of action, had not
devised some means for taming the unruly passions of their fellows. With
this view, governments commenced by restricting within the narrowest
possible limits the cases in which it was lawful to prove or deny guilt by
the single combat. By the law of Gondebaldus king of the Burgundians,
passed in the year 501, the proof by combat was allowed in all legal
proceedings in lieu of swearing. In the time of Charlemagne, the
Burgundian practice had spread over the empire of the Francs, and not only
the suitors for justice, but the witnesses, and even the judges, were
obliged to defend their cause, their evidence, or their decision at the
point of the sword. Louis the Debonnaire, his successor, endeavoured to
remedy the growing evil by permitting the duel only in appeals of felony,
in civil cases, or issue joined in a writ of right, and in cases of the
court of chivalry, or attacks upon a man's knighthood. None were exempt
from these trials but women, the sick and the maimed, and persons under
fifteen or above sixty years of age. Ecclesiastics were allowed to produce
champions in their stead. This practice in the course of time extended to
all trials of civil and criminal cases, which had to be decided by battle.

[51] _Esprit des Loix_, liv. xxviii. chap. xvii.

The clergy, whose dominion was an intellectual one, never approved of a
system of jurisprudence which tended so much to bring all things under the
rule of the strongest arm. From the first they set their faces against
duelling, and endeavoured, as far as the prejudices of their age would
allow them, to curb the warlike spirit, so alien from the principles of
religion. In the Council of Valentia, and afterwards in the Council of
Trent, they excommunicated all persons engaged in duelling; and not only
them, but even the assistants and spectators, declaring the custom to be
hellish and detestable, and introduced by the devil for the destruction
both of body and soul. They added also, that princes who connived at duels
should be deprived of all temporal power, jurisdiction, and dominion over
the places where they had permitted them to be fought. It will be seen
hereafter that this clause only encouraged the practice which it was
intended to prevent.

But it was the blasphemous error of these early ages to expect that the
Almighty, whenever he was called upon, would work a miracle in favour of a
person unjustly accused. The priesthood, in condemning