How could a trial threaten her, when her weakling son was the lord judge? Tyrion glanced at her Moon Door. Mother, I want to see him fly the boy had said. How many men had the snot-nosed little wretch sent through that door already?
“I thank you, my good lady, but I see no need to trouble Lord Robert,” Tyrion said politely. “The gods know the truth of my innocence. I will have their verdict, not the judgment of men. I demand Trial by Combat.”
A storm of sudden laughter filled the High Hall of the Arryns. Lord Nestor Royce snorted, Ser Willis chuckled, Ser Lyn Corbray guffawed, and others threw back their heads and howled until tears ran down their faces.
TRIAL BY COMBAT
The concept of trial by jury is ingrained in the Anglo-American system of justice such that it is other forms of trial that are now forgotten. Trial by fire, ordeal, and torture were once common methods for determining the truth or innocence of the accused. Less common among long forgotten forms of trial, but still a permissible legal procedure, was the right to a Trial by Combat or trial by battle/battel.
Yet, in Game of Thrones, Trial by Combat is presented front and center as the most common form of determining guilt. Active Gods look down from the heavens and only the just and innocent can prevail when locked in a trial combat. Ultimately the decision to abolish Trial by Combat by King Tommen, leads to one of the most horrific acts in Game of Thrones, the destruction of the Great Sept by Cersei Lannister as a solution when denied her ability to defend her innocence from the charges of the High Sparrow by Combat. While all in power knew of Cersei’s guilt, her champion, Ser Gregor Clegane, was the strongest man in Westeros, and after defeating Oberyn Martell his strength was enhanced as his cure from the poison in Martell’s blade turned him into a near zombie, under the total influence of Cersei’s confidant and master, Qyburn, who devotes Clegane to Cersei.
Despite such obvious flaws, Trial by Combat was still a part of the Anglo/American judicial system for hundreds of years. Despite remaining legal in Britain after the American Revolution, the concept was clearly rejected in the United States. The United States Supreme Court, in 1797, mocked the idea, stating, “For instance; though where the State law regulates the descent of real property, the Circuit Court must decide conformably to the lex loci (local law); yet if the State Legislature had instituted the ordeal, or trial by battle, to ascertain who was the right heir, the Judges of the Circuit Court would not, surely, erect themselves into such a tribunal, and preside at such a mockery.”
This position was exactly what was thrust upon the judges of the King’s Bench in London in 1817. Abraham Thornton was the O.J. Simpson of his day, accused of brutally raping and drowning one Mary Ashford. After spending most of the night together, the next morning workers dragged her body from a water filled pit. Thornton was interviewed, searched and then arrested. He freely admitted he had sex with the then virgin, Ashford, but denied killing her. After an inquest found cause for willful murder, a criminal trial was scheduled.
Lovely and chaste as is the primrose pale,
Rifled of virgin sweetness by the gale,
Mary! The wretch, who thee remorseless slew,
Will surely God's avenging wrath pursue.
For though the deed of blood be veiled in night,
“Will not the Judge of all the earth do right?”
Fair, blighted flower! The muse, that weeps thy doom,
Rears o'er thy sleeping dust this warning tomb!
Media of the day painted Thornton as a brutish rapist and murderer, so much so that his attorney complained of an inability to get a fair, unbiased jury. At trial, the prosecution attempted to show that he raped and murdered the girl due to her unwillingness to consent to sex. However, the medical report showed no sign of struggle, establishing that the sex was most likely consensual. In addition, the claimed footprint evidence was ruined by the rains, and Thornton had numerous alibi witnesses. It took the jury less than six minutes to acquit Thornton. Media outrage of the verdict was substantial.
Like O.J. Simpson, Thornton was a free man, but Ashford’s family refused to accept the results, and like Nicole Brown’s family, sought to change the result. While O.J. only faced a civil suit (for which he was found guilty of wrongful death), laws at the time of Ashford’s murder allowed for a criminal appeal to be lodged by a close family member.
Mary’s brother, William, filed a writ of appeal, and Thornton was again arrested for trial. As the appeal commenced, Thornton denied guilt and stated he was “ready to defend the same with my body.” He then donned leather gauntlets and slapped a second pair at Ashford’s table in court. Ashford’s counsel protested, claiming alternatively that the right to trial of combat was archaic and not applicable, but the court, after much argument and delays stated, “The general law of the land is that there shall be a trial by battle in cases of appeal unless the party brings himself within some of the exceptions…. proof to the contrary; under these circumstances, however obnoxious I am myself to the trial by battle, it is the mode of trial which we in our judicial character, are bound award. We are delivering the law as it is and not as (we) wish it to be and therefore we must pronounce our judgment that the battle must take place…”
The terms and rule of the trial by battle were then discussed in open court. Thornton could prove innocence in three ways, killing Ashford, surviving a full day of battle, or by Ashford simply giving up. In the end, Ashford, fearing for his life, withdrew his appeal and Thornton was discharged, with a crowd “so threatening and turbulent that he had to be concealed in a private room until they dispersed.”
Ashford’s argument that he was “incompetent from youth and want of bodily strength to fairly meet the appellee in battle...” was the similar argument made by Tyrion Lannister as he demanded the right to Trial by Combat when accused of the attempted murder of Bran Stark at the Vale. The attempt on Bran Stark was made using an elaborate knife with a dragonbone hilt and a Valyrian steel blade. This weapon is the key piece of evidence against Tyrion, as Lord Petyr "Littlefinger" Baelish had told Catelyn, Bran’s mother, that the knife was his…or was, until he lost it, to the imp, Tyrion Lannister, betting against Tyrion’s brother, Jaime Lannister.
Armed with this seemingly damning evidence, Lady Catelyn, traveling north in disguise, runs into Tyrion at the Inn of Crossroads, as he travels south to King’s Landing. She immediately accuses him of attempted murder, and calls on all of her father’s bannermen to aide her in arresting Tyrion. She then secretly heads to the Vale of Arryn, on the eastern shore of Westeros, where her sister, Lady Lysa Arryn and her son, Lord Robert Arryn rule. At the Vale, Tyrion is placed in a Sky Cell to await trial.
Using the promise of gold to the gaol keeper Mord, Tyrion asks for a hearing so he can confess his crimes. In addition to the accusation of attempted murder, Lady Lysa accuses Tyrion of conspiring to murder her dead husband, the former Hand of the King, Jon Arryn who died suddenly under suspicious circumstances.
Tyrion confesses to numerous “crimes,” but denies any knowledge of the attempted murder of Bran Stark or the murder of Jon Arryn. Enraged, Lady Lysa seeks to send him back to the Sky Cells. Tyrion replies, “Is this how justice is done in the Vale?” Tyrion roared, so loudly, that even Ser Vardis Egan froze for an instant. “Does honor stop at the Bloody Gate? You accuse me of crimes, I deny them, so you throw me into an open cell to freeze and starve.” He lifted his head, to give them all a good look at the bruises Mord had left on his face. “Where is the king's justice? Is the Eyrie not part of the Seven Kingdoms? I stand accused, you say. Very well. I demand a trial! Let me speak, and let my truth or falsehood be judged openly, in the sight of gods and men.” Lady Lysa accepts, offering to allow her son, the Lord of the Vale to pass judgment.
Knowing that the boy Lord Robert Arryn only desired to send Tyrion through the moon door, an open portal in the floor, Tyrion refuses to allow him to pass judgment. “I thank you, my good lady, but I see no need to trouble Lord Robert…The gods know the truth of my innocence. I will have their verdict, not the judgment of men. I demand Trial by Combat.”
Lady Lysa acknowledges the right to Trial by Combat, and numerous knights immediately sought to serve as her champion. Ser Vardis Egan, a Knight of the Vale, declines due to Tyrion’s size. “The man is no warrior. Look at him. A dwarf, half my size and lame in the legs. It would be shameful to slaughter such a man and call it justice.”
Tyrion seizes on this insult and demands his own champion, saying he has that right. Despite the belief that the outcome was chosen by God, not the skills of the combatants, it was not denied, in certain cases of the inequities between the parties, such as Tyrion, Lannister who was half the size of a normal man. As early as the 11th Century England, certain citizens were also granted exemption from Trial by Battle. “Citizens of London or peers of the realm in certain cases and a woman, a priest, an infant, a man of sixty or over, or one maimed lame or blind was entitled to refuse the wager of battle and insist upon a trial by jury.”
Seeking his brother Jaime Lannister to serve as his champion, Lady Lysa refuses, demanding that the trial begin immediately. Tyrion then uses the offer of gold to anyone who will stand for him. At first no one will come forward, but then the sellsword Bronn volunteers, stating, “I’ll stand for the dwarf.”
Bronn rejects a shield, and fights in boiled leathers versus a fully helmeted, shielded and armored Ser Vardis. Bronn allows Vardis to freely swing without contact, wearing him down. Bronn connects to his side, and then his leg. A final charge allows Bronn to trip Vardis, forcing him to the ground. Bronn looks defiantly at Lady Arryns, and then drives his sword into Vardis’ neck. He falls over and into the open moon door to his death.
Lysa is enraged, telling Bronn, “You don’t fight with honor.” He replies, pointing down the moon door, “No, he did.” Despite a tense stand-off and the desire of young Lord Robert to see Tyrion “fly,” Lysa admits, that “the gods have seen fit to proclaim him innocent, child. We have no choice but to free him.” Tyrion is freed, collects his gold from Ser Rodrik Cassel, with Catelyn’s consent, then he and Bronn walk out the castle door. On the way out he tosses gold coins to Mord, the bargain for his freedom from the sky cells, stating his family’s motto, “A Lannister always pays his debts.”
Modern attempts to invoke a Trial by Combat still occur, and they are summarily rejected. In 2002, an unemployed mechanic invoked the right to Trial by Combat to avoid paying a £25 motoring fine. He insisted that he fight a champion nominated by the Driver and Vehicle Licensing Agency to the death, but magistrates rejected the plea and instead increased his penalty to £300. In Delaware, a lawsuit by a pro se (a party without an attorney) defendant moved to strike a plaintiff’s motion to strike, raising numerous grounds, but one in particular was addressed the court. “I also note that defendant’s offer to waive its counterclaim on the condition that plaintiff accept a challenge of Trial by Combat to death is not a form of relief this Court, or any court in this country, would or could authorize. Dueling is a crime and defendant is therefore cautioned against such further requests for unlawful relief.”
While no longer a modern remedy, the use and effects of Trial by Combat, at least in the Game of Thrones universe, can have lasting effect. History is littered with dead ends, what ifs and broken promises caused by the sudden death of an important leader. Books are still written about the possible effects of Alexander the Great’s not dying an untimely death at thirty-three. The early death of a potential king is often a catalyst that will affect history far into the future. It is unlikely that the Mad King Aerys II Targaryen would have ascended the throne or that Lord Robert Baratheon, the usurper, would have led a rebellion against him, leading to the current Game of Thrones story, but for a fateful Trial by Combat seventy-four years earlier.
The Hedge Knight, Ser Duncan, was accused of striking Prince Aerion Brightfire, with guilt and punishment to be determined by trial. If Duncan were found guilty, the punishment would have been the removal of the hand that struck the Prince. Prince Baelor Targaryen advises Ser Duncan that he, Lord Ashford and Lord Tyrell would sit in judgment. Baelor also reminds Duncan of another option, the right of a knight to seek Trial by Combat.
Prince Aerion, claiming the right to avenge both himself and his brother (for Ser Duncan unwittingly taking in a disguised Price Aegon, which amounted to a “kidnapping”), demanded Trial by Seven, for the Seven Gods worshiped in Westeros. A rare custom, it had not been seen Westeros in over one hundred years. “It is another form of Trial by Combat. Ancient, seldom invoked. It came across the narrow sea with the Andals and their seven gods. In any Trial by Combat, the accuser and accused are asking the gods to decide the issue between them. The Andals believed that if the seven champions fought on each side, the gods, being thus honored, would be more like to take a hand and see that a just result was achieved.”
The accuser and his knights met the accused with his six in Ashford Meadow, with a large crowd of highborns and common folk watching. The Septon intoned, “We call upon the justice of the Seven.”
Preparing for the battle, Prince Baelor, an honest and true knight, joins Duncan’s side, knowing that his brother, Prince Aerion, was wrong to beat an innocent woman over a perceived slight, which led to Duncan’s reprisal. He explained the rules: “If Ser Duncan is killed, it is considered that the gods have judged him guilty, and the contest is over. If both of his accusers are slain, or withdraw their accusations, the same is true. Elsewise, all seven of one side or the other must perish or yield for the trial to end.”
In the battle, Ser Duncan was loosed from his horse and struck by a morning star, but on Prince Aerion’s next swing at the fallen knight, Duncan escaped the blow, grabbed the Prince and pulled him down, striking him over and over in the head with his shield. Finally, the Prince yielded. Dragging him to Lord Ashford, the battered Aerion Brightfire spit out a mouthful of grass and dirt and said, “I withdraw my accusation.”
With that, the Trial by Seven was over, and Ser Duncan was vindicated. Ser Duncan was deemed innocent and set free, in the eyes of the Seven Gods. However, the cost was battle was high, with the death of Prince Baelor due to a fatal blow to his head, delivered by his own brother, Prince Maekar I Targaryen.
While Trial by Combat is usually used in lieu of a trial by jury, it can also serve as a means of determining truth among common folk, or by groups of armed men fighting for or against those in power. One such group, the Brotherhood without Banners, fights Lannister rule in the Riverland, protecting the commoners from Lannister abuses. One such enemy is the “Hound” of the Lannister’s, Sandor Clegane. He is captured and taken to the hold of the Brotherhood without Banners, led by Lord Beric Dondarrion. Clegane is accused of various crimes of rape and murder, but truthfully denies the charges, proclaiming that he is not his brother, Ser Gregor Clegane, the truly guilty party.
Arya Stark, the young daughter of Lord Eddard Stark of Winterfell, who is also being held by the Brothers, then charges Clegane with the murder of her friend Mycah, the butcher’s boy. Given that claim, Dondarrion states: “You stand accused of murder, but no one here knows the truth of the charge, so it is not for us to judge you, only the lord of light may do that now. I sentence you to Trial by Combat.” Instead of the Seven Gods that were most commonly worshipped, some, including the Brotherhood, worshiped a single God, who like the seven, would determine innocence or guilt in the Trial by Combat.
"Light your flame among us, R'hllor," said the red priest. “Show us the truth or falseness of this man. Strike him down if he is guilty, and give strength to his sword if he is true. Lord of Light, give us wisdom."
While Dondarrion is a Lord and thus could mete justice, Clegane was not a knight or a highborn and therefore had no right to demand Trial by Combat. In essence, it was more of a duel, with Clegane being forced to prove his innocence by battle. Duels were once a common method of addressing grievances, and an entire system of rules, known as the Code Duello, developed to address the manner, mode and method of the duel and to insure a limitation on family retaliation should one party die in a duel.
Dueling was originally done by sword but by the seventeenth century guns replaced swords and the more familiar step, turn and shoot became the norm. The most famous duel in American history was between Aaron Burr, the sitting Vice-President and Alexander Hamilton, the former Secretary of Treasury, who had helped defeat Burr in his 1804 bid for Governor of New York and who had refused to recant several letters impugning Burr’s character. A duel was offered and accepted and the men, even knowing that it was now an illegal act, took caution to protect those who participated in the duel by secretly planning and prosecuting the affair.
On July 11, 1804, on the banks of the Hudson River, New Jersey, two shots were fired. One missed, but the other fatally wounded Hamilton, who would die the next day. Burr was prosecuted in both New York and New Jersey. The charges were eventually dropped in New Jersey and in New York, Burr was only convicted of a misdemeanor dueling charge.
Guns often acted as a great leveler in duels formerly contested by strength and skill with a sword, both of which Sandor Clegane had in abundance. Clegane, being stronger and bigger than Dondarrion, was initially affected by Dondarrion’s use of a flaming sword, his trademark. The Hound had an innate fear of fire, after being burned on one side of his face by his brother, Gregor Clegane, the Mountain. Clegane battled back, and despite being on fire, brought down a fatal blow that cut down through Dondarrion’s shoulder, killing him. Arya, who only minutes earlier was shouting “guilty, guilty, kill him, guilty,” could not understand why the Gods had let the Hound win.
With help from a Red Priest, Dondarrion was brought back to life, and despite Arya’s protestations of guilt, he frees Clegane, because the Trial by Combat, proved, in the eyes of R’hlorr, that he was innocent. “Not in the eyes of God…The judgment is not ours to make.” With that the Hound is given back his weapons and allowed to leave a free man. Like Ser Duncan, the actual guilt of the act in question was never really an issue, just whether the act was justified. Duncan hit the Prince for his unprovoked attack on a woman, Clegane was following the orders of his Queen and Prince to kill Mycah, the butcher’s boy, for the crime of striking Joffrey, the Prince. Their victories in Trial by Combat absolved them each of their “crimes.”
Determining actual guilt of the crime as opposed to intent for committing the act is also grounds for using Trial by Combat when only circumstantial evidence is present. This is the case of the death of King Joffrey at his wedding. As Joffrey lay on the ground, Cersei, his mother became irate, and immediately accused her brother Tyrion of his murder, in part due to the threats and actions of Tyrion towards her beloved son. She had him arrested and imprisoned despite his protestations of innocence. His Uncle, Kevan Lannister, informs Tyrion that he will be tried and executed. Further, he tells Tyrion that if he chooses Trial by Combat, his sister, the Queen Mother, had already named Ser Gregor Clegane, the Mountain, as her Champion. He also advised that Tywin Lannister, Mace Tyrell and Oberyn Martell will judge his trial.
Tyrion was scarcely reassured. Mace Tyrell had been Joffrey’s god-father, however briefly, and the Oberyn Martell, known as the Red Viper was … well, a snake. Tyrion’s own father hated him for his grotesquery. “Will I be allowed to demand trial by battle?” Tyrion asked, presumably due to the judges clearly being against him, plus his hope of having Bronn again serve as his champion.
The trial of Tyrion for regicide was to be conducted by three judges and no jury in the throne room of Westeros before a hostile crowd. Brought before the judges, Tyrion was permitted to give an opening statement, and allowed to call witnesses. His list was short, naming Sansa Stark alone, but she was missing, having fled King’s Landing immediately after Joffrey’s demise. Cersei presented numerous witnesses, who all testified that Joffrey had been poisoned, that Tyrion the dwarf wanted to kill Joffrey, and that he was guilty of the crime.
Tyrion attempted to cross examine the witnesses, and was repeatedly warned that this would not be allowed. Despite the warnings, Tyrion did manage to have some questions answered before being ordered to stop. Finally, after his former lover Shae lied that she, Sansa and Tyrion planned Joffrey’s murder, Tyrion refused to remain quiet, confessing that he wanted to kill the King, but that he did not actually do it, and that he was on trial only because he was a dwarf. “I will not give my life for Joffrey’s murder and I know I’ll get no justice here, so I will let the Gods decide my fate, I demand a Trial by Combat.”
Seeking revenge for the rape and murder of his sister, Elia Martell, and her child at the hands of the Mountain, Lord Oberyn Martell resigns as a judge and agrees to serve as Tyrion’s champion. The Trial by Combat is fought before a large crowd. The battle was long and hard fought, and in the end Prince Oberyn’s head was smashed by the Mountain, but not before substantially poisoning him near death. Tyrion was in shock by the outcome. “He never heard his father speak the words that condemned him. Perhaps no words were necessary. I put my life in the Red Viper's hands, and he dropped it.” With that Tyrion’s fate was sealed, the penalty for regicide, for being a kingslayer and kinslayer, was nothing but death.
Channeling his inner Game of Thrones in an attempt to have life imitate art is exactly what lawyer Richard A. Luthmann sought in a motion filed in 2015 before the New York trial court. “The allegations made by plaintiffs, aided and abetted by their counsel, border upon the criminal. As such, the undersigned respectfully requests that the court permit the undersigned to dispatch plaintiffs and their counsel to the Divine Providence of the Maker for Him to exact His divine judgment once the undersigned has released the souls of the plaintiffs and their counsel from their corporeal bodies, personally and or by way of a champion.”
Luthman’s argument has technical merits. The United States adopted the common law of England at the time of independence. Many states, such as Florida have a law on their books that state, “The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the 4th day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state.” As Trial by Combat was not abolished in England until some forty-three years later, absent a law preventing same, the common law right to Trial by Combat could still theoretically exist.
In 2016, the trial court judge ruled against Luthman’s request, stating, “The matter shall ultimately be decided by trial by jury or judge.” The judge also stated that only the Court of Appeals (New York’s Supreme Court) could sanction Trial by Combat.
The move to judge and jury trials mirrors the change in society from a church centric, super-naturalistic viewpoint to a more rational, humanistic approach. Man judging Man instead of God judging Man has been the norm for centuries, but in the deeper recesses of many, the desire to let God decide still exists, and with the rise of theocracies in the Middle East, and the evangelical political movement in the West, we may, once again, see Trial by Combat as a permitted alternative.