Since the start of Covid things have been pretty boring for a litigator- sure, we get to argue the occasional motion via telephone, (since the courts in BC aren’t modern enough to permit video-conferencing) but nothing beats the heart-pounding cut and thrust of a real, flesh and blood trial, and those won’t be happening any time soon. So I was intrigued when I heard Rudy Giuliani inciting a mob the other day with a call to trial by combat- now, there, I thought, is a concept that could add some zest to the litigation process!
“If only it were possible –” I mused- “I’m 5 years younger than Rudy, and in better shape, so I’m pretty sure I could take him in a fight, – what a pity that trial by combat, in modern times, is no longer available- it would be a quick, and elegant solution to a huge problem.”
But wait, are we really so sure that trial by combat is no longer available ? After all, before he lost his mind to QAnon, Rudy was reputed to have a fair legal mind, so perhaps his suggestion wasn’t quite as looney as it sounded- time for a bit of research.
Trial by combat, originally a creature of Germanic law,was brought to England by the Normans, and found its way into the common law of England, seeing occasional use into the 1600’s when it fell out of favour, nothwithstanding that it remained a part of the labyrinth that is the common law.
That same common law sailed with the Pilgrims to the American colonies, and, with all its quirks and oddities, became the foundation of American law, so prior to the War of Independence, trial by combat, at least in legal theory, remained available to colonial litigants, whether or not they actually availed themselves of it.
England made several half-hearted attempts to legislate an end to trial by combat, including one effort, in a direct response to the Boston Tea Party, to outlaw the practice in the colonies, but all were unsuccessful. ( By all appearances it wasn’t exactly a burning legal issue at the time – it was rarely invoked- as Justice Bayley, of the English Court of King’s Bench wryly declared in 1818, when considering, and approving, a request for trial by combat ” one inconvenience which attends this mode of proceeding is that, the party requesting it must, if required, be prepared to stake his life in support of his accusation! )
So, when Independence came to the United States, trial by combat came with it.
Although my research has yet to uncover any instances of its actual use, (not counting high noon gun fights in spaghetti Westerns, of course) it appears that Rudy wasn’t the first to propose it. In 2016, Richard Luthman, a New York attorney actually obtained a ruling from that State’s Supreme Court, confirming that trail by combat was indeed legal, and, as a right not specifically otherwise addressed in the constitution, was therefore protected by the 9th Amendment. (The court did, however, also rule that a plain vanilla trial by jury would work just as well, and declined to order the litigants to fight to the death with broad swords).
The precedent having been set, in 2020 David Ostrom, a family law litigant in Iowa requested that the procedure be invoked to allow him to settle a custody and property dispute with his ex. with swords In response, the court ordered a sanity test, before hearing, and rejecting his request.
The common law system is a wonder; constantly changing and adapting to the times, as one case builds on the one preceding it. So, as the law appears to be developing now, based on the Ostrom case, passing a sanity test is a pre-requisite of invoking ones constitutional right to trial by combat. That doesn’t bode well for the prospect of me going mano-a-mano with Rudy any time soon, since he doesn’t seem to be studying for the test.
But hey, Rudy, show up with a positive sanity test and a negative covid one, and its your choice of weapons!