Page:Harvard Law Review Volume 5.djvu/85

69 THE OLDER MODES OF TRIAL. 69 his father commanded him to deraign, it is provided that the de- mandant's champion be not bound to swear this; but be the oath kept in all other points." The Year Books indicate that trial by battle was not much resorted to. One sign of it is the particularity with which the ceremonial is described, as if it were a curiosity. Thus in 1342-3, and again in 1407, 1 in criminal appeals, the formalities of the battle oath and subsequent matters are fully given. And in 1422 2 the ceremony in a battle between champions is described with curious details, down to the defaulting of the tenant on the appointed day. In 1565 Sir Thomas Smith 3 tells us, of this mode of trial, that it was not much used, but " I could not learn that it was ever abro- gated." This was only six years before the famous writ of right, in Lowe v. Paramour, 4 which furbished up this faded learning. Dyer has a pretty full and good account of that case ; but Spel- man's Latin 5 is fuller and very quaint. The trial in a writ of right, he tells us, repeating with precision the doctrine of four centuries and a half before, is by duel or the assize ; utrunque genus hodie insuetum est sed duelli magis. 6 Yet, he goes on, it chanced that this last was revived in 1571, and battle was ordered, non sine, magna juris consnltorum perturbatione . Then comes a curious detailed account, setting forth, among other things, how Nailer, the demandant's champion, in his battle array, to the sound of fifes and trumpets, on the morning of the day fixed for the battle, Londinum minaciter spatiatur. It has been said that Spelman was present at Tothill Fields on that day with the thousands of spec- tators that assembled ; he does not say so, I believe, but he writes with the vivacity of an eye-witness. The plaintiff did not appear. Another like case occurred as late as 1638, 7 but there was no fight. Efforts to abolish the judicial battle were made through that century and the next, but without result. At last came the famous appeal of murder in 1819, 8 in which the learning of the subject 1 Y. B. 17 Ed. III. 2, 6; s. c. Lib. Ass. 48, 1 ; Y. B. 9 H. IV. 3, 16. 2 Y. B. 1 H. VI. 6, 29. 8 Com. England, bk. ii. c. 8. 5 Glossary, sub voc. Campus, A. D. 1625. 6 How rusty the lawyers were in 1554, as regards the Grand Assize, is shown in Lord Windsor v. St. John, Dyer, 98 and 103 b. 7 Cro. Car. 522; Rushworth's Coll. ii. 788. 8 Ashford v. Thornton, 1 B. & Aid. 405.
 * Dyer, 301.