240 HARVARD LAW REVIEW. at his option to claim a decision by an inquest of knights. Four knights were first named by the sheriff, and proceeded to choose other twelve,* and the twelve had to declare on oath which party had the greater right in the land (or other subject-matter assimilated to land) held by the one and claimed by the other. By this innovation the King and his learned advisers really committed themselves to two positions: first, that it should be possible to settle men's disputes by some rational way of ascertaining the truth ; secondly, that trial by battle, though it purported to be an appeal to the judgment of God, was not a rational way. The King who takes this on himself is no longer a mere supervisor or executive chief; he is the guardian and director of justice in his kingdom. Not that trial by battle forthwith went out of fashion. Only the defendant'^ could claim the trial by assize. He would natu- rally do so if he felt confident in the justice of his case. But if he had a bad case, or one which he thought likely to seem bad for any reason, it was his interest to let things proceed in the old course, and make the best compromise he could at the last moment before the judicial combat; and this appears to have been done from time to time almost as long as the writ of right was in practical use.^ Determination of the issue by battle actually fought out, though not uncommon throughout the thirteenth century in cases of criminal " appeals," was the exception, it is believed a rare excep- tion, in the writ of right Here as elsewhere the rule holds that the King's justice in men's private affairs is at first a matter of grace, except where on 1 This indirect election of the jurors appears designed to prevent collusion be- tween either party and the sheriff. In later practice the four knights chose themselves and a number of others, making up in the whole sixteen (Y. B. 30 & 31 Ed. I. 116) or twenty-four, of whom sixteen acted (Blackst. iii. Appx. i, § 6) ; but Glanvill's text looks as if the first four were originally not allowed to elect any of themselves; and the practice was still the same in Henry III.'s reign, Bract. 331 b. 2 Properly " tenant," but the technical distinction of terms is not worth preserving unless one is studying the forms of pleading in detail. 3 In some recorded cases of this kind the proceedings may have been collusive from the first, and the combat only a more dramatic forerunner of the pleadings in the " com- mon recovery" of the developed real property law. P. & M. ii. 96. See a very full fourteenth-century example of a trial by battle compromised when the champions were in the field, Dugd. Orig. 68. The duel of chivalry under the Earl Marshal's jurisdic- tion, mostly in cases of " transmarine treason," was different in origin and character and outside the common law. As to this see Selden, Duello, c. 11, extracted in Dugd. 76 sgg. ; Neilson, Trial by Combat, 160-207.
