Living with others requires that there be a method whereby a determination might be made of a person's guilt or innocence, or the righteousness of his cause. The action of testing or putting to the proof the fitness, truth, strength of one's cause -- is, called a trial. A trial is where two or more people who have adverse interests come together to sort out their contentions with the expectation that out of the contest will arise a winner who will have an effective remedy. The typical trial will cause, for all the parties involved: trouble, toil, pain, distress and strife; and, most certainly, an expenditure of their health and wealth. This is so whether the trial be of the modern type or of an ancient type. The truth is suppose to emerge from a trial; more often than not, however, the winner is not the person on the side of truth, but rather the one who prevails is the one who did not drop first.
Our existing system by which a determination might be made of a person's guilt or innocence, or the righteousness of his cause evolved from earlier systems that had little to do with an inquiry into truth. In mediŠval times disputed matters were sorted out on a field of battle. There was a "trial by battle" or by combat, "single combat." Trial by combat is still used by nations; organized armed forces are send in by the competing sides with the winner taking all. Thus, war is often spoken of as a "trial by battle with God for judge." As between individuals or families: each would hire a single champion -- a fighting man, a stout fighter, a man of valour -- who was charged by one of the disputants to go into combat with the other's champion. A wager would be set: an apology to be made; property surrendered; or, possibly, a bride to be given. It is to be noted that a trial by battle was, in criminal matters, with sharp weapons; but in titulary matters with blunt weapons. These trials were ones of skill, an agonism.
Then, there was the trial by ordeal: this was an ancient mode of trial among the Teutonic peoples, a mode which came over to England with the Normans. The accused person was subjected to some "physical test fraught with danger, such as the plunging of the hand in boiling water, the carrying of hot iron, walking barefoot and blindfold between red-hot ploughshares, etc., the result being regarded as the immediate judgement of the Deity. Hence applied to analogous modes of determining innocence or guilt, still practised in various parts of the East, and in traditional societies generally."1 These methods, trial by battle and trial by ordeal, were, of course, abolished long ago. The last trial by battle was waged in the court of common pleas at Westminster in 1571.
"The legal development," as Will Durant observed, "was from supernatural to secular sanctions, from severity to lenience, and from physical to financial penalties."2 But, what we have these days, it will certainly strike those involved, is, but yet a test of endurance -- it is of little wonder, given the roots of the current day trial process. And, while trials by battle or ordeal, at least in English law jurisdictions, have not been seen for five hundred years; what we have these days, trial by jury and judge, or judge alone, hasn't changed, at least in any substantial way, in the past few hundred years; and, it is indeed a contest whereby the fittest survive.
2 Our Oriental Heritage, Vol.1, Bk.1, Ch. 9.
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December, 2000 (2011)