Trial by battle

“ On the other hand, unless the complainant or accuser had a witness who was willing to offer battle, the oath of denial of the other party was sufficient, and in criminal cases the accuser was subjected to the talio.407
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By the English law of the thirteenth century, a man accused of crime had, in doubtful cases only, the right of election between trial by jury and the wager of battle. When a violent presumption existed against him, he was obliged to submit to the verdict of a jury ”

“ A case lodged by an appellant should be pleaded in the court before the constable and marshal, and if the accusation cannot be substantiated by witnesses, a recourse to trial by combat may be granted by the Crown. Should a judicial duel be decided on, the time and place of combat are fixed by the constable; the weapons to be “glayves,” long-swords, short swords and daggers. Sureties to be found by both parties to keep their day, and no attempt shall be made to injure the plaintiff or defendant before the day of battle. ”

“ Culprits arraigned before them, guarded by armed soldiery, without arms themselves—why, in the name of justice, drag them into Court and force them to sit through a long trial, bound with iron, hand and foot? ”

“ We find nothing in the history or constitutional treatment of military tribunals which entitles them to rank along with Article III courts as adjudicators of the guilt or innocence of people charged with offenses for which they can be deprived of their life, liberty or property. Unlike courts, it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise. But trial of soldiers to maintain discipline is merely incidental to an army's primary fighting function. ”

“ Why, there on the Plaza you spoke in their their defense!"
"No, sir! No, sir! I did not! With the last breath that is in my body, sir, I will defend any man's right to trial trial by jury. I will defend any man's right to all the safeguards prescribed by law—but seek to have have guilty men acquitted, no! ”

“ This was more trying to the courage and discipline of the troops than the former attacks, but the trial was supported with perfect steadiness. Not a man moved from his position, except to close up the opening made by the shot, when his right or left-hand man was struck down ... To stand in this manner with perfect firmness, exposed to a galling fire, without any object to engage the attention or occupy the mind, and without the power of making the smallest resistance, was a trial of the character of the British soldier, to which the enemy did full justice. ”

“ The constitution says that no man may be tried and punished except by a jury and due process of law. If the courts are open, and opportunity given for jury trial and due process of law, the constitution must be obeyed, and it is absurd to say that martial law may exist. ”

“ Trial by combat is still available, although it is extremely rare for it to take place. In the appeal of felony, when offered combat, a defendant could choose between combat and recourse to a verdict of his neighbors. ”

“ While there is some little confusion in this part of the record, we think that the trial court did not misconstrue the policy, nor commit any error upon this particular point of which the plaintiff was entitled to complain. It is to be taken that the jury found, upon the whole evidence, that the loss was occasioned by causes independent of the existence of any invasion, foreign enemy, rebellion, insurrection, riot, civil commotion, military or usurped power, or martial law. ”

“ With firm steps and smiling faces the roll of martyrs went forth to their fate during the whole of that long autumn day, until the rough soldiers of the guard stood silent and awed in the presence of a courage which they could not but recognise as higher and nobler than their own. Folk may call it a trial that they received, and a trial it really was, but not in the sense that we Englishmen use it. ”

“ But the trials by single combat gradually obtained superior credit and authority, among a warlike people, who could not believe that a brave man deserved to suffer, or that a coward deserved to live. 80 Both in civil and criminal proceedings, the plaintiff, or accuser, the defendant, or even the witness, were exposed to mortal challenge from the antagonist who was destitute of legal proofs; and it was incumbent on them either to desert their cause, or publicly to maintain their honor, in the lists of battle. They fought either on foot, or on horseback, according to the custom of their nation ”

“ Notwithstanding this fact, I have yet to learn that any loyal man ever challenged, during all the period of our conflict for independence and nationality, the validity of that law for the trial, for military offences, by military tribunals, of all offenders, as the law, not of peace, but of war, and absolutely essential to the prosecution of war. I may be pardoned for saying that it is the accepted common law of nations, that martial law is, at all times and everywhere, essential to the successful prosecution of war, whether it be a civil or a foreign war. ”

“ Justice Jackson said so eloquently at the opening of this Trial, “Civilization could not survive if these crimes were to be committed again,” and he added, “The true plaintiff in this Court is civilization.”
Civilization requires from you after this unleashing of barbarism a verdict which will also be a sort of supreme warning at the hour when humanity appears still at times to enter the path of the organization of peace only with apprehension and hesitation. ”

“ You are not entitled to address the Tribunal except through your counsel, at the present time.
I will now call upon the Chief Prosecutor for the United States of America.
MR. JUSTICE JACKSON: May it please Your Honors:
The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. ”

“ Since the Amendments, like § 2 of Article III, do not preclude all trials of offenses against the law of war by military commission without a jury when the offenders are aliens not members of our Armed Forces, it is plain that they present no greater obstacle to the trial in like manner of citizen enemies who have violated the law of war applicable to enemies. ”

“ We close today the trial of a major war criminal—a leader in a slaving operation, the enormity of which is without historical parallel; a principal in a crime of murder in the ironic masquerade of scientific progress which has shocked alike the world of medicine and the world of laymen. ”

“ If a prisoner is coerced by torture or other methods to give the evidence against him, if he is beaten or slowly 'broken' by third-degree methods, then the 'trial' before the military tribunal becomes an empty ritual. The real trial takes place in secret where the accused without benefit of counsel succumbs to physical or psychological pressures. ”

“ Everyone knew and saw that, whatever might have been the participation of those men in the rescue of Colonel Kelly, they had not had a fair trial; nay, that their so-called trial was an outrage on all law and justice; that witnesses, jurors and judges, were in the full fierce heat of excitement, panic, and passion—much more ready to swear evidence, to find verdicts, and to pass sentences against innocent men than they themselves were, perhaps, conscious of while labouring under such influences. ”

“ It is perhaps too much to expect that, at the conclusion of a war in which the victors have made great sacrifices and undergone great suffering, they should take steps to establish a court for the trial of charges against their own people, but if provision had been made in time of peace for the establishment of a court to investigate all charges of wrong treatment in time of war the victors would not depart from their agreement. ”

“ Could the seizure of British subjects in such cases be regarded as within the exercise of a belligerent right, the acknowledged laws of war, which forbid an article of captured property to be adjudged without a regular investigation before a competent tribunal, would imperiously demand the fairest trial where the sacred rights of persons were at issue. ”

“ We quote further from the report of the Paris Commission:
“Every belligerent has, according to international law, the power and authority to try the individuals alleged to be guilty of the crimes of which an enumeration has been given in chapter II on Violations of the Laws and Customs of War, if such persons have been taken prisoners or have otherwise fallen into [979] its power. Each belligerent has, or has power to set up, pursuant to its own legislation, an appropriate tribunal, military or civil, for the trial of cases.” ”

“ If any soldier commits waste or destruction, the person whose property is thus wasted must find out the name, company, and regiment of the actual transgressor. In order to punish there must be a trial, and there must be testimony. It is not sufficient that a general accusation be made, that soldiers are doing this or that. I cannot punish my whole command, or a whole battalion, because one or two bad soldiers do wrong. ”

“ War, gentlemen, as distinguished from peace, is so distinguished by this proposition—that it is a condition in which force on one side and force on the other are the means used in the actual prosecution of the controversy. Now, gentlemen, if the Court please, I believe that that is all that can be claimed, and all that has been claimed, on behalf of these prisoners, in regard to the actual facts, and the condition of things in this country. ”

“ Unfortunately, the nature of these crimes is such that both prosecution and judgment must be by victor nations over vanquished foes. The worldwide scope of the aggressions carried out by these men has left but few real neutrals. Either the victors must judge the vanquished or we must leave the defeated to judge themselves. ”

“ A jury made up of military personnel would be tantamount to the personnel of a court-martial to which the former minority objects. A jury composed of civilians residing on the military installation is subject to the same criticism. If the jury is selected from among the local populace, how would the foreign citizens be forced to attend the trial? ”

“ It is a matter of course that we—and we assume the same is true of the Prosecution—that we, the members of the Defense, want the Trial to be as speedy as possible but also want it to proceed cautiously to establish the full truth. ”

“ Eyre says, “I have come to the conclusion that, looking at what martial law was, the bringing of a person into the proclaimed district to be tried might, in a proper case, be justified.” The learned judge admits that there should be a power of summary trial, observing all the substantials of justice, in order to stamp out an insurrection by speedy trial. ”

“ The meanest prisoner cannot be executed without a trial. A declaration of war is the most terrible of sentences: it sentences a people to be slain and mutilated, their women to be widowed, their children orphaned, their cities burned, their commerce destroyed. The real motives of every declaration of war are unavowed and unavowable. Let them be dragged into the light! No war would ever occur after a fair judicial trial by a tribunal in any country open to its citizens. ”

“ Despite the magnitude of the task, the world has demanded immediate action. This demand has had to be met, though perhaps at the cost of finished craftsmanship. In my country, established courts, following familiar procedures, applying well-thumbed precedents, and dealing with the legal consequences of local and limited events seldom commence a trial within a year of the event in litigation. Yet less than 8 months ago today the courtroom in which you sit was an enemy fortress in the hands of German SS troops. ”

“ On the one hand he wants the Trial to appear to future generations as the fulfillment of the human yearning for justice; on the other, in the face of objections to the Charter, he invokes the power of the victorious, who really could have made short work of the defendants.
It seems to me that he speaks too much as an accuser, the sole role he really wants to assume according to his own words. For the prosecutor—especially in Anglo-American procedure—the word “justice” has a different meaning than for the judge, let alone the defendant. ”

“ In the two succeeding centuries many curious laws were enacted to suit the times,—those relating to trial by combat are among the most remarkable; we will merely instance one: If a woman of the lower classes had been violated, but the matter could not be proved, the accused man was buried up to his middle in the earth, and a stick, an ell long, put into his hand ”

“ But from the very nature of things, courts have more independence in passing on the life and liberty of people than do military tribunals.
'Moreover, there is a great difference between trial by jury and trial by selected members of the military forces. It is true that military personnel because of their training and experience may be especially competent to try soldiers for infractions of military rules. Such training is no doubt particularly important where an offense charged against a soldier is purely military, such as disobedience of an order, leaving post, etc. ”

“ Whether the laws of war have been infringed or not is, of necessity, a question to be decided by the laws and usages of war, and is cognizable before a military tribunal. When prisoners of war conspire to escape, or are guilty of a breach of appropriate and necessary rules of prison discipline, they may be punished, but not without trial. The commander who should order every prisoner charged with improper conduct to be shot or hung would be guilty of a high offense against the laws of war, and should be punished therefor after a military trial. ”