In 2011 I wrote a blog about the archaic form of legal action known as trial by combat. In it, I mused about whether the right to trial by combat (also commonly called ‘wager of battle’ or ‘trial by battle’) to settle litigation might have survived as a legal right in the United States, given that the common law was deemed to have been ‘received’ into the U.S. following independence, and as this question has never been addressed by a U.S. court. While this was meant as a merely theoretical question, I did explore some more recent history in the U.K. where this issue had come up, as well as the history of the action and its repeal by Parliament in the early nineteenth-century. But just when you think such musings merely exist in the realm of fantasy and the esoteric, occupying the thought processes of legal historians with too much time on their hands, comes this legal gem: last week a Staten Island attorney has raised the prospect of demanding trial by combat in his defense to a lawsuit.
This is one thing I love about legal history: every so often a vestige of the past, mainly gone and forgotten, pops up its ghostly head again (for another example, see my blog about breach of promise to marry lawsuits in North Carolina). As chronicled in the Washington Post online, Richard A. Luthmann has raised this prospect in his response to a suit brought against him before the Supreme Court of N.Y., Richmond county. In his reply (best described as “colorful”; you can view the Lutthmann filing here) is this surprising statement: “Defendant invokes the common law writ of right and demands his common law right to Trial By Combat as against Plaintiffs and their counsel, whom plaintiff wishes to implead into the Trial By Combat by writ of right.” He then goes on the explain at some length the history of trial by combat, and grounds his argument in the 9th Amendment (which preserves rights of the people not specifically enumerated in the Constitution).
Lest you think that Attorney Luthmann’s admitted enthusiasm for the HBO series “Game of Thrones” ( which graphically depicts trial by combat, among its other distractions) has blinded him to the possible consequences of judicial dueling, he admits in his pleading that “[o]ne of the inconveniences of this procedure is, that the party who institutes it must be willing, if required, to stake his life in support of his accusation”.
As I said before, this would give new meaning to the expression “fighting it out in court.”