Trial by combat
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A judicial duel portrayed in a facsimile from the "Cérémonies des Gages des Batailles," a manuscript of the fifteenth century in the National Library of Paris. |
Trial by combat is one of the most ancient forms of
alternative dispute resolution, though it is little used today. In essence, it is a
judicially sanctioned duel, also known as a
judicial duel.
In
Europe, at least, it would appear to be a
Germanic custom. It was in use among the ancient
Geats,
Goths,
Swedes, and
Franks, but it was generally unknown in
Roman law and does not figure in the
Torah or the
laws of
Hammurabi. Extensive
statutes governing its use appear in the capitularies of
Louis the Pious, king of the Franks, in
819.
As it existed in the mediæval laws of western Europe, it was typically explained as a
judicium Dei, the
judgment of
God. In theory, the
trial so conducted would yield a just result because God would strengthen the arm of the combatant who was in the right. In this, it resembled
trial by ordeal, which were a number of hazardous tests whose outcome would indicate guilt or innocence; these outcomes, too, were God's
verdicts. It seems likelier that since in the days of
feudalism, weak central
governments and no standing armies, conflicts between nobles could lead to minor wars, a judicially organised duel was a less expensive substitute that gave the litigants and the public the physical satisfaction they wished.
English common law
Wager of battel, 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 battel is recorded is
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 battel. 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 battel. 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 battel 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. [
1] Pronouncing judgment in favour of the accused's plea claiming the wager of battel, 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 judgment.
Parliament abolished wager of battel the following year, in
1819, and at the same time they also abolished the writ of right and criminal appeals.
One of the last actual 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.[
2]
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", a word of uncertain meaning, but which may be related to the
Old French for "broken." 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.
In the 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 battel 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.
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.
*Richard Bagwell,
Ireland under the Tudors 3 vols. (London, 1885–1890)
*John O'Donovan (ed.)
Annals of Ireland by the Four Masters (1851).
Calendar of State Papers: Ireland (London)
The Newgate Calendar*
Military rule*
Stick fighting*
Charters relating to Judicial Duels, 11th - 12th Century
