Judicial combat is a fascinating yet perplexing subject, having many side-issues whereupon the writer must sternly refrain. The case of David and Goliath was gravely urged (a.d. 867) as a precedent to Pope Nicholas I., and by him disdainfully put aside. The thing itself was unknown in Roman law, though the old legend of the Horatii and Curatii was part of its lore. But it was of the essence of chivalry, and the duel and the prize-fight were its legitimate offspring. "Where the hazel grew," so Mr George Nelson, our chief modern authority, picturesquely defines its region, but our attention here must be limited to England. That it was not with us before the Conquest moves Bishop Stubbs to something of the scholar's mild amazement. The Normans, it seems clear, brought it with them from their continental home. A native accused of a serious crime by one of the invaders was tried by ordeal of battle, but a Norman had choice of the oath as well, and it was also used to decide which of the claimants should have a disputed piece of land. After the legal reforms of Henry II., it became an alternative proceeding in a limited class of actions. These were the Writ of Right (the most solemn method of trying title to land), accusations of murder, and treason. It had place only in appeals, in actions, that is to say, brought not in the king's name, but by an interested subject here called the Appellor, against whom the accused or Appellee might offer to prove his innocence by his body. The Appellor must accept the challenge unless he were maimed by age or wound. Likewise he could "Oust the Battle" (i.e. prove this mode of trial improper) if the accused were caught red-handed. The parties exchanged gloves, and gave pledges or wads (vadiare bellum); whence came Wager of Battle, afterwards the technical term for the whole process. In civil cases, if the litigants came to terms, the judge exacted a fine, called the Concord, while he who fought and lost must pay the mulct of Recusancy. In criminal matters he who resisted not till the stars shone forth was branded as Recreant or Craven and was forthwith strung up, and all his goods were declared forfeit. The Charters of Exemption purchased from overlord or king show how hateful the system was to the old English citizen. Henry I. enacted for a consideration that no Londoner should do battle, and in due course the men of Winchester, Lincoln, and Northampton obtained the like privilege.

The story of Leicester is worth the telling. In the time of Henry I. Earl Robert of Mellant ruled the town. It chanced that two burghers, Nicholas and Jeffrey, waged battle on a plea of land. For nine long hours they mauled each other with varying fortune, when one of them took to flight, and staggered, all unwitting, on the edge of a pit. The other saw his danger, and remembered that they twain were kinsmen. "'Ware o' the pit," he shouted; "turn back, lest thou fall therein." The spectators so lustily roared their approval, that the Earl heard it in his castle, and he, after due enquiry, granted that in time coming twenty-four jurors of Leicester should determine all civic disputes. One strange product of Trial by Combat was the Approver: a rascal who turned king's evidence, and fought with his late companions. Sometimes he accused other malefactors, and if he came off victor in five combats he was released, and banished the country. This system fell into gross abuse, for the Approver, greedy of freedom or hush-money, appealed honest men right and left. In the chronicle of William Gregory the Skinner (1456) we have an account of a duel fought by one Thomas Whitehorne, a criminal, caught in the New Forest, and lodged in prison at Winchester, where he remained for about three years, fighting ever and anon. "And that fals and untrewe peler (= Appelar) hadde of the Kynge every day 1d. ob." At last a proposed victim retorted the lie in his throat, and said that "he wold prove hyt with hys handys and spende hys lyfe and blode a-pone hys fals body." Then the judge "fulle curtesly informed this sympylle man" that "he and the peler moste be clothyed all in whyte schepys leter." Also each must have a stave of green ash, three feet long, the point thereof "a horne of yryn i-made lyke unto a rammy's horne;" and if these ash-plants broke, then they "moste fight with hyr handys, fystys, naylys, tethe, fete, and leggys." Moreover, they must strive fasting on the "moste sory and wrechyd greene about the town;" but "Huyt ys to schamfulle to reherse alle the condycyons of thys foule conflycte." And we must follow Gregory's precept rather than his example.

The Appellee, asking for inquiry as to his character, was reported "a fyscher and tayler of crafte," and therewith the "trewyste laborer and the moste gentellyte." The peler, with brazen insolence, offered his character for inspection. There was much dubiety as to where and how he had lived when at large, but "Hange uppe Thome Whythorne" was the response of every reference he tendered. At last the day came. The Appellee, as became an innocent man, told his beads, and prayed long and earnestly, and wept full sore, and all present prayed for and with him. The "fals peler" scoffed thereat. "Thou fals trayter," yelled he; "why arte thou soo longe in fals bytter beleve?" The defendant's sole answer was so lusty a thwack that his staff flew all to pieces. Thereupon the peler's stave was taken away from him; "ande thenn they wente togedyr by the neckys," so using teeth and fist, "that the lethyr of clothing and fleshe was alle to rente in many placys of hyr bodys." It fared ill at first with the "meke innocent." His opponent had him down on the ground, and near choked the life out of him. But presently the meek one got up on his knees, and (the combat not being under Queensberry rules), "toke that fals peler by the nose with hys tethe, and put hys thombe in hys yee, that the peler cryde owte ande prayde hym of marcy, for he was fals unto God and unto hym." The peler's subsequent record is of the briefest, but, one is thankful to add, of the most edifying description. "And thenn he was confessyd and hanggyd, of whose soule God ha' marcy." Amen. "Victus est et susp," so for epitaph wrote the official scribe against his name. And the exchequer parchments knew him and his "1d. ob. per diem" no more.

The Champion, now but the shadow of a name, was a nobler offshoot of the system. Originally a witness, he was finally indispensable in civil cases wherein—for a legal reason not here to be discussed—the parties themselves must not engage. He was the proper advocate for churchmen, for women, and for the Crown; and his last appearance for royalty was in 1820, at the coronation of George IV. The Dymocks have held the manor of Scrivelsby in Lincolnshire for centuries by this tenure, and possibly their representative claimed a part in the pageant on the two subsequent occasions, but to have him ride up Westminster Hall in full armour and clang his gauntlet on the floor (as he did of old) would have savoured too much of Drury Lane pantomime for the taste of a cynical age. The Champion's dress and bearing were minutely ordered. His head (e.g.) was shaven, but whether this was to give no hold to his foe, or to fulfil some old superstition, is still in debate among the learned. In the end he was usually a hireling, which fact may very well have accentuated the absurdity of the system. At any rate, towards the close of the thirteenth century it was only kept alive by the approvers. Then Chivalry came with its Treason Duel, and by the time of Richard II. the Chivalry Court was in full swing. Its forms, mainly imported, were after this wise. Upon the accusation and the exchange of gloves, time and place were assigned for the duel, and here the lists were set and staked. There were two gates, and hard by each a pavilion—one eastward for the appellant, and the other westward for the defendant. To the south was the judge's seat; and right and left were benches for the high-born, while the commons were made free of the unenclosed field. Near the judge an altar was decked with relics; and not far off there stood a gibbet and a scaffold. Men-at-arms were stationed between the palisades. There were heralds in gay tabards, a priest in full canonicals stood at the altar—but it were wearisome to enumerate all the officials.

The trial was held not less than forty days after the challenge; and the time being come, the heralds demanded silence; and the appellant was summoned three times by voice and by sound of trumpet. As he marched forward he was addressed by the Constable, "Who art thou, and wherefore comest thou armed to the door of these lists?" His answer given, he was taken to his pavilion, and afterwards was made to swear on the altar that his cause was just. The other did in like fashion. Then the pavilions were replaced by chairs whereon the combatants might take an occasional rest. Napkins holding a loaf and a bottle of water were hung on opposite ends of the lists. The marshal cried three times "Laissez les aller," and the pair went at it. Far better death than defeat. If either yielded, the marshal cried "Hoo," to declare the combat at an end. Then the wretch was taken to the scaffold on which his shield was hung reversed, his sword was broken, and his spurs hacked from his heels. He was now taken to the church where a mass for the dead was sung over him, and at last he was haled to the gibbet where the hangman claimed his prey.

This is the form of judicial combat that caught the fancy of our great writers. In Chaucer's Knight's Tale there is the elaborate set to between Palamon and Arcite. In Shakespeare's Richard II. there is the fiasco of Norfolk and Hereford. In Lear we have the fight to the death between Edmund and Edgar, and "every schoolboy knows" The Templar's duel in Ivanhoe.

Chivalry passed, yet not the half-forgotten wager of battle. A claim so to determine a civil dispute was made in 1571, to the great perplexity of the lawyers. Elaborate preparations were made, but the case was settled in other fashion. Under James I. bills were introduced into Parliament to abolish it, but they fell through, and in 1774, at the beginning of the North American troubles, when it was proposed to punish the New Englanders by depriving them of the appeal of murder, Dunning, afterwards Lord Ashburton, described it as that great pillar of the Constitution. Burke concurred, and the motion was lost. Perhaps they have it yet in the States, at least Dr Cooper, in editing, in 1857, the statutes at large of South Carolina, treats Wager of Battle as an existing fact. In England the end came in dramatic fashion. In May 1817 Mary Ashford—a young woman of Langley in Warwickshire, was found drowned under suspicious circumstances. A certain Abram Thornton was suspected of the murder; he was tried and acquitted, but there was much evidence against him, and he had played so ill a part in a horrid though vulgar tragedy that the relatives of the dead girl cast about to carry the matter further. Now, an old act provided that no acquittal by jury should bar an appeal of murder, so William Ashford, Mary's brother, appealed Thornton in the Court of King's Bench. He was attached, and when called upon pleaded "Not guilty, and am ready to defend the same by my body." He then threw down his glove on the floor of the Court. It was a curious turn; for no doubt men thought that he would put himself upon the country, and stand a second trial by jury. There was much legal argument (set forth at great length in the reports of the time), for the prosecuting counsel tried hard to "oust his battle," but to no purpose, and in the end Thornton was set free. In 1819, two years after the drowning of Mary Ashford, the Appeal of Murder Act (59 Geo. III. c. 46) abolished the last remnant of Wager of Battle.