From Denmark the custom spread to Norway, home of the Vikings. The latter may have brought it to Muscovite Russia, as well as Iceland, which was known as the Wild West of the Scandinavian world during the Middle Ages.8 At issue were disputes over land and − how could it be otherwise? − women. It also reached England, though whether this was before or after 1066 is moot.9 William the Conqueror decreed that persons accused of perjury, murder, homicide, or robbery would be allowed to defend themselves as they preferred, i.e. either by the ordeal of carrying the hot iron or by combat. By the time of Domesday Book (1086) disputes over land could be settled “vel bello vel judicio” − either by combat or by ordeal.10 Special regulations were made to cover cases when Normans challenged Englishmen, or the other way around. To this day, some circular plots on the Shetlands are known as battle punds (pounds), or enclosures.
It was from the Latin word calumnies, meaning false accusation, that the term “challenge” was derived. Challenges could arise not merely from civil cases, as one would expect, but from criminal ones too. In the words of a late nineteenth-century English historian whose work appears to be the only full-length study of the subject, the method was
a remedy for nearly every wrong that flesh is heir to. Nothing was too high for it, nothing too low. It would establish the virtue of a queen, test the veracity of a witness, or re-argue the decision of a judge; it would hand a disputed point of succession, give a widow her dower, or prove a questioned charter. It was also used to settle issues arising out of debts.11
As well as serving as a substitute for a trial, combat could take place as a result of it and as a follow-up on it. That was because contemporary convention permitted a defendant to accuse one of his judges, who in a seigniorial court would be his peers, of “false judgment,” and demand the right to fight him. Naturally not all judges relished the thought of having to uphold their verdict in this style. To avoid doing so, they might very well deliver it collectively.
In England trial by combat was only allowed in cases when the litigants were of equal rank. Thus a lord could not fight his vassal or a master his servant. The one exception to this rule was treason. In Wales, a country with many peculiarities (in case of a challenge, twins counted as a single person so that two persons fought one), things were reversed: here it was considered that, in case of treason, trial by combat was the only mode of prosecution befitting a lord’s dignity. In Germany any man could challenge any other who was his equal by birth. But whereas a superior, challenged by an inferior, could refuse the challenge, the opposite did not apply. It was possible to challenge a dead man, but a challenge delivered after the clock had struck twelve was invalid unless the proceedings had started earlier in the day.12 French noblemen were allowed to challenge villeins, but only on condition that they used the villeins’ weapons, i.e. a staff and a shield, and fought on foot. Understandably few chose to do so.
Other restrictions also applied. Making clergymen fight had always been problematic, and in England at any rate they were formally exempted from 1176 on. This put them on a par with women, men under fourteen or over sixty years old, and disabled men. The rules that governed such cases were extremely detailed. They referred to physical defects such as the loss of an eye or an ear, or crooked fingers, or a broken arm. For obvious reasons, castration too was considered a handicap. So was being without teeth, given how useful they were in a fight. Some jurists went further still, distinguishing between different kinds of teeth such as front teeth and molars: the loss of the former constituted “mayhem” whereas loss of the latter did not. The rules in question acted like a one-way street. Though some people did not have to fight if challenged, there was nothing to prevent them if they chose to do so. At least one English case is known when a man of seventy insisted on his right to do combat. He succeeded in obtaining the court’s permission to do so, whereupon his opponent promptly withdrew.13
In England persons who had gained an exemption from combat were tried by a jury of their neighbors, whereas in other countries holding the trial was the task of the responsible magistrates. In all countries, defendants unable to obtain an exemption but unwilling to fight would have to find a champion who would take their place. In theory, paying a champion was prohibited by law. In practice it went on all the time, giving rise to a class of professional champions ready to answer challengers. Early in the thirteenth century a certain William Copeland is mentioned in connection with no fewer than eight combats that were held in places as far apart as Yorkshire and Somerset over a period of seventeen years. Others had even longer careers.14 By that time such men had become sufficiently numerous for “Champion” to serve as a well-known surname. The same happened in Germany where they were known as Kempfs. Like gladiators, Kempfs and champions were not highly regarded, socially speaking. Paradoxically in view of their calling, they might even suffer from curtailed legal capacity.15 Either they would charge on a case-by-case basis or be put on a retainer. Here and there a master might try to use his servants as champions by inciting them to serve separate complaints against his rival whom he did not care to fight in person. Understandably such practices, if they were discovered, were not exactly favored by the courts.
Jews, too, formed a category of their own.16 Both Charlemagne and his son Louis the Pious issued capitularies that exempted Jews from having to undergo ordeals by fire and by water. Yet neither ruler specifically mentioned trial by combat. One tenth-century case is known when a convert to Christianity accused the Jewish community of Limoges of “destroying” (leshahet, in Hebrew) the local lord and demanded that they send a champion to fight it out with him. He refused to accept the Jewish offer of “lots of money, gold and silver,” but since the manuscript that is our sole source is incomplete we do not know how the story ended. The issue must have continued to preoccupy contemporaries, for it is mentioned in two thirteenth-century German sources, the Schwabenspiegel and the Meissner Rechtbuch. The former denies a Jew the right to challenge a Christian but obliges him to answer a challenge issued by a Christian. The latter grants Jews the right to judicial combat, but only with the aid of a champion.
In 1244 we find the Duke of Austria not only exempting Jews from having to fight but promising to provide them with a champion in case they suspect somebody of having murdered one of their own number. It is worth adding that the laws in question were not intended to favor the Jews. To the contrary: one thirteenth-century commentator on the Sachsenspiegel explains that whereas weapons were forbidden to priests because of their honor, Jews were barred from using them owing to the ignominy in which they lived.17 Around 1285 in England, a poor Jew who had apparently been accused of something and challenged to battle asked to do it in London because of the bias he expected in Oxford. Nothing seems to have come of it, however, since at the time when Edward I expelled the Jews five years later he was still in prison.18
A prominent feature of most modern legal systems is the use of state witnesses. Normally they are lesser criminals who are promised less severe punishment or immunity in return for testifying against their former, presumably more important, bosses and accomplices. During the period under consideration a similar function was sometimes filled by so-called approvers − convicted criminals who agreed to meet a number of malefactors in separate duels. They were needed, one source tells us, because of the vast number of desperate criminals.19 Apparently there were even some female approvers. To ensure approvers would indeed make an appearance and fight, they were often held in prison and only released just before the fight. Those who won the number of duels specified in their contracts received a pardon; those who were killed died; and those who surrendered often also died. Cynics might say that the system made use of undesirables to take care of other undesirables and that a better method for getting rid of undesirables remains to be devised. In practice it led to numerous cases of false accusation, which is why it was gradually abolished from about 1300 on.
As in ordinary courts of law, a detailed set of rules was
developed over time specifying how to proceed. The first step was to issue a challenge. This was done formally by one side throwing down a gauntlet and the other picking it up, all in the presence of judges authorized for the purpose. Next, both parties had to find friends or neighbors who would stand bail in case they failed to present themselves: those who did so lost their cases and were heavily fined as well. Originally it was the challenger who had the choice of weapons, but later that privilege was transferred to the defending party. In Germany it was the judge’s duty to provide poor defendants with sword and buckler.20 The judge or judges would also decide on a time and a place. The latter was known as the champ clos or closed field. For example, London had Tothill Field and Smithfield, apparently selected for their proximity to the courts at Westminster and the prison at Newgate, respectively. Each of these provided a piece of level ground 60 yards square, double rails to hold back spectators, a dais for seating the judges, bars for the sergeants at arms, and tiered scaffolding for the public. Behind the tiers were located the tents or pavilions where the combatants could make their preparations and, if they won, or at any rate survived, retire after the fight. Most combats took place in similar public installations; however, great lords, secular and ecclesiastical, were sometimes permitted to have their own private fields and fight in them.
In all this, great care was taken to ensure equity and what today might be called transparency. Each protagonist had to swear a solemn oath that his case was just. In case he lost, that meant he would automatically be held guilty of perjury as well. Things were so arranged that neither combatant would have the sun in his eyes. The use of concealed weapons was prohibited. So was wearing magic prayers and charms on one’s body; if it is true that the combats were understood as the judgment of God, it is also true that supernatural interference was forbidden and, to the extent possible, prevented. To ensure that no illicit objects were smuggled in, the combatants were strip-searched and had their heads shaved. During the fight itself the ordinary rules of a court of law applied. For any onlooker to do anything to hinder fair play or even to make a noise was an offense; in this respect trial by combat differed sharply from single combat and combat of champions where cheers and groans were not only permitted but expected.
By Scottish law, anybody who interfered with a fight could be punished by imprisonment or else by the loss of life or limb. The thirteenth-century Sachsenspiegel prescribed the death penalty for such conduct.21 In one recorded English case of 1255, a spectator drew a combatant’s attention to a pit into which he was about to fall, possibly saving his life. Since the warning was taken up by many others the original caller could not be discovered; however, the magistrate in charge did avail himself of the opportunity to impose a fine on everybody present. As in modern soccer matches, disorder sometimes reached the point where the fight had to be discontinued. Yet the system of sureties and fines also meant that trial by combat could be very profitable for those in charge. As late as the reign of Edward I, i.e. the last quarter of the thirteenth century, it appeared to be an important source of revenue in the royal accounts.
As one might expect from a custom practiced by so many different peoples for so many years, the forms of combat varied considerably. Early Celtic and Germanic warriors probably followed their normal military methods, fighting on foot while using swords and bucklers as their weapons. Later, as cavalry established itself as the arm of the noble and the rich, some of the socially more prominent protagonists entered the field on horseback. At the other end of the scale, the poor, unable to afford proper weapons, presented themselves armed with staves, clubs, stones, and knives. A common tactic they used was to throw sand into each other’s eyes. Occasionally a woman was allowed to challenge a man, in which case she would have to hire a champion. Very occasionally a woman was allowed to fight a man, in which case the latter was handicapped by being chained to a peg in the ground or else by being buried in a pit up to his waist.22 In contrast to the gladiatorial games, and as far as I could determine from the literature, it does not appear that women were made to face women.
Unlike “nonsense fights” and some kinds of tournaments, but like single combat, combat of champions, and gladiatorial shows, the fight went on without respite or interruption. It lasted until one side was either killed or called out “craven,” meaning that he admitted defeat and “craved” the victor’s mercy. God’s “verdict” having been pronounced in this way, as in any court of law the judge or judges would pass sentence on the loser. If he was dead already his property might also be confiscated. If he was not yet dead, he might be executed. A coffin stood by to receive the body, which would later be disposed of in the most ignominious way possible. However, it is only fair to add that not all combats were fought to the death and that lighter sentences, mainly consisting of fines, were sometimes imposed. Especially in civil cases, combats that ended by one party being killed appear to have been quite rare.
Most, but not all, trials were fought on a one-against-one basis. In Germany there seem to have been occasions when seven fought against seven, apparently not in a melee but in a series of duels; however, the relevant passage in the Saxon Mirror is obscure and we do not know just how it was done and why.23 Perhaps the largest known group combat took place near Perth in Scotland in 1396. The protagonists were the clans of Chattan and Kay, though the exact cause of their quarrel has been lost. Each side mustered thirty men who were supposed to fight to the death. However, the proceedings had to be halted when it turned out that one man on the Chattan side had absconded. At length a volunteer was found who agreed to fight on condition that, should he survive, his sustenance would be guaranteed to the end of his days.
On the appointed day an immense crowd, headed by King Robert III of Scotland, gathered. With him came countless Scottish, English, and French knights. Each combatant carried a sword, a battleaxe, a dirk, and, most unusually – this, after all, was Scotland, a relatively backward country – a bow with three arrows. Defensive armor was not allowed, perhaps because few would be able to afford it. Stripped to the waist, they waited for the signal. We are told they slew each other “as butchers slay bullocks in the shambles.” As evening brought the battle to an end, fifty out of the sixty combatants lay dead and the Clan Chattan’s eight survivors had gained a victory. Tongue in cheek, our nineteenth-century historian adds: “It is not for one moment credible that these brave highlanders butchered each other in vain – to make a royal holiday.”24
Given its nature as an offense committed when no others are present, and also in view of the important role that “women’s honor” has played in the lives of all peoples at all times and places, it is hardly surprising that many cases involved rape, real or alleged. The most famous case of this kind unfolded in France in 1385–6 and is known to us from Froissart as well as numerous other sources.25 The story started when Marguerite, the young and beautiful wife of a Norman nobleman, Jean de Carrouges, told her husband that during his absence from their chateau she had been raped. The perpetrator was one Jacques Le Gris, another nobleman well known to the couple. Though inferior in rank, he was wealthier and better connected. Carrouges’ first step was to ask for justice at the hands of the local count. Having failed to get it, he went to Paris, consulted a lawyer, and begged the youthful King Charles VI to allow him to confront his enemy in a trial of battle. The matter was referred to Parliament which launched a formal inquest, and after several months’ deliberations granted the request: clearly it was felt that, in the absence of witnesses, combat was the only way to find out the truth. Preparations were made to hold the event at Saint-Martin-des-Champs, a well-known Paris monastery. Its extensive grounds included a large field long used for the purpose and capable of holding as many as 10,000 spectators.
On December 29, 1386 a huge crowd gathered. In attendance were the king, his uncles, members of the high nobility, senior prelates and magistrates, and thousands of others. The most important spectator was Marguerite herself. Dressed in black and
seated in a black carriage, she would face immediate execution (by burning) for bringing false accusations if her husband lost his fight. Carrouges approached her and asked her once again whether she had spoken the truth. Upon her answering in the affirmative, the couple kissed. Mounted on horseback and armed in the manner of knights, the protagonists entered the field. They repeated their respective charges and denials for all to see and hear, swore that their cause was just, and, heeded the herald’s thrice-repeated call, “Faites vos devoirs.” A final command, “Laissez les aller” (“Let them go”) was issued and the fight began. The third time they charged, the lances broke and the combatants took out their battleaxes. First the horse Carrouges was riding was killed, then Le Gris’ mount. Now they fought on foot, using their swords, and Carrouges was injured in the leg. He was nevertheless able to seize Le Gris by the helmet and hurl him to the ground where his armor prevented him from getting up. He was, however, so well protected that Carrouges could not kill him. The two rolled on the ground, fighting with daggers while Carrouges called on his enemy to surrender. Le Gris refused, until in the end he was killed by a stab to the chin.
The fight over, the victory ceremony could begin. First Carrouges turned and asked whether he had done his duty and was told that indeed he had. Next he approached the king and fell on his knees to thank him for graciously allowing justice to be done. Charles raised him, presented him with ten thousand francs, and made him a gentleman of the chamber with a pension of two hundred francs for life. He also ordered his own physicians to look after him. Reunited with Marguerite, Carrouges rode south from Saint-Martin-des-Champs to the church of Notre-Dame where he planned to offer his thanks to God. Meanwhile Le Gris’ corpse, stripped of armor, was carried from the field feet first. It was delivered to the public executioner who threw it on a horse-drawn sled and had it dragged to the Porte Saint-Denis and beyond the city walls to Montfaucon, the place where criminals used to be executed. There it was hanged.26
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