« السابقةمتابعة »
the principle' was still recognised upon which the mode of trial was founded ? Let it be once granted that the Deity interposes his authority, in this direct and visible manner, and what bounds will you prescribe to the forms in which that interposition shall be manifested ? The accused person may be required either to plunge his arm into a vessel filled with boiling water, to lift a red-hot iron with his naked hand, to walk barefoot over burning plough-shares, or to submit his cause to the issue of a trial by single combat ; but upon the principle that he who escapes unhurt, or comes off victorious, stands acquitted by the judgment of heaven, we must be compelled to pronounce all these modes of trial equally efficacious.' What, then, could have been the motive for adopting the trial by judicial combat, in preference to those other forms of ordeal, which custom had already established, if nothing depended upon personal courage or bodily strength, and if the final decision of the contest was ascribed to a particular interposition of Providence, in favour of the individual who had right and justice on his side? To me, Mr. Editor, I confess, it appears far more consonant with the manners of a barbarous age, to retain such customs as time has sanctioned and rendered venerable, than to adopt new ones in their stead, unless some very urgent cause leads to the change, and renders it absolutely and indispensably necessary. Being unable, however, in the present instance, to assign any such cause, and having no direct historical testimony to allego in proof of the assumed innovation, it is natural to look elsewhere for the origin of the practice in question; and, from various circumstances connected with the history of ancient Europe, I am induced to believe that this custom, or something very similar to it, prevailed there from the earliest times. This point Dr. Robertson seems inclined to concede in the “ proofs and illustrations” subjoined to the first volume of his history,* where, though he still continues to assert, “ that appeals to the justice of God by the experiments with fire and water, &c. were frequent among the people who settled in the different provinces of the Roman Empire, before they had recourse to the jadicial combat,” he nevertheless allows, that “the judicial combat seems to have been the most ancient mode of terminating any controversy among the barbarous nations in their original settlements.” Now, upon the supposition, Mr. Editor, that this practice had been once discontinued, and all traces of it lost, I feel totally unable to account for its subsequent adoption, to the exclusion of other long-established forms, on which results equally efficacious and infallible were supposed to depend ; and hence arises a presumption that, instead of having been for a while relinquished, without any apparent or probable cause, the practice alluded to only underwent some modification when the trial by ordeal was introduced, and, from being a private and unauthorised institution, then received for the first time the direct sanction of the law,
M. de Montesquieu, in his observations on the trial by judicial combat, uniformly speaks of it as the revival of an ancient custom, and supposes it to have been derived from the spirit of the barbarian laws,t though he does not attempt to trace it higher than the tenth or eleventh century. In order, however, to ascertain its true origin, we must extend our researches, I ima..
* P. 349. + De l'Esprit des Loix, liv. xxviii. chap. 18.
gine, to a much earlier period than this, and transport ourselves back to the time when the right of avenging injuries and inflicting punishment was vested in the hands of individuals, and depended more upon private caprice than any authorised or acknowledged form of law,
Many truees of this singular state of society are still preserved in ancient historical records; and it is only a doctrine of late introduction that public justice ought up supersede the right of individual revenge.
In the infancy of modern jurisprudence, any person who chose was allowed to signify publjely the law to which he gave the preference; and by the prescriptions of that law he was obliged to regulate his conduct, without being bound to comply with any practice authorised by other codes of law. The sentence of a judge, in these times, might be set aside by any one who had hardihood sufficient to gall in question the equity of his decision, and courage to substantiate the charge by an appeal to arms; por could the judge, without illa famy, refuse to accept the challenge, or decline to enter the lists against such an adversary. In what, then, Mr. Editor, do such lawless proceedings differ from the rude eustoms of barbarians and savages, except that in the ope case, each individual is to avenge his own wrongs, without appealing to any authorised tribunal for redress; and, in the other, when dissatisfied with the result of a legal propess in a court of justice, or unwilling to trust his cause to the decision of competent judges, he takes the law into his own hands, and closes the business in a summary way by endangering both his owo life and that of his accuser? Is it, Sir, in the nature of things possible, that 4 eustom which bids defiance to all the established forms of law, should be allowed to gain a footing in a civilised country, unless it owed itş birth to times far remote, and to circumstances over which decrees and statutes possessed no kind of controul ? Could senates authorize a prac. tiee so absurd and mopstroys, unless it had originated among a people with oyt laws and without magistrates, and had been rendered familiar to them by inveterate habit and long experience ? No, Mr. Editor, the supposition iş top fallacious to be indulged even for a moment; and if the existence of the praotige in question is to be accounted for upon any known principle, it xvill be found, I am convinged, to have originated in an age far distant from that to which it has been traced by Robertson and Montesquieu.
Nations, do their infaney, have always some features in common, as chil, dren, in different countries, have certain resemblances of figure and manners dependant upon their age, Time and accident, however, exert a perceptible inhuenee over the habitş of individuals and produce an endless variety of character among them; and in like manner, whole bodies of people, when they emerge from a state of nature and lose their ancient simplicity, adopt particular customs, and yield to the influence of external circumstances, so that their characters become as different, in the course of time, as the soil and climate of the land ia which they dwell. This faet will account, in a great measure, for the variety which now exists in the laws, manners, and customs of different European nations, which formerly belonged to the same stock, and submitted to the same form of government; and if the origin of
* Leg. Longob. lib. ii. tit. 55, $ 38.
† Robertson's list. of Charles V. yol. i. p. 62.
own leader ; Appeal of Mwder and Thal by Battle. the appeal of murder, and trial by single coinbat, cai now by any possible means be traced, this will assuredly afford the only true principle of so* lution
Let us figure to ourselves a nation in its earliest and rudest state, where every father of a family exerts an unlimited authority over his children and dependants, and claims them as his own exclusive property. Under suek circumstances, each clan of course becomes attached to and, as individual security can result only from a strong principle of union among the body, an injury offered to one must neeessarily be regarded as the common cause of all. If any person, for instance, should attempt; by violent means, to deprive his neighbour of the fruits of his industry, it would then become his duty to oppose force to fórée. If, however, his antagonist, being stronger or better armed than himself, should prévail, he would then seek the means of redress among the members of his own olan, and would call upon them to unite with him in taking vengeanoe on the aggressor. If, again, his property should be taken away by stealthy or any of his family should meet with a violent death, there being no regular tribunal to which he can appeal, he would be under the necessity of claiming for himself the right of exacting punishment from the offender; and though bireuinstandes, in such a case, must of course determine how far it would be politie of safe for him to proceed, yet individual security would require that, as a general principle, restitution should be made to the uttermost, änd blood should be rea paid with blood.
It is to a state of society like this, then, Mr. Editor, that we must look for the origin of the trial by battle ; and, if we compare the laws and institutions of different countries, however far advanced in the progress of civili. sation, and however remotely situated from each other, we shall probably discover, in most of them, something to remind us of these patriarchal times.
The law of Moses is the most ancient authority apon the subjeet tð which an appeat can be made, and there we find abundant examples to establish the fact with regard to the Hebrew nation. It is decreed, for instance, Lev. xxv. 25. that the next heir shall have the right of redeenhing a mortgaged field; and, Nümk V. 8. that property purloined from a person since dead shall be restored to the nearest descendant. We tead; also, Num. XXXV: 12, 19, 26, 27, and elsewhere, of the avenger of blood, and the power granted to him of taking away the life of a murderer, subject to such te: strictions as Moses thought proper to enjoitt.
We find, likewise, traces of the same custom akibrig' the descendants of Ishmael, who inhabit Arabia Petræa and Desert, and partieularly among the Bedouins, who livé, at this day, in little better than a complete state of nature. " Among these Arabs,” says Michaelis,* * that man is in the highest degree contemptible, and the subject of universal reproach, who has not avenged his relation’s death ; or is at least as much despised as the military man among us who refuses a challenge. On the other hand, the avengment of blood is, with them, a man's highest praise ; and is regarded as a proof of valour and magnanimity.” This, however, is not the character of all the
* Comm. on the Law of Moses, vol. ii. art. 134, 4.
Arabs indiscriminately; though we find a law enjoining such a practice, under certain restrictions, among the precepts of the Koran, chap. xvii. 35. “ If a man is unlawfully killed, we give to his nearest relation the right of revenge: but, let him not go beyond bounds in putting the murderer to death;" that is, let him not have recourse to cruelty and torture in doing it.
“ Among the Abyssinians, who came originally from Arabia Felix, across the Red Sea, I find,” says Michaëlis, “ from the Jesuit Lobos, Relation historique d Abyssinie, i. p. 122-124, that the magistrate first discovers the murderer, and then delivers him to the vengeance of the nearest kinsman of the deceased. Here, therefore, we have an example of this practice under the superintendance of the magistrate."
In Persia the relations of an individual who has been murdered, go before a court of justice, uttering loud lamentations, and demanding that the mur derer may be delivered into their hands ; on which the judge commits the prisoner to their charge, pronouncing at the same time, these words “I give this murderer into your hands; take satisfaction yourselves for the blood which he has shed; but remember that God is just and merciful.” The relations are then at liberty to glut their vengeance upon the murderer in what way they please. *
According to the laws of the Athenians, if any one come to an untimely end, his nearest relations might bring the action of Aydgoantic against those whom they suspected, either to be abettors of the crime, or protectors of the selon: and the right of prosecution in all cases of murder belonged to the kindred of the murdered, kinsfolk's children, and those of the same ogurgict.
It was decreed, also, in the Roman laws,I “ hæredes, quos necem tertatoris inultam omisisse constiterit, fructus integros cogantur reddere."
In Germany, likewise, from which many of our own institutions and customs have been borrowed, the most distant relations took a very
considerable share to themselves in every affront, as we read in the admirable treatise of Tacitus,g “ Suscipere tam inimicitias, seu patris, seu propinqui, quàm amicitias necesse est.” This sentence is in the usual style of the Roman historian, brief but expressive ; and the best comment upon it will be found in the decrees and statutes to which it gave rise, in after times, when laws were first collected and arranged into a system.
“ Ad quemcunque hæreditas terræ pervenerit, ad illum vestis bellica, id est, lorica, et ultio proximi, et solutio leudis, debet pertinere."'ll
These are all remnants of an age long prior to that in which regular laws were instituted; and in my view of the subject, bear strong marks of affinity to the practice which it has been the object of this paper to retrace from the state in which we now find it to its first origin. If any of your cor. respondents, however, can shew that the theory which I have adopted is founded upon erroneous principles, it will ee the means of throwing
• Sir Jobn's Chardin's Travels, &c. 4to. edit. 1711, p. 292. + Potter's Archæologia Græca, edit. 1728, vol. i. bk, i. ch. 26. p. 177. I Cod. lib. vi. tit. xxxv. de his, quibus, ut indignis, hæreditates auferuntur. Ieg: 1. s Germania, § 21. Il Lex Angl. et Werin. Tit. 6 de Alodibus. Leg. S.
light on a subject which would probably have remained in that obscurity in which time never ceases to.veil the rude productions of a barbarous age, had not recent circumstances, excited considerable attention to it.
VERMICULUS. P. S. Since writing the above, I have met with the following passage from Blackstone, which seems so much to my purpose that I am tempted to transcribe it :
“The decision of suits, by an appeal to the God of battles, is by some said to have been invented by the Burgundi, one of the northern or German clans that planted themselves in Gaul. And it is true, that the first written injunction of judiciary combats that we meet with, is in the laws of Gundebald, A.D. 501, which are preserved in the Burgundian code. Yet it does not seem to have been merely a local custom of this or that particular tribe, but to have been the common usage of all those warlike people from the earliest times. And it may also seem from a passage in Velleius Paterculus, that the Germans, when they first became known to the Romans, were wont to decide all contests of right by the sword: for when Quintilius Varus endeavoured to introduce among them the Roman laws and method of trial, it was looked upon (says the historian)as a “novitas incognitæ disciplina, ut solita armis decerni jure terminarentur. And among the ancient Goths in Sweden we find the practice of judiciary duels established upon much the same footing as they formerly were in our country." Blackstone's Comm. 15th ed..vol. iii. b. iii. ch. 22, p. 337. See also vol. iv. b. iv. ch. 33. p. 417.
THE impression made upon my mind, when little more than a child, on first reading the account of the Apostles receiving the Gift of Tongues, as related in the 2nd chapter of the Acts, was, that every person present, of whatever nation he might be, heard, at the same time, the speaker in the language of his (the hearer's) own country.
This I soon learned, to my surprise, was not the sense in which it was generally, perhaps universally, understood.
First impressions are often very strong, and difficult to eradicate. Per. haps we frequently are more desirous to seek for reasons to establish them, than anxious to supplant them. This may
be the case with me in this instance. I shall, however, after having stated the reasons which have been suggested to my mind, in support of my preconceived opinion, leave others to judge for themselves; and, if they please, to state their reasons for enter. taining a contrary opinion. Though the question is not of vital importance, it is not an uninteresting one.
Whenever God works a miracle, I appre. hend, that it is such as, most fully, to answer the designed end, one miracle being, with him, as easy to effect as another.
It is, likewise, always something which cannot be accomplished by mere human means. Now, if the Gift of Tongues was only the being enabled to speak various languages, when the speaker pleased, this would be no more VOL. II.