TRIAL BY COMBAT, ITS SCOPE AND HISTORY
Curiously interlinked with the procedure of the law courts, forming, indeed, an integral part of the law of the land, was the judicial duel; an institution applying to both civil and criminal jurisdiction.
It was allowed in certain cases, such as on a civil writ of right for the recovery of land, and in criminal charges of treason or felony on an appellant making a sworn declaration before a judge. This law, though falling greatly into disuse after the reign of Queen Elizabeth, remained on the statute book until early in the nineteenth century.
Among the Ashmolean, Harleian and Cottonian MSS. are many tracts, treatises and other documents relating to the laws and manner of conducting judicial duels, with other matter concerning these combats; and abstracts from the MSS. are given in Appendices [E], [F], and [G], respectively.
The custom of trial by combat or legal duel, the ordeal of battle, was introduced into England by the Normans.[244] As far as can be ascertained it was unknown to the Anglo-Saxons, though the ordeal of hot water appears in one of Ine’s laws;[245] and, indeed, trial by ordeal appears repeatedly among the laws of the Anglo-Saxon kings. The principle involved was the same in both cases, viz. that the Almighty would not remain indifferent when solemnly invoked, but would intervene miraculously so that the ends of justice might be furthered. The simple faith of the times would act as a deterrent to appeals to the judgment of God and would thus tend to limit the number of cases. The consciousness of innocence or guilt would also contribute towards the vindication of the cause of justice in actual combat.
The proofs by fire and water (vulgaris purgatio), holding, carrying or walking over hot iron or heated plough-shares (ferri candentis judicium), being thrown into deep water, bound hand and foot, may be said roughly to have preceded that by judicial combat; but they form quite another and earlier branch of the subject. The number of cases given in history of these earlier forms of ordeal which defendants are stated to have passed through triumphantly is considerable, but most of them must surely be either apocryphal, or the intensity of the ordeals themselves was much exaggerated.
Ordeal by combat is found among the laws of nearly all the German tribes; and it flourished greatly in France until cases of more than suspected miscarriage of justice brought it into disrepute. An edict passed at Lyons in the year 501 established the institution as a regular form of trial. It appears among the ancient laws of the Swedes and Lombards.
In civil cases a claimant would declare that some ancestor of his had been in seisin of certain property but had been unlawfully deprived of it by another, and he would offer battle to the “tenant,” as the owner was then called, for its restitution, by the body of a champion. The tenant, or defendant, could then choose between an appeal to the Grand Assize, an inquest where the question of right is determined by the verdict of neighbours,[246] in which institution may be traced the germ of the more modern jury; or to the ordeal of battle, in his own body or by champion. No one was compelled to defend his seisin of a free tenement by battle, though a claimant could offer combat in the lists, which, however, might be refused by a defendant. When a civil court ordered a combat it was fought on foot in a small circular or oblong enclosure, similar to that used in the foot-fighting, with shields and staves (bastons) at a pas d’armes of the fifteenth century. The course of procedure in criminal cases for the most part differed widely from that followed in civil cases and was under quite another jurisdiction; and it largely consisted of accusations made against the honour of certain persons, or of alleged treason. It was customary for an accuser to justify his charge by an offer of single combat in the lists, “God showing the right”; and such a mode of settlement was greatly in unison with the chivalric spirit of the age. To bring such a matter to an issue an accuser offered battle by throwing down his glove, which when lifted by a defendant signified that the challenge was accepted. The king was appealed to, and, in the event of the case being remitted to the ordeal of battle, he assigned the place and day for the combat. He further, in consultation with the constable and marshal, decided on the preliminaries, the conditions of battle to be observed being regulated in accordance with fixed ordinances, which in England were drawn up by the constable for the time being. The combat would be on horseback, fighting à outrance, with lance and sword, in lists similar to those erected for the tourney. Charges of homicide or murder might in this country be remitted to the ordeal of battle, with shields and bastons and in civil garments. Should an accused or claimant fail to appear in the lists on the day appointed he could be outlawed.
The judicial duel may be regarded as the prototype or parent of the chivalrous duel on foot at a pas d’armes.
The custom never took deep root in England, though during the reign of King Henry II, when the monarchy had become more settled, and in the times of his immediate successors Richard and John, disputes relating to the possession of land were very rife, greatly owing to the fact that so many manors and smaller holdings had been forcibly and illegally riven from their rightful owners in the preceding reigns since the Conquest, by the barons and their adherents. The ordinary law courts experienced great difficulty in dealing with them on the principles set forth in the written statutes, which then as always inclined to favour the man in possession; and the rough and ready settlement by combat was ordered, more especially in cases where there was a hopeless conflict of testimony between litigants and no means of getting at the truth by the evidence of any living witnesses.
The actual number of judicial duels would seem to have been small in England, for in the great majority of cases before the courts the judges managed to declare that there should be no combat.
Certain persons were excused from battle. They comprised the citizens of London, who were exempted by charter; the clergy; “sexagenarii”; and “those blind by accident after issue joined.”[247] Women were not exempted by law and, indeed, sometimes fought.
The early ordinances, forms and manner of carrying out this singular institution in practice in England are given in Origines Juridiciales.[248]