Presentation on theme: "Judicial duel in medieval Hungary– reconstruction and interpretation Tyrnhau 2013 18. – 20. 10. 2013."— Presentation transcript:
Judicial duel in medieval Hungary– reconstruction and interpretation Tyrnhau 2013 18. – 20. 10. 2013
Conceptions and perception of ordeal in sources – as a method of revealing the reality? First mention of solving a dispute by the means of a duel comes from a foundation deed to a monastery in Zalavár by Stephen I. from the year 1024: „We wish also that, if the need would require against impudences of invadings of laws or possessions, and not let God's glory through this breach, royal majesty, place or time should it be required, for the said church to provide, by their kindness, a pugil, and this pugil through everything prepared."
It is obvious from the eldest sources that a duel was a form of the ordeal. This is supported by the way it is usually described – most frequently as a examination. “… so as through the duel of the pugils from both sides brought, a clearer decision would be made“ king Belo IV. in 1247 „The pugils stood face to face, resigning themselves to the judgement of the Lord“. Palatine Roland in 1253 „... and duels,............ entirely forbidding the misuse through which God is tempted and rightful decisions wronged“ Pope Urban IV. to the Templars in Hungary in 1263
In what cases did the duel decide and what is the duel as an ordeal supposed to reveal? In numerous property disputes, i. e. as to the ownership, rights (as in 1228 concerning fishing rights), the land, toll revenues, or tithe. Understandably also in more serious offenses, as mayhem (such as blinding, cutting off of legs/arms and similar), robbery and stealing, murder, or in the case of accusation of treason, or even for production of falsified coins.
The specifics of a duel as an ordeal In more serious cases, the offender is often mentioned by name in the documents, or even the reality is testified by witnesses. Why then is it necessary to perform a test by duel? We could answer with a hypothesis that the ordeal (and so also the duel) is set above the mundane law, similar to an oath. It is a system of one “big” proof which ignores all “lesser” proof. It is based on a divine intervention and according to this deep meaning must be understood as God’s will. Asking God what to do through the ordeal and its like was a crude request for sign. What was needed was machinery to assist the human judge in exercising his own discretion, preferably with divine guidance.
A pragmatic solution also presents itself. Medieval judges were afraid of making bad decisions and sending an innocent person to their death. This could lead to eternal damnation. Duel-ordeal offered the possibility of transferring the accountability and releasing the conscience from a huge burden. Similarly, the witnesses didn’t like to testify against close friends or family and didn’t like swearing an oath, which was definitely a risky business for the soul. Which clearly implies that refusal to swear an oath was an impulse for ordering a duel. However, in the second half of the 13th century, the duel is replaced by the oath. We can observe these changes most clearly in town privileges: i. e. Trnava 1235, Vasvár 1279. Here, the oath is set on one level with duel. The meaning of oath lies in the judgement being again in God’s hands, but with a delayed impact.
Given conceptions in the relationship duel-oath are probably a foreshadowing of changes in perception of duel which took place at the turn of 13th and 14th century. Most importantly, the notion of duel as a test is fading from the documents and execution of justice is not surrendered to God anymore. Furthermore, from the beginning of 14th century, not the judge, but the sides in conflict demand the execution of duel. But the decision-making conception is substituted by demonstrative one. The testimony of duel is now added to the testimony of witnesses, and is supposed to confirm the witness’ testimony, as is stated in a document by a regional judge Pavol on the subject of violent behavior: „As it is approved and common in the law of the kingdom to determine the truthfulness of testimonies by doubling them with duels or oaths…“ What is the difference from the previous possibility to substitute duel with oath? The difference is that in this case, it was not the honor of the prosecuted to be sworn (as it was in the 13 th century), but the truthfulness of the testimony. The duel therefore becomes a real judicial duel, free from the conception of “God’s judgement“.
... in poena succubitus duelli facti potentialis convinceretur... It was for the guaranty of fulfilling the conditions of reconciliation that they used to be reinforced by a sanction, which in Latin sounds: in poena succubitus duelli facti potentialis convinceretur – the penalty of forfeiture of the duel for the deed of violent behaviour. It meant that when solving a violent behaviour case, the prosecuted was required to lose the duel. It was a kind of a threat used to reinforce a certain right or as an insurance in a legal matter. In 14th and 15th century, this sanction was often used in agreements.
A thick line was made behind the demonstrative idea behind judicial duel is a royal decree of Mathias Corvus from the 25 th of January 1486, in which the ruler also summarized the rational arguments against duelling. In the 18 th article, it is stated: Then, since the waging of judicial combats gives rise to much fraud, for those who have to fight this trial seldom fight for themselves but hire fighters who often accept gifts, favors, and promises, and since they are not usually duelling for themselves, even allow their party, however just, to fail, therefore, it was decided that this kind of judgment, which in unheard of elsewhere in the world, be forever abolished and have no place in cases of violent trespass or possessory rights..... except for those cases where all evidence is lacking, such as when one person robs another person alone on the road without anyone seeing it, or if a person makes a loan or tells a secret to he ears of another person without any witnesses.
Procedure and form of duel Beginning of dispute The judge accepted the testimony of witnesses or letters of acquisition of property as evidence, but not the oath. He ordered oath or combat. If the combat was ordered, then place and date was decided. Since the turn of the 13th and 14 century the sides in conflict challenge each other to the duel. From the sources of 14 century, we know that it was a wooden peg, popularly called Chewko / Cewiek. Time to duel was always different. In 1244 granted the Palatine only three days to combat, sometimes it was 66 days, or 62 days.
Duel Litigants fought in person, or by pugil. Pugils could be divided into experienced (pugil congressus) or inexperienced (pugil incongressus) in fight. In the earlier period pugils who previously had not fought were preferred. Litigant or pugil were expecting his opponent at all times, even when he was not coming, at the place of the fight, until the evening ringing. If the counterparty definitely did not appear, the judge “led” the pugil from the battlefield as the winner. Duel could run up to dusk. If no side was defeated until then, the dispute was usually closed with reconsilliation.
Weapons In general, the duel is characterised like duellum in armis, et equis, also duellum equestre, or so duellum pedestre. Occasionally, however, sources specifically define such weapons for the fight. Sometimes a fighter could carry into the combat: spear, shield, two swords, mace and dagger. Record from 1323, however, called for common practice of the Kingdom, when the parties are fighting unarmed combat only with spears. Pugils fought with spears also in 1347, who then continued to fight with "Bulgarian club”. Normally, however, during the 14th century we meet with the regulation that pugils had to fight super equis, et armis in militaribus. In the case of a serious offense such as treason, there was a so-called duellum nudum, i. e. the warrior fought personally and without armor, in a shirt and with one sword. In every case, to this fight was to the death.
The end of the duel Apart from death, it was sufficient for the blood of the defeated to colour the ground. A combatant was also defeated if he left the combat area or one who was unable to fight anymore due to injuries, fatigue, or loss of weapon. In less serious disputes, such as the property disputes from earlier period, the duel did not have to be fought to death. For example, in 1289 a certain Arnold was forced look after a certain victor’s property after losing a duel.
Bibliography: Béli, Gábor. A Succubitus Duelli Facti Potentialis. In: Balogh, Ágnes, Hornyák, Szabolcs (eds.): Tanulmánykötet Erdősy Emil professzor 80. születésnapja tiszteletére. Pecs 2005. Dvořáková, Daniela. Súboj ako spôsob riešenia sporov o česť v stredovekom uhorskom práve. In: Borovský, Tomáš – Janiš, Dalibor – Malaníková, Michaela (eds.). Spory o čest ve středověku a raném novověku. Brno 2010. Fejér, Georgius. Codex diplomaticus Hungariae ecclesiasticus ac civilis. Tom I-XI. Budae 1829-1844. Pesty, Frigyes. A perdöntő bajvivások története Magyarországon. Pest 1867. Wenzel, Gusztáv. Árpádkori új okmánytár. Codex diplomaticus Arpadianus continuatus. I-IX. 1001-1290. Pest 1860-1871.
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