originally published September 11, 2013
When I was young, there were no sassy, quick-witted judges on TV dispensing justice with a scalding tongue, a brash and almost audible fart of morality, and a slick delivery that prompts the gallery to explode in high-fives. We had no Judge Judy, we had no Judge Joe Brown. Sure, we had Harry Anderson on Night Court, but we’d all seen him as the con-artist/magician on Cheers. We knew he wasn’t real. We had Judge Wapner and that was that.
Televised justice needed a little splash of showmanship, and I suppose that’s what we’ve got now. According to The Running Man we’ll be watching criminals engaging in gruesome battles with themed opponents as a prime-time spectacle by 2019. I don’t want to cast aspersions on the veracity of an Arnold Schwarzenegger film, but I don’t think we’ll get there in the next six years.
I guess that’s a good thing, despite the ratings it would draw. But you never know. Trial by combat has been a part of western civilization for a much larger chunk of history than I’d suspected. It could find its way back.
The concept of trial by combat appears to have originated with the Germanic peoples of northern Europe. To be clear, this doesn’t necessarily mean Germany; the term ‘Germanic’ was used by the Holy Roman Empire to refer to any and all the wandering tribes of Europe who were less put-together than the Celtic Gauls over where France is today. So we can blame this weirdness on the ancestors of modern Germans, Swedes, Danes, Austrians, Dutch, and so on. But for simplicity let’s just pin it on the Holy Romans, who let the tradition continue.
The Sachsenspiegel, a law book penned around 1220, states that a judicial duel is a great way to establish guilt in a case involving insult, injury or theft. If the accused doesn’t show up to face the charges, the accuser may execute two cuts and two stabs against the wind, and that’ll count as a win in his favor. You can see how this particular system of justice might be a touch unfair to weaker folks or fat guys.
An anonymous legal code called the Kleines Kaiserrecht, which dates back to around 1300, makes a note of this and forbids judicial duels. Despite this little glimmer of common sense, the notion of establishing guilt or innocence via bloodshed continued to be a fixture of legal systems throughout the following few centuries.
After the Norman conquest in the 11th century, trial by combat showed up on the books as a part of common law, setting the tone for the rest of the Middle Ages. It wasn’t a mandatory thing – the blind, the lame, and of course women and children could decline a trial by combat, and naturally someone actually caught in the act of murder would never be given the option.
After taking an oath against witchcraft and sorcery (which is a shame; those battles would have been far more entertaining), the accused and accuser would hack and slash until someone lost. If the accused died, he or she was guilty. If they lived but were defeated, they’d be hanged. If they won, they’d be considered innocent. Though if the crime was murder by masterful swordsmanship, an ‘innocent’ ruling would seem a little suspect, wouldn’t it?
It wasn’t until Elizabethan times that the court stopped insisting upon trial by combat when the situation fit. King Charles I notably intervened to prevent such a spectacle in 1631. This is when proposals to end the practice began trickling into parliamentary discussion, though nothing was done.
The French – ever the civilized ones – shut down the practice in 1386. In Italy, a combat trial was put into play when innocence or guilt couldn’t be proven in a court of law. The one advantage given the defendant, the one little piece of fine print that was supposed to prevent this law from enabling the strong to bully the weak, was that the accused got to choose the weapons. Also, if the defendant could fend off the accuser’s attack until sundown he automatically got a not-guilty pass.
The final straw in England came in 1818, when Abraham Thornton was accused of murdering Mary Ashford. The public hated Thornton but he was acquitted by a jury. Then, Mary Ashford’s brother launched an appeal and Thornton claimed he had the legal right to trial by battle. The court did a little digging and realized that nobody had thought to tweak English law and officially prohibit this loophole. Despite no one having poked at this loophole in close to 200 years, the battle was allowed to happen.
So here’s poor Bill Ashford. His sister was murdered, and he feels extremely confident that the evidence is pointing at this schmuck they’ve got locked up awaiting trial. Now either Bill has to enter into a bloody battle to the death with the guy, or else Abe Thornton gets to walk. Bill was a farmer, not a warrior. He begrudgingly declined to battle Thornton, and so the defendant was set free. The following year, trial by combat was wiped off the books officially.
And that should be the end of the trial by combat discussion in England, except of course it isn’t. In 2002, when a 60-year-old mechanic named Leon was fined £25 for failing to notify the Driver & Vehicle Licensing Agency that he’d removed his motorcycle from road usage, he insisted that he be allowed under medieval law to choose trial by combat. He graciously invited the DVLA to select their own champion. The court of magistrates that had to sit through this request paused a moment to contain their derisive laughter, then turned down Leon’s request, tacking on an extra fine and court costs for being a bit of a dick.
While America is known for having the occasional duel sprinkle its history books, there hasn’t been any official trial by combat occurrences on this side of the Atlantic. But a quick look at the law books would suggest that it is possible. The U.S. of A. adopted English common law when the thirteen colonies broke up with the crown, and because trial by combat wasn’t officially scrubbed from British legal books until 1819, that means that technically it could happen in the US today. It won’t, but it could.
Maybe Arnie was right. Maybe we should stay tuned for when televised justice gets really interesting.