In their pleadings, replies, and rejoinders, the advocates of the court
were subtle and copious; but the use of argument and evidence was often
superseded by judicial combat; and the Assise of Jerusalem admits in
many cases this barbarous institution, which has been slowly abolished
by the laws and manners of Europe.

[Footnote 137: The cautious John D'Ibelin argues, rather than affirms,
that Tripoli is the fourth barony, and expresses some doubt concerning
the right or pretension of the constable and marshal, (c. 323.)]

[Footnote 138: Entre seignor et homme ne n'a que la foi;.... mais tant
que l'homme doit a son seignor reverence en toutes choses, (c. 206.)
Tous les hommes dudit royaume sont par ladite Assise tenus les uns as
autres.... et en celle maniere que le seignor mette main ou face mettre
au cors ou au fie d'aucun d'yaus sans esgard et sans connoissans de
court, que tous les autres doivent venir devant le seignor, &c., (212.)
The form of their remonstrances is conceived with the noble simplicity
of freedom.]

The trial by battle was established in all criminal cases which
affected the life, or limb, or honor, of any person; and in all civil
transactions, of or above the value of one mark of silver. It appears
that in criminal cases the combat was the privilege of the accuser, who,
except in a charge of treason, avenged his personal injury, or the death
of those persons whom he had a right to represent; but wherever, from
the nature of the charge, testimony could be obtained, it was necessary
for him to produce witnesses of the fact. In civil cases, the combat was
not allowed as the means of establishing the claim of the demandant;
but he was obliged to produce witnesses who had, or assumed to have,
knowledge of the fact. The combat was then the privilege of the
defendant; because he charged the witness with an attempt by perjury to
take away his right. He came therefore to be in the same situation as
the appellant in criminal cases. It was not then as a mode of proof that
the combat was received, nor as making negative evidence, (according
to the supposition of Montesquieu; [139] but in every case the right to
offer battle was founded on the right to pursue by arms the redress of
an injury; and the judicial combat was fought on the same principle, and
with the same spirit, as a private duel. Champions were only allowed to
women, and to men maimed or past the age of sixty. The consequence of a
defeat was de