March 29, 2008

Trial By Combat

Stupid Question ™
May 2, 2005
By John Ruch
© 2005

Q: Is it true you could win a court case in the Middle Ages by fighting a duel? That doesn’t seem fair.
—Jamie, from the Internet

A: “Judicial combat” or “trial by combat” indeed could be used to settle certain types of court cases from early medieval times until as late as the 1500s, especially in duel-crazy France.

It was considered fair because of the notion—evidently still popular today—that whoever wins was de facto favored by God. However, it’s probably more accurate to say that judicial combat was a form of macho gambling given a patina of righteousness. (The Catholic Church never approved of the method—especially in the days when priests weren’t exempted.)

The legal concepts involved shouldn’t be confused with the way a modern court works. Judicial combat was rooted in the legal theory of “ordeals”—torture tests that you would survive or otherwise pass by the grace of God if you were (in modern parlance) innocent.

Judicial combat generally had to involve a supposed witness to a crime accusing a “defendant” (in modern terms). But there were a variety of other ordeals for cases with a higher level of doubt, or where there were more facts to be determined.

By and large, these were straight-up torture tests, such as carrying a piece of red-hot iron in one’s hand for a proscribed period, or plunging one’s hand into boiling water and trying really hard not to blister too much.
At its simplest (and most simple-minded), the ordeals were literal gambling, such as drawing a straw or marked stone in judgment-by-lottery.

In the viewpoint of the times, these weren’t random practices, because nothing was; God directs everything, and always favors the righteous.
Faith did not run so deep that such laws applied to everyone, however. The torture tests, with their obvious presumption of guilt, were reserved almost exclusively for commoners.

Judicial combat, on the other hand, thrived in the nobility, where it was wrapped in the gaudy philosophy of chivalry. In later periods it was often carried out in what would be considered military courts today, with its outcome recognized by common law as well.

I said before that the outcome of an ordeal judged innocence in modern terms. In the terms of the day, however, what it really determined was truthfulness. Then, as now, the basis of the legal system was one party making a claim against another party—and both sides claiming the other is making it all up.

However, we start from a position of the accused being innocent, and they can leave court with a determination of “not guilty.” Judicial combat was much more focused on personal honor and the truth of each party’s claim.
As historian Francois Billacois noted, the fundamental idea behind the duel of the era was calling each other a liar. The loser of judicial combat wasn’t merely dishonored (and likely dead); he was automatically considered a perjurer.

While perjury is still a crime in our modern system, it’s rarely prosecuted. And it’s unimaginable that someone would be executed for perjury, let alone punished before a determination of the facts of the larger crime is made. But that’s what judicial combat did.

In the system of chivalry, being called a liar was an affront to a man’s all-important honor. While fighting it out was oh-so-manly, there was another way to resolve the situation—you could get friends and allies to swear to your good character.

If that didn’t work, combat it was. Of course, fighting to the death was something of a deterrent, and out-of-court settlements were still possible (such as withdrawing the accusation).

The exact ceremony for judicial combat varied with time and place. In France, which kept the custom the longest and in the most elaborate form, it eventually could be invoked only for the most serious crimes and only with the king himself officiating.

However, some general rules appear to have applied. The fight wasn’t necessarily to the death, there always being some kind of judgment as to what meant defeat. Forfeit was also possible (though it could be followed by execution).

Women were never dragged into combat. Elderly men and those too impaired to fight could also get out of it. Historian Bradford Broughton noted that “even broken foreteeth could disqualify a man, for these teeth helped greatly in the victory”—indicating the savagery judicial combat could involve.

That’s not say the actual accuser and defendant would be the ones stabbing and biting each other. It was often possible (sometimes legally, sometimes not) to hire “champions,” or professional fighters, to duel in one’s place. Apparently God’s favor could be bought by proxy.

In keeping with the irrationality of the whole business, another universal practice was inspecting the combatants for magical talismans—supernatural steroids that amounted to cheating.

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