صور الصفحة
PDF
النشر الإلكتروني

party, for whom he appeared, his hand was cut off, if he lost the battle.

From the custom of judicial combat, in those days of barbarity, arose what amongst the moderns is called a point of honour, which is at present, for very good reasons, moft religiously observed among gentlemen, without which no more decency nor order would be preserved amongst them, than what we observe amongst porters and watermen. Honour is a thing ng person can define, nor laws preserve unviolated : they only know it, who in their own breast contain it.

In judicial combat, the accuser began by declaring before the judge, that such a person had committed such an action : the accused immediately answered he lied; upon which the judge gave orders for the duel. It then became an established rule, that whenever a person had the lie given him, it was incumbent on him to fight; and, when a man declared he would fight, he could not afterwards depart from his word: if he did, he was condemned to a

penalty

B 3

[ocr errors]

penalty. Hence arose the rule, that whenever a person had engaged his word, honour forbad him to recal it.

Gentlemen, armed at all points, fought one another on horseback; villains fought on foot with a baston : hence à bafton was looked upon as the instrument of insults and affronts; becaufe to strike a man with it was treating him like a vilain. None but villains fought with their faces 'uncovered, so that none but they could receive a blow on the face : therefore a box on the ear, or a pull by the nose, became an injury that must be expiated with blood; because the person who received it had been treated as á villain. A gentleman was not obliged to fight a villain, except he him_ felf was the appellant. When a gentleman challenged a villain, he was 'obliged to prefent himself on foot, with buckler and bafton ; but if he came on horfeback, and armed like a gentleman, they took his horse and arms from him, stripped him to the shirt, and obliged him to fight in that condition with the villain,

The

The trial by water was highly ridiculous: the accused person was obliged to put his hand into boiling water, then put it into a bag or pocket made for the

purpofe, where it was to remain three days; and, if there appeared no marks of fire upon the hand, when it was taken out of the bag, the person was declared innocent : if the magiftrate found the hand burnt, he pronounced the person guilty.

The trial by hot iron was another barbarous custom, which however continued long in use here. The method was this : many red-hot bars of iron were put at proper distances :

the suspected person, blindfold, walked over that ground: if he touched one of the bars, he was guilty; if he escaped them all, it was looked upon as a sufficient proof of his innocence. The other forms by consecrated cake, &c. were equally absurd and superstitious. St. Lewis abolished the judicial combats in the courts of his own demesne, but not in the courts of his barons, except in the case of appeal of false judgment; for he found B 4

such

such difficulty to establish his institutions, that at length he was forced to leave the lords at liberty to follow which way they pleased, either the king's establishment, or the ancient practice; but when they had pitched upon one, in any case, they could not afterwards have recourse to another One inconvenience, and that a great one too, attended the disuse of judicial combat. Duels had introduced a public form of proceeding; so that the attack and the defence were equally known: but when people became more learned, writing more general, and the forms of proceeding according to St. Lewis were improved, and became more in practice, then a secret form of proceeding was introduced ; and as every thing before had been public, every thing now became secret : the interrogatories, informations, re-examinations, confronting of witnesses, recourse to proceedings on record, &c. were introduced. Law in its commencement was not intricate fcience, and was more governed by maxims of equity, which seem abvious

to

to common sense, than by numerous and subtile principles, applied to a variety of cases by profound reasonings from analogy; but the chicanery of law was foon introduced, and it became a science, in which knaves have the greatest interest. Then the world was filled with members and professors of the law, who were often strangers both to law and justice; then reason, justice, and common sense, were loft in volumes of writings ; knavery found knaves to support it, and law was made to approve what justice condemned; then what was designed for people of common understandings, like the plain instructions of a father to his family, became subtile, logical, quibbling or sophistry, and men were reasoned out of their property and fenfes, by nice fubtilties, fine founds, and well-turned periods.

The genius of the feudal government, uniform in all its operations, produced the same effe& in small as in great focieties: the territory of a baron was in miniature the model of a kingdom. The case was the same with

the

« السابقةمتابعة »