gentis nostræ Longobardorum legem impium vetare non possumus. (Muratori, Rerum Italic. Script. t. 2. p. 65.) Like the other ordeals, by the burning ploughshares, by the holding hot iron, by dipping the hand in hot water, or hot oil, it was a presumptuous appeal to Providence, under an apprehension and hope that Heaven would give the victory to him who had the right. It was the child of superstition and brute force.

It seems probable that the trial by battle 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. In the year 961, a controversy concerning the Church of St. Medard, whether it belonged to the Abbey of Beaulieu, was terminated by judicial combat. The Abbot Wittikindus considered it as the best and most honorable mode of determining a grave point of law. "It was a matter of doubt and dispute," says the Abbot, "whether the sons of a son ought to be reckoned among the children of the family, and succeed equally with their uncles if their father happened to die while their grandfather was alive. An assembly was called to deliberate on this point, and it was the general opinion that it ought to be remitted to the examination and decision of judges. But the Emperor, [Otho II.] following a better course, and desirous of dealing HONORABLY with his people and nobles, appointed the matter to be decided between two champions. He who appeared in behalf of the right of children to represent their deceased father was victorious; and it was established, by a perpetual decree, that they should hereafter share in the inheritance together with their uncles." This was under the German Emperor, Otho II. in the tenth century. But the folly of man did not end here. A question of religion, as well as of law, was submitted to the same arbitrament. In the eleventh century the question was agitated in Spain, whether the Musarabic Liturgy which had been used in the Churches of Spain, or the Liturgy approved by the See of Rome, differing in many particulars from the other, contained the form of worship most acceptable to the Deity. The Spaniards contended zealously for the liturgy of their ancestors. The Popes urged the reception of that which had their infallible sanction. The question was referred to the trial by battle. Two knights in complete armor entered the lists. John Ruys de Matanca, the champion of the Musarabic Liturgy, was victorious.

While the trial by battle subsisted, proofs by charter, contracts or persons, became ineffectual. When a charter or other instrument was introduced by one of the parties, his opponent might challenge it, affirm that it was false and forged, and offer to prove this by combat. So he might accuse a witness, whom he suspected of being about to give testimony against him, of being suborned, give him the lie, and challenge him to combat; and if the witness was vanquished, no other evidence was admitted, and the party by whom he was summoned lost his cause. The reason given for obliging a witness to accept of a defiance, and to defend himself by combat, contains the idea of what is called the point of honor; "for it is just, that if any one affirms that he perfectly knows the truth of any thing, and offers to give oath upon it, that he should not hesitate to maintain the veracity of his affirmation in combat." gund. tit. 45.

Leg. Bur

The trial by battle extended itself so generally in France, if not in other parts of Europe, as at one time to supersede all the other ordeals, which were regarded also as judgments of God, and even the mode by proofs. In Orleans it was restrained to civil matters, involving upwards of six sous in amount. [Montesquieu, Esp. des Loix. Liv. 28, cap. 20.] Regulations of great minuteness were established with regard to the ceremonies; and this monstrous usage, as it is called by Montesquieu, was reduced to a system, and illustrated by an extensive jurisprudence. Men, says this ingenious Frenchman, subject to rules even their prejudices. Nothing was more contrary to good sense, than the judicial combat, but being once recognised, it was conducted with a certain prudence. In this respect, as in many others, it bears a resemblance to the great trial by battle which still prevails between nations; and which has its artificial and complex regulations, the so called laws of war.

The field for the combat was selected with care; and in many places there was an open space for this purpose in the neighborhood of the Church. We

learn by an accidental notice of Froissart, that there was a tribune attached to the walls of the Abbey of St. German des Prés, in Paris, which was destined for the judges of the combat, and which overlooked the meadow aux Clercs, which served for a field. (Froissart, c. 383, p. 290; Sismondi, Histoire, X. 514.) The ground being selected, a large fire was kindled, and a gallows erected for the vanquished. Two seats covered with black were also prepared for the combatants, on which they received certain admonitions, and were made to swear on the Holy Evangelists that they had not had recourse to sorcery, witchcraft, or incantation. They had previously attended the celebration of mass, the forms of which for such occasions are still to be found in certain old missals, where it is called missa pro duello. In certain cases of physical inability, and where women and the clergy were concerned, a battle by proxy was allowed, and regular bravoes, called champions were hired for this purpose; dreadful trade, it would seem, since the right hand of the champion was lopped off in the event of his being worsted. Meanwhile the principals were kept out of the lists with ropes about their necks, and he who was beaten by proxy was forthwith hanged in person, although in certain cases he was allowed to be decapitated. (Millingen, Hist. of Duelling, Vol. I. 31, 32; Montesquieu, Esprit des Laix, Liv. 28, cap. 19.)

The

In England, trial by battle was conducted with peculiar form, in the presence of the judges in their scarlet robes, who presided over the field which was duly set out of sixty feet square, and enclosed by lists. It appears that trials of this kind were so frequent, that fines, paid on these occasions, made no inconsiderable branch of the King's Revenue. (Madox, Hist. Excheq. Vol. 1. 349.) For sometime after the conquest the only mode of trying a writ of right, for the determination of the title to real property was this barbarous proceeding; but Henry II, by consent of parliament, introduced the grand assise, a peculiar species of trial by jury, in concurrence therewith; giving the party against whom the action is brought his choice of either the one or the other. establishment of this altenative is pronounced by Glanville, his Chief Justice, and probably his adviser therein, a certain benefit. He says; duelli casum declinare possint homines ambiguum. Jus enim, quod post multas et longas dilationes vix evincitur per duellum, per beneficium istius constitutionis commodius et acceleratius expeditur. (1. 2. c. 7.) A trial by combat was appointed in England in 1571, under the inspection of the judges of the Court of Common Pleas; but Queen Elizabeth interposed her authority, and enjoined the parties to compound the matter; yet in order to preserve what was called their honor, the lists were marked out, and all the forms previous to the combat were observed with much ceremony. (Spelm. Gloss. veb. campus, p. 103.) The last time that this trial was actually awarded in England, was in 1631, between Lord Rae and Mr. Ramsay. King Charles I. appointed by commission, a constable of England to preside over it, who proclaimed a day, on which the combatants were to appear with a spear, a long sword, a short sword, and a dagger; but this was accommodated without bloodshed. (Hargrave, State Trials, XI. 124.) The form of proceeding fell into desuetude, overruled by the advancing spirit of civilization; but, to the disgrace of the English law, it was not legislatively abolished till in 1817 the right to it had been distinctly claimed in the Court of King's Bench. Abraham Thornton, in an appeal against him for murder, when brought into Court, pleaded as follows; "Not guilty, and I am ready to defend the same by my body;" and thereupon taking off his glove, he threw it upon the floor of the Court. The appellant did not choose to submit to this trial, and abandoned his proceedings. In the next session of parliament, trial by battle was abolished in England. (Blackstone, Com. Vol. III. 337, Chitty's note.) The Attorney General, in introducing the bill for this purpose, remarked, that "if the party had persevered, he had no doubt the legislature would have felt it their imperious duty to interfere and pass an ex post facto law, to prevent so degrading a spectacle from taking place." Annual Register, Vol. LXI. p. 52. (1819.)

The principal modern authorities for the history of the judicial combat are the admirable note by Robertson (History of Charles V. Vol. I. note 22); Montesquieu (Esprit des Lois. Liv. 28, cap. 17-29) whose luminous mind has cast upon it a brilliant flood of light; Blackstone (Commentaries, Vol. III. 337

351; Vol. IV. 346-348, 419.) Hallam (Middle Ages, Vol. I. 187, cap. 2, pt. 2;)
the amiable and humane Sismondi (Histoire des Francais VIII. 77-78); Gui-
zot, in a work of remarkable beauty of historical inquiry and depth of philos-
ophy, more grave than the Esprit des Lois, and enlightened by loftier ideas of
human progress and virtue, (Histoire de la Civilization en France depuis la
chute de l'Empire Romain, Tome IV. 89, 149-166); our learned countryman,
Mr. Wheaton, (History of the Northmen, Cap. III and XII); and Millingen
(History of Duelling, 2 vols.) a writer, hardly deserving the character of an au-
thority, and utterly unworthy a place in this fellowship of authors.

NOTE C.

Referred to on page 29.

A CONGRESS OF NATIONS AND ARBITRATION. It is intended to offer in
this Note, a sketch of the efforts of private men, and the examples of Nations
tending to a Congress of Nations, or an established system of Arbitration with-
out appeal to War.

The duty and importance of Universal Peace was recommended by the early
Fathers of the Christian Church. The character of the good Man of Peace was
described in the 15th century, in that work of unexampled circulation, which
has been translated into all modern languages, and republished more than a
thousand times. (De Imitatione Christi by Thomas à Kempis, Lib. 2. cap. 3.)
The writings of Erasmus at the close of the same century, abound in the spirit
of Peace. In the 17th century, Nicole, a friend of Pascal, one of the fellowship
of Port Royal, and one of the highest names in the Church of France, in his
Essais de Morale, in six volumes, gave to the world Traité des Moyens de con-
server la Paix avec les Hommes, a treatise which Voltaire terms "a master-
piece to which nothing equal has been left to us by antiquity." (Siecle de
Louis XIV. See Hallam's History of Literature, Vol. III. 383, part IV. cap. 4)
It is to be found in a recent edition of the Pensées de Pascal. The reader of
our day cannot perceive in it the exalted merit which drew forth the eulogy of
Voltaire. At the beginning of the 18th century appeared the Projet de Paix
Perpetuelle, in three volumes, by the Abbé Saint Pierre, which the benevolent
author, by a species of pious fraud, attributed to Henry IV. and his Minister
Sully, with the view of recommending it to the adoption of the Sovereigns and
Ministers, to whom the authority of these great names would be more imposing
than the intrinsic merit of the scheme itself. His ideas were characterised by
the profligate minister and cardinal Dubois as les reves d'un homme de bien. Af-
terwards in 1761, that great genius Rousseau published a little work to which he
modestly gave the title, Extrait du Projet de Paix perpetuelle de M'l'Abbé de
Saint Pierre. Without appealing to those higher motives, for addressing which
to sovereigns Saint Pierre had most unjustly incurred the ridicule of practical
statesmen, such as the love of true glory, of humanity, and a regard to the dic-
tates of conscience and the precepts of religion, Rousseau merely supposes prin-
ces to be endowed with common sense, and capable of estimating how much
their interests would be promoted by submitting their respective pretensions to
the arbitration of an impartial tribunal, rather than resorting to the uncertain
issue of arms, which even to the victor cannot bring adequate compensation
for the blood and treasure expended in the contest. (See Wheaton's History
of the Law of Nations, part 2. § 17.)

There are fragments of a Project of Perpetual Peace, by the late Jeremy
Bentham, recently published from MSS. bearing date from 1786 to 1789, under
the superintendence of his Executor, Dr. Bowring, (Part 8. pp. 537-554, Lon-
don, 1839,) which are marked by the penetrating sense and humanity of their
author.

Of late years, several writers of the different schools of German philosophy,
have proposed the establishment of an Amphictyonic council of Nations, by
which their mutual differences might be judicially settled, and the guilt and
misery of war forever abolished among civilized nations. One of the most re-
markable of these projects of Perpetual Peace was that published by Kant in

1795. He says; "What we mean to propose is a general Congress of Nations, of which both the meeting and the duration are to depend entirely on the sovereign wills of the League, and not an indissoluble Union like that which exists between the several States of North America founded on a Municipal constitution. Such a Congress, and such a League, are the only means of realizing the idea of a true public law, according to which the difference between nations would be determined by civil proceedings as those between individuals are determined by civil judicature, instead of resorting to war, a means of redress worthy only of barbarians." Kant, Rechtslehre, Zweiten Theil, § 61. The principles of Kant on this subject have been contested by another celebrated German Philosopher, Hegel, in the spirit of one whose mind was so imbued with the history of the Past, as to be insensible to the charms of Peace. A state of perpetual peace, he says, if it could be realized would produce a moral stagnation among nations. Hegel, Philosophie des Rechts, herausgegeben vone Gans. § 321-339. See also Wheaton's History of the Law of Nations, part 4, § 36, 37.

Most important information on this subject is collected in the volume of Prize Essays published by the American Peace Society, and in a little tract, entitled, a Congress of Nations, by the same Society. The useful life of the late William Ladd was devoted to the diffusion of information on this subject.

A General Peace Convention was held in London, in June, 1843, composed of delegates from various countries, which was organized by the choice of Charles Hindley, Esq., M. P., as President, and the Marquis de la Rochefoucault Liancourt, a Member of the French Chamber of Deputies as Vice President. The Convention was graced by the presence of many persons, wellknown for their labors of philanthropy. Among those prominent in political life who took a part in its proceedings, were Lord Robert Grosvenor, William Sharman Crawford, M, P., Richard Cobden, M. P., Joseph Hume, M. P., W. Ewart, M. P., Dr. Bowring, M. P.

The Convention was called together on the principle, " that war is inconsistent with the spirit of Christianity and with the true interests of mankind." The following are among the Resolutions which it adopted.

On Arbitration instead of War. "That this Convention earnestly recommends to Governments, Members of Legislative bodies, and public functionaries, the adoption of the principle of arbitration for the adjustment of all international differences; and that stipulations be introduced into all international treaties to provide for this mode of adjustment; whereby recourse to war may be entirely avoided between such nations as shall agree to abide by such stipulation."

On a Congress of Nations. "That while recommending the plan of Judge Jay, which proposes that Nations should enter into treaty stipulations to refer their differences to the arbitration of a friendly power, as a measure the most immediately available for the prevention of war, we still regard, as peace societies have from their origin regarded, especially as set forth by the late WILLIAM LADD, Esq., a Congress of Nations to settle and perfect the code of international law, and a High Court of Nations to interpret and apply that for the settlement of all national disputes, as that which should be further kept in view by the friends of peace, and urged upon the Governments as one of the best practical modes of settling peacefully and satisfactorily such international disputes."

On Preparation for War. "That in the opinion of this Convention, preparations for war are so many incentives to war, and ought to be discouraged by all friends of peace.'

There are now Peace Societies at London, at Paris, at Brussels, at Geneva, all coöperating in this holy cause. The American Peace Society is the oldest, and has already been the means of great good. It has adopted as a fundamental article in its constitution the declaration, that all war is forbidden by Christianity. Its officers and principal members include some of the most prominent divines and public characters of our country; among whom are the President, S. E. Coues, Rev. Andrew P. Peabody, of Portsmouth, N. H.; Rev. Charles Lowell, of Boston, Rev. Ezra S. Gannett, of Boston, Rev. Francis Wayland, of Providence, R. I.; Rev. C. E. Stowe, of Cincinnati; Rev. How

ard Malcolm, of Georgetown, Ky.; Theodore Frelinghuysen, of New York; William W. Ellsworth, of Hartford, Conn.; Gerrit Smith, of Peterborough, N. Y.; William Jay, of Bedford, N. Y.; Professor Greenleaf of Cambridge; Samuel A. Eliot, of Boston; Sidney Willard, of Cambridge; Thomas W. Ward, of Boston; Rev. William Jenks; Rev. Orville Dewey, of New York; Jonathan Chapman; Martin Brimmer, of Boston; Amasa Walker.

Of a society, composed of such names, subscribing to such a principle,-it would be difficult for Southey to repeat the gibe, which he allowed himself to utter in his Colloquies on the Progress and Prospects of Society, I. 224; “I say nothing of the Society for the Abolition of War, (Heaven bless the mark!) it has not obtained sufficient notice even to be in disrepute."

History furnishes various illustrations of the principle of a Congress of Nations, under the name of Councils, Leagues, Diets or Congresses. 1. The Amphictyonic Council, embracing at first twelve and finally thirty-one states or cities was established in the year 497 B. C. Each city sent two deputies, and had two votes in the Council, which had full power to discuss all differences which might arise between the Amphictyonic cities. 2. The Achchaan League, founded at a very early period, and renewed in 284 B. C. Although each member of the League was independent of the others, yet they formed one body, and so great was their reputation for justice and probity, that the Greek cities of Italy referred disputes to their arbitration. 3. Passing over other confederacies of antiquity, we come down to the Hanseatic League, begun in the twelfth century, and completed near the middle of the thirteenth. It comprised at one time nearly eighty cities. A system of international law was adopted in their general assemblies. While pursuing a pacific policy, they flourished beyond all precedent. 4. In the twelfth and thirteenth centuries in Germany, various other cities and nobles entered into alliances and associations for mutual protection, under various names, as the League of the Rhine, and of Suabia. (Robertson, Hist. of Charles V. Note 21.) 5. The Helvetic Union begun so long ago as 1308, and has preserved peace among its members during the greater part of five centuries. It is covenanted by this Union that all public dissentions shall be settled between the parties in an amicable manner; and, with this view, particular judges and arbitrators are appointed with power to compose any strife that may arise. 6. The Grand Scheme of Henry IV, of France, for the blending of the Christian States of Europe in one Confederacy, had its rise more in selfish ambition, than in true humanity; but it has served to keep before Christendom the idea of the same common tribune for the great brotherhood of nations. 7. The United States of America furnish an instance of the union of twenty-six different States, all having peculiar interests, in bonds of peace, with a tribunal which has jurisdiction over the controversies of the States.

William Penn once said of the scheme of Henry IV; "his example tells us that it is fit to be done; Sir William Temple's History of the United Provinces shows, by a surpassing instance, that it may be done; and Europe, by her incomparable miseries, that it ought to be done."

It seems, in the order of Providence, that, the families, tribes and nations of the earth should tend, by means of association, to a final Unity. The seven kingdoms of England became one under the Saxon Edgar; Wales was forcibly absorbed into England under Edward I; Ireland, after a protracted resistance, was finally absorbed under Edward III; Scotland became connected with England by the accession of James I. to the throne of the Tudors, and the two countries afterwards, under Queen Anne, were united by an act of peaceful Legislation. The great nations of France and Austria have passed through similar stages; disjointed fragments and scattered limbs, have been brought together; provinces, which once possessed an equivocal independence, now feel new power and happiness in their common union. This is the great process of chrystallization, which is constantly going on among nations. The next stage

will be the association of Christian States.

Our country possesses peculiar advantages for taking the initiative in the diplomatic measures, by which this great event is to be hastened. A Committee of Congress, in a Report, ascribed to the late Mr. Legaré, recommended in