The last instance of a duly authorised legal duel in France was that between François de Vivonne de la Chataignerie and Guy Chabot de Jarnac, which took place at St. Germain-en-Laye in 1547, in the presence of the king (Henry II.) It is doubly remarkable in that it contributed a new and subtil stroke of the sword, the “coup de Jarnac,” and that it led to an edict being issued against duelling. This ordeal by combat resulted in the death of de la Chataignerie.
Judicial Duel in 1548, 2nd Edward VI, between one Newton, a Scot, and a gentleman named Hamilton; the former being charged with uttering opprobrious epithets against His Majesty of England. Lists were erected in the market-place of Haddington, and at the time appointed the parties entered them for combat, clad in their doublets and hose, and armed with sword, buckler and dagger. The fight began with great spirit, Hamilton following his adversary up to the very railing of the lists, whereupon Newton struck him on the leg with his sword inflicting a great gash, upon which he fell to the ground and was slain. This ending of the fight was looked upon as a miscarriage of justice.[275]
The Abbé de Brantôme reports a trial by combat which took place about the middle of the sixteenth century, without the sanction of either king or parliament. The appellant was a Seigneur de Fandilles who charged the defendant, the Baron de Guerres of Lorraine, with an odious crime; and it was mutually agreed that the matter be referred to the judgment of God, in battle in the lists. The fight took place on foot with “bastardes” (hand and a half swords) in the lists at Sedan, a M. de Bouillon acting as judge. De Fandilles severely wounded his adversary in the thigh with a stroke of his powerful weapon, and the loss of blood was so great that the defendant could hardly keep his feet, at length falling to the ground. The lists were as usual freely strewn with sand, and the baron clutched handfuls of it which he threw into the eyes of his opponent, who was blinded for the time being and incapacitated from continuing the combat. This ending of the duel by means of an action strictly forbidden by the laws of the duello caused great disputes between the seconds and friends of both parties; and the matter was further complicated by a fall of the stand which afforded accommodation to the judge and spectators. This was certainly an irregular judicial duel, without any sanction at law, though the legal forms were observed.
Brantôme narrates several other duels.
In Harleian M.S., Vol. III, 505, 7021-22, is a catalogue of judicial combats anciently granted by the kings of England.
In the reign of Queen Elizabeth judicial duels had become rare, and the crown employed all its influence in their restraint. Fierce polemics had arisen in regard to the lawfulness or otherwise of the practice, and the conscience of the nation had been thoroughly aroused against them by reason of cases of more than suspected miscarriage of justice coming to light. Strong influence was brought to bear on the law courts to place all possible obstacles in the way of granting licences for such combats, and judges, at that time more especially, usually managed that disputes concerning the possession of land should be settled in the law courts without any resort to the ordeal of battle. Many treatises were written against the practice, examples of which follow: Ashmole MSS., No. 856, p. 10. “Duello foild. The whole proceedings in the orderly dissolveing of a designe for single fight betweene two valient gentlemen; by occasion whereof the unlawfulnesse of a duello is preparatorily disputed, according to the rules of honour and right reason; written by the Lord Henry Howard Earle of Northampton.” 126-145, p. 11. “A Discourse touching the unlawfulnesse of private combates, written by Sir Edward Cooke Lord Chiefe Justice of England, at the request of the Lord Henry Howard Earle of Northampton.” (3 Oct., 1609.) 146-148. “Ex MS. in Bibl’ Hatton.”
Cotton MS. Titus. Fol. 33. A treatise on duels, in two books. (239.) Fol. 38. Two papers on measures taken against duels. (402.) Fol. 44. A paper concerning laws against duels. (416.)
On the 18th June, 1571, a judicial duel was ordered to take place, the principals being Simon Low and John Kime, who were to fight by proxy in the persons of George Thome and Henry Nailer, respectively. The dispute between the parties related to the possession of some land; and the weapons for the intended fight were to be bastons and leathern shields. A plot of ground, 21 yards square, in Tothill Fields, was doubly railed in for the fight, and a stand connected with it was erected for the chief justice, as representing the court of common pleas. Behind it two tents were pitched for the use of the combatants. The Queen was much against the fighting, and the combat did not come off after all, for the champion of the appellant failed at the last moment to put in an appearance, so the plaintiff was non-suited.
Duels of the privileged order naturally survived those of the proletariat. Ashmole MS., No. 856, p. 7, gives “The manner of the challendge made by the Earle of Northumberland against Sir Francis Veare,” both by letter dated 24 Apr. 1602, and by inter-messages, until forbidden by the Queen’s commandment. (107-111.) Ex. MS. in Bibl’ Hatton, and, under the same number, P. 16. “The manner of Donald Ld Rey, and David Ramsey esq. their comeing and carriage at their tryall, upon monday, the 28 of November, 1631, before the Ld of Lynsey, Lord High Constable of England, and others.” This is a very full report of the trial. (175-227.) Under No. 856, p. 15. “His MAᵗˢ: declaration against duells, published at his chappell at Bruxells upon sonday the 24th of November 1658.” (172.)
Though practically in abeyance for a long period the law for an appeal to combat had remained on the statute book; and a trial by battle was demanded as late as the year 1817, in the case of Thornton v. Ashford. The judge, Lord Ellenborough, pronounced “that the general law of the land is that there shall be a trial by battle in case of appeal unless the parties bring themselves within the scope of one of the exemptions.” The suit was allowed, but the challenge being refused no combat ensued. The law was repealed in the following year (1818).[276]