Trial by Combat

There's Something Sophomoric About Rudy

Trial by combat, Germany, 14th century.

On January 6, Rudy Giuliani stepped to the mike and told a few thousand friends that it was time for "trial by combat." This was at a gathering in the Ellipse, just south of the White House, and he was warming the crowd up for the headliner, Donald Trump. 

I have the impression that Rudy doesn't know very much about trial by combat. Maybe he should read some Shakespeare - Henry VI, Part 2, to be specific. 

The three parts of Henry VI are mainly about the Wars of the Roses, although Joan of Arc manages to put in an appearance in Part 1 (Will doesn't like her - she's French). My favorite character is Margaret of Anjou (another Frenchwoman). Her undisguised contempt for her husband, King Henry VI, is a marvel.

The lower classes also get some time on stage. Although the Wars of the Roses are basically about one large family slaughtering itself (all the principals were descended from John of Gaunt), there was also considerable social unrest from below during this time. In Part 2 we have Jack Cade's rebellion, best known for the line "The first thing we do, let's kill all the lawyers." 2H6 4.2.74.

Also in Part 2, overshadowed by Jack Cade, we have a trial by combat between a small-time employer and his apprentice. The employer is Thomas Horner, an armorer (his shop makes suits of armor). The apprentice is Peter Thump, who claims he has heard his boss say unkind things about the king.

The two show up in act 1, scene 3, in what I suppose we can call an arraignment. Peter says that his boss told him that Henry VI was not the rightful king, and that the man who should be king was another descendant of John of Gaunt: Richard, duke of York.

(Richard never becomes king. He is captured in battle in Part 3, 1.4. Queen Margaret taunts him by putting a paper crown on his head. He responds by saying, among other things, "beggars mounted run their horse to death." 1.4.127. Lord Clifford and Queen Margaret then stab him to death, and Margaret orders Richard's head cut off and mounted on the gates of the city of York "So York may overlook the town of York." 1.4.180. )

Anyway, back to Part 2 and Thomas and Peter. Thomas Horner, the armorer, is in a pickle, because, as the duke who is acting as prosecutor notes, such words, if actually spoken, would be high treason. So Horner says that Peter, his apprentice, is lying out of malice. And the king decides on a trial by combat, which occurs a little later, in act 2, scene 3. Both litigants show up with supporters. Both sides have been drinking, and continue to do so onstage. 

Apparently the older man has had quite a lot to drink. He's confident of winning. His young apprentice, on the other hand, thinks he's going to die, and he gives away his possessions - an apron, a hammer, and some money - to his friends.

The actual combat is brief and decisive. Peter the apprentice kills his employer, who gives us a parting gift - "I confess, I confess treason." 2.3.95.

I'm glad Shakespeare threw that bit in. Trial by combat was often seen as showing the will of God, possibly mediated by might makes right. Or maybe, by the time of the Wars of the Roses, simply might makes right. Shakespeare's audience was sufficiently modern that they might have seen death without confession as inconclusive on the subject of actual guilt or innocence.

There's a reason why trial by combat was, over the centuries, gradually being replaced with trial by jury. For all its flaws, trial by jury attempts to get to the actual facts.

Of course, trial by combat is simple and quick and reaches a definitive conclusion, with the added attraction that it's not much work for the authorities. It helps if you're willing to see both of the two combatants as expendable.

I can see why Rudy Giuliani would find it attractive.

But do we really want to live that way? If we settle our differences by violence, we live by violence.

People love to complain about jury duty and make jokes about lawyers. And our modern legal system is indeed cumbersome. But at least it seeks to divert conflict away from violence in the direction of peaceful resolution. And the ideal of justice based on fact and law appeals to me more than the picture of people settling their arguments with baseball bats.

When I was an undergraduate, I had a wise old professor who taught medieval history. One of his tasks was to explain the early development of western legal systems. How did brutish knights gradually get convinced to give up bopping their neighbors on the head when they were annoyed? It was a long, slow process that was only partially successful. But it established a principle: "The purpose of the law is to stop a fight."

There's a good, brief overview of the history of trial by combat in JSTOR Daily. To see it click here.

To be clear, what happened at the Capitol on 6 January 2021 was not a trial by combat. It is part of an argument over whether we keep the Constitution we have, or whether we get a new one, which will look much like the Republican platform in the 2020 election.

Picture credit: per Wikimedia Commons.

See also A Home Invasion.