The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
DEFENDANT DEMANDS TRIAL BY COMBAT
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.
Mr. Luthmann then proceeds with an interesting and detailed history of the trial by combat (I can't speak to its accuracy, but it may well be accurate). "Wager of battle, as the trial by combat was called in English, appears to have been introduced into the common law of the Kingdom of England following the Norman Conquest and remained in use for the duration of the High and Late Middle Ages," he says, and goes on from there.
He then proceeds to note 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 in the American colonies. It was successfully opposed by Member of Parliament John Dunning, who called the appeal of murder "that great pillar of the Constitution". Shoenfeld, Mark (1997), "Waging battle: Ashford v. Thornton, Ivanhoe and legal violence", in Simmons, Clare, Medievalism and the Quest for the "Real" Middle Ages, Routledge, at p. 61.
And he argues that the Ninth Amendment preserved the right to trial by combat as one of the rights "retained by the people." The argument is obviously not going anywhere, and I suspect not intended to go anywhere, but it's an amusing read.
Mr. Luthmann also makes other arguments in his brief, in a quite intemperate style that I would think wouldn't endear him to judges; consider, for instance, the heading on p. 2, "Defendants' (and their attorney-counterclaim defendant to be)'s moronic suppositions." Still, it's always pleasant to see lawyers spending so much of their time (and, in this case, not their client's money) for our entertainment.
Thanks to Charles Nichols for the pointer.