This post is coauthored by Nathan Dorn, rare book curator, and Robert Brammer, senior legal information specialist.
You are sure to hear “Objection!” shouted in the context of any legal drama. But what are they objecting to, and more importantly, on what basis? In modern jurisprudence, the rules of evidence are paramount to trying a case. Deciding whether evidence is admissible and how much weight to assign to it can make or break a case. As any law student or lawyer knows, studying the rules of evidence and applying them in the context of a trial is challenging, which is why their misapplication is often the basis for an appeal. But what if there were a less rule-based way of judging the merit of a case, such as one that allows the judgment of a higher power to supplant the frailties of human reasoning? Why not rely on miraculous divine intervention to determine who in your case is right and who must pay for his or her crimes? Our forebears in the Anglo-American legal system had just such a system available to them: the ordeal.
Judging by the contemporary definition of the word, you might have guessed that an ordeal was anything but pleasant. The way it works is this: the merits of your case were judged, not by carefully weighing evidence in a trial, but by an appeal to divine judgment. There were several ways to ask for heavenly judgment, including, but not limited to, an ordeal by fire, water, and trial by combat. Today, we explore the origins of trial by combat and its status in modern law.
By most accounts, the Normans brought trial by combat to England when they invaded in 1066. Early references to it appear in the Anglo-Saxon version of William the Conqueror’s statutory charter and the Domesday Book, as well as in a note in the Laws of Henry I, Leges Henrici Primi, which indicates that battle might only be ordered in a civil suit where the property in dispute was worth at least ten shillings. Evidence from the 11th century does not tell us clearly in which cases this practice would have been permitted and applied. Generally, we can say that it was used in two areas: 1) in writ of right, that is, an order directed to a feudal court that demanded the resolution of a dispute over the rightful ownership of a piece of land; and 2) in appeal of felony, that is, a formal charge against a subject for a serious crime that petitions the court to punish the perpetrator for the injury caused to the victim. The Chief Justiciar of England during the reign of Henry II, Ranulf de Glanville, also acknowledged that trial by combat was used in cases of debt, closely following the model of the writ of right. That custom, however, seems to have been out of practice by the end of the 11th century, and was forbidden in the 13th century. The judge’s role in all three of these instances was to determine the appropriateness of the ordeal in a given case, and then to order it, allowing the combat to serve as proof of the victor’s claims.
In appeal of felony, one had to fight one’s own battle; women, the elderly, and the infirm were not permitted to fight, but instead were required to undergo other forms of judicial ordeal. In the case of a property dispute, on the other hand, one could choose a champion to enter combat on one’s behalf. This champion was required to swear an oath that he himself had direct knowledge of the truth of the claim he was defending or that he was instructed to defend it by his dying father. This requirement, of course, led to a lot of swearing of false oaths and plenty of abuse. One thirteenth-century man, a certain William of Cookham, appears even to have made a business of supplying a useful champion for people who hoped to encourage Providence to resolve property disputes in their favor. Nevertheless, when one of the parties submitted a champion that was not a witness, that champion could be tried by a jury and face punishment himself, while the party who put him forward was in danger of receiving a default judgment against him. Eventually, the Statute of Westminster I (1275) eliminated the champion’s oath requirement, but trial by battle remained.
Despite the fact that trial by combat was an option, various reforms taken over its first two centuries narrowed its use. Most important of these was the development of the jury trial. During the reign of Henry II, the Assize of Clarendon (1166) introduced an appealing alternative to settling matters by judicial duel, allowing a person indicted for a felony to choose to face a deliberative body of his neighbors, rather than proceed directly to the field of combat. At first, this body was empowered to inquire about any extenuating circumstances that might prevent the indicted person from fighting. Over time, however, it absorbed the role of the fact finder. Thirteenth-century judges generally favored the jury trial over trial by combat. The famous jurist Henry de Bracton states that at the time he was writing (mid-thirteenth century), judicial combat was only available for criminal matters when there were no witnesses available. Otherwise, the accused was required to face a jury.
Pollock and Maitland estimate that during the period when it was most resorted to, trial by combat was never carried out more than twenty times a year. Its most frequent occurrence was in appeals of “approvers,” that is, convicted felons whose pardon was granted in return for their cooperation in accusing (and killing by judicial combat) their former criminal associates, a practice which decreased over the course of the 14th century.
A detailed account of a trial by combat can be found in a report of a case between Sir John Annesley, Knight, and Thomas Katrington, Esq. The case occurred in 1380 and concerned a claim that that Thomas Katrington, the caretaker of St. Saviour’s Castle in Normandy, did not do enough to defend the castle which Sir John Annesley had inherited through marriage. Annesley accused Katrington of simply selling the castle to the French rather than defending it. Before the battle began, “the two had to take an oath that the cause for which they were to fight was just and true, and that they had nothing to do with witchcraft or magic; nor that they carried about them any herb or stone, or other kind of charm!” Annesley was able to quickly disarm Katrington, but sweat dripped down from Annesley’s helmet into his eyes, briefly blinding him, which allowed Katrington to tackle Annesley. King Richard II, who was observing the battle, then stopped the contest and proclaimed he would decide the victor, but Annesley insisted on finishing the battle. Katrington, who was exhausted from the battle, fainted. Onlookers quickly revived him by dousing him with wine and water. The onlookers also pulled off his armor, which was taken as proof of Annesley’s victory. Katrington came to, and held up his head. Annesley walked over to mock him, calling him a traitor and a perjuror, and asked if Katrington dared to continue the battle. Katrington did not answer, and the battle was proclaimed to be over. Witnesses took Katrington to his home and put him to bed. He was soon possessed by a fit of madness which lasted until nine o’ clock the next day, when he died.
Generally, the battle did not need to end in death to produce a clear victor. The loser, if an accuser, was likely to be jailed for calumny. If the loser were the accused, he could face execution and confiscation of his property.
A search of pleadings in legal research databases reveals trial by combat is still requested in the United States, even in 2018. In 2002, a man in England challenged the Driver and Vehicle Licensing Agency to provide a clerk to do battle to the death with “swords, knives, or heavy hammers” after he was fined for failing to notify the agency that he had taken his Suzuki motorcycle off the road. But is trial by combat legal in the United States? As with many questions in law, the answer is: “it depends.” The common law of Britain is often considered incorporated into American law as it existed on July 4, 1776. Some states make this incorporation explicit in their state constitution or in a statutory provision. Chief Justice Marshall, with some controversy, argued that the common law of England was and is the law of the United States, and it has been argued that the common law is incorporated into the federal constitution by the 9th Amendment as unenumerated rights.
The British Parliament did not get around to abolishing trial by combat until June 22, 1819. The impetus for the abolition that is often cited occurred when a man named Abraham Thornton was accused of the murder of Mary Ashford, who had drowned under suspicious circumstances. Thornton was acquitted, but public outrage led to an attempt to retry the case. It was then that Thornton demanded a trial by combat, and after some deliberation, the request was granted. His accuser, the brother of the deceased, was much younger and smaller than Thornton, and he wisely refused the challenge, so Thornton went free.
All this is to say that unless your state passed a statute abolishing trial by combat after 1776, it might be argued that trial by combat still exists in the common law of your state. Fortunately for litigants, but unfortunately for those of us who would like to combine the administration of justice with a pro-wrestling style smackdown, the odds of a judge granting your request for a trial by combat are probably quite small. Case in point, a lawyer appearing in a New York trial court requested judicial combat in 2016, and while the judge decided that judicial combat is still available in New York, he declined to order it. You will probably have to settle your disputes with a bench trial or a trial by jury, so you might want to prepare for discovery.
Baker, John H. An Introduction to English Legal History. 4th ed. London; Dayton, Ohio: Butterworths LexisNexis, c2002.
Ho, H.L. “The Legitimacy of Medieval Proof.” Journal of Law and Religion, Vol. 19, No. 2 (2003 – 2004), pp. 259-298.
Lea, Henry Charles. Superstition and force: essays on the wager of law, the wager of battle, the ordeal, torture. Philadelphia, 1870.
Neilson, George. Trial by Combat. Glasgow, 1890.
“Obiter Dicta.” ABA Journal, vol. 89, No. 3 (March 2003), pp. 12-14.
Pollock, Frederick. The History of English Law Before the Time of Edward I. Cambridge. University Press; Boston, Little, Brown, & Co., 1899.
Pope, Herbert. “The English Common Law in the United States.” Harvard Law Review, vol. 24, no. 1, 1910, pp. 6–30.
Smith, John Jay. Celebrated Trials of all Countries, and Remarkable Cases of Criminal Jurisprudence. Philadelphia, 1836.
Thornton, Abraham. Full Report of the Trial of Abraham Thornton for the Wilful Murder of Mary Ashford. Birmingham, 1867.
Sir Walter Scott’s Ivanhoe story line includes a trial by combat.