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[certain phrases of abjuration retained among the common people (u).

These two antiquated methods of trial, were principally in use among our Saxon ancestors.] The next,-which though in modern times almost wholly laid aside, yet remained in force in the English law, till its abolition by the 59 Geo. III. c. 46 (x),—owed its introduction among us to the princes of the Norman line; and that is

III. The trial by battel, duel, or single combat (y); which was another species of presumptuous appeal to Providence, under an expectation that Heaven would unquestionably give the victory, to the innocent or injured party.] This obtained in appeals (z), and in approvements (a); and also in the civil action called a writ of right (b). [The first written injunction of judiciary combats that we meet with, is in the laws of Gundebald, a.d. 501, which are preserved in the Burgundian code; yet it does not seem to have been a local custom of this or that particular tribe, but to have been the common usage of all the northern people from the earliest times (c).] In a writ (u) As "I will take the sacrament upon it," "May this morsel be my last," and the like.

(x) Vide sup. p. 464.

(y) On the subject of trial by battel, some valuable information will be found in Hallam's Mid. Ag. vol. i. pp. 277-294.

(2) As to appeals, vide sup. p.

463. The last occasion on which trial by battel was offered in an appeal, was in Abraham Thornton's case in the year 1818 (1 Barn. & Ad. 405).

(a) 2 Hale, P. C. p. 233. As to approvements, vide sup. p. 479.

(b) This was one of the real actions now abolished. (Vide sup. vol. 111. pp. 507, 511, 608.) The last occasion on which trial by battel VOL. IV. ::

in a writ of right was awarded (of which we have an authentic account), was in the 13 Eliz. in the year 1571; and was granted, says Sir Henry Spelman, non sine magná jurisconsultorum perturbatione. (See Dyer, 301, from whose report it appears that no actual combat took place, the demandants making default.) Blackstone (vol. iii. p. 338) refers, however, to a later trial, which he states was waged in the county palatine of Durham in 1638. (See Cro. Car. 512.)

(c) Seld. on Duels, c. 5; et vide Stiern. de Jure Sueon. 1. 1, c. 7. Mr. Hallam says (vol. i. p. 278, in notis), that it may be met with under the first Merovingian kings in France; and was established by

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of right, [when the tenant pleaded the general issue; viz. that he had more right to hold than the demandant to recover;] he might offer to prove it by the body of his champion (d): which tender being accepted by the demandant, the champion for the tenant threw down his glove, as a gage or pledge; and was then said to wage battel with the champion of the demandant; who by taking up the gage or glove accepted on his part such challenge (e). And the battel was thus waged by champions, and not by the parties themselves, in order principally, as it would seem, [that no person might claim an exemption from this trial; as was allowed in criminal cases, where the battel was waged in person (f).] A piece of ground was then set out; and the champions were introduced, armed with batons and staves an ell long, and a fourcornered leather target. [In the court military, indeed, they fought with sword and lance, according to Spelman and Rushworth: as likewise, in France, only villeins fought with the buckler and baton; gentlemen, armed at all points. And upon this and other circumstances, Montesquieu hath, with great ingenuity, not only deduced the

the laws of the Alemanni or Swabians, and also of the Lombards; and he cites Baluz. t. 1, p. 80, and Muratori, Script. Rer. Ital. t. 2, c. 65.

(d) The wager of battel was the only decision of the question of right on a writ of right, after the Conquest, until Henry the Second, by consent of parliament, introduced the grand assize, a peculiar species of trial by jury, in concurrence therewith; giving the tenant his choice of either the one or the other. The establishment of this alternative, Glanvil, chief justice to Henry the second, and probably his adviser herein, considers as a most noble improvement, (as in fact it

was,) of the law. "Est autem magna assisa regale quoddam beneficium, clementia principis, de consilio procerum, populis indultum; quo vitæ hominum, et status integritati tam salubriter consulitur, ut in jure quod quis in libero soli tenemento possidet retinendo, duelli casum declinare possint homines ambiguum. Ac per hoc contingit, insperata et præmaturæ mortis ultimum evadere supplicium, vel saltem perennis infamiæ opprobrium illius infesti et inverecundi verbi, quod in ore victi turpiter sonat, consecutivum."— L. 2, c. 7.

(e) 3 Bl. Com. 338, 339.

(f) See also on the reason of this practice, Co. Litt. 294; Dyversité des Courtes, 304.

[impious custom of private duels on imaginary points of honour, but hath also traced the heroic madness of knight errantry, from the same original of judicial combats (g). But to proceed:]

When the champions arrived within the lists, the champion of the tenant took his adversary by the hand, and made oath that the tenements in dispute were not the right of the demandant; and the champion of the demandant, then taking the other by the hand, swore in the same manner that they were; next an oath against sorcery and enchantment, was to be taken by both the champions, in this or a similar form, "Hear this, ye justices, that I have "this day neither eat, drank, nor have upon me neither

bones, stones, ne 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 (h)."

The battel was thus begun; and the combatants were bound to fight till the stars appeared in the evening: and if the champion of the tenant could defend himself till the stars appeared, the tenant was to prevail in his cause; but if victory declared itself for either party, for him was judgment finally given. This victory might arise from the death of either of the champions, or by either of them proving recreant, i. e., yielding, and pronouncing the horrible word of craven; a word of disgrace and obloquy, rather than any determinate meaning (i). The effect of the termination of the battel in either of these modes was,

(g) Sp. L. b. 28, cc. 20, 22.

(h) 3 Bl. Com. p. 340, who cites Dyer, 301, and Spelm. Gloss. 103. And see Rushw. Coll. vol. ii. pt. 2, fol. 112; 19 Rym. 322; R. v. Dryden, Cro. Car. 512, and 11 Harg. St. Tr. 124, where will be found an account of the proceedings in the last trial by battel, which took place in this country, viz. that in the case of Lord Rea v. Ramsey (7 Car. 1).

Mr. Hallam (vol. i. p. 278, 7th ed.),
refers for the ceremonies of trial by
combat, to Houard, Anc. Loix de
France, t. 1, p. 264; Velly, t. 6, p.
106; Recueil des Historiens, t. 2,
pref. p. 189; Ducange v. Duellum.
But he says the great original autho-
rities, are the Assises de Jerusalem,
c. 104, and Beaumanoir, c. 31.
(i) 3 Bl. Com. 340.

that the vanquished party forfeited his claim, and paid a fine (j): and the champion, if recreant, was condemned amittere liberam legem; i. e., to become infamous, and not to be accounted liber et legalis homo,-being supposed by the event to be proved foresworn, and not fit to be put upon a jury, or admitted as a witness in any cause (k).

In an appeal or approvement, the trial by battel might also be demanded at the election of the appellee, and was carried on with equal solemnity, as in a writ of right: but as each party was here to fight in his proper person,—the appellant or approver, if a woman, a priest, an infant, or of the age of sixty, or lame or blind, might counterplead, and refuse the wager of battel; and compel the appellee to put himself upon the country, that is, submit to trial by jury. Also peers of the realm, bringing an appeal, were not to be challenged to wage battel, on account of the dignity of their persons; nor the citizens of London by special charter, because fighting seems foreign to their education and employment. So likewise if the crime were notorious, as if the thief were taken with the mainour (l), or the murderer in the room with the bloody knife,-the appellant might counterplead and refuse the tender of battel from the appellee (m); for it was unreasonable that an innocent man should stake his life against one who was already half convicted (n).

(j) Hall. Mid. Ag. ubi sup.
(k) 3 Bl. Com. 340. The com-

piler of the Assises de Jerusalem, c.
167, thinks it would be very in-
jurious if no wager of battel were
to be allowed against witnesses in
causes affecting succession; since
otherwise every right heir might be
disinherited; as it would be easy to
find two persons who would perjure
themselves for money, if they had
no fear of being challenged for their
testimony. The demandant's cham-
pion was in fact a witness upon the
question of right; and this passage,

as Mr. Hallam remarks, "indicates "the real cause of preserving the

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'judicial combat; systematic per"jury in witnesses, and want of

legal discrimination in judges."Hall. Mid. Ag. vol. i. p. 282.

(1) Vide sup. p. 457.

(m) Hawk. P. C. b. 2, c. 45, s. 7. An example of a counterplea of wager of battel, on the principle mentioned in the text, actually occurred in the modern case of Ashford v. Thornton, (1 Barn. & Ald. 405,) already instanced (vide sup. p. 497). (n) 4 Bl. Com. 347.

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[The form and manner of waging battel upon appeals and approvements, were much the same as upon a writ of right (o). The appellee, when appealed of the felony, pleaded not guilty, and threw down his glove; and declared he would defend the same with his body. The appellant, in accepting the challenge, took up the glove; and replied that he was ready to make good his appeal, body for body: and thereupon the appellee, taking the Bible in his right hand, and in his left the right hand of his antagonist, swore to this effect, "Hoc audi, homo, quem per manum teneo, &c.," "Hear this, O man, whom I hold by the hand, "who callest thyself John by the name of baptism, that I, "who call myself Thomas by the name of baptism, did not feloniously murder thy father, William by name, nor am "anywise guilty of the said felony; so help me God and "the saints; and this I will defend against thee by my body, as this court shall award." To which the appellant replied, holding the Bible and his antagonist's hand in the same manner as the other, "Hear this, O man, whom I "hold by the hand, who callest thyself Thomas by the "name of baptism, that thou art perjured; and therefore "perjured, because that thou feloniously didst murder my "father, William by name; so help me God and the "saints: and this I will prove against thee by my body, "as this court shall award (p)." The battel was then fought with the same weapons, the same solemnities, and the same oaths against amulets and sorcery, that were used in the civil combat: and if the appellee were so far vanquished as not to be able or willing to fight any longer, he

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(o) Flet. 1. 1, c. 34; Hawk. P. C. b. 2, c. 45.

(p) There is a striking resemblance between this process and that of the court of Areopagus, at Athens, for murder; wherein the prosecutor and prisoner were both sworn in the most solemn manner:

the prosecutor that he was related to the deceased (for none but near relatives were permitted to prosecute in that court), and that the prisoner was the cause of his death; the prisoner, that he was innocent of the charge against him. (Pott. Antiq. b. 1, c. 19.)

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