Europe. The Imperial authority was so much shaken and enfeebled by the violence of the civil wars excited by the contests between the Popes and the Emperors of the Franconian and Suabian lines, that not only the nobility but the cities acquired almost independent power, and scorned all subordination and obedience to the laws. The frequency of these faida, or private wars, is often mentioned in the German Annals, and the fatal effects of them are most pathetically described, Datt. de Pace Imper. pub. lib. i. cap. v. N° 30. & passim. The Germans early adopted the Treuga Dei, which was first established in France. This, however, proved but a temporary and ineffectual remedy. The disorders multiplied so fast, and grew to be so enormous, that they threatened the dissolution of society, and compelled the Germans to have recourse to the only remedy of the evil, viz. an absolute prohibition of private wars. The Emperor William published his edict to this purpose, A. D. 1255, an hundred and sixty years previons to the ordonance of Charles VI. in France. Datt. lib. i. cap. 4. N° 20. But neither he nor his successors had authority to secure the observance of it. This gave rise to a practice in Germany, which conveys to us a striking idea both of the intolerable calamities occasioned by private wars, and of the feebleness of government during the twelfth and thirteenth centuries. The cities and nobles entered into alliances and associations, by which they bound themselves to maintain the public peace, and to make war on such as should violate it. This was the origin of the league of the

Rhine, of Suabia, and of many smaller confederacies distinguished by various names. The rise, progress, and beneficial effects of these associations are traced by Datt, with great accuracy. Whatever degree of public peace or of regular administration was preserved in the Empire from the beginning of the twelfth century to the close of the fifteenth, Germany owes to these leagues. During that period, political order, respect for the laws, together with the equal administration of justice, made considerable progress in Germany. But the final and perpetual abolition of the right of private war was not accomplished until A. D. 1495. The Imperial authority was by that time more firmly established, the ideas of men with respect to government and subordination were become more just. That barbarous and pernicious privilege of waging private war, which the nobles had so long possessed, was declared to be incompatible with the happiness and existence of society. In order to terminate any differences which might arise among the various members of the Germanic body, the Imperial chamber was instituted with supreme jurisdiction, to judge without appeal in every question brought before it. That court has subsisted since that period, forming a very respectable tribunal, of essential importance in the German constitution. Datt, lib. iii, iv, v. Pfeffel Abregé de l'Histoire du Droit, &c. p. 556.

NOTE XXII. SECT. I. p. 67. [Y].

IT would be tedious and of little use to enumerate the various modes of appealing to the justice of God, which superstition introduced during the ages of ignorance. of ignorance. I shall mention only one, because we have an account of it in a placitum or trial in the presence of Charlemagne, from which we may learn the imperfect manner in which justice was administered even during his reign. In the year 775, a contest arose between the bishop of Paris and the abbot of St. Denys, concerning the property of a small abbey. Each of them exhibited deeds and records, in order to prove the right to be in them. Instead of trying the authenticity, or considering the import of these, the point was referred to the judicium crucis. Each produced a person, who, during the celebration of mass, stood before the cross with his arms expanded; and he, whose representative first became weary, and altered his posture, lost the cause. The person employed by the bishop on this occasion had less strength or less spirit than his adversary, and the question was decided in favour of the abbot. Mabillon de Re Diplomat. lib. vi. p. 498. If a prince so enlightened as Charlemagne countenanced such an absurd mode of decision, it is no wonder that other monarchs should tolerate it so long. M. de Montesquieu has treated of the trial by judicial combat at considerable length The two talents which distinguish that illustrious author, industry in tracing

all the circumstances of ancient and obscure institutions, and sagacity in penetrating into the causes and principles which contributed to establish them, are equally conspicuous in his observations on this subject. To these I refer the reader, as they contain most of the principles by which I have endeavoured to explain this practice. De l'Esprit des Loix, lib. xxviii. It seems to be probable from the remarks of M. de Montesquieu, as well as from the facts produced by Muratori, tom iii. Dissert. xxxviii. that appeals to the justice of God by the experiments of 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 judicial combat; and yet the judicial combat seems to have been the most ancient mode of terminating any controversy among the barbarous nations in their original settlements. This is evident from Velleius Paterculus, lib ii. c. 118. who informs us, that all questions which were decided among the Romans by legal trial, were terminated among the Germans by arms. The same thing appears in the ancient laws and customs of the Swedes, quoted by Jo. O. Stiernhöök de jure Sueonum & Gothorum vetusto, 4to. Holmiæ 1682, lib. i. c. 7. It is probable that when the various tribes which invaded the Empire were converted to Christianity, their ancient custom of allowing judicial combats appeared so glaringly repugnant to the precepts of religion, that, for some time, it was abolished, and by degrees, several circumstances which I have mentioned, led them to resume it.

IT seems likewise to be probable from a law quoted by Stiernhöök in the treatise which I have mentioned, that the judicial combat was originally permitted, in order to determine points respecting the personal character or reputation of individuals, and was afterwards extended not only to criminal cases, but to questions concerning property. The words of the law are, "if any man shall say to another these reproachful words, “ you

are not a man equal to other men," or, "you "have not the heart of a man," and the other shall reply "I am a man as good as you," let them meet on the highway. If he who first gave offence appear and the person offended absent himself, let the latter be deemed a worse man even than he was called; let him not be admitted to give evidence in judgment either for man or woman, and let him not have the privilege of making a testament. If he who gave the offence be absent, and only the person offended appear, let him call upon the other thrice with a loud voice, and make a mark upon the earth, and then let him who absented himself be deemed infamous, because he uttered words which he durst not support. If both shall appear properly armed, and the person offended shall fall in the combat, let a half compensation be paid for his death. But if the person who gave the offence shall fall, let it be imputed to his own rashness. The petulance of his tongue hath been fatal to him. Let him lie in the field without any compensation being demanded for his death." Lex Uplandica, ap. Stiern. p. 76. Martial people were extremely delicate with re