Page:Decline and Fall of the Roman Empire vol 6 (1897).djvu/485

OF THE ROMAN EMPIRE 463 already abolished or undermined in France -^ and England ; '^ and the appeal to the sword offended the sense of a civilised,-* and the temper of an unwarlike, people. For the future mainte- nance of their wives and children the veterans Avere grateful ; the priest and the philosopher applauded his ardent zeal for the advancement of religion and learning; and his vague promise of rewarding merit Avas applied by every candidate to his own hopes. Conscious of the influence of the clergy, Michael successfully laboured to secure the suffrage of that powerful order. Their expensive journey from Nice to Magnesia afforded a decent and ample pretence ; the leading prelates Avere tempted by the liber- ality' of his nocturnal visits ; and the incorruptible patriarch was flattered by the homage of his new colleague, who led his mule by the bridle into the town, and removed to a respectful distance the importunity of the crowd. Without renouncing his title by royal descent, Palaeologus encouraged a free discussion into the advantages of elective monarchy ; and his adherents asked, with the insolence of triumph. What patient would trust his health, or what merchant would abandon his vessel, to the hereditarij skill of a physician or a pilot } The youth of the emperor and the impending dangers of a minority required the support of a mature and experienced guardian ; of an associate raised above the envy of his equals, and invested with the name and preroga- tives of royalty. For the interest of the prince and people, without any views for himself or his family, the Great Duke consented to guard and instruct the son of Theodore ; but he sighed for the happy moment when he might restore to his firmer hands the administration of his patrimony, and enjoy the blessings of a private station. He Avas first invested Avith the title and prerogatives of despot, which bestowed the purple orna- 22 The judicial combat was abolished by St. Louis in his own territories ; and his example and authority were at length prevalent in France (Esprit des Loix, 1. xxviii. c. 29). 23 In civil cases, Henry II. gave an option to the defendant ; Glanville prefers the proof by evidence, and that by Judicial combat is reprobated in the Fleta. Yet the trial by battle has never been abrogated in the English law, and it was ordered by the Judges as late as the beginning of the last century. ^ Yet an ingenious friend has urged to me, in mitigation of this practice, i. That, in nations emerging from barbarism, it moderates the licence of private war and arbitrary revenge. 2. That it is less absurd than the trials by the ordeal, or boiling water, or the cross, which it has contributed to abolish. 3. That it served at least as a test of personal courage : a quality so seldom united with a base dis- position that the danger of the trial might be some check to a malicious prosecutor, and an useful barrier against injustice supported by power. The gallant and un- fortunate earl of Surrey might probably have escaped his unmerited fate, had not his demand of the combat against his accuser been over-ruled.