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.
-The End-
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