The Tournament—Its Periods and Phases

TRIAL BY COMBAT, ITS SCOPE AND HISTORY

Curiously interlinked with the procedure of the law courts, forming, indeed, an integral part of the law of the land, was the judicial duel; an institution applying to both civil and criminal jurisdiction.

It was allowed in certain cases, such as on a civil writ of right for the recovery of land, and in criminal charges of treason or felony on an appellant making a sworn declaration before a judge. This law, though falling greatly into disuse after the reign of Queen Elizabeth, remained on the statute book until early in the nineteenth century.

Among the Ashmolean, Harleian and Cottonian MSS. are many tracts, treatises and other documents relating to the laws and manner of conducting judicial duels, with other matter concerning these combats; and abstracts from the MSS. are given in Appendices E, F, and G, respectively.

The custom of trial by combat or legal duel, the ordeal of battle, was introduced into England by the Normans.[244] As far as can be ascertained it was unknown to the Anglo-Saxons, though the ordeal of hot water appears in one of Ine’s laws;[245] and, indeed, trial by ordeal appears repeatedly among the laws of the Anglo-Saxon kings. The principle involved was the same in both cases, viz. that the Almighty would not remain indifferent when solemnly invoked, but would intervene miraculously so that the ends of justice might be furthered. The simple faith of the times would act as a deterrent to appeals to the judgment of God and would thus tend to limit the number of cases. The consciousness of innocence or guilt would also contribute towards the vindication of the cause of justice in actual combat.

The proofs by fire and water (vulgaris purgatio), holding, carrying or walking over hot iron or heated plough-shares (ferri candentis judicium), being thrown into deep water, bound hand and foot, may be said roughly to have preceded that by judicial combat; but they form quite another and earlier branch of the subject. The number of cases given in history of these earlier forms of ordeal which defendants are stated to have passed through triumphantly is considerable, but most of them must surely be either apocryphal, or the intensity of the ordeals themselves was much exaggerated.

Ordeal by combat is found among the laws of nearly all the German tribes; and it flourished greatly in France until cases of more than suspected miscarriage of justice brought it into disrepute. An edict passed at Lyons in the year 501 established the institution as a regular form of trial. It appears among the ancient laws of the Swedes and Lombards.

In civil cases a claimant would declare that some ancestor of his had been in seisin of certain property but had been unlawfully deprived of it by another, and he would offer battle to the “tenant,” as the owner was then called, for its restitution, by the body of a champion. The tenant, or defendant, could then choose between an appeal to the Grand Assize, an inquest where the question of right is determined by the verdict of neighbours,[246] in which institution may be traced the germ of the more modern jury; or to the ordeal of battle, in his own body or by champion. No one was compelled to defend his seisin of a free tenement by battle, though a claimant could offer combat in the lists, which, however, might be refused by a defendant. When a civil court ordered a combat it was fought on foot in a small circular or oblong enclosure, similar to that used in the foot-fighting, with shields and staves (bastons) at a pas d’armes of the fifteenth century. The course of procedure in criminal cases for the most part differed widely from that followed in civil cases and was under quite another jurisdiction; and it largely consisted of accusations made against the honour of certain persons, or of alleged treason. It was customary for an accuser to justify his charge by an offer of single combat in the lists, “God showing the right”; and such a mode of settlement was greatly in unison with the chivalric spirit of the age. To bring such a matter to an issue an accuser offered battle by throwing down his glove, which when lifted by a defendant signified that the challenge was accepted. The king was appealed to, and, in the event of the case being remitted to the ordeal of battle, he assigned the place and day for the combat. He further, in consultation with the constable and marshal, decided on the preliminaries, the conditions of battle to be observed being regulated in accordance with fixed ordinances, which in England were drawn up by the constable for the time being. The combat would be on horseback, fighting à outrance, with lance and sword, in lists similar to those erected for the tourney. Charges of homicide or murder might in this country be remitted to the ordeal of battle, with shields and bastons and in civil garments. Should an accused or claimant fail to appear in the lists on the day appointed he could be outlawed.

The judicial duel may be regarded as the prototype or parent of the chivalrous duel on foot at a pas d’armes.

The custom never took deep root in England, though during the reign of King Henry II, when the monarchy had become more settled, and in the times of his immediate successors Richard and John, disputes relating to the possession of land were very rife, greatly owing to the fact that so many manors and smaller holdings had been forcibly and illegally riven from their rightful owners in the preceding reigns since the Conquest, by the barons and their adherents. The ordinary law courts experienced great difficulty in dealing with them on the principles set forth in the written statutes, which then as always inclined to favour the man in possession; and the rough and ready settlement by combat was ordered, more especially in cases where there was a hopeless conflict of testimony between litigants and no means of getting at the truth by the evidence of any living witnesses.

The actual number of judicial duels would seem to have been small in England, for in the great majority of cases before the courts the judges managed to declare that there should be no combat.

Certain persons were excused from battle. They comprised the citizens of London, who were exempted by charter; the clergy; “sexagenarii”; and “those blind by accident after issue joined.”[247] Women were not exempted by law and, indeed, sometimes fought.

The early ordinances, forms and manner of carrying out this singular institution in practice in England are given in Origines Juridiciales.[248]

A short and imperfect summary follows on these pages:

TRIAL BY COMBAT IN CIVIL CASES

In cases where this mode of trial for the possession of certain lands or other property was allowed by the court, and a combat followed, the further tenure of a holding in question would depend solely on the principle of battle, without any later appeal to the Grand Assize being permissible.

Before a trial by combat could be sanctioned the claimant in the suit was summoned before the court with his champion, who, once fixed upon, could not be changed, unless in the case of his “natural death” taking place in the interval before battle; but should he die “by his own fault, the lord shall lose his Sute.”

The defendant might either defend his cause in person or fight by deputy; but should he elect to be represented by champion and the one chosen should die in the interim it would become a question to be argued before the court as to whether or not the defendant should be allowed to appoint another in his place. The challenger or demandant was not allowed to fight in person.

Should the defendant, the “tenant,” be vanquished in the fight, then “the lord shall lose the land and the claimant shall have it”; but it often happened that a champion had been hired for some fee or reward, and if this should be proved the principal would lose his suit. Some particulars are given of a case of this kind[249] “betwixt Thomas fitz Hugh de Staunton and the prior of Lenton for the advousen of the church of Harlaston, in Northamptonshire.” Both parties to the suit were represented by champion, the appellant being a churchman, and they fought on foot in the lists, armed with bastons (i.e. polygonally-shaped maces or cudgels of heavy wood, tipped with horn: “basculi cornuti, bastons cornuz”).[250]

TRIAL BY COMBAT IN CASES CRIMINAL

This was conducted much on the lines of knightly usage in combats on horseback à outrance, except, as already stated, in charges of homicide or murder.

The cartel setting forth the charge, subscribed to on oath, was laid before the judges of chivalry by the appellant, the accuser, stating that “he was ready to maintain the same with his body.” This document was then considered by the judges, and should combat be allowed it was served on the accused, the defendant; and if within an interval of six weeks he had not responded, judgment was registered against him by default, his coat-armour being reversed or ignominiously fastened under his horse’s tail, in disgrace.

Should the accused stand on his defence both parties were cited to appear in the field outside the lists, which were quadrangular in form with a gate at each end. Judgment seats were provided for the constable and marshal, and at their feet were stationed a competent number of experienced knights and “a doctor or two of civil laws,” all for the advice and assistance of the court.

The appellant first came to the gate at the right end of the lists, clad in complete armour, attended by his esquires, and the constable and marshal demanded of him through their herald his name and purpose. On his answering, he was conducted into the lists by a knight and herald and placed before the judgment seat on the right hand. A similar course of procedure was adopted towards the defendant, who was placed facing the accuser on the left hand.

The choice of the weapons stipulated in the cartel lay with the defendant, and the advisory knights inspected and measured them for both sides, so that there might be no inequality in that respect between the parties; and the knights must answer for it that there be no enchantment or magic practised on either side.

It was then demanded of the principals if their purpose held, and they affirmed the same, laying their hands on the Evangelists. The appellant then briefly rehearsed the terms of the cartel of defiance, making oath as to its truth, after which the defendant affirmed also on oath his denial of the charge.

These preliminaries over the parties prepared for battle, which was to continue from sunrise to sunset; the herald crys, “Let them goe together,” and the onset is sounded by trumpet call.

Should the appellant not overcome the defendant during the day the latter was deemed guiltless, and the procurator of the constable and marshal publicly proclaimed the fact: but to secure what was termed “a perfect victory,” a confession of guilt by one of the parties was necessary. The cartel was then sealed with the common seal in testimony that the combat had duly taken place, and all the legal formalities been observed.

A picture of a legal duel on a murder charge, of the reign of Henry III, has been preserved, and the names of the combatants are written upon it. It has been reproduced by Hewitt in Ancient Armour and Weapons of War,[251] and the parties are represented fighting. A gallows is depicted in the group with the vanquished combatant hanging from it. This was no knightly battle—the champions fought on foot in their civil dresses of leather or cloth, bare-headed, with quadrangular bowed shields, and bastons garnished at their heads with spurs, like those of a pick.

Rules and ordinances for the regulation of judicial combats in France were promulgated by Phillip IV, surnamed le Bel. An abridged account of them follows:—[252]

Four things to be established before the Gage of Battle may be adjudged.

Should the judge allow the combat the advocate of the appellant is to lay the case before the court in sober terms; but should the defendant deny the charge the appellant must say that, although he cannot prove it by witnesses or other evidence, yet he can avouch it in his own body or by another for him, in an enclosed field in presence of the king.

The appellant is to throw down his glove and retain counsel for arms, horse, etc., necessary for the gage of battle. The defendant may reply to the accusation that the appellant has falsely and maliciously lied; and that in his defence, by the help of God and our Lady, he will avouch his innocence with his body or by some other for him; and that he will be ready on the day and at the place fixed upon for the combat. Then he is to take up the gage thrown down by the appellant, and a decision will be given by the count as to whether trial by battle will be allowed or not.

If recourse to a duel be permitted the parties will swear to be on the ground on the day appointed; the combat to be overlooked by wise and honest men, clerks, knights, and esquires, without favour to either party; but should either appellant or defendant fail to keep his tryst he shall be proclaimed recreant, and afterwards arrested.

Regulations as to the procedure for the combat follows:—the parties to bring sustenance for themselves and their horses for the day; the lists to be 40 paces in width by 80 in length, and within them two pavilions are to be pitched for the use and comfort of the combatants. The herald is to come on horseback to the gate and to cry three times; firstly, before the arrival of the appellant; secondly, when the combatants have entered the lists; and thirdly, when they have taken their oaths. The appellant should be first in the field on the day of battle, before the hour of noon; the defendant not later than four in the afternoon. The parties make their affirmations and the sign of the cross, and appear before the stand on which the judge is seated, and he commands them to raise the visors of their helmets, after which they return to their pavilions. The herald, after having called them for the third time, motions them to kneel before a table on which a crucifix and missal are placed, when a priest admonishes them; and the marshal takes off their right-hand gauntlets and hangs them on the arms of the cross. The combatants then mount their horses, the pavilions are removed from the lists, and the marshal cries, “Gentlemen doe your Deuoire,” throwing down his glove, and the combat begins.

The body of the vanquished, dead or alive, shall be delivered by the judge to the marshal, his points cut and armour cast piecemeal in the lists, and his horse and armour shall appertain to the constable and marshal of the field. The victor shall depart honourably from the lists, on horseback.

Ashmole MS., No. 764, p. 7, furnishes the following:—“De la droite ordonnance du Gaige de Bataille par tout le royaume de France Philipe par la grace de Dieu Roy de France a touz ceulx qui ces presentes lettres verront salut.” This letter of King Philip IV, written in 1306, limits the practice of wager of battle, and is prefixed to regulations for the whole course of the combat (44-54 b).

In Favine’s Theatre of Honour and Knighthood,[253] rendered into English in 1622, judicial duels are thus defined:—“It was the custome of our auncient French to vndertake the hazard of armes and combat, to justifie themselues in an Accusation, fordged against their honour and good fame; and to sustaine the truth of some iust cause, whereof the proofes were doubtfull, yea, wholly hid and concealed.” In France the oaths were administered over the bones and relics of saints and martyrs.

In La Vie de Bertrand Du Guesclin[254] is an account of a singular legal duel between Jews, named Daniot and Turquant, which took place in Spain; and the narration aptly illustrates the superstitious character of the times and country. These Jews were accused of assassinating Blanche de Bourbon at night in her bed; and on being charged with the crime Daniot averred that he had not entered the bed-chamber of the princess at all, and had done his best to prevent Turquant from committing the murder. This Turquant denied on oath, stating that his accomplice had taken an equal part with himself in causing the death of the princess. On hearing of this direct conflict of testimony Bertrand Du Guesclin is stated to have suggested a judicial duel in the lists (champ-clos) between the parties, and this having been assented to the fight duly took place. The combatants, who were well mounted and in complete armour, fought with swords, and after some severe passages Turquant wounded Daniot in the arm so severely that he was incapacitated from further combat, owing mainly to the loss of so much blood. The coup de mort was about to be given to the vanquished champion and a confession of his guilt demanded when just at that moment a thick cloud appeared above the heads of the combatants, and issuing from it a flash of lightning struck them both dead.

Among the Monstrelet illustrations is a picture of a highly improbable judicial duel between a man and a dog, the man being accused of murdering the dog’s master. The picture was copied from an ancient painting which hung in the great hall of the Castle of Montargis, and is supposed to picture an event recorded by Colombière in Theatre d’Honneur et de Chevalerie. The fight is stated to have taken place in the reign of Charles V of France (1364-1380).[255] The scene represents the duel in progress within a large circular enclosure or lists, around which are galleries and promenades like a theatre, the numerous spectators being richly dressed nobles and ladies. Companies of soldiers are on guard and there is a large band of trumpeters. The defendant is clad in a leather jerkin, torn in places, and slashed drawers; he is armed with a baston or club and a large circular shield. The dog, a large staghound, is seen gripping the murderer by the throat, and justice is vindicated.

“On the seuenth of June 1380 a combat was fought afore the kings palace at Westminster, on the pauement there, betwixt one sir John Anneslie knight, and one Thomas Katrington esquire; the occasion of which strange and notable triall rose hereof. The knight accused the esquire of treason, for that which the fortresse of saint Sauior within the Ile of Constantine in Normandie, belonging sometime to sir John Chandois, had béene committed to the said Katrington, as capteine thereof, to keepe it against the enemies, he had for monie sold and deliuered it ouer to the Frenchmen, when he was suffientlie prouided with men, munition and vittels, to have defended it against them: and sith the inheritance of that fortresse and landes belonging thereto, had apperteined to the said Annerslie in right of his wife, as néerest cousine by affiniti vnto sir John Chandois, if by the false conueiance of the said Katrington, it had not beene made awaie, and alienated into the enemies hands: he offered therefore to trie the quarrell by combat, against the said Katrington, wherevpon was the same Katrington apprehended, and put in prison, but shortlie after set at libertie againe.” It was decided to try the case by combat, and the constable and marshal were duly notified. Lists were erected and crowds assembled on the day appointed to witness the fight. On being called three times by the herald-at-arms the parties entered the lists for fighting, and the articles of combat were publicly read, and after each had been duly sworn the fight commenced “first with speares, after with swords, and lastlie with daggers. They fought long till finallie the knight had bereft the esquire of all his weapons, and at length the esquire was manfull overthrowned by the knight,” who was declared the conqueror. The esquire died soon after from his hurts. The king was present at the fight.[256]

Mr. Hewitt[257] describes a legal duel of the reign of King Richard II, between a chevalier of Navarre and an English esquire, which is figured in Cotton MS., Nero, D VI. The engraving has been reproduced in Strutt’s Regal Antiquities.[258] Holinshed gives an account of the duel, as taking place in 1384, between John Walsh or Wallis and an esquire of Navarre named Martilet; the charge being that the former had forced the wife of the latter. Martilet was slain, his body drawn, hanged and beheaded.

Froissart describes a judicial duel which took place at Paris in the year 1386, in the reign of Charles VI of France, between the Chevaliers Jean de Carouge and Jacques le Gris, both knights of the household of the Comte d’Alençon. Owing to the singular nature of the charge the event caused a great stir at the time and drew a multitude of spectators from far and near. De Carouge leaving France to take part in the crusade in Palestine, his young and handsome wife, a modest and virtuous dame, awaited his return in their strong castle of Argenteil. Jacques le Gris having conceived an unlawful passion for the lady determined to gratify it during the absence of her lord. He paid a visit to the castle one morning and was received by the lady with all honour as being a companion at arms of her husband; and was being shown over it when he asked to see the dungeon. She suspecting no evil, took him down to it alone, when he suddenly locked the door, took advantage of her and forced her. On the return of de Carouge from the Holy Land his wife complained to him of the outrage, which was solemnly denied by the defendant; and the husband called together his friends and kindred to advise with them as to his proper course of action. Parliament was applied to, and a combat to the death between the parties was arranged to take place, de Carouge to act as champion for his wife, le Gris to defend his honour in his own person. Lists were erected at Paris behind the Temple, together with accommodation for the vast number of spectators expected to be present. King Charles was at Sluys at the time superintending the arrangements for a contemplated invasion of England, but he hurried back to Paris to sit as umpire on the occasion. On the day of battle the two knights entered the lists, with their sponsors, armed at all points; and the onset was sounded for a joust à outrance, which was run without hurt to either party. They then dismounted and attacked each other with swords. De Carouge was first wounded in the thigh, but continued fighting and at length passed his sword through the body of his adversary, killing him instantly. The body of le Gris was delivered over to the common hangman by the marshal and dragged to Montfauçon, where it was gibbeted.

Juvenal des Ursins, in Histoire de Charles VI,[259] also gives an account of this duel, which differs materially from that of Froissart, and is more likely to be correct. It states that when the vanquished knight lay wounded on the ground and when de Carouge was about to administer the coup de grâce he demanded a confession of guilt, but le Gris with his last breath solemnly asseverated his denial of the crime; and innocent he was later proved to be, for some time afterwards another person on his death-bed confessed to having committed the outrage. The motive of the lady in charging the wrong person is not apparent. The duel is also described in Les Annales de France.

In 1398 the Dukes of Hereford and Norfolk accused each other of treason, and a duel took place between them, though King Richard had in vain tried to reconcile them. Holinshed gives the following account of this combat:—“The duke of Aumarle was that daie high constable and the duke of Surrie marshal, and they entered vnto the lists with a great companie of men apparelled in silke sendall, imbrodered with siluer both richlie and curouslie, euerie man hauing a tipped staffe to keepe the feeld in order. About the houre of prime came to the barriers of the listes, the duke of Hereford, mounted on a white courser, barded with gréene and blew veluet imbrodered sumptuouslie with swans and antelops of goldsmiths worke, armed at all points. The constable and marshall came to the barrier, demanding of him what he was, he answered ‘I am Henrie of Lancaster, duke of Hereford which am come hither to doo endeuer against Thomas Mowbraie duke of Norfolke, as a traitor vnto God, the king, his realme, and me.’ Then he entered the listes, and descended from his horse, and set him down in a chaire of greene veluet, at the one end of the lists, and there reposed himself, abiding the comming of his aduesarie.” King Richard then entered the lists with great pomp “accompanied with all the péeres of the realm,” and took his seat upon the tribune. “After him entered the Duke of Norfolk, his horse barded in crimcon velvet, embroidered with lions in silver and mulberry trees,” and he took his seat in a chair, “which was of crimosen veluet, courtined about with white and red damaske.” The herald then gave the signal for the combat to begin, but the course proved abortive, and the king cast his bâton, the heralds crying “Ho, Ho.” A council was then held by the king resulting in both dukes being banished the realm.[260]

TRIAL BY COMBAT IN GERMANY[261]

Application had to be made by an appellant to the civic authority of a town before a judicial duel could take place, and this having been done the following answer would be given:—

“We have received your letter and are very sorry to see that your hearts are so moved with rancour and hatred as you seem to bear to one another. In which regard we pray you that you would desist from combat if it may be; and that you would end your quarrels by the way of mildness and gentleness without the adventuring of handy strokes and without shedding human blood. Consent to our request, and so much the rather because we entreat you most instantly.”

Should the demand for a trial by combat be still persisted in the following answer was returned:—

“Seeing that you still persist in your hatred and challenge, and that the way of gentleness can take no course of kindness between you, we do order and appoint that you shall appear on such a day before us to hear the ground and subject of your quarrel, wherein we mean to do you justice.”

A day may then be assigned for the combat if it be allowed.

The preliminaries and regulations are similar to those which prevailed in France and England, with, however, the difference that in each of the pavilions pitched in the lists for the accommodation of the combatants, a bier, a coffin, four candles and a shroud for the dead were placed; and both the appellant and defendant were confessed by a priest. If not slain the party vanquished remained infamous for the rest of his life; he was never allowed participation in aught knightly, and his beard was to be kept close-shaven.[262]

Trials by combat in Germany were more complex and far-reaching than was the case in France and England, and the weapons employed in conducting them more varied and specialized in character.

A paper was read on February 20th, 1840, before the Society of Antiquaries, London, by Mr. R. L. Pearsall,[263] entitled, “Some Observations on Judicial Duels, as practised in Germany”; a short résumé of which follows here. The paper is largely based upon a curious manuscript of the year 1400, in the Royal Library at Munich, containing some text and a number of wood-cuts on vellum, representing various forms of duel in Germany. The work is by Paulus Kall “Master of Defence”[264] to the then Duke of Bavaria; and the illustrations refer to judicial and perhaps other duels as practised in the Fatherland about the end of the fourteenth century, as well as to some others of a still earlier period. This MS., together with others at Munich and Gotha, references to which Mr. Pearsall has omitted to give, form the ground-work of his paper.

Strange though it may seem, the legal duel was resorted to as a court of appeal in extreme cases of quarrels and accusations between man and wife; and Fig. 2 in Paulus Kall’s book affords an illustration of the manner in which such combats were conducted. It depicts a man, bare-headed, buried in a pit up to his loins, holding a short staff in his right hand, the left arm bound to his side. The woman is clad in her chemise only, which is bound together below the middle by a lace passing between the legs; the right sleeve of the garment extends beyond the hand “ein dunne Elle” in a bag which contains a stone, and this constitutes her weapon of attack. At first sight the combat would appear to be an unequal one. It might be thought for a moment that the wood-cut had been conceived in a humorous sense, but there is no doubt whatever that such duels did really take place in Germany, though cases of the kind were probably comparatively rare after the twelfth century; and, indeed, Mr. Pearsall had not been able to find any record of an actual combat of the kind later than the year 1200, when a man and his wife are stated to have fought under the sanction of the civic authorities at Bâle. We may take it, however, from other evidence that the practice continued up to the close of the fourteenth century and perhaps even later. Reference is made in the paper to a book of drawings, also at Munich, executed as late as the end of the fifteenth century, among which is a representation of such a duel, though possibly traditional in character. The man here is depicted as buried up to the waist in a tub; he wears a skull-cap, and is armed in the same manner as shown in the other drawing, with a short staff, the left arm tied to his side. The woman is fully dressed and in the act of swinging a weapon which looks like a sling, in which is a stone. Mr. Pearsall further refers to “an ancient codex of defence” in the library at Gotha, one of the drawings depicting a duel between a man and his wife, the former fighting from a tub; and the man is shown to have vanquished the woman and drawn her into the tub headforemost, in which she appears with her legs kicking in the air. This incident explains why the chemise, as shown on Fig. 2 of Kall’s work, was tied with a lace between the legs; and that wood-cut also illustrates the mode of action on the part of the duelists in attack and defence. The woman’s weapon is thus seen not to be a sling at all, but one similar in principle to the extended sleeve with a bag at the end in which is a stone; the object being to inflict a swinging blow on her opponent, who parries with his staff. Another cut, the source of which Mr. Pearsall does not mention, represents a more deadly form of duel between a man and a woman, who fight bare-headed and naked to the girdle, with small falchions, like knives; and wounds are shown on both their persons.

A singular form of duel, pictured in Paulus Kall’s book, is that with “shilts,” used as weapons both of attack and defence, sometimes alone, and at others in conjunction with daggers held in the disengaged hand. To judge from the wood-cuts this great oblong shield is about 4½ feet long by about 18 inches broad; and though the examples depicted differ somewhat, they are all garnished at the head, foot, and sides with a greater or less number of projecting spears or spurs, for the purposes of attack. The combatants are wearing greyish-brown tight-fitting dresses and hoods; the faces, hands and legs are left bare. The preliminaries completed, the duelists are conducted into the lists by an official; each combatant brings a bier and is accompanied by his relations and a confessor. The principals are then sworn, their weapons handed to them, and the onset sounded. It would appear from the surrounding details and the character of the officials concerned, that this form of duel appertained to members of the privileged class.

A fourth kind of duel was fought with spiked clubs (or more usually with swords) and “der Hutt,” a shield formed like a hat; and Kall’s wood-cut pictures the duelists as being clad in garments of cloth. The shields vary in size from very small to very large, the latter kind being employed in conjunction with spiked clubs, the former with swords. Another form of duel is with the “streit-axt” (bec de faucon), the variety of battle-axe with a hammer on one side of the head and a spike, like that of a pick, on the other. Here the champions fight in complete armour; and besides axes they carry swords and daggers. In the Gotha codex is a drawing entitled, “Dass ist wie sich ainer versorgen sol der zu gewapenter Hand fechten sol,” meaning that this is the equipment for a duel with gauntlets. The duelist is shown as being anointed with oil by his armourer preparatory to combat; and the items of his body-armour stand ready to be put on in their turn. Some of the wood-cuts in Paulus Kall’s work afford representations of such duels; and the text furnishes directions as to how they were to be conducted. It was from this kind of legal duel, more especially, that combats on foot in the lists at a pas d’armes had their origin.

The last form of duel referred to in Mr. Pearsall’s paper is one with two-handed swords; and a wood-cut of Paulus Kall’s illustrates a combat of the kind, in which the duelists are clad in jerkins and long hose. The swords appear to measure about five feet in length. These clumsy and unwieldy weapons were for striking and parrying, but could not be employed effectively at close quarters.

An original manuscript in the possession of Mr. Richard Bull, f.s.a., at the commencement of the nineteenth century, contains the orders, rules and regulations issued by Thomas Duke of Gloucester, the Constable of England, in the reign of King Richard II, 1377-99, for observance in cases of trial by combat.[265] They differ little from those of an earlier period, but the particulars given of the lists may be noted with advantage. They run:—

“The Kinge shall finde the feeld to fight in and the listes shalbe made and deuised by the Constable and it is to be considered that the listes must be 60 pace longe and equally made without greate stones the grounde flat and 40 paces brode in good order and that the grounde be harde stable and firme and that the lists be strongly barred abowt with one dore in the este an other in the weste with good and stronge barres seven foote highe or more than a horse can leape over them.”

The weapons were to be “glayues,”[266] long sword, short sword and dagger.

There are other copies of these rules extant besides the one given in the Antiquarian Repertory, viz., Ashmole MS. 856, 83-89, and that among a MS. Collection of Ordinances of Chivalry of the fifteenth century, belonging to Lord Hastings. The last-named document is copied in Lord Dillon’s paper on these Hastings MS.,[267] published in Archæologia, Vol. LVII, and is reproduced in our Appendix H, but with the long preamble left out. These three copies of the rules for conducting judicial duels in the reign of Richard II vary somewhat; for instance, glaives[268] are mentioned in the two first copies as being among the weapons employed in these combats, but not in the last.

RULES FOR JUDICIAL COMBATS IN
THE REIGN OF RICHARD III[269]

A case lodged by an appellant should be pleaded in the court before the constable and marshal, and if the accusation cannot be substantiated by witnesses, a recourse to trial by combat may be granted by the Crown. Should a judicial duel be decided on, the time and place of combat are fixed by the constable; the weapons to be “glayves,” long-swords, short swords and daggers. Sureties to be found by both parties to keep their day, and no attempt shall be made to injure the plaintiff or defendant before the day of battle.

The general rules and arrangements do not differ materially from those of earlier reigns, though here it is mentioned that spears of equal length were issued to the combatants, thus explaining the term “glayves.”

If the charge be one of treason the vanquished shall be stripped of his armour, and a piece of the railings of the lists broken down, and he shall be drawn through the lists by horses to the place of execution.

A judicial combat took place at Quesnoy in 1405, Duke William, Count of Hainult, sitting as judge. The parties were two gentlemen, Bournecte the appellant and Bounaige the defendant. The accusation was that of murder. Lists were erected at the expense of the Duke, and the fight commenced by each combatant hurling his lance at the other, but without effect; they then drew their swords, and Bournecte soon overcame his adversary, who confessed his crime, and was ordered by the judge to be beheaded. This was a duel between members of the privileged class.

A challenge for a duel between Henry Inglose, Esq., and Sir John Tiptoft, Knt., to be fought before the Duke of Bedford, high constable, in 1415. (Cotton MS. Titus. C. 28.)

A trial by combat took place at Arras in the year 1431, the Duke of Burgundy sitting as judge. The charge was one of treason, and about the time of the duel many allegiances were being transferred from Burgundy to France. The appellant, Maillotin de Bours, had charged the defendant, Hector de Flavy, with having expressed the intention of deserting the Burgundian interest in favour of that of France and with other contemplated acts of treason. On this information the Duke had de Flavy arrested and lodged in prison. The defendant, however, had many influential friends at Court, and through their good offices and representations he was at length received in audience by his sovereign, when he solemnly denied the charge, alleging that it was de Bours himself who had suggested the treason. The Duke then sent for the appellant, and the discussion between the parties waxed very violent until at length de Bours flung down his glove and demanded a trial by combat, God showing the right. The defendant, with the Duke’s permission, took up the glove and a day was fixed for the combat to take place, both parties giving security to keep their tryst. Lists were prepared and erected. Within them was the model of a sepulchre, for de Flavy had been dubbed a knight before the Holy Sepulchre at Jerusalem. On the day of combat the Duke took his seat on the tribune prepared for him. De Maillotin first entered the lists armed at all points, attended by the Seigneur de Charny and other sponsors. He held a lance in one hand and one of his two swords in the other, and after making his obeisance to the Duke he retired to his pavilion. Sir Hector de Flavy entered the lists in like manner; he was influentially attended, and his charger was led in by the two sons of the Comte de St. Pol. After saluting the Duke he also retired to his pavilion. Both knights on re-entering the lists were led before the judge and swore on the Evangelists that their cause was just and true. They then took up their positions for combat and the onset was sounded, the fight beginning by each hurling his lance at the other, but without hurt to either. They then attacked with swords, each champion displaying the utmost courage and dexterity. The Duke at this juncture quite unexpectedly cast his bâton, thus putting an end to the fight. He commanded the attendance of the combatants to dine at his table on the morrow, when he reconciled them to each other.[270]

“In the foure and twentith yeare” of the reign of King Henry VI (1446) “the prior of Kilmaine appeached the earle of Ormond of treason. For triall whereof the place of combat was assigned in Smithfelde, and the barriers for the same there readie pitcht. Howbeit, in the meane time a doctor of diuinitie, named maister Gilbert Worthington, parson of saint Andrews in Holborne, and other honest men, made such sute with diligent labor and paines taking to the kings councell, that when the daie of combat approched, the quarell was taken into the kings hands and there ended”.[271]

“In the same year also, a certeine armourer was appeached of treason by a seruant of his owne. For proofe whereof a day was giun them to fight in Smithfield, insomuch that in conflict the said armourer was ouercome and slaine; but yet by misgouerning of himselfe. For in the morning, when he should come to the field fresh and fasting, his neighbours came to him, and gaue him wine and strong drinke in such excessiue sort, that he was therewith distempered, and reeled as he went, and so was slaine without guilt. As for the false seruant, he liued not long vnpunished; for being conuict of felonie in court of assise, he was judged to be hanged, and so he was, at Tilburne.”[272]

A good example of a judicial duel, fought in the year 1455, is given in Histoire des Ducs De Bourgogne.[273] It took place at Valenciennes, a town then belonging to the county of Hainault, which, with so many other rich manufacturing territories had fallen under the dominion of the dukes of Burgundy, by marriage or conquest. The privilege of sanctuary had been conferred on the town by its ancient counts, and the old rights and charters had been confirmed by the dukes their successors. A person named Mahiot Coquel, a tailor of Tournay, had murdered a man in that town, and he took refuge from justice in Valenciennes, claiming the right of sanctuary. Soon after his arrival a near relative of the murdered man named Jacotin Plouvier, met him in a street of the town and threatened vengeance against him for the murder of his kinsman; upon which Coquel applied to the magistracy, demanding their aid and counsel. The syndic then sent for Plouvier and reproached him with having the intention of violating the franchise of his town; but he denied this and claimed the right of lawful combat as against Coquel, at the same time throwing down a gage of battle. This, after some hesitation, Coquel lifted up; and a combat was allowed as being the law of the land, without being any infringement of the principle of sanctuary, which only applied to protection from the officers of justice. The parties were lodged in prison in separate cells, and seconds were appointed to arrange the preliminaries for the fight; when the Comte de Charolais, afterwards Charles the Bold, on being informed of the case, acting in the capacity of lieutenant-general for his father Duke Philippe le Bon, of Burgundy, ordered the matter to be referred to his council for judgment. The town authorities then applied to the Duke their sovereign lord for the maintenance of their ancient rights, when all opposition to the combat was withdrawn; the Duke announcing his intention of being present, with his son the Comte de Charolais, to view the fight. Lists were erected, not in the form usual for the tourney, but round and with only a single entrance. The judges of the fight were the provosts of the town of Valenciennes and of the county of Hainault, the Duke and his son being merely spectators. Two seats draped with black cloth were placed facing each other in the middle of the lists, and the combatants were conducted to them and sworn on the Evangelists. The two champions were clad in leathern garments, close-fitting and laced down the middles, the arms and legs bare. These corselets were well greased so that neither of the parties could easily grip the other. Their hands were rubbed with ashes for the better grasping of their weapons, and each held a piece of sugar in his mouth as a preventive against their throats becoming parched with the heat. Their weapons were knotted clubs, equal in weight and length and obtusely pointed at the narrower ends, and triangular shields, painted red. When the signal for combat had been given Mahiot Coquel, who was the shorter and weaker man of the two, grasped a handful of sand with which the lists were strewn, and threw it into the eyes of his opponent. This nearly blinded Jacotin for the moment, and he received a heavy blow in the face from the club of his adversary, but on recovering somewhat he set upon Mahiot and seizing him by the arm threw him violently to the ground, then placing his knees on his stomach, to the horror of the spectators, he kept steadily prodding Mahiot between the eyes with the pointed end of his club until he was dead. The body was then dragged by the hangman from the lists to the gallows.

Lacroix in Military an Religious Life in the Middle Ages, ＆c., gives a picture of a judicial duel of the knightly kind, fought on foot. It is copied from a miniature in the Conquêtes de Charlemagne, a MS., in the National Library at Paris. The combatants are armed at all points; their weapons are swords; and the lists, of open railings, are octagonal in form.

The general course of procedure in these matters continued much the same up to and including the reign of Henry VIII. A manuscript of that reign, sometime belonging to Sir Edward Wyndham, Kt., Marshal to the Camp, gives particulars,[274] The form and size of the lists and counter-lists are as before; also the kind of weapons to be employed. The defendant, if he appear not, is called by proclamation, made by the marshal of the king of “Heraults of that province wherein the Battail is to be deraigned.” The bill of challenge of the appellant and the answer of the defendant is read to them and they take their oaths:—