Imagine you’ve just gotten a ticket for a motor vehicle violation. You have the right to defend yourself against it, but do you have the right to take up arms to do so? In other words, can you demand your right to trial by combat? This question may seem non-sensical. After all, we have an adversarial system, but it’s not that adversarial, right?

Before delving into why I’m posing that question, a bit of legal historical context: trial by combat, also known variously as ‘trial by battle’, ‘wager of battle’, or ‘judicial duel’, was a medieval form of criminal procedure in which the disputants in a legal suit fought each other, with the winner also deemed to have won his or her case. Alongside ordeals (you can read my article on that topic, if you are so moved, at Between a Rock and a Hot Place) , trial by combat was a common form of adjudication of disputes. Originally Germanic in origin, the Normans brought it with them to England following the Conquest. In the U.K. it’s high point of use was between the 11th and 15th centuries. Trial by combat was not available in certain cases, such as if there was very strong exculpatory evidence against the defendant, if he or she was captured ‘red-handed’, or if he or she had attempted escape following capture. A party lost by dying, being rendered unable to fight any further, or by crying “craven” (a lovely old word meaning “cowardly”, but originally being old French for ‘broken’, meaning in this context “I am vanquished”). A defendant who was killed lost the case (not that it probably mattered much at that point), but if defeated and alive, could be executed or declared “infamous” (meaing he lost all legal protections, priviliges and status). A defendant who defeated the plaintiff, or was able to defend himself successfully from sunrise to sunset, was deemed exonerated. The stakes were high for the plaintiff, as well– if killed, he lost the suit (again, probably not very important at that point); if he survived and lost, he was likewise rendered “infamous”.  Interestingly, before being allowed into the ring to begin their trial by battle, the combatants often had to swear an oath that they had not resorted to sorcery; one such surviving oath read as follows: “Hear this, ye justices, that I have this day neither eat, drank, nor have upon me, neither bone, stone, nor grass; nor any enchantment, sorcery, or witchcraft, whereby the law of God may be abased, or the law of the Devil exalted. So help me God and his saints.”

So, why am I asking whether trial by combat is still a possible form of legal action? Just that question came up a few years ago in the U.K.  In December 2002 a 60 year-old unemployed mechanic from the town of Bury St Edmunds incurred a £25 fine for a minor traffic infraction resulting from his failure to notify the Driver and Vehicle Licensing Agency (DVLA) that his motorcycle was no longer operational. Leon Humphreys shocked the court by maintaining that he still had the ancient right to fight a champion nominated by the DVLA. Following his hearing, he was quoted as saying: “I am willing to fight a champion put up by the DVLA if they want to accept my challenge. The victor speaks in the name of God and justice so it is a reasonable enough way of sorting the matter out. I know I am in the right so I do not have anything to worry about. I am reasonably fit for my age and I am not afraid of taking anyone on if they want to fight.” The magistrates did not quite know what to make of this– the question of whether this barbaric form of medieval process was still extant hadn’t come up before, to their knowledge. [This leads me to mention that there’s never a legal historian around when you need one, but I digress]

They eventually decided (quite rightly) that it was not. While they may have been unsure of the reason, the reality is that trial by combat fell into disuse in the late medieval period and was forgotten– or, at least, forgotten until 1818 when a defendant in a murder appeal demanded it to a shocked court (Ashford v. Thornton). It was formally repealed by Parliament the following year, which also abolished ‘appeals of murder’ (the ability of a third party to prosecute a defendant after he or she had been acquitted of murder charges). But could it still be an option in the U.S.?

English common was received into the U.S. before the American Revolution. Following American independence, the common law remained entrenched here, albeit supplanted, modified, and expanded upon at both the federal and state levels over the intervening two centuries. Clearly, U.K. decisions regarding English common law are not binding on U.S. courts; and moreover trial by combat survived in the U.K. until formally abolished by Parliament in 1819, well after American independence. Since we inherited the common law, and since subsequent repeal by Parliament has no legal weight here– and as it appears no court in the U.S. has ever grappled with the issue– that leaves open the question of whether theoretically trial by combat may have survived as a legacy of our common law system.

This would, of course, bring a whole new meaning to “fighting it out in court”.