Читать книгу A Concise History of the Common Law - Theodore F. T. Plucknett - Страница 109

The opposition within the Church to trial by ordeal⁵ which dates from the days of Agobard, bishop of Lyons (d. 840), was particularly constant at Rome. Remoter provinces, however, were faced by a more primitive populace. Regino of Prüm (c. 906) admitted the ordeal into his work on canon law, and so did Burchard of Worms later still (1008-12), who was so dismayed at the prevalence of perjury, that the ordeal seemed to him preferable to the oath as a mode of trial.⁶ A century later still, in 1116, Ypres received a charter abolishing both ordeals and trial by battle.⁷ It was yet another century before reform reached England when Innocent III in the Fourth Lateran Council (1215) forbade clergy from performing any religious ceremonies in connection with ordeals. This, of course, robbed the ordeal of all religious sanction, and to all intents and purposes abolished it as a regular means of trial (although it seems that in some localities it still persisted with the connivance of disobedient clergy). Henry III’s government immediately recognised the decree, and appreciated the extremely difficult position which it created, for the only remaining method of trying suspected criminals had been forbidden by the Church. A writ to the Justices in Eyre was therefore issued in 1219 giving temporary instructions how to proceed until further order was taken. It reads as follows:

“The King to his beloved and faithful... Justices Itinerant... greeting: Because it was in doubt and not definitely settled before the beginning of your eyre, with what trial those are to be judged who are accused of robbery, murder, arson, and similar crimes, since the trial by fire and water (the ordeal) has been prohibited by the Roman Church, it has been provided by our Council that, at present, in this eyre of yours, it shall be done thus with those accused of excesses of this kind; to wit, that those who are accused of the aforesaid greater crimes, and of whom suspicion is held that they are guilty of that whereof they are accused, of whom also, in case they were permitted to abjure the realm, there would still be suspicion that afterwards they would do evil, they shall be kept in our prison and safeguarded, yet so that they do not incur danger of life or limb on our account. But those who are accused of medium crimes, and to whom would be assigned the ordeal by fire or water if it had not been prohibited, and of whom, if they should abjure the realm there would be no suspicion of their doing evil afterwards, they may abjure our realm. But those who are accused of lesser crimes, and of whom there would be no suspicion of evil, let them find safe and sure pledges of fidelity and of keeping our peace, and then they may be released in our land.... We have left to your discretion the observance of this aforesaid order... according to your own discretion and conscience.”¹

From this writ it will be seen that the justices were to be guided entirely by suspicion, and were to reach their conclusions as to the reasonableness of that suspicion solely from their own discretion. A rough scale was recommended whereby those suspected of greater crimes were to be imprisoned instead of suffering judgment of life or limb (as would have been the case if they could have been regularly convicted); those suspected of medium crimes were to be banished; lesser crimes were leniently treated, the suspect being simply bound over. This was only meant to be temporary, and obviously could be nothing more, for the whole compromise was based upon the fallacy that a half-proof of guilt was equivalent to a proof of half-guilt. The Crown, however, seems never to have given any further guidance to its justices, at least as far as the available sources show. The Church had abolished the one lawful means of trial, and the only suggestion which the Crown had made was a false and unworkable compromise.

The problem was therefore left to be solved in a way typical of English law—the justices were to make such experiments as they saw fit and gradually feel their way towards a solution.