It appears probable that the trial by battle was introduced into England from Normandy. The Grand Coustumier of that country, and the Assizes of Jerusa lem, furnish evidence of its early exist ence.
The courts in which it was admitted were the King's Bench, the Court of Chivalry, and (in the earlier periods of our history) the High Court of Parlia ment.
In some cases the appellant was able to deprive the accused of his choice of trial, and to submit the inquiry to a jury. Thus, if the appellant was a female; or under age; or above the age of sixty; or in holy orders ; or was a peer of the realm ; or was expressly privileged from the trial by battle by some charter of the king ; or laboured under some material personal defect, as loss of sight or limb ; in all such cases he or she was allowed to state in a counterplea the ground of ex emption, and to refer the charge to the ordinary tribunal. The party accused was also disqualified from insisting on his wager of battle, where he had been detected in the very aet of committing the offence, or under circumstances which precluded all question of his guilt. In deed (if early authorities are to be trusted) it is far from clear that a cri minal, apprehended in flagranti delicto, did not undergo the penalties of the law forthwith, without the formality of any trial. (Palgrave's English Commonwealth, vol. i. p. 210.) The law on this latter point formed the subject of discussion in the Court of King's Bench in the year 1618, in the cam of Ashford v. Thornton. Upon that occasion the defendant had been acquitted upon a prior indictment for the murder of a female, whom he was supposed to have previously violated. The acquittal of the accused upon evi dence which to many appeared sufficient to establish his guilt occasioned great dissatisfaction, and the brother and next heir of the deceased was accordingly ad vised to bring the matter again under the consideration of a jury by the disused process of an appeal. The defendant waged his battle in the manner above de scribed, and the appellant replied cir cumstances of such strong and pregnant suspicion as (it was contended) precluded the defendant from asserting his inno cence by battle. It was, however, de
cided by the court that an appeal, being in its origin and nature a hostile chal lenge, gave to the appellee a right to insist upon fighting, and that the appellant could not deprive him of that right by a mere allegation of suspicious circum stances. The case was settled by the voluntary abandonment of the prosecu tion. In the following year an act (59 Geo. III. c. 46) was passed to abolish all criminal appeals and trial by battle in all cases, both civil and criminal.
The cases in which, by the ancient law, appeals were permitted, were treason, capital felony, mayhem, and larceny. Indeed, the earliest records of our law contain proofs that appeals were a com mon mode of proceeding in many ordi nary breaches of the peace, which at this day are the -subject of an action of tres pass. The wife could prosecute an appeal for the murder of her husband ; the heir male general for the murder of his an cestor; and in any case the prosecutor might lawfully compromise the suit by accepting a pecuniary satisfaction from the accused, Hence it was that the pro ceeding was in fact frequently resorted to for the purpose of obtaining such com pensation rather than for the ostensible object of ensuring the execution of jus tice on the offender. (Hawkins's Crown Law, book ii. chaps. 23 and 45; Ashford v. Thornton, Baruwall and Alderson's Reports, vol. i.; Kendal's Argument for Construing largely, &c. ; Bigby v. Ken nedy, Sir William Blackstone's Reports, vol. ii. p. 714 ; and the ingenious specu lations and remarks of Sir F. Palgrave on the origin of trial by battle, in his work on the Commonwealth of England.) Besides the appeal by innocent or in jured parties, a similar proceeding was in certain cases instituted at the suit of an accomplice. The circumstances under which this might be done are mentioned under the article APPROVER.