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suddenly attacked by his companions and slain."1 Richardson heard that some of the Eskimo "decided their quarrels by alternate blows of the fist, each in turn presenting his head to his opponent." The Tunguses formerly had a duel with arrows called koutschiguera, which was fought "only in the presence of the elders, who marked out the spot, settled the distance of the combatants, and gave the signal for letting fly.' The Santals have a tradition that years long since there was a custom amongst them "of deciding their disputes, when the parties were males, by the ordeal of single combat. The bow and arrow or hanger served in lieu of pistol and sword for these rustic duels. Such affairs of honour were always fatal to one party, but of late times, as equitable remedies have been brought nearer to them, this remnant of a barbarous age has disappeared." Mr. Man also heard that the Kols at one time preferred the duel to any other mode of seeking redress for a wrong. The ancient Swedes were even compelled by law to fight duels to repair their wounded honour. The so-called 'Hedna-lag,' a fragment of an old pagan law, prescribes that, if any man says to another, "You are not a man's equal, you have not the heart of a man," and the other replies, "I am a man as good as you," they shall encounter in a place where three roads meet. If he who has suffered the insult does not appear, he shall be held to be what the other one called him, and he shall henceforth be allowed neither to swear nor to give evidence in any case. If, on the other hand, they meet in single combat, and the offended party kills the offender, he shall have to pay no compensation for it; but if the offender kills his opponent, he shall pay half his price.

5

6 Leffler, Om den fornsvenska hednalagen, p. 40 sq. (in K. Vitterhets Historie och Antiquitets Akademiens Månadsblad, 1879, p. 139 57.). Professor Leffler is inclined to believe that this fragment once formed a part of the older Vestgötalag (op. cit. p. 35, in the Minadsblad, p. 134).

These customs and rules are due to a variety of circumstances. To recognise the duel as a means of acquiring a right to land or women, is a concession to superior strength in a society where there is no government, or where the government is weak; whilst in the opportunity given to the challenged party to oppose the avenger on equal terms we may trace the interfering influence of public opinion. The duel is also in a higher degree than downright violence calculated to bring about a definite arrangement; and in some cases, as we have seen, it is a mere sham-fight, which may serve as a preventive against the infliction of more serious injuries, by showing which party is the weaker and, consequently, has to give in. In other cases, again, the challenge is a method of bringing forward an offender who otherwise might be out of reach, and of limiting the fight to the parties themselves, so as to prevent whole families from making war upon each other. Moreover, a duel may be preferable to an ordinary act of revenge as a means of wiping off an affront and of satisfying the claims of honour; it displays more courage, it commands more respect. In several of the cases referred to it is obviously a mitigated form of revenge, a method of settling a point of honour in a comparatively harmless way, and as such it has certain advantages over the practice of compensation; it requires no wealth on the part of the offender, and allows of no doubt as to the courage of the sufferer.2 The Queensland aborigines are said to be very proud of the wounds they receive in their single combats, and the duelling Eskimo "consider it cowardly to evade a stroke." The duel

3

rechtsprechenden centralen Regierungsgewalt, und das nicht Erfülltsein der Entwicklungsbedingungen der Composition, namentlich der Mangel an ökonomischen Gütern, welche die materielle Entschädigung unmöglich machte " (Steinmetz, Studien zur ersten Entwicklung der Strafe, ii. 67, 87).

3 Roth, op. cit. p. 140.

4 Richardson, Arctic Searching Expedition, i. 368.

may, finally, be regarded as the most equitable form of settling disputes in cases where both parties claim to be in the right. Sometimes it is even resorted to as a means of ascertaining the truth, as an ordeal or "judgment of God."

The wager of battle is well known to every student of mediæval law. Outside Europe we meet with a similar institution in the Malay Archipelago. In his History of the Indian Archipelago,' Mr. Crawfurd states :-"The trial by combat or duel, and the appeal to the judgment of God by various descriptions of ordeal, are not unknown. The Malay laws direct that the combat or ordeal shall be had recourse to in the absence of evidence, in the following words: If one accuse and another deny, and there be no witnesses on either side, the parties shall either fight or submit to the ordeal of melted tin or boiling oil.""1 The natives of the Barito River basin in Borneo have the following ordeal, called the Hagalangang :-" Both parties are placed in boxes at a distance of seven fathoms opposite one another, the boxes being made of nibong laths and so high as to reach a man's breast. Then both receive a sharpened bamboo of a lance's length to throw at each other at a given signal. The wounded person is supposed to be guilty."2 Among the Teutons the judicial combat seems to have developed out of the ancient practice of settling disputes by private duelling. In a time when the community did its best to suppress acts of revenge, it was no doubt a wise measure to adopt the duel as a form of judicial procedure, investing it with the character of an ordeal. It seems probable that the duel assumed this character already among the pagan Teutons.* Like other ordeals it was resorted to in cases where there was some doubt as to the guilt of the accused." Το

1 Crawfurd, History of the Indian Archipelago, iii. 92.

2 Schwaner, Borneo, i. 212.

3 Dahn observes (Bausteine, ii. 57) that "der Kampf ursprünglich gar kein Gottesurtheil, sondern lediglich eine Verweisung der Parteien auf Selbst

...

hülfe . . war." Cf. Patetta, Le ordalie, p. 178.

4 Patetta, op. cit. p. 179.

See Unger, "Der gerechtliche Zweikampf bei den germanischen Völkern,' in Göttinger Studien, 1847, Zweite Abtheilung, p. 358 sq.

appeal to "the judgment of God" was an expedient substitute for human evidence in a society where nothing was more difficult than to procure reliable witnesses, and where superstition reigned supreme. Speaking of the Franks, M. Esmein observes:" En dehors du flagrant délit ou de l'aveu de l'accusé, tout était incertitude.

Par solidarité forcée, jamais un homme ne témoignera contre un autre homme du même groupe; il ne témoignera pas non plus par crainte de la vengeance et des représailles contre un homme appartenant à un autre groupe. I shall later on try to prove that the ordeal is not, as it is often supposed to be, primordially based on the belief in an all-knowing, all-powerful, and just god, who protects the innocent and punishes the guilty, but that it largely springs from the same notion as underlies the belief in the efficacy of an oath. The ordeal, then, intrinsically involves an imprecation with reference to the guilt or innocence of a suspected person, and its proper object is to give reality to this imprecation, for the purpose of establishing the validity or invalidity of the suspicion.. This also holds good of the judicial combat. The issue of the fight decided the question of guilt because of the imprecation involved in the oath preceding the duel. Before the conflict commenced each party asserted his good cause in the most positive manner, confirmed his assertion by a solemn oath on the Gospels or on a relic of approved sanctity, and called upon God to grant victory to the right. Such an oath was an indispensable preliminary to every combat, and the defeat was thus not merely the loss of the suit, but also a conviction of perjury, to be punished as such.2 That the real object of the judicial duel was to correct the abuses of compurgation by oath appears from various

1 Esmein, Cours élémentaire du droit français, p. 96 sq.

2 Lex Baiuwariorum, ii. 1. Jourdan, Decrusy, and Isambert, Recueil général des anciennes lois françaises, ii. 840 sqq. Bracton, De Legibus et Consuetudinibus Anglia, fol. 141 b sq., vol. ii. 438

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sqq. "Sic me Deus adjuvet & haec sancta. Lea, Superstition and Force, p. 166 sq. Brunner, Deutsche Rechtsgeschichte, ii. 415, von Amira, 'Recht,' in Paul's Grundriss der germanischen Philologie, iii. 218. Unger, loc. cit. p. 386. Tuchmann, in Mélusine, iv. 130.

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facts. Gundebald, king of the Burgundians, says expressly, in the preamble to a law by which he authorises the wager of battle, that his reason for doing so is, that his subjects may no longer take oaths upon uncertain matters, or forswear themselves upon certain. Charlemagne urged the use of the duel as greatly preferable to the shameless oaths which were taken with so much facility, and Otho II. ordered its employment in various forms of procedure for the same reason.2 Witnesses might have to fight as well as principals. A Bavarian law even directed the claimant of an estate to combat not the defendant, but his witness; and in the later Middle Ages, after enlightened legislators had been strenuously and not unsuccessfully endeavouring to limit the abuse of the judicial combat, the challenging of witnesses was still the favourite mode of escaping legal condemnation.* Some codes required the witnesses to come into court armed, and to have their weapons blessed on the altar before giving their testimony. The practice of blessing the arms before the duel took place was no doubt intended to enable them the better to carry out the imprecation by saturating them with sanctity, or by increasing their natural sanctity; weapons are commonly regarded with superstitious veneration, hence oaths taken upon them are held to be particularly binding. But though the judicial duel fundamentally derived its efficacy as a means of ascertaining the truth from its connection with an oath, it has, owing to the tendency of magic to fuse into religion, readily come to be regarded as an appeal to the justice of God, just as curses are transformed into

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7 For the worship of, and swearing by, weapons, see Du Cange, 'Juramentum super arma,' in Glossarium ad scriptores media et infimæ Latinitatis, iii. 1616 sq.; Grimm, Deutsche Rechtsalterthümer, pp. 165, 166, 896; Pollock, Oxford Lectures, 269 sq. n. 1; Joyce, Social History of Ancient Ireland, 286 sq. In Morocco, also, an oath taken on a weapon is considered a particularly solemn form of swearing.