Particular Notions of our Ancestors

IT is astonishing that our ancestors should:

• rest the honour, fortune, and life of the subject, on things that depended less on reason than on hazard, and
• incessantly make use of proofs incapable of convicting, and that had no manner of connexion either with innocence or guilt.

The Germans were never subdued and so enjoyed excessive independence.

Different families waged war with each other to obtain satisfaction for murders, robberies, or affronts.

This custom was moderated by subjecting these hostilities to rules.

It was ordained that hostilities could only be committed by decision of the magistrate.

This was far preferable to a general licence of annoying each other.

Trial By Combat

The Turks in their civil wars look at the first victory as the divine decision in favour of the victor.

Likewise, the Germans 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 tells us that when a German nation intended to declare war against another, they looked out for a prisoner to fight with one of their people. This would then decide the success of the war.

A nation who believed that public quarrels could be determined by a single combat, would also think that it was proper also for deciding private disputes.

Gundebald, king of Burgundy, gave the greatest sanction to the custom of legal duels.

He says that it is to prevent our subjects from attesting by oath what:

• they are not certain of
• they know to be false.

Thus, while the clergy declared that an impious law which permitted combats; the Burgundian kings looked upon that as a sacrilegious law, which authorized the taking of an oath.

The trial by combat was logical in a military nation where:

• cowardice supposes other vices
• strength, courage, and prowess are esteemed
• odious crimes are those which arise from fraud, artifice, and cunning, that is, from cowardice.

Trial By Hot Iron

A trial by fire is where the party accused put his hand on a hot iron, or in boiling water.

• They then wrapped the hand in a bag, and sealed it up.
• If after 3 days there appeared no mark, he was acquitted.

Is it not plain, that amongst 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 shewed that the person who had undergone the trial was an esseminate fellow. Our peasants are not afraid to handle hot iron, with their callous hands.

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.

By the law of the† Thuringians, a woman accused of adultery was condemned to the trial by boiling water only when there was no champion to defend her.

The law of the Ripuarians admits of this trial, only when a person had no witnesses to appear in his justification.

A woman, that could not prevail upon any one relation to defend her cause, or a man that could not produce one single witness to attest his honesty, were, from those very circumstances, sufficiently convicted.

Thus, the trial by combat and the trial by hot iron and boiling water showed:

• an agreement between those laws and the manners of the people
• that the laws were 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 and more unreasonable than tyrannical