Editing Trial by combat (section)

=== Great Britain and Ireland ===
Wager of battle, as the trial by combat was called in English, appears to have been introduced into the [[common law]] of the [[Kingdom of England]] following the [[Norman conquest of England|Norman Conquest]] and remained in use for the duration of the High and Late Middle Ages.<ref name="QuennellP76">{{Harvnb|Quennell|Quennell|1969|p=76}}</ref>

The last certain trial by battle in England occurred in 1446: a servant accused his master of treason, and the master drank too much wine before the battle and was slain by the servant.<ref>{{Harvnb|Megarry|2005|p=65.}}</ref> In [[Scotland]] and Ireland, the practice was continued into the sixteenth century. In 1446, a trial by combat was arranged between two quarrelling Irish magnates, [[James Butler, 5th Earl of Ormonde]], and the Prior of Kilmainham, but King [[Henry VI of England|Henry VI]] intervened personally to persuade them to settle their differences peacefully.<ref name="Burton 1843">{{Cite book |last=Burton |first=Nathaniel |title=History of the Royal Hospital Kilmainham, from Its Original Foundation to the Present Time |date=1843 |publisher=William Curry & Co. |location=Dublin |pages=92–93}}</ref>

The wager of battle was not always available to the defendant in an appeal of murder. If the defendant were taken in the ''mainour'' (that is, in the act of committing his crime), if he attempted to escape from prison, or if there was such strong evidence of guilt that there could be no effective denial, the defendant could not challenge. Similarly, if the plaintiff was a woman, above 60&nbsp;years of age, a minor,<ref name="burn">{{Harvnb|Burn|1820|p=86.}}</ref> lame or blind, they could decline the challenge, and the case would be determined by a jury. Peers of the realm, priests, and citizens of the [[City of London]] (the last pursuant to their guarantee of ancient liberties under [[Magna Carta]]) could also decline the battle if challenged. If the actual battle took place, it would occur in judicial [[lists (jousting)|lists]], {{convert|60|ft|m}} square, following the taking of [[oath]]s against [[witchcraft]] and sorcery. If the defendant was defeated and still alive, he was to be hanged on the spot. However, if he defeated his opponent, or if he were able to fend off his opponent from sunrise to sunset, he would go free. If the plaintiff said the word ''craven'' ("I am vanquished") and gave up the fight, he was to be declared infamous, deprived of the privileges of a freeman, and was liable for damages to his successful opponent.<ref>{{Harvnb|Hall|1926|pp=44–45.}}</ref>

==== Middle Ages ====
The earliest case in which wager of battle is recorded was ''Wulfstan v. Walter'' (1077),<ref name="thayer1891">{{Cite journal |last=Thayer |first=James B. |author-link=James Bradley Thayer |date=15 May 1891 |title=The Older Modes of Trial |journal=[[Harvard Law Review]] |volume=5 |issue=2 |pages=66–67 |doi=10.2307/1321424 |jstor=1321424 |quote=The earliest reference to the battle, I believe, in any account of a trial in England, is at the end of the case of Bishop Wulfstan v. Abbot Walter, in 1077. The controversy was settled, and we read: 'Thereof there are lawful witnesses ... who said and heard this, ready to prove it by oath and battle.'}}</ref> eleven years after the Conquest. Significantly, the names of the parties suggest that it was a dispute between a [[Anglo-Saxons|Saxon]] and a [[Normans|Norman]]. The ''[[Tractatus de legibus et consuetudinibus regni Anglie|Tractatus of Glanvill]]'', from around 1187, appears to have considered it the chief mode of trial, at least among [[Aristocracy (class)|aristocrats]] entitled to bear arms.<ref>{{Cite book |last=White |first=Edward Joseph |url=https://books.google.com/books?id=LoJDAAAAIAAJ&pg=PA128 |title=Legan Antiquities: A Collection of Essays Upon Ancient Laws and Customs |date=1913 |publisher=F.H. Thomas law book Company |isbn=1-110-36250-1 |page=128 |access-date=14 August 2016 |archive-date=8 March 2024 |archive-url=https://web.archive.org/web/20240308055752/https://books.google.com/books?id=LoJDAAAAIAAJ&pg=PA128#v=onepage&q&f=false |url-status=live }}</ref><ref>For an extensive list of cases of trial by battle from this time, see [https://books.google.com/books?id=kYVpuAAACAAJ Bigelow's Placita Anglo-Normanica (1066–1195)] {{Webarchive|url=https://web.archive.org/web/20240308055800/https://books.google.com/books?id=kYVpuAAACAAJ |date=8 March 2024 }}.</ref>

Around 1219, [[Jury trial|trial by jury]] replaced trial by ordeal, which had been the mode of proof for crown pleas since the [[Assize of Clarendon]] in 1166. With the emergence of the legal profession in the thirteenth century, lawyers, guarding the safety of the lives and limbs of their clients, steered people away from the wager of battle. A number of [[legal fiction]]s were devised to enable litigants to avail themselves of the jury even in the sort of actions that were traditionally tried by wager of battle. The practice of averting trial by combat led to the modern concept of attorneys representing litigants.{{citation needed|date=January 2020}}

Civil disputes were handled differently from criminal cases. In civil cases, women, the elderly, the infirm of body, minors, and—after 1176—the clergy could choose a jury trial or could have champions named to fight in their stead. Hired champions were technically illegal but are obvious in the record. A 1276 document among [[Richard Swinefield|Bishop Swinefield]]'s household records marks a promise to pay Thomas of Brydges an annual retainer fee for acting as champion, with additional stipend and expenses paid for each fight.{{sfn|Neilson |Sereni |2009|pp=46–51}} In criminal cases, an approver was often chosen from the accomplices of the accused or from prison to do the fighting for the crown. Approvers sometimes were given their freedom after winning five trials but sometimes were hanged anyway.{{sfn|Neilson |Sereni |2009|pp=42–45}}

In practice, a person facing trial by combat was assisted by a [[Second (duel)|second]], often referred to as a [[squire]]. The role of the squire was to attend the battle and to arrange the particulars of the ceremony with the opposing squire. Over time, squires would meet and resolve disputes during negotiations over combat. Ample time was made for this by creating a process for checking the saddle and bridle of horses for prayer scrolls and enchantments and requiring litigants to exchange gloves (the origin of "[[wikt:throw down the gauntlet|throwing down the gauntlet]]") and sometimes to go to separate churches and give five [[Penny (English coin)|pence]] (for the five wounds of Christ) to the church.

Early trials by combat allowed a variety of weapons, particularly for knights. Later, commoners were given [[war hammer]]s, [[cudgel]]s, or [[quarterstaves]] with sharp iron tips. The duelling ground was typically sixty feet square. Commoners were allowed a rectangular leather shield and could be armed with a suit of leather [[armour]], bare to the knees and elbows and covered by a red [[surcoat]] of a light type of silk called ''sendal''.{{sfn|Neilson |Sereni |2009|page=159}} The litigants appeared in person. The combat was to begin before noon and be concluded before sunset.

Either combatant could end the fight and lose his case by crying out the word "Craven!",<ref name=QuennellP76 /> from the [[Old French]] ''cravanté'', "defeated", which acknowledged "(I am) vanquished." The party who did so, however, whether litigant or champion, was punished with [[outlaw]]ry. Fighting continued until one party was dead or disabled. The last man standing won his case.

By 1300, the wager of combat had all but died out in favour of trial by jury. One of the last mass trials by combat in Scotland, the ''[[Battle of the Clans]]'', took place in [[Perth, Scotland|Perth]] in 1396. This event took the form of a pitched battle between teams of around thirty men each, representing [[Clan Macpherson]] and [[Clan Davidson]], on the [[North Inch]] in front of King [[Robert III of Scotland|Robert III]]. The battle was intended to resolve a dispute over which clan was to hold the right flank in an upcoming battle of both clans (and several others) against Clan Cameron. The Clan Macpherson is thought to have won, but only twelve men survived from the original sixty.<ref name="Gunn">{{Cite web |last=Gunn |first=Robert M. |year=1998 |title=Clan Battle of 1396 |url=http://members.aol.com/skyewrites/1396.html |archive-url=https://web.archive.org/web/20070717032019/http://members.aol.com/skyewrites/1396.html |archive-date=17 July 2007 |website=Scottish Event & Historical Timeline}}</ref>

==== 16th century ====
The last trial by combat under the authority of an English monarch is thought to have taken place during the reign of [[Elizabeth I of England|Elizabeth I]] in the inner courtyard of [[Dublin Castle]] in Ireland on 7 September 1583. The dispute was between members of the [[Sept (social)|sept]] of [[O'Connor Faly]]  from King's County (modern [[County Offaly]]), who were persuaded by two judges (referred to in the account below) to bring the matter before the [[Privy Council of Ireland|Irish privy council]] for resolution.

The dispute probably concerned dynastic power within the territory of the O'Connors, and the parties, Teig and Conor, had accused each other of treason; the privy council granted their wish for trial by combat to take place on the following day, and for another such trial between two other members of the same sept to take place on the Wednesday following. The first combat took place as appointed, with the combatants "in their shirts with swords, targetts and skulles". An account of the proceedings as observed by one of the privy councillors is given in the [[State papers]] Ireland 63/104/69 (spelling adapted):

{{Blockquote|The first combat was performed at the time and place accordingly with observation of all due ceremonies as so short a time would suffer, wherein both parties showed great courage by a desperate fight: In which Conor was slain and Teig hurt but not mortally, the more was the pity: Upon this Wednesday following Mortogh Cogge [O'Connor] appeared in the same place brought by the captains to the listes, and there stayed 2 hours making proclamation against his enemy by drum and trumpet, but he appeared not&nbsp;... The only thing we commend in this action was the diligent travail of Sir [[Lucas Dillon (judge)|Lucas Dillon]] and the [[Master of the Rolls (Ireland)|Master of the Rolls]] {{bracket|[[Nicholas White (lawyer)|Nicholas White]]}}, who equally and openly seemed to countenance the champions, but secretly with very good concurrence, both with us and between themselves, with such regard of her Majesty's service, as giveth us cause to commend them to your Lordships.}}

The [[Annals of the Four Masters]] also refers to the trial and censures the parties for having allowed the English to entice them into the proceedings. It is also referred to in [[Raphael Holinshed|Holinshed's chronicles]]. This was a trial not at common law but under consiliar jurisdiction.

==== Modern era ====
It is uncertain when the last actual trial by battle in Britain took place. While some references speak of such a trial being held in 1631, records indicate that King [[Charles I of England|Charles&nbsp;I]] intervened to prevent the battle.{{sfn|Neilson |Sereni |2009|p=326}} A 1638 case is less clear: it involved a legal dispute between Ralf Claxton and Richard Lilburne (the latter the father of [[John Lilburne]]). The king again stepped in, and judges acted to delay proceedings.{{sfn|Gardiner|2000|p=249}}{{sfn|Neilson |Sereni |2009|p=326}} No record survives of the outcome of the case, but no contemporary account speaks of the trial by battle actually taking place.<ref>{{Harvnb|Mackenzie|Ross|1834|loc=[https://books.google.com/books?id=hzlNAAAAMAAJ&pg=PA300 p. 300]}}</ref><ref>{{Harvnb|Megarry|2005|pp=63–64.}}</ref> The last certain judicial battle in Britain was in Scotland in 1597, when Adam Bruntfield accused James Carmichael of murder and killed him in battle.<ref name="three">{{Harvnb|Megarry|2005|p=66.}}</ref>

Proposals to abolish trial by battle were made in the 17th century, and twice in the 18th, but were unsuccessful.<ref>{{Harvnb|Megarry|2005|p=62.}}</ref> In 1774, as part of the legislative response to the [[Boston Tea Party]], Parliament considered a bill that would have abolished appeals of murder and trials by battle in the American colonies. It was successfully opposed by Member of Parliament [[John Dunning, 1st Baron Ashburton|John Dunning]], who called the appeal of murder "that great pillar of the Constitution".<ref>{{Harvnb|Shoenfeld|2001|p=61.}}</ref> Writer and MP [[Edmund Burke]], on the other hand, supported the abolition, calling the appeal and wager "superstitious and barbarous to the last degree".<ref>{{Harvnb|Shoenfeld|2001|p=62.}}</ref>

The ''writ of right'' was the most direct way, in the common law, of challenging someone's right to a piece of [[real property]]. The ''[[criminal appeal]]'' was a private [[Criminal law|criminal]] [[prosecution]] instituted by the accuser directly against the accused. It was not, unlike the contemporary appeal, a proceeding in a court of superior jurisdiction reviewing the proceedings of a lower court.

Such a private prosecution was last conducted in the case of ''[[Ashford v Thornton]]'' in 1818.<ref>{{Cite web |title=Abraham Thornton |url=http://www.exclassics.com/newgate/ng574.htm |access-date=14 August 2016 |website=[[The Newgate Calendar]] |publisher=The Ex-Classics Web Site |quote=Acquitted on a Charge of murdering a Girl, and on being rearrested claimed Trial by Battle, April 1818 |archive-date=26 August 2017 |archive-url=https://web.archive.org/web/20170826074130/http://www.exclassics.com/newgate/ng574.htm |url-status=live }}</ref> Pronouncing judgment in favour of the accused's plea claiming the wager of battle, Justice Bayley of the [[Court of King's Bench (England)|King's Bench]] said that:

<blockquote>One inconvenience attending this mode of proceeding<ref>[http://www.languageandlaw.org/TEXTS/TRIAL/BATTLE.HTM outlined here] {{Webarchive|url=https://web.archive.org/web/20210321210729/http://www.languageandlaw.org/TEXTS/TRIAL/BATTLE.HTM |date=21 March 2021 }} by [[William Blackstone|Sir William Blackstone]]</ref> is, that the party who institutes it must be willing, if required, to stake his life in support of his accusation.<ref>{{cite CommonLII|litigants=Ashford v Thornton |link=Ashford v Thornton |reporter=ER |year=1818 |num=3 |volume=106 |firstpage=149 |pinpoint=457 |parallelcite=[https://books.google.com/books?id=eugvAAAAIAAJ&pg=PA405 1 B. & Ald. 405] |courtname=[[Court of King's Bench (England)|Court of King's Bench]] |juris=UK}}</ref> </blockquote>

[[Parliament of the United Kingdom|Parliament]] abolished wager of battle the following year, in February 1819, in an Act ([[Appeal of Murder, etc. Act 1819]]) introduced by the Attorney General [[Samuel Shepherd]].<ref>{{Cite web |title=SHEPHERD, Samuel (1760–1840), of 38 Bloomsbury Square, Mdx. {{!}} History of Parliament Online |url=http://www.historyofparliamentonline.org/volume/1790-1820/member/shepherd-samuel-1760-1840 |access-date=12 July 2019 |website=www.historyofparliamentonline.org |archive-date=23 July 2019 |archive-url=https://web.archive.org/web/20190723062717/https://www.historyofparliamentonline.org/volume/1790-1820/member/shepherd-samuel-1760-1840 |url-status=live }}</ref> At the same time, the writ of right and criminal appeals was also abolished.<ref>{{cite wikisource|Appeal of Murder, etc. Act 1819}}</ref>

In more recent times, members of the [[sovereign citizen movement]] and other novel legal theorists have occasionally claimed that the right to trial by battle still holds: such as mechanic Leon Humphries, who challenged the [[Driver and Vehicle Licensing Agency|DVLA]] to "raise a champion" over a £25 SORN fine.<ref>{{Cite web |date=2002-11-02 |title=Magistrates decide on trial by combat |url=https://www.ipswichstar.co.uk/news/21994495.magistrates-decide-trial-combat/ |access-date=2025-04-25 |website=Ipswich Star |language=en}}</ref>