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:

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:

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

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

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

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:

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:

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

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,

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: