WAGER OF BATTLE. A mode of trial which existed among almost all the German people and was introduced into England by William the Conqueror.
It was resorted to in three cases only in the court martial or court of chivalry ; In appeals of felony and upon approvements ; and upon issue joined In a writ of right. Co. Litt. I 294. On ap peals parties fought in their own proper persons, on a writ of right by their champions. But if the ap pellant or approval were a woman, a priest, an in fant, or of the age of sixty, or lame or blind, or a peer of the realm, or a citizen of London ; or if the crime were notorious! in such cases wager of bat tie might be declined by the appellant or approver. But where the wager of battle was allowed, the ap pellee pleaded not guilty, and threw down his glove; declaring he would defend the same with his body. The appellant took up the glove, replying that he was ready to make good his appeal, body for body. Thereupon the appellee, taking the Bible in his right band, and in his left the right hand of his antagonist, swore to this effect: "Hear this, 0 man, whom I hold by the hand, who callest thyself John by the name of baptism, that I, who call myself Thomas by the name of baptism, did not felonious ly murder thy father, William by name, nor am anywise guilty of the said felony; so help me God and the saints ; and this I will defend against thee by my body, as this court shall award." The appel lant replied with a like oath, declaring also that the appellee had perjured himself. Then followed oaths by both parties against amulets and sorcery as fol lows: "Hear this, ye justides, that I have this day neither eat, drank, nor have upon me neither bones, stones, nor grass, nor any enchantment, sorcery, or witchcraft, whereby the law of God may be abased, or the law of the devil exalted ; so help me God and his saints." The battle was then begun ; and if the appellee were so far vanquished as not to be able or willing to tight any longer he was adjudged to be hanged immediately; hut if be killed the appellant, or could maintain the fight from sunrislag till the stars appeared in the evening, he was acquitted.
Also If the appellant became recreant, and pro nounced the word he lost his l4berans legem, and became Infamous (sce CRevEN), and the appel lee recovered his damages, and was forever quit of any further proceedings for the same offence. The proceedings in wager of battle in a writ of right were similar to the above except that the battle was by champions. It was the only mode of determining a writ of right until Henry II. introduced the grand assize, q. v. The prevalence of judicial combats in the Middle Ages is attributed by Mr. Hallam to sys tematic perjury In witnesses, and want of legal dis crimination on the parts of judges. Moz. & W. It was not abolished In England till the enactment of stat. 69 Geo. III. c. 46. See 1 B. & Ald. 405 ; 3 Bla. Com. 339; 4 id. 347; APPEAL. Thie mode of trial was not peculiar in England. The emperor Otho, 983, held a diet at Verona, at which several sover eigns and great lords of Italy, Germany, and France were present. In order to put a atop to the frequent perjuries In judicial trials, this diet substituted in all cases, even in those which followed the course of the Roman law, proof by combat for proof by oath. Henrion de Pansey, Auth. Judie. Introd. c. 3. And for a detailed account of this mode of trial see Her bert, Inns of Court, 119. The last case in which the right was asserted was Ashton vs. Thornton, 1 B. & Ald. 405, where Lcird Ellenborough declared that it was part of the general law of the realm and must be enforced, no matter how much disap proved. See Wills, Circ. Ev. 290, for a detailed statement of the facts. At the next session of the British parliament an act was passed to abolish ap peals of murder, treason, felony, or other offences, and wager of battle, or joining issue or trial battle, in writs of right. 69 Geo. III. c. 46. In the Statutes of South Carolina, Edition of 1857, it is said to be In existence in that state. For the his tory of this species of trial, see 3 Bla. Com. 337; 4 id. 347 ; Encyclopcdie, Gage de Bataiiie; Steph. Pl. 122, and App. note 36. The Laws Lumber Room, by Francis Watt; Taswell-Langmead, Engl. Constit. Hist.