Trial by Combat

One of my favorite law journals is the Green Bag:An Entertaining Journal of Law. The journal publishes lighthearted and interesting pieces, such as Brian Garner’s criticism of law review footnote practices about which I posted here and a micro-symposium on Orin Kerr’s “A Theory of Law."

The over-attentive reader (or normally-attentive citechecker) will note that the full title of the journal is “The Green Bag 2d.”   This is because the journal was inspired by the “original” Green Bag, a legal magazine that was published between 1889 and 1914.  Last year, I stumbled upon UCLA Law Library’s collection of these older volumes and.  Upon seeing the journal’s full title of “The Green Bag: A Useless but Entertaining Magazine for Lawyers,” and desperate for something to distract me from my impending finals, I began reading through some of the earlier volumes.

In my reading, I came across a number of quirky articles about legal history.  I will occasionally post about some of the more memorable articles I found.  While these articles’ primary goal seems to be to highlight historical curiosities, I have found that they also provide a unique perspective on modern law.  They also make you look smart if you discuss them at parties.  My first post on one of these articles follows the jump.

Today’s post is about Trial By Battel, published in 1890 in the second volume of The Green Bag.  (Full citation: Marland C. Hobbs, Trial by Battel, 2 Green Bag 104 (1890)).  The article can be located on HeinOnline here, but I am not aware of any alternate version that is free to access.  This article was written by Marland C. Hobbs, somebody with whom I am unfamiliar.  Some cursory research indicates that he was on the editorial board of the first volume of the Harvard Law Review and was editor-in-chief the following year.

In this article, Hobbs describes the historic practice of trial by combat:

Trial by battel -" an unchristian as well as a most uncertain method of trial," as Sir William Blackstone tersely describes it-was introduced into England by the chivalrous, battle-loving Normans. It was used in only three cases, - trials of writs of right, appeals of felony, and in the court of chivalry. In the last two the parties appeared in person; in the first, by champions. For the combat, a level piece of ground was set out, sixty feet square, enclosed with lists. On one side sat the justices of the Court of Common Pleas, attired in their scarlet robes, with the learned sergeants of the law near by, to lend Dignity to the scene. When the court sat, which in those early days was at sunrise (Heaven save the mark! ), proclamation was first made for the parties and their champions.  Then the champions, armed with staves an ell long, and protected with leather armor and leather targets, with red sandals on their feet, and bare legs, arms, and head, were escorted into the lists by two knights.  Having sworn to the truth of the cause, and having taken an oath against sorcery and witchcraft, the champions then fell upon each other, bound to fight till the stars came out, or till one or the other was defeated or forced to cry "craven." If the combat turned out a drawn battle, the demandant failed; for the tenant, having maintained his ground, could retain possession of his land.

Those observing the proceeding sometimes took a more active role than observers do in modern trials.  Recounting a battle where both champions fell at the same time, Hobbs describes the reaction of the crowd:

The friends of the tenant, who were out in great force, fearing that the issue might be against them, drew their swords, broke through the line of soldiers, and surrounded the two fallen men. The champion of the demandant was unable to rise, the horses were made to trample upon him, and when he was nearly beaten to a jelly he was proclaimed a recreant. The soldiers were unable to cope with the crowd, and the justices left the grounds without any attempt to bring the proceeding to a legal termination. It was of such trials, perhaps, that Glanville, the great lawyer of Henry II., naively admits that the “issue was not always in accordance with justice."

What of modern instances of trial by combat? 

Although the trial seems to have fallen into "innocuous desuetude " early in the seventeenth century, it was never abolished by statute. So, in 1818, in the reign of George III., we find a defendant taking advantage of the existence of the old law. In that case, Ashford v. Thornton, i B. & Ald. 405, an appeal of felony, the appellee, we read, " pleaded as follows: 'not guilty, and I am ready to defend the same by my body.'  And thereupon taking his glove off, he threw it upon the floor of the court." Such a proceeding seems more in accord with the spirit of the middle ages than with the civilization of the nineteenth century. However, the Court of the King's Bench was equal to the emergency. Lord Ellenborough, the Chief-Justice, delivered his opinion as follows: "The general law of the land is in favor of the wager of battel, and it is our duty to pronounce the law as it is and not as we may wish it to be. Whatever prejudices therefore may justly exist against this mode of trial, still, as it is the law of the land, the court must pronounce judgment for it." The counsel for the appellant, after this opinion, stated that he prayed for no further judgment, and the prosecution was stopped.

Here was an excellent opportunity for a revival of the old practice; but Parliament, fearing a rapid extension of the old method of trial by battel, stepped in and by the Act of 59 Geo. III. C. 46, abolished it forever.  After a sleep of several hundred years, the old law had been revived in England only to receive its death-blow at the hands of advancing civilization.

As for the United States, the availability of trial by combat remains unclear:

It is said that quite recently in Pennsylvania a ruling was given in favor of the plaintiff, sustaining some obsolete technicality.  Thereupon the defendant, being a firm believer in consistency, claimed that if mediaeval practices were to be enforced at all they should be enforced in loto, and accordingly he demanded trial by battel. As the defendant was a diminutive Dutch tailor, the point was not pressed, however, and the Pennsylvania court was relieved from what might have been a painful predicament.