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Solomon, who was much extolled for his wisdom, said, that an evil tongue wounds like a two-edged sword; and if it wounds so deep, it it may endanger a man's life. And David, who was a man after God's own heart, as we are told, accepted the challenge of Goliah, who had vilified and dishonored the host of Israel; nor could he brook the scandalous railing of Shimei, although he did not think it prudent, on this occasion, to resent the offence in his own person.

There was formerly a custom, which long prevailed, of challenging the combat for title of lands, where the right was doubtful; as Corbins challenged the combat of Orsua, for the title of a lordship, which was performed upon a solemn day of tilts and tourna

ments.

In England, Edmond Ironside fought a duel with Canutus the Dane, for a kingdom.

In Edward the Third's time, there was a combat between the Earl Montfort and the Earl of Blois. Their contest was for the Duchy of Brittany; on which occasion thirty English fought against thirty Brittans. Likewise, upon the accusation of life between the Lord Henry Bullinbrooke, Duke of Harford, and Mowbray, Duke of Norfolk. Also between Sir John Ansley and one Catterington, whom Ansley charged with treason, and proved it upon him by being victorious. Navarroy's having accused Welsh of Grensby, of treason, was by him vanquished, and thereupon confessed he had maliciously wronged Welsh; whereon he was hanged and drawn.

These, and divers other examples, show the superstitious reliance on this kind of decision. Thus former ages did blindly and absurdly countenance this kind of combat, believing that Providence countenanced these conflicts in favor of the injured party, and they gave free liberty to challenge their adversaries in the upholding their honor and right. They would not make it a thing common, neither would they urge it on petty occasions, as now-a-days it is done; when on giving or receiving the lie, or on a much slighter offence, the life of one or the other, indeed of both, is at stake. But although, in fact, the lie in itself is a very insufferable thing, yet it is a thing, the truth of which may be easily construed; for if he that gives the lie doth speak falsely, the dishonor redounds to himself, and should need no greater punishment; but if he to whom the lie is given, prove guilty of it, it seems unconscionable and dishonorable to challenge him to do you right, who hath told you the truth, (though he that gives the lie, notwithstanding it be on just grounds, evinces rude manners and ill-breeding to excess.) But this humor, some think, we borrowed from the French, which they have held for a custom

ever since Francis, the French king, (as before mentioned,) upon a breach of faith, sent the lie direct to the Emperor Charles the Fifth, thereby to draw him to a personal combat; which afterwards grew to an humour, through the whole realm, to make the lie mortal; whereas, formerly, none would presume to challenge a man, unless it were upon some peremptory abuse done to their persons, or to their honors or reputations; whereby it was so far eclipsed, that it was irrecoverably stained, unless they extricated themselves by this means; but before they adventured to challenge their adversary, they sought out the best means to gain the truth, and used the fairest means they could devise to bring their enemies, by rational measures, to confess the abuse; so that the sword was their last refuge.

Farther, those that were injured, if they were constrained to challenge their adversaries to the field, on account of their perverseness and reluctance to make atonement, yet they banished all envy, hatred, and malice, not once admitting any of these to be the subject of their blows; the grounds of their challenging being rather a thirst for honor then a thirst for blood.

In the next place, the ancients attributed a great deal of honor to such persons as were injured, yet were not furious and speedy to challenge the enemy, but would wait a convenient time to see if he would come in, and acknowledge his abuses; for it was not considered a dishonor, if the party offended did challenge the offender within a year and a day. But of all the dishonor that might be done to a gentleman, the lie, with a blow, was held the greatest, and deserved the most immediate rebuke; because they esteemed a blow an absolute undervaluing and high disgrace, which had no circumstances of argument belonging to it, as it evidently evinced a voluntary, envious, or malicious act, in which there could be no plea of mitigation for such abuses, which they conceived there might be in any other case, and, being argued, might be acknowledged and accommodated.

So far touching the early customs and opinions on this subject. King James, in his observations and strictures on the combat, and excellent regulations for preventing duels, displays great precision, and a very refined judgment and perspicuity; the whole of which seems to be the production of his own pen; yet it did not answer the ends for which it was calculated.

He observes (page 52,) touching the first branch of actual offences, by blows with the hand, stripes with a rod, bruises with a dagger, or hurt with a rapier, his purpose was out of the sense of honor, (as it is expressed,) to extend his punishment as far above those ordinary degrees which are now in use, as the facts themselves exceed all humanity; wherefore he leaves the proportions

and degrees of satisfaction for such inhuman wrongs, to the caution and temper of the earl marshal, or the lords lieutenants, or their deputies, &c.

One remedy proposed for preventing the duel, was banishment from court: what good effect this might have produced, was probably never tried. A remarkable instance occurs of its being neglected that of Sir Edward Sackville, who afterwards succeeded to the earldom of Dorset. He had killed the Lord Bruce in a duel, attended with the strongest marks of premeditation: yet he was not only permitted to appear at court, but was successively advanced to the earldom the same year, and the following to a great variety of honorable and lucrative offices of importance.

Institution, page 52.-It is his majesty's pleasure, that the very least abuses should not pass without due correction; not so much as the trip of a foot, the thrust of an elbow, the making with the mouth, or with the hand, an uncivil sign; and although they neither bruise the bcne, or maim the part, yet since the malice, the disgrace, and scorn, in these things, do so far exceed the fact itself, (expressing the base and disgraceful reckoning, which they who offer these contempts make of the person on whom they brave them) they are to be taxed and corrected by the lords, upon like terms, and with like severity.

As for seconds, which these combatants generally make use of, (to make the best of them, saith his majesty, page 100) they are only stout assistants to bad ends, and their supporters being restrained upon pain of so deep a penalty, they cannot but shrink sublato principali, omnia cadant accessario. But between the actor and the abettor the difference cannot be great; wherefore his majesty doth find, by the modern use of France, the Archduke's dominions, and many states in Italy, that the carriers of challenges, and they that bring back answers, are both condemned and punished in a very high degree, upon a violent presumption, that they either blow the coal, or endeavor not to quench the flame. Wherefore his Royal Majesty lays the same proportion of punishment upon the seconds, the carriers, abettors, and accessaries, as upon the principals themselves.'

"As for my own advice to gentlemen," he adds, (sect. 9, chap. 9,)" having three several times tasted of this bitter fruit, which hath grown by corruption in the field, not so well then understanding myself, as riper years and more mature considerations hath since engraven in me, I do rather wish a fair reconciliation than a foul fray; for the reconciling of an enemy is more safe than to conquer him: my reason is, because victory over him not

This however bore rather scverely upon seconds who had used their utmost endeavors to bring about a friendly accommodation. VOL. XII.

Pam.

NO. XXIII.

G

only deprives him of his power, but reconciliation of his will; and there is less danger in a will that will not hurt, than in a power that may not: and again, power is not so apt to tempt the will, as the will is studious to find out means to provoke the power. If the enemy be base, it is a dishonor to meddle with him if he be worthy, let his worth persuade thee to atonement; for he that can be a worthy enemy, if once reconciled, may be a worthy friend; for as it is in a just cause he dares fight against thee, in the like cause he will as valiantly fight for thee.

"It is policy to be reconciled to a base enemy, be it but to charm his slanderous tongue, and use him as a friend in outward fairness; but beware of him as an enemy, apt to resume his base quarrel; for a base foe cannot but prove a false friend.”

This inconsistent custom appears to have received its first establishment, and adoption of the ordeal trial, by a positive law from (adapted and enacted by) the Burgundians, Anno Dom. 501. The purport of which law was as follows:-" Being fully convinced that many of our subjects suffer themselves to be corrupted by their avarice, or hurried on by their obstinacy, so as to attest by oath, what they know not, or what they know to be false. To put a stop to such scandalous practices, when two Burgundians are at law, if the defendant shall swear that he owes not what is demanded of him, or that he is not guilty of the crime laid to his charge; and the plaintiff, on the other hand, not satisfied therewith, shall declare, that he is ready to maintain sword in hand the truth of what he advances; if the defendant does not acquiesce, it shall be lawful for them to decide the controversy by dint of sword. This is likewise to be understood of the witnesses of either party, it being just that every man should be ready to defend with his sword the truth which he attests, and to submit himself to the judgment of Heaven. If one of the plaintiff's witnesses shall be killed, all the others shall be condemned to pay immediately 300 solodi.-If the defendant be overcome, the plaintiff shall receive three times the sum which he demanded. It is our will and pleasure, that the law be strictly observed and executed, that our subjects may conceive an utter aversion to the detestable sin of perjury. Given at Lyons, June 27,-Avienus being Consul,that is, An. Dom. 501." See Lex Burgund. Tit. 45.

The above law soon prevailed amongst the Francs, and all other nations of Gaul.

In the infancy of the northern incursions, (the learned Dr. C. Moore, in his excellent exordium, said upon the subject,) all was rude and uncivilised. When the policy and number of these emigrants began to feel themselves established in their new settlements, the wisest amongst them naturally turned their thoughts towards the

improvement of their internal policy, which they found miserably defective, and entirely under the control of an imperious and licentious aristocracy. The judicial combat was a favorable idea with these haughty chieftains, who disdained to submit the decisions of their own causes to any thing but their own swords. "We submit not our competitions unto the judgment of men, (was the high strain of their language,) and even among the gods, we appeal only to Mars."

Regardless therefore of law and magistracy, they committed all manner of outrages and enormities with impunity. They were unlettered, and ignorant to a degree of stupidity: they were fierce, untractable, and cruel. Personal valor and the use of arms were the only points they studied; and these they employed to no better purpose than more effectually to prosecute their brutal appetites, and destructive vengeance. They carried these oppressive principles to so dangerous and unwarrantable a height, that few were safe from their lust and barbarity. The administration of public justice was totally impeded, whilst each imperious lord, not only made himself the determiner of his own cause, but he claimed the sole power of judgment over all his vássals. These he uniformly defended in their depredations on others, but held them himself in the most abject state of slavery.

A lordly chieftain seldom appeared abroad in those times unless in pursuit of plunder and free booty, or to gratify his unbridled passions of revenge or lust. This being accomplished, he retired, in all haste, within the gloom and fortresses of his impregnable castle; which was strongly fortified against the admission of his rivals, his pursuers, or his lawful sovereign.

These evils were growing intolerable. Every kingdom was distracted by the private quarrels and petty wars of its nobility. It was impossible that any state could have long existed under the rapine and violence, the extortion and anarchy, that were daily exercised; but nations and governments, (like the human race,) have their different stages of civilization, adapted to the different periods of their existence. The era of cultivation and polished manners must gradually advance in its own due time: it will no more be forced forward before its proper season, than manhood can be immediately grafted upon infancy, without passing through the stages of childhood and youth. An Alfred and a Charlemagne seem to have been born out of due time; that is, before their respective kingdoms were sufficiently matured for the reception of such shining characters. But the age of political manhood was not yet arrived, in which a proper remedy could be applied, to stop the progress of these enormities through European nations. War and the single combat were still the ruling passions of the

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