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.)