The early English courts and their system of administering justice bare no real resemblance to our modern day equivalents, they are truly antiquities of legal history.
A 12th Century court would have been held in the open-air and upon the most significant hill in the area. A local man of power, such as the Sheriff, would have presided over the court but the largest local landowners were bound by custom to attend and be the ‘doomsmen’ (judgment-men) of the court.
The sheriff would take care of the procedures of the court and pronounce the overall sentence but the doomsmen were the ones to find the appropriate doom to fit the facts.
If the two litigants contradicted each other in fact then there was yet no capacity for the holding of cross-examinations and judging the worth of a witness statement. In these circumstances, recourse would be to the supernatural, to prove ‘by God’ that one or the other was correct. This took three forms; (1) oath and oath-helpers, (2) ordeal and, after 1066, (3) trial by battle.
(1) If a man was accused of some offence, he would be required to swear on his word, his oath, the truth (typically that he was innocent). Rarely was his single oath allowed to clear him of the offence. Usually, a number of oath-helpers were needed.
These were people that could give witness to the character of the accused and claim that his oath was ‘clean’. A great deal of early legal procedure focuses on complex mathematical calculations as to the number of oath-helpers needed and the quality of them.
It seems, at first glance, that you could just call a bunch of friends to acquit you but there were strict ceremonial rules and phrases that had to be followed for oath-helpers. One mispronunciation or stutter and the accused’s adversary would win.
(2) If the charge was criminal, the accused might not be able to use his oath and oath-helpers. The ordeal was more explicitly judgment by God and came in the forms of Water and Fire. A man was lowered into a pit of water that had been blessed to accept innocent people but reject the guilty. If you sunk in the water, you were fished out and innocent but if you floated, you were guilty.
For Fire a white hot iron rod was placed in a man’s hand and he was told to take three paces. His hand would then be bandaged and looked at three days later. If the wound was clean, he was innocent, if it had fouled, he was guilty.
(3) Again, if a criminal accusation was made, the accused and accuser might have to fight in a battle. As long as they were not maimed, too young or too old, they could fight.
If the claim was regarding land then the litigants could choose a champion each to fight in their names. This was meant to be one of their people but in reality the hiring of professional champions became commonplace. If not regarding land, then they must fight in person.
The accuser has an entire day to prove his claim; not by killing the accused but making him give in. If he cannot do so within the day then his claim is false and he has lied to the court.
These forms of trial and proof were slowly frowned upon and taken out of the administration of justice. The ordeals required participation by priests and the Church made the decision to stop ordeals in 1215.
This did not affect trial by battle but in a couple of decades, this had fallen out of favour as well. Interestingly, trial by battle was not officially abolished until 1818 when a litigant threw down a gauntlet in anger in front of the judges of the King’s bench.
The oath-helpers changed their name to become compurgators and were more readily local people. This is one of the foundations of the development of trial by jury, which will be looked at in detail in a later post.