In England, the resolute conservatism, which resists innovation to the last, prolonged the existence of the wager of battle until a period unknown in other enlightened nations. No doubt a reason for this may be found in the rise of the jury trial towards the end of the twelfth century, which, as we have seen above (p. 144), furnished an effective substitute for the combat in doubtful cases. As the jury system developed itself in both civil and criminal matters the sphere of the duel became more limited, in practice if not in theory, and its evils being thus less felt the necessity for its formal abrogation was less pressing.[801] It was thus enabled to hold its place as a recognized form of procedure to a later period than in any other civilized land. Already in the first quarter of the thirteenth century Mr. Maitland tells us that in criminal cases it had become uncommon, but the number of examples of it which he gives shows that this can only be in comparison with its greater frequency in the preceding century and that it was still in common use notwithstanding the tendency of the judges to disallow it.[802] At the close of the fourteenth century, when France was engaged in rendering it rapidly obsolete, Thomas, Duke of Gloucester, dedicated to his nephew Richard II. a treatise detailing elaborately the practice followed in the Marshal’s court with respect to judicial duels.[803] Even a century later, legislation was obtained to prevent its avoidance in certain cases. The “Statute of Gloucester” (6 Ed. II. cap. 9), in 1333, had given to the appellant a year and a day in which to bring his appeal of death—a privilege allowed the widow or next of kin to put the accused on a second trial after an acquittal on a public indictment—which, as a private suit, was usually determined by the combat. In practice, this privilege was generally rendered unavailing by postponing the public prosecution until the expiration of the delay, so as to prevent the appeal. In 1486, however, a law was passed to diminish the frequency of murder, which required the trial to be finished before the expiration of the year and day, and ordered the justices, in case of acquittal, to hold the defendant in prison or on bail until the time had passed, so as to insure to the widow or next of kin the opportunity of prosecuting the appeal of death.[804] Another evidence of the prevalence of the custom is to be found in the rule which, in the fifteenth century, permitted a priest to shrive a man who was about to wage his battle, without regard to the fact as to whose parishioner he might legally be—
And of mon that schal go fyghte
In a bateyl for hys ryghte,
Hys schryft also thou myghte here,
Thagh he thy pareschen neuer were.[805]
With the advance of civilization and refinement, the custom gradually declined, but it was not abolished. The last duel fought out in England is said to be one in 1492 between Sir James Parker and Hugh Vaughan, arising from a grant of armorial bearings to Vaughan; it was fought on horseback with lances, and at the first course Vaughan slew his antagonist.[806] Still the old laws remained unaltered, and an occasional appeal to them, while it offended men’s common sense, was insufficient to cause their repeal. In 1571 a case occurred, as Spelman says, “non sine magna jurisconsultorum perturbatione,” when, to determine the title to an estate in Kent, Westminster Hall was forced to adjourn to Tothill Fields, and all the preliminary forms of a combat were literally enacted with the most punctilious exactness, though an accommodation between the parties saved the skulls of their champions.[807] In 1583, however, a judicial duel was actually fought in Ireland between two O’Connors on an accusation of treason brought by one against the other, which ended by the appellant cutting off the defendant’s head and presenting it on his sword’s point to the justices.[808]
A device, peculiar to the English jurisprudence, allowed a man indicted for a capital offence to turn “approver,” by confessing the crime and charging or appealing any one he choose as an accomplice, and this appeal was usually settled by the single combat. Indeed, even when a criminal had confessed he was sometimes pardoned on condition of his being victorious in a specified number of duels, and thus compounding for his own life by the service rendered to society in relieving it of so many malefactors, as in a case in 1221 where a confessed thief “became approver to fight five battles.”[809] The custom continued to be a feature of criminal jurisprudence sufficiently important to require legislation as late as the year 1599, when the Act 41 Eliz. chap. 3 was passed to regulate the nice questions which attended appeals of several persons against one, or of one person against several. In the former case, the appellee, if victorious in the first duel, was acquitted; in the latter, the appellor was obliged to fight successively with all the appellees.[810] In civil suits the last case on record, I believe, is that of Claxton v. Lilburn, which shows curiously enough the indisposition to put an end to what was regarded by common consent as a solecism. A valuable estate in Durham, said to be worth more than £200 a year, was the subject in dispute. Claxton had been unsuccessful in a suit for its recovery, and had brought a new action, to which Lilburn responded, Aug. 6th, 1638, by producing in court his champion, George Cheney, in array, armed with a sandbag and battoon, who cast into the court his gauntlet with five small pence in it, and demanded battle. Claxton rejoined by producing a champion similarly armed, and gaged his battle. The court was nonplussed, putting off the proceedings from day to day, and seeking some excuse for refusing the combat. The champions were interrogated, and both admitted that they were hired for money. King Charles demanded the opinion of the Chief Justice and all his barons whether this was sufficient to invalidate the proceedings, but they unanimously replied that after battle was gaged and sureties given, such confession was no bar to its being carried out. The King then ordered his judges if possible to find some just way for its prevention, but they apparently could do nothing save procrastinate the matter for years, for in 1641 Lilburn petitioned the Long Parliament, setting forth that he had repeatedly claimed his right of battle and had produced his champion, but was ever put off by the judges finding some error in the record. Parliament thereupon ordered a bill to be brought in taking away the judicial combat.[811] It was not enacted however, and Sir Matthew Hale, writing towards the close of the century, feels obliged to describe with considerable minuteness the various niceties of the law, though he is able to speak of the combat as “an unusual trial at this day.”[812]
In 1774, the subject incidentally attracted attention in a manner not very creditable to the enlightenment of English legislation. When, to punish the rebellious Bostonians for destroying the obnoxious tea, a “Bill for the improved administration of justice in the province of Massachusetts Bay” was passed, it originally contained a clause depriving the New Englanders of the appeal of death, by which, it will be remembered, a man acquitted of a charge of murder could be again prosecuted by the next of kin, and the question could be determined by the wager of battle. The denial of this ancestral right aroused the indignation of the liberal party in the House of Commons, and the point was warmly contested. The learned and eloquent Dunning, afterwards Lord Ashburton, one of the leaders of opposition, defended the ancient custom in the strongest terms. “I rise,” said he, “to support that great pillar of the constitution, the appeal for murder; I fear there is a wish to establish a precedent for taking it away in England as well as in the colonies. It is called a remnant of barbarism and gothicism. The whole of our constitution, for aught I know, is gothic.... I wish, sir, that gentlemen would be a little more cautious, and consider that the yoke we are framing for the despised colonists may be tied round our own necks!” Even Burke was heard to lift a warning voice against the proposed innovation, and the obnoxious clause had to be struck out before the ministerial majority could pass the bill.[813] Something was said about reforming the law throughout the empire, but it was not done, and the beauty of the “great pillar of the constitution,” the appeal of death, was shown when the nineteenth century was disgraced by the resurrection of all the barbaric elements of criminal jurisprudence. In 1818, the case of Ashford vs. Thornton created much excitement. Ashford was the brother of a murdered girl, whose death, under circumstances of peculiar atrocity, was charged upon Thornton, with much appearance of probability. Acquitted on a jury trial, Thornton was appealed by Ashford, when he pleaded “Not guilty, and I am ready to defend the same by my body.” After elaborate argument, Lord Ellenborough, with the unanimous assent of his brother justices, sustained the appellee’s right to this as “the usual and constitutional mode of trial,” expounding the law in almost the same terms as those which we read in Bracton and Beaumanoir.[814] The curious crowd was sorely disappointed when the appellant withdrew, and the chief justice was relieved from the necessity of presiding over a gladiatorial exhibition. A similar case occurred almost simultaneously in Ireland, and the next year the Act 59 Geo. III. chap. 46, at length put an end to this remnant of Teutonic barbarism.[815]
America, inheriting the blessings of English law, inherited also its defects. The colonies enjoyed the privilege of the appeal of death, against the abrogation of which, in the province of Massachusetts Bay, Dunning protested so vehemently. At least one instance of its employment is to be found here, when in 1765, in Maryland, Sarah Soaper appealed a negro slave named Tom for the murder of her husband. The negro, however, was probably not aware of his privilege to demand the wager of battle, so he submitted to be tried by a jury, and was duly condemned and executed.[816] John C. Gray, Jr., Esq., of Boston, to whom I am indebted for calling my attention to this and some other sources of information on the subject, informs me of a tradition that a disputed question of boundary between two townships in New Hampshire was once settled by combat between champions; but the most conservative State in this respect appears to be South Carolina. An act of that colony, in 1712, enumerating the English laws to be held in force, specifically includes those concerning appeal of death, and Dr. Cooper, in his “Statutes at Large of South Carolina,” writing in 1837, seems to think that both the wager of battle and appeal of death were still legally in force there at that time.[817] So Chancellor Kilty, in his Report on English Statutes applicable to Maryland, made in 1811, apparently considers that the appeal of death was still legally existent, but regards it as unimportant in view of the pardoning power and other considerations.[818]