The national era. [volume] (Washington [D.C.]) 1847-1860, 1851-03-20
From the Friend of Youth.
DWELLING BETWEEN MEN AND NATIONS.
BY DIR. WILLIAM ELDER.

|
In past times il was much in USE under va
nous forms and upon various grounds and
pretences. In our day it gets but little counte-
nance from public opinion, and the laws of
most civilized countries declare that the killing
OF man in a duel is murder, and shall be
punished as such. But the duel was not only
allowed in England in early times, hut it was
actually appointed and employed as a legal
method of trial in certain kinds of lawsuits
about property, and in criminal charges gen
orally. Indeed, this " trial by battle" as IT
was called, was not abolished by law until the
year 1917, though il had not been actually
used since the time of Charles the First, or
about two hundred years ago. Ii was intro
duced into English law by William the Con
queror, (n the year 1860 who brought 1t
with him from Normandy, as a part OF that
barbarous and superstitious system OF military
government which he established upon the
RUNS Of the ancient Saxon Institutions. The
Germans, when they Were first known to the
| Romans, had this custom; and among the
Cloths, In the country now called Sweden, 1t
was, IN like manner, mode OF trying suits at
law. The first written authority for these judi
cIal combats is found in the laws OF Burgundy,
A. ID. 500. In England for six hundred years,
down I'LL a century after the Reformation, the
trial by battle was in actual use under the laws
| OF the land. Ii was resorted TO as an appeal TO
:" the God of battles," in the belief that he
would give the victory TO the party that had
the right. The cases tried in this way were OF
the kinds in which there were some uncertain
ty, or difficulty, or impossibility of settlement
by courts and juries upon the usual kinds of
evidence and proof-in disputed land titles, for
instance. In that early time, written deeds and
wills were not in use; and when claims were
set up which were so old that the witnesses
were dead, or of a kind that the courts could
not certainly determine, they were referred to
this supernatural sort of decision. In criminal
charges, if the offender was caught in the act,
he was not allowed his appeal to arms but
whenever there was doubt, he might chal-
lenge his accuser TO decide it by combat One
of the Oldest English law-writers justifes this
custom by the example OF the combat between
David, on the part Of the Israelites, and Coli
ath, the champion OF the Philistines. So the
Bible has been quoted in past times as authori-
~ for wrong doing, and so it is still perverted
and abused in our own day.
In civil cases-that is, in suits about prop
feny-Ine batrle was not fought by the parties
TO the suit, but by their champions, hired or
otherwise obtained for the purpose. 1t is very
| likely that DULLES were hired then as lawyers
are now--to beat each other, only in differ
ent way-a hard head then, well-flied one
now-stout arms then, nimble tongue
now; and, in both, willingness TO fight for
either side of any case. In criminal cases, the
combat was required to be in person, and not
dy attorney or champion, which means the
same thing. But if either the accused or ac-
cuSer were woman, priest, or under TWEEN
ty-one years OF age or over sixty, or lame or
blind, such person might refuse the challenge,
and have the case tried by a jury.
When the battle was appointed and the com
batants entered the field, they took an oath in
which each declared that his cause was just
and where the champions fought for hire, they
took the same oath, and furthermore swore
| that they used no magic, sorcery, or enchant-
ment The precise words of this last declara-
ton Were these" Hear this, we justices, that
have this day neither eat, drank, nor have
upon me neither lone, stone. nor grass, nor
any enchantment, sorcery, or witchcrafi,
whereby the law of God may be abased, or the
law of the devil exalted. So help me God and
his saints"
The Judges attended these legal combats in
their robes of office, that they might witness
the result, and give judgment in the suit ac-
deadly weapons, and death seldom ensued.
Each party was furnished with baton or
| staff ell long, (about four feet, y and a four
cornered leathern target for defence. Ii the de-
| PENDANT in the action could maintain his de-
fence till the stars appeared in the evening, or
killed his antagonist, or forced hun to yield and
cry 90 craven,n his defence was Judged com.
plete If he yielded, or was killed, his case
was decided against him. In criminal charges,
if the accuser killed fhe accused, it was taken
for the decision of Providence; or if he pressed
him so hard that he could not or would not
| fight any longer, he was condemned, and pun
shed forthwith as guilty On the other hand,
| II the accuser was conquered, he was pro-
nounced Infamous, and could never be a Juror
or witness in any case afterwards, because,
as il was said he had sworn to falsehood,
and charged an innocent man with crime.
| All the reasoning for this trial by battle, or
| legal duel, turned upon the presumption
that in the kind Of cases where human iudg-
ments Were doubtful, the Divine Providence
would decide the appeal as the real justice of
the case required Wars between different
nations, and armed rebellions against despotic
Governments, rest upon the same notion of
presumed interference by Providence in dis
putes where there are no earthly courts or
Judges to decide between the parties. The
| trial by battle is the way that nations "go TO
law " now One would think that the result
of wars being so often manifesty against the
right, and in favor of the wrong, the world
would give up this supersttious notion but it
is, nevertheless, true that the weaker side at
least, and the oppressed party, in all wars and
revolutions, always take up arms in some con-
fdence thai the God of battles " will some
how fight for the right. And curiously
enough, too, even where the opposed armies
are OF the same religion, and even Of the same
nation also, they have clergymen, called army
chapans, who daily make public prayers to
the same God for victory to both sides If
these preachers in the opposite camps could be
brought together into one prayer meeting, each
party calling upon the Supreme Being for the
overthrow and destruction of the other, they
would appear to us as they must appear TO the
angels. Good angels must weep and evil an
gels laugh at such sight.
The revoluonists all over Europe, IN the
years ls4S and lS49, went to battle against
kings and tyrants in this belief OF the Divine
assistance in killing their oppressors. Yet
they were everywhere beaten by the superior
force of their enemies, or by divisions and
treachery among themselves.
SO far as we have been considering the duel
between individuals and between nations, in the
cases whereitis either believed or pretended that
Heaven will decide the trial according to JUS
tice, we need add no words to show how idle
and foolish such a faith is. The words of
| Jesus to Peter in the Garden Of Getnsemane
are his answer to this whole question" Put
up thy sword into its place; for all they that
take the sword shall perish by the sword"
He would not employ or authorize one man to
take the life Of another. He that enjoins the
forgiveness of injuries and the love Of enemies
can never help us TO kill them. Besides. He
adds that no has unore than twelve lepiOns of