Friday, October 24, 2008

Some legal history

Have you ever wondered where "Trial by Battle" or "Throwing down the Gauntlet" came from or "trial by ordeal" or "trial by jury?" My good friend David Guenter provides a source.

Here is some insight from J.H. Baker, An Introduction to English Legal History...

Ordeals involved an appeal to God to reveal the truth in human disputes, and they required priestly participation to achieve this rapport with the Deity. Several forms of ordeal were recognized by the early Christian Church, but in England they usually took the form of fire or water. In the former, a piece of iron was put into a fire and then in the party's hand; the hand was bound, and inspected a few days later; if the burn had festered, God was taken to have decided against the party. The ordeal of cold water required the party to be trussed and lowered into a pond; if he sank, the water was deemed to have 'received him' with God's blessing, and so he was quickly fished out. There was a prolonged intellectual debate about the legitimacy of the ordeal. It was not clear how man could expect God to answer human questions; might He not, for instance, choose to absolve men who had broken the law but had repented? And what if He decided not to interevene at all, but to leave the matter to be settled by His ordinary laws of nature? Could one be sure in a given case that He had intervened? There is some evidence that those who administered ordeals, perhaps because of such doubts, began to feel a responsibility to facilitate the result they considered right: for instance, by letting the iron cool in cases where suspicion was weak, or by interpreting a burned hand liberally....In 1215, the Lateran Council, after discussing these problems, took the decisive step of forbidding clergy to participate any more in ordeals. This led in England to the introduction of the criminal jury trial.

A jury was a body of men sworn to give a true answer (veredictum, verdict) to some question....Its prominent place in criminal procedure was a direct result of the decision of the Church in 1215 to stop ordeals. Judicial combat was not affected by that decision; although the Church disliked it, the procedure was less mystic and required no clerical participation. Battle therefore remained available in appeals of felony; but it was distrusted by complainants and judges alike, and it soon went out of general use. Battle survived also in writs of right; but there too demandants were driven to alternative remedies to avoid it. Its disuse enabled battle to survive in retirement until the nineteenth century; it was abolished only after a gauntlet was thrown into a startled Court of King's Bench in 1818. [FN 10: Ashford v. Thornton (1818)....The last previous wager of battle in a writ of right was in 1638, but the fight was stopped at the last minute...In 1985 a defendant in the High Court of Justiciary in Scotland tried unsuccessfully to wage battle against the lord advocate, claiming that the 1819 statute applied only to England.

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