration of justice was restored, the proceedings of courts were directed by known laws, the study of these became an object of attention to judges, and the people of Europe advanced fast towards civility, when this great cause of the ferocity of their manners was removed [22].

3. By authorizing the right of appeal from the courts of the barons to those of the king, and subjecting the decisions of the former to the review of the latter, a new step, not less considerable than those which I have already mentioned, was taken towards establishing the regular, consistent, and vigorous administration of justice. Among all the encroachments of the feudal nobles on the prerogative of their monarchs, their usurping the administration of justice with supreme authority, both in civil and criminal causes, within the precincts of their own estates, was the most singular. In other nations, subjects have contended with their sovereigns, and have endeavoured to extend their own power and privileges; but in the history of their struggles and pretensions, we discover nothing similar to this right which the feudal barons claimed and obtained. It must have been something peculiar in their genius and manners that suggested this idea, and prompted them to insist on such a claim. Among the rude people who conquered the various provinces of the Roman Empire, and established new kingdoms there, the passion of resentment, too impetuous to bear control, was permitted to remain almost unrestrained by the authority of laws. The person offended, as has been observed, retained not only the right of prosecuting, but of punishing his adversary. To him it belonged to inflict such vengeance as satiated his rage, or to accept of such satisfac tion as appeased it. But while fierce barbarians continued to be the sole judges in their own cause, their enmities were implacable and immortal; they set no bounds either to the degree of their vengeance, or to the duration of their resentment. The excesses which this occasioned, proved so destructive of peace and order in society, as to render it necessary to devise some remedy. At first, recourse was had to arbitrators, who by persuasion or entreaty prevailed on the party offended to accept of a fine or composition from the aggressor, and to drop all farther prosecution. But as submission to persons who had no legal or magisterial authority was altogether voluntary, it became necessary to establish judges, with power suflicient to enforce their own decisions. The leader whom they were accustomed to follow and to obey, whose courage they respected, and in whese integrity they placed confidence, was the person to whom a martial people naturally committed this important prerogative. Every chieftain was the commander of his tribe in war, and their judge in peace. Every baron led his vassals to the field, and administered justice to them in his hall. Their high-spirited dependants would not have recognised any other authority, or have submitted to any other jurisdiction. But in times of turbulence and violence, the exercise of this new function was attended not only with trouble, but with danger. No person could assume the character of a judge, if he did not possess power sufficient to protect the one party from the violence of private revenge, and to compel the other to accept of such reparation as he enjoined. In consideration of the extraordinary efforts which this office required, judges, besides the fine which they appointed to be paid as a compensation to the person or family who had been injured, levied an additional sum as a recompense for their own labour; and in all the fendal

kingdoms the latter was not only as precisely ascertained, but as regularly exacted, as the former.

Thus, by the natural operation of circumstances peculiar to the manners or political state of the feudal nations, separate and territorial jurisdictions came not only to be established in every kingdom, but were established in such a way, that the interest of the barons concurred with their ambition in maintaining and extending them. It was not merely a point of honour with the feudal nobles to dispense justice to their vassals; but from the exercise of that power arose one capital branch of their revenue; and the emoluments of their courts were frequently the main support of their dignity. It was with infinite zeal that they asserted and defended this high privilege of their order. By this institution, however, every kingdom in Europe was split into as many separate principalities as it contained powerful barons. Their vassals, whether in peace or in war, were hardly sensible of any authority, but that of their immediate superior lord. They felt themselves subject to no other command. They were amenable to no other jurisdiction. The ties which linked together these smaller confederacies became close and firm; the bonds of public union relaxed, or were dissolved. The nobles strained their invention in devising regulations which tended to ascertain and perpetuate this distinction. In order to guard against any appearance of subordination in their courts to those of the crown, they frequently constrained their monarchs to prohibit the royal judges from entering their territories, or from claiming any jurisdiction there; and if, either through mistake, or from the spirit of encroachment, any royal judge ventured to extend his authority to the vassals of a baron, they might plead their right of exemption, and the lord of whom they held could not only rescue them out of his hands, but was entitled to legal reparation for the injury and affront offered to him. The jurisdiction of the royal judges scarcely reached beyond the narrow limits of the king's demesnes. Instead of a regular gradation of courts, all acknowledging the authority of the same general laws, and looking up to these as the guides of their decisions, there were in every feudal kingdom a number of independent tribunals, the proceedings of which were directed by local customs and contradictory forms. The collision of jurisdiction among these different courts often retarded the execution of justice. The variety and caprice of their modes of procedure must have for ever kept the administration of it from attaining any degree of uniformity or perfection.

All the monarchs of Europe perceived these encroachinents on their jurisdiction, and bore them with impatience. But the usurpations of the nobles were so firmly established, and the danger of endeavouring to overturn them by open force was so manifest, that kings were obliged to remain satisfied with attempts to undermine them. Various expedients were employed for this purpose; each of which merits attention as they mark the progress of law and equity in the several kingdoms of Europe. At first, princes endeavoured to circumscribe the jurisdiction of the barons, by contending that they ought to take cognizance only of smaller offences, reserving those of greater moment, under the appellation of Pleas of the Crown, and Royal Causes, to be tried in the king's courts. This, however, affected only the barons of inferior note; the more powerful nobles scorned such a distinction, and not only claimed unlimited jurisdiction, but obliged their sovereigns to grant them charters, conveying or recognising this privilege in the most ample form. The attempt, nevertheless, was productive of some good consequences, and paved the way for more. It turned the attention of men towards a jurisdiction distinct from that of the baron whose vassals they were; it accustomed them to the pretensions of superiority which the crown claimed over territorial judges; and taught them, when oppressed by their own superior lord, to look up to their sovereign as their protector. This facilitated the introduction of appeals, by which princes brought the decisions of the barons' courts under the