Trial by combat. We’ve all wanted to do it at some point or other…maybe. Somebody accuses you of a nefarious act. You are innocent. You have the right to call them out. You don armor, grab your weapon and beat their worthless hide into the ground (or pick someone to do it for you), thus proving your innocence. It just works (Tyrion at the Eyrie)…except when it really doesn’t (Tyrion in King’s Landing).
But this is modern times. Is trial by combat legal in say, the United States of America in the 21st century?
The right to trial by combat originated in Germanic Middle Ages common law, where the two aggrieved parties could turn to battle if their dispute proved unresolvable through empirical evidence. The practice waned in the 16th century, and was even made illegal in places like Italty, but people there still practiced it in some form for years after.
Trial by Combat 1540 By Jörg Breu d. Jüngere (died 1547), Paulus Hector Mair (died 1579)
And in other places, it remained legal. Trial by combat was still an element of American law in 1773, when the Boston Tea Party occurred. In response to that event, the British Parliament (which technically crafted laws for the American colonies at the time) attempted to ban the practice, but it failed. Trial by combat also popped up in an 1818 British murder case when the court ruled that the defendant, Abraham Thorton, had a right to it. Thorton went free when his opponent, William Ashford, declined to battle. The British Parliament finally got around to banning the practice in 1819.
The British examples matter because American law inherited a great deal from British common law, especially in the 13 original colonies. That brings us to the 9th Amendment of the US Constitution, part of the Bill of Rights, which states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In other words, American citizens have certain rights beyond the set outlined in the Constitution.
The U.S. Constitution does not address trial by combat, but that doesn’t mean it’s outside a citizen’s right to claim it. So theoretically, an American citizen could make an argument for trial by combat, but the burden of proof would be on him or her. American Constitutional specialist Adam Winkler addressed this topic in an interview with Business Insider:
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. … 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. But then again, the Framers did have duels. It’s arguable that they intended trial by combat to be a part of due process.
Yet trial by combat might violate other sections of the Constitution, such as due process and cruel and unusual punishment. A Staten Island lawyer (and huge Game of Thrones fan) did challenge a rival litigant to trial by combat in 2015, but it was more a spurious attempt at self-publicity than anything else.
Returning to the British, a 60-year-old unemployed mechanic named Leon Humphries attempted to raise the trial by combat issue in 2002, suggesting he could fight his $40 parking ticket by taking on a Swansea Driver And Vehicle Licensing Agency employee with “samurai swords Ghurka knives or heavy hammers.” Humphries’ claim was quickly torpedoed in the British courts.
What about in the USA? The answer is that we don’t know how it might play out, since no American citizen has ever seriously put it to the test in the courts. “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.”
But it still works on Game of Thrones.
h/t BasementBanter
The post Is Game of Thrones-style “trial by combat” legal in the United States? appeared first on Winter is Coming.
Via http://winteriscoming.net/2017/05/06/is-trial-by-combat-legal-in-the-us-shell/
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