Posted by: Patrick Allen Foster | June 11, 2014

Trial by Combat

Game of Thrones has recently brought trial by combat to the fore. To modern eyes, trial by combat appears rather absurd — substituting brute force for rational argument to solve legal disputes.

(Since we often talk about appellate procedure here, I should mention what is perhaps my favorite example of appellate procedure, from the Medieval Kingdom of Jerusalem. There, the High Court [Haute Cour] had jurisdiction over all trials involving a noble of the kingdom, who would be tried by a panel of his fellow nobles sitting as judges. If a noble defendant disliked the verdict and judgment of the court, he could appeal by challenging his judges to trial by combat and defeating each in sequence. To my knowledge, no defendant ever actually made use of this procedure.)

At Slate, Jordan Weissmann has a post making the argument that trial by combat made a certain amount of economic sense, at least in the field of resolving disputes over real property (emphasis added):

According to Peter Leeson, a professor of law and economics at George Mason University, the English used trial by battle as their main tool for deciding property disputes from the time of the Norman conquest until 1179, at which point it began fading from use. One party could challenge another’s claim to a plot of land or fishing rights, and if the allegations seemed plausible, the authorities would order a duel in which both sides could be represented by a champion of their choosing. Despite some poorly enforced rules governing whom the plaintiff could and could not pick as their battlefield representative, in most cases both sides simply commissioned a brawler for hire. Come trial day, the champions would theoretically fight until one was killed or conceded the match by shouting “craven.” (The current property owner’s champion could also win by prolonging the fight all the way until nightfall). The winning side came away with the land, ostensibly under the theory that God was on their side.

“Trials by battle were literal fights for property rights,” Leeson wrote in a 2011 paper.

Of course, this all sounds rather barbaric and superstitious. But Leeson argues that trial by battle was a surprisingly “sensible and effective” system for assigning land rights given the regulatory constraints of the time. Norman England’s elaborate system of feudal property laws made it exceptionally difficult to buy and sell real estate. Trial by combat served as a clever workaround—a loophole that let the local government effectively auction off land to whichever bidder could make the best use of it.

Or at least award it to whoever was willing to shell out for the best muscle. Like trial lawyers today, some medieval champions charged more for their services than others, presumably because they had a solid track record of bludgeoning their opponents into submission. They also had no compunctions about working for the highest bidder. And so in a trial by combat, paying for champions took the place of paying for land.

I suppose this explanation works so far as land disputes go. (Read versions of Prof. Leeson’s paper here and here.)

But it is worth remembering that trial by combat was not limited to England, or to land disputes. Leeson’s paper appears to focus specifically on England in the decades after the Norman Conquest, but trial by combat was used for a range of disputes, at various times, across Western Europe and beyond. There is at least one recorded instance, from Visigoth Spain, of two groups of clerics using trial by combat to decide which of two rituals to use in church; each group designated a champion.* (Some land-rich monasteries kept fighters on retainer to fight their frequent judicial combats — which could help expand the land holdings of the monastery, according to the mechanism Leeson describes.)

We should also realize that, even in Europe’s darkest centuries, some people did recognize that this was a seriously flawed way of reaching a legal decision. Archbishop Agobard of Lyon, for instance, said, “If in this life the innocent were always the victors and the guilty were vanquished…Herod would not have killed John, but John, Herod.”

* Gerald Simons, Barbarian Europe (1968), p. 87.


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