Battle, WAGER OF. The Wager of Battle, or as it is sometimes called, Trial by Combat, was an ancient usage in English law which permitted the accused and accuser, in defect of sufficient direct evidence, to challenge each other to mortal combat, for issue of the dispute. It obtained in civil and criminal cases, and also in military matters, to which, indeed, it was more appropriate. It consisted of a personal combat between the parties in presence of the court itself, and was grounded on the idea of an appeal to Providence, the expectation being that Heaven would give the victory to the innocent or injured party.
In charges of treason the wager of battle was occasionally resorted to. 'It seemeth,' says Coke, 'that by the ancient common law one accuser or witness was not sufficient to convict any person of high treason; for in that case, where is but one accuser, it shall be tried before the constable or marshal by combat, as by many records appeareth.' The court over which the constable or marshal presided was called the Court of Chivalry. When the Earl-marshals sat alone, it was a military court, or court of honour; when the Lord High Constable and the court sat conjointly, it was also a criminal court. The form and manner of waging battle in cases of treason were very elaborate, and attended by imposing ceremonies. (A full account of these will be found in Blackstone's Commentaries, book iv.) In Richard II. (I. iii.), in the quarrel between Norfolk and Bolingbroke, Shakespeare has preserved a perpetual record of this chivalrous solemnity.
In civil cases, the battle was waged by champions, and not by the parties themselves; but in criminal cases, the parties fought in person, unless the appellor were a woman, a priest, an infant, or a man of the age of sixty, or lame, or blind, all of whom might refuse the wager of battle, and compel a trial by jury. Commoners could not challenge peers of the realm to wage battle, on account of their personal dignity, nor, by special charter, could the citizens of London engage in trial by combat, fighting being considered foreign to their education and employment. Whether by champions or in person, the mode of proceeding was the same. The appellee, or defendant, as he might be called, threw down his glove, and declared that he would prove his right, or defend himself with his body. The appellor, or prosecutor, 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 parties, holding each other's hands, joined issue before the court in a very formal and solemn manner. The combatants were obliged to swear that neither of them would resort to sorcery or witchcraft. The battle might last till the stars appeared in the evening, and the party who by that time had either killed or got the better of his opponent, was considered the successful suitor of justice. In a charge of murder, if the accused was slain, it was taken as proof of his guilt, and his blood was attainted; if he was so far vanquished as not to be able or willing to fight any longer, he was adjudged guilty, and sentenced to be hanged immediately.
So late as the year 1818, this barbarous procedure was solemnly decided by the Court of King's Bench to be a valid and legal mode of trial, which the king's subjects were free to adopt. Of course, the principle was, that all laws, no matter how unsuitable to the times, could be enforced, unless expressly repealed by act of parliament. The case is that of Ashford v. Thornton, and is reported in the first volume of Barnwall and Alderson's Reports, p. 405. As we have stated, the court decided in favour of the validity of the ordeal, one of the judges remarking that sufficient had not been stated to induce their lordships to refuse the battle, and another more plainly and unequivocally observed that the defendant was 'entitled to this his lawful mode of trial.' But Lord Ellenborough put the matter more clearly by stating that 'the general law of the land is in favour 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 prejudices, 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.' In this case, the man at the bar was charged with murder; and he threw down the glove in token that he challenged his accuser. The latter individual, however, declined, under legal advice, to take up the glove, and so the charge was departed from. In consequence of this case, the Act 59 Geo. III. chap. 46 was passed, by which the ordeal was wholly abolished.
In Scotland, the matter would have been differently disposed of; for the judges there, following the doctrine of the Roman law, would have held the proceeding to have been in desuetude and obsolete, and there the matter would have ended.
Montesquieu, in his Spirit of Laws, book xxviii., very ingeniously and plausibly deduces the modern practice of duelling and the so-called laws of honour from the above form of judicial combat. See ORDEAL; and Geo. Neilson, Trial by Combat (1890).