Properties of Blood I.7: Dueling for Honor, Part B

Military Duels

Frontiers and unsettled times attract reckless men, who are going to shoot it out, one way or another.  The pretense that Abilene after the War Between the states or the Chicago ghetto of today can be run according to the rules of an Oxford College can lead only to anarchy and the death of law-abiding people who are minding their own business.  Where a community maintains a civil order, most men will be content to keep the peace most of time, relying on the forces of the law for protection and redress of injury, except on the exceptional occasions of a direct attack upon their persons, family, or property.  Not all societies, however, are equally civilized, and men who live in disordered times and places must rely upon themselves and their friends.

Even societies with a system of law may contain classes and groups of aggressive men.  In the American West, most farmers, shopkeepers, and ranchers content, in ordinary times, to let duly constituted authorities manage the business of protection and punishment.  There were others—men like Hickock, Hardin, and the legendary Clay Allison, who “never killed a man who did not need killing—who preferred to take such matters into their own hands.  Fighting men, whether Japanese Samurai or Medieval knights, are supposed to obey their commanders and honor their liege lords, but they may not necessarily avoid conflict with other men.  For military men, killing and dying are professional hazards, and when officers can go about armed to the teeth, drinking and gambling, quarrels and fights are inevitable.

A soldier’s prowess in the arts of violence are an inconvenience in civilian life, but a blessing in war, where the rules dictate who can kill whom and under what circumstances.  The single or multiple combats that are arranged in the course of a war are at the other end of the spectrum from the violent affray.  Literature and history are filled with memorable examples.  Early in the Iliad, the Greeks and Trojans decide to let Menelaus and Paris fight it out.  If Aphrodite had not intervened to save her favorite, the war might have ended with the death of Paris.  From the Old Testament, everyone is familiar with the story of young David and his "duel" with the gigantic Philistine warrior Goliath. [I Samuel 7.]

Captain John Smith, who may justly be regarded as the first great American, distinguished himself early on by fighting and decapitating three Turkish officers in a row.  During the siege of a Turkish-held town in Transylvania, there was a lull in the fighting. An arrogant oversized Turk Bashi (captain) challenged any Christian to fight him in a duel on horseback for the prize of the other’s head. The Christian champion was to be chosen by lot, and John Smith had the good fortune to be selected.  When the contestants entered the field, Smith “took his ground with such good success that at the sound of the charge, he passed the Turk through the sight of his Beaver; face, head, and all, that he fell dead to the ground; where alighting and unbracing his Helmet, cut off his head, and the Turks took the body; and so returned without any hurt at all.”  Two more Ottoman officers met the same fate, and John Smith was granted a coat of arms consisting of three Turks’ heads.  In a better world, Smith’s coat of arms would be on the Great Seal of the United States instead of the masonic symbolism that has defaced our documents and currency from the beginning.

Such fights between chosen combatants in the course of a battle or war do not constitute a duel, in the normal sense of the word, since duels arise out of strictly personal disagreements between the combatants.  The fight between Menelaus and Paris, while it was certainly caused by Paris’ abduction of Menelaus’ wife and wealth, was also the means by which the two armies hoped to end a war.  To be regarded as a duel in the most common sense, the two parties would have had to have privately arranged the combat.

Judicial Combat

Such a stipulation would seem, also, to eliminate trial by combat or the judicial duel, in which the two parties agree to establish the truth of a cause or accusation by engaging in combat in the presence of the king or his deputy.  The winner was not, in theory, the stronger man or better fighter but the contestant who had sworn a true oath in the name of God.

Among the earliest institutionalized forms of Germanic law in existence are the judicial combats described in the Code of the Burgundians, but the custom was older than the code and it survived very late in Europe.  Article VIII of the Burgundian Code is exemplary:  Anyone accused of a crime must swear an oath, backed up by the oaths of his wife, sons, and twelve relatives.  This, more or less, would have been the Burgundian tradition.   However article XLV (given at Lyons in 502) adds the proviso that, since it has become apparent that some men are so corrupt as to swear false oaths, it is enacted that in  the case of a plaintiff who refuses to accept the oath of the other party, the matter will be settled by combat.  “Let the right of combat not be refused; with the further provision that one of the same witnesses who came to give oath shall fight, God being the judge.”

At Hastings in 1066 the Normans went into battle with the sound of the Chanson de Roland in their ears.  At the end of that poem, Charlemagne accuses Count Ganelon of treason, for betraying Roland to the Saracens, but his lords are unwilling to make the charge, because the accuser will have to face Ganelon's fearsome cousin Pinabel in a judicial combat. The work concludes with a detailed description of the combat between Thierry and Pinabel.   The outcome—Thierry’s death— is a foregone conclusion, but Thierry, with divine help, manages to kill Pinabel, thus proving the case of treason against Ganelon.

If the Saxon nobility had not heard of this custom before the Conquest, it was not long before they were required to study its complexities.  In the Norman version, Trial by Combat was a formal judicial process by which a nobleman accused of a serious crime (e.g. treason) could challenge his accuser to single combat.  The custom was not uniform.  Judicial duels, which could be fought by members of the lower orders and even by women, were conducted with cudgels or other rude instruments while the duels of chivalry were typically performed with swords according to an etiquette reminiscent of the tournament.

Anglo-Saxons and their Scandinavian cousins—like their descendants on the American frontier—went about armed, and they were not slow to draw their swords, either in response to a personal insult or to avenge the death of a relative. Anglo-Saxon and Norse literature are drenched in the blood of fights and feuds.  Most violent encounters were not within the King’s power to punish, though Alfred the Great had made it a capital crime to fight in the King’s presence. The conquering Normans were not very comfortable in thinking that their Saxon subjects should bear arms, much less fight over the honor of their families.  The notion of the “King’s Peace” was extended from the royal presence and royal household, eventually, to encompass the entire kingdom.

Even if the William and his henchmen had been able to repress the violence of their Norman and Saxon warriors, the times were not ripe for such a revolution.  A kingdom, especially one that has been seized by force, needs tough men willing to defend it.  Violence is irrepressible, and in Medieval England necessary, but it needs to be controlled.  William and his successors, therefore, insisted on substituting the Judicial duel in the king’s presence, thus centralizing the king’s authority over legal violence—William also outlawed the use of the death penalty by anyone except the king and his agents.  Hence Treitschke’s famous dictum that the state holds a monopoly on violence.

In contrast with the old Germanic blood feuds and affrays, Trial by Combat was a formal judicial process by which a nobleman accused of a serious crime (e.g., treason) could challenge his accuser to single combat.  The custom was not uniform.  Judicial duels, when they were fought by members of the lower orders, could be conducted with cudgels or other rude instruments, while the duels of chivalry were typically performed with swords according to an etiquette reminiscent of the tournament.

In one sense, the great tournaments of chivalry were only stylized versions of judicial combat staged for the entertainment of an upper class that could appreciate the fine points of the art of homicide.  Almost from the beginning, there were those who doubted if justice could be served by battle, and the church, which preserved vestiges of Roman law and custom, never ceased railing at the practice, but in the early days the only alternative among the Germans was compurgation--a sworn testimonial of innocence by the accused and a number of other persons.  German rulers, as we have seen in the Burgundian Code, were shocked to discover that noble men might lie under oath, and one function of the judicial combat was to force a man to back his words with his life.

But there were many well-known cases in which right did not prevail in the combat.  In the 14th century Honoré Bonet observed that "it has often been experienced that the man who had right on his side has, notwithstanding this, lost the battle."  Bonet deduced from these instances that the duel should not be used merely to prove a man right, and by the end of the 14th century the judicial duel was an antiquated custom, under attack both for its unfairness and for the challenge it represented to the growing power of royal justice.

Even under the king's eye, turbulent nobles battling it out posed a danger to settled order.  A quarrel between two gentlemen over a point of honor or a charge of treason might be regarded as a state of war, and the hostility could easily spread to a man's kindred and retainers.  In the 13th century Philippe de Beaumanoir argued that the wager of battle was a legal form of concluding a truce, because "you must not seek vengeance on your enemy by war and by going to court at the same time.”

In regarding judicial combat as the conclusion to war, Philippe de Beaumanoir was not making a criticism, since his own lord, King Philippe le Bel, was a master of all chivalrous customs.  But armed and feuding noblemen were an intolerable nuisance to the state-building monarchs of the Renaissance.  The duel of chivalry, of which Bonet did approve, was still a lively custom in the 14th century, and he is at pains to discuss the obligations of sons, husbands, and vassals to come to the aid of their fathers, wives, and lords.  Since women, the aged, the infirm, and--typically but not always--churchmen, could not fight their own battles, they of necessity had recourse to a champion.  The King of England himself had a champion who appeared at the coronation banquet to challenge anyone who might deny his right to the throne.  As time went on, however, it became all too easy to retain a mercenary champion to intimidate litigation of any kind, rather as large corporations keep a staff of high-priced lawyers on retainer and engage in nuisance counter-suits against customers who have been injured by their products.

There is almost infinite variety in these customs, but in essence a judicial combat is a way of determining guilt or innocence.  Suppose I accuse my friend Clyde Wilson of treason against South Carolina.  If we are primitive Germans, his first response will be to swear in God’s name to the ruler—in this improbable case the Governor—that he is innocent.  Since a traitor is likely to be a liar, he might then be asked to bring in several trusty friends as compurgators or co-swearers.  But, as these wooden-headed Germans discovered to their dismay, some men will even lie to save a friend’s life.  So, the judgment had to be entrusted to a higher power—to gods or God.  This could be done by an ordeal like holding hot iron or walking through fire or being thrown in the water, or it could be left up to the god of battles.  Obviously, this was unfair in the case of women, very young or old men or—in most cases—clergy, who could choose a champion to fight in their behalf.  (This custom persisted in dueling but, generally speaking, only the challenged had the right—if he were infirm or disabled—to name a champion.)  These judicial combats had to be fought in the presence either of the ruler or his delegate.

Ancient Greeks and Romans would have mocked the Germanic faith in justice served up by the God of Battles in the course of a trial by combat or ordeal.   In a work as early as the Iliad, the wronged man, Menelaus, would have won the contest had not the unjust and less able Paris not been rescued by a deity.

Even in the Medieval period,  Roman law would not tolerate the superstitious injustice of trials by ordeal or combat.  The “empire of Nicaea”—a rump Byzantine state that survived the Fourth Crusade and Latin Conquest—did borrow trials by Ordeal and combat from its Latin neighbors.  As a young man, Michael Palaeologus, who would go on to restore the Byzantine Empire, was asked to hold burning iron in his hand to prove his innocence.  This trial by ordeal was the consequence of an earlier trial by combat in which the loser insisted that his plot against the emperor did not involve the young Palaeologus.  The future Emperor modestly disclaimed any pretension to divine favor but said he would accept the burning iron from the hand of the holy bishop who was entitled to so great a privilege.   The bishop declined the honor, the Emperor relented, and Michael went free.  As Byzantine Emperor Michael VIII outlawed these barbaric customs.

In the West, the Catholic Church was the only source of the civilized legal traditions that Michael VIII restored in the East.  In 1215 Pope ruled that clergy could not take part in trial by ordeal, which put an end, effectively, to a legal practice, whose objective was to ascertain the divine will.  The Church’s initial response to judicial combat was negative.  Pope Stephen IV condemned it as did the Council of Valencia of 855.  However a Council held at Ravenna (967) acknowledged the custom as a legal alternative preferable to compurgation, the process by which truth could be established by the sworn testimony of honorable men.  Taken out of context, the council’s acquiescence in judicial combat has been cited as evidence of the Church’s barbarization.  However, the Council was responding to concerns expressed by Emperor Otto I, who had been disgusted by the use of forged documents and false testimony.  Otto, who had restored the Empire of Charlemagne by re-exerting imperial control over most of Italy, was not a man to be trifled with.  He had recently restored Pope John XIII and, at this very council, confirmed the Pope’s his authority over Ravenna.

These combats were not private and personal fights over honor but a formal legal process presided over by the sovereign or his deputy.  At Ravenna, the chief concern was with disputed inheritances.    Nonetheless, the overall tendency of Catholic teaching opposed itself to even the most legally formal procedure in which a violent encounter was the means for settling a disagreement.

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Thomas Fleming

Thomas Fleming is president of the Fleming Foundation. He is the author of six books, including The Morality of Everyday Life and The Politics of Human Nature, as well as many articles and columns for newspapers, magazines,and learned journals. He holds a Ph.D. in Classics from the University of North Carolina, Chapel Hill and a B.A. in Greek from the College of Charleston. He served as editor of Chronicles: a Magazine of American Culture from 1984 to 2015 and president of The Rockford Institute from 1997-2014. In a previous life he taught classics at several colleges and served as a school headmaster in South Carolina

1 Response

  1. Dot says:

    Dr. Fleming,

    1. At present I think we live in disordered times. First are the riots that occurred in Charlotte because a black man was killed. He had a gun in his possession but apparently the media didn’t report it. There were riots against the police. Many police officers were injured. It seems that the people doing the rioting are defending their honor. We in turn rely on the police to return order to the community – or should we?

    2. At present is the fuel shortage we are experiencing from Alabama up the east coast as far as NY due to a gas pipe line that leaked 250,000 gallons of gasoline.

    The skeptic in me finds it odd. On the heels of the bombings in NYC and NJ, the gas leak in Alabama occurred. It apparently was discovered sometime between Sept. 9 and Sept. 13. You mean 250.000 gallons spilled before it was discovered? Should I question this and the timing of this incident? Probably not, but still. It was just 15 years ago that 9/11 happened and 3000+ lost their lives. This doesn’t include those who died in Pennsylvania.

    I am half through reading the Glass Key you discussed in one of your podcasts. I definitely don’t think the characters in the book relied on the police for much of anything. They took care of business themselves. Likewise the mafia of not so long ago. Perhaps we should let the rioters do the same? But the gas shortage? The skeptic in me says there’s more to it than what is being reported.