or Trial by the Wager of Battle, in English law, a species of trial of great antiquity, but now abrogated by positive statute. See Appeal. It seems to have owed its origin to the military genius of our ancestors, joined to a superstitious belief 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 Gundebald, 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 disciplinae, ut solita armis decerat jure terminaretur; 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 proprietatis*; 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 battle was waged by champions, and not by the parties themselves; because in civil actions, if any party to the suit die, 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.