BAT'TEL, TuIAI. IIY, or WnoEit ov BATTEL, This relic of our legal barbarism is happily of the things of the past, having been abolished by act of parliament, the 59 Geo. M. c. 46, and might have been passed over with a brief notice, bad it not been • for a circumstance which we shall presently mention, and which affords a curious and striking illustration of a principle peculiar to the character of English law, as distin guished from the legal systems of other countries.
The trial by 13. was a proceeding by way of appeal, and it obtained in civil and crimi nal 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 it was grounded on the impious idea of an appeal to Providence, the expectation being, that Heaven would give the victory to the innocent or injured party. In civil eases. the 13 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 60, or lame, or blind, all of whom might refuse the wager of B., and compel a trial by jury. Peers of the realm also could not be challenged to wage B., on account of their personal dignity, nor, by special charter, could the citizens of Lon don, fighting being considered foreign to their education and employment. Whether by champions or in person, the mode of proceeding was the same. The appelle% or defend ant, as he might be called, threw down his glove, and declared that he would prove his right, or defend himself with his body. 'File 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 weapons were batons or staves an ell long, and a four-cornered leathern target, and the combatants were obliged to swear that neither of them would resort to sorcery or witchcraft 1 The 13. lasted 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; and if so far vanquished as rit, to be able or willing to fight any longer, he was adjudged guilty, and sentenced to he 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. As a matter
of curiosity, we may give the names of the parties (they were of the laboring-class) who seriously submitted their contention in the above form before lord chief-justice Ellen liorr•igh and his brother-judges of the period. The case is that of Ashford r. Thornton, and is reported in the first volume of Barnwall Alderson's Reports, p. 405. As we have stated, the court decided in favor of the validity of the trial, one of the judges remarking that sufficient had not been stated to iuduee their lordships to refuse the B., and another more plainly and unequivocally observed that the defendant was "entitled to this his lany'ul mode of trial." But lord Ellenborough put the matter more clearly by stating, that "the general law of the land is in favor of the wager of B., 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." Happily, the pugnacious litigant who obtained this judgment was induced to go no further, and the above statute, the 39 Geo. III. c. 40, was passed, by which the shocking ordeal was wholly abolished.
In Scotland, we believe 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. Mr. Rush, the then American envoy to the British court, thus justly remarks on this case in his Residence at the Court of London (published 1833). "'I.o repeal laws belongs to the legislature. Courts expound and apply them. Free government is complex, and works slowly; tyranny is simple, and does its work at once. An absurd Yaw may sleep in a free code, because overlooked; but whilst there, it is the law. It is so, I suppose, that we must reason; and generally, the reason would be right. Yet it might have been thought that, in a case like this, long disuse added to obvious absurdity, would have worked the silent repeal of the law, according to the doctrine of desuetude under the Roman code." Montesquieu, in his Spirit of Lairs, book 28, chapters 20 and 22, very ingeniously and plausibly deduces the modern practice of dueling and the so-called laws of honor from the above barbarous judicial combat. Sce ORDEAL.