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THE DUEL
The Judicial Duel
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The Judicial Duel. An ancient lawful method of dispute resolution, legal in England until 1819. From Baldick, at 17. |
Although condemnation by governmental and ecclesiastical authorities progressively increased, duelling originally was a legal means of deciding disputes between two people. The “judicial duel” or combat was based on religious belief: that God would protect the party in the right by allowing him to win. The judicial duel had evolved from the earlier “ordeal” where the accused was subjected to exercises such as holding burning objects. If the burns caused by such exposure failed to heal, the accused obviously was guilty of the charge against him. Although many combats were arranged to decide criminal matters, combat also could serve as a means for resolving civil disagreements such as disputes over real or personal property. There were exemptions: women, the infirm, very young, and very old men were not required to enter combat, but could engage champions on their behalf. The judicial duel was a ceremonial affair presided over by royalty who proclaimed the victor.
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The Burgundian Code (1972 translation). The Burgundian Code of the late 5th and early 6th centuries contained the earliest known law governing the judicial duel. |
The earliest known law which governed the judicial duel is found in the Burgundian Code, an early East Germanic barbarian code promulgated in the late 5th and early 6th centuries under King Gundobald (reigned 474-516). The date of legal establishment of the trial by combat traditionally is stated as the year 501. Provisions of the Burgundian Code stated an unequivocal faith in the infallibility of God’s judgment (“...God being the judge...”) and encouragement to potential combatants not to shrink from the fray (“...it is just that if anyone shall say without delay that he knows the truth of the matter and shall offer to take oath, he should not hesitate to fight”). [3]
As trial by combat became an institution in France and England, efforts to regulate it were mounted. The Truce of God, issued by the Roman Catholic Church in 1041, forbade duels on the several days consecrated in honor of the mysteries of Christianity. Other pronouncements included Louis VII’s 1167 prohibition of all duels over claims not exceeding five sous [4]. Eventually trial by combat was permitted only in cases of serious crimes, such as murder and treason. The right to choose trial by combat existed in England until the early nineteenth century, although the practice actually had died by the late 16th century. The last claim for combat in 1817 was by an accused murderer and grudgingly was granted by the court as the defendant’s legal right. Fortuitously, circumstances did not permit the combat, and promptly in 1819 Parliament abolished the “right to appeal to the judgment of God in single combat.” [5]
