greater curiosity, rather direct the reader's attention to those species of trials which were had recourse to in certain special and eccentrical cases, and which, from their present disuse, have become more subjects of antiquarian inquiry. These are the several methods of trial by combat, fire and water ordeal, and wager of law.

Combat.]-Trial by combat, or, as it is called, wager of battle, was first introduced into England, among other Norman customs, by William the Conqueror, in imitation of the practice of those northern nations whence it sprung, who entertained a strong belief, "that a certain divine justice did attend those sharp encounters," as, says Selden, "the northern inhabitants have especially of old time made use of this form of searching out hidden truth,—the Russians, Hungarians, Almains, Normans, English, and others."

The decision of suits by this appeal to the God of Battles, is by some said to have been invented by the Burgundi, one of the northern or German clans that planted themselves in Gaul: and it is true that the first written injunction of judiciary combats that we meet with is in the laws of Gundibald, A.D. 501, which are preserved in the Burgundian code: yet it does not seem to have been merely a local custom of this or that particular tribe, but to have been the common usage of all those warlike people from the earliest times, being mentioned by Quintilian and other Roman writers as customary with the Germans from their first acquaintance with them. It seems to have owed its original in this country to the military

spirit of our ancestors, joined to a superstitious frame of mind, it being in the nature of an appeal to Providence, under an apprehension and hope (however presumptuous and unwarrantable) that Heaven would give the victory to him who had the right.

This mode of trial was only allowed in three cases, one civil, one criminal, and the third military.

Civil combat was upon issue joined in a writ of right; the last and most solemn decision of real property. This, although the writ of right itself, and of course this trial thereof, be now disused, "yet as it is law at this day, it may be matter of curiosity at least, to inquire into the forms of this proceeding, as we may gather them from ancient authors."

"Both parties (says Glanville) being present in court, and the demandant claiming the land in question, the tenant may require the view thereof: but as to this, there is respite to be made, to the end it may be known, whether the defendant have not more land in that town than what is in question; and if he have not, then he shall not be allowed any respite; but if he have more, he shall; and likewise have assignation of another day: and when he shall be so departed out of the court, at three reasonable essoins the defendant may recover anew; and the shireeve of the county wherein the land lieth shall have a writ directed to him to send freeholders of his county to view the land; the tenour of which writ is as followeth :

"Rex, vicecomiti N. salutem, &c. The king to 'the shireeve of N. sendeth greeting. We command

you, that, without delay, you send free and lawful ⚫ men of the neighbourhood of D. to take view of one ' hide of land lying in that town, which A. B. claimeth ' against C. D. and whereupon there is a suit depend❝ing betwixt them in our court; and that you cause 'four of those men to attend me, or my justices, upon .... day, to testify their view thereof. In witness, &c.'

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Then, after three reasonable essoins concomitating the view of the said land, and both demandant and tenant appearing again in court, the demandant setteth forth his claim in this manner: I do chal'lenge against T. H. half a knight's fee, or two caru'cates of land in that town, as my right and inheritance; and whereof my father, or grandfather, was 'seised in his demesne as of fee, in the time of king

Henry I. or after the first coronation of the king that 'now is, and whereof he hath taken the profits, to the ' value of 10s. at the least, viz. in corn sowed, and 'other commodities; and this I am ready to try by this 'my freeman N.; and if any mischance shall befall 'him, then by that other person who hath seen and 'heard this.' Or thus, And this I am ready to try by this my freeman S. unto whom his father on his 'death-bed enjoined, upon the duty wherein a son is obliged to a father, that if at any time he should 'hear of a suit for that land, he should adventure himself by combat for it, as that which his father had seen ' and heard.'

"The claim and demand of the demandant being thus made, it shall be in the choice of the tenant,

either to put himself upon trial for the same by com→ bat, or to put himself upon the great assize of our lord the king, and to require a recognition which of them hath most right in that land.

“And if he will defend it by combat, he is then obliged to defend the right of the demandant from word to word as he sheweth it against him, either by himself or some other fitting person: but note, that after the combate shall be thereupon waged, it behoveth him who holdeth the land to defend it by combate, and thenceforth not to put himself into the great assize: and after the combat waged, he may again reasonably essoin himself thrice as for his own person, and thrice for the person of his champion. All which essoins being made, as they rightly ought to be, it is necessary that, before the combat be begun, the plaintiff do appear in court, and have his champion there in readiness to fight; nor may he bring any other champion than one of those upon whom he did put the trial of his cause; neither may he change another for him after the first waging of the battle.

"But if he who did wage the battle shall die during that time that the controversy dependeth, if by natural death, and that declared by the neighbourhood, as it always ought to be, in case there be doubt thereof, the demandant may have recourse to one of those upon whom he first put the trial; or on some other fit person, though he named no other, so that there be alway a fit witness; and so the plea shall

begin anew; but if he shall die by his own fault, the lord shall then lose his suit.

he

"Also see whether the champion of the demandant may substitute another in the court to make the dispute which he undertook in his stead; for, according to right, and the ancient custom of the kingdom, may not make use of any but his legitimate son. "And note, that the champion of the demandant ought to be such a one, who may thereupon be a fit witness; nor may the demandant prosecute his appeal in his own person, because that may not be, except by a fitting ear and eye witness: but the tenant may defend himself, either in his own person, if he so please, or another fit man, if he shall so choose to do. Howbeit, if he shall produce his champion, and he (the said champion) do die in the interim, it is a question in law, whether the tenant may defend himself by another, or lose his suit, or his seisin only; therefore here we are to distinguish as before.

"Note also, that the champion defendant cannot in court produce in his place any other to undertake the combat than his own legitimate son.

"But it often happeneth, that a champion hired for reward is produced in court to undergo the trial; and if the adverse party shall except against his person, alleging him to be less fit, by reason that he hath been so hired, and be ready to prove the same against him, in case he deny it, by himself or by some person who saw the reward taken; upon this they shall be heard, and the principal duel shall remain.

"And if he shall be thereupon convict, and the