Trial by Combat In The United States

May 13, 2014 | Charles Bowen

trial by combat, attorneys savannah gaThanks to Game of Thrones, many Americans have been introduced to the concept of "trial by combat." While one may be forgiven for assuming this is simply an invention of the show (or the books upon which it is based), trial by combat was a real method of Germanic law in which two parties having a legal dispute fought in single combat; the winner of the fight was proclaimed to be right. In essence, it was a judicially-sanctioned duel.

Trial by combat was very common during the Middle Ages, but gradually disappeared over the ensuing centuries. Some have argued, however, that based on an obscure loophole, the United States might actually permit this archaic form of justice. Trial by combat was still part of the law in 1773, when British Parliament unsuccessfully tried to ban it in response to the Boston Tea Party. Indeed, it was still allowed in a murder case in 1818, when a British court ruled a defendant could invoke his right to trial by combat even though no one had used the practice for centuries. That man was immediately granted his freedom when his opponent never showed up for the fight.

The reason British legal precedent has relevance in the United States is because the 13 original colonies, including Georgia, specifically incorporated it into their new legal system. While the U.S. Constitution does not specifically mention trial by combat, some scholars argue citizens should possess rights until the government specifically limits them. According to Adam Winkler, a specialist in American Constitutional law, "[t]he Ninth Amendment says that the enumeration of certain rights in the Constitution does not mean that the people don't have other rights too." Thus a defendant in the U.S. could at least make an argument for trial by combat. The burden of proof, however, would be on the Defendant to establish he should be entitled to it. "They'd have to prove that it was lawful in Britain when the Founders created the Constitution and that they didn't intend to outlaw it," Winkler said.

"Trial by combat might fail to satisfy due process because the outcome of the case would clearly be determined by force instead of careful weighing of the facts," Winkler stated in an interview with Business Insider. "But then again, the Framers did have duels. It's arguable that they intended trial by combat to be a part of due process." Of course, trial by combat could also easily be seen as violating other parts of the Constitution, such as the prohibition against cruel and unusual punishment.

Unfortunately for fans of both legal theory and sword fighting, no United States citizen has yet attempted to invoke the right of trial by combat to win their freedom. It should noted, however, that a British citizen tried it in 2002 when a 60-year-old unemployed mechanic sought to defend his $40 traffic ticket by fighting a clerk at the Driver And Vehicle Licensing Agency with Samurai swords. The British court rejected his proposal.

Topics: Attorneys Savannah GA