June 04, 2005


[N.B. As the editors of Orbiter Dicta, the Warwick Law School Magazine have given me no indication when, if ever my article on the above topic is going to be published, or indeed when the next issue of the magazine will come out I have taken the liberty to blog it. The next entry will be another unpublished article… (yes, I am a self-gloryfying, pretentious bastard). I apologise for the footnotes and references notable by their absence but I haven't the time to trundle through and format these just now. Will do so once my exams have finished.]

It is plain that the law cannot exist as a just and impartial system without rules that attribute culpability and wrongdoing or innocence and entitlement according to rational evidence and proof. What I hope to demonstate in my rapid flight through this immense theme is how the rules governing these instruments of legal verification have evolved from dark, Darwinist irrationality to enlightened rationality. In order to achieve this I have dealt consecutively with the principle historical institutions and mechanisms that provide sources of evidence and proof, loosely respecting the chronological order in which they appeared in English history. First of all, however, evidence and proof would do well to be distinguished. Evidence denotes information before a court which may prove an unknown or disputed fact before a law court whereas proof is anything that does determine legal truth. Historically this has often been convincing evidence in documentary form.


Presumptions are legal fictions, either rebuttable/ permissive or irrebuttable that weigh a case in favour of either the claimant or the defendant and determine the burden of proof, which normally, of course, lies with the plaintiff – the ancient and now universal principle of actori incombit probatio. Probably the most famous presumption is the presumption of innocence though, despite universal reverance for it, the maxim cannot be found in Magna Carta, the English Bill of Rights of 1689, in the works of the great English jurists, Bracton, Coke, or Blackstone or any English case law prior to c.1800 . Nevertheless, the origins of presumptions penetrate so deeply into ancient history that it would be absurd to try and fix a date at which they first began to be used in English law. The Anglo Saxon king of Wessex, Ine, (688–726) held that foreigners who sounded horns in a wood near a road should be presumed theives and killed, while according to the law of Cnut (1017–1035) if a wife hid her husband after he had reported an object stolen she would be presumed to be a thief and punished alongside him. Thus a presumption stipulates that if the commission of an act can be demonstrated then another may or must be inferred from it . When a presumption is irrebuttable – for example, that a minor under a certain age may be doli incapacita, i.e. unable to have committed certain crimes – no factual inquiry challenging the truth of the presumed fact may be entertained by the court. In 1584, for example a statute was passed stating that a sale immediately proceeded by a second sale is presumed irrefutably to be fraudulous. Conversely, when a presumption is rebuttable, some factual debate as to the truth of the assumed fact is allowed. If a mother hid the death of her newborn there would be a rebuttable presomption of infanticide. Similarly in the case of the presumption of legitimacy – that a child born during a marriage is the legal issue of both spouses – the the factual inquiry is limited to a few exceptions that are difficult to prove. The presumption can be rebutted only by proof of the husband's impotence, sterility, or non-access to the wife This example raises interesting questions. In the absence of scientific proof to the contrary, courts dating back to the Middle Ages have employed presumptions to limit or bar the introduction of evidence to ascribe paternity. Current developments in genetic testing, however, can prove or disprove paternity and, thereby, call into question the validity of such presumptions. At present is is possible to establish by genetic testing to a 99.85% certainty that a particular man is not the father of a particular child, or to a 99.99999% certainty that a particular man is the father of a particular child . Consequently, courts must decide whether to preserve presumptions of paternity and legitimacy that protect children from bastardy or to yield to scientific advances. How should the law respond when advances in scientific knowledge reveal what was presumed to be true as scientically false? A judge once remarked that presumptions are ‘common sense and shrewdness. . .brought to bear upon the facts elicited.’ Another noted that the ‘weight of evidence depends on rules of common sense.’ These are, both very pertinent and compelling statements but then again bastardy no longer carries the social stigma it took delivery of under Victorian society. The social benefits served by the presumption of legitimacy were once manifold. It ensured that children were eligible to the financial support, inheritance rights, and filial obligations of their parents, preventing them from becoming wards of the state so that neither king, nor church, or taxpayer was forced to provide for them. Such arguments no longer hold weight. S.1 of the Family Law Reform Act 1987 established the general principle that there should be legal equality for children, whether or not their parents have been married to each other. Nevertheless the argument that the presumption of legitimacy maintains the stability of the family may still remain valid. The question remains, independent of the issue of equal treatment: is fatherhood a biological question or a socio-legal construct? This is just one way in which the incongruity between law and science has questioned the validity of presomptions. Yet the two might continue to co-exist: writing in the 18th C., the Scottish philosopher and historian David Hume nonetheless submitted an idea that remains convincing today. ‘In vain,’ he cautions, ‘should we pretend to determine any single event, or infer any cause or effect, without the assistance of observation and experience.’


The ordeals were physical trials of resilience, undergone to prove the innocence or guilt of an accused, that originated as heathen customs prevailing in China, Japan, India and Egypt and among the barbaric races of Europe. They reversed the principle that a man is innocent until proven guilty, and throws the burden of proof upon the accused instead of the accuser. With the assistance of pious rulers the ordeals were exploited by the Church in mediaeval Christendom who staged them as the thaumaturgic intervention of providence divine to vindicate justice. Indeed the ordeal was a powerful means for the Church to enforce her authority over the ignorant masses she had to deal with . The customary ordeals in the middle ages were by either by fire, reserved for patricians or by water, meted out to plebians. In the cold water ordeal, or judicium aquae frigidae, often reserved for suspected witches, the accused was bound with cords and lowered with a rope into a reservoir or pond, with a prayer (The indication of guilt would be if the accused floated, while the innocent would, rather conveniently lest there be any doubt, sink and thus be accepted by the pure element. The judicium aquae ferventis obliged the accused, with his naked arm, to find a small stone or ring in a boiling caldron of water. The ordeal by fire (judicium ferri or ferri candentis) conversely was either administered either by means of a piece of red-hot iron, which he had to carry for a distance of nine feet or more, or in the form of six or twelve red-hot plough-shares (vomeres igniti), over which the person had to walk bare-footed while blind-folded. This last ordeal was undergone by Emma of Normandy, the wife of King Aethelred and mother of Edward the Confessor, after she had been accused by Robert, the Archbishop of Canterbury, of rather too close an intimacy with Ælfwine, the Bishop of Winchester. The choice of episcopal lover was short-sighted since the aforesaid Ælfwine had been dead three years at the time, but the brave-hearted Emma agreed to undergo the ordeal nonetheless (in lieu of compurgation – swearing innocence on oath). Miraculously Emma passed over the plough-shares unscathed, which was, needless to say everything to do with her having invoked the protection of St. Swithun the preceding night and nothing whatsoever to do with the scorching plough-shares being spaced at regular intervals or even with cold plough-shares having been painted red. The Church also invented and substituted new ordeals including the ‘ordeal’ of corsnæd which it reserved for its own bretheren and which involved undergoing the torture of eating consecrated barley bread and cheese after appropriate religious ceremonies. The profanity of the ordeal is ironic: those who regurgetated the holy sustenance would be deemed to be guilty, since God would send Archangel Gabriel to stop his throat. Miraculously not a single incident of this is recorded.

The genuine spirit of Christianity, however, urged towards an abolition rather than improvement of all these ordeals and more miraculous than the ordeal itself, perhaps, was the fact that certain of the clergy exposed the ordeals for what they were St. Agobard, archbishop of Lyons, (who died c.840) attacked the duel and the ordeal in two special treatises, which breathe an evangelical spirit of humanity, fraternity and peace. He says that the ordeals are falsely called judgments of God, ‘for God never prescribed them, never approved them, never willed them; but on the contrary, He commands us, in the law and the gospel, to love our neighbour as ourselves, and has appointed judges for the settlement of controversies among men.’ Several popes, and the fourth Lateran Council of Innocent III (1215) which outlawed the participation of the clergy in duels condemned more or less clearly the superstitious provocation of miracles . It was by the influence of these pontiffs, aided by secular legislation, that the God-tempting ordeals finally disappeared during the twelfth and thirteenth centuries, being abolished by an order of council of Henry III in 1220, but the underlying idea survived in the torture which for a long time took the place of the ordeal.

It would be expedient at this juncture to make reference to the judicial duel, a.k.a. the bilateral ordeal, which is, needless to say, the universal resort of all wild men and beasts to defend or gain possessions or to avenge insults. It prevailed among the ancient Danes, Irish, Burgundians, Franks, and Lombards, but was unknown among the Anglo-Saxons before William the Conqueror introduced it into England. The duel, considered by Ranulf de Glanvill in his De Legibus et Consuetudinibus Angliæ (1188) to be the chief mode of trial in treason, concealment of treasure trove, homicide, arson, robbery, rape and falsification accorded legal victory to the stronger party, or he who was better able to wield his weapon and was therefore well-suited to the interests of belligerent Mediaeval society. Cowardice was considered to be co-existent with treachery. In 1162, the Earl of Essex was accused by Robert de Monfort of having traitorously suffered the royal standard of England to fall in a skirmish with the Welsh, five years beforehand and challenged the Earl to a duel. Accepting the challenge, Essex was nonetheless unhorsed and severely wounded such that all present thought he was dead. Essex was, however, not dead but merely stunned and recovered under the care of the monks of the Abbey of Reading a few weeks later. Though his corporeal wounds had healed, he could not, however, return to the world having been vanquished by single combat so he took vows and passed the remainder of his days cloistered at the abbey. The Church, while not being able to exercise the power of deciding culpability as they were able to do, de facto, in the case of the ordeals, nonetheless expeditiously traced the judicial duel back to Cain and Abel and reminded the laity of the benevolent intercessions of the omniscient Lord. However, as Francis Bacon, an outspoken critic of the duel writes, ‘for the law of God, there is never to be found any difference made in homicide’ . The judicial battle was usually allowed only to freemen; often aged and sick persons, women, children, and ecclesiastics were permitted to furnish substitutes, though not always. The custom died out in the sixteenth century but it remained lawful in England until an Act of Parliament outlawing the practice was passed in 1819 and continued to be practiced privately ex justicio for many decades after. By the 19th C. the combatants were often sensitive and Romantic, yet foolish young gentlemen well versed in chivalry, whose honours could be easily aggrieved and who would rather die in honour than live in shame.


Unlike any biological organism the jury probably had three parents: the lay Anglo- Saxon judge, the Carolingian inquest and the witnesses of Romano-canonical procedure . At the dawn of English common law the form of jury most commonly in use was a committee known as a jury of presentment or grand jury, whose task it was to accuse someone who might be prima facie guilty of a crime, quite different to the petit or trial jury that we are familiar with in England today. Under the Doom Law of Anglo Saxon King Aethelred (980–1016), twelve landholders and one king's representative were appointed to serve as an accusatory body which would point out crimes which had come to their attention in their small jurisdictions of residence. The same practice continued under and after William the Conqueror and into the 12th C. In the reign of Henry II at the Assize of Clarendon (1166) it was restated that 12 lawful men of every hundred (shires were divided into hundreds, each roughly 1/100 of the area of the shire and four of every village, acting as a jury of presentment, were bound to collectively testify on oath whether any local man was a robber or murderer. They were a source of evidence but not of proof since it was only the king’s justiciar who could decide guilt or innocence .

There was then a sea change; starting with their occasional use in civil law to resolve land tenure disputes, the orientation of juries in England began to shift from accusatory to resolutive and functionally the institution’s object became to try questions of fact. In the feudal world, especially in times of turmoil, violent ejections and usurpations were common, with consequent violent vendettas arising and pleas brought to feudal courts could be delayed or altogether frustrated. As a remedy Henry II established the possessory writ, an order from the Exchequer , directing the sheriff to convene a sworn local jury at petty assize to establish de facto dispossession, whereupon the sheriff had to reinstate the defendant pending a subsequent trial at the grand assize to establish de jure his rights. This was the writ of Novel Disseisin (recent dispossession). A similar writ of Mort d'Ancestor decided whether the ancestor of a plaintiff had, in fact, possessed the estate, whereas that of Darrein Presentment (last presentation) decided who, in fact, had last presented a parson to a particular benefice. All these writs gave rapid and clear verdicts subject to later revision thereby facilitating the role of the judge, but more importantly revolutionising the jury by making it effectively a source of proof per se . Moreover, Henry's decrees ensured that the judge-and-jury combination would become normal and that the jury would gradually supplant the irrational verdicts of ordeal and battle, especially as the Assize of Clarendon, aforementioned, stipulated that even if the accused had survived the ordeal, if they were convicted by jury they would be exiled. It may be argued that juries were seen as a more humane substitute for the ordeals, this being an age where unwitnessed felonies or supernatural crimes such as witchcraft posed grave difficulties for the machinery of justice, forensic evidence being either rudimentary or non-existent.

Despite the fact that the power of the judiciary was enhanced considerably by the Tudors the jury maintained its independence. Among the trials of the period was that of Sir Nicholas Throckmorton (1554), a protestant courtier, parlementarian and member of the Warwickshire gentry during the reign of Catholic queen Mary accused of treason in the wake of a rebellion led by Thomas Wyatt the younger. Despite not being permitted counsel – such was the custom of the time – Throckmorton defended himself spiritedly and with quick-witted skill and was acquitted by the jury: an almost unheard of occurrence for Tudor times. However, not all was fine and dandy: according to Sir Thomas Smith by 1664 English juries routinely appeared before the Star Chamber and were fined for acquitting prima facie guilty defendants. Such was the case in the 1670 political trial of William Penn, who was charged with preaching Quakerism to an unlawful assembly. Four of the twelve jurors voted to acquit – and continued to acquit even after being imprisoned and starved for four days. This was common practice: the need for quick verdicts was so great that juries were habitually incarcerated in a room deprived of food, drink, fresh air and a fire. Under such duress, most jurors paid the fines. However, one juror, Edward Bushell, refused to pay and brought his case before the Court of Common Pleas. As a result, Vaughan CJ issued an historically important ruling: that save in cases of corruption jurors could not be punished for their verdicts even if they had been pronounced contro plenam et manifestam evidentium. Bushell's Case secured the verdict of the jury as an unimpeachable proof and was one of the most important developments in the common-law history of the jury. Perhaps unintentionally this ruling laid the foundations for popular lobbying: during the 18th C. juries would often acquit palpable criminals in the knowledge that if they were convicted they would face the death penalty.

Despite being multifariously protected by current laws, there is still, to this day no guarantee that a jury will put its civic responsibilities before its personal interests and issue a just verdict, though the common sense that a jury may, and often does convey to legal injustice is, with reason highly valued and indispensable. The age old dilemma is poetically captured by Alexander Pope:

_Meanwhile declining from the Noon of Day,_
_The Sun obliquely shoots his burning ray; 3:20,_
_The hungry Judges soon the Sentence sign,_
And wretches hang that Jury-men may dine

The Game of Ombre from Canto III of Rape of the Lock

- One comment Not publicly viewable

  1. Big Bear

    When a man seeks a paternity test in the state of Alaska and they look at you as if your crazy ,and ask you do you seek this? Do you
    not know that If by chance you do win your case you will still loose?

    The mother had given her child to the grandmother through Adoption
    and said she didn’t know the father. This was shorty after she caught
    the father complaining to the welfare dept. about her drinking.

    This was a adoption under the (ICWA) and so the mother side steped
    my complaint with the welfare dept. I was never told about the adoption.
    The grand mother now is collecting Child support for the older daughter and Adoption money on the child just born.

    One can see now why she never named the father (MONEY)!
    I wonder if a guy could file a law suit if federal court about a father’s
    rights being stolden by this act of kidnapping .and maybe put a end
    to the baby selling game here in Alaska.

    04 Aug 2006, 02:21

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