Trial By Combat: It May Be Legal

Trial by combat may technically be legal in the United States. Like Schrödinger’s Cat, it both is and isn’t while it waits for someone to try it in the courts.

When the 13 English colonies in North America formed the United States of America, they needed a starting point for their judges to work from while they got to passing all their laws. So unless specified otherwise, they went off of English common law as it was in 1776 when they declared their independence. 

One little-used – but not yet outlawed – piece of English common law was the right to determine your guilt or innocence in a case by fighting for it and letting God decide the winner. This was legitimately legal in England at the time (though, again, like, never used). We know for sure, because it was successfully used to get a man acquitted in 1818. The outrage over this led to it being outlawed in 1819, but – fun fact – 1819 is after 1776.

Therefore, until a US court reviews a case that attempts to use this piece of English common law and finds it unconstitutional (probably under the 5th amendment right to due process, unless fighting your accuser to the death is considered due process), it is technically an option open to anyone accused of a civil charge. 

Try it next time you get a traffic ticket. Let us know how it goes.

ImageBy Jörg Breu d. Jüngere (died 1547), Paulus Hector Mair (died 1579) (Bayrische Staatsbibliothek Cod. icon. 393) [Public domain], via Wikimedia Commons 


[…] a British man tried to invoke his “ancient right to trial by combat” in 2002 to avoid paying a £25 fine for a traffic ticket […] with “samurai swords, Ghurka knives, or heavy hammers.” Court Magistrates for the town of Bury St. Edmunds disagreed […]
American Bar Association

 

At the times of the independence in 1776, trial by combat was still legal in the United Kingdom, and the United States inherited British common law on independence. The question of whether trial by combat remains a valid alternative to civil action has been argued to remain open, at least in theory.
Wikipedia entry on Trial by Combat

 

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. […] a defendant in the U.S. could at least make an argument for trial by combat. […] no United States citizen has yet attempted to invoke the right of trial by combat to win their freedom.
The Bowen Law Group