Trial by Combat

By Ashleigh Brilliant   |   April 12, 2022

One of the best tests of a civilization, is how disputes are settled. You can’t prevent them from arising. There are just too many different ways people can come into conflict with each other, particularly over territory, property, or sexual relations. Methods of settlement can range from pure force to peaceful adjudication. Of course, both methods work best if both parties accept the result.

Force probably has a much longer history – since it doesn’t even require language. And trial by combat has actually been an accepted part of many legal systems for millennia. In fact, it was not until as recently as 1818 that the laws of Great Britain, which, then and since, have been regarded as the world’s standard for judicial propriety, were changed to disallow what was known as “trial by battle.” 

Until that time, there was, on the books, a law which permitted one person, in certain circumstances, to claim the right to settle a dispute by fighting it out, one-on-one. This was not the same as dueling, which never had official legal status, and certainly was never arranged through the courts. The climactic case, Ashford v. Thornton, was an ugly matter, involving charges of rape and murder of a young woman named Mary Ashford by Abraham Thornton. Thornton had been acquitted by a jury, but, under the law as it then still stood, Mary’s brother William, who, along with most of the British public, believed Thornton guilty, had the right to challenge him to battle. Strange as it may seem, there had to be a literal throwing down of a gauntlet in the courtroom. And the person being challenged had to pick it up. But Thornton refused to do so – i.e., he did not accept the challenge – so there never was any actual battle. As a result, both of the last two people who might legally, under British law, have done each other to death, survived. 

But all this had caused such a stir that, very shortly thereafter, Parliament acted to abolish the whole concept of trial by battle, which, in any case, had, for centuries, already been a virtual dead letter.

Like it or not, however, when it comes to disputes between large groups, such as nations, there is still a very common traditional method of reaching a settlement, called War. And despite the adage that “All’s fair in Love and War,” we tend to hear much more about “war crimes” than about “love crimes.” There have, in fact, over recent centuries been various attempts to codify “laws of war.” And there still exists, at The Hague, in Holland, an “International Court” which tries such cases.

But nations still insist that there is no higher law than their own sovereignty. This sentiment is well illustrated in the chorus of a British popular song of 1878, when, after defeating the Turks, Russia threatened to capture the strategically highly important Turkish city, then still the capital, and still called Constantinople:

We don’t want to fight – but, by Jingo, if we do,

We’ve got the ships, We’ve got the men, We’ve got the money too –
We’ve fought the Bear before, and, while Britons shall be true,
The Russians shall not have Constantinople.

True, Britain (together with France) had fought – and defeated – the “Russian Bear” a generation earlier, in what we now call the Crimean War – and which you may know of principally because of Florence Nightingale, and the “Charge of the Light Brigade.”

But the reason I am bringing all this to your attention here is because of one word in that song: the word “Jingo,” which gave rise to a whole political and cultural phenomenon known as “Jingoism.” This came to mean “extreme patriotism, especially in the form of an aggressive or warlike foreign policy.” In this case, war was avoided, and Russia never did get (what’s now Istanbul) – but she would still like to have it!

But the same phenomenon may, to a large extent, be blamed for both World Wars, and other conflicts since. We do now have a United Nations Organization, but the term “United” remains a hope rather than an actuality.

Incidentally, Constantinople was named for Constantine, the first Christian Emperor of Rome. One of his most important victories was attributed to his having seen a cross in the sky, with words meaning “In this sign thou shalt conquer.” I know of no equivalent anecdote for any celestial message saying, “In this sign thou shalt make peace.”  


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