Talk:Trial by combat
|WikiProject Law||(Rated C-class, Low-importance)|
Could anyone find the references to the Annals of the Four Masters and Holinshed's Chronicles in the section, Account of a trial? My notes don't specify the pages, and I'm not able to go to the texts. --shtove 21:30, 6 September 2005 (UTC)
"In modern times, this is survived by the usual attachment of the title "esquire" after lawyers' names." I have removed this as it not only only applys to US lawyers but also fits neither with the wiki article on the term esquire, nor with my own knowelede, and it is unsourced. Suicidal mongoose 23:21, 25 March 2006 (UTC)
Newgate Calendar. Also, cleanup and references required
I have added references for Ashford v. Thornton in The Newgate chronicle, where large parts of this article seem to originate, such as details of the oath against witchcraft. This article needs a significant clean-up, as information is scattered in no particular order, and in the wrong subsections. E.G. the case that caused Trial by Wager of Battle to be excised from the English statutes should not be in European Origins/English Common Law! I'd do it myself, or tag it for cleanup, but I'm not that confident in my editing skills or cleanup procedure. --220.127.116.11 00:43, 3 July 2006 (UTC)
When was the real last one?
This line from the article:
- One of the last actual trials by combat, the Battle of the Clans, took place in Perth in 1396.
contradicts the section starting:
- 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 at 9 o'clock on the morning of 7 September 1583.
A 2-century gap. Anyone know why the Perth trial was so cited? Tempshill 18:02, 4 April 2006 (UTC)
- The Dublin trial is well documented; don't know about the one in Perth, but there's not necessarily a contradiction as the former took place under English authority, the latter under Scottish. And then there's the rest of Europe, where some form of TbC may have been a late survivor...--shtove 21:11, 4 April 2006 (UTC)
The 1583 one is a good candidare for the last known official wager of battle anywhere in Europe, as on the continent the practice was moribund even in the early 16th century. I would be interested in a reference as to which is really the last known incidence. --dab (𒁳) 14:47, 10 June 2010 (UTC)
- Maybe 1597? In regards to a duel fought that year in Scotland, Neilson (1890:307) claims:
It is believed that this licensed duel, so distinctly judicial in its character, was the last trial by combat actually fought in Great Britain.
- Source: Neilson, George (1890). Trial by Combat. Glasgow: William Hodge & Co. 
- This claim is repeated (and referenced to Neilson) more recently in A New Miscellany-at-Law by Sir Robert Edgar Megarry & Lidsay Merriman (2005:66):
The last judicial combat in Britain seems to have been in Scotland, where on March 15, 1597, Adam Bruntfield accused James Carmichael of murder, and fought and slew him.
- Source: Megarry, R. E. & Merriman, L. (2005). A New Miscellany-at-Law. Oxford: Hart Publishing.
- M&M grant that establishing the last TbC is not easy, however, and their discussion on the topic is worth reading. --Aryaman (talk) 09:14, 11 June 2010 (UTC)
Writ of right
It does not seem to be correct that the writ of right was abolished when trial by combat was. I have found a law report in The Times (of London) from 1838 of a case in the Court of Common Pleas called Davies v Lowndes, which states it was the last trial of that kind that would ever be held. See William Selby Lowndes. In the case report the Attorney-General (representing Mr Selby Lowndes) mentions the former trial by battle procedure (he also mentions having been present in Westminster Hall when the gauntlet was thrown down - I presume in the Ashford case). Does anyone have access to the text of the legislation abolishing trial by battle so we can clarify this point? I may visit the Law Society library in the next month or two so if no one has sorted this out before then I will see what I can come up with. --Gary J 22:50, 25 May 2006 (UTC)
Not sure how to integrate this into the article, but in case anyone finds this interesting...
Dr. Franz Kottenkamp, in his mid-19th century work "Der Rittersaal" (comtemporaneously translated from the German by Rev. A. Löwy as "The History of Chivarly and Armor", republished by Portland House in 1988) explains medieval dueling as a common, codified method of settling legal disputes. The duel was viewed as a way to let spiritual powers above man's understanding decide right or wrong. The superstitious basis for the validity of trial by judicial combat eroded over the centuries (but perhaps explains the fascination we hold for this subject even to this day).
Dueling, per Kottenkamp, goes back to "the remotest times". Duels were "minutely described in the Capitularies of Charlemagne and in subsequent codes of law". The Assizes of Jerusalem provided for duels to settle property disputes or to avenge crimes. Property disputes had to be worth more than "one mark of silver" to qualify for trial by judicial combat. Other property disputes that could be tried by judicial combat included "horse-dealing, denial of a debt, refusal of paying wages, security for a debtor, loans, sales of leprous slaves" and other disputes where there was a fradulent element to the loss of property. Criminal acts that could be tried by duel included "murder, manslaughter, rape, infliction of a wound, neglect in the discharge of feudal service, treason, and deprivation of, or exclusion from a rightful possession". Furthermore, "Witnesses at court, whose veracity was impugned, could be challenged to fight a duel". Assizes court jurors could be challenged if suspected of being biased, though they had the option to decline the duel.
Members of different classes could challenge each other, though the actual combat was carried out by class equals. Thus, a commoner who challenged a knight would have to appoint another knight to fight for him. People considered unfit to duel (women, men under sixty, the disabled) could appoint their own champion.
Kottenkamp goes into great detail regarding the dueling process, which he derives from the Assizes of Jerusalem. Crudely stating it in modern terms, you wouldn't just up and slap someone in the face to precipitate a duel. You had to go to court, assert your grievance, and request trial by combat (as opposed to, say, trial by jury or trial by judge). Then the court would have to approve your request. Plaintiff and defendant would hand over their gloves to their feudal lord, and both parties were taken into custody (though not quite as prisoners). There was a mandatory cooling off period (e.g. three days for murder, forty days for other offences). During this time a settlement could be reached, but only with the unanimous assent of both parties and the lord. After the required period of time had elapsed, the parties were brought to the field of combat. Armor could, in some instances, vary depending on the crime and whether the individual was plaintiff or defendant, though it appears that at least weapons were always carefully checked to make sure neither side had an advantage. Duels were fought publicly under the control of authorities. Kottenkamp: "The defendant was then desired to kneel down, and swear that he was innocent. The accuser had to seize him by the hand, to call him a perjured man, and to repeat his former accusation, by another oath. The superintendants of the combat then separated the two champions, and on each side of the lists, a caution was proclaimed, that no man should, in any language, utter anything that might tend to benefit or afford a hint to one or the other of the combatants. Persons acting in defiance of this warning, forfeited life and property to their lord. In the regulations of duels by Philip the fair, even the act of spitting is forbidden." In the case of a person represented by the champion, that person was held behind the lists so as not to be able to offer advice to his champion, and was sworn to the same oaths.
In criminal cases, assuming that the combat itself did not end in death, the combat could be terminated in the case of a spontaneous admission of guilt, in which case the guilty party would be hanged. If the guilty party had hired a champion and/or called a supporting witness, all would be hanged. Women were burnt rather than hanged.
In property rights cases, according to the Assizes, a defeated champion would be executed, but his employer merely lost the lawsuit and was no longer considered a credibly witness in the eyes of the law. Other jurisdictions handled this differently. The unsuccessful duellist might instead lose his right hand, or be multilated or executed depending on the seriousness of the offense.
Dog of Montargis
The section on the Dog of Montargis appears to have been taken verbatim from the website it cites (the website has the story at the bottom of the page). The article does not give any clear indication that the text was not created by a Wikipedia editor. Could someone write in the code to put it in a "block quote" box? —Preceding unsigned comment added by 18.104.22.168 (talk) 02:07, 9 April 2010 (UTC)
- I checked this out, and you're right. Copyright violations need to be deleted on sight, and a section consisting entirely of a quote won't do. If this is to be returned, it needs to be rewritten from scratch. :bloodofox: (talk) 10:22, 11 June 2010 (UTC)
Ethnocentric Bias?, Germanocentrism?
I can't honestly believe the pure, untainted Germanic-Nordic folks were the only ones to have something like trial by combat. Just off the top of my mind I know examples from ancient Greco-Roman history. This simply seems like possible "ethnic exceptionalism" or borderline ethnocentrism to me. I can't pull a million references from history immediately this moment but this whole Germano-mania thing is a bit odd if you ask me, as if the Germanic-Nordics were the only manly warriorly-soldierly society with such hypermasculine, warlike customs...
- You are reading too much into it. The medieval english legal and fictional traditions are most influenced by nearby cultures, which is why the Nordic and Germanic traditions are most prominent, and the greek/latin the second most prominent. You are not blaming medieval Europe for not being globally aware enough are you? 22.214.171.124 (talk) 07:25, 18 August 2011 (UTC)
Just someone put in the historically documented trials by combat of the ancient Celtic and Greco-Roman societies and scientific scholarship will have a victory! Fine, I'll even do the citation myself--someone please put it in elegantly:
"In war, the ancient Celts relied on heroic judicial trial by combat, rather than all-out warfare, as the preferred means of settling disputes. Shortage of manpower forbade multiple pitched battles. Instead, chosen 'champions', such as Cuchulainn or Morholt, according to contemporaneous warrior-law, 'judicatorily duelled' to the death ... etc." Encyclopedia of Mythology, Arthur Cotterell, Hermes House, 2006. — Preceding unsigned comment added by 126.96.36.199 (talk) 08:04, 1 September 2011 (UTC)
- Quote from actual studies of celtic law, which is documented well enough, not from some neo-romantic drivel. 188.8.131.52 (talk) 17:47, 29 January 2015 (UTC)
- Would you be kind enough to provide citations for celtic law documentation? Many people from non-celtic lands have no clue where to actually look without a lot of grief. I for one have more than enough grief in my life for three people and change, but would enjoy learning from a new scholarly site that is factual and not neo-romantic bullshit on rye, calling itself a Reuben.Wzrd1 (talk) 18:02, 29 January 2015 (UTC)
The articles suggests that all British Common Law is still valid US law unless specifically addressed.
I believe this is incorrect on two points.
1 - The Constitution specifically requires a trial by jury, so that law would have been addressed/replaced directly. 2 - The Constitution explicitly invalidates law that has come before it as a means of wiping out the Articles of Confederation. — Preceding unsigned comment added by Enderandrew (talk • contribs) 21:40, 17 August 2011 (UTC)
- Incorrect. CRIMINAL trials must be by jury. Civil trials may be by jury or even tried by a judge alone. Also, British Common Law has been, by long established case law, been held to hold true. Additionally, the claim that the US ratified international human rights legislation is incorrect, the US SIGNED but failed to ratify the majority of humans rights conventions. Hence, they have no power of law in the US, as congress refused to ratify them.Wzrd1 (talk) 00:38, 23 August 2012 (UTC)
- Way behind the power curve on writing this, but the original poster is correct. Wzrd1, the Seventh Amendment provides for jury trials in civil disputes whenever the amount in controversy exceeds twenty dollars. This of course has not been incorporated against the States, but at the federal level, trial by jury in virtually all civil claims is guaranteed. 184.108.40.206 (talk) 02:18, 14 May 2013 (UTC)
"the question of whether trial by combat remains a valid American alternative to civil action remains open". Why that? Because it is not addressed, it is an open question? That's a non sequitur. The legal process is properly defined in the US and elsewhere, is there any credible source for the notion older processual proceedings could (even in theory) by valid just because they were never addressed? --Gonzo.Lubitsch (talk) 15:57, 12 August 2015 (UTC)
Trial by combat appears in the Talmud (at least according to some readings), which would be another early source, and contradict the article's assertion that "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." See Hebrew wikipedia Yteitz (talk) 12:08, 11 June 2012 (UTC)
- I think this last point by Yteitz is not correct. The cited rule in the Talmud "kol de-alim gevar" ("whoever is stronger - wins") refers not to a symbolic arena of combat that is meant to reveal the truth, but rather to the court's bowing out when it can't marshal evidence one way or the other. The two parties may literally fight over the object - but there's not a procedure or ritual or even court-sanctioned violent encounter in Talmudic law, at least as far as I know and as described in the referenced Wikipedia article. 220.127.116.11 (talk) 04:29, 6 March 2013 (UTC)jbr