HISTORICAL ESSAY.

CHAPTER I.

JUDICIAL DUEL, OR WAGER OF BATTLE. GENERAL REMARKS.FRANCE. ENGLAND.

THIS form of combat is of great antiquity. It was authorized, says Blackstone, in the laws of Gundebald, A. D. 501, which are preserved in the Burgundian code. It was founded on the presumption that a brave man did not deserve to suffer, and that a coward did not deserve to live. Confined at first to some tribes of Germany, it was established, finally, in all the, monarchies of Europe. The appeal was directly to God, in the unfaltering faith that he would protect the party whose quarrel was just. If the person accused was victorious, he was acquitted as innocent; if he was defeated, he was pronounced guilty, and subjected to the punishment prescribed by law for his offence. If the accuser was vanquished, he was liable to the penalties that would have fallen upon the accused. In civil cases, also, this combat was the common arbiter between disputants to landed estates, and the various kinds of personal property; and even in suits commenced before the tribunals, a party dissatisfied with the proceedings might throw down his glove and challenge a judge to defend himself in the field. Several descriptions of persons were, however, exempted from the necessity of entering the lists to maintain their innocence, or to protect their property, and among them were women, ecclesiastics, young men under twenty and old men above sixty years of age, and men who were sick, infirm, or maimed; but all these could employ champions to fight in their vindication. Such are the general outlines of the judicial duel, as it existed in Europe for a considerable period. Essential modifications were made from age to

age, until at last it was limited in most nations to accusations of a criminal nature, and in some, to those which were punished with death.

The forms of preparation, and the combat itself, were solemn and imposing. No person, whatever was his wrong, could take vengeance in his own right, and during his first emotions of anger, as in the modern duel. There were judges, or other magistrates, before whom the injured party was required to relate his injuries, and of whom he was compelled to ask permission to prove, in duel, that his accusation was true. The accused was summoned before the same functionaries, and made answer to the charges preferred against him; and days, and even months, elapsed before the judges pronounced an opinion. Meantime, ecclesiastics and friends were commonly employed to persuade the parties to adjust their difficulty without a conflict. Övertures of reconciliation failing, and the accuser and the accused swearing to the truth of their original statements, they were conducted to a spot appointed, and allowed to try the issue between them in mortal strife.

In theory, as will be seen, the combatants always fought in a just cause. But it could not have been so in fact, nor was it so in many cases, even in the belief of the parties themselves, and those who in passion, or from unworthy motives, took up an unrighteous quarrel, resorted to various expedients to relieve their consciences, and to put themselves in the right. These evasive shifts are well illustrated in the story of a knight who entered the lists upon a case which he knew was wrong, and who, to change the issue, fled at the first onset. Turn, coward!" exclaimed his antagonist. "Thou liest!" retorted the knight: "coward I am none, and in this quarrel will I fight to the death; but my first cause of combat was unjust, and I abandon it."

66

Under such an institution, duels upon mere points of honor, and in which gentlemen defended their words and acts with their swords, were sure to follow and it is historically true, I am led to conclude,

that modern Duelling had its origin in

the Wager of Battle.

FRANCE.

As in England, the Judicial Duel was, at one period, the universal umpire in disputes between individual subjects.

All

cases, whether civil or criminal, were submitted to its decision, and the proceedings were conducted gravely, and in accordance with established rules. Parties were finally allowed, as elsewhere in Europe, to fight by champion, both to secure the rights of the aged and infirm, and to prevent the frequent risk of life by persons of rank. Thus sons often fought in the disputes of fathers, and nobles or gentlemen appeared in the lists in behalf of their sovereigns. A memorable instance of the latter occurred about the close of the twelfth century. A French champion went over to England to fight any one who should assert that Philip, king of France, had done wrong to King John, but fled ingloriously when confronted by his adversary; and, not daring to return to his native country after such proof of his cowardice, took shelter in Spain. The last case of judicial combat in France, authorized by the magistrates, was in the year 1547, between M. Jarnac and M. de la Chestaignertie.

ENGLAND.

The Anglo-Saxons, according to some writers, "allowed an appeal to the judgment of God" by single combat ; but others state that the Judicial Duel, or Wager of Battle, was unknown in England until the Norman Conquest, when it soon became a regular part of the jurisprudence of the country, and was regulated by certain fixed and solemn forms.

Henry the Second disliked the custom, and though he did not venture to abolish it in criminal cases, he still introduced a change which gave the right to either party in civil actions to choose between it and a trial by grand assize or jury. In the reign of John the judicial duel was revived; and that monarch kept a number of bravos to determine his disputes with his barons. In the time of Edward the Third this mode of adjusting controversies had attained its original influence over the public mind, and was generally preferred to any other form of judicial procedure.

But it became obsolete in the reign of Elizabeth. The last trial, in 1571, was a mere sham. Upon a dispute relative to the title to some manorial lands, the defendant claimed to maintain his possession by duel. The adverse party accepted the challenge, and the ordinary arrangements were made; but the Queen, to avoid bloodshed, procured a settlement between the disputants, permitting a mock combat only, in observance of the formalities of the law. There was a memorable attempt to ap

<

peal to the Wager of Battle in the year 1699, upon the acquittal of Spencer Cowper (brother of Lord Cowper), who was charged with the murder of Sarah Stout. Her heir at law moved to set the verdict aside, and after various solemn hearings the motion was allowed; but the proceedings were finally quashed in consequence of informality, and the law officers, disinclined to allow the first writ, refused to issue another; and the matter was thus quietly disposed of without a combat.

Strangely enough, we hear of the judicial duel in connection with the controversies which preceded and caused the American Revolution. The bill introduced into Parliament in 1774 for the improved "administration of justice in the Province of Massachusetts Bay," disallowed or abrogated the duel in cases of murder; and Dunning, Burke, and others, in their opposition to the measure, commented upon this clause of the bill with severity. The former was much displeased. "I rise," he said, "to support the great pillar of the constitution, the appeal for murder; .... it is called a remnant of barbarism and Gothicism; the whole of our constitution, for aught I know, is Gothic." And remarked Burke: "This is a part of a system of jurisprudence which ought to be viewed as a whole." The ministry allowed the obnoxious clause to be stricken out, with an understanding that the subject should be considered in a general law at an early day.

In 1818 we hear again of the judicial duel in England. William Ashford accused Abraham Thornton of the murder of his sister. Thornton threw down his glove, according to ancient custom, and claimed to disprove his innocence by combat. A case so remarkable in the nineteenth century attracted universal attention, and in due time it was carried before Lord Chief Justice Ellenborough, and the other judges of the highest tribunal of the realm, for decision. At the hearing, the judges were in their robes, the lawyers in their gowns and wigs. The court affirmed Thornton's right; but Ashford was a boy, and declined the challenge. The year following (1819) the WAGER OF Battle was abolished by an act of Parliament.

DUELLING AMONG NATIONS OF ANTIQUITY.

In the course of my reading I have often met the remark that duels were unknown in Greece and Rome, and, indeed, in any nation of antiquity. If a duel be "a combat between two," and if a duellist be "a single combatant," then the writers who make the statement are mistaken, since the practice of adjusting public and private quarrels by single combat has prevailed in every age and among every people.

The meeting between David and Goliath, as recorded in sacred history; the mortal strife between Jonathan and Pudens, mentioned by Josephus; the many combats of Homer's heroes; the memorable combat between the three Horatii and the three Curiatii; the combats between Artebarus, the noble Roman, and the barbarian, and of Sloza with his antagonist, were all duels; and show conclusively that duelling was not unknown to the Hebrews and to the people of the ancient republics. Among the Arabs traces of the custom are to be found as early as the middle of the seventh century, when Ali, son-in-law of Mohammed, and one of his successors, challenged Moawiyah "to appeal to the decision of God," and in a duel to end their disputes.

Duelling in Europe was introduced by the nations of the North, and soon became universal. But it is said that no instance occurred for the redress of private wrongs, or for the gratification | of private hate, prior to the year 1528, and to the celebrated cartel of Francis the First of France to the Emperor Charles the Fifth. Such, however, is not the fact. Previous to this challenge duels were fought by individuals, and for causes not recognized or allowed under the system of judicial combat which formed a part of the jurisprudence of the time. That the course of the two monarchs gave a sanction to the duello, and that their example induced gentlemen of rank, upon affronts and injuries, to resort to the sword more than ever before, is undoubtedly true; and it may be admitted, also, that modern duelling, as far as it