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Another new academic year? Let’s have some fun again!
There’s a lot to love about the HBO series Game of Thrones (final season notwithstanding). Fans will argue that the finest scenes, including the trial of Tyrion Lannister, culminated in a passionate demand for trial by combat.
It might surprise you to hear that trial by combat was a real thing that happened in medieval Britain.
Also known as a ‘wager of battle’ in the UK and Ireland, trial by combat was a method of settling accusations in the absence of witnesses or a confession. Two parties in dispute, or their nominated ‘champions’, would fight in single combat where the winner would be proclaimed to be right. It was, essentially, a judicially sanctioned duel.
So while modern legal battles may be antagonistic and acrimonious, at least parties don’t resolve disputes using deadly weapons.
It appears to have been introduced into common law by William the Conqueror following the Norman Conquest of England in 1066 as an alternative way to prove one’s innocence rather than face trial.
The thinking behind this was that God would decide and back who was right so that they’d win, similarly to how Tyrion Lannister would “let the gods decide [his] fate”.
The earliest recorded case of a trial by combat was Wulfstan v Walter in 1077, 11 years after the Conquest. The parties’ names suggest that the dispute was between a Saxon and Norman, though details of the dispute are hard to come by!
Instead of participating in the trial themselves, parties could nominate ‘champions’ to participate on their behalf.
Even if the parties in dispute are not physically partaking in the trial, they’re still bound by the outcome of the trial and whatever sentence was given would stand.
Often parties would hire champions to fight on their behalf and typically the better champions were more expensive, and therefore more likely to win. This led to them also being described by some authors and historians as “violent auctions”, particularly in instances of land disputes.
Champions may also volunteer themselves or there may be an agreement in place, whether transactional or by an obligation, mutual or otherwise, to a person of a higher status such as a monarch (known as a vassal).
After a time, it became law that both parties in dispute must be represented by champions in a trial by combat.
Around 1291 trial by ordeal (essentially a trial by torture) was replaced by trial by jury. The lawyers who guarded the safety and wellbeing of their clients steered people away from the wager of battle. By 1300 the wager of battle had all but died out in favour of trial by jury.
The last certain trial by combat in Britain was in Scotland in 1597. Adam Bruntfield accused James Carmichael of murder, and Carmichael was killed by Bruntfield in the ‘trial’. This is according to the late barrister and legal academic Sir Robert Megarry in his 2005 book A New Miscellany-at-law: Yet Another Diversion for Lawyers and Others.
Despite this, proposals to abolish trial by combat were unsuccessful in the 17th and 18th centuries. It was only in February 1819 that trial by combat was officially abolished in an Act of Parliament introduced by the then Attorney General Samuel Shepherd.
In 2002 60-year-old Leon Humphreys from Suffolk was fined £25 for a minor motoring offence. He believed that under European Human Rights Legislation at the time he had the right to fight a champion nominated by the Driver and Vehicle Licensing Agency (DVLA) and claimed that a trial by combat would’ve been a reasonable way to settle the dispute.
Despite many agreeing that this ‘right’ is, to put it mildly, ridiculous, magistrates sitting at Bury St Edmunds court still heard this matter and decided against Mr Humphreys. A spokesperson for the court said, “I am not aware that anyone has the right to demand trial by combat these days”. Mr Humphreys was then fined £200 and ordered to pay £100 in costs. Turns out that simply paying the fine would have saved Mr Humphreys £275.
This is hardly surprising given that the last certain trial by combat was some 430 years ago, and parliament abolished trial by combat some 200 years ago. So, all Mr Humphreys succeeded in doing was wasting the time of the court and the DVLA. But hey, live and learn, right!
We’ve come a long way since then, which isn’t surprising given how much society can evolve and change over a millennium. Our justice system is one of the most respected in the world, so much so that many overseas parties apply to have disputes heard in English courts. Substantive English common law is clear, fair, predictable, based on precedent and has always been flexible and adaptable to meet the challenges of our ever-changing world.
Even in a post-Brexit world, the mutual recognition and enforcement of judgments in our courts overseas continues, whether under continuing bilateral treaties or by comity (nations associating for mutual benefit).
And I have little doubt that if private individuals decide amongst themselves to partake in a trial by combat similar to the above to resolve a dispute, it would still result in a trial. Only it would be a trial for something much more serious and life changing than a land or property dispute!
So, while trial by combat might make for an exciting scene in a period drama, thankfully that is where it will stay for us in this country: in fiction.
So sheathe your swords and ready your books, because in a civilised society, the pen truly is mightier than the sword!