Introduction: Trial by Battle

IX. TRIAL BY BATTLE

It has been mentioned above (fn. 1) that in an action originated by writ of right the tenant could choose trial by battle instead of submitting his cause to the verdict of his neighbours. Battle for judicial purposes was a Norman custom which was imported into England after the Conquest. (fn. 2) Like the ordeal by fire or by water, it belonged to the time when men sought miraculous proof for doubtful facts, and thought that by these means God would defend the right. It was becoming obsolete by the end of the thirteenth century. In some instances no more than a formal blow was struck, and in the case which occurs in this volume (fn. 3) it is impossible to say whether the battle was a real contest or a mere form. In early days professional champions were to be had. (fn. 4) Thus we find Thomas de Cantilupe, bishop of Hereford, agreeing in 1276 to pay what seems to be a retaining fee of 6s. 8d. a year to Thomas de Bruges for so long as he is able to serve as his champion. (fn. 5) In the present volume the names of Elias le Champiun and William le Champiun (fn. 6) are suggestive of the owners' calling. A champion's pay was high. Mr. William Brown quotes a case in which the chapter of the collegiate church of Southwell, in 1293, agreed to pay more than 46l. to a champion if a real battle was fought. (fn. 7)

The arms of the combatants were a square shield for defence and, for offence, a weapon like a hammer with a head pointed at either end and tipped with horn, which probably represented the war-axe, the old national weapon of the Franks. (fn. 8) A legal writer, circa 1290, says that the combatants are to fight without the slightest armour, their heads uncovered, their hands and feet bare. (fn. 9) The demandant's champion lost the battle if he failed to beat his opponent before the stars could be seen in the firmament. Madox in his History of the Exchequer, (fn. 10) reproduces a realistic sketch of a judicial combat, which he found on a fragment of an assize roll of Henry III's reign, and Mr. Coulton (fn. 11) has an illustration of a fight pourtrayed on a thirteenth century encaustic tile.

Trial by battle long survived as little more than a legal fiction. Isolated cases are met with in the reigns of Elizabeth and Charles I where the defendant chose trial by battle, but means were found to avoid actual fighting. Attempts were made in parliament to abolish the practice in 1641 and 1770, and again in 1774 when it was defended as 'that great pillar of the constitution.' As late as 1817, in a case of murder, after the accused had been acquitted by the jury, the brother of the murdered girl instituted an appeal of murder to try the case again; and, averse though the judges were from granting the duel, they had no alternative. No battle was fought, and the appeal was withdrawn. This case led parliament in 1819 to abolish appeals of murder or other offences, and trial by battle. (fn. 12)