two men enter, one man leaves.

Dearest devoted readers, I know I have neglected this.  Days have passed without much inspiration.  However, two notable events occurred last week that compelled me to update: a friend informed me that a member of the Michigan State House submitted a bill to repeal sentencing guidelines for the crime of dueling and  I passed the California bar exam.  These events happened on the same day, and reminded me of my most inspired intellectual moment in law school — the day I decided that “trial by battle” was still a viable alternative to the civil court system in American law.  Allow me to explain:

People of the early Middle Ages needed some way of solving conflicts that did not involve the blood feud.  The blood feud was a disaster; entire families would spend several generations murdering each other over a stolen goat. European societies developed a series of “trials” through which a person could prove his or her legal case.  Some of these seem quite bizarre to the modern non-viking.  In Iceland, for example, a piece of turf (soil with grass or whatever on top) was propped up and the person  had to walk underneath without the turf falling on him (like the limbo, but with grass).  Other places just had the person walk on hot coals.  The idea was that God would favor the truthful party, and if you survived unscathed through this trial by ordeal you were clearly in the right.

Following the Norman Conquest of England, “Trial by Battle” became a common type of dispute resolution.  It was not used so much for criminal cases, instead you solved civil disputes by fighting each other.  You stole my goat, so now we will fight!  The problem with trial by battle as a legal procedure was that you could easily die or lose a leg.  As a result, legal fictions arose where parties could pretend to do trial by battle while still maintaining their bodily integrity.  For example, you could choose a “champion” to fight in your place.  That way your servant would die instead of you.

The reluctance of the English to put their lives on the line for a stolen cow was a primary motivating force in creating some of our most cherished legal institutions.  Trial by jury with evidence by witnesses was introduced by Henry II as an alternative to trial by battle.  The use of “champions” as surrogates to solve disputes morphed into the use of attorneys in front of the jury.  Since English people could now solve disputes without dying, instead submitting their case to the judgment of their neighbors, the use of trial by battle diminished until it disappeared altogether in the 1500s.

But it was never abolished.  One day in 1817, a young man named Ashford brought an obscure civil action called an “appeal of murder” against a man named Thornton he alleged had raped and murdered his sister.  Thornton had been acquitted of the crime, but British law still allowed a civil appeal of the criminal sentence if the family felt the verdict did not fit with the evidence.

At the appeal hearing, Thornton appeared wearing two leather gauntlets.  He threw one at the feet of Ashford and stated unequivocally that he was not guilty and was willing to defend himself.  The crowd was shocked.  The Justices were at first confused: ” wait?  what?  what was this man doing? OH MY GOD HE IS ASSERTING TRIAL BY BATTLE!”  Ashford’s attorneys objected, but the Justice’s hands were tied.  Trial by Battle was still good law in England.  Ashford withdrew his appeal to avoid being murdered by a bigger, stronger man.  Thornton was never convicted of the death of Ashford’s sister.  The trial by battle never occurred.  The next year, Parliament abolished both appeals of murder and trial by battle.

BO-RING!  What does this have to do with America?  The United States incorporated English Common Law as it stood in 1789  with a series of reception statutes adopted by each state as it entered the Union.  The federal government applies English common law by implication in the Constitution and explicitly through the Northwest Ordinance.  But the English didn’t get around to abolishing trial by battle as an alternative to civil jury trials until 1817, after the founding of the United States Constitution.  That means trial by battle, along with the rest of English Common Law, was incorporated into United States in 1789, just like the Rule in Shelley’s Case and fee simple determinable.  For all anyone knows, if you have a problem with your landlord and don’t feel like suing her, bring some leather gauntlets and assert your right to trial by battle!  Swords at dawn!  Have a problem with that ticket given to you by the local DMV?  Force them to appoint a champion to meet you on a deserted island!

Suggested playlist for this entry: “One Rode to Asa Bay” by Bathory; “Twilight of the Thunder God” by Amon Amarth.