It is strange that any people should, for ages, make use of such a method, which a very little reflection, or common experience, might easily satisfy them had no manner of connection with guilt or innocence. But, besides the gross superstition of these nations, who thought the honour of providence concerned in the detection and punishment of criminals, Montesquieu hath given us another reason for this practice, which, whether just or not, for its ingenuity, deserves to be taken notice of. He observes, that the military profession naturally inspires its votaries with magnanimity, candour, and sincerity, and with the utmost scorn for the arts of falshood and deceit. This trial, then, he imagines calculated to discover plainly to the eye, whether the person accused had spent his whole life in the arts of war, and in the handling of arms. For if he had, his hands would thereby have acquired such a callousness, as would prevent any impression from the boiling water, discernible at that distance of time. He therefore was acquitted, because it was presumed he would not screen himself by a falshood. But if the marks appeared, it was plain he was an effeminate soldier, had resisted the force of education, and the general bent of his countrymen; that he was not to be moved by the spur of constant example, that he was deaf to the call of honour; and consequently such a person whose denial could have no weight to remove the presumption against him[70].
These were the methods of trial among the Salians, but the Ripuarian Franks, the Burgundians, and several other German nations acted very differently. No witnesses were produced among them on either side, but they contented themselves with what were called negative proofs; that is, the person accused swore positively to his own innocence, and produced such a number of his relations as the custom of the country required: or if he had not relations enough, the number was made up out of his intimate acquaintance: These were to swear that they believed his oath to be true, and upon this he was acquitted. But if he declined the oath, or could not produce a sufficient number of compurgators, he was found guilty; a practice that fully proves these nations were, when this method was introduced, a people of great simplicity and sincerity[71].
But as, by this means, every profligate person, with the assistance of a few others as wicked as himself, was sure to escape, the defects of this kind of trial introduced another, or rather revived an antient one, no less inconclusive. Antiently, the Germans had no judicatures for the decision of private wrongs; but each in person took his own satisfaction, and this introduced perpetual combats. When the new method of trial came in use, a party seeing his adversary ready to defeat his just demands, and screen his injustice with perjury, resorted to his antient right, refused to accept the oath, and appealed to the providence of God by the trial of battle: a method as absurd, indeed, as the former, but peculiarly adapted to the way of thinking of the Germans, who frequently, before they entered into a war, prognosticated the success of it from the event of a combat between one of their own nation, and a captive of the enemy[72]. This kind of trial gained ground among all the defendants of this ferocious people[73], and introduced itself at length among the Salians, who had it not at first, and who, by admitting positive proofs, had no need of it; and, though long fallen into disuse, hath left behind, its offspring, private duelling. It hath been long since observed, that this fashionable custom owed its origin to these northern nations, the ancestors of the present inhabitants of Europe, as no other nations, antient or modern, however martial or disposed to war, had any knowledge or practice of it; but it is undeniably evinced by this, that as a lie, above all other provocations, is the strongest, and what lays gentlemen of honour under an indispensible necessity of duelling, so were you lie the very words mutually given and received in old times, the accustomed form of joining issue by battle, after which neither party, without perpetual infamy and degradation from his rank, could recede.
I have taken the more notice of these four different methods of trial among the old Germans, as every one of them has been received into England. Concerning the first, the trial by witnesses, little need be said. As it is the fairest, and the justest, it has accordingly, pursuant to the practice of all civilized nations, prevailed over all the rest; and it is that, and that only, that we use at this day. But the ordeal also was in use among the Saxons, and continued some time after the Norman conquest; as appears, not only by the old records of the law, but from the famous story, whether true or false, of queen Emma, mother of Edward the Confessor, and the plow-shares[74]. The trial by negative proofs, though out of practice, is still in being, in what is called by us the wager of law; where, if a person is impleaded in an action of debt, on a simple contract, he may clear himself, by swearing he oweth it not, and by producing eleven others, who swear to their belief that he has deposed the truth[75]. Hence it has happened, that, for a long time past, actions of debt, in such cases, have not been brought, but another, called an action on the case, is the usual method, which admits the parties on both sides, as to the point of debt, vel non debet to an examination of witnesses. For the last, the trial by battle, our old books are full of it, in real actions; and although, to prevent the inconvenience and uncertainty of it, the grand assize was invented; yet was it in the tenant’s, that is, the defendant’s option, to choose which method of trial he pleased. The latest instance of joining issue by battle, I have met with, is in Dyer’s Reports, in the beginning of Elizabeth’s reign[76]; but by this time it was so much discouraged, that, by force of repeated adjournments, the parties were prevailed on to agree, and judgment was at length given upon the failure of one of the parties appearing on the day appointed for the combat.
When the truth, by some of the methods above-mentioned, was ascertained, judgment was to be given. Here it will be proper to observe, that, among these people, there were only two kinds of crimes, that were looked upon as public ones, and consequently capital. The first was treason, or desertion in the field, the punishment hanging; the second cowardice, or unlawful lust, for they were strict observers of the nuptial band, the punishment stifling in a morass, with an hurdle over them. It seems, at first view, surprising, that murder, which Tacitus assures us, from sudden gusts of passion, and intemperance in liquor, was very frequent, should not, as it so much weakened the strength of the nation, be considered as a criminal offence, and punished accordingly[77]. But a little reflection on their situation will reconcile us to it. The person slain was already lost to the society, and if every murder was a capital offence, the state would lose many of its members, who were its chief supporters. Besides, if the slayer had no hopes of mercy, nothing else could be expected than his desertion to their enemies, to whom he could be of infinite service, and to them of infinite detriment, from his knowledge of their strength and circumstances, and of the passes into their country, through the morasses and forests, which were their chief defence. Murder, therefore, like other lesser crimes, was atoned among those people, as it was among the ancient Greeks, who were in pretty similar circumstances, in the heroic times, as Ajax assures us in these words, in the ninth Iliad:
και μεν τις τε κασιγνητοιο φονοιο
Ποινεν, η του παιδος εδεζατο τεθνειωτος,
namely, by a satisfaction of cattle, corn, or money, to the persons injured, that is, to the next of kin to the deceased, with a fine to the king or lord, as an acknowledgment of his offence, and to engage the society to protect him against the future attempts of the party offended. These satisfactions were not regulated originally, nor fixed at any certain rate, but left to the discretion of the injured, or next of kin. However, if he appeared extraordinarily unreasonable, and refused what was judged competent, the society, upon payment of his fine to their head, took the offender into protection, and warranted his security against the attempts of the other party, or his friends. After these nations were settled in the Roman empire, these satisfactions for each offence were reduced to a certainty by their laws[78].