BOOK III. real actions being merely questions of the jus poffeffionis, which are usually more plain and obvious, our ancestors did not in them appeal to the decifion of providence. Another pretext for allowing it, upon these final writs of right, was alfo for the fake of fuch claimants as might have the true right, but yet by the death of witneffes, or other defect of evidence, be unable to prove it to a jury. But the most curious reafon of all is given in the mirror, that it is allowable upon warrant of the combat between David for the people of Ifrael of the one party, and Goliah for the Philiftines of the other party: a reafon, which pope Nicholas I. very seriously decides to be inconclufive". Of batte! therefore on a writ of right, we are now to speak; and although, the writ of right itself, and of courfe this trial thereof, be at present much disused; yet, as it is law at this day, it may be matter of curiofity, at leaft, to inquire into the forms of this proceeding, as we may gather them from antient authors P. THE laft trial by battel that was waged in the court of common pleas at Westminster (though there was afterwards? one in the court of chivalry in 1631; and another in the county palatine of Durham' in 1638) was in the thirteenth year of queen Elizabeth, A. D. 1571, as reported by fir James Dyer; and was held in Tothill-fields, Westminster, “non "fine magna juris confultorum perturbatione," faith fir Henry Spelman, who was himfelf a witnefs of the ceremony. The form, as appears from the authors before cited, is as follows: WHEN the tenant in a writ of right pleads the general iffue, viz. that he hath more right to hold, than the demand339ant hath to recover; and offers to prove it by the body of his champion, which tender is accepted by the demandant; the tenant in the first place must produce his champion, who, by throwing down his glove as a gage or pledge, thus wages or ftipulates battel with the champion of the demandant; who, by taking up the gage or glove, ftipulates on his part to aċcept the challenge. The reafon why it is waged by champions, and not by the parties themselves, in civil actions, is because, if any party to the fuit dies, the fuit muft abate and be at an end for the prefent; and therefore no judgment could be given for the lands in queftion, if either of the parties were flain in battel: and alfo that no perfon might claim an exemption from this trial, as was allowed in criminal cafes, where the battel was waged in perfon. A PIECE of ground is then in due time fet out, of fixty feet fquare, enclosed with lifts, and on one fide a court erected for the judges of the court of common pleas, who attend there in their scarlet robes; and alfo a bar is prepared for the learned ferjeants at law. When the court fits, which ought to be by sunrising, proclamation is made for the parties, and their champions; who are introduced by two knights, and are dreffed in a coat of armour, with red fandals, barelegged from the knee downwards, bareheaded, and with bare arms to the elbows. The weapons allowed them are only batons, or ftaves of an ell long, and a four-cornered leather target; fo that death very seldom ensued this civil combat. In the court military indeed they fought with fword and lance, according to Spelman and Rushworth; as likewife in France only villeins fought with the buckler and baton, gentlemen armed at all points. And upon this and other circumstances, the prefident Montefquieu" hath with great ingenuity not only deduced the impious cuftom of private duels upon imaginary points of honour, but hath also traced the heroic madness of knight-errantry, from the fame original of judicial combats. But to proceed. WHEN the champions, thus armed with batons, arrive [ 340 ] within the lifts or place of combat, the champion of the tenant then takes his adverfary by the hand, and makes oath Co. Litt. 294. Dyverfite des courts, 304. u Sp. L. b. 28. c. 20. 22. Bb 2 that [ 341 ] that the tenements in difpute are not the right of the demandant; and the champion of the demandant, then taking the other by the hand, fwears in the fame manner that they are; fo that each champion is, or ought to be, thoroughly perfuaded of the truth of the caufe he fights for. Next an oath against forcery and enchantment is to be taken by both the champions, in this or a fimilar form; "hear this, ye "justices, that I have this day neither eat, drank, nor have "upon me, neither bone, ftone, ne grafs; nor any enchant"ment, forcery, or witchcraft, whereby the law of God may "be abafed, or the law of the devil exalted. So help me "God and his faints." THE battel is thus begun, and the combatants are bound to fight till the ftars appear in the evening: and, if the champion of the tenant can defend himself till the ftars appear, the tenant shall prevail in his caufe; for it is fufficient for him to maintain his ground, and make it a drawn battel, he being already in poffeffion; but, if victory declares itself for either party, for him is judgment finally given. This victory may arife, from the death of either of the champions: which indeed hath rarely happened; the whole ceremony, to fay the truth, bearing a near refemblance to certain rural athletic diverfions, 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 difgrace and obloquy, rather than of any determinate meaning. But a horrible word it indeed is to the vanquished champion: fince 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 libar et legalis homo; being fuppofed by the event to be proved forfworn, and therefore never to be put upon a jury or admitted as a witness in any cause. THIS is the form of a trial by battel; a trial which the tenant, or defendant in a writ of right, has it in his election at this day to demand; and which was the only decifion of fuch writ of right after the conqueft, till Henry the second by confent of parliament introduced the grand affife", a peculiar fpecies of trial by jury, in concurrence therewith; giving the tenant his choice of either the one or the other. Which example, of discountenancing these judicial combats, was imitated about a century afterwards in France, by an edict of Louis the pious, A. D. 1260, and foon after by the reft of Europe. The establishment of this alternative, Glanvil, chief justice to Henry the fecond, and probably his adviser herein, confiders as a moft noble improvement, as in fact it was, of the law. VI. A SIXTH fpecies of trial is by wager of law, vadiatio legis, as the foregoing is called wager of battel, vadiatio duelli: because, as in the former cafe the defendant gave a pledge, gage, or vadium, to try the cause by battel; fo here he was to put in fureties or vadios, that at such a day he will make his law, that is, take the benefit which the law has allowed him. For our ancestors confidered, that there were many cafes where an innocent man, of good credit, might be overborne by a multitude of false witneffes; and therefore established this fpecies of trial, by the oath of the defendant himself, for if he will abfolutely swear himself not chargeable, and appears to be a perfon of reputation, he fhall go free and for ever acquitted of the debt, or other cause of action. THIS method of trial is not only to be found in the codes [342] of almost all the northern nations, that broke in upon the w Append. No I. § 6. * Eft autem magna affifa regale quoddam beneficium, clementia principis, de confilio procerum, populis indultum; quo vitae bominum, et ftatus integritati tam falubriter confulitur,ut,retinendo quod quis poffidet in libero tenemento foli, duelli cafum declinare poffint bomines ambiguum. Ac per boc contingit, insperatae et prematurae mortis ultimum evadere supplicium,vel fal tem perennis infamiae opprobrium illius infefti et inverecundi verbi, quod in ore victi turpiter fonat, confecutivum. Ex aequitate item maxima prodita eft legalis ifta inftitutio. Jus enim, quod poft multas et longas dilationes vix evincitur per duellum, per beneficium iftius conftitutionis commodius et acceleratius expeditur. (1. 2. c. 7.) y Co. Litt. 295. Bb 3 Roman Roman empire, and, established petty kingdoms upon it's ruins; but its original may alfo be traced as far back as the Mofaical law. "If a man deliver unto his neighbour an "afs, or an ox, or a fheep, or any beaft, to keep; and it die, "or be hurt, or driven away, no man feeing it; then shall "an oath of the Lord be between them both, that he hath "not put his hand unto his neighbour's goods; and the "owner of it shall accept thereof, and he fhall not make it good." We fhall likewife be able to difcern a manifeft refemblance, between this fpecies of trial, and the canonical purgation of the popifh clergy, when accused of any capital crime. The defendant or perfon accused was in both cafes to make oath of his own innocence, and to produce a certain number of compurgators, who fwore they believed his oath. Somewhat fimilar alfo to this is the facramentum decifionis, or the voluntary and decifive oath of the civil law; where one of the parties to the fuit, not being able to prove his charge, offers to refer the decifion of the caufe to the oath of his adverfary: which the adversary was bound to accept, or tender the fame propofal back again; otherwife the whole was taken as confeffed by him. But, though a custom somewhat fimilar to this prevailed formerly in the city of London, yet in general the English law does not thus, like the civil, reduce the defendant, in cafe he is in the wrong, to the dilemma of either confeffion or perjury: but is indeed fo tender of permitting the oath to be taken, even upon the defendant's own request, that it allows it only in a very few cases; and in thofe it hath alfo devised other collateral remedies for the party injured, in which the defendant is excluded from his wager of law. [343] THE manner of waging and making law is this. He that has waged, or given fecurity, to make his law, brings with him into court eleven of his neighbours: a custom, which we find particularly defcribed fo early as in the league z Sp. L. b. 28. c. 13. de jure Suconum. l. 1. c. 9. 4.4. 10. 28. Stiernhook, 7. a Exod. xxii. 10. |