“Item wie daz nun sy daz die die decretaleß kempf verbieten, So hat doch die gewonhait herbracht von kaisern und künigen fürsten und hern noch gestatten und kempfen laussen” (Hans Talhoffer, 1459).
The methods of the Inquisitio of the Roman rights, should end the brutal Langobardic, Swabian and Frankish rights of trial by battle or the ordeal (ordalium). This method should find the truth by questioning, examination, and evidence. We all know what evil the history made out of the Inquisitio method to find truth and we still got so called civilized examination methods like the Waterboarding. But the fact is, that since the 4th Laterancouncil Pope Innocence III. (1198–1216) prohibited the clerics to have any part in the trial by battle. This was cemented by Gregor IX. (1227–41) in the Decretales in 1234 and this is what Talhoffer cited in the paragraph above. So from a strict clerical point of view, killing someone in the ordalium was plain murder. It was done without the justification of the canonical laws of the Roman Church. But in times in which even the vicious killers became elected prospective inhabitants of heaven by travelling in Outremere and killing some more humans, this was a lesser problem. And as Talhoffer stated, the habit of deciding the ownership of land in a trial by battle was hardly ceasing. Despite there are mortt (Murder), verräterniß (betrayal), ketzery (heresy), sinem herrn trulos (perjury to a landlord), sactniß in striten oder sunsst (deception), valsch (defamation, perjury in a trial or in public) most of the fighting boils down to the ownership of land, which was essentially linked to wealth in those times. The theory states that the Normanns invented the baculi cornuti, a still dangerous and potentially deadly weapon, but less lethal than the sword. The Frankish version was the wooden club, that you see in Talhoffers fightbook. These weapons may have result in a smaller number of deaths because the probability that the victorious fighter will survive the aftermaths of the wounds is much higher than with cutting and thrusting weapons.
So looking from the viewpoint of the Roman Church, who preferred the Inquisitio (the true predecessor of our modern law system for finding justice) instead of the self-administered justice that had been the base of the trial by battle, men like Hans Talhoffer or Fiore de Liberi (Fiore Furlano de Civida d’Austria delli Liberi da Premariacco) were murderers. But local laws gave them the legal rights for their trade. This discrepancy must have been a burden for someone religious. As we can clearly see above Talhoffer was well informed about the Gregorian decretals in the Liber Extra and he did know that he was doing something that is forbidden.
It would be interesting to know what Talhoffer had done to release the burden of guilt. What had he done in expiation of his involvement and of his execution of the killing? Did he take part in one of the pilgrimage journeys of one of his client? We should try to find out – if this is possible.Some further readings?
Trial by Battle, Peter T. Leeson