Outline - Justice by Blood and Iron
Combat Manual of 1467, by Hans Talhoffer
Image 171
Original in the Bavarian State Library
"BSB Shelfmark Cod.icon. 394 a"--Note extracted from World Digital Library.
Library of Congress Control Number: 2021667792 (https://hdl.loc.gov/loc.wdl/wdl.8970)
https://www.loc.gov/resource/gdcwdl.wdl_08970/?sp=171&r=-0.255,0,1.507,0.704,0
This research is for entirely academic and educational purposes. Nothing on this blog constitutes legal advice. If you require legal advice, please contact an attorney who is able to render this service to you.
Trial by combat (trial by battle, wager by battle, etc.): The use of combat, between a restricted number of participants, as a mechanism to bring a recognized and enforceable resolution to a legal dispute (i.e. established guilt or innocence, rightful possession of property, etc.).
Theory of divine intervention: God would intervene and show his favor by allowing the righteous party to prevail.
Good example: Henry de Essex v. Robert de Montford - The Duel at Reading Abbey.
Bad Example: Thomas v. George of Northway - Vita Wulfstani (Life of Wulfstan).
Viking Iceland
Holmgang - “Island going” or “going to the island”
A general dispute resolution forum
Holmgang rules detailed in Kormack’s Saga
Variations did exist depending on the time and place, as seen in Egil’s Saga
Iceland abolished the Holmgang in 1006
Medieval England
Norman Conquest 1066
Glanvill’s Treatise on the Laws and Customs of England
Details the England approach to trial by combat in civil as well as criminal cases
Emphasizes the use of witnesses as champions in certain cases, particularly in land disputes
Approvers: Criminals who agreed to fight the accused in trials by combat
James Fyscher v. Thomas Whytehorne (1456)
14th Century France
By the mid-14th century, trial by combat was largely eliminated. To invoke it, the following elements had to exist:
The case had to be brought by a nobleman,
The crime actually occurred (there are witnesses),
The case involved a capital offence (murder, treason, rape, etc.),
It could only be invoked in the King’s Court after all other appeals were exhausted, and
The accused was widely suspected of committing the crime (some evidence threshold or believability element).
Marguerite and Jean de Carrouges v. Jacques LeGris (1386)
The last time trial by combat was successfully invoked in France on a charge of rape
15th Century Germany
Talhoffer’s manuscripts
Unorthodox weapons to bring balance to the proceeding (dueling shields)
Depictions of trial by combat between men and woman
Lasting Impacts
The adversarial nature of trials
The importance of oaths to ensure witness reliability
The state’s roll in actively prosecuting crimes
Also people keep trying to invoke it, even in the U.S.
