No tradition can tell us just when the trial by combat first came into existence.[2] Wager of battle was a natural accompaniment of the state of society existing when men were accustomed to take the law into their own hands and test the right by the might that could back it up. Battle has always been the law among the lower animals and in the evolution of the species, before society had developed the standards of our present civilization, the males of the human species, in barbarous nations, won the females much oftener through the law of battle, than by the display of intellectual attainments. Trial by battle, therefore, may be traced to the most ancient period. Sacred writ gives an analogous contest, in the memorable battle between King David and Goliah, and the destinies of nations, instead of the rights of individuals, were made to depend upon the outcome of the combat. Goliah challenged the Israelites: “Choose you a man for you, and let him come down to me. If he be able to fight with me and to kill me, then will we be your servants; but if I prevail against him, and kill him, then shall ye be our servants and serve us.”[3] And, as the principals in the trial by battle always relied upon the grace of God to further the righteousness of their cause, so King David, in his battle, relied upon the God who had saved him from the lion and delivered him from the paw of the bear, to bring to a successful issue, his contest with the giant. He went to the fight in the name of the “Lord of Hosts,” the God of the armies of Israel, and proclaimed that it was “His battle,” and he fought not with sword and spear, but would deliver the Philistines into his hands.[4] The soldier and historian, Paterculus, is authority for the statement that during the first half of the first century, when Quintilius Varus attempted the settlement of disputes among the Germans by law, he discovered that their custom had been to decide all such controversies by single combat.[5] Neilson[6] refers to the traditional statement of King Frotho the Third in the misty age of Denmark, that he “deemed it much fitter to contend with weapons than with words,” in the settlement of private disputes, and he shows how this sentiment found firm lodgment in the breast of the Norseman, whose supreme God was Odin, the God of war, for valor was the jewel of his soul. Selden states that the decision of suits by appeal to the God of battle is said to have been invented by the Burgundi, one of the northern of the German clans that flourished before the subjugation of the Gauls by the Romans. And it is true, that the first written injunction of judiciary combats that we meet with is in the laws of Gundibald, A. D. 501, which are preserved in the Burgundian code. It was not a mere local custom of that particular tribe, however, but was the common usage of all those warlike people, from the earliest times.[7]