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28.17. 17. Particular Notions of our Ancestors.

It is astonishing that our ancestors should thus rest the honour, fortune and life of the subject, on things that depended less on reason than on hazard, and that they should incessantly make use of proofs incapable of convicting, and that had no manner of connection either with innocence or guilt.

The Germans, who had never been subdued, [83] enjoyed an excessive independence. Different families waged war with each other [84] to obtain satisfaction for murders, robberies or affronts. This custom was moderated by subjecting these hostilities to rules; it was ordained that they should be no longer committed but by the direction and under the eye of the magistrate. [85] This was far preferable to a general licence of annoying each other.

As the Turks in their civil wars look upon the first victory as a decision of heaven in favour of the victor, so the inhabitants of Germany in their private quarrels considered the event of a combat as a decree of Providence, ever attentive to punish the criminal or the usurper.

Tacitus informs us that when one German nation intended to declare war against another, they looked out for a prisoner who was to fight with one of their people, and by the event they judged of the success of the war. A nation who believed that public quarrels could be determined by a single combat might very well think that it was proper also for deciding the disputes of individuals.

Gundebald, King of Burgundy, gave the greatest sanction to the custom of legal duels. [86] The reason he assigns for this law is mentioned in his edict, "It is," says he, "in order to prevent our subjects from attesting by oath what is uncertain, and perjuring themselves about what is certain." Thus, while the clergy declared that an impious law which permitted combats, [87] the Burgundian Kings looked upon that as a sacrilegious law which authorized the taking of an oath.

The trial by combat had some reason for it, founded on experience. In a military nation, cowardice supposes other vices; it is an argument of a person's having deviated from the principles of his education, of his being insensible of honour, and of having refused to be directed by those maxims which govern other men; it shows that he neither fears their contempt, nor sets any value upon their esteem. Men of any tolerable extraction seldom want either the dexterity requisite to co-operate with strength, or the strength necessary to concur with courage; for as they set a value upon honour, they are practised in matters without which this honour cannot be obtained. Besides, in a military nation, where strength, courage and prowess are esteemed, crimes really odious are those which arise from fraud, artifice, and cunning, that is, from cowardice.

With regard to the trial by fire, after the party accused had put his hand on a hot iron, or in boiling water, they wrapped the hand in a bag and sealed it up; if after three days there appeared no mark, he was acquitted, Is it not plain, that among people inured to the handling of arms, the impression made on a rough or callous skin by the hot iron or by boiling water could not be so great as to be seen three days afterwards? And if there appeared any mark, it showed that the person who had undergone the trial was an effeminate fellow. Our peasants are not afraid to handle hot iron with their callous hands; and, with regard to the women, the hands of those who worked hard might be very well able to resist hot iron. The ladies did not want champions to defend their cause; and in a nation where there was no luxury, there was no middle state. [88]

By the law of the Thuringians [89] a woman accused of adultery was condemned to the trial by boiling water only when there was no champion to defend her; and the law of the Ripuarians admits of this trial [90] only when a person had no witnesses to appear in justification. Now a woman that could not prevail upon any one relative to defend her cause, or a man that could not produce one single witness to attest his honesty, was, from those very circumstances, sufficiently convicted.

I conclude, therefore, that under the circumstances of time in which the trial by combat and the trial by hot iron and boiling water obtained, there was such an agreement between those laws and the manners of the people, that the laws were rather unjust in themselves than productive of injustice, that the effects were more innocent than the cause, that they were more contrary to equity than prejudicial to its rights, more unreasonable than tyrannical.

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