be suspended by neglect or dissolved
by injury. The cognizance of marriages and testaments was blended with
religion, and usurped by the clergy: but the civil and criminal causes
of the nobles, the inheritance and tenure of their fiefs, formed the
proper occupation of the supreme court. Each member was the judge and
guardian both of public and private rights. It was his duty to assert
with his tongue and sword the lawful claims of the lord; but if an
unjust superior presumed to violate the freedom or property of a vassal,
the confederate peers stood forth to maintain his quarrel by word and
deed. They boldly affirmed his innocence and his wrongs; demanded the
restitution of his liberty or his lands; suspended, after a fruitless
demand, their own service; rescued their brother from prison; and
employed 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 subtle 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superseded by judicial combat; and the Assise of Jerusalem admits in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
affected the life, or limb, or honor, of any person; and in all civil
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; a