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Trial by combat

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1540s depiction of a 1409 judicial combat in Augsburg between Marshal Wilhelm von Dornsberg and Theodor Haschenacker. Dornsberg's sword broke early in the duel, but he succeeded to kill Haschenacker with his own sword.

Trial by combat (also wager of battle, trial by battle or judicial duel) was a method of Germanic law to settle accusations in the absence of witnesses or a confession in which two parties in dispute fought in single combat; the winner of the fight was proclaimed to be right. In essence, it was a judicially sanctioned duel. It remained in use throughout the European Middle Ages, gradually disappearing in the course of the 16th century.

Origins

Unlike trial by ordeal in general, which is known to many cultures worldwide be boring, 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. It was unknown in Anglo-Saxon law, Roman law nor in Irish Brehon Law and it does not figure into the traditions of Middle Eastern 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 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.[1] 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.

Holy Roman Empire

Depiction of a judicial combat in the Dresden codex of the Sachsenspiegel (early to mid-14th century), illustrating the provision that the two combatants must "share the sun", i.e. align themselves perpendicular to the Sun so that neither has an advantage.

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, is a good example. 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 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.[2]

The Kleines Kaiserrecht, 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.

Depiction of a judicial duel between a man and a woman by Hans Talhoffer (Ms.Thott.290.2º f80r, 1459)

Trial by combat plays a significant role in the German schools of fencing in the 15th century. Notably Hans Talhoffer depicts techniques to be applied in such duels, separately for the Swabian (sword and shield) and Franconian (mace and shield) variants, but other Fechtbücher such as that of Paulus Kal and the Codex Wallerstein show similar material. While commoners were required to present their case to a judge before duelling, members of the nobility did have the right to challenge each other for duels without the involvement of the judicative, so that duels of this kind were separate from the judicial duel already in the Middle Ages and were not affected by the latter's abolition in the early 16th century by Emperor Maximilian I, 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.

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France

"The plaintiff opening his case before the judge", from Cérémonies des Gages des Batailles (15th century), National Library of Paris.

Judicial combat of 1386

In December 1386, the last trial by combat authorised by the French King Charles VI was fought in Paris. The trial was fought to decide a case brought by Sir Jean de Carrouges against squire Jacques Le Gris, whom he accused of raping his wife Marguerite when Carrouges was in Paris conducting business. After lengthy hearings at the Parlement de Paris, it was decided that guilt could not be decided through a standard jury trial, and a judicial duel was ordered.

In late December, shortly after Christmas, the combatants met in the grounds of an abbey in the northern Paris suburbs. After lengthy ceremony, battle was joined, and after a furious and bloody encounter Carrouges stabbed his opponent through the throat with his dagger and claimed victory, being rewarded with substantial financial gifts and a position in the royal household. The duel was watched by the royal court, several royal dukes and thousands of ordinary Parisians and was recorded in several notable chronicles including Froissart's Chronicles[3] and Grandes Chroniques de France. It has since been covered by several notable texts, including Diderot's Encyclopédie,[4] Voltaire[citation needed] and the Encyclopædia Britannica Eleventh Edition, and also by the 2004 book The Last Duel by Eric Jager.[5]

Italy

About A.D. 630, Gundeberga, wife of the Lombard King Arioald, 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 a single combat between her accuser and a nobleman who undertook to defend her. The accuser having been slain, Gundeberga was declared innocent.[6] This was the first instance of a trial by combat in the history of Italy.[7]

The jurisprudence of judicial duelling in Italy 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.[8]

The fundamental aspects of Italy's duelling 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.[9]

The duel 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. 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.[10]

With the counter-reformation of the 16th century, duelling became illegal; however, its customs were maintained and utilized by most middle to upper social classes until the beginning of the 19th century.[8]

United States

At the times of the independence in 1776, trial by combat was still legal in the United Kingdom, and the United States inherited British common law on independence. 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 rejected the defendant's request for "trial by combat to the death" on the grounds that dueling was illegal.[11] 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.[12] A tongue-in-cheek request for trial by combat in response to a civil suit was rejected in 2015.[13]

See also

Notes

  1. ^ Boretius 1.117
  2. ^ book I, art. 63
  3. ^
  4. ^ «il y avoit même déjà long-tems que le parlement connoissoit des causes de duel, témoins ceux dont on a parlé ci - devant, & entr'autres celui qu'il ordonna en 1386 entre Carouge & Legris; ce dernier étoit accusé par la femme de Carouge d'avoir attenté à son honneur. Legris fut tué dans le combat, & partant jugé coupable; néanmoins dans la suite il fut reconnu innocent par le témoignage de l'auteur même du crime, qui le déclara en mourant». Duel entry in Encyclopédie ou Dictionnaire raisonné des sciences, des arts et des métiers, Volume 5, 1755.
  5. ^ Eric Jager (2004), The Last Duel, Century, ISBN 0-7126-6190-5
  6. ^ Paul the Deacon, History of the Lombards, Book 4., Chapter XLI.
  7. ^ The Encyclopædia Britannica, or, Dictionary of arts, sciences, and general literature, Volume 13, Adam & Charles Black, 1857, p. 640.
  8. ^ a b Tom Leoni (2010), "Judicial Duel in Sixteenth-century Italy", in In the Service of Mars: Proceedings from the Western Martial Arts Workshop 1999–2009, Volume I (Ed. Mele, Gregory), Freelance Academy Press, ISBN 978-0-9825911-5-4
  9. ^ Girolamo Mutio (1560), Il Duello
  10. ^ Giovanni Battista Pigna (1554), Il Duello
  11. ^ McNatt v. Richards, 6987 (Del. Ch. 28 Mar 1983) ("I also note that defendant's offer to waive its counterclaim on the condition that plaintiff accept a challenge of trial by combat to death is not a form of relief this Court, or any court in this country, would or could authorize. Dueling is a crime and defendant is therefore cautioned against such further requests for unlawful relief.").
  12. ^ Evans, Donald J. (May 1985). "Forgotten Trial Techniques: The Wager of Battle". ABA Journal. 71 (5). American Bar Association: 66–68. Retrieved 14 August 2016.
  13. ^ "Staten Island lawyer demands trial by combat". Washington Post. Retrieved 16 May 2016.

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.
  • O'Donovan, John (1851) (ed.) Annals of Ireland by the Four Masters (1851).
  • Quennell, Marjorie; Quennell, C. H. B. (1969) [1918], A History of Everyday Things in England (4 ed.), B. T. Batsford
  • Ziegler, V. L. (2004), Trial by Fire and Battle in Medieval German Literature, Camden House
  • Calendar of State Papers: Ireland (London)
  • The Newgate Calendar
  • Gardiner, Samuel Rawson (2000), History of England from the Accession of James I to the Outbreak of the Civil War: 1603-1642, Adegi Graphics LLC, ISBN 1-4021-8410-7
  • Mackenzie, Eneas; Ross, Marvin (1834), An historical, topographical, and descriptive view of the county palatine of Durham: comprehending the various subjects of natural, civil, and ecclesiastical geography, agriculture, mines, manufactures, navigation, trade, commerce, buildings, antiquities, curiosities, public ..., vol. 2, Mackenzie and Den {{citation}}: Invalid |ref=harv (help)
  • Megarry, Sir Robert (2005), A New Miscellany-at-Law: Yet Another Diversion for Lawyers and Others, ISBN 9781841135540
  • Neilson, George; Sereni, Angelo Piero (2009), Trial by Combat (reprint ed.), The Lawbook Exchange, Ltd., p. 326, ISBN 1-58477-985-3. Full 1890 edition available online.
  • Shoenfeld, Mark (1997), "Waging battle: Ashford v Thornton, Ivanhoe and legal violence", in Simmons, Clare (ed.), Medievalism and the Quest for the "Real" Middle Ages, Routledge, pp. 61–86, ISBN 978-0-7146-5145-3
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