[impious custom of private duels on imaginary points of honour, but hath also traced the heroic madness of knight errantry, from the same original of judicial combats (9). But to proceed:] When the champions arrived within the lists, the champion of the tenant took his adversary by the hand, and made oath that the tenements in dispute were not the right of the demandant; and the champion of the demandant, then taking the other by the hand, swore in the same manner that they were; next an oath against sorcery and enchantment, was to be taken by both the champions, in this or a similar form, "Hear this, ye justices, that I have "this day neither eat, drank, nor have upon me neither "bones, stones, ne 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 (h)." The battel was thus begun; and the combatants were bound to fight till the stars appeared in the evening: and if the champion of the tenant could defend himself till the stars appeared, the tenant was to prevail in his cause; but if victory declared itself for either party, for him was judgment finally given. This victory might arise from the death of either of the champions, or by either of them proving recreant, i. e., yielding, and pronouncing the horrible word of craven; a word of disgrace and obloquy, rather than any determinate meaning (i). The effect of the termination of the battel in either of these modes was, (g) Sp. L. b. 28, cc. 20, 22. (h) 3 Bl. Com. p. 340, who cites Dyer, 301, and Spelm. Gloss. 103. And see Rushw. Coll. vol. ii. pt. 2, fol. 112; 19 Rym. 322; R. v. Dryden, Cro. Car. 512, and 11 Harg. St. Tr. 124, where will be found an account of the proceedings in the last trial by battel, which took place in this country, viz. that in the case of Lord Rea v. Ramsey (7 Car. 1). Mr. Hallam (vol. i. p. 278, 7th ed.), 1 that the vanquished party forfeited his claim, and paid a fine (j): and the champion, if recreant, was condemned amittere liberam legem; i. e., to become infamous, and not to be accounted liber et legalis homo,-being supposed by the event to be proved foresworn, and not fit to be put upon a jury, or admitted as a witness in any cause (k). In an appeal or approvement, the trial by battel might also be demanded at the election of the appellee, and was carried on with equal solemnity, as in a writ of right: but as each party was here to fight in his proper person,—the appellant or approver, if a woman, a priest, an infant, or of the age of sixty, or lame or blind, might counterplead, and refuse the wager of battel; and compel the appellee to put himself upon the country, that is, submit to trial by jury. Also peers of the realm, bringing an appeal, were not to be challenged to wage battel, on account of the dignity of their persons; nor the citizens of London by special charter, because fighting seems foreign to their education and employment. So likewise if the crime were notorious, as if the thief were taken with the mainour (l), or the murderer in the room with the bloody knife,-the appellant might counterplead and refuse the tender of battel from the appellee (m); for it was unreasonable that an innocent man should stake his life against one who was already half convicted (n). (j) Hall. Mid. Ag. ubi sup. (k) 3 Bl. Com. 340. The compiler of the Assises de Jerusalem, c. 167, thinks it would be very injurious if no wager of battel were to be allowed against witnesses in causes affecting succession; since otherwise every right heir might be disinherited; as it would be easy to find two persons who would perjure themselves for money, if they had no fear of being challenged for their testimony. The demandant's champion was in fact a witness upon the question of right; and this passage, 66 66 66 [The form and manner of waging battel upon appeals and approvements, were much the same as upon a writ of right (o). The appellee, when appealed of the felony, pleaded not guilty, and threw down his glove; and declared he would defend the same with his body. The appellant, in accepting the challenge, took up the glove; and replied that he was ready to make good his appeal, body for body: and thereupon the appellee, taking the Bible in his right hand, and in his left the right hand of his antagonist, swore to this effect, "Hoc audi, homo, quem per manum teneo, &c.," "Hear this, O man, whom I hold by the hand, "who callest thyself John by the name of baptism, that I, "who call myself Thomas by the name of baptism, did not feloniously murder thy father, William by name, nor am anywise guilty of the said felony; so help me God and "the saints; and this I will defend against thee by my "body, as this court shall award." To which the appellant replied, holding the Bible and his antagonist's hand in the same manner as the other, "Hear this, O man, whom I "hold by the hand, who callest thyself Thomas by the “name of baptism, that thou art perjured; and therefore perjured, because that thou feloniously didst murder my "father, William by name; so help me God and the "saints: and this I will prove against thee by my body, "as this court shall award (p)." The battel was then fought with the same weapons, the same solemnities, and the same oaths against amulets and sorcery, that were used in the civil combat: and if the appellee were so far vanquished as not to be able or willing to fight any longer, he (o) Flet. 1. 1, c. 34; Hawk. P. C. b. 2, c. 45. (p) There is a striking resemblance between this process and that of the court of Areopagus, at Athens, for murder; wherein the prosecutor and prisoner were both sworn in the most solemn manner: the prosecutor that he was related to the deceased (for none but near relatives were permitted to prosecute in that court), and that the prisoner was the cause of his death; the prisoner, that he was innocent of the charge against him. (Pott. Antiq. b. 1, c. 19.) [was adjudged to be hanged immediately; and then, as also if he were slain in the battel, Providence was deemed to have determined against him, and his blood was attainted. But if he killed the appellant, or could maintain the fight from sun rising till the stars appeared in the evening, he was acquitted. So also if the appellant became recreant, and pronounced the word craven, he lost his liberam legem, and became infamous; and the appellee recovered his damages, and was for ever quit, not only of the appeal, but of all indictments likewise for the same offence (r). IV. The fourth method of trial in criminal cases, is that by the peers of Great Britain, in the court of parliament, (or in the court of the lord high steward,)] when a peer, or peeress, is charged with any treason or felony, or misprision of either. [Of this enough has been said in a former chapter (s): to which we shall only now add, that in the method and regulation of its proceedings, it differs but little from the trial, per patriam or by jury; except that no special verdict can be here given (t), because the lords of parliament,-or the lord high steward, if the trial be had in his court,-are judges sufficiently competent of the law that may arise from the fact: and except, also, that the peers need not all agree in their verdict; but the greater number, consisting of twelve at the least, will conclude and bind the minority (u). V. The trial by jury, or the country, per patriam, is also that trial by the peers of every Englishman, which, as the grand bulwark of his liberties, is secured to him by the Great Charter: "nullus liber homo capiatur, vel imprisonetur, aut exulet, aut aliquo alio modo destruatur, nisi per legale judicium parium suorum, vel per legem terræ” (x). (r) 4 Bl. Com. 348. (u) Kelynge, 56; stat. 7 Will. 3, c. 3, s. 11; Foster, 247. (x) 9 Hen. 3, c. 29. [The antiquity and excellence of this trial, for the settling of civil property, has before been explained at large (y). And it will hold much stronger in criminal cases: since, in times of difficulty and danger, more is to be apprehended from the violence and partiality of judges appointed by the Crown, in suits between the Sovereign and the subject, than in disputes between one individual and another, to settle the metes and boundaries of private property. Our law has, therefore, wisely placed this strong and twofold barrier, of a presentment and a trial by jury, between the liberties of the people and the prerogative of the Crown. It was necessary, for preserving the admirable balance of our constitution, to vest the executive power of the laws in the prince: and yet this power might be dangerous and destructive to that very constitution, if exerted, without check or control, by justices of oyer and terminer occasionally named by the Crown; who might then imprison, despatch or exile any man that was obnoxious to the government, by an instant declaration that such is their will and pleasure. But the founders of the English law have, with excellent forecast, contrived that no man should be called to answer to the Crown,] for any felony at least, unless upon an indictment; that is, the presentment or [preparatory accusation of twelve or more of his fellowsubjects (z): and that the truth of every accusation, whether preferred in the shape of indictment or information, should afterwards be] brought to trial and [confirmed by the unanimous suffrage of twelve of his equals and neighbours, indifferently chosen, and superior to all suspicion.] [What was said of juries in general, and the trial thereby (y) Vide sup. vol. 111. pp. 619, 653, 657. (z) The modern provisions under which larcenies, in certain cases, may be disposed of summarily before justices without indictment, are no innovation on this principle,-inas much as the consent of the person charged, or, in the case of a juvenile offender, of his parents or guardians, -must be given before such course may be taken. Vide sup. pp. 412, 413. |