In cases where this mode of trial for the possession of certain lands or other property was allowed by the court, and a combat followed, the further tenure of a holding in question would depend solely on the principle of battle, without any later appeal to the Grand Assize being permissible.
Before a trial by combat could be sanctioned the claimant in the suit was summoned before the court with his champion, who, once fixed upon, could not be changed, unless in the case of his “natural death” taking place in the interval before battle; but should he die “by his own fault, the lord shall lose his Sute.”
The defendant might either defend his cause in person or fight by deputy; but should he elect to be represented by champion and the one chosen should die in the interim it would become a question to be argued before the court as to whether or not the defendant should be allowed to appoint another in his place. The challenger or demandant was not allowed to fight in person.
Should the defendant, the “tenant,” be vanquished in the fight, then “the lord shall lose the land and the claimant shall have it”; but it often happened that a champion had been hired for some fee or reward, and if this should be proved the principal would lose his suit. Some particulars are given of a case of this kind[249] “betwixt Thomas fitz Hugh de Staunton and the prior of Lenton for the advousen of the church of Harlaston, in Northamptonshire.” Both parties to the suit were represented by champion, the appellant being a churchman, and they fought on foot in the lists, armed with bastons (i.e. polygonally-shaped maces or cudgels of heavy wood, tipped with horn: “basculi cornuti, bastons cornuz”).[250]
TRIAL BY COMBAT IN CASES CRIMINAL
This was conducted much on the lines of knightly usage in combats on horseback à outrance, except, as already stated, in charges of homicide or murder.
The cartel setting forth the charge, subscribed to on oath, was laid before the judges of chivalry by the appellant, the accuser, stating that “he was ready to maintain the same with his body.” This document was then considered by the judges, and should combat be allowed it was served on the accused, the defendant; and if within an interval of six weeks he had not responded, judgment was registered against him by default, his coat-armour being reversed or ignominiously fastened under his horse’s tail, in disgrace.
Should the accused stand on his defence both parties were cited to appear in the field outside the lists, which were quadrangular in form with a gate at each end. Judgment seats were provided for the constable and marshal, and at their feet were stationed a competent number of experienced knights and “a doctor or two of civil laws,” all for the advice and assistance of the court.
The appellant first came to the gate at the right end of the lists, clad in complete armour, attended by his esquires, and the constable and marshal demanded of him through their herald his name and purpose. On his answering, he was conducted into the lists by a knight and herald and placed before the judgment seat on the right hand. A similar course of procedure was adopted towards the defendant, who was placed facing the accuser on the left hand.
The choice of the weapons stipulated in the cartel lay with the defendant, and the advisory knights inspected and measured them for both sides, so that there might be no inequality in that respect between the parties; and the knights must answer for it that there be no enchantment or magic practised on either side.