Trial by combat

The Lex Alamannorum (recension Lantfridana 81, dated to 712–730 AD) prescribes a trial by combat in the event of two families disputing the boundary between their lands.

A handful of earth taken from the disputed piece of land is put between the contestants and they are required to touch it with their swords, each swearing that their claim is lawful.

The 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 swords and shields and may wear linen and leather clothing, but their heads and feet must be bare and their hands only protected by light gloves.

[5] The Kleines Kaiserrecht, an anonymous legal code of c. 1300, prohibits judicial duels altogether, stating that the emperor had come to this decision on seeing that too many innocent men were convicted by the practice just for being physically weak.

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.

Wager of battle, as the trial by combat was called in English, appears to have been introduced into the common law of the Kingdom of England following the Norman Conquest and remained in use for the duration of the High and Late Middle Ages.

In 1446, a trial by combat was arranged between two quarrelling Irish magnates, James Butler, 5th Earl of Ormonde, and the Prior of Kilmainham, but King Henry VI intervened personally to persuade them to settle their differences peacefully.

Similarly, if the plaintiff was a woman, above 60 years of age, a minor,[9] lame or blind, they could decline the challenge, and the case would be determined by a jury.

Peers of the realm, priests, and citizens of the City of London (the last pursuant to their guarantee of ancient liberties under Magna Carta) could also decline the battle if challenged.

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.

With the emergence of the legal profession in the thirteenth century, lawyers, guarding the safety of the lives and limbs of their clients, steered people away from the wager of battle.

A number of legal 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 battle.

In civil cases, women, the elderly, the infirm of body, minors, and—after 1176—the clergy could choose a jury trial or could have champions named to fight in their stead.

A 1276 document among Bishop Swinefield's household records marks a promise to pay Thomas of Brydges an annual retainer fee for acting as champion, with additional stipend and expenses paid for each fight.

[17] 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 on 7 September 1583.

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 [Nicholas White], 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.

[23] In 1774, as part of the legislative response to the Boston Tea Party, Parliament considered a bill that would have abolished appeals of murder and trials by battle in the American colonies.

[24] Writer and MP Edmund Burke, on the other hand, supported the abolition, calling the appeal and wager "superstitious and barbarous to the last degree".

[30] According to Gregory of Tours, King Childebert II ordered for two of his servants to engage in trial by combat against each other when he found a buffalo had been killed in his forest and one accused the other of the crime.

If Jacques le Gris won the duel, not only would Jean de Carrouges die but his pregnant wife would also be put to death for the crime of being a false accuser.

After a lengthy ceremony, the battle was joined, and after a furious and bloody encounter, Carrouges stabbed his opponent with a sword[32] and claimed victory, being rewarded with substantial financial gifts and a position in the royal household.

It has since been covered by several notable texts, including Diderot's Encyclopédie,[34] Voltaire[citation needed] and the Encyclopædia Britannica Eleventh Edition, and also by the 2004 book The Last Duel by Eric Jager.

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 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.

A special kind of fighter called a chekvar was engaged to duel another chekavar on behalf of two opposing rulers to prevent the explosion of a blood feud.

When one of the chekavar defeated or killed the other in the public duel called the ankam, the two parties considered the matter closed without either having spilled any of their own blood.

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.

[52] In 2020, a man named David Zachary Ostrom requested a trial by combat in response to a custody and property dispute with his ex-wife over their children.