I.: Trial by Combat prior to the Reign of John.

The crucial moment in judicial proceedings during the Middle Ages arrived, as has already been explained, when the “test” or “trial” (lex), appointed by the court, was attempted by one or both of the litigants. The particular form of proof to which the warlike Norman barons were attached was the duellum, and it was only natural that such of the old Anglo–Saxon aristocracy as associated with them on terms of equality should adopt their prejudices. “Combat” became the normal mode of deciding pleas among the upper classes. From the first, however, it seems not to have been competent for property of less than 10s. in value, and it soon came to be specially reserved for two classes of disputes—civil pleas instituted by writ of right, and criminal pleas following on “appeal.” The present chapter is concerned with the latter only.

An “appeal” in this connection was entirely different from the modern appeal from a lower to a higher court. It was a formal accusation of treason or felony made by a private individual on his own initiative, and was usually followed by judicial combat between the appellant and appellee, each of whom fought in person. Such a right was necessary in an age when the government had not yet assumed a general responsibility for bringing ordinary criminals to justice. The wronged person, not the magistrate, was the avenger of crime; and this explains several peculiarities—why, for example, when the accused had uttered “that hateful word craven,” thus confessing himself vanquished and deserving a perjurer’s fate, the victorious accuser was entitled to his vengeance, even in face of a royal pardon. When Henry of Essex, constable and standard–bearer of Henry II., in 1163, had been worsted in the combat, the royal favour could not shield him, though the King’s connivance enabled him, by becoming a monk, and therefore dead in law, to escape actual death by hanging. At an early date the procedure resembled even more closely a legalized private revenge: “the ancient usage was, so late as Henry IV.’s time, that all the relations of the slain should drag the appellee to the place of execution.”

The evils of trial by combat are obvious. From the first it was dreaded by the traders of the boroughs, who paid heavily for charters of exemption. Their aversion spread to the higher classes, and was shared by Henry II. To that statesman, endowed with the instincts of a reformer, despising obsolete and irrational modes of procedure, and devoid of reverence for tradition, trial by combat was abhorrent. He would gladly have abolished it, but followed the more subtle policy of undermining its vitality. For this purpose, he used four expedients, which are of great interest, in respect that they throw light on the process by which trial by jury superseded trial by battle. (1) Every facility was afforded the parties to a civil suit to forego the duellum voluntarily. Henry placed at their disposal, as a substitute, a procedure which his ancestors had reserved for the service of the Crown. Litigants might refer their rival claims to the oath of a picked body of local neighbours: the old recognitors thus developed into the jurata. This course was possible, however, only where both parties consented, and it had many features in common with a modern arbitration. (2) In pleas relating to the title and possession of land, Henry went further, granting to the tenant the option of a peaceful settlement even when the demandant preferred battle. The assisa, like the jurata, applied only to civil pleas. (3) Attempts were made to discourage trial by combat in criminal pleas also, by discouraging private “appeal,” its natural prelude. The corporate voice of the accusing jury was made to supersede the individual complaint of the injured party. Only the near blood relation, or the liege lord, of a murdered man was allowed to prove the offender’s guilt by combat; while a woman’s right of appeal was kept within narrow limits. (4) A wide field was still left for private appeal and battle; but Henry endeavoured to narrow it by a subtle device. In appeals of homicide, where the accusation was not made bona fide, but maliciously or without probable cause, the appellee was afforded a means of escaping the duellum: he might apply for the writ that forms the subject of this chapter.