Trial by Combat

Trial by combat, or wager of battle, trial by battle, or judicial duel, was a form of resolving disputes in European countries that probably ended in the 16th century.  There were different methods of trial by combat, with various judicial codes outlining how battles were to be fought, what weapons were to be used, what the combatants would wear, and other details.  According to Wikipedia, it’s origins were in Germanic tribal law but were carried over into the Frankish Empire, the later Holy Roman Empire, Britain, France, and Italy.

I’ve heard lawyers say that these were the humble beginnings of trial advocacy – a person accused of a crime could claim the right of trial by combat and name their champion, as Tyrion named Bronn as his champion to fight against Ser Vardis Egan in Game of Thrones.  A smart move, as Tyrion was a dwarf with no fighting skill and Bronn turns out to be quite deadly, if unscrupulous.

I don’t see any reference to the accused in criminal cases in early European law being permitted to choose a champion, although it may have happened – the Wikipedia article does talk about litigants being permitted to choose a champion in civil disputes, however, with some houses even keeping fighters on retainer to “litigate” on their behalf.  If the practice of choosing a champion were widespread, I cannot imagine that the medieval equivalent of a lawyer would last long in their given profession, however.  “Prosecutors and defense lawyers” would be in high demand and the profession would have a rather high turnover rate.

It’s a fascinating concept for trial lawyers, and there are some parallels to what happens in court today.  For one thing, at least in Britain, it appears that the right to Wager of Battle was permitted only when there was insufficient evidence to convict a person – if there was a confession, or witnesses to the crime, the accused was not permitted trial by combat.  On the other hand, if there was no evidence the accused could choose to fight to the death to clear his name – if he won his accuser would then be declared an outlaw and would be liable to the accused for damages.

Of course in today’s courts the complaining witness or the State is not held accountable when a defendant is acquitted.  But the parallels are there – more often than not, when there are witnesses and/or a confession, a defendant will plead guilty.  But, if the state’s case is weak yet they persist in prosecuting him, a defendant through his attorney will go to trial and battle the state for his freedom.

If the medieval accused was strong and a good fighter, in trial by combat he was likely to best his accuser in battle – or – his opponent would simply not show up and the accused would win by default.  Similarly, today if an accused is wealthy or has resources to hire the best lawyers, investigators, and experts, he is more likely to beat the State in trial or to have his charges dismissed without a trial.  On the other hand, if the accused in the Middle Ages was weak, he would forfeit and be punished rather than asking for trial by combat, just as today if a person is destitute they are more likely to plead guilty even when they are not, or to lose their trial and be wrongfully convicted.

A British man made national news in 2002 when he demanded the right to trial by battle, arguing that “his right to fight a champion nominated by the Driver and Vehicle Licensing Agency (DVLA) was still valid under European human rights legislation . . .” and that he should be permitted to face his accuser with “samurai swords, Ghurka knives or heavy hammers.”  The magistrates disagreed and fined him 200 pounds and 100 pounds in costs.

An article in the Business Insider, and the Wikipedia article linked to above, point out that there is a rather tenuous argument that the right to trial by combat still exists under United States law, although it could violate the prohibitions against cruel and unusual punishment, it could violate the Due Process Clause, and there are specific prohibitions against dueling (but you could argue that the laws against dueling do not apply to judicially sanctioned dueling).

Our law in the United States is a combination of 1) statutory or written laws and 2) what is called the common law, or law developed over time by opinions issued by the courts.  The Thirteen Colonies, when they declared independence, adopted the common law of England.  When the colonies declared independence in 1776, the right to trial by combat, although not exercised, was still the law of England.  According to Wikipedia, the right of trial by combat was abolished in England in 1819, 43 years after the colonies declared independence.

Once the colonies had declared their independence, English laws and opinions of English courts were no longer binding on American courts, and apparently no post-independence American court has addressed the question of whether the right to trial by combat still exists.

Kyle Shamberg, in an article in the Huffington Post last year, quotes former Supreme Court Justice Sandra Day O’Conner as saying, “If trial by combat still works in Westeros, why can’t it work here? Honestly, I think we need a lot less Bush v. Gore and a lot more Hound v. Lightning Lord.”  He then goes on to list the pros and cons of re-enacting trial by combat:

Pros: ratings spikes for networks covering trials, fewer lawyers would be necessary (or survive), and finality (there would definitely be a decrease in appellate litigation).

Cons: lessened focus on the pursuit of truth, lots of dead people, and the “complete breakdown of the social structure, leading to U.S. population splitting into warring tribal factions solely concerned with securing resources and attempting to eke out another few precious hours of survival.”

Obviously, a motion demanding a defendant’s right to trial by combat in today’s courts will be denied.  The notion of a warrior, however, fighting on behalf of people for Justice or for Freedom, is the ideal for every trial lawyer.


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