Wednesday, October 26, 2005

Trial by Wager of Battle / Trial by Combat

Skelly's post on gladiators got me thinking. Why NOT trial by combat? It worked out pretty well for the last defendant to demand it. In Ashford v. Thornton, 1 B. & Ald 405, Thornton had been acquitted of the rape and murder of Ashford's sister. Ashford appealed the acquittal, but Thornton demanded his right to trial by combat. The Court of Kings Bench decided that even though it hadn't been used in a long time, Thornton could still insist on trial by combat. The court noted that:

One of the inconveniences of this procedure is, that the party who institutes it must be willing, if required, to stake his life in support of his accusation.

This is generally how it worked: The two parties fought in an enclosed square, 60 feet on a side, with 45-inch long sticks and a small shield. There were opening arguments; the defendant went first: he took a Bible in his right hand and the accusers right hand in his left, and swore:

Hear this, O man, whom I hold by the hand, who callest thyself [accuser's name], by the name of baptism, that I, who call myself [defendant's name], by the name of baptism, did not feloniously murder thy father [victim's name], by name, nor am anyway guilty of the said felony. So help me God.

Then they switched hands and Bible and the accuser swore:

Hear this, O man, whom I hold by the hand, who callest thyself [defendant's name], by the name of baptism, that thou art perjured, because that thou feloniously didst murder my father, [victim's name] by name. So help me God and the saints ; and this I will prove against thee by my body, as this Court shall award.

They both then swore that:

Hear this, ye justices, that I have this day neither ate, drank nor have upon me either bone, stone or grass ; nor any enchantment, sorcery or witchcraft, whereby the law of God may be abased, or the law of the devil exalted. So help me God and His saints.

(One time this rule was broken by the champion for the Bishop of Salisbury, who was discovered to have hidden many scripts and prayers in his clothing - he was disqualified.)

Then the fight was on, and it lasted until the stars appeared. If the defendant won, or lasted until the stars appeared, he was acquitted. If the defendant lost or gave up, he was hanged immediately. (if he wasn't already dead) If the accuser gave up, he lost the protection of the law thereafter. There were exceptions for women, children, old people, priests, nobles and city folk.

But what about Mr. Ashford's appeal against Mr. Thornton? Ashford chickened out and dismissed his suit against Thornton. The following year, 1819, Parliament abolished the right of trial by combat. 59 Geo. III c.46.

And THAT is my problem. My state incorporates English common law as it existed at the time of statehood. And unfortunately, statehood around here occurred well after 1819. But you East Coasters keep it in mind. (Too bad, because I can take any of the DAs I regularly work with.)

The problem is that its not just me against the DA; its against the DA, the DA investigators, the Detectives, the cops, etc.



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