[Footnote 16: In civil cases Henry II. gave an option to the defendant: Glanville prefers the proof by evidence; and that by judicial combat is reprobated in the Fleta. Yet the trial by battle has never been abrogated in the English law, and it was ordered by the judges as late as the beginning of the last century. * Note : And even demanded in the present.--M.] [Footnote 17: Yet an ingenious friend has urged to me in mitigation of this practice, 1. _That_ in nations emerging from barbarism, it moderates the license of private war and arbitrary revenge. 2. _That_ it is less absurd than the trials by the ordeal, or boiling water, or the cross, which it has contributed to abolish. 3. _That_ it served at least as a test of personal courage; a quality so seldom united with a base disposition, that the danger of a trial might be some check to a malicious prosecutor, and a useful barrier against injustice supported by power. The gallant and unfortunate earl of Surrey might probably have escaped his unmerited fate, had not his demand of the combat against his accuser been overruled.] It was in the second year of his reign, while he resided in the palace and gardens of NymphÊum, [18] near Smyrna, that the first messenger arrived at the dead of night; and the stupendous intelligence was imparted to Michael, after he had been gently waked by the tender precaution of his sister Eulogia. The man was unknown or obscure; he produced no letters from the victorious CÊsar; nor could it easily be credited, after the defeat of Vataces and the recent failure of PalÊologus himself, that the capital had been surprised by a detachment of eight hundred soldiers. As a hostage, the doubtful author was confined, with the assurance of death or an ample recompense; and the court was left some hours in the anxiety of hope and fear, till the messengers of Alexius arrived with the authentic intelligence, and displayed the trophies of the conquest, the sword and sceptre, [19] the buskins and bonnet, [20] of the usurper Baldwin, which he had dropped in his precipitate flight. A general assembly of the bishops, senators, and nobles, was immediately convened, and never perhaps was an event received with more heartfelt and universal joy. In a studied oration, the new sovereign of Constantinople congratulated his own and the public fortune. "There was a time," said he, "a far distant time, when the Roman empire extended to the Adriatic, the Tigris, and the confines of ∆thiopia. After the loss of the provinces, our capital itself, in these last and calamitous days, has been wrested from our hands by the Barbarians of the West. From the lowest ebb, the tide of prosperity has again returned in our favor; but our prosperity was that of fugitives and exiles: and when we were asked, which was the country of the Romans, we indicated with a blush the climate of the globe, and the quarter of the heavens. The divine Providence has now restored to our arms the