[93] Campionis. “Campio dicitur a campo, because the combat was strucken on the field, and, therefore is called camp-fight, and he must be liber homo.” (2 Inst. 246.) In this derivation Spelman concurs. The reader may consult the latter if desirous of seeing what he terms formula campi seu duelli. (Gloss.)—Also the Mirror, c. 3. s. 24. 25. Bracton, the Assises of Jerusalem, Grand Custumary of Normandy, &c.
[94] Vide Gul. 1. Instituta Saxonice in textu Roffensi, item Somneri Gloss. ad LL. Hen. in voce Bellum. (Al. MS.)
[95] Vide Mirror, c. 4. s. 11.
[96] The Cottonian, Bodleian, and Dr. Milles’s MSS. concur in omitting lawful, yet, that the true reading is as it stands in the Harleian MS. and in the Text, is more than probable, since the son of the Demandant’s champion was to be legitimate, and there can be no reason suggested, why the same rule should not prevail, with respect to the Tenant’s champion. The Rule itself most probably resulted from the warlike spirit of the age, and the desire to keep up the dignity of a species of trial, in which noble-men frequently personally engaged.
[97] From the Norman Code we learn, that the conquered Champion was incompetent as a witness, as a champion, as a juror, &c. (Le Grand Custum. de Norm. sparsim) which indeed coincides with the text of Glanville, in point of substance.
[98] Qui bellum vadiaverit et per judicium defecerit, 60 Sol. emendet (LL. Hen. 1, c. 59 Ed. Wilkins.) The Mirror says 40s. and the Cottonian MS. of Glanville 9s. whilst the sum fixed by the Norman code was 40s. and one penny. (Vide Mirror, c. 3. s. 23. Grand Custumary of Normandy c. 127.)
[99] Recreantisæ. “Now the ancient law was, that the victory should be proclaimed, that he that was vanquished should acknowledge his fault in the audience of the people, or pronounce the horrible word of cravent, in the name of recreantise &c. and presently judgment was to be given, and the recreant should amittere legem &c.” (2 Inst. 247) “And the vanquished is to acknowledge his offence, in the hearing of the people, or speak the horrible word of cravent, in the name of cowardice, or his left foot to be disarmed and uncovered, in sign of Cowardice.” (Mirror, 162 Ed. 1768.) “If he become recreant, that is a crying coward, or craven, he shall for his perjury lose liberam legem. Craven is derived from the Greek word κραυην, a vociferatione: others nearer home of crying and craving forgiveness. And recreantisa is devised of the French recreance, or giving back or cowardice; and sometimes it is called creantia, per antiphrasen, because he that useth it is not faithful but breaketh his oath.” (3 Inst. 221.)
[100] Dominus autem pro quo Duellum subierat amittet penitus quicquid per illud intendebat obtinere. Nec aliquid ulterius ipse vel Heredes sui in querelâ contentionis de cetero poterunt reclamare. (Le Grand Custum. de Normand. c. 127.)
[101] In taking leave of the trial by Duel, the Reader will recall to mind Judge Blackstone’s observation—that, though this species of Trial is much disused, it is still in force, if the parties chuse to abide by it. (3 Comm. 337.)
[102] Coram Justiciis in Banco sedentibus is the much controverted passage of the Text. Mr. Reeves conceives it to mean, before the Justices in open court, observing, that this phrase has been quoted by some persons to shew, that in the time of Glanville, there were Justices de banco, in the modern sense of those words, a construction, he proceeds to remark, which this passage will certainly not warrant. (Hist. Eng. Law, 1. 125. in note.) On the same side with Mr. Reeves we find Mr. Madox, who is, undoubtedly, a very respectable authority, did he not indicate rather too strong an inclination to interpret the passage, in favor of his own hypothesis. (Madox’s Excheq. c. 19.) Lord Hale follows on the same side. “Neither,” says he, “do I find any distinct mention of the court of common Pleas in the time of this king,”—speaking of Henry the second. (Hist. Com. Law, p. 142.) This, it must be confessed, is but negative authority; for though it may possibly be contended, that his Lordship viewed the doctrine of the Text in the same light as Mr. Madox and Mr. Reeves view it, yet, it is more probable, that he had forgotten it, or he otherwise would have noticed, if merely to refute, it. As a strong supporter of a contrary doctrine, we find Lord Coke. (2. Inst. 22. See also pref. to 8 Rep. and Co. Litt. 71. b. and Mr. Hargrave’s note.) The reasons adduced by Mr. Reeves and those who concur with him, appear by no means conclusive; and I think it would be far from difficult to give a complete answer to them, from considering the style and manner of expression peculiar to our author. But as this is purely a speculative point, at least in the present day, I am not anxious to balance it in pulvere scholastico, as Mr. Madox professes to do it, but follow the high authority of Lord Coke, without pretending to assert, that even his opinion may not here be liable to question, so very doubtful is any conclusion which we may come to upon the subject!!