Trial by combat
Encyclopedia
Trial by combat 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
, gradually disappearing in the course of the 16th century.
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
(but is notably absent from 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 Sachsenspiegel
prescribes combat with sword and shield, while the Schwabenspiegel
prescribes combat with shields and wooden clubs. 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 (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.
In medieval Scandinavia, the practice survived throughout the Viking Age
in the form of the Holmgang
.
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 Swabia
n (sword and shield) and Franconia
n (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, 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
.
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.
The compendium of Paulus Hector Mair
(1540s) dedicates one of its 16 books to judicial combat (book O 15). As the medieval tournament, Mair describes the practice as a venerable manly custom of the past, giving an account of a specific duel that took place in his hometown of Augsburg in 1409.
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, or above 60 years of age, or 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 (18.3 m) square, following the taking of oaths against witchcraft and sorcery. If the defendant was defeated, and if he was 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.
and a Norman
. The Tractatus of Glanvill
, from around 1187, appears to have considered it the chief mode of trial, at least among aristocrat
s entitled to bear arms.
When Henry II
reformed English civil procedure
in the Assize of Clarendon
in 1166, trial by jury
became available, and lawyer
s, guarding the safety of the lives and limbs of their clients, steered people away from the wager of battle. A number of legal fiction
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. 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.
Trials by combat at common law in England were carried on with quarterstaves, on a duelling ground of sixty feet square. Each litigant was allowed a rectangular, leather
n 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:
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 outlaw
ry. Fighting continued until one party or the other was dead or disabled. The last man standing won his case.
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.
, 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
(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 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.
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 MP
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:
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.
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
.
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 dueling 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 itself 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. After 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 mid-1500s, dueling became illegal; however, its customs were maintained and very much utilized by most middle- to upper social classes until the beginning of the 19th century.
separated from that of Britain when the colonies declared independence in 1776, the British common law in effect at that time remains 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) has abolished a given rule. Specifically, even if the British legislature or judiciary changes British common law on a given point, that change is not binding on American authorities.
Because the British 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; the United States has ratified the same treaties.
Duel
A duel is an arranged engagement in combat between two individuals, with matched weapons in accordance with agreed-upon rules.Duels in this form were chiefly practised in Early Modern Europe, with precedents in the medieval code of chivalry, and continued into the modern period especially among...
. It remained in use throughout the European Middle Ages
Middle Ages
The Middle Ages is a periodization of European history from the 5th century to the 15th century. The Middle Ages follows the fall of the Western Roman Empire in 476 and precedes the Early Modern Era. It is the middle period of a three-period division of Western history: Classic, Medieval and Modern...
, gradually disappearing in the course of the 16th century.
Origins
Unlike trial by ordealTrial by ordeal
Trial by ordeal is a judicial practice by which the guilt or innocence of the accused is determined by subjecting them to an unpleasant, usually dangerous experience...
in general, which is known to many cultures worldwide, the trial by combat is known primarily from the customs of the Germanic peoples
Germanic peoples
The Germanic peoples are an Indo-European ethno-linguistic group of Northern European origin, identified by their use of the Indo-European Germanic languages which diversified out of Proto-Germanic during the Pre-Roman Iron Age.Originating about 1800 BCE from the Corded Ware Culture on the North...
. It was in use among the ancient Burgundians
Burgundians
The Burgundians were an East Germanic tribe which may have emigrated from mainland Scandinavia to the island of Bornholm, whose old form in Old Norse still was Burgundarholmr , and from there to mainland Europe...
, Ripuarian Franks
Ripuarian Franks
Ripuarian Franks is a distinction of the Frankish people made by a number of writers in the Latin language of the first several centuries of the Christian Era...
, Alamans
Alamanni
The Alamanni, Allemanni, or Alemanni were originally an alliance of Germanic tribes located around the upper Rhine river . One of the earliest references to them is the cognomen Alamannicus assumed by Roman Emperor Caracalla, who ruled the Roman Empire from 211 to 217 and claimed thereby to be...
, Lombards
Lombards
The Lombards , also referred to as Longobards, were a Germanic tribe of Scandinavian origin, who from 568 to 774 ruled a Kingdom in Italy...
, and Swedes
Suiones
The Swedes e, "one's own [tribesmen/kinsmen]"; Old English: Sweonas; , Suehans or Sueones) were an ancient North Germanic tribe in Scandinavia...
(but is notably absent from Anglo-Saxon law
Anglo-Saxon law
Anglo-Saxon law is a body of written rules and customs that were in place during the Anglo-Saxon period in England, before the Norman conquest. This body of law, along with early Scandinavian law and continental Germanic law, descended from a family of ancient Germanic custom and legal thought...
). It was unknown in Roman law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
and does not figure in the traditions of oriental antiquity such as the code of Hammurabi
Code of Hammurabi
The Code of Hammurabi is a well-preserved Babylonian law code, dating to ca. 1780 BC . It is one of the oldest deciphered writings of significant length in the world. The sixth Babylonian king, Hammurabi, enacted the code, and partial copies exist on a human-sized stone stele and various clay...
or the Torah
Torah
Torah- A scroll containing the first five books of the BibleThe Torah , is name given by Jews to the first five books of the bible—Genesis , Exodus , Leviticus , Numbers and Deuteronomy Torah- A scroll containing the first five books of the BibleThe Torah , is name given by Jews to the first five...
.
The practice is regulated in various Germanic legal codes
Early Germanic law
Several Latin law codes of the Germanic peoples written in the Early Middle Ages survive, dating to between the 5th and 9th centuries...
. Being rooted in Germanic tribal law, the various regional laws of the Frankish Empire
Frankish Empire
Francia or Frankia, later also called the Frankish Empire , Frankish Kingdom , Frankish Realm or occasionally Frankland, was the territory inhabited and ruled by the Franks from the 3rd to the 10th century...
(and the later Holy Roman Empire
Holy Roman Empire
The Holy Roman Empire was a realm that existed from 962 to 1806 in Central Europe.It was ruled by the Holy Roman Emperor. Its character changed during the Middle Ages and the Early Modern period, when the power of the emperor gradually weakened in favour of the princes...
) prescribed different particulars, such as equipment and rules of combat. The Sachsenspiegel
Sachsenspiegel
The Sachsenspiegel is the most important law book and legal code of the German Middle Ages. Written ca...
prescribes combat with sword and shield, while the Schwabenspiegel
Schwabenspiegel
The Schwabenspiegel is a legal code, written in ca. 1275 by a Franciscan monk in Augsburg. It deals mainly with questions of land ownership and fiefdom, and it is based on the Pentateuch, Roman law as well as Canon law...
prescribes combat with shields and wooden clubs. The Lex Alamannorum
Lex Alamannorum
The terms Lex Alamannorum and Pactus Alamannorum refer to two early medieval law codes of the Alamanni. They were first edited in parts in 1530 by Johannes Sichard in Basel.-Pactus 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 (Boretius 1.117). Louis the Pious
Louis the Pious
Louis the Pious , also called the Fair, and the Debonaire, was the King of Aquitaine from 781. He was also King of the Franks and co-Emperor with his father, Charlemagne, from 813...
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
Viking Age
Viking Age is the term for the period in European history, especially Northern European and Scandinavian history, spanning the late 8th to 11th centuries. Scandinavian Vikings explored Europe by its oceans and rivers through trade and warfare. The Vikings also reached Iceland, Greenland,...
in the form of the Holmgang
Holmgang
Holmgang was a duel practiced by early medieval Scandinavians. It was a recognized way to settle disputes....
.
Holy Roman Empire
Trial by combat was common in the Holy Roman EmpireHoly Roman Empire
The Holy Roman Empire was a realm that existed from 962 to 1806 in Central Europe.It was ruled by the Holy Roman Emperor. Its character changed during the Middle Ages and the Early Modern period, when the power of the emperor gradually weakened in favour of the princes...
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
Pope Honorius III
Pope Honorius III , previously known as Cencio Savelli, was Pope from 1216 to 1227.-Early work:He was born in Rome as son of Aimerico...
in 1216 asked the Teutonic order to cease its imposition of judicial duels on their newly converted subjects in Livonia
Livonia
Livonia is a historic region along the eastern shores of the Baltic Sea. It was once the land of the Finnic Livonians inhabiting the principal ancient Livonian County Metsepole with its center at Turaida...
. For the following three centuries, there was latent tension between the traditional regional laws and Roman law.
The Sachsenspiegel
Sachsenspiegel
The Sachsenspiegel is the most important law book and legal code of the German Middle Ages. Written ca...
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.
German school of swordsmanship
The German school of fencing is the historical system of combat taught in the Holy Roman Empire in the Late Medieval, Renaissance and Early Modern periods , as described in the Fechtbücher written at the time...
in the 15th century. Notably Hans Talhoffer
Hans Talhoffer
Hans Talhoffer was a Fechtmeister , employed as 'master of arms' to the Swabian knight Leutold von Konigsegg, a feudatory of Count Eberhardt the Bearded of Württemberg in southern Germany...
depicts techniques to be applied in such duels, separately for the Swabia
Swabia
Swabia is a cultural, historic and linguistic region in southwestern Germany.-Geography:Like many cultural regions of Europe, Swabia's borders are not clearly defined...
n (sword and shield) and Franconia
Franconia
Franconia is a region of Germany comprising the northern parts of the modern state of Bavaria, a small part of southern Thuringia, and a region in northeastern Baden-Württemberg called Tauberfranken...
n (mace and shield) variants, but other Fechtbücher such as that of Paulus Kal
Paulus Kal
Paulus Kal was a 15th century German fencing master. In 1460, he wrote a combat manual describing the art of fencing .-Literature:...
and the Codex Wallerstein
Codex Wallerstein
The Codex Wallerstein is a 16th century fechtbuch. The titleVom Baumans Fechtbuch appears on the first page, together with the date 1549. The Codex came in the possession of Paulus Hector Mair in 1556...
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, evolving into the gentlemanly duel
Duel
A duel is an arranged engagement in combat between two individuals, with matched weapons in accordance with agreed-upon rules.Duels in this form were chiefly practised in Early Modern Europe, with precedents in the medieval code of chivalry, and continued into the modern period especially among...
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
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
, treason
Treason
In law, treason is the crime that covers some of the more extreme acts against one's sovereign or nation. Historically, treason also covered the murder of specific social superiors, such as the murder of a husband by his wife. Treason against the king was known as high treason and treason against a...
, heresy
Heresy
Heresy is a controversial or novel change to a system of beliefs, especially a religion, that conflicts with established dogma. It is distinct from apostasy, which is the formal denunciation of one's religion, principles or cause, and blasphemy, which is irreverence toward religion...
, desertion
Desertion
In military terminology, desertion is the abandonment of a "duty" or post without permission and is done with the intention of not returning...
of one's lord, "imprisonment" (possibly in the sense of abduction
Kidnapping
In criminal law, kidnapping is the taking away or transportation of a person against that person's will, usually to hold the person in false imprisonment, a confinement without legal authority...
), perjury
Perjury
Perjury, also known as forswearing, is the willful act of swearing a false oath or affirmation to tell the truth, whether spoken or in writing, concerning matters material to a judicial proceeding. That is, the witness falsely promises to tell the truth about matters which affect the outcome of the...
/fraud
Fraud
In criminal law, a fraud is an intentional deception made for personal gain or to damage another individual; the related adjective is fraudulent. The specific legal definition varies by legal jurisdiction. Fraud is a crime, and also a civil law violation...
and rape
Rape
Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...
.
The introduction of the Reichskammergericht
Reichskammergericht
The Reichskammergericht or Imperial Chamber Court was one of two highest judicial institutions in the Holy Roman Empire, the other one being the Aulic Council in Vienna. It was founded in 1495 by the Imperial Diet in Worms...
in 1495 tilted the balance in favour of Roman law over regional legal traditions, and the practice of judicial duelling died out shortly thereafter.
The compendium of Paulus Hector Mair
Paulus Hector Mair
Paulus Hector Mair was an Augsburg civil servant, and active in the martial arts of his time. He collected Fechtbücher and undertook to compile all knowledge of the art of fencing in a compendium surpassing all earlier books...
(1540s) dedicates one of its 16 books to judicial combat (book O 15). As the medieval tournament, Mair describes the practice as a venerable manly custom of the past, giving an account of a specific duel that took place in his hometown of Augsburg in 1409.
Britain
Wager of battle, as the trial by combat was called in English, appears to have been introduced into the common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
of the Kingdom of England
Kingdom of England
The Kingdom of England was, from 927 to 1707, a sovereign state to the northwest of continental Europe. At its height, the Kingdom of England spanned the southern two-thirds of the island of Great Britain and several smaller outlying islands; what today comprises the legal jurisdiction 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, or above 60 years of age, or 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
City of London
The City of London is a small area within Greater London, England. It is the historic core of London around which the modern conurbation grew and has held city status since time immemorial. The City’s boundaries have remained almost unchanged since the Middle Ages, and it is now only a tiny part of...
could also decline the battle if challenged. If the actual battle took place, it would occur in judicial lists, 60 feet (18.3 m) square, following the taking of oaths against witchcraft and sorcery. If the defendant was defeated, and if he was 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 SaxonAnglo-Saxons
Anglo-Saxon is a term used by historians to designate the Germanic tribes who invaded and settled the south and east of Great Britain beginning in the early 5th century AD, and the period from their creation of the English nation to the Norman conquest. The Anglo-Saxon Era denotes the period of...
and a Norman
Normans
The Normans were the people who gave their name to Normandy, a region in northern France. They were descended from Norse Viking conquerors of the territory and the native population of Frankish and Gallo-Roman stock...
. The Tractatus of Glanvill
Tractatus of Glanvill
The Tractatus de legibus et consuetudinibus regni Angliae is the earliest treatise on English law. Commonly attributed to Ranulf de Glanvill and dated ca. 1188, it was revolutionary in its systematic codification that defined legal process and introduced writs, innovations that have survived to...
, from around 1187, appears to have considered it the chief mode of trial, at least among aristocrat
Aristocracy (class)
The aristocracy are people considered to be in the highest social class in a society which has or once had a political system of Aristocracy. Aristocrats possess hereditary titles granted by a monarch, which once granted them feudal or legal privileges, or deriving, as in Ancient Greece and India,...
s entitled to bear arms.
When Henry II
Henry II of England
Henry II ruled as King of England , Count of Anjou, Count of Maine, Duke of Normandy, Duke of Aquitaine, Duke of Gascony, Count of Nantes, Lord of Ireland and, at various times, controlled parts of Wales, Scotland and western France. Henry, the great-grandson of William the Conqueror, was the...
reformed English civil procedure
Civil procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits...
in the Assize of Clarendon
Assize of Clarendon
The Assize of Clarendon was an 1166 act of Henry II of England that began the transformation of English law from such systems for deciding the prevailing party in a case as trial by ordeal or trial by battle to an evidentiary model, in which evidence and inspection was made by laymen...
in 1166, trial by jury
Jury trial
A jury trial is a legal proceeding in which a jury either makes a decision or makes findings of fact which are then applied by a judge...
became available, and lawyer
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
s, guarding the safety of the lives and limbs of their clients, steered people away from the wager of battle. A number of legal fiction
Legal fiction
A legal fiction is a fact assumed or created by courts which is then used in order to apply a legal rule which was not necessarily designed to be used in that way...
s were devised to enable litigants to avail themselves of the jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
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
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
representing litigants. In practice, a person facing trial by combat was assisted by a second, often referred to as a squire
Squire
The English word squire is a shortened version of the word Esquire, from the Old French , itself derived from the Late Latin , in medieval or Old English a scutifer. The Classical Latin equivalent was , "arms bearer"...
. 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.
Trials by combat at common law in England were carried on with quarterstaves, on a duelling ground of sixty feet square. Each litigant was allowed a rectangular, leather
Leather
Leather is a durable and flexible material created via the tanning of putrescible animal rawhide and skin, primarily cattlehide. It can be produced through different manufacturing processes, ranging from cottage industry to heavy industry.-Forms:...
n shield, and could be armed with a suit of armour
Armour
Armour or armor is protective covering used to prevent damage from being inflicted to an object, individual or a vehicle through use of direct contact weapons or projectiles, usually during combat, or from damage caused by a potentially dangerous environment or action...
, 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
Oath
An oath is either a statement of fact or a promise calling upon something or someone that the oath maker considers sacred, usually God, as a witness to the binding nature of the promise or the truth of the statement of fact. To swear is to take an oath, to make a solemn vow...
disclaiming the use of witchcraft
Witchcraft
Witchcraft, in historical, anthropological, religious, and mythological contexts, is the alleged use of supernatural or magical powers. A witch is a practitioner 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
Old French
Old French was the Romance dialect continuum spoken in territories that span roughly the northern half of modern France and parts of modern Belgium and Switzerland from the 9th century to the 14th century...
for "broken", which acknowledged "(I am) vanquished." The party who did so, however, whether litigant or champion, was punished with outlaw
Outlaw
In historical legal systems, an outlaw is declared as outside the protection of the law. In pre-modern societies, this takes the burden of active prosecution of a criminal from the authorities. Instead, the criminal is withdrawn all legal protection, so that anyone is legally empowered to persecute...
ry. Fighting continued until one party or the other was dead or disabled. The last man standing won his case.
One of the last mass trials by combat in Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
, the Battle of the Clans, took place in Perth
Perth, Scotland
Perth is a town and former city and royal burgh in central Scotland. Located on the banks of the River Tay, it is the administrative centre of Perth and Kinross council area and the historic county town of Perthshire...
in 1396. This event took the form of a pitched battle between teams of around thirty men each, representing Clan Macpherson
Clan Macpherson
Clan Macpherson is a Highland Scottish clan from Badenoch, on the River Spey. It is a leading member of the Chattan Confederation.-Origins:...
and Clan Davidson
Clan Davidson
Clan Davidson is a Highland Scottish clan. The clan was also part of the Chattan Confederation.-History:When the power of the Comyns began to wane in Badenoch, David Dubh of Invernahaven, Chief of Davidsons, having married the daughter of Angus, 6th of MacKintosh, sought the protection of William,...
on the North Inch
North Inch
North Inch is a cricket ground in Perth, Scotland. The first recorded match held on the ground came in 1849 when Perth played Grange. The ground held its first first-class match when Scotland played Ireland in 1909. Five further first-class matches were played there, the last of which came in...
in front of the King, Robert III
Robert III of Scotland
Robert III was King of Scots from 1390 to his death. His given name was John Stewart, and he was known primarily as the Earl of Carrick before ascending the throne at age 53...
. 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 IElizabeth I of England
Elizabeth I was queen regnant of England and Ireland from 17 November 1558 until her death. Sometimes called The Virgin Queen, Gloriana, or Good Queen Bess, Elizabeth was the fifth and last monarch of the Tudor dynasty...
, in the inner courtyard of Dublin Castle
Dublin Castle
Dublin Castle off Dame Street, Dublin, Ireland, was until 1922 the fortified seat of British rule in Ireland, and is now a major Irish government complex. Most of it dates from the 18th century, though a castle has stood on the site since the days of King John, the first Lord of Ireland...
in Ireland
Ireland
Ireland is an island to the northwest of continental Europe. It is the third-largest island in Europe and the twentieth-largest island on Earth...
at 9 o'clock on the morning of 7 September 1583.
The dispute was between members of the O'Connor
O'Connor
O'Connor is a surname of Irish origin, originally meaning Ó Conchobhair .-Law and Politics:*Sandra Day O'Connor O'Connor is a surname of Irish origin, originally meaning Ó Conchobhair ("grandson/descendant of Conchobhar").-Law and Politics:*Sandra Day O'Connor O'Connor is a surname of Irish origin,...
clan
Clan
A clan is a group of people united by actual or perceived kinship and descent. Even if lineage details are unknown, clan members may be organized around a founding member or apical ancestor. The kinship-based bonds may be symbolical, whereby the clan shares a "stipulated" common ancestor that is a...
(i.e., sept
Sept (social)
A sept is an English word for a division of a family, especially a division of a clan. The word might have its origin from Latin saeptum "enclosure, fold", or it can be an alteration of sect.The term is found in both Ireland and Scotland...
) in King's county (modern County Offaly
County Offaly
County Offaly is a county in Ireland. It is part of the Midlands Region and is also located in the province of Leinster. It is named after the ancient Kingdom of Uí Failghe and was formerly known as King's County until the establishment of the Irish Free State in 1922. Offaly County Council is...
), 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
State papers
The term State papers is used in British and Irish contexts to refer exclusively to government archives and records. Such papers used to be kept separate from non-governmental papers, with state papers kept in the State Paper Office and general public records kept in the Public Records Office...
Ireland 63/104/69 (spelling adapted):
The Annals of the Four Masters
Annals of the Four Masters
The Annals of the Kingdom of Ireland or the Annals of the Four Masters are a chronicle of medieval Irish history...
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
Raphael Holinshed
Raphael Holinshed was an English chronicler, whose work, commonly known as Holinshed's Chronicles, was one of the major sources used by William Shakespeare for a number of his plays....
.
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 ICharles I of England
Charles I was King of England, King of Scotland, and King of Ireland from 27 March 1625 until his execution in 1649. Charles engaged in a struggle for power with the Parliament of England, attempting to obtain royal revenue whilst Parliament sought to curb his Royal prerogative which Charles...
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
John Lilburne
John Lilburne , also known as Freeborn John, was an English political Leveller before, during and after English Civil Wars 1642-1650. He coined the term "freeborn rights", defining them as rights with which every human being is born, as opposed to rights bestowed by government or human law...
). 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
Boston Tea Party
The Boston Tea Party was a direct action by colonists in Boston, a town in the British colony of Massachusetts, against the British government and the monopolistic East India Company that controlled all the tea imported into the colonies...
, Parliament considered a bill which would have abolished appeals of murder and trials by battle in the American colonies. It was successfully opposed by MP
Member of Parliament
A Member of Parliament is a representative of the voters to a :parliament. In many countries with bicameral parliaments, the term applies specifically to members of the lower house, as upper houses often have a different title, such as senate, and thus also have different titles for its members,...
John Dunning
John Dunning, 1st Baron Ashburton
John Dunning, 1st Baron Ashburton was an English lawyer and politician.He was first noticed in English politics when he wrote a notice in 1762 defending the British East India Company merchants against their Dutch rivals. He was a Member of Parliament from 1768 onward...
, who called the appeal of murder "that great pillar of the Constitution". Writer and MP Edmund Burke
Edmund Burke
Edmund Burke PC was an Irish statesman, author, orator, political theorist and philosopher who, after moving to England, served for many years in the House of Commons of Great Britain as a member of the Whig party....
, 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
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
. The criminal appeal was a private criminal
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
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
The Newgate Calendar
The Newgate Calendar, subtitled The Malefactors' Bloody Register, was a popular work of improving literature in the 18th and 19th centuries....
. Pronouncing judgement in favour of the accused's plea claiming the wager of battle, Justice Bayley of the King's Bench
King's Bench
The Queen's Bench is the superior court in a number of jurisdictions within some of the Commonwealth realms...
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
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
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
Driver and Vehicle Licensing Agency
The Driver and Vehicle Licensing Agency is the organisation of the UK Government responsible for maintaining a database of drivers and a database of vehicles in Great Britain; its counterpart in Northern Ireland is the Driver & Vehicle Agency...
that he had removed his Suzuki
Suzuki
is a Japanese multinational corporation headquartered in Hamamatsu, Japan that specializes in manufacturing compact automobiles and 4x4 vehicles, a full range of motorcycles, all-terrain vehicles , outboard marine engines, wheelchairs and a variety of other small internal combustion engines...
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 VICharles VI of France
Charles VI , called the Beloved and the Mad , was the King of France from 1380 to 1422, as a member of the House of Valois. His bouts with madness, which seem to have begun in 1392, led to quarrels among the French royal family, which were exploited by the neighbouring powers of England and Burgundy...
was fought in Paris
Paris
Paris is the capital and largest city in France, situated on the river Seine, in northern France, at the heart of the Île-de-France region...
. The trial was fought to decide a case brought by Sir Jean de Carrouges
Jean de Carrouges
Sir Jean de Carrouges IV was a fourteenth century French knight who governed estates in Normandy as a vassal of Count Pierre d'Alençon and served under Admiral Jean de Vienne in several campaigns against the English and the forces of the Ottoman Empire...
against squire Jacques Le Gris
Jacques Le Gris
Sir Jacques Le Gris was a squire and knight in fourteenth century France who gained fame and infamy when he engaged in the last judicial duel permitted by the Parlement of Paris after he was accused of rape by the wife of his neighbour and rival Sir Jean de Carrouges...
, 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
Froissart's Chronicles
Froissart's Chronicles was written in French by Jean Froissart. It covers the years 1322 until 1400 and describes the conditions that created the Hundred Years' War and the first fifty years of the conflict...
and Grandes Chroniques de France
Grandes Chroniques de France
The Grandes Chroniques de France is a royal compilation of the history of France, its manuscripts remarkably illuminated. It was compiled between the thirteenth and fifteenth centuries, beginning in the reign of Saint Louis, who wished to preserve the history of the Franks from the coming of the...
. It has since been covered by several notable texts, including Diderot's Encyclopédie
Encyclopédie
Encyclopédie, ou dictionnaire raisonné des sciences, des arts et des métiers was a general encyclopedia published in France between 1751 and 1772, with later supplements, revised editions, and translations. It was edited by Denis Diderot and Jean le Rond d'Alembert...
, Voltaire
Voltaire
François-Marie Arouet , better known by the pen name Voltaire , was a French Enlightenment writer, historian and philosopher famous for his wit and for his advocacy of civil liberties, including freedom of religion, free trade and separation of church and state...
and the Encyclopædia Britannica Eleventh Edition
Encyclopædia Britannica Eleventh Edition
The Encyclopædia Britannica Eleventh Edition 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. Some of its articles were written by the best-known scholars of the time...
, and also by the 2004 book The Last Duel
The Last Duel
The Last Duel is a book by Eric Jager. It tells the story of the December 29, 1386 trial by combat between Norman knight Jean de Carrouges and the squire Jacques Le Gris...
by Eric Jager
Eric Jager
Eric Jager 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 his Ph.D. from the University of Michigan in 1987...
.
Italy
The jurisprudence of judicial dueling in ItalyItaly
Italy , officially the Italian Republic languages]] under the European Charter for Regional or Minority Languages. In each of these, Italy's official name is as follows:;;;;;;;;), is a unitary parliamentary republic in South-Central Europe. To the north it borders France, Switzerland, Austria and...
is particularly well documented in the 15th and 16th centuries. In particular, the treatises of Achille Marozzo
Achille Marozzo
Achille Marozzo was an Italian fencing master teaching in the Dardi or Bolognese tradition.Marozzo was probably born in Bologna. His text Opera Nova dell'Arte delle Armi was published in 1536 in Modena, dedicated to Count Rangoni, then reprinted several times all the way into the next century...
(1536), Giovanni Battista Pigna (1554) and Girolamo Mutio (1560) have contributed to shed considerable light on the subject.
The fundamental aspects of Italy's dueling 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 itself 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. After 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
Counter-Reformation
The Counter-Reformation was the period of Catholic revival beginning with the Council of Trent and ending at the close of the Thirty Years' War, 1648 as a response to the Protestant Reformation.The Counter-Reformation was a comprehensive effort, composed of four major elements:#Ecclesiastical or...
of the mid-1500s, dueling became illegal; however, its customs were maintained and very much utilized by most middle- to upper social classes until the beginning of the 19th century.
United States
Because the common law of the Thirteen ColoniesThirteen Colonies
The Thirteen Colonies were English and later British colonies established on the Atlantic coast of North America between 1607 and 1733. They declared their independence in the American Revolution and formed the United States of America...
separated from that of Britain when the colonies declared independence in 1776, the British common law in effect at that time remains 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) has abolished a given rule. Specifically, even if the British legislature or judiciary changes British common law on a given point, that change is not binding on American authorities.
Because the British 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
American Bar Association
The American Bar Association , founded August 21, 1878, is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation...
Journal vol. 71 [May 1985], p. 66), a parody of hard-boiled pulp fiction by authors such as Raymond Chandler
Raymond Chandler
Raymond Thornton Chandler was an American novelist and screenwriter.In 1932, at age forty-five, Raymond Chandler decided to become a detective fiction writer after losing his job as an oil company executive during the Depression. His first short story, "Blackmailers Don't Shoot", was published in...
, 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; the United States has ratified the same treaties.
In fiction
- In Robert JordanRobert JordanRobert Jordan was the pen name of James Oliver Rigney, Jr. , under which he was best known as the author of the bestselling The Wheel of Time fantasy series. He also wrote under the pseudonyms Reagan O'Neal and Jackson O'Reilly.-Biography:Jordan was born in Charleston, South Carolina...
's The Wheel of TimeThe Wheel of TimeThe Wheel of Time is a series of epic fantasy novels written by American author James Oliver Rigney, Jr., under the pen name Robert Jordan. Originally planned as a six-book series, the length was increased by increments; at the time of Rigney's death, he expected it to be 12, but it will actually...
series, the Whitecloaks (modelled partly on the Teutonic KnightsTeutonic KnightsThe Order of Brothers of the German House of Saint Mary in Jerusalem , commonly the Teutonic Order , is a German medieval military order, in modern times a purely religious Catholic order...
) had a provision for trial by combat which had fallen out of use along with several other archaic and sometimes inhumane laws and practices. The law, entitled Trial Beneath the Light, was revived in Knife of DreamsKnife of DreamsKnife of Dreams is the 11th novel in the fantasy series The Wheel of Time by American author Robert Jordan. It was published by Tor Books in the U.S. and Orbit in the UK and released on October 11, 2005...
. - Trial by combat is used abundantly in the A Song of Ice and FireA Song of Ice and FireA Song of Ice and Fire is a series of epic fantasy novels by American novelist and screenwriter George R. R. Martin. Martin began writing the series in 1991 and the first volume was published in 1996. Originally planned as a trilogy, the series now consists of five published volumes; a further two...
series by George R. R. MartinGeorge R. R. MartinGeorge Raymond Richard Martin , sometimes referred to as GRRM, is an American author and screenwriter of fantasy, horror, and science fiction. He is best known for A Song of Ice and Fire, his bestselling series of epic fantasy novels that HBO adapted for their dramatic pay-cable series Game of...
. Theoretically, the gods determine the outcome.
See also
- Trial by ordealTrial by ordealTrial by ordeal is a judicial practice by which the guilt or innocence of the accused is determined by subjecting them to an unpleasant, usually dangerous experience...
- HolmgangHolmgangHolmgang was a duel practiced by early medieval Scandinavians. It was a recognized way to settle disputes....
- Subpoena ad testificandumSubpoena ad testificandumA 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 the High Middle Ages, especially in England...
- Subpoena duces tecumSubpoena duces tecumA subpoena duces tecum is a court summons ordering a named party to appear before the court and produce documents or other tangible evidence for use at a hearing or trial....