None of the primitive methods of "trial", if such it could be called, which predated trial by jury made any attempt to ascertain to any standard of probability whether the facts of the case proved the innocence or guilt of the accused or not. As trial by jury developed, it made more attractive trial in the King's courts.
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| | | Medieval Laws When Joan of Arc was captured by the English and tried for aiding the Dauphin of France against them, the only charge which she could be convicted of by her judges was that of wearing men's clothes - an offence for a woman of the time.
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In trial by compurgation, the accused person swore a solemn oath on some holy relics that he was innocent of the crime of which he had been charged. The accused then had to produce twelve compurgators, "oath-helpers", who swore by the Lord that "the oath is clean and unperjured which the man hath sworn". If the accused could produce twelve such compurgators, he was automatically freed. As
The compurgators were in no sense acting as witnesses to the fact; they were required to know nothing of the facts of the alleged crime and were mereley witness to the character of the accused who alleged their belief in his innocence.
This system would offer little hope to a prisoner who was unpopular, of a bad character or a stranger to the district where he was accused.
If the required number of compurgators could not be mustered by the prisoner, his oath was said to be "burst" and he had to endeavour to establish his innocence by an appeal to the Almighty who was considered to prove the guilt or innocence of the accused in both the trial by ordeal and trial by wager of battle.
Trial by ordeal is an ancient idea which predates Christianity; it is mentioned in the Old Testament and was practised among the Ancient Greeks. The underlying principle behind trial by ordeal was that the Almighty (or, before the Christian era, some other superior supernatural force) would prove the guilt or innocence of the accused.
In England, trial by ordeal took various forms and the accused was obliged to endeavour to prove his innocence by it if he could not acquit himself in a trial by compurgation.
ORDEAL BY COLD WATER In trial by cold water, the water was first enjoined to cast out the accused if he was guilty or allow him to sink if he were innocent; the prisoner was then bound and thrown into a pool or river - the death of the prisoner might be imagined to have been provided for in either case.
This belief in the efficacy of water in determining guilt or innocence survived until a very late date in the practice of testing witches by throwing them into a pool or river.
ORDEAL BY HOT WATER In trial by hot water, the accused was obliged to recover a stone from the bottom of a pot of boiling water with his bare hand. The hand was then immediately bound up and the bandages removed after three days. If the wounds had healed, the accused would be considered innocent, if not, his guilt was believed to have been established. This was similar to ordeal by hot metal.
ORDEAL BY HOT METAL Ordeal by hot metal was similar to ordeal by hot water; in this case, the accused had to carry a red-hot bar of metal in his bare hand for a distance of nine feet.
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| | | The Involvement of the Church It should be remembered that all cases of trial by ordeal were administered by the Church and it might be supposed that if the ecclesiaticalestablishment were inclined to favour the accused, the water might not be quite boiling or the iron bar not quite as hot and, in such cases, the ordeal might not be as severe as it might appear to the spectators.
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In wager of battle the accused was challenged by his accuser to single combat both in civil and criminal cases and Divine intervention was believed to decide the outcome. If either party could afford to do so, he could elect to have his place in the combat taken by a champion.
In civil cases, the loser had to pay a fine, in criminal cases the combattant who did not resist until the end of the day was promptly hanged if not killed in the combat.
Trial by Wager of Battle was always unpopular and rapidly fell out of use although it was strangely revived as late as 1817; the brother of a girl who had been murdered charged the alleged murderer who pleaded not guilty to the charge and declared himself ready to defend the plea by Wager of Battle. The accused's challenge was not accepted by his accuser and Wager of Battle was finally abolished in 1819.
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History of English Law by Pollock and Maitland, 1895
Constitutional History vol. 1 by W Stubbs, 1897
The English and the Norman Conquest by Ann Williams, publisher The Boydell Press, 1997
Unification and Conquest: A Political and Social History of England in the Tenth and Eleventh Centuries by Pauline Stafford, publisher Arnold, 1989
Law and Government in Medieval England and Normandy by George Garnett and John Hudson, publisher Cambridge University Press, 1994
England Under the Norman and Angevin Kings, 1075-1225 by Robert Bartlett, publisher Oxford University Press, 2000
The Feudal Kingdom of England, 1042-1216 by Frank Barlow, publisher Longman, 1999
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