Recently, a Kansas man involved in a custody case made a suggestion that startled the lawyers and the judge. He requested a trial by combat.
He got the idea from a 2016 case out of New York, in which a lawyer also requested a trial by combat. In that case, Richard Luthmann, a lawyer licensed in New York, was sued by opposing counsel for allegedly advising a client to fraudulently transfer funds. Taking offense at having his honor as a gentleman being challenged, Luthmann filed a motion to settle the case by combat.
The case was resolved without violence. However, the judge agreed with Luthmann that the United States Constitution does not specifically ban trial by combat.
Interestingly, trial by combat was allowed under British common law until 1819. It’s a tradition stemming from Germanic tribes who would allow trial by combat in situations in which there was not a lot of evidence. While not repealed when the Framers drafted the U.S. Constitution in 1787, it had not been invoked for centuries.
by combat were similar to duels. Unlike
European sword duels, the U.S. developed the duel by pistol.
challenges were delivered in writing by one or more close friends who acted as
“seconds”. The challenge, written in formal language, provided the grievances
and a demand for satisfaction. The challenged party then had the choice of
accepting or refusing the challenge. A refusal would almost always be an act of
cowardice that would follow a man for the rest of his life.
was the job of the seconds to make all of the arrangements in advance,
including how long the fight would last and what conditions would end the duel.
In pistol duels, the number of shots to be permitted and the range were
outlined. The seconds would ensure the ground chosen gave no unfair advantage
to either party. A doctor or surgeon was usually arranged to be on hand. Other
rules and protocol could go into minute details that might seem odd in the
modern world, such as the dress code (duels were often formal affairs), the
number and names of any other witnesses to be present, and if refreshments
would be served.
given signal, often the dropping of a handkerchief, the duelers could advance
and fire at will. This reduced the possibility of cheating, as neither dueler
had to trust the other not to turn too soon
two crucial factors for choosing the field of honor were isolation, to avoid
discovery and interruption by the authorities; and jurisdictional ambiguity, to
avoid potential legal consequences. Islands in rivers dividing two
jurisdictions were popular dueling sites. The cliffs below Weehawken on the
Hudson River were where Vice President Aaron Burr fatally shot former Secretary
of the Treasury, Alexander Hamilton.
September 22, 1842, future President Abraham Lincoln, at the time an Illinois
state legislator, met to duel with state auditor James Shields. But, their
seconds intervened and persuaded them against it.
President Andrew Jackson would not allow interference with his many duels. He
took personal attacks on his and his wife’s honor very seriously. Thus, Jackson
fought several duels. Some of these included the May 30, 1806, duel with
Charles Dickinson, a famous dueler himself. Jackson killed the man even though
Jackson was suffering himself from a chest wound which caused him a lifetime of
pain. Shortly thereafter, Jackson also reportedly engaged in a bloodless duel
with a lawyer (possibly a criminal defense lawyer).
I do not believe that
dueling should be engaged in under any circumstances; nor do I advocate
violence. But, when I hear of all the
personal insults, extremely rude and arrogant behavior, and blistering attacks
made by politicians (and other people) against one another and third parties, I
wonder if some of these folks would sharpen their manners if they lived in the