Thackeray had also studied the procedure of trial by battle, for he introduces it into his plot in his realistic story of “Henry Esmond” and Crockett, in his “Black Douglas,” makes the Earl William and James Douglas, of Avondale, enter into a legal trial by battle, just as the law of Scotland in the fifteenth century governed such trials. But it is not the purpose of this chapter to treat extensively of trials by battle, as presented in the literature of England, but only to trace the rise, growth and decay of this mediaeval institution, as evidenced by the law writers of the past and illustrated by the works of poetry and fiction, portraying this ancient mode of trial, which was superceded by the fairer method of jury trial and with the other barbarous customs of the dark, misty past, has faded away, with the generations that have crept to rest, before the dawn of our modern jurisprudence. FOOTNOTES: [1] Herbert’s Antiquities, pp. 110, 130; Coke, Lyttleton, sec. 294. [2] Neilson says: “Trial by combat came into existence—no tradition knows when.” Neilson’s “Trial by Combat,” p. 1. [3] 1 Samuel, XVII., 8, 9. [4] The Mirror (C. 3, Par. 23) states that the trial by battle was allowable upon the warranty of the combat between the Shepard King of the Israelites and the Giant of the Philistines, but Pope Nicholas I. quite seriously decides this precedent to be inconclusive. (Decret. Par. 2, Caus. 2, qu. 5, c. 22.) The belief that the Deity would interfere on the side of the right, in these combats, originated with the institution itself, for we are told, that when King Gundobald, in the year 501, decreed the trial by battle as an antidote to perjury, he replied to the remonstrances of the churchmen by the argument that “The event both of national wars and private combat is directed by the judgment of God and Providence awards the victory to the juster cause.” (II. Gibbon, ch. 38; Esprit des Lois, book 28, ch. 17; Neilson’s Trial by Combat, p. 6.) Neilson rejects the suggestion that trial by battle was divinely instituted when David, with his Sling, slew the mighty man of war of the Philistines, as did Pope Nicholas First, in the year 867. Neilson’s “Trial by Combat,” p. 2. [5] Velleius Paterculus, ii, ch. 117; Tacitus, Germania, ch. 10; Neilson, “Trial by Combat,” p. 4. [6] Neilson, “Trial by Combat,” p. 10. [7] Selden, on Duels, ch. 5; Herbert’s “Antiquities of Inns of Court,” pp. 109, 115; Bl Com. [8] Stiernh. de jure Sueon, I. 1. c. 7. [9] Herbert’s “Antiquities of Inns of Court,” p. 109, 115. [10] Henrion de Pansey, _Auth. Judic._ Introd. E. 3. Some historians trace the origin of trial by battle to the fact that perjury became so prevalent that this procedure was resorted to to avoid the evil effects of this crime. (I. Pollock and Maitland’s History English Law., p. 50.)