# Lawyer requests trial by combat: 9th Amendment and goofiness factor **URL:** \ **Category:** Factual Questions\ **Created:** [August 8, 2015, 7:50pm UTC](https://boards.straightdope.com/t/lawyer-requests-trial-by-combat-9th-amendment-and-goofiness-factor/727332 "2015-08-08T19:50:27Z")\ **Posts on this page:** 9\ **Page:** 2
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [August 10, 2015, 1:35pm UTC](https://boards.straightdope.com/t/lawyer-requests-trial-by-combat-9th-amendment-and-goofiness-factor/727332/21 "2015-08-10T13:35:39Z")
> [@UDS](#): > > …if push came to shove the American courts would hold that it could not have survived the eighth amendment, which guarantees a right to trial by jury. The right to jury trial is in the _Seventh_ Amendment, and has not been incorporated against the states for civil matters. I understand the demand for trial by combat mentioned in the OP is a New York case, though the link doesn’t work for me. In any event, the parties are free to waive their right to a jury trial provided both agree. So at least in theory, the Seventh Amendment is no bar to trial by combat. Article I, Section 2 of the New York Constitution also guarantees the right to jury trial, but again the parties may waive it in a civil case (and the defendant may waive it in a criminal case). Having said all that, trial by battle was only available at common law in “private prosecutions” - that is, when the family pursued a criminal case against a defendant who had been acquitted in the Crown’s case against him. We don’t have private prosecutions, and didn’t at the time of the ratification of the 7th Amendment, so we wouldn’t have any of the procedural rights that attach to them either. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [August 10, 2015, 5:38pm UTC](https://boards.straightdope.com/t/lawyer-requests-trial-by-combat-9th-amendment-and-goofiness-factor/727332/22 "2015-08-10T17:38:13Z")
> [@RadicalPi](#): > > Can I ask for a cite for that? Don’t have a book at my fingertips, but as I recall English common law was adopted piecemeal in the new United States, when it made sense and there was no established American law on a particular point. In addition to trial by combat, we didn’t bring over Anglican ecclesiastical courts or the distinction between solicitors and barristers, either. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [August 11, 2015, 3:29am UTC](https://boards.straightdope.com/t/lawyer-requests-trial-by-combat-9th-amendment-and-goofiness-factor/727332/23 "2015-08-11T03:29:13Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Having said all that, trial by battle was only available at common law in “private prosecutions” - that is, when the family pursued a criminal case against a defendant who had been acquitted in the Crown’s case against him. We don’t have private prosecutions, and didn’t at the time of the ratification of the 7th Amendment, so we wouldn’t have any of the procedural rights that attach to them either. Very true, however, some exceptions remain. In West Virginia, private criminal prosecutions may be instituted for passing worthless checks. W.Va. Code §61-3-39f. Further: [QUOTE=W.Va. Code §2-1-1. Common law.] The common law of England, so far as it is not repugnant to the principles of the constitution of this state, shall continue in force within the same, except in those respects wherein it was altered by the general assembly of Virginia before the twentieth day of June, eighteen hundred and sixty-three, or has been, or shall be, altered by the Legislature of this state. [/QUOTE] I’m not sure if Virginia abolished trial by combat prior to 1863, but I haven’t seen any WV case law after that. So, assuming no earlier case law, it seems that unless trial by combat is “repugnant to the principles of the constitution” of West Virginia, if I am accused by a private citizen of passing a worthless check, I can say to hell with this jury trial in magistrate court, we are fighting to the death. However: [QUOTE=W.Va. Const Art. 4 Sec. 10. Fighting of duels prohibited.] ``` Any citizen of this state, who shall, after the adoption of this constitution, either in or out of the state, fight a duel with deadly weapons, or send or accept a challenge so to do, or who shall act as a second or knowingly aid or assist in such duel, shall, ever thereafter, be incapable of holding any office of honor, trust or profit in this state. ``` [/QUOTE] But a trial by combat can be distinguished from a duel as a trial by combat is supervised by the government and part of the common law. \*I know that no judge would ever seriously consider it, but hey, free advertisement in the newspaper!! ---
**Author:** ![Alex\_Schindler](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@Alex\_Schindler](https://boards.straightdope.com/u/Alex_Schindler)\ **Post date:** [September 13, 2015, 2:10am UTC](https://boards.straightdope.com/t/lawyer-requests-trial-by-combat-9th-amendment-and-goofiness-factor/727332/24 "2015-09-13T02:10:11Z")
This is absolutely amazing. The document is linked to by Eugene volokh here > **[Opinion | Staten Island lawyer demands trial by combat](https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/08/06/staten-island-lawyer-demands-trial-by-combat/)** > > The Ninth Amendment, he argues, preserved this ancient (sorry, antient) provision as part of American law. The trial by combat part may be the funniest but it’s all a gold mine. One of the headings is “Defendant’s… Moronic suppositions”. He questions whether opposing counsel was present on the day of law school where they actually practiced law. As a 2L, I’m wondering whether I missed that one too, or if it’s coming up! ---
**Author:** ![Alex\_Schindler](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@Alex\_Schindler](https://boards.straightdope.com/u/Alex_Schindler)\ **Post date:** [September 13, 2015, 2:17am UTC](https://boards.straightdope.com/t/lawyer-requests-trial-by-combat-9th-amendment-and-goofiness-factor/727332/25 "2015-09-13T02:17:05Z")
The penultimate paragraph is really special : 1. The allegations made by Plaintiffs, aided and abetted by their counsel, border upon the criminal. As such, the undersigned respectfully requests that the Court permit the Undersigned to dispatch Plaintiffs and their counsel to the Divine Providence of the Maker for Him to exact His Divine Judgment once the Undersigned has released the souls of the Plaintiffs and their counsel from their corporeal bodies, personally and/or by way of a Champion. ---
**Author:** ![buddha\_david](https://avatars.discourse-cdn.com/v4/letter/b/ee7513/32.png) [@buddha\_david](https://boards.straightdope.com/u/buddha_david)\ **Post date:** [September 13, 2015, 2:40am UTC](https://boards.straightdope.com/t/lawyer-requests-trial-by-combat-9th-amendment-and-goofiness-factor/727332/26 "2015-09-13T02:40:21Z")
Hmm. I wonder when the lawyer will propose a [Trial by Quake 3 Deathmatch](http://www.1up.com/news/notch-wants-settle-bethesda-scrolls-lawsuit-playing-quake-3), as in the Bethesda vs. Mojang lawsuit. ---
**Author:** ![Derleth](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Derleth](https://boards.straightdope.com/u/Derleth)\ **Post date:** [September 13, 2015, 4:48am UTC](https://boards.straightdope.com/t/lawyer-requests-trial-by-combat-9th-amendment-and-goofiness-factor/727332/27 "2015-09-13T04:48:34Z")
> [@Leo\_Bloom](#): > > ([Real-life Game of Thrones: Lawyer seeks trial by combat to resolve lawsuit - silive.com](http://www.silive.com/northshore/index.ssf/2015/08/real-life_game_of_thrones_layw.html)): Fixed link: [Real-life Game of Thrones: Lawyer seeks trial by combat to resolve lawsuit - silive.com](http://www.silive.com/northshore/index.ssf/2015/08/real-life_game_of_thrones_layw.html) > [@Leo\_Bloom](#): > > ([Rock paper scissors - Wikipedia](https://en.m.wikipedia.org/wiki/Rock-paper-scissors)): Fixed link: [Rock paper scissors - Wikipedia](https://en.m.wikipedia.org/wiki/Rock-paper-scissors) Demobilized: [Rock paper scissors - Wikipedia](https://en.wikipedia.org/wiki/Rock-paper-scissors) ---
**Author:** ![Leo\_Bloom](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/leo_bloom/32/10377_2.png) [@Leo\_Bloom](https://boards.straightdope.com/u/Leo_Bloom)\ **Post date:** [July 17, 2017, 7:11pm UTC](https://boards.straightdope.com/t/lawyer-requests-trial-by-combat-9th-amendment-and-goofiness-factor/727332/28 "2017-07-17T19:11:26Z")
Old but just found it (a zombie for a zombie): **[Court refuses trial by combat](http://www.telegraph.co.uk/news/uknews/1416262/Court-refuses-trial-by-combat.html)** 16 Dec 2002 A court has rejected a 60-year-old man’s attempt to invoke the ancient right to trial by combat, rather than pay a £25 fine for a minor motoring offence. Leon Humphreys remained adamant yesterday that his right to fight a champion nominated by the Driver and Vehicle Licensing Agency (DVLA) was still valid under European human rights legislation. He said it would have been a “reasonable” way to settle the matter. Magistrates sitting at Bury St Edmunds on Friday had disagreed and instead of accepting his offer to take on a clerk from Swansea with “samurai swords, Ghurka knives or heavy hammers”, fined him £200 with £100 costs… ---
**Author:** ![clairobscur](https://avatars.discourse-cdn.com/v4/letter/c/839c29/32.png) [@clairobscur](https://boards.straightdope.com/u/clairobscur)\ **Post date:** [July 17, 2017, 10:06pm UTC](https://boards.straightdope.com/t/lawyer-requests-trial-by-combat-9th-amendment-and-goofiness-factor/727332/29 "2017-07-17T22:06:28Z")
I remember reading in a paper, long ago (maybe 30 years ago) that a Scottish lawyer had requested too a trial by combat against the prosecutor, on the basis that it had never been formally abolished there. [Previous page](https://boards.straightdope.com/t/lawyer-requests-trial-by-combat-9th-amendment-and-goofiness-factor/727332.md?page=1)