The New International Encyclopædia/Battle, Trial by

From Wikisource
Jump to: navigation, search
The New International Encyclopædia
Battle, Trial by
Edition of 1905. See also Duel on Wikipedia, and the disclaimer.

BATTLE, Trial by, or Wager of. The determination of a controversy by a physical combat, conducted in the presence of judges and according to fixed judicial rules. Although “it prevails among all the races from which Britain derived its Teutonic blood,” it was not a legal institution of Anglo-Saxon England, but was introduced into Britain by William the Conqueror. Sir James Fitzjames Stephen has expressed the opinion that “trial by battle was only private war under regulations.” This view is rejected by Pollock and Maitland, however, as well as by other writers, who consider it a social process for the discovery of the truth. “What triumphed was not brute force, but the truth. The combatant who was worsted was a convicted perjurer.” Such was the theory underlying this form of trial.

It was employed both in criminal and civil controversies, but by Bracton's time it was limited to appeals of felony in criminal cases, and to the writ of right in civil cases. In the former, the combat was between the prosecutor of the felony and the alleged felon, unless one or the other was of unfit age or sex, where his or her place might be taken by a champion. In the civil proceeding by writ of right (the final remedy by a claimant of real property who could not rely on recent possession), either party could appear by champion. This led to the use of professional pugilists, and to the business of training and keeping such champions for hire. By the time of Edward I., any defendant to whom trial by battle was offered could decline and demand a trial by jury. On the other hand, the defendant, at least in an appeal of felony, retained the legal right to compel his prosecutor to do battle, until 1819, when the statute of 59 George III., c. 46, enacted that “all appeals of treason, murder, felony, or other offenses shall cease,” and that there should be no wager of battle either in criminal or civil controversies. Attempts had been made during the reigns of James I. and Charles I. to abolish trial by battle, but without success, and its abolition in 1819 was due to the decision of the Court of King's Bench, in Ashford v. Thornton (reported in 1 Barnewall and Alderson, 405) that the defendant in an appeal of felony, who had demanded trial by battle, was entitled to it as “his lawful mode of trial.” In Scotland this mode of trial came to an end late in the Sixteenth Century, and throughout Britain it was practically obsolete from that time. Consult: Stephen, History of the Criminal Law of England (London, 1883); Pollock and Maitland, History of English Law (2d ed. Boston, 1899); Neilson, Trial by Combat (London, 1890).