or Trial by the Wager of Battle, in English law, a species of trial of great antiquity, but now abrogated by positive statute. It seems to have owed its origin to the military genius of our ancestors, joined to a superstitious notion that Heaven would interpose, and give the victory to him who had the right. The decision of suits, by an appeal to the God of battles, is believed by some to have been invented by the Burgundians, one of the northern or German clans who established themselves in Gaul; and it is certain that the earliest written injunction of judiciary combats to be found is in the laws of Gundebal, which are preserved in the Burgundian code. Yet it does not seem to have been merely a local custom peculiar to particular tribes, but the common usage of all those warlike nations from the earliest times. From a passage in Velleius Paterculus, it appears that the Germans, when they first became known to the Romans, were accustomed to decide all contests of right by the sword; for when Quintilius Varus endeavoured to introduce among them the Roman laws and method of trial, it was looked upon, says the historian, as a novitas incognitae discipline, ut solita armis decerni jure terminarentur: and among the ancient Goths in Sweden we find the practice of judicial duels established upon much the same footing as they formerly were in our own country.

This species of trial was introduced into England, along with other Norman customs, by William the Conqueror: but it was only used in three cases: first, in the court martial, or court of chivalry and honour; secondly, in appeals of felony; and thirdly, upon issue joined in a writ of right, the last and most solemn decision of real property. In the two former cases this method of trial may seem natural enough in a military and superstitious age, but the reason or ground of its admission in the last is not so obvious. That usually assigned is the difficulty, in writs of right, of determining the jus proprietas; but another and more plausible pretext for allowing it, in such cases, was for the sake of those claimants who might have the true right, but yet by the death of witnesses or other defect of evidence might be unable to prove it to a jury.

The last trial of battel that was waged in the court of common pleas at Westminster,—though there was afterwards one in the court of chivalry in 1631, and another in the county palatine of Durham in 1638,—took place in the thirteenth year of Queen Elizabeth, A.D. 1571, as reported by Sir James Dyer, and was held in Tothillfields, Westminster, non sine magna jurisconsultorum perturbatione, says Sir Henry Spelman, who was himself a witness of the ceremony. In this trial by battel, on a writ of right, the battel was waged by champions, and not by the parties themselves; because in civil actions, if any party to the suit dies, the suit must abate, and be at an end for the present; and therefore no judgment could be given for the lands in question if either of the parties were slain. Another reason was, that no person might claim an exemption from this trial, as was allowed in criminal cases. An account of the form and laws of the judicial combat, which are now merely matters of history, may be found in any of the institutional works on English law.

In appeal of felony, the trial by battel might be demanded, at the election of the appellee, either in an appeal or an approvement; and it was carried on with equal solemnity as that on a writ of right, but with this difference, that in this case the parties fought in their proper persons. Hence if the appellant or approver happened to be a woman, a priest, an infant, or of the age of sixty, or lame, or blind, he or she might counterplead, refuse the wager of battel, and compel the appellee to put himself upon the country. A peer of the realm who brought an appeal was also privileged to decline wager of battel, propter dignitatem persone; and the citizens of London had the same immunity conferred on them by special charter, doubtless because fighting seemed foreign to their education and employment. Again, if the crime was notorious, as if the thief had been taken with the mainour, or the murderer in the room with a bloody knife, the appellant might refuse the tender of battel from the appellee, because it was deemed unreasonable that an innocent man should stake his life against one who was already half-convicted. The form and manner of waging battel upon appeals were much the same as upon a writ of right; only the oaths of the two combatants were incomparably more striking and solemn.

The last case of this kind which occurred was that of Abraham Thornton in 1819. This man having been tried upon charge of murder, and acquitted, was appealed of felony by a brother of the deceased, a young woman for whom he had pretended an attachment. But after much grave consideration on the part of the judges, the appeal was disallowed, in consequence, we believe, of the tender age of the appellant, or, at all events, his evident physical inability to contend with the appellee; and shortly after an act was passed abolishing this antiquated and barbarous method of trial in all cases whatsoever. This act, which is the 59th Geo. III. c. 46, is entitled, "An act to abolish appeals of murder, treason, felony, or other offences, and wager of battel, or joining issue and trial by battel in writs of right:" and it proceeds on the allegation, in the preamble, that "appeals of murder, treason, felony, and other offences, and the manner of proceeding therein, have been found oppressive," and that "the trial by battel in any suit is a mode of trial unfit to be used, and that the same should be wholly abolished." This act was passed on the 22d June 1819.