titioner may have entertained, concerning the capacity or incapacity for making a will of one under these circumstances, it can hardly be necessary to observe, that his evidence, when called for in a course of legal enquiry, should be delivered explicitly, and without any bias from his pre-conceptions. On the point litigated, it is the exclusive province of the judge and jury to decide, after a full investigation of the case.

To determine the existence of a LUCID INTERVAL in the delirium of fever; or in the more permanent alienation of mind which constitutes insanity, the testimony of a physician is sometimes required, in courts of law. It will be incumbent on him, therefore, to possess a clear and definite opinion on the subject, founded both on the nature of the malady, and the state of the patient. The cessation of febrile delirium is not difficult to ascertain; because the rational faculties being unimpaired by a short suspension, at once manifest their renewal by signs which cannot be misunderstood. But the complete remission of madness, is only to be decided by reiterated and attentive observation. Every action, and even gesture of the patient should be sedulously watched; and he should be drawn

drawn into conversations, at different times, that may insensibly lead him to develope the false impressions under which he labours. He should also be employed, occasionally, in business, or offices connected with, and likely to renew his wrong associations. If these trials produce no recurrence of insanity, he may, with full assurance, be regarded as lcgally compos mentis, during such period; even though he should relapse, a short time afterward, into his former malady.

Note XVI. Chap. IV. Sect. XIII.

DUELLING.

In the usages of the ancient Germans, evident traces of DUELLING may be discovered. But it was employed by them either as an appeal to the justice, or to the prescience of the gods. Velleius Paterculus informs us, that questions, decided amongst the Romans by legal trial, were terminated amongst the Germans by arms or judicial combat.* Tacitus describes it as a species of divination, by which the future events of important wars were explored. A captive from the enemy was com

* Vellei Patercul. lib. II. cap. cxviii.

pelled

pelled to fight with a man selected from their own nation. Each was accoutred with his proper weapons; and the presage of success was determined by the issue of the battle.* A law is quoted by Stiernhoök, which shews, that judicial combat was, at first, appropriated to points respecting personal character, and that it was only subsequently extended to criminal cases, and to questions relative to property. The terms 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 absent himself, let the latter be deemed worse 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 the person offended appear, and he who gave the offence be absent, 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

* Vide Tacit. de Situ, Morib. et Populis Germaniæ, Sect. X.

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 made for his death.*

Montesquieu, on the authority of Beaumanoir, whom he quotes with great respect, deduces the rise and formation of the articles, relative to the point of honour, from the following particular judicial usages. The accuser declared, in the presence of the judge, that such a person

had committed such an action: The accused made answer that he lied, upon which the judge gave orders for the duel. Thus it became an established rule, that whenever the lie was given to a person, it was incumbent on him to fight. Gentlemen combatted on horseback, completely armed. Villeins fought on foot, and with bastons. The baston, therefore, was regarded as an instrument of affront, because to strike a man with it was to treat him as a villein.

*Lex Uplandica apud Stiern.-Robertson's History of Charles V. vol. I. Note 22.

villein. For the like reason, a box on the ear, or blow on the face, was deemed a contumely, to be expiated with blood; since villeins alone were liable to receive such disgraceful blows, as it was peculiar to them to fight with their heads uncovered.*

T

Practices like these were so congenial to the proud and martial spirit of the times, as well as to the superstition which prevailed, that they became universal throughout Europe. But it is evident that they could not fail to subvert the regular course of justice, diminish the authority of government, and violate the sacred ordinances of the church. For the clergy uniformly remonstrated against, and even anathematized them, as adverse to christianity; and the civil power frequently interposed, to set bounds to usages, which its authority was too feeble to suppress. Henry I. of England, in the twelfth century, prohibited trial by combat, in all questions concerning property of small value. Louis VII. of France issued an edict to the same effect. St. Louis, who was a distinguished legislator, considering the rude age in which he reigned, attempted a more perfect jurisprudence, by substituting trial by evidence, in place of that by combat.

E.e

*See Montesquieu, Liv. XXVIII. C. XX.