trial by battle: see ordeal.

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 is a judicially-sanctioned duel. It remained in use throughout the European Middle Ages and gradually disappeared in the 16th century.

Origins

Unlike trial by ordeal in general, which is known to many cultures worldwide, the trial by combat is known almost exclusively from the customs of the Germanic peoples. It was in use among the ancient Burgundians, Ripuarian Franks, Alamans, Lombards, and Swedes, but it was unknown in Roman law and does not figure in the Torah or the code of Hammurabi.

The practice is regulated in various Germanic legal codes and survived throughout the Viking Age in Scandinavia in the form of the Holmgang. Capitularies governing its use appear from the year 803 onwards (Boretius 1.117). 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.

Although earlier records mention the use of swords, Carolingian law prescribed wooden clubs and shields.

Germany

Trial by combat was common in the Holy Roman Empire from the 11th to the 15th centuries. 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 still 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 (book I, art. 63).

The Kleines Kaiserrecht, anonymous legal code of ca. 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 1500s, 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 were considered grave enough to warrant a judicial duel:

1. murder
2. treason
3. heresy
4. "becoming an urger of disloyalty" to one's lord, in a sense of mutiny whether it succeeded or failed
5. "betrayal in strife or otherwise," indicating that a person wittingly or unwittingly lets a secret known (that may be of importance to the land or lord, perhaps a hidden sally port or deployment information) either in peace-time or during war
6. "falsehood," to include perjury, breaking an oath, and fraud
7. "use of a maiden or lady" a charge that included rape or unwarranted divorce

Another reason Talhoffer lists is of allies making insults to each other as a legally-warranted reason for trial by combat, although he names this practice as "wanton." Talhoffer's descriptions also implies that a peer could do his trial outside of the judicial arena, and fully describes the court processes.<1459 Fechtbuch>

The introduction of the Reichskammergericht in 1495 tilted the balance in favour of Roman law over regional legal traditions, and the practice of judicial duelling died out shortly thereafter.

England

Wager of battle, as the trial by combat was called in English, appears to have become part of the common law of England in the Norman conquest. 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. Ranulf de Glanvill's De Legibus et Consuetudinibus Angliæ, from around 1187, appears to have considered it the chief mode of trial, at least among aristocrats entitled to bear arms.

When Henry II reformed English civil procedure in the Assize of Clarendon in 1166, trial by jury became available, and 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. 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 not only to attend the battle, but to arrange the particulars of the ceremony with the opposing squire. Over time, squires would meet and resolve the disputes during negotiations over combat.

Wager of battle remained in two forms of action dear to the honour-bound hearts of the aristocracy, however. The first was the writ of right, the most direct way at common law of challenging someone's right to a piece of real property. The second was the criminal appeal, a private criminal prosecution instituted by the accuser directly against the accused. It was not, like 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.

One of the last mass trials by combat, 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.

Trials by combat at common law in England were carried on with quarterstaffs, on a duelling ground of sixty feet square. Each litigant was allowed a rectangular, leathern shield, and could be armed with a suit of armour, provided that they were bare to the knees and elbows, and wore only red sandals on their feet. The litigants appeared in person; women, the elderly, the infirm of body, and minors could have champions named to fight in their stead. The combat was to begin before noon, and be concluded before sunset. Before fighting, each litigant had to swear an oath disclaiming the use of witchcraft for advantage in the combat, which oath is in words and figures as follows:

Hear this, ye justices, that I have this day neither eat, drank, nor have upon me, neither bone, stone, ne grass; nor any enchantment, sorcery, or witchcraft, whereby the law of God may be abased, or the law of the Devil exalted. So help me God and his saints.

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 or the other was dead or disabled. The last man standing won his case.

A trial from 1583

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.

The dispute was between members of the O'Connor clan (ie. 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 can be seen as a neat example of classic divide-and-rule policy.

Modern era

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.

France

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 Encyclopedia Britannica Eleventh Edition.

The Dog of Montargis

Around 1400, a trial by combat was said to have been fought in France between a man and a greyhound dog. The dog’s master, Montdidier, had been murdered by the Chevalier Maquer. Maquer buried the body near Montargis and departed. The dog, masterless and hungry, journeyed to Paris and sought out the Chevalier Ardilliers, a friend of his master Montdidier, and led him back to his master’s grave. This loyal dog scratched the dirt covering the grave until Ardilliers dug up the corpse of Montdidier. Later the dog spied Maquer, his master’s killer, and attacked him viciously. The dog renewed his attacks at each encounter with Maquer, soon arousing suspicion since heretofore his nature had been gentle. Friends recalled that Maquer had shown hostility to Montdidier, and reported this situation to the king. The king ordered trial by combat between Maquer and the dog to uncover Maquer’s guilt or innocence.

At combat, Maquer was unable to contain the frenzied attack of the dog, who focused on Maquer’s throat. Maquer, undone by the dog’s fervor and tenacity, confessed to his crime and was duly hanged.

United States

The United States inherited its common law traditions from the English system when it declared its independence in 1776, with precedents before that date entrenched in the American jurisprudence, as the Rule In Shelley's Case in property law has. The British, however, did not abolish wager by battle until 1818 in Ashford v. Thornton, as noted above, and since independence, no court in the United States has addressed the issue of whether this remains a valid alternative to a civil action under the law. In Forgotten Trial Techniques: The Wager of Battle by Donald J Evans published in the ABA Journal 71:66 (May 1985) - the possibility of a trial by battle was set out in a parody of hard-boiled pulp fiction author Raymond Chandler but set in a lawyer's office.

References

• Richard Bagwell, Ireland under the Tudors 3 vols. (London, 1885–1890)
• Alfred Boretius, Capitularia Regum Francorum 2 vols. Monumenta Germaniae Historica, LL S. 2. (1883).
• John O'Donovan (ed.) Annals of Ireland by the Four Masters (1851).
• V. L. Ziegler, Trial by Fire and Battle in Medieval German Literature, Camden House (2004).
• Calendar of State Papers: Ireland (London)
• The Newgate Calendar

See also

• Ordeal
• Holmgang
• Duel
• subpoena ad testificandum
• subpoena duces tecum

External links

• Charters relating to Judicial Duels, 11th - 12th Century