Settling legal disputes by battle: A brief history of duelling

by The FindLaw Team

We can admit that it gets tiresome writing about the law sometimes and like other employees elsewhere, we here at FindLaw would also like the occasional break from our daily professional tasks. However, we’re still compelled to write something law related so we actually looked up the history of duels and it’s actually quite interesting. Let’s get one thing out of the way right now – making formal arrangements with someone else armed with a deadly weapon to solve a matter of honour is most definitely illegal. Now, let’s delve further into the history of duels as covered by W. J. W. Windeyer in his book, Lectures on Legal History.

A history of trial by battle

Did you know that legal disputes used to be settled by battle? When the Normans conquered England, disagreements revolving around personal injury, breaches of the King’s peace, rival claims to property, or any dispute that may have a bit of legal basis to it was settled between the parties via a method of trial known as ‘wager of battle’.

With the formalisation of trial by battle, a number of complex rules were also introduced with the so called ‘trial’. In some cases, parties had to fight their own battle, while in other circumstances, another party known as a ‘champion’ was allowed to fight on behalf of a party to a dispute. Combatants were required to swear an oath declaring their belief in justice and the cause for which they were about to go into battle for. In addition to the oath, combatants on the day of battle had to affirm that they have not “eaten nor drunk nor had upon them bone, stone, or grass nor any enhancement, sorcery or witchcraft, whereby the law of God might be abased or the law of the devil exalted.” All pretty heavy duty stuff. Once the trial by battle commenced, if an accused was able to withstand the punishment throughout the day until the stars appeared, they had won their case. However, if an accused had uttered the word, “craven”, they would then suffer a finding of guilty.

Trial by battle eventually fell out of favour but it wasn’t until 1819 when it was formally abolished in England when a young woman by the name of Mary Ashford was found dead on the suspicion that she had been murdered. A suspect by the name of Abraham Thornton stood trial for Mary’s murder and was acquitted by a jury. However, public sentiment was such that Mary Ashford’s brother was persuaded to bring about an action on ‘appeal of murder’. An ‘appeal’ in 1819 did not have the same connotations as today, and Thornton’s advisers realising that an ancient procedure may be used against him, urged him to state that he was not guilty and that he was “ready to defend the same with my body”, after which, he threw a glove onto the floor of the court. After a period of time spent arguing the merits of the law, the court acknowledged that the law was still in force, and that Thornton had the right to call upon his accuser for a fight. However, Mary Ashford’s brother was not prepared to fight, and as a consequence, the prisoner was discharged. Thornton’s successful actions led the English Parliament to formally abolish trial by battle – nearly 800 years after the law was first introduced.

Duelling in Australian law

For any reader who may be curious about trial by battle laws in Australia, we can look to s 81 of the Criminal Code Act 1924 (TAS), which states the following:

(1) Any person who takes part in a duel is guilty of a crime.

Charge:

Duelling.

      (2) Any person who challenges another to fight a duel, or provokes another to fight or to challenge another to fight a duel, is guilty of a crime.

Charge:

Inciting to duelling.”

So there you have it. No trial by battle under Australian law.  

  



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