However, trial by combat as it became recognised in medieval
Europe was somewhat different to that practised by the Greeks,
and this is widely suspected to have its origins in the customs of
the Germanic tribes. The Roman historian Tacitus refers to trial
by combat in his Germania (though at this period it was unknown
in both Roman and Anglo Saxon law) and various Germanic legal
documents, such as the 94th chapter of the Lex Alamannorum,
outline the various rules relating to specific disputes.
Variations of single combat appear across the continent, with
one notable example being the Scandinavian ‘Holmgang’, used
by the Vikings. These took place at duelling grounds and a
payment, agreed before the fight began, would be paid to the
winner. If the winner were able to deliver a mortal blow then all
of his opponent’s goods would become his. However, as Martin
J Dougherty explains in Vikings: A History of the Norse People:
“The duelist would have to achieve a killing blow or a mortal
wound in a single strike that his opponent knew was coming.
A considerable degree of skill – or blind luck - would be necessary
for such a blow.”
It was the Norman Conquest that brought trial by combat to
British shores, and for over a century it served as the primary
method of solving land disputes and other legal cases. “Trial
by battle in England was used to decide disputes about land
ownership,” explains Professor Peter T Leeson, an expert on
bizarre laws. “Judges ordered it when the evidence was unclear
about which litigant was the rightful owner. That happened a
lot because, in the Middle Ages, the evidence available to judges
often amounted to conflicting eyewitness testimony and maybe
conflicting land charters. Since murky facts were common in land
disputes, so was trial by battle.”
The logic behind trial by combat may seem unusual in today’s
society, where much of our legal system is not centred around
Christian belief, but the basic concept was that by having a duel
the conflict was placed into the hands of God. This was because
trial by combat was more often than not used in situations
where there was not enough evidence for the court to reach
a conclusion. As Leeson writes in his paper Trial by Battle: “Trial
by battle’s ostensible justification was as simple as it was absurd.
God favoured the rightful disputant’s cause and so God would
favour that disputant’s cause in a physical fight.”
As a result, in Britain, cases of this nature often resulted
in trial by combat and the rules surrounding such a process
were fairly simple. “The judges ordered the litigants to hire
‘champions’ – professional thugs who physically battled one
another on their employers’ behalf,” Leeson explains. “The battle’s
outcome determined the legal outcome: the litigant whose
champion prevailed was declared rightful owner of the disputed
land. Battles were fought on court-appointed dates in front of
judges and spectating citizens. The champions wielded clubs
and shields. The plaintiff’s champion could win by killing the
defendant’s champion or forcing him to submit. The defendant’s
champion had a third way of winning: pushing a stalemate until
nightfall. At any point after judges ordered battle but before the
battle was over, the litigants could settle their dispute, which
overwhelmingly they did.”
One particularly bizarre and unusual form of trial by combat
was the ‘Marital Duel’, which mainly took place in the Holy
Roman Empire. Much of our evidence for this originates from a
series of illustrations, but as Allison Coudert notes in a 1985 paper
on the subject: “As far as I know, nowhere except in the Holy
Roman Empire were judicial duels ever considered fitting means
to settle marital disputes and no record of such a duel has been
found after 1200, at which a couple is reported to have fought
with the sanction of the civic authorities at Bâle.” Coudert’s theory
is that these illustrations (dating from the 14th to 16th centuries)BELOW Depiction
of a Viking
‘Holmgang’, an
early form of Trial
by Combat