Trial by combat
Trial by combat (also wager of battle, trial by battle or judicial duel) was a method of Germanic law to settle accusations in the absence of witnesses or a confession in which two parties in dispute fought in single combat; the winner of the fight was proclaimed to be right. In essence, it was a judicially sanctioned duel. It remained in use throughout the European Middle Ages, gradually disappearing in the course of the 16th century.
History
Origins
Unlike
It was unknown in Anglo-Saxon law and
The practice is regulated in various
In medieval Scandinavia, the practice survived throughout the Viking Age in the form of the holmgang.
An unusual variant, the marital duel, involved combat between a husband and wife, with the former physically handicapped in some way. The loser was killed.[4]
Holy Roman Empire
The Sachsenspiegel of 1230 recognizes the judicial duel as an important function to establish guilt or innocence in cases of insult, injury, or theft. The combatants are armed with swords and shields and may wear linen and leather clothing, but their heads and feet must be bare and their hands only protected by light gloves. The accuser is to await the accused at the designated place of combat. If the accused does not appear after being summoned three times, the accuser may execute two cuts and two stabs against the wind, and his matter will be treated as if he had won the fight.[5]
The Kleines Kaiserrecht, an anonymous legal code of c. 1300, prohibits judicial duels altogether, stating that the emperor had come to this decision on seeing that too many innocent men were convicted by the practice just for being physically weak. Nevertheless, judicial duels continued to be popular throughout the 14th and 15th centuries.
Trial by combat plays a significant role in the
Hans Talhoffer in his 1459 Thott codex names seven offences that in the absence of witnesses were considered grave enough to warrant a judicial duel, viz. murder, treason, heresy, desertion of one's lord, "imprisonment" (possibly in the sense of abduction), perjury/fraud, and rape.
Great Britain and Ireland
Wager of battle, as the trial by combat was called in English, appears to have been introduced into the
The last certain trial by battle in England occurred in 1446: a servant accused his master of treason, and the master drank too much wine before the battle and was slain by the servant.
The wager of battle was not always available to the defendant in an appeal of murder. If the defendant were taken in the mainour (that is, in the act of committing his crime), if he attempted to escape from prison, or if there was such strong evidence of guilt that there could be no effective denial, the defendant could not challenge. Similarly, if the plaintiff was a woman, above 60 years of age, a minor,
Middle Ages
The earliest case in which wager of battle is recorded was Wulfstan v. Walter (1077),[11] eleven years after the Conquest. Significantly, the names of the parties suggest that it was a dispute between a Saxon and a Norman. The Tractatus of Glanvill, from around 1187, appears to have considered it the chief mode of trial, at least among aristocrats entitled to bear arms.[12][13]
Around 1219,
Civil disputes were handled differently from criminal cases. In civil cases, women, the elderly, the infirm of body, minors, and—after 1176—the clergy could choose a jury trial or could have champions named to fight in their stead. Hired champions were technically illegal but are obvious in the record. A 1276 document among Bishop Swinefield's household records makes the promise to pay Thomas of Brydges an annual retainer fee for acting as champion, with additional stipend and expenses paid for each fight.[14] In criminal cases, an approver was often chosen from the accomplices of the accused or from prison to do the fighting for the crown. Approvers sometimes were given their freedom after winning five trials but sometimes were hanged anyway.[15]
In practice, a person facing trial by combat was assisted by a
Early trials by combat allowed a variety of weapons, particularly for knights. Later, commoners were given
Either combatant could end the fight and lose his case by crying out the word "Craven!",[6] from the Old French cravanté, "defeated", which acknowledged "(I am) vanquished." The party who did so, however, whether litigant or champion, was punished with outlawry. Fighting continued until one party was dead or disabled. The last man standing won his case.
By 1300, the wager of combat had all but died out in favour of trial by jury. One of the last mass trials by combat in Scotland, the
16th century
The last trial by combat under the authority of an English monarch is thought to have taken place during the reign of
The dispute probably concerned dynastic power within the territory of the O'Connors, and the parties, Teig and Conor, had accused each other of treason; the privy council granted their wish for trial by combat to take place on the following day, and for another such trial between two other members of the same sept to take place on the Wednesday following. The first combat took place as appointed, with the combatants "in their shirts with swords, targetts and skulles". An account of the proceedings as observed by one of the privy councillors is given in the State papers Ireland 63/104/69 (spelling adapted):
The first combat was performed at the time and place accordingly with observation of all due ceremonies as so short a time would suffer, wherein both parties showed great courage by a desperate fight: In which Conor was slain and Teig hurt but not mortally, the more was the pity: Upon this Wednesday following Mortogh Cogge [O'Connor] appeared in the same place brought by the captains to the listes, and there stayed 2 hours making proclamation against his enemy by drum and trumpet, but he appeared not ... The only thing we commend in this action was the diligent travail of Sir Lucas Dillon and the Master of the Rolls [Nicholas White], who equally and openly seemed to countenance the champions, but secretly with very good concurrence, both with us and between themselves, with such regard of her Majesty's service, as giveth us cause to commend them to your Lordships.
The Annals of the Four Masters also refers to the trial and censures the parties for having allowed the English to entice them into the proceedings. It is also referred to in Holinshed's chronicles. This was a trial not at common law but under consiliar jurisdiction.
Modern era
It is uncertain when the last actual trial by battle in Britain took place. While some references speak of such a trial being held in 1631, records indicate that King Charles I intervened to prevent the battle.[18] A 1638 case is less clear: it involved a legal dispute between Ralf Claxton and Richard Lilburne (the latter the father of John Lilburne). The king again stepped in, and judges acted to delay proceedings.[19][18] No record survives of the outcome of the case, but no contemporary account speaks of the trial by battle actually taking place.[20][21] The last certain judicial battle in Britain was in Scotland in 1597, when Adam Bruntfield accused James Carmichael of murder and killed him in battle.[22]
Proposals to abolish trial by battle were made in the 17th century, and twice in the 18th, but were unsuccessful.[23] In 1774, as part of the legislative response to the Boston Tea Party, Parliament considered a bill that would have abolished appeals of murder and trials by battle in the American colonies. It was successfully opposed by Member of Parliament John Dunning, who called the appeal of murder "that great pillar of the Constitution".[24] Writer and MP Edmund Burke, on the other hand, supported the abolition, calling the appeal and wager "superstitious and barbarous to the last degree".[25]
The writ of right was the most direct way, in the common law, of challenging someone's right to a piece of
Such a private prosecution was last conducted in the case of Ashford v Thornton in 1818.[26] Pronouncing judgement in favour of the accused's plea claiming the wager of battle, Justice Bayley of the King's Bench said that:
One inconvenience attending this mode of proceeding[27] is, that the party who institutes it must be willing, if required, to stake his life in support of his accusation.[28]
Parliament abolished wager of battle the following year, in February 1819, in an Act introduced by the Attorney General Samuel Shepherd.[29] At the same time, they also abolished the writ of right and criminal appeals.[30] Despite this abolition, in 2002, a Welshman in Bury St. Edmunds refusing to pay a small penalty charge for a vehicle-registration violation demanded trial by combat with the Driver and Vehicle Licensing Agency; his demand was rejected, and he was fined by a court.[31]
France
According to Gregory of Tours, King Childebert II ordered for two of his servants to engage in trial by combat against each other when he found a buffalo had been killed in his forest and one accused the other of the crime. [32]
Judicial combat of 1386
In December 1386, one of the last trials by combat authorised by the French King Charles VI was fought in Paris. The trial was fought to decide a case brought by Sir Jean de Carrouges against squire Jacques le Gris, whom he accused of raping his wife Marguerite when Carrouges was in Paris conducting business. After lengthy hearings at the Parlement of Paris, with Jacques le Gris claiming that he had not committed the crime and Marguerite being with child, it was decided that guilt could not be decided through a standard jury trial, and a judicial duel was ordered. The duel put three lives in the hands of fate: Jacques le Gris, the accused, Jean de Carrouges, and the accuser, Marguerite. In the duel, the survivor of the said duel would be considered the winner of the claim. If Jacques le Gris won the duel, not only would Jean de Carrouges die but his pregnant wife would also be put to death for the crime of being a false accuser.
In late December, shortly after Christmas, the combatants met just outside the walls of the abbey of Saint-Martin-des-Champs in the northern Paris suburbs. After a lengthy ceremony, the battle was joined, and after a furious and bloody encounter, Carrouges stabbed his opponent with a sword
Italy
About AD 630, Gundeberga, wife of the Lombard King Arioald (626–636), is supposed to have been accused by a disappointed lover of a plot to poison the king and take another man. King Arioald consented that her innocence should be tested by single combat between her accuser and a nobleman who undertook to defend her. The accuser having been slain, Gundeberga was declared innocent.[37] This was the first instance of a trial by combat in the history of Italy.[38] In the 730s, the Lombard king Liutprand (712–744) had lost confidence in the likelihood that the trial by battle would provide justice.[39][40] He knew that the practice was subject to abuse.[41]
The jurisprudence of judicial duelling in Italy is particularly well documented in the 15th and 16th centuries. In particular, the treatises of Achille Marozzo (1536), Giovanni Battista Pigna (1554) and Girolamo Mutio (1560) have contributed to shed considerable light on the subject.[42]
The fundamental aspects of Italy's duelling customs were the following. The offended party (attore or agent) had to accuse the defendant (reo) of an injury of words or deeds he received, in matters that could not be reliably proven in a courtroom. In turn, the defendant had to issue a "mentita", meaning that he had to tell the agent "you lie", which consisted of an injury of words. After this, the agent had to issue a notarised cartello, or a notice of challenge, to the defendant, which, if accepted, would set the formal proceedings in motion.
The defendant had the important advantage of the election of weapons. This was done to ensure that the institution would not be abused by the strong to overpower the weak, although the system was gamed in many ways bordering on the illegal.[43]
The duel would take place on the land of a lord impartial to both parties, or if this was not practicable, alla macchia, meaning on public lands. The herald read the accusation out loud and gave the defendant one last chance to confess. If the latter did not do so, the duel would begin, and it was the responsibility of the issuer of the challenge to deliver (or attempt) the first blow. Incapacitating injuries or death would dictate victory, although other scenarios were possible as well. For instance, if the defendant could successfully parry all blows delivered by the agent until sundown, the defendant would be considered the victor.[44]
With the
India
In the 15th century in the Malabar region of India, the same Kalaripayattu competition was held by the Thiyya caste, who are the Chekavars A special kind of fighter called a chekvar was engaged to duel another chekavar on behalf of two opposing Rulers parties to prevent the explosion of a blood feud. For this two chekavar fight each other in a arena for the king and die. For this they used sword and parija. When one of the chekavar defeated or killed the other in the public duel called the ankam, the two parties considered the matter closed without either having spilled any of their own blood. It is as if the violence of the sacrifice , [2], [3], [4], [5] Kalaripayattu, the most ancient and important form of India, was practiced in Kerala. Its origins date back to the 12th century. Unniyarcha, Aromal Chekavar and others were warriors of Chekavar lineage. It was during their period that kalaripayattu spread widely in southern Kerala.[45][46]
United States
At the time of independence in 1776, trial by combat had not been abolished and it has never formally been abolished since. The question of whether trial by combat remains a valid alternative to civil action has been argued to remain open, at least in theory. In McNatt v. Richards (1983), the Delaware Court of Chancery rejected the defendant's request for "trial by combat to the death" on the grounds that dueling was illegal.[47] In Forgotten Trial Techniques: The Wager of Battle, Donald J. Evans set out the possibility of a trial by battle in the setting of a lawyer's office.[48] A tongue-in-cheek motion during 2015 for trial by combat in response to a civil suit was rejected in 2016.[49]
In 2020, a man named David Zachary Ostrom requested a trial by combat in response to a custody and property dispute with his ex-wife over their children.[50] Following Ostrom requesting trial by combat, he was court-ordered to be administered a sanity test and was temporarily restricted from parenting rights. Upon successfully clearing his sanity test, Ostrom's parenting time was restored. Ostrom has since admitted that he initially made the request for trial by combat in order to attract media attention to his case.[51]
At a rally for President Donald Trump on January 6, 2021, former New York City mayor and Trump lawyer, Rudy Giuliani, made claims of voter fraud and called for a "trial by combat". The rally resulted in the storming of the United States Capitol.[52]
In fiction
Walter Scott's 1828 novel The Fair Maid of Perth dramatizes the lead-up to the Battle of the North Inch, where a judicial duel is among the violent events culminating in a judicial battle between the clans before King Robert III of Scotland.
The Carrouges–le Gris trial of 1386 was the subject of a 2004 book by Eric Jager. This book was adapted into a 2008 BBC Four documentary and dramatized in a 2021 film.
Tyrion Lannister from Game of Thrones and A Song of Ice and Fire is put through two trials by combat, with the second trial forcing him to flee after he's falsely convicted of killing Joffrey Baratheon.[53]
See also
- Battle royal
- Fencing
- Gladiator
- Gravi de pugna
- Might makes right
- Subpoena ad testificandum
- Subpoena duces tecum
Notes
- ^ ISBN 978-1-85500-214-2.
- Christian Science Monitor. Archivedfrom the original on 27 October 2021. Retrieved 24 October 2021.
- Boretius1.117
- ISBN 978-0-7864-4502-8. Archivedfrom the original on 8 March 2024. Retrieved 17 September 2020.
- ^ book I, art. 63
- ^ a b Quennell & Quennell 1964, p. 76
- ^ Megarry 2005, p. 65.
- ^ Burton, Nathaniel (1843). History of the Royal Hospital Kilmainham, from Its Original Foundation to the Present Time. Dublin: William Curry & Co. pp. 92–93.
- ^ Burn 1820, p. 86.
- ^ Hall 1926, pp. 44–45.
- JSTOR 1321424.
The earliest reference to the battle, I believe, in any account of a trial in England, is at the end of the case of Bishop Wulfstan v. Abbot Walter, in 1077. The controversy was settled, and we read: 'Thereof there are lawful witnesses ... who said and heard this, ready to prove it by oath and battle.'
- ISBN 1-110-36250-1. Archivedfrom the original on 8 March 2024. Retrieved 14 August 2016.
- ^ For an extensive list of cases of trial by battle from this time, see Bigelow's Placita Anglo-Normanica (1066–1195) Archived 8 March 2024 at the Wayback Machine.
- ^ Neilson & Sereni 2009, pp. 46–51.
- ^ Neilson & Sereni 2009, pp. 42–45.
- ^ Neilson & Sereni 2009, p. 159.
- ^ Gunn, Robert M. (1998). "Clan Battle of 1396". Scottish Event & Historical Timeline. Archived from the original on 17 July 2007.
- ^ a b Neilson & Sereni 2009, p. 326.
- ^ Gardiner 2000, p. 249.
- ^ Mackenzie & Ross 1834, p. 300
- ^ Megarry 2005, pp. 63–64.
- ^ Megarry 2005, p. 66.
- ^ Megarry 2005, p. 62.
- ^ Shoenfeld 2001, p. 61.
- ^ Shoenfeld 2001, p. 62.
- ^ "Abraham Thornton". The Newgate Calendar. The Ex-Classics Web Site. Archived from the original on 26 August 2017. Retrieved 14 August 2016.
Acquitted on a Charge of murdering a Girl, and on being rearrested claimed Trial by Battle, April 1818
- ^ outlined here Archived 21 March 2021 at the Wayback Machine by Sir William Blackstone
- ^ Ashford v Thornton (1818) 1 B. & Ald. 405, 106 ER 149 at 457, Court of King's Bench (UK)
- ^ "SHEPHERD, Samuel (1760–1840), of 38 Bloomsbury Square, Mdx. | History of Parliament Online". www.historyofparliamentonline.org. Archived from the original on 23 July 2019. Retrieved 12 July 2019.
- ^ Wikisource. – via
- ^ Sapsted, David (16 December 2002). "Court refuses trial by combat". London: The Daily Telegraph. Archived from the original on 21 March 2021. Retrieved 2 February 2009.
- ^ Gregory of Tours. A History of the Franks. Pantianos Classics, 1916
- ^ Elema, Ariella (4 March 2016). "What Really Happened at the Last Duel?". HROARR. Archived from the original on 21 March 2021. Retrieved 26 July 2019.
- ^ Chroniques de Jean Froissart (Book III, § 122) p. 102 ff. (in French).
- ^ "il y avoit même déjà long-tems que le parlement connoissoit des causes de duel, témoins ceux dont on a parlé ci – devant, & entr'autres celui qu'il ordonna en 1386 entre Carouge & Legris; ce dernier étoit accusé par la femme de Carouge d'avoir attenté à son honneur. Legris fut tué dans le combat, & partant jugé coupable; néanmoins dans la suite il fut reconnu innocent par le témoignage de l'auteur même du crime, qui le déclara en mourant". Duel entry in Encyclopédie ou Dictionnaire raisonné des sciences, des arts et des métiers, Volume 5, 1755.
- ISBN 0-7126-6190-5
- ^ Paul the Deacon, History of the Lombards, Book 4., Chapter XLI. Archived 21 March 2021 at the Wayback Machine
- ^ The Encyclopædia Britannica, or, Dictionary of arts, sciences, and general literature, Volume 13, Adam & Charles Black, 1857, p. 640 Archived 8 March 2024 at the Wayback Machine.
- ^ Frederick Pollock, The History of English Law Before the Time of Edward I, University Press, 1909, p. 50.
- ^ Katherine Fischer Drew, Magna Carta, Greenwood Publishing Group, 2004, p. 165.
- ^ Theodore Ziolkowski, The Mirror of Justice: Literary Reflections of Legal Crises, Princeton University Press, 2018, p. 74.
- ^ ISBN 978-0-9825911-5-4.
- ^ Mutio, Girolamo (1560), Il Duello
- ^ Pigna, Giovanni Battista (1554), Il Duello
- ISBN 9780190992071. Archivedfrom the original on 8 December 2023. Retrieved 1 March 2023.
- ISBN 978-81-264-3782-5. Archivedfrom the original on 8 March 2024. Retrieved 10 October 2021.
- ^ McNatt v. Richards, 6987 (Del. Ch. 28 March 1983) ("I also note that defendant's offer to waive its counterclaim on the condition that plaintiff accepts a challenge of trial by combat to death is not a form of relief this Court, or any court in this country, would or could authorise. Dueling is a crime and the defendant is therefore cautioned against such further requests for unlawful relief.").
- JSTOR 20758130.
- ^ "Staten Island lawyer demands trial by combat". The Washington Post. Archived from the original on 21 March 2021. Retrieved 16 May 2016.
- ^ "Man requests 'trial by combat' with Japanese swords to settle a dispute with Iowa ex-wife". Des Monines Register. Archived from the original on 8 March 2024. Retrieved 18 August 2020.
- ^ "Man who requested trial by combat in custody dispute clears sanity test, requests testing for ex-wife and her attorney". Des Moines Register. Archived from the original on 8 March 2024. Retrieved 18 August 2020.
- ^ Kilander, Gustaf (January 6, 2021). "Rudy Giuliani calls for 'trial by combat' to settle election in rant at wild DC rally".[1] Archived 6 October 2021 at the Wayback Machine The Independent. Washington, DC. Retrieved November 14, 2022.
- ^ Eyerly, Alan (2 June 2014). "'Game of Thrones' recap: Tyrion's life at stake in trial by combat". Los Angeles Times. Archived from the original on 14 March 2023. Retrieved 14 March 2023.
References
- Bagwell, Richard (1885–1890), Ireland under the Tudors 3 vols. London
- Boretius, Alfred (1883) Capitularia Regum Francorum 2 vols. Monumenta Germaniae Historica, LL S. 2.
- Calendar of State Papers: Ireland (London)
- Gardiner, Samuel Rawson (2000), History of England from the Accession of James I to the Outbreak of the Civil War: 1603–1642, Adegi Graphics LLC, ISBN 1-4021-8410-7
- Mackenzie, Eneas; Ross, Marvin (1834), An historical, topographical, and descriptive view of the county palatine of Durham: comprehending the various subjects of natural, civil, and ecclesiastical geography, agriculture, mines, manufactures, navigation, trade, commerce, buildings, antiquities, curiosities, public ..., vol. 2, Mackenzie and Den
- Megarry, Sir Robert (2005), A New Miscellany-at-Law: Yet Another Diversion for Lawyers and Others, Hart Pub., ISBN 978-1-84113-554-0
- Neilson, George; Sereni, Angelo Piero (2009), Trial by Combat (reprint ed.), The Lawbook Exchange, Ltd., p. 326, ISBN 978-1-58477-985-8. Full 1890 editionavailable online.
- O'Donovan, John (1851) (ed.) Annals of Ireland by the Four Masters (1851).
- Quennell, Marjorie; Quennell, C. H. B. (1969) [1918], A History of Everyday Things in England (4 ed.), B. T. Batsford
- Rennix, Brianna; Abraham, Sparky (September 2020). "Trial by Combat and the Myths of Our Modern Legal System". Current Affairs (Sept/Oct 2020). Retrieved 2 October 2021.
- Shoenfeld, Mark (1997), "Waging battle: Ashford v Thornton, Ivanhoe and legal violence", in Simmons, Clare (ed.), Medievalism and the Quest for the "Real" Middle Ages, Routledge, pp. 61–86, ISBN 978-0-7146-5145-3
- The Newgate Calendar
- Ziegler, V. L. (2004), Trial by Fire and Battle in Medieval German Literature, Camden House