1540s depiction of a 1409 judicial combat in Augsburg (Paulus Hector Mair, Munich cod. Paulus Hector Mair (1517&ndash1579 was an Augsburg civil servant and active in the martial arts of his time. The Bavarian State Library ( German: Bayerische Staatsbibliothek, abbreviated BSB) located in Munich, is the central Library of the icon. 393)

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. Several Latin Law codes of the Germanic peoples written in the Early Middle Ages (also known as leges barbarorum The ComBat was an Aluminium Cricket bat and the subject of an incident that occurred at the WACA cricket ground in Perth in December 1979. In essence, it is a judicially-sanctioned duel. Sanctions are usually monetary fines, levied against a party to a Legal action or his/her Attorney, for violating rules of procedure As practiced from the 11th to 20th centuries in Western societies a duel is an engagement in combat between two individuals with matched weapons in accordance with their combat It remained in use throughout the European Middle Ages and gradually disappeared in the 16th century.

Origins

Unlike trial by ordeal in general, which is known to many cultures worldwide, the trial by combat is known almost exclusively from the customs of the Germanic peoples. The Germanic peoples are a historical group of Indo-European -speaking peoples originating in Northern Europe and identified by their use of the Germanic It was in use among the ancient Burgundians, Ripuarian Franks, Alamans, Lombards, and Swedes, but it was unknown in Roman law and does not figure in the Torah or the code of Hammurabi. The Burgundians or Burgundes were an East Germanic tribe which may have emigrated from mainland Scandinavia to the island of Bornholm, whose The Ripuarian Franks (Latin Ripuari) were Franks that lived in along the middle-Rhine River during the Roman Era The Alamanni, Allemanni, or Alemanni were originally an alliance of Germanic tribes located around the upper Main river ( Germany The Lombards ( Latin Langobardi, whence the alternative names Langobards and Longobards) were a Germanic people originally from The Swedes (svear Old Norse: svíar; Old English: Sweonas; Suiones Suehans or Sueones) were an ancient North Roman law is the legal system of Ancient Rome. As used in the West the term commonly refers to legal developments prior to the Roman/Byzantine state's adopting term " Torah " ( Hebrew: תּוֹרָה "teaching" or "instruction" sometimes translated as "Law" most commonly refers to The Code of Hammurabi ( Codex Hammurabi) is the best-preserved ancient Law code, created ca

The practice is regulated in various Germanic legal codes and survived throughout the Viking Age in Scandinavia in the form of the Holmgang. Several Latin Law codes of the Germanic peoples written in the Early Middle Ages (also known as leges barbarorum Viking Age is the term denoting the years from about 700 to 1066 in European history. Holmgang ( hólmganga in Old Norse and modern Icelandic, holmgång in Swedish was a Duel practiced by Norsemen. Capitularies governing its use appear from the year 803 onwards (Boretius 1. A capitulary ( Medieval Latin capitularium) was a series of Legislative or administrative acts emanating from the Frankish court of The Monumenta Germaniae Historica (frequently abbreviated MGH in bibliographies and lists of sources is a comprehensive series of carefully edited and published sources 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. Louis the Pious (778 &ndash 20 June 840) also called the Fair, and the Debonaire, was the King of Aquitaine from 781 and co-Emperor

Although earlier records mention the use of swords, Carolingian law prescribed wooden clubs and shields. The Carolingian dynasty (known variously as the Carlovingians, Carolings, or Karlings) was a Frankish noble family with its origins in the

Germany

Trial by combat was common in the Holy Roman Empire from the 11th to the 15th centuries. The Holy Roman Empire ( HRE; German Heiliges Römisches Reich (HRR, Latin Sacrum Romanum Imperium (SRI was a union of territories in 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. Otto I the Great ( 23 November 912 &ndash 7 May 973) son of Henry I the Fowler and Matilda of Ringelheim, was Duke 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. The Fourth Council of the Lateran was summoned by Pope Innocent III with his Papal bull of April 19, 1213. Pope Honorius III (1148 &ndash March 18 1227) born Cencio, was Pope from 1216 to 1227 The Teutonic Order is a German Roman Catholic religious order. Livonia (Līvõmō Latvian and Livonija Estonian: Liivimaa; Finnish: Liivinmaa; German and Swedish: Livland 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 Sachsenspiegel (lit "Saxon mirror" Low German: Sassenspegel, Middle Low German: Sassen Speyghel 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.

Depiction of a judicial duel between a man (standing in a pit) and a woman, from Talhoffers Thott manuscript (1459).

Trial by combat plays a significant role in the German schools of fencing in the 15th century. The German school of fencing ( de Deutsche Fechtschule) is the historical system of Combat taught in the Holy Roman Empire in the Late Medieval 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. Hans Talhoffer (also spelled Talhofer) was a fencing-master in southern Germany in the 15th century. Swabia, Suabia, or Svebia ( German: Schwaben, Schwabenland or Ländle) is both a historic and linguistic Franconia (Franken is a historic region of Germany comprising the northern parts of the modern state of Bavaria and the area to its immediate west Martial arts manuals are instructions with or without illustrations detailing specific techniques of Martial arts. Paulus Kal was a 15th century German Fencing master In 1460, he wrote a combat manual describing the art of fencing (Cgm 1507 95 The Codex Wallerstein ( Augsburg University library I642 is a 15th century Fechtbuch. 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 1500s, evolving into the gentlemanly duel of modern times which was outlawed only as late as in the 19th century. As practiced from the 11th to 20th centuries in Western societies a duel is an engagement in combat between two individuals with matched weapons in accordance with their combat

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:

1. murder
2. treason
3. heresy
4. desertion of one's lord
5. "imprisonment" (possibly in the sense of abduction)
6. perjury/fraud
7. 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. Murder is the unlawful killing of another human person with Malice aforethought, as defined in Common Law countries In Law, treason is the Crime that covers some of the more serious acts of disloyalty to one's sovereign or Nation. Heresy is an introduced change to some system of belief especially a religion that conflicts with the previously established canon of that belief In Military terminology desertion is the Abandonment of a " Duty " or post without permission from one's Government or superior In Criminal law, kidnapping is the taking away or Asportation of a person against the person's will usually to hold the person in False imprisonment Perjury, also known as forswearing, is the act of lying or making verifiably false statements on a material matter under Oath or Affirmation in a In the broadest sense a fraud is a Deception made for personal gain or to damage another individual Rape, also referred to as Sexual assault, is an Assault by a person involving Sexual intercourse with or Sexual penetration of another person The Reichskammergericht (Imperial Chamber Court was one of two highest judicial institutions in the Holy Roman Empire, the other one being the Reichshofrat

England

Wager of battle, as the trial by combat was called in English, appears to have become part of the common law of England in the Norman conquest. English is a West Germanic language originating in England and is the First language for most people in the United Kingdom, the United States Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals rather than through legislative statutes or executive England is a Country which is part of the United Kingdom. Its inhabitants account for more than 83% of the total UK population whilst its mainland The earliest case in which wager of battle 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. For their language see Anglo-Saxon language. Anglo-Saxon is the term usually used to describe the invading Tribes in the south The Normans were the people who gave their names to Normandy, a region in northern France. 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. Ranulf de Glanvill (sometimes written Glanvil or Glanville) (died 1190 was chief justiciar of England during the reign of King Henry II Aristocracy is a form of Government, where rule is established through an internal struggle over who has the most status and influence over society and internal relations

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 battle. Civil procedure is the body of law that sets out the process that Courts will follow when hearing cases of a civil nature (a " Civil action " as opposed to 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 A lawyer, according to Black's Law Dictionary, is "a person learned in the law as an attorney, Counsel or Solicitor; a person 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 the Common law tradition legal fictions are suppositions of fact taken to be true by the Courts of Law, but which are not necessarily A jury a sworn body of persons convened to render a rational, impartial Verdict (a finding of fact on a question officially submitted to them The practice of averting trial by combat led to the modern concept of attorneys representing litigants. An attorney at law (or attorney-at-law) in the United States is a practitioner in a court of law who is legally qualified to prosecute In practice, a person facing trial by combat was assisted by a second, often referred to as a squire. As practiced from the 11th to 20th centuries in Western societies a duel is an engagement in combat between two individuals with matched weapons in accordance with their combat In Feudal or Medieval times a squire was a Man-at-arms in the service of a Knight, often as his Apprentice. The role of the squire was not only to attend the battle, but to arrange the particulars of the ceremony with the opposing squire. Over time, squires would meet and resolve the disputes during negotiations over combat.

Wager of battle remained in two forms of action dear to the honour-bound hearts of the aristocracy, however. Honor or Honour (see spelling differences) (the latter directly from the Latin word honos honoris) is the evaluation of a person's Aristocracy is a form of Government, where rule is established through an internal struggle over who has the most status and influence over society and internal relations 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. In the Common law, real property (or realty) refers to one of the two main classes of Property, the other class being Personal property ( The second was the criminal appeal, a private criminal prosecution instituted by the accuser directly against the accused. The term criminal law, sometimes called penal law, refers to any of various bodies of rules in different Jurisdictions whose common characteristic is the potential The prosecutor is the chief legal representative of the prosecution in countries with either the Common law Adversarial system, or the civil law It was not, like the contemporary appeal, a proceeding in a court of superior jurisdiction reviewing the proceedings of a lower court.

Such a private prosecution was last conducted in the case of Ashford v. Thornton in 1818, as recorded in The Newgate Calendar. Ashford v Thornton was an 1818 English Legal case standing for the principle that all law remains until it is repealed The Newgate Calendar, subtitled The Malefactors' Bloody Register, was a popular work of Improving literature in the 18th and 19th centuries [1] Pronouncing judgement in favour of the accused's plea claiming the wager of battle, 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 Queen's Bench (or during the reign of a male monarch the King's Bench) is the superior court in a number of jurisdictions within some of the Commonwealth realms

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. The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom and British overseas territories

One of the last mass trials by combat, the Battle of the Clans, took place in Perth in 1396. The Battle of the North Inch (also known as the Battle of the Clans) was a hostile encounter that occurred in 1396 in Perth, Scotland, on what Perth (Peairt is a town and former Royal burgh in central Scotland. 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. Robert III redirects here Robert Curthose of Normandy is also sometimes known as Robert III or Robert II The battle was intended to resolve a dispute over which clan was to hold the right flank in an upcoming battle of both clans (and several others) against Clan Cameron. The Clan Macpherson is thought to have won but only twelve men survived from the original sixty. [2]

Trials by combat at common law in England were carried on with quarterstaffs, on a duelling ground of sixty feet square. A quarterstaff is a medieval English Weapon, consisting of a shaft of hardwood, sometimes with metal-reinforced tips 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. Leather is a material created through the Tanning of hides and Skins of Animals primarily Cattlehide The Tanning process Armour (or armor) is protective covering most commonly manufactured from metals to prevent damage from being inflicted to an individual or a vehicle through use of direct contact 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. An oath (from Anglo-Saxon āð, also called plight) is either a Promise or a Statement of Fact calling Witchcraft, in various historical anthropological religious and mythological contexts is the use of certain kinds of Supernatural or magical powers JUSTICE is a Human rights and law reform organisation based in the United Kingdom. God is the principal or sole Deity in Religions and other belief systems that worship one deity. The Devil is the So help me God and his saints. A saint (from the Latin sanctus) is a human being to whom has been attributed (and who has generally demonstrated a high level of Holiness and Sanctity

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. Old French was the Romance Dialect continuum spoken in territories which span roughly the northern half of modern France and parts of modern Belgium " The party who did so, however, whether litigant or champion, was punished with outlawry. An outlaw or bandit is a person living the lifestyle of outlawry; the word literally means "outside the Law " by folk-etymology from the original 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 7 September 1583. Dublin Castle (Caisleán Bhaile Átha Cliath off Dame Street, Dublin, Ireland, is a major Irish governmental complex formerly the fortified Ireland (pronounced /ˈaɾlənd/ Éire) is the third largest island in Europe, and the twentieth-largest island in the world Events 1251 BC - A Solar eclipse on this date might mark the birth of legendary Heracles at Thebes Greece.

The dispute was between members of the O'Connor clan (ie. A clan is a group of People united by Kinship and descent, which is defined by perceived descent from a common ancestor 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. A sept is an English word for a division of a Family, especially a division of a clan. County Offaly (Contae Uíbh Fhailí is a County in Leinster, Ireland, bordered by seven other counties Galway, Roscommon, Westmeath

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 term State papers is used in British and Irish contexts to refer exclusively to Government archives and records The ComBat was an Aluminium Cricket bat and the subject of an incident that occurred at the WACA cricket ground in Perth in December 1979. . . The only thing we commend in this action was the diligent travail of Sir Lucas Dillon and the Master of the Rolls, who equally and openly seemed to countenance the champions, but secretly with very good concurrence, both with us and between themselves, with such regard of her Majesty's service, as giveth us cause to commend them to your Lordships.

The Annals of the Four Masters also refers to the trial and censures the parties for having allowed the English to entice them into the proceedings. Annals of the Four Masters AD432 entryjpg|thumb|right|Entry for A It is also referred to in Holinshed's chronicles. Raphael Holinshed (died c 1580 was an English Chronicler whose work commonly known as Holinshed's Chronicles, was one of the major sources used by

This was a trial not at common law but under consiliar jurisdiction. It can be seen as a neat example of classic divide-and-rule policy.

France

"The plaintiff opening his case before the judge", from Cérémonies des Gages des Batailles (15th c. ), 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. Charles VI (3 December 1368 &ndash 21 October 1422 called the Well-loved (le Bien-Aimé and the Mad (French le Fol or le Fou) was the Paris (ˈpærɨs in English; in French) is the Capital of France and the country's largest city 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. Sir Jean de Carrouges IV (c 1330s &ndash 25 September 1396 was a fourteenth century French Knight who governed estates in Normandy as a vassal of Count Sir Jacques Le Gris (c 1330s &ndash 27 December 1386 was a Squire and Knight in fourteenth century France who gained fame and infamy when he engaged in the 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. This article is for the Ancien Régime institution For the post-Revolutionary and present-day institution see French Parliament.

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. Froissart's Chronicle was written in French by Jean Froissart. The Grandes Chroniques de France is a royal compilation of the history of France, its manuscripts remarkably illuminated It has since been covered by several notable texts, including Diderot's Encyclopédie, Voltaire and the Encyclopedia Britannica Eleventh Edition. Denis Diderot ( October 5, 1713 – July 31, 1784) was a French Philosopher and writer Encyclopédie ou dictionnaire raisonné des sciences des arts et des métiers (Encyclopedia or a systematic dictionary of the sciences arts and crafts was a general François-Marie Arouet ( 21 November 1694 30 May 1778) better known by the Pen name Voltaire, was a French The Encyclopædia Britannica Eleventh Edition (1910–1911 is a 29-volume reference work that marked the beginning of the Encyclopædia Britannica

An Unusual Trial By Combat

In 1380, a trial by combat was said to have been fought in France between a man and a dog. The dog’s master, Montdidier, had been murdered by the Chevalier Maquer. Maquer buried the body and departed. The dog, masterless and hungry, journeyed to Paris and sought out the Chevalier Ardilliers, a friend of his master Montdidier, and led him back to his master’s grave. This loyal dog scratched the dirt covering the grave until Ardilliers dug up the corpse of Montdidier. Later the dog spied Maquer, his master’s killer, and attacked him viciously. The dog renewed his attacks at each encounter with Maquer, soon arousing suspicion since heretofore his nature had been gentle. Friends recalled that Maquer had shown hostility to Montdidier, and reported this situation to the king. The king ordered trial by combat between Maquer and the dog to uncover Maquer’s guilt or innocence.

At combat, Maquer was unable to contain the frenzied attack of the dog, who focused on Maquer’s throat. Maquer, undone by the dog’s fervor and tenacity, confessed to his crime and was duly hanged. [3]

This legend is a variant of the somewhat older legend of the Dog of Montargis. Montargis is a commune of the Loiret département in France. The town is located about 110 km south of Paris and 70km east

United States

The United States inherited its common law traditions from the English system when it declared its independence in 1776, with precedents before that date entrenched in the American jurisprudence, as the Rule In Shelley's Case in property law has. The United States of America —commonly referred to as the In Common law legal systems, a precedent or authority is a Legal case establishing a principle or rule that a Court or other judicial The Rule in Shelley's Case is a rule of law that may apply to certain Future interests in Real property and Trusts created in Common law jurisdictions Property law is the area of Law that governs the various forms of Ownership in Real property (land as distinct from personal or movable possessions The British, however, did not abolish wager by battle until 1818 in Ashford v. Thornton, as noted above, and since independence, no court in the United States has addressed the issue of whether this remains a valid alternative to a civil action under the law. Ashford v Thornton was an 1818 English Legal case standing for the principle that all law remains until it is repealed In Forgotten Trial Techniques: The Wager of Battle by Donald J Evans published in the ABA Journal 71:66 (May 1985) - the possibility of a trial by battle was set out in a parody of hard-boiled pulp fiction author Raymond Chandler but set in a lawyer's office. Raymond Thornton Chandler ( July 23, 1888 &ndash March 26, 1959) was an American Author of crime stories and novels

References

• Richard Bagwell, Ireland under the Tudors 3 vols. (London, 1885–1890)
• Alfred Boretius, Capitularia Regum Francorum 2 vols. Monumenta Germaniae Historica, LL S. 2. (1883).
• John O'Donovan (ed. ) Annals of Ireland by the Four Masters (1851).
• V. L. Ziegler, Trial by Fire and Battle in Medieval German Literature, Camden House (2004).
• Calendar of State Papers: Ireland (London)
• The Newgate Calendar

See also

• Ordeal
• Holmgang
• Duel
• subpoena ad testificandum
• subpoena duces tecum

External links

• Charters relating to Judicial Duels, 11th - 12th Century