Trial by Combat.

 

You might think that the Church would have approved of trial by combat. After all, it effectively remitted the cause to God’s judgement – assuming that you believe God intervenes in such affairs, as many people (presumably) did.

In fact, as far back as the Fourth Lateran Council of 1215 (Canon 18) the Church withdrew its support and forbade clerics from having anything to do with such judgements. The strong implication must be that the Church did not think such decisions were approved by God. As I understand it, one argument was that it was presumptuous to demand a miracle from God – which is what trial by combat implied.

This may be why, in 1219, England abolished trial by ordeal, and replaced it entirely with trial by jury.

However, trial by combat persisted. It was not a routine procedure, nor was it rare or obsolete. It was especially useful where a case amounted to one person’s word against another, with no witness able to support either side.

One set of circumstances where trial by combat was used was in cases of the ‘King’s approver’. This was rather similar to the later practice of ‘turning King’s evidence’. A person who was himself guilty of treason or felony could accuse others of the same crime and the matter was often (but not invariably) settled by trial by combat. To succeed the approver had to achieve the conviction of all those he accused.

For example, in 1440-41 a man accused two others of robbery. The approver defeated one of the accused in a trial by combat and that man was hanged at Tyburn. The second accused, on the other hand, ‘put himself on his country’ – that is to say, he opted to be tried by jury. He was acquitted, and in consequence, the approver was himself sentenced to hang (1)

In 1380, a youthful King Richard II presided over a trial by combat between Sir John Annesley, Knight, and Thomas Katrington, Esquire. Annesley had inherited a castle in France and accused Katrington of selling it to the French instead of fighting. Annesley disarmed his opponent but was then temporarily blinded by sweat, enabling Katrington to tackle him. The King then sought to take the quarrel into his hands, but Annesley insisted on fighting on. Katrington was eventually defeated, apparently by exhaustion. Interestingly, he was not executed, but taken home and put to bed. Allegedly he then became mad and died at nine o’clock the same day. The cause of death is not stated, but perhaps he died from wounds. (2)

The famous case of Bolingbroke v Norfolk is an example of trial by combat being used as a last resort. Neither Parliament, the Parliamentary Committee nor the Court of Chivalry, all of which considered the matter, could come up with a better solution as it was literally a case of one man’s word against another’s. Both men were not only knights but dukes and closely related to King Richard, which made it worse. Richard disappointed all those who attended (and about 99% of historians) by taking the matter into his hands and banishing both men. As it turned out, this was not a wise move on his part, but that is to view it with the benefit of hindsight. Richard may well have thought he was being merciful.

The old, the young, the disabled and women were not expected to fight themselves but were permitted a champion. In 1405 Constance of York offered trial by battle against her brother the Duke of York, and a champion stepped forward to represent her. This was a brave strategy for her to adopt for if her champion had been defeated she stood to be burnt to death. However, King Henry IV forbade the combat and so there was no outcome, except that both were imprisoned for a time without trial.

While it may seem bizarre that people believed in the concept of trial by battle as late as the fifteenth century we must note that some people still believe that conquest is a valid method of acquiring a throne. It might be argued that medieval battles, such as those in the Wars of the Roses, were merely trial by combat writ large. It should, however, be noted that the Parliament did not accept such claims because of the implications for property owners. (In principle, the conquest of the country undid all property rights, and medieval parliaments were made up of landowners.) While conquest might have been the de facto position it was not the de jure one. Parliament was quick to pass statutes to justify the claims of obvious usurpers such as Henry IV and Henry VII. Indeed, Chief Justice Thirning was at pains to tell Henry IV that a claim by conquest was unacceptable. (3)

 

 

(1) Case cited in The King’s Approvers: A Chapter in the History of English Criminal Law by Frederick C. Hamil, Speculum, Vol. 11, No. 2 (April 1936) pp. 228-258

(2) See online https://blogs.loc.gov/law/2018/09/judicial-combat-barbarous-relic-or-timeless-litigation-strategy/ Article posted by Robert Brammer.

(3) Henry IV, Chris Given-Wilson, p145.