Americans have probably only heard of “trial by combat,” if at all, from watching HBO’s popular fantasy series, “Game Of Thrones.”
Some have argued, however, that based on an obscure loophole, the U.S. might actually permit this archaic form of justice.
The supposed right dates back to Middle Ages common law, which followed Germanic tradition in allowing two parties to settle a dispute through combat in cases lacking sufficient evidence for a conviction.
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 battle even though no one had used the practice for centuries. That man, Abraham Thornton, got off scot-free when his opponent never showed up for the fight. A year later, British Parliament finally pulled trial by combat from the books.
British common law matters because the 13 original colonies inherited it, according to Lawrence Friedman’s comprehensive “History of American Law.”
Although the U.S. Constitution, which took many cues from British common law, did not mention trial by combat, some scholars argue citizens should possess rights until the government specifically limits them.
“The Ninth Amendment says that the enumeration of certain rights in the Constitution does not mean that the people don’t have other rights too,” Adam Winkler, a specialist in American Constitutional law, told Business Insider.
Thus a defendant in the U.S. could at least make an argument for trial by combat — but the burden of proof would be on the claimant.
“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.
Indeed, trial by combat could be seen as violating other parts of the Constitution, such as due process and cruel and unusual punishment.
“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 said. “But then again, the Framers did have duels. It’s arguable that they intended trial by combat to be a part of due process.”
Unfortunately for legal theory, no U.S. citizens have tried to sword-fight for their freedom.
Another British guy tried it in 2002, however, as Leon Humphreys, a 60-year-old, unemployed mechanic, claimed he could answer to his $40 traffic ticket by fighting a clerk at the Driver And Vehicle Licensing Agency (DVLA) with Samurai swords. In his mind, European human rights legislation would still allow it, but the British court obviously rejected his proposal.
How would a U.S. court respond?
“I think it would be a very short case,” Winkler said. “No court is going to take that claim seriously. It’s a completely inappropriate remedy for modern society.”