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 While not repealed when the Framers drafted the U.S. Constitution in 1787, it had not been invoked for centuries.
Trials by combat were similar to duels. Unlike European sword duels, the U.S. developed the duel by pistol.
Usually, 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.
It 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.
At a 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
The 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.
On 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.
Future 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 1800s.
Jason Swindle is a criminal defense attorney and serves the Coweta Judicial Circuit on the Board of Governors for the State Bar of Georgia.