In Westeros, the right to trial-by-combat mostly seems to be a sincere nod toward religious tradition. How else to explain a system that led to the twists and turns of the latest episode of Game of Thrones? For a moment, it looked as if our diminutive hero Tyrion Lannister might actually be forced to battle for his life against The Mountain, Ser Gregor Clegane. But then the fearsome warrior, poet, and brothel aficionado Oberyn Martell unexpectedly volunteered to step in as Tyrion’s champion. What once looked like a rout for the prosecution has turned into a fair match.
Allowing for those sorts of random contingencies doesn’t make much sense from a criminal justice perspective, unless you really do believe that a deity is out there picking winners and losers. Yet trial by combat was, in fact, a real feature of medieval law. And, as one researcher has argued, it might have served a completely rational economic purpose.
According to Peter Leeson, a professor of law and economics at George Mason University, the English used trial by battle as their main tool for deciding property disputes from the time of the Norman conquest until 1179, at which point it began fading from use. One party could challenge another’s claim to a plot of land or fishing rights, and if the allegations seemed plausible, the authorities would order a duel in which both sides could be represented by a champion of their choosing. Despite some poorly enforced rules governing whom the plaintiff could and could not pick as their battlefield representative, in most cases both sides simply commissioned a brawler for hire. Come trial day, the champions would theoretically fight until one was killed or conceded the match by shouting “craven.” (The current property owner’s champion could also win by prolonging the fight all the way until nightfall). The winning side came away with the land, ostensibly under the theory that God was on their side.
“Trials by battle were literal fights for property rights,” Leeson wrote in a 2011 paper.
Of course, this all sounds rather barbaric and superstitious. But Leeson argues that trial by battle was a surprisingly “sensible and effective” system for assigning land rights given the regulatory constraints of the time. Norman England’s elaborate system of feudal property laws made it exceptionally difficult to buy and sell real estate. Trial by combat served as a clever workaround—a loophole that let the local government effectively auction off land to whichever bidder could make the best use of it.
Or at least award it to whoever was willing to shell out for the best muscle. Like trial lawyers today, some medieval champions charged more for their services than others, presumably because they had a solid track record of bludgeoning their opponents into submission. They also had no compunctions about working for the highest bidder. And so in a trial by combat, paying for champions took the place of paying for land. In theory, Leeson writes, the most industrious farmers should have won these spending wars, since they stood to make the most money off any given parcel of dirt. The system would have lent itself to abuse by the very rich, but these contests appear to have been prohibited between individuals with vastly different status and wealth.
One important piece of evidence that the trials by combat were essentially economic exercises was that they rarely ended in blows. According to Leeson, historical records suggest that between two-thirds and 80 percent of cases settled. As the jurist and historian Sir Frederick Pollock once wrote, it is “abundantly clear that trial by battle in civil cases did from an early time tend to become little more than a picturesque setting for an ultimate compromise.”
In the event that a deal couldn’t be reached, the action itself was a bit less gripping than what you might find on HBO. Leeson writes:
Champions didn’t fight with lances on horseback. They didn’t even fight with swords. The law required combat with far less lethal weapons: baculi cornuti.
Baculi were short clubs. Sometimes they were horn tipped. But the basic variety was no more than a wooden stick. The law also instructed champions to carry bucklers—small shields. When the judicial system ordered trial by battle, it didn’t order champions to slay one another. It ordered them to club one another donning protective gear.
Between the dinky equipment and the fact that champions could cry uncle, combatants rarely died during the trials, which were nonetheless treated as spectacles by the local populace, who lined stands to “enjoy the justice system in action.”
Once the English began to loosen their land laws, and a functioning market developed, Leeson writes that trial by combat fell out of fashion. By the end of the 13th century, they were “antiquated curiosities”—ones we can thankfully still enjoy today, through the magic of television.
