The New International Encyclopædia/Battle, Trial by
BATTLE, , or . The
determination of a controversy by a physical
combat, conducted in the presence of judges and
according to fixed judicial rules. Although “it
prevails among all the races from which Britain
derived its Teutonic blood,” it was not a
legal institution of Anglo-Saxon England, but
was introduced into Britain by William the
Conqueror. Sir James Fitzjames Stephen has
expressed the opinion that “trial by battle was
only private war under regulations.” This view
is rejected by Pollock and Maitland, however,
as well as by other writers, who consider it a
social process for the discovery of the truth.
“What triumphed was not brute force, but the
truth. The combatant who was worsted was a
convicted perjurer.” Such was the theory
underlying this form of trial.

It was employed both in criminal and civil
controversies, but by Bracton's time it was limited
to appeals of felony in criminal cases, and to
the writ of right in civil cases. In the former,
the combat was between the prosecutor of the
felony and the alleged felon, unless one or the
other was of unfit age or sex, where his or her
place might be taken by a champion. In the
civil proceeding by writ of right (the final
remedy by a claimant of real property who could
not rely on recent possession), either party could
appear by champion. This led to the use of
professional pugilists, and to the business of training
and keeping such champions for hire. By
the time of Edward I., any defendant to whom
trial by battle was offered could decline and
demand a trial by jury. On the other hand, the
defendant, at least in an appeal of felony,
retained the legal right to compel his prosecutor
to do battle, until 1819, when the statute of
59 George III., c. 46, enacted that “all appeals of
treason, murder, felony, or other offenses shall
cease,” and that there should be no wager of
battle either in criminal or civil controversies.
Attempts had been made during the reigns of
James I. and Charles I. to abolish trial by battle,

but without success, and its abolition in 1819
was due to the decision of the Court of King's
Bench, in Ashford v. Thornton (reported in
1 Barnewall and Alderson, 405) that the defendant
in an appeal of felony, who had demanded
trial by battle, was entitled to it as “his lawful
mode of trial.” In Scotland this mode of trial
came to an end late in the Sixteenth Century, and
throughout Britain it was practically obsolete
from that time. Consult: Stephen, History of
the Criminal Law of England (London, 1883);
Pollock and Maitland, History of English Law
(2d ed. Boston, 1899); Neilson, Trial by Combat
(London, 1890).