CHAPTER IV.

TRIAL BY BATTLE.

Trial by battle, sometimes called “wager of battel,” or “battile,” as Bouvier refers to it, could be claimed in appeals of felony and in certain civil cases and was of frequent use in affairs of chivalry and honor.[1]

No tradition can tell us just when the trial by combat first came into existence.[2] Wager of battle was a natural accompaniment of the state of society existing when men were accustomed to take the law into their own hands and test the right by the might that could back it up. Battle has always been the law among the lower animals and in the evolution of the species, before society had developed the standards of our present civilization, the males of the human species, in barbarous nations, won the females much oftener through the law of battle, than by the display of intellectual attainments.

Trial by battle, therefore, may be traced to the most ancient period. Sacred writ gives an analogous contest, in the memorable battle between King David and Goliah, and the destinies of nations, instead of the rights of individuals, were made to depend upon the outcome of the combat. Goliah challenged the Israelites:

“Choose you a man for you, and let him come down to me. If he be able to fight with me and to kill me, then will we be your servants; but if I prevail against him, and kill him, then shall ye be our servants and serve us.”[3]

And, as the principals in the trial by battle always relied upon the grace of God to further the righteousness of their cause, so King David, in his battle, relied upon the God who had saved him from the lion and delivered him from the paw of the bear, to bring to a successful issue, his contest with the giant. He went to the fight in the name of the “Lord of Hosts,” the God of the armies of Israel, and proclaimed that it was “His battle,” and he fought not with sword and spear, but would deliver the Philistines into his hands.[4]

The soldier and historian, Paterculus, is authority for the statement that during the first half of the first century, when Quintilius Varus attempted the settlement of disputes among the Germans by law, he discovered that their custom had been to decide all such controversies by single combat.[5]

Neilson[6] refers to the traditional statement of King Frotho the Third in the misty age of Denmark, that he “deemed it much fitter to contend with weapons than with words,” in the settlement of private disputes, and he shows how this sentiment found firm lodgment in the breast of the Norseman, whose supreme God was Odin, the God of war, for valor was the jewel of his soul.

Selden states that the decision of suits by appeal to the God of battle is said to have been invented by the Burgundi, one of the northern of the German clans that flourished before the subjugation of the Gauls by the Romans. And it is true, that the first written injunction of judiciary combats that we meet with is in the laws of Gundibald, A. D. 501, which are preserved in the Burgundian code. It was not a mere local custom of that particular tribe, however, but was the common usage of all those warlike people, from the earliest times.[7]

Judicial duels, or combats by individuals, according to forms of law, obtained among the ancient Goths, in Sweden,[8] and this form of “searching out hidden truths,” as Selden observes, was practiced by the Russians, Hungarians, Almains and Normans.[9]

History records that the Emperor Otho, A. D. 983, at Verona, held a diet at which were assembled many lords and princes from France, Germany and Italy and in order to discourage perjury in judicial trials, the convention substituted the trial by battle in all cases, in lieu of the oaths or testimony of witnesses.[10]

In the early feudal ages, “when knighthood was in flower,” chivalry played no small part in the growth and development of the fixed rules governing the trial by battle.[11] Chivalry has always been in the world, but it finds expression according to the customs obtaining in the different stages of man’s growth and development. Because fighting was then the order of the day, in the olden times, knights were sacrificed by personal combat, for their ladies faire. When trial by battle was on the decline, Sir Walter Raleigh expressed the spirit of chivalry of that period, by spreading his cloak upon the ground for his queen to walk upon. And in this our twentieth century, with the progress of the race,—be it ever recorded to the credit of the manhood of the period—this same spirit was exemplified by the splendid lesson of hundreds of noble men heroically accepting the terrors of a mighty sea, in order to rescue the women and children from a sinking ship.[12]

The deeds of knighthood, in the England of the middle ages, came to be gauged according to fixed and settled rules and customs and finally the _Court of Honor_, was recognized, the same as the court of civil procedure, for the trial of affairs of honor, for, says Blackstone: “This court of chivalry, can order reparation at the point of honor.”[13]

The proceedings of this court were by petition, in a summary manner, and the trial, instead of by a jury, as at the present day, with witnesses, was by individual combat.[14]

The _Court of Honor_ was not a court of record and it could not imprison, but the marshalling of arms, was then the pride of the best families of the kingdom and the success in these affairs of honor, because of the spirit of chivalry of the times, was just as much guarded as was the attainment of justice through the procedure of the civil courts. Heralds and knights seconded and backed up the appeals of the principals in such encounters and the sacrifice of the individual in these mortal combats was regarded as a trifle, compared to the preservation of the family name and honor and since his attainder and the corruption of his blood and family name depended upon his success in the combat, the wager of battle was welcomed, as the only vindication of one’s manhood and honor.

The trial by battle, therefore, at a very early day, proceeded according to fixed, settled rules of law and was a recognized mode of legal procedure, just as much as was the trial by judicial proceedings. In this it differed from duelling, in that the latter was the fighting of two persons, at an appointed time and place, in the absence of law and order. In other words, the trial by battle was a mode of legal procedure, while duelling was a crime, in that the duel was not conducted according to legal rules and precedents, but the participants took the law into their own hands.[15]

Trial by battle was introduced into England, among other Norman customs, by William the Conqueror. The right could only be claimed in three classes of cases, i. e., military, or in the court martial, or court of chivalry or honor;[16] criminal, or in appeals of felony,[17] and civil, or upon issue joined in a writ of right, the last and most solemn decision of real property.[18] The reason why battle was allowed in “writs of right,” was said to be on account of the inability of establishing one’s title by action at law, in case of the death of witnesses or the absence of other evidence.

In the criminal practice the one exercising the right to wager of battle was called the “Appellee,” from the French word “Appeller,” meaning “to call,” the term being used because of the practice of calling the parties before the court.[19]

The points of difference between a trial by combat, under the writ of right and one for treason, are noted by Neilson, in his “Trial by Combat” and principal among them are, that the trial at law could be fought before any judge, while the trial for treason had to be before the King, Constable or Marshal, or a special deputy; the forms of oath were different; the duel at law was fought on foot, while for treason, it was fought on horse-back; the weapon of the trial at law, was the baton, while that for treason, was the sword and spear; the position of the combatants, in a writ of right, was north and south, while in a trial for treason, it was east and west, and in the battle under a writ of right, since the trial itself was the judgment, there was no right to stop the trial, but in a trial for treason, the king, or his representatives could stop the trial, if he so desired.[20]

In the appeal of felony, the prosecutor was bound to offer combat with his own body, but in the writ of right, the demandant could either participate in his own behalf, or through the medium of his champions’ services.[21] But even in the Norman days, when battle was in vogue, “battle did not lie” unless there was a charge of crime and at least ten shillings’ worth of property was in dispute.[22] In civil cases, professional pugilists were commonly employed and perjury became so common that the form of the compurgator’s oath was changed to prevent the wholesale commission of this crime.[23] The commonest cause of battles were those urged by an “approver,” or convicted criminal, whose pardon was conditional upon his ridding the kingdom of some half dozen or more of his associates, by his “appeals.” This custom, however, began to decline so rapidly, that in Bracton’s day the annual average of battles did not exceed twenty.[24]

The old books indicate that in appeals of felony, the custom was for the combatants to have their heads shaved, not to prevent the opponent from catching hold of the hair, but because it was an old religious custom.[25]

In discussing the trial by combat, in finance, Neilson shows how, during the reign of Henry II., large sums were paid to crown officers, for the privilege of the duel; for refusal to fight, or absence, and for fines for wrongfully claiming the right to the duel, and the same thing was true in the reign of Richard I.[26]

During the reign of Edward III. the trial by battle was discouraged by the legislation of the period and trial by jury was encouraged. The right of trial by battle was taken away in the case of an appeal for breaking the king’s prison, and the right was also denied to one “taken with the manner.”[27] And during the reigns of Edward V. and Richard III., the trial by battle in criminal cases had become so obnoxious to the people of England that it came to be established that if a valid indictment was pending for the offense charged, the right of trial by battle was denied.[28]

In the reign of Henry VI., Priscot, Chief Justice, and Needham, one of the Justices, held that in an appeal for treason, the battle could only be had before the constable and marshal.[29]

Wager of battle had been but seldom invoked in actions of debt, and in the thirteenth century, it was no longer allowed in this class of actions.[30]

A generation after the Norman conquest, Henry I., by Charter to the City of London,[31] granted exemption from the trial by battle to citizens of London, or peers of the realm, in certain cases, and a woman, a priest, an infant, a man of sixty or over, or one maimed, lame, or blind, was entitled to refuse the wager of battle and insist upon a trial by jury.[32]

In civil combat, upon issue joined in a writ of right, the tenant or defendant had to try the issue by combat, until the reign of Henry II., when the Grand Assize was provided for, and then he had his election either to try the issue by combat or by the jury trial, provided for by this king in this class of cases.

Glanville,[33] who wrote during the reign of Henry II., after the tenant was given his election to try his writ of right either by combat, or by the Grand Assize, thus describes the procedure then obtaining under the rule of civil combat:

“Both parties being present in court, and the demandant claiming the land in question, the tenant may require the view thereof: but as to this, there is respite to be made, to the end it may be known, whether the defendant have not more land in that town than what is in question; and if he have not, then he shall not be allowed any respite; but if he have more, he shall; and likewise have assignation of another day; and, when he shall be so departed out of the court, at three reasonable essoins,[34] the defendant may recover anew; and the shireeve of the county wherein the land lieth shall have a writ directed to him to send freeholders of his county to view the land.

“Then, after three reasonable essoins, concomitating the view of the said land, and both demandant and tenant appearing again in court, the demandant setteth forth his claim in this manner: ‘I do challenge against T. H. half a knight’s fee, or two carucates of land in that town, as my right and inheritance; and whereof, my father, or grandfather, was seised in his demesne, as of fee, in the time of King Henry I., or after the first coronation of the King that now is, and whereof he hath taken the profits, to the value of 10s. at the least, viz., in corn sowed, and other commodities; and this I am ready to try by this my freeman N.; and if any mischance shall befall him, then by that other person who hath seen and heard this.’ Or thus,—‘And this I am ready to try by this my freeman, S. unto whom his father, on his death-bed enjoined, upon the duty wherein a son is obliged to a father, that if at any time he should hear of a suit for that land, he should adventure himself, by combat for it, as that which his father had seen and heard.’

“The claim and demand of the demandant being thus made, it shall be in the choice of the tenant, either to put himself upon trial for the same by _combat_, or to put himself upon the _great assize_ of our lord, the king, and to require a recognition which of them hath most right in that land.

“And if he will defend it by _combat_, he is then obliged to defend the right of the demandant word to word as he sheweth it against him, either by himself or some other fitting person; but note, that after the _combate_ shall be thereupon waged, it behoveth him who holdeth the land, to defend it by _combate_, and thenceforth not to put himself into the _great assize_; and, after the _combat_ waged, he may again reasonably essoins himself thrice, as for his own person, and thrice for the person of his champion. All which essoins being made, as they rightly ought to be, it is necessary that, before the _combat_ be begun, the plaintiff do appear in court, and have his champion there in readiness to fight; nor may he bring any other champion than one of those, upon whom he did put the trial of his cause; neither may he change another for him, after the first waging of the battle....

“And if the defender (i. e., the champion) shall happen to be vanquished, his lord shall lose the land by him claimed, with the profits and commodities thereof, at the time of the seisin found in that fee, and shall never after be heard in court again for the same; but whatsoever things shall be determined by combat in the court of our lord the king are to remain firm forever; and thereupon there shall be a precept directed to the shireeve, that the victor shall have the land which was in dispute....

“This, if the demandant shall prevail in the combat; but if he be overthrown by the vanquishing of his champion, then the tenant shall be acquitted from his claim without recovery by the demandant.”[35]

Selden describes the ceremony governing the civil combat, upon issue joined upon a writ of right,[36] as follows:

“A piece of ground is in due time set out of sixty feet square, enclosed with lists; and on one side, a court erected for the judges of the court of common pleas, who attend there in their scarlet robes; and also a bar is prepared for the learned serjeants at law. When the court sits, which ought to be by sun-rising, proclamation is made for the parties and their champions, who are introduced by two knights, and are in a coat of armour, with red sandals, bare-legged from the knee downward, bare-headed, and with bare arms to the elbows. The weapons allowed them are only _batons_, or staves of an ell long and a four-cornered leather target, so that death very seldom ensued this civil combat ...

“When the champions, thus armed with batons, arrive within the lists or place of combat, the champion of the tenant then takes his adversary by the hand and makes oath that the tenements in dispute are not the right of the demandant; and the champion of the demandant then taking the other by the hand, swears in the same manner that they are; so that each champion is, or ought to be, thoroughly persuaded of the truth of the cause he fights for. Next an oath against sorcery and enchantment is to be taken by both the champions in this or a similar form: ‘Here this, ye justices, that I have this day, neither eat, drank, nor have upon me neither bone, stone, no grass nor any enchantment, sorcery, or witchcraft, whereby the law of God may be abased, or the law of the devil exalted, so help me, God and his saints.’

“The battle is thus begun, and the combatants are bound to fight till the stars appear in the evening; and if the champion of the tenant can defend himself till the stars appear, the tenant shall prevail in his cause; for it is sufficient for him to maintain his ground, and make it a drawn battle, he being already in possession; but if victory declares itself for either party, for him is judgment finally given. This victory may arise from the death of either of the champions, which indeed, hath rarely happened, the whole ceremony, to say the truth, bearing a near resemblance to certain rural athletic diversions, which are probably derived from this original; or victory is obtained, if either champion proves _recreant_; that is, yields, and pronounces the horrible word of _craven_, a word of disgrace and obloquy rather than of any determinate meaning: but a horrible word it indeed is, to the vanquished champion, since, as a punishment to him, for forfeiting the land, of his principal, by pronouncing that shameful word, he is condemned as a recreant _amittere liberam legem_; that is, to become infamous, and not be accounted _liber et legalis homo_ being supposed by the event to be proved foresworn, and therefore never to be put upon a jury, or admitted as a witness in any cause.”

Combat in criminal cases was allowed, according to Selden[37] not only in cases of treason but

“For the trial of a particular objected misdeed, cognizable by the ordinary course of the common law; and of these the justices of the king’s bench have the imposition; it is likewise permitted for the purgation of an offense against military honor, which the high court of chivalry is to marshal by the law of arms.”

The military form of trial by combat, on a criminal charge was as follows:

“First a bill of challenge is, together with a gauntlet, delivered unto the court by the appellant. The defendant denieth the point of the bill, and excepteth the gauntlet.

“Then, if the appellant have no witnesses to prove the matter of his appeal, the marshal prefixes a day, within forty, for deraigning the combat, taking pledges of both parties, to appear at the day, and to do battle between sun-rising and sun-set.

“The place appointed for the combat is a hard and even ground, railed within certain lists, sixty feet in length and forty feet in breadth; and without the lists are certain counter-lists, without which the marshal’s men come, as well to attend any extraordinary accident, within the lists, as to keep off the press of the people without.

“Their weapons are appointed, a glaive, a long sword, a short sword, and a dagger. At the day the appellant doth appear and come to the east gate of the lists, where he is admitted to enter by the marshal himself, together with his arms, weapons, victual and also his council with him; and then is brought to a certain place, within the lists, where he attends the coming of the defendant.

“The defendant, if he appear not, is called by three proclamations, made by the marshal of the king of heralds of that province wherein the battle is deraigned. The marshal’s clerk doth enter into his register their coming, the time of their coming, and the manner, whether on horse-back or on foot; the fashion of their arms and their weapons; the colour of their horses and the like.

“The marshal doth measure their weapons; and then the marshal hath a clerk ready, who brings forth the crucifix and a mass book, whereupon both the appellant and defendant do take their oaths.

“The bill of challenge of the appellant and the answer of the defendant, is read unto them by the marshal’s clerk; and then they take their oaths; First, that their appeal and defense is true; Second, that neither has advantage of other by weapon; Third, that either would do his best endeavour to vanquish his enemy.

“Then proclamation is made at every corner of the lists, for the clearing and voidance of the lists. Then the combatants, being ready, the constable and marshal, sitting at the king’s feet, pronounce these words, with a high voice: ‘_Lesses les aller, lesses les aller, lesses les aller et faire leur devoir._’

“In the fight, if either of the parties do give any sign of yielding; or if the king, being present, do cry ‘_Hoe_,’ the constable and the marshal do part them, and observe precisely who hath advantage or disadvantage, either of other at that instant; for if they should be awarded to fight again, they are to be put in the same posture as they were before. If the king take up the matter, they are brought honorably out of the lists, neither having precedency before the other. If the battle be performed, and one party be vanquished, then, in case of treason, the rails of the lists are broken down, and the party vanquished is drawn out at a horse-tail and carried presently to execution by the marshal.”[38]

The older books abound in many illustrations where the appellee, when charged by a formal accusation, with some felony, claimed the wager of battle to establish his innocence.[39]

Neilson refers to the single combat between Corbis and Orsus, fought in the presence of Scipio, for a principality in Spain.[40] And the traditional combat, in prehistoric Roman days, between the Horatti and the Curiatti is also cited, to show that the institution of trial by combat was not unknown to the Romans, at an early day.[41]

Geoffrey of Monmouth, describes the battle between King Arthur and Flollo, the Roman Tribune, at the siege of Paris, to determine who would be the master of the realm, and this realistic story of the battle, on horses, with fixed lances and the interesting narration of how King Arthur, after his horse was killed under him, drove his sword through the helmet of Flollo and cut his head in two, reads like some story from the works of fiction.[42]

Neilson notes[43] that in Mediaeval Germany, disputes between men and women were settled by combat, for chivalry does not seem to have penetrated into the warlike confines of this sturdy nation, at this period, although some notion of equalizing the contests between the weaker combatant and the stronger, obtained. The male was handicapped, in such contests, by placing him in a tub, sunk waist deep in the ground, with one hand tied behind his back. The woman was allowed a paving stone, sewed in the end of the long sleeve of her shift, or under garment and she was accorded the privilege of manouvering around her antagonist, at will, until she found a vulnerable point of attack.[44]

Perhaps the earliest reference to the trial by battle, among the adjudicated English cases, is that of Wulfstan vs. Walter, of which Lea reports that the witnesses who saw the trial stood ready to prove their assertions regarding it, by “oath and battle.”[45]

The mandate of the Conqueror’s law, that the mutilated trunk, of the defendant, convicted of treason, by combat, should remain as an evidence of his crime, in order to deter others from this hated offense, was exemplified, in the year 1096, in the case of William of Eu,[46] who, after trial by combat, had his eyes torn out and thus bereft of his sight, was sadly left to wander alone and despised through the world, a living example of the vengeance of the Lord, for the offense that he had been convicted of, by this hap-hazard method.

The battle between Henry, Earl of Essex and Robert de Montford, in the year 1163, on an island in the Thames, near the Abbey, is well attested by the history of that period. The charge of treason was preferred in Parliament and the combat was adjudged, because of the alleged cowardice of the Earl of Essex, during the Welsh war of 1157, in precipitating a panic, during a decisive engagement in a narrow pass, by throwing down his banner and giving the alarm that the king had been slain. De Montford was victorious in the battle which followed and though Essex made a fierce attack upon him, his blows were warded off and the Earl was defeated and left for dead upon the field of battle. His body was given to the Monks of Reading, for burial and he was revived and allowed to become a Monk himself.[47]

“Hobbe-the-Werwede,” an approver, much spoken of in the old books discussing trial by battle, in the fourth year of King Henry III. defeated “Walter-in-the-Grove,” but Hobbe soon afterwards faced another opponent and like many of our modern pugilists, went down to defeat, in his last battle.[48]

On October 4’, 1350, Sir John de Visconti fought Sir Thomas de la Marche, before King Edward III., within the bounds of the royal palace, at Westminster. Sir John had charged Sir Thomas with taking bribes from the infidel Turks and betraying the Christian army. The combatants were clad in armour, but their helmets were guarded, at the visor, with small bars of steel. Sir Thomas had taken the precaution to wear steel knuckles, with which he soon broke the bars of steel covering the visor of Sir John’s helmet and thus having the advantage, he punished him so severely, by repeated blows in the face, that Sir John was compelled to yield. Because of the compliment paid to the English King, in fighting this duel in his presence, when Sir Thomas returned to France, he was tried by his brother, the King, upon the charge of treason, and beheaded.[49]

The celebrated trial between the Dukes of Hereford and Norfolk, made immortal by Shakespeare, in his Richard II., occurred at Coventry, on September 16’, 1398. Hereford appealed the Duke of Norfolk of high treason, in Parliament, in the use of words tending to the king’s dishonor. Armour and coats of mail had been procured from Germany and Milan, for the warriors. Hereford, who was the people’s favorite, came to the lists mounted on a white horse, barbed with blue and green velvet. Norfolk’s horse was draped with crimson velvet. Ten thousand armed knights were in attendance, to prevent an affray and a large concourse of the populace attended, to cheer their respective favorites. When the combatants faced each other, the King, fearful, no doubt, that Hereford would prevail, banished both the combatants. Norfolk soon afterwards died, in Venice, but Hereford returned the following year to wrest the crown from the weak king and proclaim himself King Henry IV.[50]

A lawyer entered the lists, in the year 1431, when John Upton, a notary, accused John Downe of treason, in attempting to accomplish the death of the king. The duel was fought in the presence of the king, on the 24’ of January and the writ, providing for the barriers and the making of the lists; the levelling and sanding of the ground and the removal of the stones, is fully set forth in Coke, on Littleton.[51] There was a fierce fight, but the king pardoned both contestants, before the final termination of the trial.[52]

The battle between the armourer’s servant, John Davy and his master, William Catur, described by Shakespeare, in the second part of Henry VI., was actually fought, on January 31’, 1447. The armourer’s body was stripped of its armour and left upon the field of battle and the penalty of treason was inflicted, and the trunk was mutilated and the head set up on the London Bridge.[53]

The case of Thomas Whithorn, in the year 1455, reported by William Gregory, Mayor of London, is not without interest. Whithorn was a convicted thief and in accordance with the custom of the period, to save his own life, he made a number of appeals against reputable citizens, some of whom, because of his physical prowess, were unable to stand up against him and were hanged, after unsuccessful trials by battle, with him. He finally charged crime against one James Fisher, who, to save his life, concluded to fight the thief. Both contestants were clad in white sheep’s leather, over their legs, head, face, hands and bodies and they fought with green ash staves, three feet long, with an iron ram’s horn on the end. Fisher broke his weapon early in the fight and the constable then took the approver’s away too and after that they fought “teeth and nail.” Fisher finally got the thief’s nose between his teeth and his thumbs in his eyes and he so tortured him that he cried “craven” and was hanged, “for he was fals unto God and unto hym.”[54]

One of the last battles judicially fought upon English soil was that between Sir James Parker and Sir Hugh Vaughan, before Henry VII., in 1492. The battle was the result of a quarrel about certain arms given by the King to Vaughan. The fight occurred at Richmond and resulted in the victory of Vaughan over Parker. The former’s spear penetrated the helmet of Sir James and cleaved his tongue from his mouth and he died in a short time from the wound inflicted.[55]

The last trial by battle that was waged in the court of common pleas at Westminster,[56] occurred in the thirteenth year of Queen Elizabeth, A. D. 1571. This was the celebrated case of Lowe vs. Paramour, reported by Sir James Dyer[57] and also by Sir Henry Spelman,[58] who was himself a witness of the trial. The battle occurred in Tothill-fields, Westminster, “_non sine magna juris consultorum perturbatione_,” reports Sir Henry Spelman.[59]

In the last English case wherein the right of trial by battle was recognized, two citizens of the laboring class elected to decide their cause by the wager of battle, in 1818. The case was that of Ashford vs. Thornton.[60] The facts giving rise to the appeal by Abraham Thornton, in 1817, are briefly told. Mary Ashford, of Warwickshire, was drowned, under circumstances directing suspicion of foul play, against Thornton. He was arrested for her murder and tried and acquitted by a jury, but public sentiment was so aroused against him that the dead girl’s brother, instituted an appeal for murder against Thornton, and while this proceeding, after a jury trial, was quite unusual, the court held that the proceeding was proper. Thornton demanded the right of trial by battle, and the court held that he was entitled to such a trial, but before the trial, in April, 1818, the appeal was withdrawn and Thornton was discharged. Upon the legality of the proceeding of trial by battle, however, the case proceeded to judgment, before the Court of King’s Bench and Lord Ellenborough, for the court, decided that:

“The general law of the land is in favor of the wager of battle and it is our duty to pronounce the law as it is and not as we may wish it to be; whatever prejudice, therefore, may justly exist against this mode of trial, still, as it is the law of the land, the court must pronounce judgment for it.”

That this judgment was right, few, if any, lawyers would question, as the repeal of existing laws is a legislative, not a judicial function; it is the province of the courts to expound and apply, not to repeal laws regularly enacted and recognized by the legislative branch of government and although an absurd law may remain unenforced, because over-looked, it is none the less a law, although not enforced, until repealed by the proper department.

It was the judgment of the court, in the above case, however, that brought about the repeal of the right of trial by battle, in England, by the 59’ George III., c. 46.[61] By this statute it was enacted that:

“Appeals of murder, treason, felony and other offenses, and the manner of proceeding therein, have been found to be oppressive; and the _trial by battle_, in any suit, is a mode of trial unfit to be used; and it is expedient that the same should be wholly abolished.”

Accordingly, the act proceeded to abolish all appeals, in criminal cases and,

“In any writ of right now depending, or hereafter to be brought, the tenant shall not be received to wage battle, nor shall issue be joined, or trial be had by battle in any writ of right.”

Trial by battle was abolished in France, in 1260, by the good Saint Louis, for the reason that it often happened that in the contests between a rich man and a poor man, the former hired all the champions, and left the latter without help.[62] The right to a trial by battle was last recognized, in Scotland, near the close of the sixteenth century,[63] so it survived in England, after it had long ceased to exist, as a mode of judicial proceeding, in the other European countries.

Trial by battle has ever been an interesting theme in English literature. And it is little wonder that this sturdy struggle for justice, according to the light then obtaining, should be selected as the climax of the vivid plots, by the masters of poesy and fiction, depicting the chivalry of the age “when knighthood was in flower.”

If human interest were lacking in this antique procedure of the past as we read of it in the unadorned details of the trials of the period, certainly no one can fail to entertain the deepest concern for the fate of the principals we meet with in this struggle for justice, as portrayed by the poets and novelists of English literature. And instead of being overdrawn, such representations are often but true portrayals of many of the concrete cases that have come down to us, of the trials by battle, of the past centuries.

The song of Roland, chanted at the battle of Hastings, in the eleventh century, was really attuned to the theme of wager by battle, and from the appeal, to the conclusion of the duel, between Pinabel and Thierry, before Charles the Great, resulting in the punishment of the treason of Ganelon, for the fall of Roland, the legal procedure of wager by battle of chivalry is truthfully presented, even as the law writers of the period would reproduce the history of such a trial.

Chaucer, in his pure and antique style, uses the trial by battle as the expression of the chivalry and knighthood shown by Palamon and Arcite, in their battle with their hundred chosen warriors, before Theseus, for the love of the beautiful Emelye, and accurately portrays the different points of law, governing the trial by battle, in his description of this combat, from the assembling of the knights,

“Armed for lystes, up at alle rightes, All redy to derrayne hire by bataylle,”

to the final conclusion of the trial, by the conquering of Palamon and his knights.[64]

That the immortal Shakespeare was familiar with the exact details of the procedure in trials by battle, is apparent from a perusal of the various plays where he introduces this method of trial.[65]

In King Richard II., Thomas Mowbray and Bolingbroke, as “accuser and accused,” are introduced, in all of their habiliments of war, into the presence of the king, “face to face, and frowning, brow to brow.”[66]

In the same play, a Lord offers the gage to the Duke of Aumerle, in the following challenge:

“_Lord._ From sun to sun, there is my honor’s pawn; Engage it to the trial, if thou dar’st.”[67]

The Duke of Surrey, is likewise made to offer battle, in Richard II., to Lord Fitzwater, in the following words:

“_Surrey._ In proof whereof, there is my honor’s pawn, Engage it to the trial, if thou dar’st.”[68]

Vernon and Bassett implore the right of trial by battle, in 1’ Henry VI.,[69] and the details of the trial by battle between the master, Horner, and his apprentice, Peter, are set forth, with precision, in II Henry VI., much as the details are given in the case from which this scene is actually taken by the Poet.[70]

Edgar and his bastard brother, Edmund, are made to try their cause by the wage of battle, in King Lear, and the rule of Knighthood, then obtaining, is adverted to, giving the challenged one the right to decline the combat, if the right were not equal and the wronged Edgar truthfully asserts “Yet am I noble as the adversary, I came to cope withal.”[71]

Sir Walter Scott has added the zest of human interest, commonly felt for the innocent, wrongfully accused, to the uncertain fate of the gentle and lovely Rebecca, falsely accused of sorcery and witchcraft, by the valiant and fearless, but selfish, amorous and vacillating Brian de Bois-Guilbert, in Ivanhoe, and the trial by battle is utilized as the instrument of justice whereby the innocence of this gentle Jewess is established.

True to the faith of her fathers, and charitable, out of the goodness of her heart, Rebecca ministers to the wants of the peasant and then, because she turns a deaf ear to the importunities of the faithless Templar, she is arraigned and tried for sorcery and the practice of witchcraft, and would have been left without a champion, but for the chivalrous conduct of Wilfred of Ivanhoe, who, though sick and maimed, placed his implicit faith in the righteousness of his cause and the assistance of Divine aid, and the wicked de Bois-Guilbert is stricken by a power from on high, because he fought upon the side of an unrighteous cause.

From the time that Rebecca offers the gage of battle, until the close of this interesting trial, by her tardy champion, who hazarded his life in her defense, against such fearful odds, in the tilt-yard of Temple stowe, we can but see that the author of this humanly interesting story had accurately studied the details of these trials by battle, as given in the older books.

After the evidence of the witnesses to her sorcery, had been taken, the accused demanded her right of trial by battle, through the service of a champion, in “respect of lawful essoine of her body.” The author uses the exact words, given by Glanville, whereby she invokes the preliminary delay to prepare for trial. The herald opened the court and made announcement of the pending issues, in the usual manner; the court was regularly adjourned to a day certain for the trial. On the appointed day, the details of the trial are presented, just as such trials obtained in the courts of chivalry and honour of the period depicted. The accused, in the presence of the court, was interrogated, from her black chair, placed near the funeral pile, as to her readiness for the combat. She begged the indulgence, which the law granted to her, of a short delay, after invoking the aid of Divine wisdom, for her deliverance. Her champion appears in true knightly fashion at the last moment and after gaining the recognition of the court, and permission to do battle for his fair principal, he throws the customary words of defiance into the very teeth of the false Bois-Guilbert and the battle proceeds, until the death of Bois-Guilbert, pronounced by the Court, in accordance with the superstition of the times, as a consummation devoutly to be wished, because it was, in fact, “the judgment of God.”

In “The Fair Maid of Perth,” Scott also describes the trial by battle as used to decide the destinies of the Clan Quhele and the Clan Chattan, assisted by the volunteer Henry Wynd, upon the field of North Inch, whereat the whole tribe of the Clan Quhele was annihilated in the combat with the race of the “Cat-a-Mountain.”[72]

Thackeray had also studied the procedure of trial by battle, for he introduces it into his plot in his realistic story of “Henry Esmond” and Crockett, in his “Black Douglas,” makes the Earl William and James Douglas, of Avondale, enter into a legal trial by battle, just as the law of Scotland in the fifteenth century governed such trials.

But it is not the purpose of this chapter to treat extensively of trials by battle, as presented in the literature of England, but only to trace the rise, growth and decay of this mediaeval institution, as evidenced by the law writers of the past and illustrated by the works of poetry and fiction, portraying this ancient mode of trial, which was superceded by the fairer method of jury trial and with the other barbarous customs of the dark, misty past, has faded away, with the generations that have crept to rest, before the dawn of our modern jurisprudence.

FOOTNOTES:

[1] Herbert’s Antiquities, pp. 110, 130; Coke, Lyttleton, sec. 294.

[2] Neilson says: “Trial by combat came into existence—no tradition knows when.” Neilson’s “Trial by Combat,” p. 1.

[3] 1 Samuel, XVII., 8, 9.

[4] The Mirror (C. 3, Par. 23) states that the trial by battle was allowable upon the warranty of the combat between the Shepard King of the Israelites and the Giant of the Philistines, but Pope Nicholas I. quite seriously decides this precedent to be inconclusive. (Decret. Par. 2, Caus. 2, qu. 5, c. 22.)

The belief that the Deity would interfere on the side of the right, in these combats, originated with the institution itself, for we are told, that when King Gundobald, in the year 501, decreed the trial by battle as an antidote to perjury, he replied to the remonstrances of the churchmen by the argument that “The event both of national wars and private combat is directed by the judgment of God and Providence awards the victory to the juster cause.” (II. Gibbon, ch. 38; Esprit des Lois, book 28, ch. 17; Neilson’s Trial by Combat, p. 6.)

Neilson rejects the suggestion that trial by battle was divinely instituted when David, with his Sling, slew the mighty man of war of the Philistines, as did Pope Nicholas First, in the year 867. Neilson’s “Trial by Combat,” p. 2.

[5] Velleius Paterculus, ii, ch. 117; Tacitus, Germania, ch. 10; Neilson, “Trial by Combat,” p. 4.

[6] Neilson, “Trial by Combat,” p. 10.

[7] Selden, on Duels, ch. 5; Herbert’s “Antiquities of Inns of Court,” pp. 109, 115; Bl Com.

[8] Stiernh. de jure Sueon, I. 1. c. 7.

[9] Herbert’s “Antiquities of Inns of Court,” p. 109, 115.

[10] 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.)

[11] Neilson, in speaking of the effect of chivalry, upon the trial by battle, observed: “It reached its legal prime in the early feudal ages and enjoyed a new era of activity under the auspices of later chivalry.” Neilson’s “Trial by Combat.” p. 1.

[12] This is _de hors_ the subject at hand, but demonstrates that chivalry and heroism are still abroad in the land and that these virtues are confined to no particular class.

[13] 3 Cooley’s Bl. Com. 104; Coke, Litt. 261.

[14] _Ante idem._

[15] Comyns Dig. 252.

Neilson states that private duels succeeded trial by battle, in the 16’ and 17’ centuries, but of course trial by battle was not abolished in England until the year 1819, and duelling had continued for several centuries then. (Neilson’s “Trial by Combat,” pp. 18, 328.)

[16] Coke, Litt. 261.

[17] 2 Hawk. P. C. c. 45.

[18] Neilson’s “Trial by Combat,” p. 40.

[19] Coke, III. Inst. 157; I. Russell, Crimes, 495.

That Trial by Battle was introduced into England by the Normans, is now quite generally conceded. “One ordeal the Normans recognized which had no place in English law, namely, the ordeal of battle.” I. Pollock and Maitland’s History Eng. Law, p. 74.

We find that William of Normandy, with his studious desire to preserve English institutions and protect Englishmen, in defining the procedure which should obtain if a Frenchman accused an Englishman, or _vice versa_, provided that the Englishman whom a Frenchman accused had the choice between battle and ordeal, but if the Englishman accused the Frenchman, the former had the right to compel the latter to join battle, or otherwise the Frenchman could swear away the charge, with oath helpers, according to Norman law. The Englishman was thus recognized as the Norman’s peer, but as was not accustomed to the ordeal by battle, he was given the choice of this procedure, if he preferred to avail himself of it, and the Norman, by a strict rule of justice, was required to purge himself, even though the Englishman would not fight. (Laws of William, c. 6; Forschungen, 328; I. Pollock and Maitland’s History English Law, pp. 89, 90.)

For reference to the trial by battle, during the reigns of William I. to Henry II., see, I. Reeve’s History English Law, pp. 329, 331, and note citing the Mirror.

[20] Neilson’s “Trial by Combat,” pp. 188, 189.

[21] II. Pollock and Maitland’s History English Law, p. 632, Bracton, fol. 347.

[22] Leg. Hen. 59, sec. 16.

[23] I. St. Westm. c. 41.

[24] Bracton, fol. 152, 153; Select Pl. Crown, pl. 109, 140, 190, 199.

[25] Neilson’s “Trial by Combat,” pp. 56, 57.

In the class of civil or criminal cases where the right of trial by battle obtained, when the plaintiff offered battle, the defendant was bound to accept the offer. Having offered to defend the charge preferred against him, in legal contemplation, he volunteered to defend it with his own body, or with the body of his freeman, “when and where the court shall consider that defend he ought.” He then tendered his gage and pledges to the court that on the given day set, he would perform the task assigned to him. (Year Book, 21, 22, II. Edw. I., pp. 9, 167; II. Pollock and Maitland’s History English Law, pp. 610, 611.)

The champion, originally, was a witness and it was as such that he intervened. In a plea for land, he testified to having seen the seisin and that either he or his father saw the claimant in the possession of the land. (Neilson’s “Trial by Combat,” p. 48.)

While hired champions were forbidden by the law, it became a very common practice and Neilson gives many such contracts in his interesting and thorough book, on “Trial by Combat,” pp. 48, 54.

Maynard’s Year Books, contain the history of many trials occurring during the reigns of Edward III. and Henry VI. The report of one such trial, in the year 1329, describes the champions as appearing with shaven heads, ungirt coats, bare legged and bare armed, tendering a glove, with a penny in each finger, to the judge, who afterwards offered the pennies on the altar of the nearest church, in order that “God might give the victory to him who was in the right.” (Maynard’s Year Books, I. Henry VI., pp. 6, 7; _idem._ 21 Henry VI., pp. 19, 20.)

As the pugilists of the present day, have managers, who conduct the combats between the champions for the wager of the ringside, so men of the thirteenth century kept pugilists for hire, whose services were quite generally used in these trials. One of these champions was Richard of Newnham, whose master, or manager, was William of Cookham (Note Book, pl. 185, 400, 551), whose expert services were much in demand about the year 1220.

[26] Neilson’s “Trial by Combat,” p. 40; Maddox, 71, 66, 311, 349, 379.

[27] III. Reeve’s History English Law, p. 329.

[28] 22 Edward IV., 19; IV. Reeve’s History English Law, p. 58.

[29] 37 Henry VI. 20; IV. Reeve’s History English Law, p. 58.

[30] II. Pollock and Maitland’s History English Law, p. 214.

[31] Herbert’s “Antiquities of Inns of Court,” p. 130.

[32] Neilson’s “Trial by Combat,” p. 46.

Clergymen were exempted from the trial by battle and by 41 Edward III., an appellant, on entering the field of battle could avoid the fight, by praying his clergy. (Herbert’s “Antiquities of the Inns of Court,” 130.)

By the Charter of London, the following citizens were also exempted from trial by battle, _viz._, _sexagenarii_, or men of three score years; _coecus_, or those blind by accident after issue joined. (_Ante idem._)

The exemption granted by Henry I., by the Charter of London, was followed by many other similar exemptions. Newcastle-on-Tyne, Norwich, Oxford and Winchester, soon followed and almost every borough strove to procure like exemptions. (Stubbs’ Charters, Thompson’s English Mun. History.)

Mayhem was a good ground for exemption from trial by combat. Crown Pleas, No. 4, 9; Bracton, ii, 458, 468; Glanville, XIV., ch. I; Neilson’s “Trial by Combat,” 46.

[33] Beames Glanville, pp. 36, 41; Herbert’s “Antiquities of the Inns of Court,” pp. 110, 115.

[34] An _essoin_ is defined by Sir Edward Coke as an excuse, the term being taken from the French verb, _essonier_, or _exonier_. The term was introduced into England by the Normans. Note to Beame’s Glanville, p. 6.

[35] Beames, Glanville, p. 41; Herbert’s “Antiquities of Inns of Court,” 115.

[36] Selden, impr. Duello, Lond. 1610; Herbert’s “Antiquities of the Inns of Court,” pp. 115, 117; Select Pleas of Crown, Pl. 87; II. Pollock and Maitland’s History English Law, p. 634.

During the twelfth century, in controversies between the Lord paramount and the tenant as to the right to the possession of real estate, the duel or battle was a method of trial generally in vogue. In the reign of Henry II., while the tenant, in a writ of right, had his election to defend his title by duel, “as a royal benefit conferred on the nation, by the prince in his clemency, by the advice of his nobles, as an expedient whereby the lives and interests of his subjects might be preserved, and their property and rights enjoyed _without being any longer obliged to submit to the doubtful chance of the duel_,” we find the institution of the _assize_ guaranteed to the subjects by the king, and this constitution is perhaps the first guaranty of the trial by jury in the English law. (Glanv. lib. 2, c. 4, 5, 6; I. Reeve’s History Eng. Law, pp. 393, 395.)

The proceeding for the recovery of land during the reign of Henry II. and preceding reigns, is not without interest. The claim of the demandant, or claimant, was based only upon evidence _de visu et auditu_, or by the proof furnished by his freeman, whose evidence was either as to what he had actually seen and knew, or upon what his father had told him, and had enjoined upon him, on his death-bed, by the faith that a son owed to a father, which he was to assert, if he ever heard of any plea being urged as to the land in controversy. (Glanv. lib. 2, c. 3.)

If the tenant elected to try the issue by the duel, or battle, he could not afterwards resort to the assize, but must meet the issue _de verbo in verbam_, as the demandant, or claimant had asserted his title. The demandant could not be his own champion, but the tenant could defend himself, either in person or by a champion, and after the customary essoins, the battle proceeded. If the champion of the demandant was conquered, the demandant lost his suit and the champion was never again a competent witness in a duel. If the champion of the tenant, or the tenant himself was conquered, he lost the land with all the fruits and produce on it, and he was never afterwards to be heard in a court of justice concerning the same. In other words, the final effect of a trial by battle was as conclusive as the judgment of a court of competent jurisdiction and furnished the basis for a good plea of _res adjudicata_ in all subsequent controversies over the same land in the future, between the same parties. (Glanv. lib. 2. c. 4, 5; I. Reeve’s History Eng. Law, p. 394.)

Neilson complains because neither Glanville, Bracton, Britton, nor Fleta, describe the procedure governing the actual fighting of the duel in an English plea for land under a “writ of right.” (Neilson’s “Trial by Combat,” p. 86.) The above description of such a combat, is deemed accurate, from sources consulted and for the authorities consulted, the reader is referred to Herbert’s “Antiquities of the Inns of Courts,” pp. 115, 117.

[37] Selden, Duello, impr. Lond. 1610; Mich. 6 R. I. ret. 3.

[38] This is a quotation from an old manuscript book, belonging to Sir Edw. Windham, knight, Marshal of the Camp, to King Henry VIII. See, Herbert’s “Antiquities of the Inns of Court,” pp. 119, 131.

[39] Coke, Litt. 287; 4 Shars. Bl. Comm. 312, 318, and notes.

[40] Neilson’s “Trial by Combat,” p. 3.

[41] Livy, book I., ch. 24, book 28, ch. 21.

[42] Geoffrey of Monmouth, lx, ch. II; Neilson’s “Trial by Combat,” p. 25.

[43] Neilson’s “Trial by Combat,” p. 8.

[44] If this procedure obtained today, it would have a wholesome effect, in some of the disgraceful controversies in our divorce courts.

[45] Lea, “Superstition and Force,” (4 ed.) 120.

Thayer states that the earliest reference to the trial by battle in English adjudicated cases, is that of Bishop Wulfstan vs. Abbot Walter, in the year 1077. (Essays in Anglo-Saxon Law, 379; Bigelow’s Placita Anglo-Normanica, 19; Brunner, Schw. 197, 400-1; Thayer’s Older Modes of Trial, V. Harvard Law Review, 66; II. Essays in Anglo-American Legal History, 397.)

The history of cases of trial by battle that were preserved, in England, prior to Glanville’s time, are to be found in Bigelow’s Placita Anglo-Normanica.

[46] I. Ancient Laws England, 494; Neilson’s “Trial by Combat,” p. 59.

[47] Carlyle’s “Past and Present,” book II., ch. 14; Jocelin of Brakelond’s Chronicle, p. 52; Neilson’s “Trial by Combat,” pp. 61, 62.

[48] Neilson’s “Trial by Combat,” pp. 43, 44.

[49] Galfridus le Baker, 208, 210; Walsingham, i, 275; Myrick, ii, 32; Neilson’s “Trial by Combat,” pp. 168, 170.

[50] Hall, 4; Adam of Usk, 131; Trekolowe, 225; Neilson’s “Trial by Combat,” pp. 190, 193.

[51] IV. Coke, Littleton, ed. 1817, ch. 17.

[52] John Stowe’s Survey, iii, 239, 371; Neilson’s “Trial by Combat,” 199.

[53] Gregory, 187; Nichols’ “Illustrations of Manners,” (1797) p. 217; John Stowe, 385; Neilson’s “Trial by Combat,” p. 201.

[54] Gregory, 199, 200; Neilson’s “Trial by Combat,” pp. 154, 157.

[55] John Stowe, 475; Neilson’s “Trial by Combat,” pp. 203, 204.

[56] Afterwards a battle occurred in the court of chivalry, in 1631. (Rushw. Coll. vol. II., part 2, fol. 112; 19 Rym. 322.) And another in the county palatine of Durham, in 1638. (Cro. Car. 512.)

[57] Dyer, 301.

[58] Spelman’s Gloss (_sub voc._ Campus, 1625), 102.

[59] _Ante idem._

[60] I. Barn. & Ald. 405.

[61] I. Barn. & Ald. 405; 3 Shars. Bl. Comm. 339; 4 _idem._ 347.

[62] Grandes Chroniques de France, M. Paulin, Paris, vol. IV., pp. 427, 430; Brunner, Schw. 297; “Older Modes of Trials,” by Thayer, V. Harvard Law Rev., p. 67; II. Essays in Anglo-American Legal History, note, p. 398.

[63] Stephens’ History Criminal Law, in England; Neilson’s “Trial by Combat,” p. 319.

The reader, interested in following the many illustrations of the trial by combat, in individual instances occurring at various periods during the centuries from 1100 to 1600, in Scotland, will find copious references to such trials, in Neilson’s “Trial by Combat.”

[64] For full explanation of the different legal phases presented in this poem, see, Neilson’s “Trial by Combat,” pp. 180, 188.

[65] See White’s “Law in Shakespeare,” for full discussion of this and other scenes on “Trial by battle,” as used by Shakespeare.

[66] King Richard II., Act I., scenes I. and III.

[67] King Richard II., Act IV., Scene I.

The dramatic quarrel between Henry, earl of Hereford (afterward King Henry IV.) and the Duke of Norfolk, presented by Shakespeare in his play, Richard II., is described by a graphic writer in Herbert’s “Antiquities,” pp. 145, 146.

[68] King Richard II., Act IV., Scene I.

[69] Act IV., Scene I.

[70] Act I., Scene III., and Act II., Scene III.

[71] King Lear, Act V., Scene III.

For exposition of the above portions of Shakespeare’s plays, dealing with “Trial by Battle,” see, White’s “Law in Shakespeare,” Sec. 191, pp. 229, 232.

[72] The combat between the Clan Chattan and Clan Kay, on the Inch of Perth, made memorable by this great novelist, actually occurred in the year 1396. (Neilson’s “Trial by Combat,” 239; 244; 250; Bower, xv, ch. 3.)