Trial By Combat: It Was Real And Spectacular

Game of Thrones always touches on interesting legal issues. For instance, when the government's dragons charbroil your flock of goats, you can totally recover damages under the common law theory of "trover." Mhysa isn't being nice, she just has a competent understanding of tort law.

Of far more importance to the Westerosi justice system is the idea of "trial by combat." Apparently, any accused person can claim this "right," and have champions fight on their behalf to determine their legal fate.

Trial by combat isn't a mere invention of George R.R. Martin or other fantasy writers who find stabbing drama to be more interesting than "courtroom drama." Trial by "battle" was a remedy under English common law, and by extension American common law.

And you know what, it was a pretty good idea! Not necessarily in the way it's portrayed by HBO, but historical, real-world trial by battle was actually a fairly just and smart way of handling certain disputes...

Trial by battle was popularized in England by William the Conqueror (who, I just learned, was apparently called "William the Bastard" before he started, like, conquering people). The practice was never particularly widespread, but it could be used in response to three types of situations. It turns out that two of those situational uses make a lot of sense.

The most common use was in a land dispute. "I own up to that tree." "No you don't." "Let's fight." Just like on GoT, the people in conflict would choose champions to fight for them... technically to the death, but most often to the "ow, you win."

An article by economics professor Peter T. Leeson of George Mason University argues that trial by battle in this situation was a perfectly rational and economically efficient way of managing those types of land disputes. There were "champions for hire." Some were better and more expensive than others. How much money you were willing to pay for your champion probably roughly coincided with how much the extra property was worth it to you.

You shouldn't think of it as a poor person in a property dispute with a wealthy land owner. You should think of it as two impossibly rich land owners squabbling over who has access to a pleasure lake. We need to spend time and resources on judges or juries for this? Screw it. I bet we'd get the Pacquiao-Mayweather fight if it was the only way Samsung and Apple could settle their business.

The second, basically reasonable situation trial by battle was used was in courts of chivalry over disputes of honor. I don't even have to explain this: your mother smells of elderberries, gauntlets down, knights jousting. Again, who has a problem with this today? Instead of Tom Cruise threatening to sue South Park, wouldn't you just rather see Cruise and John Travolta fight Matt Stone and Trey Parker in the octagon?

The most popular, yet least used and least defensible trial by battle option was in the criminal context. That's how it's portrayed on Game of Thrones. A man stands accused of something, a show trial is convened, the man has the option to fight to the truth in the absence of a formal trial.

You can see why this wasn't the preferred method of criminal justice, even in medieval England. Why would a king go through the trouble of setting up a show trial only to have it thwarted by the vagaries of hand to hand combat? We're talking about kings here, divine-right monarchs. Trial by combat doesn't put the decision in the hands of God, the king IS God. Nobody was getting out of a state criminal proceeding by hiring a good fighter.

However, in their book History of Criminal Justice, Mark Jones and Peter Johnstone explain that trial by battle was used when the accuser and criminal defendant were both private parties. Again, this looks more like the land disputes we talked about earlier. "He killed my friend." "No I didn't." "LIAR [draws sword]."

So, the most accurate use of trial by combat in Game of Thrones is actually the Sandor Clegane-Beric Dondarrion fight. I bet you didn't think that.

In any event, trial by battle all but completely died out in England after the Crusades. Jones and Johnstone say that in 1819, a criminal actually got away with his crime by asking for a battle, and after that embarrassment, England officially outlawed the practice.

Note the date: 1819 is long after American independence. And remember that the original colonies adopted all of English common law that they didn't specifically overrule in the Constitution or other laws. So... technically, you could make an argument that trial by battle is still a legal remedy in America.

I don't think it is, but maybe we should bring it back. Society would probably be less litigious if Law and Order occasionally turned into Game of Thrones.