Note 36 — Chapter IV · Trial by Battle.

Selden, impr. Duello, Lond. 1610; Herbert’s “Antiquities of the Inns of Court,” pp. 115, 117; Select Pleas of Crown, Pl. 87; II. Pollock and Maitland’s History English Law, p. 634.

During the twelfth century, in controversies between the Lord paramount and the tenant as to the right to the possession of real estate, the duel or battle was a method of trial generally in vogue. In the reign of Henry II., while the tenant, in a writ of right, had his election to defend his title by duel, “as a royal benefit conferred on the nation, by the prince in his clemency, by the advice of his nobles, as an expedient whereby the lives and interests of his subjects might be preserved, and their property and rights enjoyed without being any longer obliged to submit to the doubtful chance of the duel,” we find the institution of the assize guaranteed to the subjects by the king, and this constitution is perhaps the first guaranty of the trial by jury in the English law. (Glanv. lib. 2, c. 4, 5, 6; I. Reeve’s History Eng. Law, pp. 393, 395.)

The proceeding for the recovery of land during the reign of Henry II. and preceding reigns, is not without interest. The claim of the demandant, or claimant, was based only upon evidence de visu et auditu, or by the proof furnished by his freeman, whose evidence was either as to what he had actually seen and knew, or upon what his father had told him, and had enjoined upon him, on his death-bed, by the faith that a son owed to a father, which he was to assert, if he ever heard of any plea being urged as to the land in controversy. (Glanv. lib. 2, c. 3.)

If the tenant elected to try the issue by the duel, or battle, he could not afterwards resort to the assize, but must meet the issue de verbo in verbam, as the demandant, or claimant had asserted his title. The demandant could not be his own champion, but the tenant could defend himself, either in person or by a champion, and after the customary essoins, the battle proceeded. If the champion of the demandant was conquered, the demandant lost his suit and the champion was never again a competent witness in a duel. If the champion of the tenant, or the tenant himself was conquered, he lost the land with all the fruits and produce on it, and he was never afterwards to be heard in a court of justice concerning the same. In other words, the final effect of a trial by battle was as conclusive as the judgment of a court of competent jurisdiction and furnished the basis for a good plea of res adjudicata in all subsequent controversies over the same land in the future, between the same parties. (Glanv. lib. 2. c. 4, 5; I. Reeve’s History Eng. Law, p. 394.)

Neilson complains because neither Glanville, Bracton, Britton, nor Fleta, describe the procedure governing the actual fighting of the duel in an English plea for land under a “writ of right.” (Neilson’s “Trial by Combat,” p. 86.) The above description of such a combat, is deemed accurate, from sources consulted and for the authorities consulted, the reader is referred to Herbert’s “Antiquities of the Inns of Courts,” pp. 115, 117.