Yet the trial by battle has never been abrogated in the English law, and it was ordered by the judges as late as the beginning of the last century.

* Note : And even demanded in the present .-- M.] [Footnote 17: Yet an ingenious friend has urged to me in mitigation of this practice, 1.

_That_ in nations emerging from barbarism, it moderates the license of private war and arbitrary revenge.2._That_ it is less absurd than the trials by the ordeal, or boiling water, or the cross, which it has contributed to abolish.3._That_ it served at least as a test of personal courage; a quality so seldom united with a base disposition, that the danger of a trial might be some check to a malicious prosecutor, and a useful barrier against injustice supported by power.

The gallant and unfortunate earl of Surrey might probably have escaped his unmerited fate, had not his demand of the combat against his accuser been overruled.] It was in the second year of his reign, while he resided in the palace and gardens of Nymphaeum, [18] near Smyrna, that the first messenger arrived at the dead of night; and the stupendous intelligence was imparted to Michael, after he had been gently waked by the tender precaution of his sister Eulogia.

The man was unknown or obscure; he produced no letters from the victorious Caesar; nor could it easily be credited, after the defeat of Vataces and the recent failure of Palaeologus himself, that the capital had been surprised by a detachment of eight hundred soldiers.