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“If two neighbours,” say the capitularies of Dagobert, “dispute respecting the boundaries of their possessions, let a piece of turf of the contested land be dug up by the judge, and brought by him into the court; the two parties shall touch it with the points of their swords, calling on God as a witness of their claims;–after this let them combat, and let victory decide on their rights!”

In Germany, a solemn circumstance was practised in these judicial combats. In the midst of the lists they placed a bier.–By its side stood the accuser and the accused; one at the head and the other at the foot of the bier, and leaned there for some time in profound silence, before they began the combat.

The manners of the age are faithfully painted in the ancient Fabliaux. The judicial combat is introduced by a writer of the fourteenth century, in a scene where Pilate challenges Jesus Christ to single combat. Another describes the person who pierced the side of Christ as a knight who jousted with Jesus.[1]

Judicial combat appears to have been practised by the Jews. Whenever the rabbins had to decide on a dispute about property between two parties, neither of which could produce evidence to substantiate his claim, they terminated it by single combat. The rabbins were impressed by a notion, that consciousness of right would give additional confidence and strength to the rightful possessor. It may, however, be more philosophical to observe, that such judicial combats were more frequently favourable to the criminal than to the innocent, because the bold wicked man is usually more ferocious and hardy than he whom he singles out as his victim, and who only wishes to preserve his own quiet enjoyment:–in this case the assailant is the more terrible combatant.

Those accused of robbery were put to trial by a piece of barley-bread, on which the mass had been said; which if they could not swallow, they were declared guilty. This mode of trial was improved by adding to the bread a slice of cheese; and such was their credulity, that they were very particular in this holy bread and cheese, called the corsned. The bread was to be of unleavened barley, and the cheese made of ewe’s milk in the month of May.

Du Cange observed, that the expression–“May this piece of bread choke me!” comes from this custom. The anecdote of Earl Godwin’s death by swallowing a piece of bread, in making this asseveration, is recorded in our history. Doubtless superstition would often terrify the innocent person, in the attempt of swallowing a consecrated morsel.

Among the proofs of guilt in superstitious ages was that of the bleeding of a corpse. It was believed, that at the touch or approach of the murderer the blood gushed out of the murdered. By the side of the bier, if the slightest change was observable in the eyes, the mouth, feet, or hands of the corpse, the murderer was conjectured to be present, and many innocent spectators must have suffered death. “When a body is full of blood, warmed by a sudden external heat, and a putrefaction coming on, some of the blood-vessels will burst, as they will all in time.” This practice was once allowed in England, and is still looked on in some of the uncivilized parts of these kingdoms as a detection of the criminal. It forms a solemn picture in the histories and ballads of our old writers.

Robertson observes, that all these absurd institutions were cherished from the superstitious of the age believing the legendary histories of those saints who crowd and disgrace the Roman calendar. These fabulous miracles had been declared authentic by the bulls of the popes and the decrees of councils; they were greedily swallowed by the populace; and whoever believed that the Supreme Being had interposed miraculously on those trivial occasions mentioned in legends, could not but expect the intervention of Heaven in these most solemn appeals. These customs were a substitute for written laws, which that barbarous period had not; and as no society can exist without laws, the ignorance of the people had recourse to these customs, which, evil and absurd as they were, closed endless controversies. Ordeals are in truth the rude laws of a barbarous people who have not yet obtained a written code, and are not sufficiently advanced in civilization to enter into the refined inquiries, the subtile distinctions, and elaborate investigations, which a court of law demands.