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