A custody dispute in Iowa has resulted in an interesting bit of anachronistic legal 'creativity' on the part of David Ostrom. In a motion submitted in early January 2020 to the Iowa District Court in Shelby County, Ostrom formally requested that the court agree to let him meet his ex-wife and her attorney "on the field of battle where [he] will rend their souls from their corporal [sic] bodies." The motion also included a request to give him 12 weeks "lead time" in order to purchase, or make katana and wakizashi swords, and allows a provision for his ex-wife to request a 'champion' to stand in her place during the fight.
In support of this request, the Ostrom noted "To this day, trial by combat has never been explicitly banned or restricted as a right in these United States," He also argues that it was used "as recently as 1818 in British Court."
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In a somewhat anticlimactic footnote to this bit of legal theatrics, Ostrom later pointed out that this request was born of his frustration with his ex-wife's attorney, Matthew Hudson, who, per Ostrom himself, has "destroyed" him in previous legal actions revolving around his divorce and subsequent custody dispute involving Osterom's child. Of the motion specifically, David said "I think I've met Mr. Hudson's absurdity with my own absurdity,"
Not to be outclassed in this bit of showmanship, Mr Hudson himself responded by correcting Mr Ostrom's spelling on the court filing. "Surely (Ostrom) meant 'corporeal' bodies which Merriam Webster defines as having, consisting of, or relating to, a physical material body," the attorney wrote. "Although (Ostrom) and potential combatant do have souls to be rended, they respectfully request that the court not order this done."
(Source)
While the court is almost certain to dismiss the request, the legal fact of the mater is that Ostrom's statements are technically true, judicial trial by combat has not been banned by the US federal government, and has not been expressly illegalized in all 50 states.
That being said, multiples laws currently exist that make the practice effectively illegal, and will undoubtedly result in the motion being denied by the judge.
This story, however, brings up three separate, but none the less fascinating bits of historical fact that still echo in modern society, even if they themselves are no longer current,
Trial by combat,
Honor duels, and the
Katana itself.
Trial by Combat
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| Depiction of a judicial combat in the Dresden codex of the Sachsenspiegel (early to mid-14th century), illustrating the provision that the two combatants must "share the sun", i.e. align themselves perpendicular to the Sun so that neither has an advantage. |
Trial by Combat as a formal, recognized means of settling criminal accusations against an individual actually has its origins in the Germanic tribes of the early current era. Specifically, It was in use among the ancient Burgundians, Ripuarian Franks, Alamans, Lombards, and Swedes. However, there are no records of it in Anglo-Saxon law, Roman law and Irish Brehon Law. Also, there is no mention of it in
code of Hammurabi, one of the oldest known sets of laws in human history, or the
Torah, the basis of the Jewish faith and a foundational document for the Christian old Testament.
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| Depiction of a judicial duel between a man and a woman by Hans Talhoffer (Ms.Thott.290.2º f80r, 1459) |
One of the earliest legal records regarding trial by Combat date from 803ce, and include a statement that
Louis the Pious had prescribed combat between witnesses of each side, rather than between the accuser and the accused. (Boretius 1.117)
Trial by combat included allowances for trial by jury (or judge) early on in the cases of women, the very old, the very young, and the infirmed. This would eventually expand in some locations to become an accepted alternative to trial by combat, paving the way for the modern system of non-combat judicial decision making as the standard.
The last known time a monarch presided over judicial combat was the court of Elizabeth I of England, in September 1583. Later mentions of judicial duels appear as late as the court of Charles I of England, but also include a note that he intended to stop the fight from happening. The actual end of trial by combat is nebulous, though mentions of judicial fight show up as late as the 1650s, its not clear is combat was actually met, or if it was legal posturing, not unlike M. Ostrom's case above.
Modern invocations of this practice persist even into the modern age. Examples include
McNatt v. Richards (1983), where a defendant request trial by combat, and of course, the previously mentioned case, just to name two. At a cultural level, trial by combat has been a frequent plot mechanism in science fiction, fantasy, and historical fiction as a dynamic and versatile mechanism to further a story without having to address modern sensibilities of law and justice. One of the most recent such references are the multiple occasions of trial by combat is the Game of Thrones book and the HBO TV series.
Honor Duels
Another practice, similar, but not the same as judicial combat, are honor duels. While these fights existed usually within the blessings of the law, they were usually held over private matters, often times settling questions of honor between men who felt one had personally insulted the other.
It is worth pointing out that while we can document that honor duels were born out of the early medieval practice of judicial dueling, the idea of men men coming to blows with lethal intent over a slight or insult is arguably older than the written word, and is at the core of the story of Cane and Able, a narrative at the heart of two of the worlds 4 largest religions.
Honor duels between armed men (which in the 8th century usually meant men with money if not land and influence) also included occasions where knights (or their historical counterparts, based on the culture) would set out to improve their standing and reputation by waiting on a bridge or pass and challenging any other knight who wished to pass to a duel in order to prove who the better fighter was.
By the time of the renascence, cultural shifts in europe saw the art of dueling become an accepted practice amongst the upper class, and was an accepted, and expected act within the 'gentlemen' of europe.
Formalized duels also existed and developed independently in on nearly all inhabited continents, and each has a separate and unique culture based on local laws, norms, weapons, and customs.
One of the most infamous duels within the United States was the fatal engagement between Alexander Hamilton and Aaron Burr in 1804. Hamilton, a former Secretary of the Treasury, was fatally wounded by Burr, the sitting President of the United States at the time.
Abraham Lincoln agreed to a duel in 1842, but the fight was headed off by friends of both complainants.
Unlike Judicial combat, dueling never fully vanished from the modern world. While actual duels to the death are recorded in France as late as the early 20th century, the art and style of the duel continued on in non-lethal combat.
The 1908 Olympics included a non-metaled dueling competition where entrants would use
single shot pistols (Video), protective clothing, and wax bullets.
The arts of collegiate and Olympic fencing also derive from the rapier and saber techniques developed in the later Renaissance as part of the dueling culture around the aristocracy.
And finally, 'gentlemen's agreements' to settle private disputes with varying levels of regulated violence have persisted in organized venues such as marshal arts dojos, boxing clubs, and many back alleyways and yards even to this day.
As a (highly generalized) final point on duels, while it is at times easy to interchange the ideas of judicial combat and dueling, the distinction between them is one of accusation. A judicial fight does not concern itself with the emotions of either side, but rather a question of the law, where a duel takes minimal consideration of the law and aims to settle questions of personal insults or slights.
The Katana and the Wakizashi
It is arguable that there is probably no more storied blade in the United States than the Japanese Katana sword. Between contemporary stories, exaggerations, and modern media, including cinema, Manga, Anima, and now american comic books, the Katana specifically is synonymous with 'super sword' in the American culture.
To the modern pop culture consumer, the Katana is usually expected to cleanly snap any European weapon on half, cut bullets out of the air, and even defeat metal armor with its tip.
All of this of course is outright fiction, and even the best blade smiths will attest to the weapon's strength and many weaknesses when compared to contemporary blades from other parts of the world.
That being said, The Katana and Wakizashi were still remarkable blades when their first appeared in 900ce. Leading up to this time, the two predominate sword type weapons on the eastern half of the Asian continent, and specifically Japan were the Chinese long sword, or Jian, and the Chinese war sword or Dadao . Despite their names, versions of each were used by both countries.
The Jian was a straight blade with two edges, weighed between 1 and 2 pounds, and roughly 30 inches long from hilt to blade-point. It was designed to thrust, with a secondary ability to slice on the draw. The Jian was most often a single-handed weapon, though some larger, two-handed versions were also used. One of its shortcomings however was how brittle its metal was. Originally made of bronze, and later three plates of steel welded together, the layered construction was none the less susceptible to breaking or even shattering. With respectively little ability to give on impact, the weapon could snap or even shatter if it hit, or was hit by another sword, or the haft of a spear or other pole arm.
In Japan, the basic design of the Jian is believed to have influenced, the
Chokutō, or "Straight sword", a weapon of roughly similar proportions and construction, and that was possibly even imported from China in some examples.
The Dadao was a longer, thicker blade, that traded a functional point for an ability to deliver a powerful cleaving strike, not unlike a butcher's meat cleaver. Weighing in at between 2 and 4 pounds, it could be used as a one-handed weapon, or two (akin to the European hand-and-a-half sword), it was a more powerful battlefield presence than the Jian. But the weapon's durability was also a weakness. The flexibility of the slightly lower carbon steel, as well as the heavier construction made it much more resilient to snapping than the Jian, but maintaining an edge could be more challenging. The weapons was also heavier than the Jian by a good measure, and balanced farther forward than the Jian. This favored the strike or chop style attack, but also made it less maneuverable and slower to recover after throwing a strike than the Jian.
To be clear, both of these weapons were, and remained formidable, and capable implements of war, and while in retrospect we can cite their weakness, especially as metalworking and metallurgy matured, contemporary scholars of the day noted that each weapons weaknesses were well understood, and the techniques to maximize their strengths were thoroughly taught.
The Katana's first appearance was recorded circa 900ce, and its effect in both single combat and melee engagements quickly highlighted the new design's abilities. Katana's proved to be consistently stronger, faster, sharper, and longer lived than their Chinese counterparts.
Even the early Katakanas were some of the first widely-used swords on the Japanese islands to use more up-to-date metalworking techniques. This included incorporating different metals into different parts of the blade, and in many cases blacksmiths used metal ores of a higher quality than previously understood.
They also used
differential hardening, where the edge of the sword can be brought to an extremely rigid strength point, while the spine of the blade is left slightly more malleable. This would allow the weapon to flex on impact, helping to prevent a break, but allowing it to retain a sharp edge. This practice is where the Katana gets its characteristic curve from.
When the nobles and leadership of Japan, and then China, first encountered the Katana, it was a singularly weapon better at cutting than the Dadao, and likewise better as piercing or slicing than the Jian.
In the context of the time and place where it first appeared, it was a 'superweapon' (to borrow the modern term), but from a historical context, the more accurate term would be a 'massive evolutionary step forward' in blacksmithing and bladework.
The Katana was the most common, and well known of a broad family of sword that all used similar construction techniques. The Wakizashi blade was most often between 12 and 20 inches long, while the Katana's blade was was traditionally between 18 and 30 inches. The largest of the family, the Ōdachi, could have a blade measuring between 28 and 40 inches in most examples, making it up to five feet long with the handle.
Katanas were produced in Japan from around 900ce to 1945, when the US Occupational Government of Japan outlawed all military training (including all marshal arts, and sword production). The art of sword making was restarted in 1953, and continues today for the purposes of artistic preservation, and as culturally significant gifts and marshal arts equipment for families and marshal arts practitioners in Japan and around the world.
Modern productions of the Katana that remain faithful to the actual materials and metalworking techniques of history can be purchased for as little as $150 (US), but have also made produced with intricate carvings, engravings, and scabbard work on them for as much as ten or twelve thousand dollars.
#Swordsunday is intended as a fun and educational series of posts for the enjoyment of readers.
His Lordship Ivo Blackhawk
Kingdom of Ansteorra
"Long Live the King!"
