Mountain Democrat. [volume] (Placerville, El Dorado Co., Cal.) 1854-1860, 1858-04-10

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the English law.
In the year 1918, Abraham Thornton, charg-
ed with the murder of q young lady named
Mary Ashford astonishcd everybody, and
somewhat puzzled his judges, by refusing to
submit his case to be tried by jury, and by
availing himself of the long since disuscd and
almost forgotten law which allowed him, in
stead, to summon his accuSer to a wager Of
battle, or trial of single combat In vain was
his right to do SO questioned by his counsel,
on the plea that the law of trial by battle was
obsolete, not having been employed for some
two centuries. The Lord Chief Justice Ellen
borough at once decided that as the act had
never been repealed, it still formed part of the
law of the land. So, Thornton being pow
erful, athletic fellow, and his accuser-who
was, by the by, the brother of the murdered
girl-a weak STRIPPING, not more than twenty
years of age, the latter declined the proffcrcd
combat, and the suspected murderer was set
at liberty, result which, judging from the
reported circumstances Of the case, aud the
evidence against him, would hardly have been
probable but for his Opportunc digging up Of
this long forgotten law.
The unexpected termination of this trial
led to the bringing into Parliament, the fol-
lowing year, Of bill Ito abolish oil appeals
of murder, treason, felony, or other offences,
and wagcrs of battle, or joining issue, and
trial by battle, in writs Of right"
The wager Of battle, like the ordeals of fire.
water, touching the murdered body, and 9TH
er extraordinary and now obsolete modes Of
finding out the better or worse man, of course
originated in the superstitious belief that Prov
idence would in all cases give the victory to
him who had the right on his side; in spite
Of this belief we find some rather singular
regulations provided against the battle going
too obviously wrong Such, for instance, as
that party detected in the very commission
of the act alleged against him, or under cir
cumstances that left no possible doubt of guilt,
could not claim the right of trial by combat.
It would have been SO very awkward if he
had been the victor after all.
One important difference, however, existed
in the conduct of the civil and criminal cases.
In criminal matters, the accuscr and accused
met on the field and fought it out in person !:
in civil suits the parties fought by proxy
Each employed sort Of physical barister. -
The reason for this as given by Judge Black
stone, is If any party to the suit dies, the suit
must abate and be at an end for the present !;
and, therefore, no judgment could be given
for the lands in question, if either of the par
ties were slain in battle.
Another reason was, that no person should
be allowed to claim exemption from this mode
of trial in civil action, while there NAV be cir
cumstances under which the accused party in
q criminal charge was deprived of his choice
Of trial, and compelled to submit the iujury
to jury. The fact of the accuscr being a f.
male, or under age, or above the age of sixty,
or in holy orders, or peer of the realm, or
any one expressly privileged from the trial by
battle, by some charter of the king (as were
the citizens Of London among othcrs) or la-
boring under some material defect, as blind
ness or loss Of limb any Of these were suffi-
cient ground for refusing the wager of battle.
A brief account of the solcmnitics observed
on the occasion Of judicial duclS may prove
interesting. In civil suit of writ of right
by which it was sought to obtain possession
Of lands or tcncmcnts, in the occupation Of
another-the tenant pleaded the general issue,
that is to say, that he had more right to hold
than the defendant had to recover, and offered
to prove it by the body of his CHAMPION
This offer was accepted the champion was
produced, who, throwing down his glove as q
gage or pledge, wagcd or stipulated by battle
with the champion of the opposing party
The latter accepted the challenge by picking
up the glove.
A piece Of ground, sixty feet square was
set out, enclosed with lists, with seats erected
for the Judges of the Common Pleas, who
presided at these trials in their full scarlet
robes, and bar was prepared for the learned
sergeants-at-law. AS soon as the Court had
assembled at sun rising, proclamation was
made for the parties and their champions
These were introduced by two knights, and
dressed in coats of armour, with red sandals,
bare-legged from the knee downwarls, bare
headed and with bare arms to the elbows
The weapons they were furnished with though
formidable were not deadly. Indeed fatal
termination to these civil cOmbats were rarely
if ever known. They were armed only
with batOns, or slaves Of an ell long, and each
carried a four-cOrnered leathern shield.
On their arrival in the lists, the champion
of the tenant took his adversary by the hand
and made oath that the tcncments in dispute
were not the property of the demantant; the
champion Ofthe claimant in precisely the same
form, swOre in answer that they were. Next
both champions took an oath that they had
not made use Of any sorccry or enchantment
of this was as follows: % Hear this We iusti
ces, that have this day neither cat nor drank
nor have upon me neither bones, stones moi
6hGAoO W uVA 0uy OuNh0ASAhCH cOICCIy HOI
witchcraft, whereby the law of God may be
abused, or the law of the devil may be exalted
So help me God and his Saints
Then the fight commenced, and they were
bound to fight the whole day through, until
the stars appeared or, until one was beaten
If the victory could be achieved either by the
death of the champion, "a very rare occur
rence,) or by either proving recreant, that is
by yielding, and prOnouncing the horrible
word Craven, word Of no absolute meaning
''but," says Blackstone, ga horrible word in.
deed to the vanquished champion, since, as
punishment to him for forfeiting the lands o
his principal by pronouncing that shameful
word, he is deemed as a recreant Gdmitter.
IiOerdm Iegem, that is, to become infamous
being supposed by the event to be forcswOrn
and therefore, never to be put upon jury OF
admitted as a witness in any cause"
The proceedings in criminal cases were very
similar to the above, only the Oaths of the two
combatants were much more striking and sol
emn. Blackstone gives the following as the
form, the accused party holding the Bible in
his hand, and his antagonists hand in the 9th
er, said: "Hcar this oh, man whom hold
by the hand, who callest thyself John by the
name of baDtiSm that who call mvSelf 'rhoS