2-5 i
The duel was, in one view, a precaution of civil polity; inanother, an institution of honor. These distinctive charactersit here in its o igin. Book I. Chap. 2. Sefl. 4. And, in thesedifferent respects, it was governed by different forms. Thecommon law, a >d the ordinary judges, directed it in the onecondition ; the court of chivalry , or the constitutions whichgave a foan ation to this court, gove ned it in the other. Inreading what many authors hive amassed on the duel , it isdifficult to know what refers to the former state of the matter,and what to the latter. Tney either knew not the distinction,or possessed an imp rfect notion of it. Even in the researchesof Montesquieu , concerning the judicial combat, there isthence, perhaps, a faintness and embarrassment; and, inthe observations of Dr. Robertson , on the same subject, theconfusion is evident and palpable. See Note 22. to Charles V.
It has been affirmed, indeed , that the court of chivalrywas not known till the eleventh century, or till a period still ■later. And, it is probable, that this court, in all its formali-ties , and in its condition of greatest splendor , existed not inan early age. Cut there is evidence, that its duties were ex-ercised in very ancient tmss. And , from an examinationof the oldest laws of the barbarians , it is to be inferred , thatthe business of it, except perhaps in a few instances , was notdetermined by the common judges. ¥e know , at least, withcertainty, in England , in the Saxon eta , before a regularcourt of chivalry was established , points of honor and of warwere under the direction of the btretoebs , while the duel,as a civil rule, was at the direction of the common judges;and that, in the Norman age, when the court of chivalry wasformally in existence, with extensive powers , the conßableand the marshal h.-d succeeded to the jurisdiction of theheretochs. Spelman ,, Glojs. p. 400. Sir Edvsard Cokt on thecourt os chivalry.
The determination of a doubt, for which no complete evi-dence could be produced , was the end of the duel as a civilprecaution. The decision of points pf honor, ?nd disputes ofarms, or the satisfaction of a proud and a wounded spirit,was the end of the duel, as an institution of chivalry. While