Page:Decline and Fall of the Roman Empire vol 6 (1897).djvu/341

OF THE ROMAN EMPIRE 319 of his liberty or his lands ; suspended, after a fruitless demand, their own service ; rescued their brother from prison ; and em- ployed every weapon in his defence, without offering direct violence to the person of their lord, which was ever sacred in their eyes.^^*^ In their pleadings, replies, and rejoinders, the advocates of the court were subtile and copious ; but the use of argument and evidence was often superseded by judicial combat ; and the Assise of Jerusalem admits in many cases this barbarous institution, which has been slowly abolished by the laws and manners of Europe. The trial by battle was established in all criminal cases which Law of affected the life or limb or honour of any person ; and in all civil comets transactions of or above the value of one mark of silver. It appears that in criminal cases the combat was the privilege of the accuser, who, except in a charge of treason, avenged his personal injury or the death of those persons whom he had a right to represent; but, wherever, from the nature of the charge, testimony could be obtained, it was necessary for him to produce witnesses of the fact. In civil cases, the combat was not allowed as the means of establishing the claim of the demandant ; but he was obliged to produce witnesses who had, or assumed to have, knowledge of the fact. The combat was then the privilege of the defendant ; because he charged the witness with an attempt by perjury to take away his right. He came, therefore, to be in the same situation as the appellant in criminal cases. It was not, then, as a mode of proof that the combat was received, nor as making negative evidence (according to the supposition of Montesquieu) ; ^^~ but in every case the right to offer battle was founded on the right to pursue by arms the redress of an injury; and the judicial combat was fought on the same principle, and with the same spirit, as a private duel. Champions were only allowed to women, and to men maimed or past the age of sixty. The consequence of a defeat was death to the person accused, or to the champion or witness, as well as to the accuser himself ; ^^ Entre seignor et homme ne n'a que la foi ; . . . mais tant que I'homme doit a son seignor reverence en toutes choses (c. 206). Tous les honimes dudit royaume sont par la dite Assise tenus les uns as autres . . . et en celle maniere que le seignor mette main ou face mettre au cors ou au fi(5 d'aucun d'y^ius sans esgard et sans connoissance de court, que tous les autres doivent venir devant le seignor, &c. (212). The form of their remonstrances is conceived with the noble simplicity of freedom. i^'^See I'Esprit des Loix, 1. xxviii. In the forty years since its publication, no work has been more read and criticized ; and the spirit of inquiry which it has excited is not the least of our obligations to the author.