Trial by combat
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.
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.
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, which was not, like the contemporary appeal, a proceeding in a court of superior jurisdiction reviewing the proceedings of a lower court. Rather, the criminal appeal was a private criminal prosecution instituted by the accuser directly against the accused.
Such a private prosecution was last conducted in the case of Ashford v. Thornton (1818). 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 while they were at it 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. Clan Macpherson is thought to have won but only twelve men survived from the original sixty.
Trials by combat at common law in England were carried on with quarterstaffs, on a duelling ground of sixty feet square. Each litigant was allowed a rectangular, leathern shield, and could be armed with a suit of armour, provided that they were bare to the knees and elbows, and wore only red sandals on their feet. The litigants appeared in person; women, the elderly, the infirm of body, and minors could have champions named to fight in their stead. The combat was to begin before noon, and be concluded before sunset. Before fighting, each litigant had to swear an oath disclaiming the use of witchcraft for advantage in the combat, which oath is in words and figures as follows:
- Hear this, ye justices, that I have this day neither eat, drank, nor have upon me, neither bone, stone, ne grass; nor any enchantment, sorcery, or witchcraft, whereby the law of God may be abased, or the law of the Devil exalted. So help me God and his saints.
Either combatant could end the fight and lose his case by crying out the word "craven", 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.
A trial from 1583
The last trial by combat under the authority of an English monarch is thought to have taken place during the reign of Elizabeth I, in the inner courtyard of Dublin Castle in Ireland at 9 o'clock on the morning of the 7th of September 1583.
The dispute was between members of the O Connor sept in King's county (modern County Offaly), who were persuaded by two judges (both named 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 under its entry for 1583, 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 not a trial at common law, but rather one under consiliar jurisdiction. It can be seen as a neat example of classic divide-and-rule policy.