3. Some magistrates ordered trial by ordeal as a substitute for judicial combat
When two parties accused each other of a crime, it became difficult for magistrates to use ordeal as a means of establishing which was guilty. If both were ordered to undergo trial by fire, for example, both were likely to emerge with the burns which pointed to their guilt. Divine intercession did not occur with regularity in the medieval judicial system. This had ramifications for others, for example in the cases of property boundary disputes between families. If both were guilty, how could the dispute be adequately resolved by the learned magistrates? Another form of trial by ordeal emerged, popular among the Germanic tribes in the early Middle Ages. It involved both parties in a dispute, requiring them to participate in an ordeal of the cross. Emperor Charlemagne was so enthralled with the ordeal he twice ordered its use to resolve legal disputes as the preferred method.
The disputing parties were commanded to appear in a public place, usually, a churchyard or village square, where a large cross was erected. The parties stood on either side of the cross, holding their arms extended as if they had been crucified. The first of the parties to weaken and drop his arms was adjudged to be guilty of whatever he had been accused of. Presumably, divine intervention strengthened the arms of the innocent. Though popular with the Germanic people and Charlemagne, Louis the Pious, King of the Franks, found it a distasteful belittling of the Crucifixion. He abolished the practice throughout his realms in 819 AD, thirteen years after Charlemagne had prescribed it. Rulers of Italian and other lands in western Europe agreed with Louis, and the ordeal of the cross fell into disfavor by the 10th century.
4. The laws requiring trial by ordeals did not apply to all
As societal castes emerged on the European continent and in Anglo-Saxon Britain, the law came to be applied differently throughout civilized society. Some, the wealthy, the nobility, the noted knights and squires, and the bishops and priests of the church were above the need to prove themselves through trials by ordeal. Their word was sufficient to establish their innocence, in the absence of plain evidence to the contrary. If accused, whether or not guilty, they could simply declare the accusations false, and the accuser a perjurer. This placed the accuser under the necessity of establishing their veracity through trial by ordeal unless they too were of elevated station. The accuser could then demand his right of trial by combat, in which guilt or innocence would be established. Trial by combat expanded throughout medieval Europe, a public exhibition by two parties fighting for their lives and reputations.
Anglo-Saxon Britain wholeheartedly absorbed trial by ordeal. They were particularly enamored by the boiling water technique of criminal investigation. The English seldom used trial by ordeal to resolve non-criminal legal disputes, such as property disagreements. And they seldom, if ever, resorted to trial by combat, at least in a judicially sanctioned manner. Not until after the arrival of the Normans in 1066 did trial by combat become widespread in England. A century later, the Assizes of Clarendon made the use of trial by ordeal (boiling water) mandatory in some cases, including theft. Over the ensuing 50 years, its use became less common, and in 1219 Henry III agreed with the findings of the 4th Lateran Council four years earlier and abolished trials by ordeal in his realms. Nonetheless, forms of trials by ordeal continued into the 17th century, primarily as a means of establishing the identities of witches.
5. Trials by ordeal often extended to witnesses as well as the accused
Witnesses who were unfortunate enough to be of lowly birth needed to establish their veracity in court. This was especially true when the parties to a dispute were men of standing, their word presumed to be acceptable without question. If either of the parties in a dispute challenged the testimony of a witness of low birth, that witness could be and often was subject to trial by ordeal to establish his truthfulness. The only recourse for the witness to avoid torture was to recant his testimony, which placed him under penalties for perjury, and in some cases slander. Being a witness in a medieval court was thus not a desirable place to find oneself. Witnesses were subjected to the same trials as the accused, boiling water, fire, and other forms of torture, with the results examined by priests and magistrates.
In some cases, such as in the so-called last duel, a major witness to the disputed crime endured torture more than once, since the case was tried before more than one court. Those involved in the actual crime, being of a station above the mere commoner, were not subject to such tortures, even when the results of the witness’s “examination” placed their testimony in question. Such was the case in the famous trial of Jean de Carrouges and Jacque le Gris. Both of the contenders in the case were above the level of trial by ordeal, though at least one of them sought trial by combat. A servant for le Gris however was called upon to give testimony, and his statements were tested by the court in trial by ordeal before it was presented to the court at large. Since his testimony was allowed, presumably it was deemed truthful.
6. The use of champions was technically not allowed, but became commonplace
In a trial by combat, or judicial combat, or wager of battle as it became known in England, the combatants were required to be the principals involved. The hiring of someone to do the fighting for a disputant was technically illegal. It was common though. Women often hired such outside fighters, as they were legally allowed to do, except in disputes with their husbands. The law provided advantages for women to do battle with their husband, reducing his advantages in size and weight, and some women fought for themselves. But, despite the laws proscribing the practice, many men hired champions to fight their trial by combat for them, citing loopholes in the law which required their presence on the field of battle, but not specifically as the combatant. It was the beginning of what in a later day became known as the hired gun.
In the 13th century in the Germanic lands, members of the nobility, including knights, did not need judicial approval to engage in a trial by combat. The issuance of a challenge and its acceptance was all that was necessary for the parties to arrange to resolve a dispute without troubling the magistrates. If a commoner was involved, either against another commoner or with a member of the nobility, judicial sanction was required. Gradually, a list of seven crimes emerged as being sufficiently vile as to call for trial by combat; murder, fraud, abduction, heresy, treason, running away from one’s master to another, and rape. The latter was generally considered to be a property crime, the abuse of property owned by another, rather than an assault on the person of a woman. Women, could and did use champions, often their husband or a brother, to settle legal disputes.
7. The Franks brought judicial combat to what is now France
Julius Caesar observed the resolution of legal disputes through judicial combat among the Germanic tribes. Through the Germanic invasions into western Europe, the process spread, especially among the Franks, who codified the procedures to be followed. One reason judicial combat gained favor is that trial by ordeal was too easily manipulated by the clergy responsible for its process. It was the priests who observed the injuries inflicted during ordeals and reported their status back to the judicial authorities. Trial by combat, in contrast, did not render results which were open to interpretation. Nor could judicial combat leave any doubt as to whether one of the parties involved had given false testimony. One party was clearly defeated, likely dead, and thus the judgment of the Almighty was clear. Throughout the 12th and 13th centuries, judicial combat served as the final judgment in disputes between free men.
By the beginning of the 14th century, the practice had gone out of favor in medieval Europe, replaced by the judgment of judges and juries. The legal profession evolved to include counselors serving as advisors in trials, though not in the manner of advocates as they eventually became. Gradually the influence of the Church, which opposed the practice, gained sway over the nobility and the courts. Nonetheless, in the 14th century, it remained the right of all free men to demand satisfaction of a legal dispute through trial by combat, though the sanction of a judicial body was required to ensure the process was followed according to the law. When an accused person denied the accusation before a judge, in effect calling the accuser a liar, the accused could demand trial by combat. The judge could then order the combat to take place.
8. France attempted to limit judicial combat for over a century
In France, as well as in Italy and Spain, judicial duels were commonplace in the 12th and 13th centuries. So much so, that the system was widely considered corrupt. Men obtained property through the means of killing their rivals, the killing being little more than judicially sanctioned murder. Men fought each other over women, the latter being considered property at the time, expanding their estates through marriage and claiming the doweries which came with their new brides. A succession of French kings sought to discourage the process. By the beginning of the 14th century, most of the nobles in France officially opposed the practice, though the right to claim it remained in place. When claiming the right, it became necessary for the accuser to demonstrate justice could not be attained through any other means.
The person seeking legal redress through judicial combat in the 14th century did so by appearing before the magistrate, placing a glove on the floor, and demanding his opponent pick it up to signal his acceptance. This led to the later expression of “throwing down the gauntlet” as a symbol of a challenge. The time and place of combat was then established, as were the rules of the contest and the weapons to be carried. Judicial and clerical authorities were selected as witnesses to the duel. If champions were selected (women, children, the aged, and the infirm were allowed to name champions) they were informed of the rules. They were also informed they were subject to the same judicial punishments if they were defeated in combat and survived. Either party could end the combat by submitting, in essence saying “uncle”, though the word signaling submission in France was “craven”.
Jean de Carrouges fought in judicial combat, which he demanded, and which is often called the last such encounter in French history. It was not, the last sanctioned judicial combat in France occurred over a century after Carrouges’ battle in 1386. Yet it remains one of the most famous, in part because it presented so many compelling elements of medieval France. His wife, considered by law to be his property, made an accusation which compelled him to seek the duel. In fact, though, it was additional property, a false claim made by an erstwhile friend, and a perceived betrayal by a former patron, which led Carrouges to demand his right. Carrouges was a noted soldier and a man who spent much of his life engaging in lawsuits over property and debts. An admired soldier, he was also considered impetuous and rash.
Carrouges expanded his family’s lands and estates through his first marriage, in the 1370s, to Jeanne de Tilly. When a son was born a close friend and fellow soldier Jacques Le Gris stood as his godfather. Carrouges and Le Gris had both served the family of Count Pierre d’Alencon during conflicts of the Hundred Years war. Together they appeared as members of Count Pierre’s court near Argentan, in northwestern France. In 1377 Carrouges’ son and wife died of an unknown illness, and he sought to assuage his grief by joining a campaign against the English. During his absence, Count Pierre began to favor Le Gris over Carrouges, then fought with the forces of Charles V of France. Carrouges returned to Argentan after an absence of about six months. His reputation as a warrior was enhanced, but his standing at court deteriorated.
10. Carrouges again sought to expand his holdings through marriage
Robert de Thibouville was a Norman noble, with vast estates, which he somehow managed to hold onto despite twice taking up arms against the French king. His temerity severely reduced his influence in France, and he hoped to restore his reputation and standing through the marriage of his only daughter, Marguerite, to a person in good standing with the Crown. Carrouges, at the same time, had his eye on further increasing his own holdings. A deal was struck, Carrouges obtained a new wife, and additional lands, including, according to the new husband, a valuable estate, promised as part of his bride’s dowry. The estate, known as Aunou-le-Faucon, had been obtained by Robert de Thibouville from his father-in-law. Either Carrouges overlooked, or de Thibouville failed to tell him, that ownership of the land had changed prior to his marriage to Marguerite.
Three years before Carrouges demanded the estate as part of his marriage contract, de Thibouville had sold the property to Count Pierre. The Count, had then granted the lands to Jacques Le Gris, an event which occurred during the negotiations over Carrouges’ dowry. Carrouges initiated a lawsuit to establish his rightful ownership of the estate, antagonizing both Le Gris and Count Pierre. The latter had a legal advantage; he was a cousin of the French king, Charles VI. The king supported Count Pierre’s claim in the dispute, and Carrouges found himself persona non grata in the court of Count Pierre. His friendship with Le Gris was also left in tatters. Carrouges also suffered from a campaign by Count Pierre and Le Gris to discredit him, including questioning his recounting of events during the many campaigns in which he had fought for France.
11. Jean de Carrouges endured further slights from Count Pierre in 1382
Jean de Carrouges’ father, Jean de Carrouges III, died in the late winter of 1382. His death vacated the office of command of the castle at Belleme, a position which had been assumed by the younger Jean to be hereditary. Count Pierre did not agree, asserting it was his right to assign the command of the castle to whomever he wished. The count, still resentful of the lawsuit initiated by Carrouges over the estate, ignored Jeans claims to the command and awarded it to another follower, whom he considered to be more loyal. Jean de Carrouges viewed the removal of the command from his family’s house as an insult, and again initiated a lawsuit to claim what he felt was his. Once again, Count Pierre’s influence overwhelmed Carrouges’ legal arguments, and the rancorous suit further deepened the rift between Carrouges and the count to whom he was pledged to serve.
In early spring of 1383, Carrouges attempted to obtain, through purchase, two estates from Jean de Vauloger. Both estates were within the realm of Count Pierre, whose approval of the sale was thus required. Although the cash exchanged hands between Vauloger and Carrouges, Count Pierre refused to sanction the sale. The count demanded Carrouges turn the estates over to him, though he did offer the knight a payment which matched that made to Vauloger in the purchase agreement. Carrouges was not interested in the money, he wanted the expanded lands for the rents it would add to his income. Nonetheless, the law and customs forced him to honor the count’s decision. He remained isolated from the court and society, a situation which he had maintained since 1380, convinced that Jacques Le Gris had sabotaged his position with Count Pierre.
12. Jacques Le Gris became Carrouges enemy over their positions in Count Pierre’s court
To Carrouges, despite little evidence to support his assertion, Jacques Le Gris became, in Carrouges’ mind, the source of his troubles with his patron, Count Pierre. Le Gris was a fellow squire and veteran of several of the same campaigns as Carrouges. As a member of Count Pierre’s court, he gained favor quickly, arousing jealousy in Carrouges, who felt his influence at court slipping. In 1380, following the death of Carrouges’ first wife, he largely withdrew from society. Both Carrouges and Le Gris were liegemen, retained by Count Pierre, but in Carrouges absence Le Gris’ gained further influence in Pierre’s court. He also gained ruling authority over vast tracts of Pierre’s land, issuing orders in the Count’s name. Le Gris gained control over lands which exceeded the holdings of Carrouges, which greatly nettled the former.
Le Gris’s position with Count Pierre necessarily brought him into legal conflicts with Carrouges in the disputes over land. As Le Gris’s personal holdings expanded, frequently at the expense of Carrouges, the two developed animosity towards each other. In 1384 both men attended a celebration over the birth of a neighbor’s son. The event marked the first time Carrouges appeared in a social setting accompanied by his wife, Marguerite. At the event, Le Gris and Carrouges expressed a mutual friendship before their neighbors and other members of Count Pierre’s court. Shortly after, in yet another attempt to add to his holdings, Carrouges departed on another military campaign in Scotland. It was during this campaign that Carrouges obtained his knighthood, though the campaign itself was militarily unsuccessful. By January, 1386, Carrouges was bankrupt.
13. Carrouges claimed his former friend raped Marguerite while he was absent in Paris
In early 1386, Jean de Carrouges traveled to Paris, hoping to obtain funds owed to him from his most recent military campaign. Marguerite did not travel to Paris with him. In January, Le Gris first heard that Carrouges had accused him of raping Marguerite. According to Marguerite, a servant of Le Gris’s, Adam Louvel, entered the home of Carrouges’ mother, where she had been staying and announced Le Gris was outside. When she declined to receive him, Le Gris and Louvel forcibly entered the home, where Marguerite was alone, and the former raped her with Louvel’s assistance. There were no servants in the house, they were attending Carrouges’ mother as she attended to business in another town. Carrouges demanded a trial in the Court of Count Pierre, though Marguerite refused to appear.
She argued that Count Pierre’s decision would be foreordained, with Le Gris being exonerated. She was correct. Count Pierre found Marguerite’s tale implausible and cleared Le Gris. Carrouges then took his complaint to the Court of King Charles VI, demanding his right of trial by combat. The King ordered the case to be heard before the Parlement of Paris, a body of nobles and churchmen. There, the visibly pregnant Marguerite related her story. The learned men of the medical profession announced to the court that pregnancy was immaterial to the case, as it was impossible for a woman to become pregnant as a result of a rape. Although there is evidence that Le Gris’s own lawyer, Jean le Coq, considered his client guilty of the charge, Le Gris insisted he was innocent. When Carrouges demanded his right of trial by combat before the court, Le Gris accepted.
14. The Parlement of Paris heard witnesses before arriving at their decision
Adam Louvel, as well as several servants, gave testimony before the Parlement and were subject to trial by ordeal to ensure their veracity. According to the priests responsible for the interrogation, none of the witnesses provided evidence indicating Le Gris’s guilt. The trial ran throughout the summer of 1386. Le Gris provided, in addition to the witnesses, information indicating he had been nowhere near the site of the accused rape during the period it was alleged to have taken place. Other squires in the service of Count Pierre supported his alibi. By September it was evident that the Parlement could not reach a verdict in the case. The Parlement decided the issue would be settled by judicial combat. It also announced that Marguerite would appear at the combat, and if Le Gris prevailed, indicating his innocence, she would suffer death.
Their decision required the approval of the King, who was then campaigning in Flanders. When the King was informed the duel would take place in late November he issued a postponement. Not wanting to miss such a historic event, he scheduled the duel for December 29. The Abbey of Saint Martin des Champs, outside Paris, was selected as the site for the combat. Stands for spectators and a Royal Box for the King and his retinue were erected at the Abbey. Nobles from throughout the King’s realm prepared to attend, and seating for the lowborn was provided. For the latter, warnings were issued that the combat was to be viewed in silence, at the pain of losing one’s hand should they make noise. The weapons were selected, with both men jousting with lances, attempting to unhorse their enemy. They were also to carry a broadsword, battleaxe, and a dagger.
Technically, Jean de Carrouges, having been knighted during his most recent military campaign, outranked his foe, who remained a mere squire. In order to ensure both men were on the same strata of society, Jacques Le Gris was elevated to the knighthood after entering the arena in which the battle took place. Before the ceremony making him a knight, both Le Gris and Carrouges repeated their charges against one another; Carrouges accusing Le Gris of rape, and the latter accusing Carrouges and Marguerite of making false charges. To this, they swore an oath before the Parlement, the King, and God. The oath was a necessary step to ensure the Almighty would intervene to establish the truth and resolve the proceedings. They then mounted their horses, with lance and shield deployed, and charged each other.
The first two charges were uneventful, on the third, both men’s lances were broken. Remaining horsed, the two men fought with battleaxes until Carrouges’ horse was wounded, throwing him. He successfully regained his feet, wounding Le Gris’s horse in the process, and the two men faced each other on foot. Then armed with their broadswords the two men continued to fight. Le Gris drew first blood, wounding his opponent in the thigh. As he moved in for the kill, Carrouges grappled with Le Gris, forcing him to the ground. Both men wore heavy armor, and Le Gris could not regain his feet as Carrouges lay upon him. Le Gris then called out, once more proclaiming his innocence, before Carrouges killed him using his dagger, stabbing him through the throat. The crowd received the divine judgment with cheers of approval, and Carrouges received several awards from the King.
16. Jean de Carrouges received financial rewards from his King following his victory
Jean de Carrouges received an immediate financial reward from the King, along with a promise of an annual stipend for the remainder of his life. The victorious knight, accompanied by Marguerite, then led a procession to the Cathedral of Notre Dame. Le Gris’s body was dragged through the streets, stripped of his armor and clothes, to be hung to rot with those of other criminals. Eventually, the remains were disposed of in a common grave, without benefit of clergy, since he had obviously sworn a false oath before God. The Parlement of Paris added an additional sum to Carrouges’ remuneration, giving him sufficient wealth to purchase the lands he coveted. In this, he failed. Count Pierre held title to the lands and had supported Le Gris. He refused to sell them to his favorite’s killer, despite the ramifications of divine judgment implied by trial by combat.
By 1390, Jean de Carrouges had been elevated to a position as a Chevalier D’honneur, placing him in the bodyguard of the King. Despite his favorable position in the King’s court, and his financial rewards, he could not persuade Count Pierre to part with the lands he believed were his by right of dowry. He participated in several more campaigns against the English and their allies and maintained residences in Paris and Normandy. The story of his accusations and trial by combat became a near legend across France, and he enjoyed the notoriety which it brought him. Marguerite bore him an additional two sons. In 1392, Carrouges was one of several royal bodyguards forced to subdue the King when he went mad during a campaign in Brittany. It was the first of several periods of madness suffered by King Charles VI in the later years of his reign.
17. Jean de Carrouges returned to the wars despite achieving considerable wealth
In 1396 Jean de Carrouges joined in the Crusade of Nicopolis, serving under Jean de Vienne. The army swept through Central Europe, fighting the forces of the Ottoman Empire. They captured the now Bulgarian fortress city of Vidin, and in the honored tradition of the time massacred the Ottoman residents of the town. They then proceeded to Nicopolis, which they found too strongly defended and fortified to take by assault. The crusaders established a siege, and when they learned of a large relieving force nearby, attempted to force the city in an attack in late September. Both Carrouges and his commander, Jean de Vienne, perished in the battle. By then, Carrouges and his battle with Jacques Le Gris had already attained near-legendary status throughout France. Several versions of the story, embellished by the tellers, appeared in French literature. Yet even before his death, there were those who questioned Carrouges’ version of the story.
Both Voltaire and Denis Diderot wrote of the judicial combat, though neither claimed it to be the last example of approved judicial combat in French history. Over the centuries it gained that reputation, though judicial combats continued in France well into the 16th century. They fell out of favor with the Roman Church, and thus pressure from the bishops and cardinals led to the nobles’ disapproval of the “right” cited by Le Gris and Carrouges. Charles I of Great Britain interceded to prevent judicial combat in England in 1631, though Parliament did not abolish judicial combat until 1819. In Shakespeare’s Hamlet, Laertes and Hamlet engage in judicial combat. Both characters die as a result of the combat. Technically, judicial combat was still legal in the British North American colonies at the time of the Declaration of Independence, and the ensuing United States has never legally abolished the practice.
18. The practice of fighting duels evolved from trial by combat
Fighting a duel to resolve private differences was widely practiced among the nobility concurrent with the sanctioned trials by combat. Laws against the practice of duels existed while trial by combat was still widely asserted to be a right among the nobility. In the early years of the 13th-century dueling was officially outlawed by the Church, via the 4th Council of Lateran. Trial by combat was officially authorized by a court. Duels were arranged by the individuals involved, who negotiated the conditions of combat and the weapons to be used through representatives called seconds. Between the issuing of a challenge and the conduct of the duel itself, neither involved party could officially recognize the other. They were controlled through the Code Duello, which first appeared in Renaissance Italy. France had a similar code, which was formally published.
Duels were not necessarily fought to the death, though those arrangements could be made by the seconds. The emergence of firearms made the practice of dueling yet more dangerous since the practice of medicine lagged far behind the development of weapons. Even the slightest wound could fester, and eventually kill. By the late 18th century the practice of dueling was frowned upon by the authorities in most European countries, though in the more independently minded American colonies, and later states, the practice continued well into the 19th century. One of the most famous duels in history, that between Alexander Hamilton and Aaron Burr, took place in New Jersey, though both men resided in New York. The site was selected because New Jersey did not aggressively enforce its laws against dueling, while New York did. New Jersey did indict the victorious Burr, though the charges were dropped.
In 2020, a Kansas man requested a court in Iowa sanction trial by combat to resolve a child custody dispute. He called for his ex-wife to engage in combat, to be fought with Samurai swords, though he suggested that his former spouse’s lawyer could stand-in for her, in the role of a champion. He made clear in his petition to the court that he intended to kill whomever of the two appeared against him in battle. In March 2020, in response to the man’s request, the court ordered him to undergo a psychological evaluation to determine whether or not he was sane. After the evaluation gave the petitioner a clean bill of mental health the court found him sane, and the petitioner demanded his ex-wife and her attorney undergo similar evaluations.
Other legal disputes have led to similar motions in courts in the United States, which has never outlawed trial by combat specifically, at least not at the federal level. All states outlawed dueling, most of them before the Civil War. Dueling fell out of favor among the general public, though it lasted longer in the Old South than in the rest of the country, and by 1860 was all but gone. In 1983 a Delaware court rejected an appeal for trial by combat submitted by a defendant, citing the illegality of dueling in the state. Such requests are not limited to the United States. In 2002 a British court denied a request for trial by combat. The request was made over a dispute between the plaintiff and the Driver and Vehicle License Agency. Great Britain officially abolished trial by combat (called wager of battle in Britain) in 1819, through an Act of Parliament.
20. The emergence of the jury system brought an end to trial by combat
By the beginning of the 14th century, the legal profession and the practice of trial by jury gradually brought about an end to the practice of trial by combat, though several occurred into the 16th century. The opposition of the Church to the practice rendered it unpopular with courts and magistrates. Nonetheless, many nobles and minor nobles, such as Jean de Carrouges, demanded it as their birthright. The last known legally sanctioned judicial combat in France took place in in the mid-16th century. In Britain, the last likely occurred in 1597. Other proposed wagers of battle in Britain were circumvented by the intervention of the monarch, including Elizabeth I and Charles I during their reigns. Certainly, the most well-remembered of all trials by combat remains the affair of Jean de Carrouges and his slaying of Jacque Le Gris.
In the centuries since, some scholars have argued that Le Gris was unjustly maligned by Carrouges, whose motives seemed to be the removal of a rival from court, rather than outrage over his wife’s rape. Others have stated Marguerite put her own life at risk by refusing to recant her charge against Jacques Le Gris. Had her husband lost the battle, she faced burning at the stake. Thus, three lives were at stake when Le Gris and Carrouges took the field. Had Le Gris confessed to the crime of rape once combat had begun, he would have been executed, though not for rape, a property crime. He would have been executed for giving a false oath before God. Following his death, the absurdity of relying on the Almighty to render judgment on those accused of a crime through trial by combat gradually led to its fading into history.
Where do we find this stuff? Here are our sources: