Wednesday, April 25, 2007

Continuing Legal Education

A friend I haven't seen in a while spotted my bruises. He asked me about my swordfighting and I responded candidly that yes, sometimes accidents happen, and the results are bruises.

"Why do you do this to yourself?"

I jokingly responded, "Continuing legal education."


Let me now risk becoming un-funny by explaining my joke.
  1. Trial by combat was an accepted form of resolving disputes, imported into England by the Norman conquest.
  2. It may have been historically acceptable to use champions to fight on behalf of the litigant.
  3. Hence, the first lawyers might have been one of these judicial duelists.

Yes, I know. I'm hilarious.


Two interesting points. The right to claim trial by combat is part of English common law, repealed by an act of English Parliament in 1819. I noticed an article in Wikipedia regarding the possibility of this trial being claimable under American common law. An example of English case law principles being adopted into American jurisprudence would be the Rule in Shelly's Case.

The argument is as follows. America declared independence in 1776 - prior to the repeal of trial by combat. Given that America was a seperate sovereign state before the Act was enacted, the Act cannot affect the state of common law in America after it was adopted from British common law. Congress has obviously never repealed this expressly.

Would this argument work in Singapore?

Singapore has the opposite problem - it may have been a separate sovereign state before the UK Act of Parliament was passed. Even so, I'm not quite sure what the legal position is. My problems are as follows.

  1. The Second Charter of Justice in 1826 is interpreted specifically to import all English statutes and legal principles into Singapore. The statute abolishing wager of battel (trial by combat as it was known in England) was enacted in 1819. Clearly the statute would be part of Singapore law.
  2. Section 4(1) of the Application of English Law Act enacted in 1994, however, clearly repeals all enactments by the Parliament of England, save for a few. I am fairly certain the act repealing trial by combat is not one of the statutes preserved under the Application of English law Act.
  3. Section 3 of the Application of English Law Act specifically preserves English common law "so far as it was part of the law of Singapore immediately before 12th November 1993".
  4. The question therefore is whether trial by combat was a part of Singapore law "immediately before 12th November 1993". On one hand, the portion of Ashford v Thornton allowing trial by combat was expressly repealed by Parliament before it became part of Singapore common law. One can then argue that this case did not become part of Singapore common law.
  5. On the other hand, the portion of Ashford v Thornton that stands for the proposition that all law stands until expressly repealed was never repealed by an act of parliament - only the portion allowing wager of battel. Therefore applying the principle of Ashford v Thornton, trial by combat in Singapore is not repealed because the Application of English Law Act repealed the repealing enactment!
I would of course never argue this in front of court. However, I am interested in the answer because I am interested to know if trial by combat does form part of Singapore's legal history, albeit by an extremely perverse methodology of torturing language until it confesses to whatever you want it to say.

Anyone want to hazard a guess?

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