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By what strong arts I was at first betray'd,
And couch'd their shafts, whose structure did delight
71.-ADMINISTRATION OF THE LAWS.
Among the things that most strike us on first looking at this period of our legal and judicial history are the substitution of general and central for local judicatures, and the appointment of judges regularly trained to a knowledge of the law, to preside in the several courts. Soon after the conquest great inconveniences appear to have been felt from the adminstration of justice in the county courts, hundred courts, and courts baron. These inconveniences arose from various causes, of which the principal, according to Sir Mathew Hale, were the three following:—1st. The IGNorANce of the judges, who were the freeholders of the county. “For,” says Hale, “although the alderman or chief constable of every hundred was always to be a man learned in the laws, and although not only the freeholders, but the bishops, barons and great men, were, by the laws of king Henry I., appointed to attend the county court, yet they seldom attended there, or, if they did, in process of time they neglected to study the English laws, as great men usually do.” 2ndly. The gREAT variety of laws, the effect of several independent jurisdictions. Glanville says, “The customs of the lords' courts are so numerous and various that it is scarcely possible to reduce them into writing.” 3rdly. The corruption and intimidation practised; for all the business of any moment was carried by parties and factions.
It is probable, however, that we are to seek for the main causes of the subversion of the ancient system in certain changes which the very principle of that system was itself producing, and which we shall now proceed to consider.
Of these changes the most important and fundamental was the establishment of the trial by jury. The essential principle of the original Saxon mode of trial was the submission of the matter in dispute, in some form or other, to what was held to be the arbitration of Heaven. There was no interference of the human judgment, no attempt to arrive at the truth by weighing and comparing the adverse probabilities; the question was not held to be a question of probabilities at all; it was conceived to be capable of a solution as certain as any question in arithmetic.
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 upon 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 have 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 longer 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 took 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 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 its 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, an 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 on 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 own 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, however 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 demanded 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 of 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 answer. 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