Note 10 — Chapter IV · Trial by Battle.
Reading edition
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.)
It is rather to be accounted for by the fact that it originated in the customs of a warlike race, where force and superstition were a part of the habits and customs of the people. (Lea. “Superstition and Force,” 4 ed. p. 409.)
The Burgundian and Lombard rulers, in accordance with the natural fighting tendency of their subjects, were brought to recognize the trial by battle, because it combined the physical joy of battle with the higher ideals of an approved formal procedure, whereby the virtue known as justice was supposed to be attained. In other words, the trial by battle was the natural expression of the inclinations of both ruler and subject of the period when it was established and crept into the established procedure of the period, just as naturally as did the superstitions of the past centuries,—the belief in witchcraft and ghosts,—find expression along with the gems of literature of the same and a later period. The institution was a product of the barbarism of the time. And trial by battle was recognized as a form of ordeal which obtained among the warlike German tribes from very ancient times, but it was not practiced by the ancestors of the Anglo-Saxons. (I. Pollock and Maitland’s History English Law, p. 51.)