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Man has requested Trial By Combat with ex-wife and her lawyer.       Source: beeboys / Adobe Stock

Man Demands Trial By Combat With Ex-Wife and Her Lawyer

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A Kansas man has requested a trial by combat with his wife and her lawyer to settle an ongoing dispute.

To settle ongoing and clearly painful legal disputes, David Ostrom, 40, of Paola, Kansas asked Judge Craig Dreismeier of Shelby county district court for a ‘trial by combat’, in 12 weeks time, so that he has enough time to obtain a pair of razor sharp Japanese samurai swords. Yup, this is actually happening.

Ostrom’s attempt to arrange a sword fight with his ex-wife and her attorney in a trial by combat comes after he said in a January 3 court filing, ‘that his former wife, Bridgette Ostrom, 38, of Harlan, Iowa, and her attorney, Matthew Hudson, had 'destroyed (him) legally’, according to a report in The Guardian .

Do Ancient Germanic Laws Still Apply In The USA?

Americans may only ever have heard the term trial by combat, if at all, from watching HBO s hit-fantasy series, Game Of Thrones, but it was a key part of ancient Germanic law. First appearing in the  Lex Alamannorum , dated to 712-730 AD, essentially, trial by combat is a licensed duel and it was used in the absence of witnesses to disputes, and the winners of the fights were proclaimed legally, to be right.

In territorial disputes, before the combatants began, a handful of earth taken from the disputed piece of land was placed between the contestants and both touched it with the tips of their swords, each swearing aloud that their claim to the lands were right and lawful. If both survived, besides forfeiting their claim to the land, the loser was required to pay a hefty fine. And today, some US lawyers argue that an obscure loophole in US law might actually permit this originally Germanic form of common law.

In a trial By combat the winners f the duel were proclaimed to be right. (Artsiom Petrushenka / Adobe Stock)

In a trial By combat the winners f the duel were proclaimed to be right. ( Artsiom Petrushenka / Adobe Stock)

In this instance Mr Ostrom added in his filing that ‘trial by combat has never been explicitly banned or restricted as a right in these United States’, and he’s right according to a 2013 Business Insider which says, in 1773 the British Parliament unsuccessfully tried to ban the law in response to the Boston Tea Party. Therefore, theoretically, Judge Dreismeier could if he wanted to, rule that Mr Osrom must face his wife and her lawyer, with his requested Japanese samurai swords in a trial by combat.

An Old Duo, Dueling

One thing almost all of us have in common is that somewhere along life s path we ve endured a nasty breakup, but the Ostroms are having one of those poisonous ones where everything has spun out of control. Not only are they involved in custody and visitation disputes but there are complications with a property tax payment. Mr Hudson, his wife s lawyer, argued that because a duel could end in his client’s death, the judge should reject Mr Ostrom’s request for trial by combat.

Like many things, the tradition dueling as an exercise of The Code of Honor, in order to restore one’s honor by risking one’s life for it, rather than simply a chance to kill the opponent seems to have been lost in this case, evidenced by lethally sharp Samurai swords being the weapon of choice. That said, the likelihood of death only really seems to have become an issue with the Enlightenment era in the 18 th century bringing ideas of what is deemed ‘civil behavior’ into the game. The ‘duel’ on that front rages on today.

Unexpectedly, Judge Craig Dreismeier said in his own filing on Monday that he ‘won’t be issuing a decision anytime soon because of ‘irregularities with both sides’ motions and responses’. While the Ostroms’ personal situation is inexplicably woven into this story, let’s look beyond their particular case at the U.S. Constitution and what it has to say about trial by combat . Could it actually happen today?

Duels began as fights with swords, but by the 18th century in England, pistols became more common. (sad / Adobe Stock)

Duels began as fights with swords, but by the 18 th century in England, pistols became more common. ( sad / Adobe Stock)

It Wasn’t Outlawed…

According to The Telegraph , although the U.S. Constitution was greatly based on British common law it did not mention trial by combat, and American citizens should possess rights until the government specifically limits or outlaws them.

Adam Winkler is a Georgetown University professor specializing in American constitutional law, the Supreme Court, and gun policy and in his 2018 book We the Corporations: How American Businesses Won Their Civil Rights , it says, ‘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.’

If all this sounds familiar to you then you might have read an august 2015 story in the Washington Post about a New York trial court case ( Foley v. Luthmann ) in which Richard A. Luthmann demanded his common law right to Trial By Combat.’ In his own address to the court he offered a detailed history of trial by combat and said it was called Wager of battle’ in English and it was introduced into the common law of the Kingdom of England following the Norman Conquest, and that it remained in use for the duration of the High and Late Middle Ages .

German students of a Burschenschaft fighting a saber duel, around 1900, painting by Georg Mühlberg (1863–1925) (Public Domain)

German students of a Burschenschaft fighting a saber duel, around 1900, painting by Georg Mühlberg (1863–1925) ( Public Domain )

Mr Luthmann then told the court that in 1774, as part of the legislative response to the Boston Tea Party, Parliament considered a bill which would have abolished appeals of murder and trials by battle’ right across the New World colonies. (Appeals in this sense are private accusations of crimes without the need for proceedings to be brought by the crown.)

However, the motion was successfully opposed by Member of Parliament John Dunning who described appeal of murder as 'that great pillar of the Constitution’ according to the court papers. And while Luthmann went on to claim that the Ninth Amendment preserved his right to trial by combat, his civil suit was rejected in 2016, and called tongue in cheek by the Washington Post .

Lawyers, Who’d Ave Em?

There are endless ways to wrap up an article such as this where a distinct undertone of humor is mixed with desperation, and where hatred between two humans is so clearly an inspiration for Mr Ostroms wanting a sword fight with his ex. However, a particular story springs to mind that sufficiently describes what might be going on here.

A cow had two legs in one field and two legs in another. While one farmer was pulling its horns claiming the cow was his, the other farmer tugged its tail shouting it was his. Do you know what was beneath the cow? A lawyer. Milking it.

Top image: Man has requested Trial By Combat with ex-wife and her lawyer.       Source: beeboys / Adobe Stock

By Ashley Cowie

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