This legalized method of trial was used prior to any historical
record, but Gundobald, King of Burgundy, in 501, established the law
permanently in his kingdom, where it was continued for over eleven
hundred years. Replying to the remonstrances of one of his bishops,
he said: "=Is it not true that the event both of national wars and
private combats is directed by the judgment of God? And does not
Providence award the victory to the juster cause?="
Of a later period, Nielson says:
"=When the fourteenth century began, the duel had ceased to be in
any real sense a living proper part of law. On the continent and in
the British Isles it was alive a thousand years and more after the
enactment of Gundobald.="
The incident of David and Goliath was quoted by some as a divine
authorization of trial by combat.
Throughout Europe, England, and even America, it was a personal
privilege of men of honor, until the middle of the nineteenth century,
when, to the great honor of America, be it said, the good sense,
intelligence and courageous action of the American people caused its
abolition.
Some claimed the unlegalized continuance of it to be necessary because
of the non-justiciable questions of honor raised between disputants;
also this method of trial was not available to common people, but only
to what were known as gentlemen and so-called men of honor.
Until the first part of the 19th century judges on the bench, lawyers
in court, and other public functionaries, supposed to belong to that
small class of people "of honor" wore swords, wigs and knee breeches
when officiating, after the manner of barons, squires and knights
errant of the mediæval ages.
As examples of personal trial by combat, I select the four most famous
duels fought in America during the fore part of the last century:
Burr-Hamilton, 1804; Baron-Decatur, 1820; Graves-Cilley, 1838, and
Terry-Broderick, 1859.
Burr, Baron, Graves and Terry were the challengers, and all were
skilled professional duellists, and each killed his antagonist.
At the time of their duel, Burr and Hamilton were among the foremost
men of the country, Burr being Vice-President, and Hamilton perhaps
the most influential politician. Burr was forty-eight and Hamilton
forty-seven, conspicuous and able from boyhood. They served together
on General Washington's staff when mere youths, although Washington
soon found it necessary to relieve Burr. He retained Hamilton, and
later made him one of his cabinet.
Though both were from New York, they headed opposite political
parties. Hamilton's influence defeated Burr's appointment as brigadier
general in 1789, and also his hope of securing a foreign mission.
When Burr and Jefferson were candidates for the Presidency in 1800,
Hamilton threw his influence against Burr and Jefferson was elected.