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Trial by Combat? Trial by Cake

daily.jstor.org

60 pointsGW15091422 comments

I tink this practice is an understandable pressure release valve for early societies with poor rule of law. If your court rules consistently against the strongest people it will have trouble remaining in power, but if the legal order is set up to be subordinate to the "natural" (most easily achieved) order it will have an easier time prolonging its own existence. It essentially means, "you can break the law, but only if we would have a very hard time stopping you."

If the government exists to serve the people, that's insane - but if the courts are just resolving disputes between people with no power then the nobles will be incentivzed to prioritize stability over any other goal.

The rule back then had less to do with "might makes right," and more to do with "power goes to whoever manages to obtain it."

Aren't attorneys rather like champions? It's not physical combat, of course, but it's arguably combat, all the same. And the wealthy do have a considerable advantage, just as they do in physical combat, through hiring strong champions.

> Aren't attorneys rather like champions?

They have the same relationship to trial-on-law-and-facts that champions have to trial-by-combat (and, like champions, they are optional.)

In fact in the UK, the barrister literally evolved from the role of champion. Solicters, in contrast, do not appear before the bar at trial. In the US, both roles were combined.

"If an accused man died before the time of his duel, his corpse would be carried to the appointed place. In fact, there was at least one case of a dead man winning his duel: His body was too heavy for his appointment to carry from the field of battle, so the corpse was declared the victor."

The source for this is interesting - the old English it quotes is fascinating, though rather unintelligible:

https://www.jstor.org/stable/pdf/25526750.pdf

This is my best, imperfect, translation.

“It might fall so [come to pass] that the appealer dies before the day. His legal surety are bound under great pains, comes and enters his dead body within the barriers to free them of their duty...”

It then goes on to say that if the defender enters the “arena” (they’re calling it a barrier) and finds the prover dead, “and he can not slay a slain man, and he himself is not yet purged of the crime,” of which he is accused, then his only recourse is to carry the dead body outside of the field of honor before the end of the day. It also explains that the friends of the dead man can possibly appoint a champion for the dead guy, if the judge will allow it.

The next paragraph explains that he’s heard once, “that when the dead man was laid within the barriers he was so heavy that the other man was not strong enough to put him out of the barriers,” before the sun set. So the friends of the dead man asked the judge for a ruling, and the judge found in favor of the corpse, upholding his accusation against the defendant! “And some say that this living man while he was casting the dead man out of the barriers he fell backward on his back and the dead man on his breast, and could not [get rid of him] until the day ended. And so be the law that he was judged of the crime...” and so on.

Weird, wild stuff.

>alle the condyscyons of thys foule conflycte

I'm almost positive this is "All the conditions of this foul conflict." which also fits with the passage knowing that "y" = "i" and that the silent "e" was present in far more words than it is present in today. "Translating" in that way tends to make more sense of old English.

But why wasn’t the “th” in that sentence a letter thorn? þ

https://en.m.wikipedia.org/wiki/Thorn_(letter)

That substitution was actually a result of printing text, and limiting the number of characters used. In the 13th century Scotland this was all going to be written by hand, so y was still an “i” or a “u” and thorn would have been its own character; uppercase þ, lowercase ð.

For an earlier example of y as a u, and thorns all over the place, try some of this intermediate Saxon circa 9th century

http://www.sacred-texts.com/neu/ascp/a02_05.htm

Feala ic on þam beorge gebiden hæbbe wraðra wyrda. Geseah ic weruda god þearle þenian. þystro hæfdon bewrigen mid wolcnum wealdendes hræw, scirne sciman, sceadu forðeode, wann under wolcnum. Weop eal gesceaft, cwiðdon cyninges fyll. Crist wæs on rood.

Amusingly, G’s at the start of a word are used like Y’s are used today, Y’s are U’s, and small furry creatures from Alpha Centauri were REAL small furry creatures from Alpha Centauri.

> thorn would have been its own character; uppercase þ, lowercase ð

I think you've actually got uppercase thorn and lowercase eth.

That's lowercase of both.

Thorn: Þ, þ (as in "thick")

Eth: Ð, ð (as in "the")

This doesn't actually point to a PDF. But rather a webpage, which shows only the first of three pages.

See instead https://sci-hub.tw/https://www.jstor.org/stable/pdf/25526750...

I think one of the most glaring differences between ancient East Asian societies and Western societies is trials and the court. To the best of my knowledge no East Asian society (or for that matter, any society outside Europe) had anything remotely resembling trial by combat.

From what I've read court decisions in ancient Korea and China were decided simply by the village chief, often appointed by the king. Which has its own set of problems, but none of this trial by this that nonsense.

That’s probably because, as said in the article, the inspiration and precedent for trial by combat was David vs Goliath story from the Bible. Non-Christian cultures had no basis to ever try something like that

Well, David vs Goliath was just a justification for allowing the practice to continue. It existed in pre Christian Germanic tribes.

Dueling with swords, until first blood, ought to be leagal. Not to decide guilt, but as a way of settling slights. Of course I fence, so I’m slightly biased.

Does first blood count if you just chuck your sword at the other person like a spear?

Sure. Though that would be a delope.

https://en.m.wikipedia.org/wiki/Deloping

I think we should just wrestle until pin or submission.

Of course, I'm a brown belt in Brazilian Jiu Jitsu, so I'm slightly biased.

How hard is it actually to kill/maim someone with a single strike? I feel like it wouldn't be all that uncommon.

Unarmoured, with live steel?

I took a few short-sword lessons a while ago. The First thing we were taught was a simple block, the second thing was how to defeat a simple block by twisting your blade into the other guy's neck. The third thing was how not to get stabbed in the neck that way. It went back and forth from there.

I suspect a good cut to the neck would be the most common wound, and it would have a good chance of being a mortal one.

Imagine if the Purple Wedding had ended with a celebratory fight- a joust?- gone tragically awry, and Tyrion was prosecuted with pastry.

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