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  • Writer's pictureRajshekhar Govilkar

Trial by Battle

How strong are you physically, to win an appeal?

Try to imagine a situation when someone requires a lawyer to file an appeal against an order of conviction of a very serious charge of murder and after hearing the client’s version and after studying the judgment of the trial court and other necessary documents, the lawyer appears to be pessimistic about the fate of the appeal in the client’s favour. The client is nervous. But then, the lawyer studies the convicted person’s physical strength and strangely, asks questions about the health and the physical condition of the opponent. On getting this information, suddenly, the lawyer seems to be very optimistic and even jubilant. The client gets increasingly suspicious and doubtful about the lawyer. Then the lawyer asks one last question as to whether the client would be willing to challenge the opponent to have a physical battle to decide who is right?

This was perfectly possible and legal; if only we were considering such a solution in the early years of the 19th century, around 1818 or so.

This concept of “Trial by Battle” was interesting, to say the least. I am reminded of an incident during my time as a student at the New Law College, Mumbai. In the year 1974-75, the legendary Mr Nani Palkhivala was the Chief Guest of our College Annual Day function. By some strange coincidence, in that same year, my college had won many prizes different sports competitions in the events of boxing, wrestling, weightlifting, etc. Mr Palkhivala was quite amused after hearing this and stated that if the old English Law permitting the trials by battle had been in force, the lawyers from the New Law College would have won all the appeals hands down. Dr P.W. Rege, our Principal at that time and one of the most intelligent persons I have ever come across in my life, quickly rose and gave some details of a case which had dealt with this concept of a trial by battle while also giving the citation of the case. Mr Palkhivala was highly impressed and clapped in appreciation. The citation given by Dr Rege was that of Ashford v/s Thornton 106 ER 149. It’s really interesting to understand as to how the law evolved and how the law was interpreted. The general law of the land was in favour of the wager of battle/trial by combat/trial by battle.

The matter related to the murder of one Ms Ashford by Thornton. After the trial, the jury acquitted the accused Thornton. The brother of Ashford filed an appeal and the matter went before the King's Bench to hear the appeal. When the appeal was before the court, the respondent i.e. Thornton after reading the charges or the case against him pleaded that he was not guilty and threw his glove on the floor and declared that he was prepared to defend the case by his body. This was obviously a shock to the appellant and his lawyer too. The appellant submitted that there were violent and strong presumptions against the accused respondent of he being guilty of a felony of the murder of Ms Ashford. Of course, the counter-arguments of the Respondent were that there were strong presumptions and proofs that he was not guilty of a felony of murder and that it was not necessary and he was not bound by law to answer the charges. There were arguments and counter-arguments if the battle should be and was in fact permissible in that case. Ultimately, the conclusion was that if there was a strong and vehement presumption, the party who was by the earlier law could have been subjected to the instant death sentence was ousted of his trial by battle.

The submission further was that the right of battle was that of the defendant and not of the plaintiff in an appeal and that the case was not within the exception not to allow the trial by the wager of battle. After hearing the arguments and referring to several cases, the court seems to have opined that the law showed very distinctly that the general mode by law in a trial in the appeal was by battle. The election of the appellant, unless it was brought within the exceptions, like if the appellant was an infant or was a woman or a person above the age of 60 or the respondent-appellee had broken the prison. etc. Or, the very important aspect of there being a great and violent presumption of guilt, which admits no denial and proof to the contrary. The plea that the physical condition of the Appellant Mr Ashford being week did not impress the court.

The court held that it was not a case that cannot admit of no denial or proof to the contrary and however obnoxious the court was to the trial by battle, which in the mode of trial, was bound to be awarded. The judgement was delivered that the order was to be passsed as per the law as it was and not as the court wished it to be. Whatever prejudices may exist against this mode of trial in appeal, the trial by battle was awarded. After some time, the appellant’s counsel told the court that the appellant had no objection to Thornton’s discharge so long as no action was taken against his client on this statement.

The appeal thus came to be dismissed. But the law stood declared that the trial by battle was permissible in an appeal. There were serious efforts later on and the law was amended and the provisions of trial by batter were removed. Some even tried to evoke the provisions on some totally untenable grounds. But that is not the issue any more.

It was also the opinion that the battle could be by proxy. It’s not confirmed. But that probably was at the back of the mind of Mr Palkhivala when he observed that my college could have produced the most successful lawyers if the law of trial by battle had still been in force.

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