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.
Unlike trial by ordeal in general, which is known to many cultures worldwide, the trial by combat is known primarily from the customs of the Germanic peoples. It was in use among the ancient Burgundians, Ripuarian Franks, Alamans, Lombards, and Swedes. It was unknown in Anglo-Saxon law. It was unknown in Roman law and does not figure in the traditions of oriental antiquity such as the code of Hammurabi or the Torah.
The practice is regulated in various Germanic legal codes. Being rooted in Germanic tribal law, the various regional laws of the Frankish Empire (and the later Holy Roman Empire) prescribed different particulars, such as equipment and rules of combat. The Lex Alamannorum (recensio Lantfridana 81, dated to 712–30 AD) prescribes a trial by combat in the event of two families disputing the boundary between their lands. A handful of earth taken from the disputed piece of land is put between the contestants and they are required to touch it with their swords, each swearing that their claim is lawful. The losing party besides forfeiting their claim to the land is required to pay a fine.
Capitularies governing its use appear from the year 803 onwards. Louis the Pious prescribed combat between witnesses of each side rather than between the accuser and the accused and briefly allowed for the Ordeal of the Cross in cases involving clerics.
Holy Roman Empire
Otto the Great in 967 expressly sanctioned the practice of Germanic tribal law even if it did not figure in the more "imperial" Roman law. The Fourth Lateran Council of 1215 deprecated judicial duels, and Pope Honorius III in 1216 asked the Teutonic order to cease its imposition of judicial duels on their newly converted subjects in Livonia. For the following three centuries, there was latent tension between the traditional regional laws and Roman law.
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 sword and shield and may wear linen and leather clothing, but their head 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.
The Kleines Kaiserrecht, 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 German schools of fencing in the 15th century. Notably Hans Talhoffer depicts techniques to be applied in such duels, separately for the Swabian (sword and shield) and Franconian (mace and shield) variants, but other Fechtbücher such as that of Paulus Kal and the Codex Wallerstein show similar material. While commoners were required to present their case to a judge before duelling, members of the nobility did have the right to challenge each other for duels without the involvement of the judicative, so that duels of this kind were separate from the judicial duel already in the Middle Ages and were not affected by the latter's abolition in the early 16th century by Emperor Maximilian I, evolving into the gentlemanly duel of modern times which was outlawed only as late as in the 19th century.
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.
Wager of battle, as the trial by combat was called in English, appears to have been introduced into the common law of the Kingdom of England following the Norman conquest and remained in use for the duration of the High and Late Middle Ages. 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. In Scotland and Ireland, the practice was continued into the 16th century.
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, or if he were lame or blind, he could decline the challenge, and the case would be determined by a jury. Peers of the realm, priests, and citizens of the City of London could also decline the battle if challenged. If the actual battle took place, it would occur in judicial lists, 60 feet (18 m) square, following the taking of oaths against witchcraft and sorcery. If the defendant was defeated and still alive, he was to be hanged on the spot. However, if he defeated his opponent, or if he were able to fend off his opponent from sunrise to sunset, he would go free. If the plaintiff said the word craven ("I am vanquished") and gave up the fight, he was to be declared infamous, deprived of the privileges of a freeman, and was liable for damages to his successful opponent.
The earliest case in which wager of battle is recorded was Wulfstan v. Walter (1077), 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.
In c. 1219 trial by jury replaced trial by ordeal, which had been the mode of proof for crown pleas since the Assize of Clarendon in 1166. With the emergence of the legal profession in the thirteenth century, lawyers, guarding the safety of the lives and limbs of their clients, steered people away from the wager of battle. A number of legal fictions were devised to enable litigants to avail themselves of the jury even in the sort of actions that were traditionally tried by wager of battle. The practice of averting trial by combat led to the modern concept of attorneys representing litigants.
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. In criminal cases, an "approver" was often chosen from the accomplices of the accused or from a prison to do the fighting for the crown. Approvers sometimes were given their freedom after winning five trials but sometimes were hanged anyway.
In practice, a person facing trial by combat was assisted by a second, often referred to as a squire. The role of the squire was to attend the battle and to arrange the particulars of the ceremony with the opposing squire. Over time, squires would meet and resolve the disputes during negotiations over combat. Ample time was made for this by creating a process for checking the saddle and bridle of horses for prayer scrolls and enchantments and requiring litigants to exchange gloves (the origin of "throwing down the gauntlet") and sometimes to go to separate churches and give five pence (for the five wounds of Christ) to the church.
Early trials by combat allowed a variety of weapons, particularly for knights. Later, commoners were given war hammers, cudgels, or quarterstaves with sharp iron tips. The duelling ground was typically sixty feet square. Commoners were allowed a rectangular leather shield and could be armed with a suit of leather armour, bare to the knees and elbows and covered by a red surcoat of a light type of silk called sendal. The litigants appeared in person. The combat was to begin before noon and be concluded before sunset.
Either combatant could end the fight and lose his case by crying out the word "Craven", from the Old French for "broken", 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 favor of trial by jury. One of the last mass trials by combat in Scotland, the Battle of the Clans, took place in Perth in 1396. This event took the form of a pitched battle between teams of around thirty men each, representing Clan Macpherson and Clan Davidson on the North Inch in front of the King, Robert III. The battle was intended to resolve a dispute over which clan was to hold the right flank in an upcoming battle of both clans (and several others) against Clan Cameron. The Clan Macpherson is thought to have won, but only twelve men survived from the original sixty.
The last trial by combat under the authority of an English monarch is thought to have taken place during the reign of Elizabeth I in the inner courtyard of Dublin Castle in Ireland on 7 September 1583. The dispute was between members of the O'Connor clan (i.e., sept) in King's county (modern County Offaly), who were persuaded by two judges (referred to in the account below) to bring the matter before the Irish privy council for resolution.
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, 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.
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. A 1638 case is less clear: it involved Ralf Claxton a legal dispute between Richard Lilburne (the father of the pugnacious John Lilburne). The king again stepped in, and judges acted to delay proceedings. No record survives of the outcome of the case, but no contemporary account speaks of the trial by battle actually taking place. 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.
Proposals to abolish trial by battle were made in the 17th century and twice in the 18th but were unsuccessful. In 1774, as part of the legislative response to the Boston Tea Party, Parliament considered a bill which 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". Writer and MP Edmund Burke, on the other hand, supported the abolition, calling the appeal and wager "superstitious and barbarous to the last degree".
The writ of right was the most direct way at common law of challenging someone's right to a piece of real property. The criminal appeal was a private criminal prosecution instituted by the accuser directly against the accused. It was not, unlike the contemporary appeal, a proceeding in a court of superior jurisdiction reviewing the proceedings of a lower court.
Such a private prosecution was last conducted in the case of Ashford v Thornton in 1818, as recorded in The Newgate Calendar. Pronouncing judgement in favour of the accused's plea claiming the wager of battle, Justice Bayley of the King's Bench said that:
- One of the inconveniences of this procedure is, that the party who institutes it must be willing, if required, to stake his life in support of his accusation.
The accusation was quickly withdrawn after this judgement. Parliament abolished wager of battle the following year, in 1819, and at the same time they also abolished the writ of right and criminal appeals.
In December 2002, a 60-year-old mechanic named Leon Humphreys was fined £25 for failing to notify the Driver and Vehicle Licensing Agency that he had removed his Suzuki motorcycle from road usage. He refused to pay and claimed that he had the right, under medieval law, to choose a trial by combat with a "champion" nominated by the DVLA. This claim was denied by a court of magistrates in Bury St Edmunds, and he was further fined.
Judicial combat of 1386
In December 1386, the last trial 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 de Paris, it was decided that guilt could not be decided through a standard jury trial, and a judicial duel was ordered.
In late December, shortly after Christmas, the combatants met in the grounds of an abbey in the northern Paris suburbs. After lengthy ceremony, battle was joined, and after a furious and bloody encounter Carrouges stabbed his opponent through the throat with his dagger and claimed victory, being rewarded with substantial financial gifts and a position in the royal household. The duel was watched by the royal court, several royal dukes and thousands of ordinary Parisians and was recorded in several notable chronicles including Froissart's Chronicles and Grandes Chroniques de France. It has since been covered by several notable texts, including Diderot's Encyclopédie, Voltaire and the Encyclopædia Britannica Eleventh Edition, and also by the 2004 book The Last Duel by Eric Jager.
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.
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 notarized "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.
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.
With the counter-reformation of the 16th century, duelling became illegal; however, its customs were maintained and utilized by most middle to upper social classes until the beginning of the 19th century.
Because the common law of the Thirteen Colonies separated from that of English when the colonies declared independence in 1776, the English common law in effect at that time remained entrenched in United States federal law and in the law of most states, except where the appropriate American authority (e.g., a state or federal legislature or court) had abolished a given rule. Specifically, even if the British legislature or judiciary changed English common law on a given point, that change is not binding on American authorities.
Because Britain did not abolish wager by battle until Parliament's 1819 response to Ashford v Thornton (1818), and because no court in post-independence United States has addressed the issue, the question of whether trial by combat remains a valid American alternative to civil action remains open, at least in theory. In Forgotten Trial Techniques: The Wager of Battle (ABA Journal vol. 71 [May 1985], p. 66), a parody of hard-boiled pulp fiction by authors such as Raymond Chandler, Donald J. Evans set out the possibility of a trial by battle in the setting of a lawyer's office. In Britain, trial by combat was rejected in 2002 by a magistrate, which rejected the accused's claim that it would still be legal under international human rights legislation.
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