BAT 



all points. And upon tliis and other circiimftances, the pre- 

 fidcnt Montclqiiieii liath, witli great ingeiuiity, not only de- 

 Juccd the impious cullom of private diitls upon imaginary 

 points of honour, but hath alfo traced the heroic madnefs of 

 knight-errantry, from the fame original of judicial combats. 

 But to proceed. 



When the champions, thus armed with batons, arrive 

 within the lifts, or place of combat, the champion of ihc te- 

 nant then takes his advcrfary by the hand, and makes oath 

 that the lencmcnti in difpiite are not the right of the de- 

 mandant ; and the champion of the demandant, then taking 

 the other by the hand, fwears in the fame manner that they 

 are ; fo that each champion is, or ought to be, thoroughly 

 pcrfuaded of the truth of the caufe lie fights for. Next an 

 oath againll forcery and enchantment is to be taken by both 

 the champions, in this or a finiilar form ; " liear this, ye 

 julliccs, that I have this day neither eat, drank, nor have 

 upon me, neither bone, (lone, ne grafs ; nor any inchant- 

 mcnt, forcery, or witchcraft, whereby the law of God may 

 be abafed, or the law of the devil e.-ialted. So help me God 

 and his faints." 



The battel is thus begun, and the combatants are bound 

 to fight till tl'.e ftars appear in the evening : and, if the 

 champion of the tenant can defend himfelf till the ftars ap- 

 pear, the tenant (liall prevail in his caufe ; for it is fufficient 

 for him to maintain liis ground, and make it a drawn battel, 

 he being already in poffeHioii ; but, if vidtoiy declares itltlf 

 for either party, for him ia jud^jmcnt finally given. This vic- 

 tory may arife, from the dcatli of titlier of the champions : 

 which indeed hath rarely happened ; the whole ceremony, to 

 fay the truth, bearing a near rtfemblance to certain rural 

 athletic divei^fions, which are probablv derived from this ori- 

 ginrd. Or viftory is obtained, if either champion proves 

 rccrtani, that is,yiilds, and pronounces the horrible word of 

 fiavcn ; a word of difgrace and obloquy, rather than of any 

 determinate meaning. But a honlble word it indeed is to 

 the vanquifhed champion : fince as a punifhment to him for 

 forfeiting the land of his principal, by pronouncing that 

 fliameful word, he is condemned, as a recreant, " amittere 

 libcram legem," that is, to become infamous, and not be 

 accounted " liber et Icgalis homo ;" being fuppoied by 

 the event to be proved forfworn, and therefore never to 

 be put upon a jury, or admitted as a witnefs in any caufe. 



This ic the form of a trial by battel ; a trial which the 

 tenant, or defendant, in a writ of right, has it in his eledlion at 

 this day to demand ; and which was the cnly decifion of fuch 

 writ of right after tbe conquell, till Henry II. by eonfent of 

 parliament, introduced the grand a/p/r, a peculiar fpecies of 

 trial by jury, in concurrence therevrith ; giving the tenant 

 his choice of either the one or the other. Which example, 

 of difcountcnancing thcfe judicial combats, was imitated 

 about a centur\' afterwards in France, by an edi£l of Louis 

 the Pious, A. D. 1260, and foon after by the reft of 

 Europe. The eftablifhment of this alternative, Glanvil, 

 chief juftice to Henry II., and probably his advifer here- 

 in, conlidcrs as a moil noble improvement, as in fadl it was, 

 of the law. 



Tiie trial by battel may alfo be demanded at the eleflion 

 of tlie appellee, in either an appeal or an approvement ; and it 

 is carried on with equal fokninity as that on a writ of riglit ; 

 with this difference, that there each party might hire a cham- 

 pion, but here they mull fight in their proper perfons. And 

 therefore if the appellant or approver be a woman, a prieft, an 

 infant, or of the age of fixty, or lame, or blind, he or (lie may 

 counterplead and refufe the wager of battel ; and compel the 

 appellee to p'lt himfelf upon the country. Alfo peers of the 

 rtalm, bringing an appeal, flwll not be challenged to wage 



BAT 



battel, on acconnt of the dignity of their perfons ; nor the 

 citizens of London, by fpecial charter, becaufe fighting 

 feems foreign to their education and employment. So like- 

 wife if the crime be notorious ; as if the thief be taken with 

 the " mainour," or the murderer in the room with a bloody 

 knife, the appellant may nfufe the tender of battel from 

 the appellee ; for it is unreafonable that an innocent man 

 fliould ila.ke his life againft one who is already half-con- 

 vifted. 



The form and manner of waging battel upon appeals are 

 much the fame as upon a writ of right : only the oaths of 

 the two combatants are vaftly more Ihiking and folemn. 

 The appellee, when appealed of felony, pleads 1:01 gul/ff, 

 and throws down his glove, and declares he will defend the 

 lame by his body : the appellant takes up the glove, and re- 

 plies that he is ready to make good the appeal, body for 

 body. And thereupon the appellee, taking the book in his 

 right hand, and in his left the right hand of his antagonift, 

 fwears to this effecl. " Hoc audi, homo, quem per manum 

 terieo, &c." " H'-ar this, O man, whom I hold by the 

 hand, who calk ft thyfclf John, by the name of baptifm, that 

 I, who call myfelf Thomai", by the name of baptifm, did not 

 fclonioufly murder thy father, WiUiam by name, nor am any 

 way guilty of the faid felony. So help me God, and the 

 faults ; and this I will defend againft thee by my body, as 

 this court ftiall award." To which the appellant replies, 

 holding the bible and his antagonill's hand, in the fame man- 

 ner as the ctlier : " Hear this, O man, whom I hold by the 

 hand, who callcft thyfclf Thomas, by the name of baptifm, 

 that thou art perjured ; and therefore perjured, becaufe that 

 thou fclonioufly diuft murder my father, William by name. 

 So help me God and the faints ; and this I will prove 

 againft thee by my body, as this court fliall award." The 

 battel is then to be fought with the fame weapons, viz. 

 batons, the fame folemnity, and the fame oath againft amu- 

 lets and forcery, that are ufed in the civil combat : and if the 

 appellee be fo far vanquiftied, that he cannot or will not fight 

 any longer, he fliall be adjudged to be hanged immediately ; 

 and then, as well as if he be killed in battel, providence is 

 deemed to have determined in favour of the truth, and his 

 blood fliall be attainted. But if he kills the appellant, or 

 can maintain the fight from fun-rifing till the ftars appear in 

 the evening, he fliall he acquitted. So alfo if the appellant 

 becomes recreant, and pronounces the horrible word of crnv^n, 

 he ftiall lofe his " liberam legem," and become infamous ; 

 and the appellee fliall recover his damages, and alfo be for 

 ever quit, not only of the appeal, but of all indidments like- 

 wife for the fame off'enee. Blackft. Com. vol. iii. p. 337, 

 &c. vol.iv. p. 346, &c. 



Battle, in the MU'ilary Jlit, fignifies an engagement 

 between two hoftile armies, drawn up in regular order, in a 

 country fufftcicntly open for them to encounter in front at 

 the fame time ; or fliould fome obftacle occur to hinder the 

 readily entering into aflion of the whole line, for the greater 

 part of an army to begin the attack upon the troops oppofcd 

 to them, the reft remaining in fight, ready to aft as occafion 

 ciay require their afliftance or co-operation. 



Other conflifts, when only certain points of the armies are 

 engaged, though geneially of much longer duration, and 

 often attended with fuperior flauglitcr, are oidy termed fights, 

 or, a? they are called by the Yvcnch, combals. (Fcuqniere's 

 Memoires, chap. 80.) Under this denomination rank there- 

 fore, though as obllinatc as moft others on record, the en- 

 gagements of Senefi'e, of Steinkerke, of Oudenarde, and of 

 fatter days, thofe of Zorndorft' and Hoclikirchen, equally 

 celebrated on account of the carnage which attended them, 

 and the importance of their confequcnces. 



The 



