Trial By Combat

Podcast Transcript

In the TV series Game of Thrones, there were four different seasons where disputes were determined with trial by combat.

As fictional as the Game of Thrones universe is, the idea of resolving legal disputes by fighting, sometimes to the death, was historically accurate.

For centuries, trial by combat was a legitimate option for conflict resolution, and according to some theories, it might still technically exist.

Learn more about trial by combat and how it was actually conducted on this episode of Everything Everywhere Daily.

As insane as it sounds, the idea of people fighting to determine guilt or innocence, aka truth, was actually a thing at one time.

Trial by combat, also known as a judicial duel, is an offshoot of something known as trial by ordeal. Trial by ordeal was actually common in many ancient cultures.

It would consist of having to go through some unpleasant experience, usually involving fire or water. Examples of this could include walking over hot coals, grabbing an object out of a vat of boiling water, being submerged in water, or being forced to ingest poison.

If the person could survive the ordeal or come out unscathed, they would be declared innocent. If there was an accuser, they would often be subject to the same ordeal if the accused passed.

The legal theory behind a trial by ordeal in Christian Europe was that God would protect the innocent and invoke a miracle on their behalf. However, the idea of trial by ordeal actually went all the way back to the Code of Hammurabi.

The idea of Trial by Combat is an offshoot of this. Trial by combat actually didn’t exist, as far as we know, in most ancient societies, including Rome, Babylon, Egypt, or ancient Israel.

The religious idea behind trial by combat was similar to that of trial by ordeal, but in particular, it harkened to the bible story of David and Goliath. If David could defeat the much larger Goliath in one-on-one combat, then God would allow the righteous party in any dispute to win.

The European practice of trial by combat originated with ancient Germanic tribes, including Vikings and other Nordic groups. It actually began before Christianity was introduced to the region as part of their warrior culture, and then later given a biblical justification for its practice.

The earliest actual codified writings that allow for a trial by combat date back to the Lex Alamannorum, Latin for the law of the Alamanni, which was a Germanic tribe, in the early 8th century.

The law described very formal rules for determining land disputes between neighbors.

These Germanic traditions were codified by Otto the Great and Emperor Charlamagne with the creation of the Holy Roman Empire. Despite claiming to be the heirs of the Roman Empire and adopting many Roman laws and customs, they kept Germanic traditions to appease their Germanic subjects. This included trial by combat.

Here I should note that trial by combat is not the same as dueling. Dueling was a private affair, often illegal, which took place outside of the confines of the law.

Trial by combat was the law. It was done in public with the full sanction of the government, usually in lieu of a proper trial by jury or a judge.

Via the Holy Roman Empire, the tradition of trial by combat spread throughout most of Western Europe. With the Norman Conquest of England in 1066, it was brought to Britain.

While trial by combat was an option, it wasn’t necessarily something that was evoked very often.

Despite its supposedly religious justification, the Catholic Church was never a big supporter of trial by combat. At the Fourth Lateran Council of 1215, they basically washed their hands of the entire practice of judicial dueling. A year later, Pope Honorius III asked the Holy Roman Emperor not to impose this Germanic tradition on new converts.

Even the secular authorities weren’t particularly thrilled by the idea of trial by combat. It was patently unfair. Someone larger or who was a better fighter had an obvious advantage, biblical references to David and Goliath aside.

Someone rich could just hire the best champion or even buy up all the champions in the area to ensure that they would always win any content.

England got rid of trial by ordeal in 1219 and replaced it with a trial by jury.

Nonetheless, trial by combat remained on the books almost everywhere in Europe, even though it was discouraged and seldom used.

While it was seldom used, it was occasionally used.

The most famous case of trial by combat occurred in 1386.

Jean de Carrouges was a French knight who served in several campaigns against England.

His wife was Marguerite de Thibouville, who came from a wealthy family, and her father had fought against the king of France on two separate occasions. The marriage was a way for de Carrouges to marry up and for Marguerite’s father to show his loyalty to the crown.

Marguerite was, by all contemporary accounts, also very beautiful.

Despite, and in large part because of, his fighting on campaign for France, de Carrouges had serious money problems.

De Carrouges’ rival was another nobleman by the name of Jacques Le Gris. While de Carrouges was off fighting in England le Gris stayed home and became quite wealthy.

On January 18, 1386, while de Carrouges was away his mother went to another town with her servants, leaving Marguerite alone back at their chateau.

Supposedly, Jacques Le Gris visited their chateau with one of his men, and Marguerite answered the door by herself, which was highly unusual for an upper-class woman of the time.

Le Gris claimed that he was there to inquire about a loan from her husband but then confessed that he was in love with her and wanted to have an affair behind her husband’s back.

Marguerite reportedly refused Le Gris’ advances, after which he forced himself upon her and threatened her never to tell anyone under the pain of death.

Marguerite kept the incident to herself for several days until her husband returned, when she recounted her story.

De Carrouges sought legal action against le Gris, but there were several major problems. The case would have been decided by a local noble named Count Pierre.

The problem was that le Gris was a favorite of Count Pierre, and he would probably not rule against him for personal and financial reasons. The other big problem was the only evidence was the testimony of Marguerite.

The testimony of a woman wasn’t given very much credence in 14th-century France. The case would consist of the word of Marguerite versus Jacques Le Gris, and that probably meant that Le Gris would win.

De Carrouges figured the best way to retain the honor he and his wife was to bypass the normal judicial process and appeal directly to the king. He demanded to face Jacques Le Gris in a judicial duel to determine the truth.

This was a highly unusual request even in 1386. It was so unusual that it captured the attention of the French court and became the talk of the nobility.

Each man went through a formal process of presenting their case before the king. Friends tried to convince Le Gris not to do this and seek a trial before the church, but he was adamant about following through and made a counterclaim of his own, claiming that he had been defamed.

After each side presented their case, November 27, 1386, was scheduled as the date they would fight to the death.

This became a huge event for the entire city of Paris. No one had ever seen a judicial duel before, so there was no place that was set aside for such contests.

The duel was becoming so popular that the king actually delayed it for a month because he wasn’t going to be in Paris to attend. It was now scheduled for December 29.

Thousands of people showed up to watch the duel.

This wasn’t just a duel to the death between two men. If Le Gris won, that would have implied that his testimony was true and that Marguerite had lied. She would have been guilty of perjury and would have been burned at the stake immediately.

The two men met in full plate armor, mounted on horses, wielding a lance, a longsword, a battle axe, and a dagger.

The king announced that anyone who interfered would be executed and that anyone who shouted during the fight would lose their hand.

Le Gris was knighted before the fight, so they would be of equal rank.

Both men charged each other three times on horseback until their lanced broke. On foot, they killed each other’s horses before attacking each other.

De Carrouges eventually managed to wrestle Le Gris to the ground and beat off the face make of his armor with his dagger. With the advantage, de Carrouges demanded that Le Gris confess, but he was reported to have said, “In the name of God and on the peril and damnation of my soul, I am innocent.”

At that point, Jean De Carrouges thrust his dagger into Jaques le Gris’ neck, killing him instantly.

In addition to clearing the name of him and his wife, the king also awarded him 1000 francs and an annual stipend of 200 francs per year.

It was one of the last judicial duels in French history.

There were a few more cases of trial by combat. The last confirmed case in England was in 1446 when a servant killed his master in a fight. There was another judicial duel that year in Ireland, which was the last in Ireland.

I want to end up providing you with a legal theory that some have presented which makes the claim that trial by combat is ‘technically’ still legal in the United States.

Now, I should note that I am not a fancy law-talking guy, I have never been to legal school, nor do I even watch courtroom dramas. I’m not presenting this as something that I believe, just something that I found really interesting.

As I mentioned before, while trial by combat became extremely rare, it technically remained on the books in many countries.

In 18th century Great Britain in particular, trial by combat was a part of British common law that had never been formally removed.

In fact, the last case of a trial by combat request being honored in the UK was in 1818. There was no fight because the accuser never showed up, but the request was honored.

When the United States became independent, they adopted British common law from that time. A system of common law that still allowed for trial by combat.

Since the United States was founded, there has never been a law passed that has banned or even addressed the issue of trial by combat because……why would they?

So, the argument goes, because it was part of common law when the country was founded and because it was never explicitly banned, trial by combat would still technically be legal.

Now, again, I wouldn’t try pursuing this line of argument if you should ever appear before a court unless you have a very cool judge who is also a very big Game of Thrones fan.

This has actually been brought up in court a handful of times over the years, usually half-joking, and every time it was dismissed out of hand, usually because dueling is illegal.

So, yes, trial by combat used to be a thing. It was never really practiced that often, and it was never really even supported by the powers that be at any point in time.

Yet, it did exist and on rare occasions, it was evoked. So, if you ever see Game of Thrones or some other show where a legal matter is settled by fighting, know that it was based on an actual, ancient legal principle.

Everything Everywhere Daily is an Airwave Media Podcast.

The executive producer is Darcy Adams.

The associate producers are Thor Thomsen and Peter Bennett.

Today’s boostagram comes from mtbracer over on the Fountain podcast app. They write:

with this great (department store) episode I am now caught up and can say I am a proud member of the completionist club. where do I claim the key to the exclusive bathroom? I hope there is one? the part in this show that I lived was when you explained the reason for the perfume at the entrance in stores. it makes so much sense now. I love how you explain the little details like that we take for granted. it’s those little nuggets that I deploy to amuse my friends and family. thanks so much Gary. until tomorrow…

Thanks, mtbracer! The key to the completionist club headquarters will actually now be digital. You can now use your smartphone to access the building. The doors are now equipped with NFC sensors. Make sure to wave your arms around ever few minutes because the lights are hooked up to motion sensors.

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