Trial by combat (also wager of battle, trial by battle or judicial duel) was a method of
Germanic law
Germanic law is a scholarly term used to described a series of commonalities between the various law codes (the ''Leges Barbarorum'', 'laws of the barbarians', also called Leges) of the early Germanic peoples. These were compared with statements ...
to settle accusations in the absence of witnesses or a confession in which two parties in dispute fought in
single combat
Single combat is a duel between two single warriors which takes place in the context of a battle between two armies.
Instances of single combat are known from Classical Antiquity and the Middle Ages. The champions were often combatants who repres ...
; the winner of the fight was
proclaimed to be right. In essence, it was a judicially sanctioned
duel
A duel is an arranged engagement in combat between two people, with matched weapons, in accordance with agreed-upon Code duello, rules.
During the 17th and 18th centuries (and earlier), duels were mostly single combats fought with swords (the r ...
. It remained in use throughout the European
Middle Ages
In the history of Europe, the Middle Ages or medieval period lasted approximately from the late 5th to the late 15th centuries, similar to the post-classical period of global history. It began with the fall of the Western Roman Empire a ...
, gradually disappearing in the course of the 16th century.
History
Origins
Unlike
trial by ordeal
Trial by ordeal was an ancient judicial practice by which the guilt or innocence of the accused was determined by subjecting them to a painful, or at least an unpleasant, usually dangerous experience.
In medieval Europe, like trial by combat, tri ...
in general, which is known to many cultures worldwide, trial by combat is known primarily from the customs of the
Germanic peoples
The Germanic peoples were historical groups of people that once occupied Central Europe and Scandinavia during antiquity and into the early Middle Ages. Since the 19th century, they have traditionally been defined by the use of ancient and ear ...
.
The practice was "almost universal in Europe" according to medievalist
Eric Jager
Eric Jager (born 27 April 1957) is an American literary critic and a specialist in medieval literature. He is a professor in the department of English at University of California, Los Angeles, received his B.A. from Calvin College in 1979, and ...
.
It was in use among the ancient
Burgundians
The Burgundians ( la, Burgundes, Burgundiōnes, Burgundī; on, Burgundar; ang, Burgendas; grc-gre, Βούργουνδοι) were an early Germanic tribe or group of tribes. They appeared in the middle Rhine region, near the Roman Empire, and ...
,
Ripuarian Franks
Ripuarian or Rhineland Franks (Latin: ''Ripuarii'' or ''Ribuarii'') were one of the two main groupings of early Frankish people, and specifically it was the name eventually applied to the tribes who settled in the old Roman territory of the Ubii, ...
,
Alamans,
Lombards
The Lombards () or Langobards ( la, Langobardi) were a Germanic people who ruled most of the Italian Peninsula from 568 to 774.
The medieval Lombard historian Paul the Deacon wrote in the ''History of the Lombards'' (written between 787 and ...
, and
Swedes
Swedes ( sv, svenskar) are a North Germanic ethnic group native to the Nordic region, primarily their nation state of Sweden, who share a common ancestry, culture, history and language. They mostly inhabit Sweden and the other Nordic countr ...
.
It was unknown in Anglo-Saxon law and
Roman law
Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the ''Corpus Juris Civilis'' (AD 529) ordered by Eastern Roman emperor J ...
and it does not figure in the traditions of Middle Eastern antiquity such as the
code of Hammurabi
The Code of Hammurabi is a Babylonian legal text composed 1755–1750 BC. It is the longest, best-organised, and best-preserved legal text from the ancient Near East. It is written in the Old Babylonian dialect of Akkadian, purportedly by Hamm ...
or the
Torah
The Torah (; hbo, ''Tōrā'', "Instruction", "Teaching" or "Law") is the compilation of the first five books of the Hebrew Bible, namely the books of Genesis, Exodus, Leviticus, Numbers and Deuteronomy. In that sense, Torah means the s ...
. However, it is recorded in the medieval Irish
Brehon Laws
Early Irish law, historically referred to as (English: Freeman-ism) or (English: Law of Freemen), also called Brehon law, comprised the statutes which governed everyday life in Early Medieval Ireland. They were partially eclipsed by the Norm ...
, such as ''Din Techtugad''.
The practice is regulated in various
Germanic legal codes
Germanic law is a scholarly term used to described a series of commonalities between the various law codes (the ''Leges Barbarorum'', 'laws of the barbarians', also called Leges) of the early Germanic peoples. These were compared with statements ...
. Being rooted in Germanic tribal law, the various regional laws of the
Frankish Empire
Francia, also called the Kingdom of the Franks ( la, Regnum Francorum), Frankish Kingdom, Frankland or Frankish Empire ( la, Imperium Francorum), was the largest post-Roman barbarian kingdom in Western Europe. It was ruled by the Franks dur ...
(and the later
Holy Roman Empire
The Holy Roman Empire was a Polity, political entity in Western Europe, Western, Central Europe, Central, and Southern Europe that developed during the Early Middle Ages and continued until its Dissolution of the Holy Roman Empire, dissolution i ...
) prescribed different particulars, such as equipment and rules of combat. The ''
Lex Alamannorum The Lex Alamannorum and Pactus Alamannorum were two early medieval law codes of the Alamanni. They were first edited in parts in 1530 by Johannes Sichard in Basel.
Pactus Alamannorum
The ''Pactus Alamannorum'' or ''Pactus legis Alamannorum'' is the ...
'' (''recension Lantfridana'' 81, dated to 712–730 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
A capitulary (Medieval Latin ) was a series of legislative or administrative acts emanating from the Frankish court of the Merovingian and Carolingian dynasties, especially that of Charlemagne, the first emperor of the Romans in the west since th ...
governing its use appear from the year 803 onwards.
Louis the Pious
Louis the Pious (german: Ludwig der Fromme; french: Louis le Pieux; 16 April 778 – 20 June 840), also called the Fair, and the Debonaire, was King of the Franks and co-emperor with his father, Charlemagne, from 813. He was also King of Aqui ...
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.
In medieval Scandinavia, the practice survived throughout the
Viking Age
The Viking Age () was the period during the Middle Ages when Norsemen known as Vikings undertook large-scale raiding, colonizing, conquest, and trading throughout Europe and reached North America. It followed the Migration Period and the Ger ...
in the form of the ''
holmgang
Holmgang (holmganga in Old Norse, hólmganga in modern Icelandic, holmgång in Swedish, holmgang in Danish and Norwegian bokmål and nynorsk) is a duel practiced by early medieval Scandinavians. It was a legally recognized way to settle disput ...
''.
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.
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 celebrated case of
Gero, Count of Alsleben Gero (died 11 August 979), Count of Alsleben, conjectured to be the son of Siegfried and therefore grandson of Gero the Great. If so, his mother was Hedwig, daughter of Wichmann the Elder. Gero was the brother of Tetta, who established a monastery ...
, is a good example. The
Fourth Lateran Council
The Fourth Council of the Lateran or Lateran IV was convoked by Pope Innocent III in April 1213 and opened at the Lateran Palace in Rome on 11 November 1215. Due to the great length of time between the Council's convocation and meeting, many bi ...
of 1215 deprecated judicial duels, and
Pope Honorius III
Pope Honorius III (c. 1150 – 18 March 1227), born Cencio Savelli, was head of the Catholic Church and ruler of the Papal States from 18 July 1216 to his death. A canon at the Basilica di Santa Maria Maggiore, he came to hold a number of importa ...
in 1216 asked the
Teutonic order
The Order of Brothers of the German House of Saint Mary in Jerusalem, commonly known as the Teutonic Order, is a Catholic religious institution founded as a military society in Acre, Kingdom of Jerusalem. It was formed to aid Christians on ...
to cease its imposition of judicial duels on their newly converted subjects in
Livonia
Livonia ( liv, Līvõmō, et, Liivimaa, fi, Liivinmaa, German and Scandinavian languages: ', archaic German: ''Liefland'', nl, Lijfland, Latvian and lt, Livonija, pl, Inflanty, archaic English: ''Livland'', ''Liwlandia''; russian: Ли ...
. For the following three centuries, there was latent tension between the traditional regional laws and Roman law.
The ''
Sachsenspiegel
The (; gml, Sassen Speyghel; modern nds, Sassenspegel; all literally "Saxon Mirror") is one of the most important law books and custumals compiled during the Holy Roman Empire. Originating between 1220 and 1235 as a record of existing loc ...
'' of 1230 recognises 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.
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
German schools of fencing in the 15th century. Notably,
Hans Talhoffer
Hans Talhoffer (Dalhover, Talhouer, Thalhoffer, Talhofer; – after 1482) was a German fencing master. His martial lineage is unknown, but his writings make it clear that he had some connection to the tradition of Johannes Liechtenauer, the ...
depicts techniques to be applied in such duels, separately for the
Swabia
Swabia ; german: Schwaben , colloquially ''Schwabenland'' or ''Ländle''; archaic English also Suabia or Svebia is a cultural, historic and linguistic region in southwestern Germany.
The name is ultimately derived from the medieval Duchy of ...
n (sword and shield) and
Franconia
Franconia (german: Franken, ; Franconian dialect: ''Franggn'' ; bar, Frankn) is a region of Germany, characterised by its culture and Franconian dialect (German: ''Fränkisch'').
The three administrative regions of Lower, Middle and Upper Fr ...
n (mace and shield) variants, although other ''
Fechtbücher'' such as that of
Paulus Kal
Paulus Kal was a 15th-century German fencing master.
According to his own testimony, he was the student of one Hans Stettner, who was in turn an initiate of the tradition of Johannes Liechtenauer. He served as fencing master at three different cou ...
and the ''
Codex Wallerstein
The so-called Codex Wallerstein or ''Vonn Baumanns Fechtbuch'' (Oettingen-Wallerstein Cod. I.6.4o.2, Augsburg University library) is a 16th-century convolution of three 15th-century fechtbuch manuscripts, with a total of 221 pages.
The inside o ...
'' 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 judiciary, 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
A duel is an arranged engagement in combat between two people, with matched weapons, in accordance with agreed-upon Code duello, rules.
During the 17th and 18th centuries (and earlier), duels were mostly single combats fought with swords (the r ...
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
Treason is the crime of attacking a state authority to which one owes allegiance. This typically includes acts such as participating in a war against one's native country, attempting to overthrow its government, spying on its military, its diplo ...
,
heresy
Heresy is any belief or theory that is strongly at variance with established beliefs or customs, in particular the accepted beliefs of a church or religious organization. The term is usually used in reference to violations of important religi ...
,
desertion
Desertion is the abandonment of a military duty or post without permission (a pass, liberty or leave) and is done with the intention of not returning. This contrasts with unauthorized absence (UA) or absence without leave (AWOL ), which ar ...
of one's lord, "imprisonment" (possibly in the sense of
abduction),
perjury
Perjury (also known as foreswearing) is the intentional act of swearing a false oath or falsifying an affirmation to tell the truth, whether spoken or in writing, concerning matters material to an official proceeding."Perjury The act or an inst ...
/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
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
of the
Kingdom of England
The Kingdom of England (, ) was a sovereign state on the island of Great Britain from 12 July 927, when it emerged from various Anglo-Saxon kingdoms, until 1 May 1707, when it united with Scotland to form the Kingdom of Great Britain.
On 1 ...
following the
Norman Conquest
The Norman Conquest (or the Conquest) was the 11th-century invasion and occupation of England by an army made up of thousands of Norman, Breton, Flemish, and French troops, all led by the Duke of Normandy, later styled William the Conque ...
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
Scotland (, ) is a country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a border with England to the southeast and is otherwise surrounded by the Atlantic Ocean to the ...
and Ireland, the practice was continued into the sixteenth century. In 1446, a trial by combat was arranged between two quarrelling Irish magnates,
James Butler, 5th Earl of Ormonde
James Butler, 5th Earl of Ormond, Earl of Wiltshire (24 November 1420 – 1 May 1461) was an Anglo-Irish nobleman and soldier. Butler was a staunch Lancastrian and supporter of Queen consort Margaret of Anjou during the Wars of the Roses. H ...
, and the Prior of Kilmainham, but King
Henry VI intervened personally to persuade them to settle their differences peacefully.
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,
lame or blind, they 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
The City of London is a city, ceremonial county and local government district that contains the historic centre and constitutes, alongside Canary Wharf, the primary central business district (CBD) of London. It constituted most of London fr ...
(the last pursuant to their guarantee of ancient liberties under
Magna Carta
(Medieval Latin for "Great Charter of Freedoms"), commonly called (also ''Magna Charta''; "Great Charter"), is a royal charter of rights agreed to by King John of England at Runnymede, near Windsor, on 15 June 1215. First drafted by the ...
) could also decline the battle if challenged. If the actual battle took place, it would occur in judicial
lists
A ''list'' is any set of items in a row. List or lists may also refer to:
People
* List (surname)
Organizations
* List College, an undergraduate division of the Jewish Theological Seminary of America
* SC Germania List, German rugby unio ...
, square, following the taking of
oath
Traditionally an oath (from Anglo-Saxon ', also called plight) is either a statement of fact or a promise taken by a sacrality as a sign of verity. A common legal substitute for those who conscientiously object to making sacred oaths is to ...
s against
witchcraft
Witchcraft traditionally means the use of magic or supernatural powers to harm others. A practitioner is a witch. In medieval and early modern Europe, where the term originated, accused witches were usually women who were believed to have us ...
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.
Middle Ages
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
The Saxons ( la, Saxones, german: Sachsen, ang, Seaxan, osx, Sahson, nds, Sassen, nl, Saksen) were a group of Germanic
*
*
*
*
peoples whose name was given in the early Middle Ages to a large country (Old Saxony, la, Saxonia) near the Nor ...
and a
Norman
Norman or Normans may refer to:
Ethnic and cultural identity
* The Normans, a people partly descended from Norse Vikings who settled in the territory of Normandy in France in the 10th and 11th centuries
** People or things connected with the Norm ...
. The ''
Tractatus of Glanvill
The (''Treatise on the Laws and Customs of the Kingdom of England''), often called ''Glanvill treatise'', is the earliest treatise on English law. Attributed to Ranulf de Glanvill (died 1190) and dated 1187–1189, it was revolutionary in its sy ...
'', from around 1187, appears to have considered it the chief mode of trial, at least among
aristocrats
Aristocracy (, ) is a form of government that places strength in the hands of a small, privileged ruling class, the aristocrats. The term derives from the el, αριστοκρατία (), meaning 'rule of the best'.
At the time of the word' ...
entitled to bear arms.
Around 1219,
trial by jury
A jury trial, or trial by jury, is a legal proceeding in which a jury makes a decision or findings of fact. It is distinguished from a bench trial in which a judge or panel of judges makes all decisions.
Jury trials are used in a significant ...
replaced trial by ordeal, which had been the mode of proof for crown pleas since the
Assize of Clarendon
The Assize of Clarendon was an act of Henry II of England in 1166 that began a transformation of English law and led to trial by jury in common law countries worldwide, and that established assize courts.
Prior systems for deciding the winning ...
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 fiction
A legal fiction is a fact assumed or created by courts, which is then used in order to help reach a decision or to apply a legal rule. The concept is used almost exclusively in common law jurisdictions, particularly in England and Wales.
Deve ...
s 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 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
The second (symbol: s) is the unit of time in the International System of Units (SI), historically defined as of a day – this factor derived from the division of the day first into 24 hours, then to 60 minutes and finally to 60 seconds ...
, often referred to as a
squire
In the Middle Ages, a squire was the shield- or armour-bearer of a knight.
Use of the term evolved over time. Initially, a squire served as a knight's apprentice. Later, a village leader or a lord of the manor might come to be known as a ...
. 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 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
A penny is a coin ( pennies) or a unit of currency (pl. pence) in various countries. Borrowed from the Carolingian denarius (hence its former abbreviation d.), it is usually the smallest denomination within a currency system. Presently, it is th ...
(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 hammer
A war hammer (French: ''martel-de-fer'', "iron hammer") is a weapon that was used by both foot soldiers and cavalry. It is a very old weapon and gave its name, owing to its constant use, to Judah Maccabee, a 2nd-century BC Jewish rebel, and to Ch ...
s,
cudgel
A club (also known as a cudgel, baton, bludgeon, truncheon, cosh, nightstick, or impact weapon) is a short staff or stick, usually made of wood, wielded as a weapon since prehistoric times. There are several examples of blunt-force trauma caused ...
s, 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
Armour (British English) or armor (American English; see spelling differences) is a covering used to protect an object, individual, or vehicle from physical injury or damage, especially direct contact weapons or projectiles during combat, or fr ...
, bare to the knees and elbows and covered by a red
surcoat
A surcoat or surcote is an outer garment that was commonly worn in the Middle Ages by soldiers. It was worn over armor to show insignia and help identify what side the soldier was on. In the battlefield the surcoat was also helpful with keeping ...
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
Old French (, , ; Modern French: ) was the language spoken in most of the northern half of France from approximately the 8th to the 14th centuries. Rather than a unified language, Old French was a linkage of Romance dialects, mutually intelligib ...
''cravanté'', "defeated", which acknowledged "(I am) vanquished." The party who did so, however, whether litigant or champion, was punished with
outlaw
An outlaw, in its original and legal meaning, is a person declared as outside the protection of the law. In pre-modern societies, all legal protection was withdrawn from the criminal, so that anyone was legally empowered to persecute or kill them ...
ry. 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 ''
Battle of the Clans
The Battle of the North Inch (also known as the Battle of the Clans) was a staged battle between the Clan Chattan and the "Clan Quhele" in September 1396. Thirty men were selected to represent each side in front of spectators, including King Ro ...
'', took place in
Perth
Perth is the capital and largest city of the Australian state of Western Australia. It is the fourth most populous city in Australia and Oceania, with a population of 2.1 million (80% of the state) living in Greater Perth in 2020. Perth is ...
in 1396. This event took the form of a pitched battle between teams of around thirty men each, representing
Clan Macpherson
Clan Macpherson (, ) is a Highland Scottish clan and a member of the Chattan Confederation.
History
Origins
The Scottish Gaelic surname for Macpherson is ''Mac a' Phearsain'' which means ''son of the parson''. The Celtic church allowed pries ...
and
Clan Davidson
Clan Davidson is a Highland Scottish clan and a member of the Chattan Confederation.Way, George and Squire, Romily. ''Collins Scottish Clan & Family Encyclopedia''. (Foreword by The Rt Hon. The Earl of Elgin KT, Convenor, The Standing Council of ...
, on the
North Inch
North Inch is a large public park in Perth, Scotland. About 54 hectares in size, it is one of two "Inches" in Perth, the other being the smaller, 31-hectare South Inch, located half a mile across the city. The inches were granted to the city, w ...
in front of 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.
16th century
The last trial by combat under the authority of an English monarch is thought to have taken place during the reign of
Elizabeth I
Elizabeth I (7 September 153324 March 1603) was Queen of England and Ireland from 17 November 1558 until her death in 1603. Elizabeth was the last of the five House of Tudor monarchs and is sometimes referred to as the "Virgin Queen".
El ...
in the inner courtyard of
Dublin Castle
Dublin Castle ( ga, Caisleán Bhaile Átha Cliath) is a former Motte-and-bailey castle and current Irish government complex and conference centre. It was chosen for its position at the highest point of central Dublin.
Until 1922 it was the se ...
in Ireland on 7 September 1583. The dispute was between members of the
sept
A sept is a division of a family, especially of a Scottish or Irish family. The term is used in both Scotland and Ireland, where it may be translated as ''sliocht'', meaning "progeny" or "seed", which may indicate the descendants of a person ( ...
of
O'Connor Faly from King's County (modern
County Offaly
County Offaly (; ga, Contae Uíbh Fhailí) is a county in Ireland. It is part of the Eastern and Midland Region and the province of Leinster. It is named after the ancient Kingdom of Uí Failghe. It was formerly known as King's County, in hono ...
), 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
Annals of the Four Masters
The ''Annals of the Kingdom of Ireland'' ( ga, Annála Ríoghachta Éireann) or the ''Annals of the Four Masters'' (''Annála na gCeithre Máistrí'') are chronicles of medieval Irish history. The entries span from the Deluge, dated as 2,24 ...
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
''Holinshed's Chronicles'', also known as ''Holinshed's Chronicles of England, Scotland, and Ireland'', is a collaborative work published in several volumes and two editions, the first edition in 1577, and the second in 1587. It was a large, co ...
. 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. A 1638 case is less clear: it involved a legal dispute between Ralf Claxton and Richard Lilburne (the latter the father of
John Lilburne
John Lilburne (c. 161429 August 1657), also known as Freeborn John, was an English political Leveller before, during and after the English Civil Wars 1642–1650. He coined the term "'' freeborn rights''", defining them as rights with which eve ...
). 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
The Boston Tea Party was an American political and mercantile protest by the Sons of Liberty in Boston, Massachusetts, on December 16, 1773. The target was the Tea Act of May 10, 1773, which allowed the British East India Company to sell t ...
, 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". Writer and MP
Edmund Burke
Edmund Burke (; 12 January NS.html"_;"title="New_Style.html"_;"title="/nowiki>New_Style">NS">New_Style.html"_;"title="/nowiki>New_Style">NS/nowiki>_1729_–_9_July_1797)_was_an_ NS.html"_;"title="New_Style.html"_;"title="/nowiki>New_Style"> ...
, on the other hand, supported the abolition, calling the appeal and wager "superstitious and barbarous to the last degree".
The ''
writ of right
In common law, a writ (Anglo-Saxon ''gewrit'', Latin ''breve'') is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writs, subpoenas, a ...
'' was the most direct way, in the common law, of challenging someone's right to a piece of
real property
In English common law, real property, real estate, immovable property or, solely in the US and Canada, realty, is land which is the property of some person and all structures (also called improvements or fixtures) integrated with or affixe ...
. The ''
criminal appeal
An "appeal" was a procedure in English law to bring about a prosecution by a private party of an individual accused of a heinous crime.
Generally
" n appealis derived from the French, ‘appeller ’...which signifies to call upon, summon or chall ...
'' was a private
criminal
In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Can ...
prosecution
A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the civil law inquisitorial system. The prosecution is the legal party responsible for presenting the case in a criminal trial ...
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. 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 is, that the party who institutes it must be willing, if required, to stake his life in support of his accusation.
Parliament
In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: Representation (politics), representing the Election#Suffrage, electorate, making laws, and overseeing ...
abolished wager of battle the following year, in February 1819, in an Act introduced by the Attorney General
Samuel Shepherd
Sir Samuel Shepherd KS PC FRSE (6 April 1760 – 3 November 1840) was a British barrister, judge and politician who served as Attorney General for England and Wales and Lord Chief Baron of the Scottish Court of Exchequer.
Early life and ...
. At the same time, they also abolished the writ of right and criminal appeals. 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
The Driver and Vehicle Licensing Agency (DVLA; cy, Asiantaeth Trwyddedu Gyrwyr a Cherbydau) is the organisation of the UK government responsible for maintaining a database of drivers in Great Britain and a database of vehicles for the entire ...
; his demand was rejected, and he was fined by a court.
France
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
Sir Jean de Carrouges IV (c. 1330s – 25 September 1396) was a French knight who governed estates in Normandy as a vassal of Count Pierre d'Alençon and who served under Admiral Jean de Vienne in several campaigns against the Kingdom of Engl ...
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
The Parliament of Paris (french: Parlement de Paris) was the oldest ''parlement'' in the Kingdom of France, formed in the 14th century. It was fixed in Paris by Philip IV of France in 1302. The Parliament of Paris would hold sessions inside the ...
, with Jacques LeGris 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 LeGris, 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 LeGris 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 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
Froissart's ''Chronicles'' (or ''Chroniques'') are a prose history of the Hundred Years' War written in the 14th century by Jean Froissart. The ''Chronicles'' open with the events leading up to the deposition of Edward II in 1326, and cover th ...
and
Grandes Chroniques de France
The ''Grandes Chroniques de France'' is a vernacular royal compilation of the history of France, most manuscripts of which are luxury copies that are heavily illuminated. Copies were produced between the thirteenth and fifteenth centuries, the ...
. It has since been covered by several notable texts, including
Diderot's
Encyclopédie
''Encyclopédie, ou dictionnaire raisonné des sciences, des arts et des métiers'' (English: ''Encyclopedia, or a Systematic Dictionary of the Sciences, Arts, and Crafts''), better known as ''Encyclopédie'', was a general encyclopedia publis ...
,
Voltaire
François-Marie Arouet (; 21 November 169430 May 1778) was a French Age of Enlightenment, Enlightenment writer, historian, and philosopher. Known by his ''Pen name, nom de plume'' M. de Voltaire (; also ; ), he was famous for his wit, and his ...
and the
Encyclopædia Britannica Eleventh Edition
The ''Encyclopædia Britannica'' Eleventh Edition (1910–1911) is a 29-volume reference work, an edition of the ''Encyclopædia Britannica''. It was developed during the encyclopaedia's transition from a British to an American publication. So ...
, and also by the 2004 book ''
The Last Duel'' by
Eric Jager
Eric Jager (born 27 April 1957) is an American literary critic and a specialist in medieval literature. He is a professor in the department of English at University of California, Los Angeles, received his B.A. from Calvin College in 1979, and ...
.
Italy
About AD 630,
Gundeberga Gundeberga or Gundeperga, queen of the Lombards, (591-..) was the daughter of Theodelinda and her second husband, the Lombard king Agilulf. She married Arioald, ''(king of the Lombards; 626-636)'' and his successor Rothari, ''(king of the Lombards; ...
, wife of the
Lombard King
Arioald
Arioald was the Lombard king of Italy from 626 to 636. Duke of Turin, he married the princess Gundeberga, daughter of King Agilulf and his queen Theodelinda. He was, unlike his father-in-law, an Arian who did not accept Catholicism.
Arioald de ...
(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. This was the first instance of a trial by combat in the history of Italy. In the 730s, the Lombard king
Liutprand (712–744) had lost confidence in the likelihood that the trial by battle would provide justice. He knew that the practice was subject to abuse.
The jurisprudence of judicial duelling in Italy is particularly well documented in the 15th and 16th centuries. In particular, the treatises of
Achille Marozzo
Achille Marozzo (1484–1553) was an Italian fencing master, one of the most important teachers in the Dardi or Bolognese tradition.Castle, Egerton (1885), ''Schools and Masters of Fenc'', Londra, G. Bell, rist. (2003) ''Schools and Masters of Fen ...
(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 ( it, label=none, attore or agent) had to accuse the defendant ( it, label=none, 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 it, label=none, 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, it, label=none, 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
The Counter-Reformation (), also called the Catholic Reformation () or the Catholic Revival, was the period of Catholic resurgence that was initiated in response to the Protestant Reformation. It began with the Council of Trent (1545–1563) a ...
of the 16th century, duelling became illegal; however, its customs were maintained and utilised by most middle to upper social classes until the beginning of the 19th century.
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
The Delaware Court of Chancery is a court of equity in the American state of Delaware. It is one of Delaware's three constitutional courts, along with the Supreme Court and Superior Court. Since 2018, the court consists of seven judges. The chi ...
rejected the defendant's request for "trial by combat to the death" on the grounds that dueling was illegal. 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. A tongue-in-cheek motion during 2015 for trial by combat in response to a civil suit was rejected in 2016.
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. 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.
In fiction
Walter Scott
Sir Walter Scott, 1st Baronet (15 August 1771 – 21 September 1832), was a Scottish novelist, poet, playwright and historian. Many of his works remain classics of European and Scottish literature, notably the novels ''Ivanhoe'', ''Rob Roy (n ...
's 1828 novel ''
The Fair Maid of Perth
''The Fair Maid of Perth'' (or ''St. Valentine's Day'') is an 1828 novel by Sir Walter Scott, one of the Waverley novels. Inspired by the strange, but historically true, story of the Battle of the North Inch, it is set in Perth (known at the ti ...
'' dramatizes the lead-up to the
Battle of the North Inch
The Battle of the North Inch (also known as the Battle of the Clans) was a staged battle between the Clan Chattan and the "Clan Quhele" in September 1396. Thirty men were selected to represent each side in front of spectators, including King Ro ...
, where a judicial duel is among the violent events culminating in a judicial battle between the clans before King
Robert III of Scotland
Robert III (c. 13374 April 1406), born John Stewart, was King of Scots from 1390 to his death in 1406. He was also High Steward of Scotland from 1371 to 1390 and held the titles of Earl of Atholl (1367–1390) and Earl of Carrick (1368– ...
. ''
The Last Duel: A True Story of Crime, Scandal, and Trial by Combat in Medieval France'' is a 2004 book by Eric Jager about the last sanctioned judicial duel in France in 1386. It was adapted into a 2008
BBC Four
BBC Four is a British free-to-air public broadcast television channel owned and operated by the BBC. It was launched on 2 March 2002 documentary and dramatized in a
2021 Ridley Scott film.
See also
*
Battle royal
Battle royal (; also royale) traditionally refers to a fight involving many combatants that is fought until only one fighter remains standing, usually conducted under either boxing or wrestling rules. In recent times, the term has been used in a ...
*
Gladiator
A gladiator ( la, gladiator, "swordsman", from , "sword") was an armed combatant who entertained audiences in the Roman Republic and Roman Empire in violent confrontations with other gladiators, wild animals, and condemned criminals. Some gla ...
* ''
Gravi de pugna''
*
Holmgang
Holmgang (holmganga in Old Norse, hólmganga in modern Icelandic, holmgång in Swedish, holmgang in Danish and Norwegian bokmål and nynorsk) is a duel practiced by early medieval Scandinavians. It was a legally recognized way to settle disput ...
*
Might makes right
Might makes right or Might is right is an aphorism on the origin of morality, with both descriptive and prescriptive senses.
Descriptively, it asserts that a society's view of right and wrong is determined by those in power, with a meaning simil ...
* ''
Subpoena ad testificandum
A ''subpoena ad testificandum'' is a court summons to appear and give oral testimony for use at a hearing or trial. The use of a writ for purposes of compelling testimony originated in the ecclesiastical courts of Church during the High Middle A ...
''
* ''
Subpoena duces tecum
A ''subpoena duces tecum'' (pronounced in English ), or subpoena for production of evidence, is a court summons ordering the recipient to appear before the court and produce documents or other tangible evidence for use at a hearing or trial. In s ...
''
*
Trial by ordeal
Trial by ordeal was an ancient judicial practice by which the guilt or innocence of the accused was determined by subjecting them to a painful, or at least an unpleasant, usually dangerous experience.
In medieval Europe, like trial by combat, tri ...
Notes
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)
*
*
*
* . Ful
1890 editionavailable online.
* O'Donovan, John (1851) (ed.) ''Annals of Ireland by the Four Masters'' (1851).
*
*
*
* ''The Newgate Calendar''
*
External links
Appeal of Murder, etc. Act 1819
{{Authority control