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The decision was left not to the fallible judgment of man, but, as was believed, to the infallible judgment of the Deity. As long as this belief subsisted universally, it is evident, as we have already observed, that no mode of trial proceeding upou a different principle could well come into use. Men would not readily relinquish a method which afforded them in all cases a certain determination of the matter, for one which afforded them only a doubtful determination of it. They would not easily be disposed to remain satisfied with a decision which might be wrong, while they believed that they had it in their power to obtain one that could not but be right. That belief, however, was so entirely founded in ignorance and superstition, that it of necessity decayed in the light of increasing knowledge and civilization ; even the results of the trials at law that were founded on it would themselves be constantly raising suspicions of its fallacy. Nevertheless, there is reason to suppose that it was not any general conviction of the absurdity of the ordeal, or of the vanity of the imagination on which the use of it rested, that led first to its discouragement, and eventually to its entire abandonment. If such a conviction had been arrived at, the practice would ave been given up at once, as one wholly irrational and iniquitous. But this was not the course taken. In the first instance, the legislature only interfered to narrow the application of the ordeal, and the church to discountenance the frequent or indiscriminate resort to it. It is evident that the popular prejudice in its favour could not yet be attacked in front. Its folly was discerned by the ruling and more enlightened part of the community; and the government and the church, even if either or both may be supposed to have had an interest in keeping it up as a convenient instrument of control, must have perceived that it was one which could not be much louger left in their hands; but they did not, for all that, announce that the supposed judgment of Heaven was really nothing of the kind. If they had, they would have offended what was yet the general sentiment, and their announcement would probably have been received with incredulity and scorn. Besides, there would be a natural reluctance on the part of those by whom the ordeal had been hitherto sanctioned and upheld to make a frank acknowledgement that it was all a solemn mockery. They therefore nok another course. The clergy began to preach against the ordeal, not as being absurd, but as being impious ; they did not deny its efficiency, as an appeal to Heaven, but they endeavoured to show that it was an appeal which, in ordinary circumstances, at least, it was sinful in human beings to make. They may possibly also have sometimes insinuated that one of the consequences of its abuse would be its frequent failure ;—that the Deity would not consent to favour with a true decision of their cause the parties who thus improperly called upon him. Be this as it may, it was only after a long course of partial opposition to the ordeal that the church ventured finally and distinctly to prohibit its use. It did do this at last, however, by the eighteenth canon of the Fourth Council of Lateran, published in November, 1215.
Meanwhile, the ordeal had been gradually falling more and more into disuse under the operation of various causes. The discouragement of it by the church, and the diffusion of the feeling upon which that discouragement was professedly grounded, would, no doubt, have a powerful effect in indisposing the public mind towards such a mode of trial except in very extraordinary circumstances. Then, the conviction of its inherent absurdity, and utter unsuitableness in any circumstances, was of course growing and extending itself. Besides, it was not necessary in order to be opposed altogether to the ordeal as a mode of trying causes, that a person should be a disbeliever in the assumed principle of that kind of trial. That
а principle was, that the Deity, if fairly appealed to, would work a miracle in vindication of the innocent party—would prevent the boiling water from scalding him,
or the red-hot iron from burning him. This might be granted ; and still the ordeal might be objected to on the ground that there was, and could be, no security for
ts being in any case a fair submission of the matter to the arbitration of Heaven, It might be alleged that, from the way in which the matter was managed, the result was wholly in the hands of the functionaries who superintended the process. The historian Eadmer relates, as an instance of the daring impiety of William Rufus, that upon one occasion, when about fifty Englishmen, of good quality and fortune, whom he had caused to be tried for killing his deer, by the ordeal of hot iron, had all come off unburnt, and were consequently acquitted, that king declared he would have them tried again by another mode, and not by this pretended judgment of God, which was made favourable or unfavourable at any man's pleasure. Yet Rufus here did not dispute the efficacy of the ordeal if it had been fairly managed; he did not deny that Heaven, if appealed to, would pronounce a just decision, and would even, if necessary, work a miracle for that purpose ; he only denied that the professed appeal to Heaven was really made. And this was a suspicion that was, no doubt, very generally entertained.
The gradual extinction, however, of the practice of trying causes by appeal to the judgment of Heaven, was mainly brought about by the natural development of the principle of that mode of trial itself. And this is the most curious point in the inquiry, and that which is most deserving of attention. The manner in which what we should now call evidence originally obtained admission in trials at law was by its assuming the form of an appeal to Heaven; that is to say, it obtained admission on the only principle then recognised,—the principle of the ordeal. In a criminal case, instead of the ordeal of water or iron being at once resorted to, au attempt was made to avoid that expedient, and to decide the case by a contest of oaths between the authors of the charge on the one hand, and the accused party and his friends on the other ; it was only in the event of the charge not being established by this preliminary process that the trial was carried farther. But the persons who thus swore were not at first witnesses at all: they did not profess to testify to the facts at issue upon their own knowledge; all that they declared was, those on the one side their belief in the guilt, those on the other their belief in the innocence of the accused. Nor was their testimony considered and weighed by any act of the judgment; their testimony, properly speaking, was not estimated at all, but they themselves were counted and valued, each man according to his “ were," or the legal worth at which he was rated according to his rank in society. This, therefore, was not the hearing of evidence in any sense ; it was merely another mode of appealing to Heaven, which it was supposed would no more suffer the guilty party to come off victor in this contest of oaths than it would fail to vindicate the innocent in the ordeal of fire or water. Nevertheless, this mode of compurgation, as it was called, could scarcely fail to lead, in course of time, to a further innovation. The person pledging his faith in favour of the one side or the othe, with an evident or understood knowledge of the facts bearing on the question at issue, would inevitably make a stronger impression upon the court than the person manifestly destitute of such knowledge who presented himself to make a similar or an opposite deposition : this would happen even while the letter and practice of the law made no distinction or that ground between the two deponents. The bringing forward of persons to make their depositions who were not acquainted with the facts of the case, would, in this way, become disreputable, and gradually fall into disuse, till at length the deponents ou both sides, though still only called upon to make oath to their belief in the statement of the one party or of the other, would be almost always understood to speak not merely from partiality to the party whom their declarations were to benefit, or from a general confidence in his
credibility, but from their owu knowledge of the disputed facts. In truth, a person ignorant of the facts would, it may fairly be presumed, scarcely dare now to present himself to make oath in opposition to one to whom the facts were well known. Here, then, we have the deponents on both sides already turned into witnesses even before the law yet demands their testimony. But, this point arrived at, it is impossible that the next step should be long delayed. The witnesses, that is the persons having a knowledge of the facts, being thus brought before the court, would naturally be led by degrees to extend their depositions beyond a mere general declaration in support of either party ; they would proceed to state the grounds of the belief which they made oath that they entertained ; in other words, they would state the facts which they knew in relation to the cause,—they would give their testimony as well as their depositions. Evidence having thus once obtained admission, howerer irregularly, and with however little legal efficacy in the first instance, would speedily come to be received as of weight in the decision of the cause, and would then be demanded as indispensable. But this change would render necessary other important changes.
So long as causes were tried on the principle of submitting the matter in dispute, in some form or other, to the arbitration of Heaven, no functionaries that could properly be called judges were required in the courts of law. There might be a person to preside, and to declare or make publicly known the result of the process which had been gone through ; but no exercise of the judgment was demauded either here or in any other part of the proceedings. The whole affair, as already observed, was of the nature of a chemical experiment, or an arithmetical calculation ; it was conducted according to certain fixed rules, or might be said to carry on itself; and the ascertainment of the result was merely a matter of observation, and of observation of the easiest kind. Under this state of things, therefore, all kinds of causes were tried at popular meetings, -at the wittenagemote, and the shiremote, and the other assemblies of the same kind ; and the judgment passed in each case might as truly be said to be that of the attending crowd as that of the members of the court. It was really the judgment neither of the one nor of the other, nor was it so considered ; it was called not the judgment of man at all, but the judgment of God. But as soon as the principle of the appeal to Heaven was departed from, by the admission of evidence, the whole system of the administration of the law necessarily assumed a new form. The exercise of judgment by the court now became indispensable. It is probable, however, that in the gradual progress the change, this consequence was not for some time very clearly perceived, and that it came upon the country and the government before the requisite preparations were made for it. Hence, as occasions arose, expedients of various kinds would be at first resorted to with the view of making the old machinery still
It would soon be found, for instance, that the hearing of evidence, unlike the ordeal and the trial by compurgation, produced differences of opinion among the persons present; and it would also become abundantly apparent that a large multitude of persons did not form the most convenient tribunal for weighing and coming to a decision upon the statements of conflicting witnesses. In these circumstances we might, on the first view of the matter, suppose the most natural course would be to appoint a small committee of the court to examine the witnesses and come to a judgment upon the cause.
But this is to assume that the proper distinction between the provinces of the court and of the witnesses was already much more distinctly perceived than it could as yet be, when things were only beginning to emerge out of that state in which the court had really never taken any part in the trial of the cause at all. The witnesses, or the persons who came to give evidence, and not the court, would at this time in fact be most naturally looked
upon as the real triers of the cause. A committee of the wituesses, therefore, rather than a committee of the court, would be the select body appointed for its consideration and settlement in the earliest attempts to escape from the confusion and perplexity of conflicting evidence. Those of the witnesses who were conceived to be the persons of greatest probity, or to be those best acquainted with the facts, would be chosen out from among the rest, and left to agree among themselves as to how the truth stood,-in other words, to try the cause. The persons thus set apart would probably be called upon to make their depositions with more form and solemnity than ordinary witnesses; for instance, although the ordinary witness might be heard merely upon his declaration, the selected witness would be required to give his evidence upon oath. Finally, it would very soon become the custom for the selected witnesses, or triers, to be always of the same number ; such a rule would be properly held to conduce to fairness of procedure; and besides, the popular feeling has always attached a certain virtue or importance to particular numbers.
In the above deduction we have in fact what appears to be the history of the origin in this country of trial by jury, in as far as it can be collected from the scanty notices that remain to us of changes which, however important they were destined to be in their ultimate results, were scarcely deemed worthy of being recorded by any contemporary chronicler, and the only memory of which that has come down to us has been preserved more by accident than by design. We know that, even in the Saxon times, it was occasionally the practice to select for the decision of a civil suit certain of the most reputable of the persons who professed to be acquainted with the facts in dispute, the parties agreeing together in their nomination, and consenting to abide by their decision or verdict. In the Norman times this became a more usual mode of trying causes, and it was now consequently subjected to more strict regulation. Nothing is better established than that the original jury, or body of sworn triers, were really the witnesses in the case, and that their verdict was their deliverance upon it from their own knowledge of the facts. At first this mode of trial appears to have been only occasionally and sparingly resorted to. Two instances are recorded in the reign of the Conqueror, one in a suit between the crown and Gundulphus, Bishop of Rochester, in 1078, the other in a suit respecting certain lands claimed for the bishopric of Ely in 1080. In the subsequent reigns the instances are more frequent. Sir F. Palgrave is of opinion that in criminal cases the jury was unknown in this country until enacted by the Conqueror. William, in a charter by which he professed to restore the laws of the Confessor, with certain additions, directed that, in the particular case of a charge made by an Englishman against a Norman, or by a Norman against an Englishman, the guilt or innocence of the accused should be determined by a tribunal of sworn witnesses, “according to the law of Normandy." The first regulation, however, which established the jury as a general mode of trial appears to have been one of the laws, or “assizes,” as they were called, enacted by Henry II. at Clarendon, about 1176. By this law, to quote the account of Sir F. Palgrave,
“ the justices, who represented the king's person, were to make inquiry by the oaths of twelve knights, or other lawful men, of each hundred, together with the four men from each township, of all murders, robberies, and thefts, and of all who had harboured such offenders since the king's accession to the throne.” Another enactment of the same assizes abolished the trial by compurgation in criminal cases, except in certain boroughs. The verdict of the inquest, however, was not yet made final. The person charged by the twelve knights was still allowed to clear himself, if he could, by the ordeal of fire or water. Other laws of the same king, some of which, however, are only imperfectly preserved, appear to have established the inquest or “recognition" by the twelve lawful men as the regular mode of trial in various kinds of civil suits.
If the trial by battle was at all known in Saxon times, the earliest record of it in England is subsequent to the Conquest. The duel (or erneste, as its Saxon name appears to have been) would seem to be a still ruder mode of trial than any of those methods that were more peculiarly called the ordeal, as allowing, which they did not, mere physical force to be the main arbitrator of the dispute, and being therefore almost identical in principle with the mode of deciding quarrels which is proper to a state of nature. It is, probably, indeed, of greater antiquity than the ordeal ; yet it was neither supplanted by the ordeal, por when that mode of trial was abolished did the duel even share its fate. It continued in common use for ages afterwards. The duel was undoubtedly looked upon as being, not less than the ordeal, an appeal to the judgment of God, and it was in virtue of this character that it retained its place as one of the allowed modes of trial in association with the ordeal. If it had been deemed to be a mere contest of physical strength, it is difficult to conceive that it ever should have been adopted as a mode of legal trial at all, and it certainly could not have kept its ground as such after the more refined principle of the ordeal came to be recognised. The belief was that Heaven would by no means allow the issue of the appeal to depend upon the thews and sinews of the two combatants, but would defend the right, if necessary by enabling the weaker man to overcome the stronger,—that is to say, by working a miracle, just as in the case of the ordeal. The duel and the ordeal therefore stood in the popular imagination upon the same principle. Why, then, when the ordeal was prohibited, was not the duel abolished along with it ? To be enabled to answer this question we must recollect that the prohibition of the ordeal was by no means distinctly placed by the church upon the ground of the inherent absurdity of such a mode of trial,—of the fallacy of the notion that the special interference of Heaven was to be so secured. The practice was discouraged, and at last formally condemned as unlawful, on other grounds altogether, as has been shown above. It was denounced as impious rather than as fallacious or absurd. If it was admitted to be in any sense fallacious, it was merely in so far as the supposed appeal to Heaven might by dishonest management be rendered only apparent instead of real. The generally received opinion that the direct judgment of God in a cause might be obtained by being properly sought for was left unassailed. All that was affirmed was, that the ordeal of fire or of water, was not a proper mode of seeking for such judgment. The condemnation of these modes, therefore, did not necessarily touch the trial by combat. It lay under none of the objections on account of which they were condemned. It did not easily admit of collusion or any other species of unfair management. It was from its nature not likely to be resorted to upon trivial occasions, or to be taken advantage of in any circumstances as a mere form, but was always of necessity a solemn encounter, in which neither party could engage without peril of his life. Add to all this the accordance of the trial by combat with the martial spirit of the times, when prowess in arms was looked upon as almost the chief of human virtues; and we shall be at no loss to understand the favour, or at least the toleration, which was shown to this mode of trial when the not more barbarous or more unjust custom of the ordeal was banished from the judicial practice of Christendom. Yet even within the period now under consideration an important step was taken towards the extinction of the appeal of battle in civil suits by a law of Henry II., which gave to both the tenant and defendant in a writ of right the alternative of having the case tried by what was called the grand assize, which was in fact merely a jury composed of four knights returned by the sheriff, and of twelve other persons named by them. The introduction of the grand assize is as