Page:Harvard Law Review Volume 5.djvu/82

66 66 HARVARD LAW REVIEW. king's courts : " A debt ... is proved by the court's general mode of proof, viz., by writing or by duel." x " They may come to the duel or other such usual proof as is ordinarily received in the courts," etc. 2 Of the inferior courts, also, we are told that in a lord's court a duel may be reached between lord and man, if any of the man's peers makes himself a witness and so champion. 3 He, also, who gave the judgment of an inferior court might, on a charge of false judgment, have to defend the award in the king's court by the duel, either in person or by a champion. 4 There is sufficient evidence that it was, at first, a novel and hated thing in England. In the so-called " Laws of William the Conqueror," it figures as being the Frenchman's mode of trial, and not the Englishman's. In a generation after the Conquest, the charter of Henry I. to the city of London grants exemption from it; and the same exemption was widely sought and granted, e.g., in the cases of Winchester and Lincoln. 5 The earliest refer- ence to the battle, I believe, in any account of a trial in England, is at the end of the case of Bishop Wulfstan v. Abbot- Walter, in 1077. 6 The controversy was settled, and we read : " Thereof there are lawful witnesses . . . who said and heard this, ready to prove it by oath and battle." This is an allusion to a common practice in the Middle Ages, that of challenging an adversary's witness, 7 or perhaps to one method of disposing of cases where witnesses were allowed on opposite sides and contradicted each other. Brunner 8 refers to this, with Norman instances of the dates 1035, 1053, and 1080, as illustrating a procedure which dated back to the capitulary of 819, mentioned above at p. 52. Thus, as among nations still, so then in the popular courts and between contending private parties, the battle was often the ultima ratio, in cases where their rude and unrational methods of trial yielded no results. It was mainly in order to displace this dangerous, costly, and discredited mode of proof that the recognitions — that is to say, the first organized form of the jury — were introduced. 1 Lib. 10, c. 17. 2 Lib. 13, c. II. 8 Lib. 9, c. 1. * Lib. 8, c. 9. 6 Mon. Gild. Lond. i. 128, s. 5, and Thorpe, i. 502 — quod nullus eorum faciat bellum. Pike, Hist. Crim. Law, i. 448 ; Patetta, Ordalie, 307, 308. 6 Essays in Anglo-Saxon Law, 379; s. c. Big. Plac. Ang. Norm. 19; Brunner, Schw. 197, 400-1. 7 Lea, Sup. and Force, 3d ed., III. 8 Schw. 197-8; ib. 68, 401, citing Glanville, lib. 10, c. 12; lib. 2, c. 21.