Community courts and community justice prevailed in
England at the time of the Norman Conquest (1066). The legal system was
ritualistic, dependent upon oaths at most stages of litigation, and permeated by
both religious and superstitious notions. The proceedings were oral, very
personal, and highly confrontative. Juries were unknown. One party publicly
"appealed," or accused, the other before the community meeting at which the
presence of both was obligatory. To be absent meant risking fines and outlawry.
After the preliminary statements of the parties, the court rendered judgment,
not on the merits of the issue nor the question of guilt or innocence, but on
the manner by which it should be resolved. Judgment in other words preceded
trial because it was a decision on what form the trial should take. It might be
by compurgation, by ordeal, or, after the Norman Conquest, by battle. Excepting
trial by battle, only one party was tried or, more accurately, was put to his
"proof." Proof being regarded as an advantage, it was usually awarded to the
accused party; in effect he had the privilege of proving his own case.
(2) Trial by compurgation consisted of a sworn statement to the truth of
one’s claim or denial, supported by the oaths of a certain number of fellow
swearers. Presumably they, no more than the claimant, would endanger their
immortal souls by the sacrilege of false swearing. Originally the oath-helpers
swore from their own knowledge to the truth of the party’s claim. Later they
became little more than character witnesses, swearing only to their belief that
his oath was trustworthy. If he rounded up the requisite number of compurgators
and the cumbrous swearing in very exact form proceeded without a mistake, he won
his case. A mistake "burst" the oath, proving guilt.
(3) Ordeals
were usually reserved for more serious crimes, for persons of bad reputation,
for peasants, or for those caught with stolen goods. As an invocation of
immediate divine judgment, ordeals were consecrated by the Church and shrouded
with solemn religious mystery. The accused underwent a physical trial in which
he called upon God to witness his innocence by putting a miraculous sign upon
his body. Cold water, boiling water, and hot iron were the principal ordeals,
all of which the clergy administered. In the ordeal of cold water, the accused
was trussed up and cast into a pool to see whether he would sink or float. On
the theory that water which had been sanctified by a priest would receive an
innocent person but reject the guilty, innocence was proved by sinking -- and
hopefully a quick retrieval -- guilt by floating. In the other ordeals, one had
to plunge his hand into a cauldron of boiling water or carry a red hot piece of
iron for a certain distance, in the hope that three days later, when the
bandages were removed, the priest would find a "clean" wound, one that was
healing free of infection~ How deeply one plunged his arm into the water, how
heavy the iron or great the distance it was carried, depended mainly on the.
gravity of the charge.
(4) The Normans brought to England still
another ordeal, trial by battle, paradigm of the adversary system, which gave to
the legal concept of "defense" or "defendant" a physical meaning. Trial by
battle was a savage yet sacred method of proof which was also thought to involve
divine intercession on behalf of the righteous. Rather than let a wrongdoer
triumph, God would presumably strengthen the arms of the party who had sworn
truly to the justice of his cause. Right, not might, would therefore conquer.
Trial by battle was originally available for the settlement of all disputes but
eventually was restricted to cases of serious crime.
(5) Whether
one proved his case by compurgation, ordeal, or battle, the method was
accusatory in character. There was always a definite and known accuser, some
private person who brought formal suit and openly confronted his antagonist.
There was never any secrecy in the proceedings, which were the same for criminal
as for civil litigation. The judges, who had no role whatever in the making of
the verdict, decided only which party should be put to proof and what its form
should be; thereafter the judges merely enforced an observance of the rules. The
oaths that saturated the proceedings called upon God to witness to the truth of
the respective claims of the parties, or the justice of their cause, or the
reliability of their word. No one gave testimonial evidence nor was anyone
questioned to test his veracity. |
