Page:Harvard Law Review Volume 5.djvu/63

THE OLDER MODES OF TRIAL. 47 cases before they were tried. Since the trial was a matter of form, and the judgment was a determination what form it should take, the judgment naturally came before the trial. It determined, not only what the trial should be, but how it should be conducted and when, and what the consequence should be of this or that result. In these trials there are various conceptions: the notion of a magical test, like the effect of the angel's spear upon the toad in Milton's lines — " Him thus intent Ithuriel with his spear Touched lightly ; for no falsehood can endure Touch of celestial temper, but returns Of force to its own likeness; up he starts, Discovered and surprised ; " that of an appeal for the direct intervention of the divine justice (judicium Dei, Gottesurtheil) ; that of the application of a mere form, sometimes having a real and close relation to the probable truth of fact, and sometimes little or no relation to it, like a child's rigmarole in a game; that of regulating the natural appeal of mankind to a fight; that of simply abiding the appeal to chance. There was also, conspicuously and necessarily, the appeal to human testimony, given under an oath, and, perhaps, under the responsibility of fighting in support of it. But what we do not yet find, or find only in its faint germs, is any trial by a court which weighs this testimony or other evidence merely in the scale of reason, and decides a litigated question as it is decided now. That thing, so obvious and so necessary, as we are apt to think it, was only worked out after centuries. 1 The old forms of trial (omitting documents) were chiefly these: (i) By witnesses; (2) The party's oath, with or without fellow- swearers; (3) The ordeal; (4) Battle. Of these I will speak in turn ; they were companions at first of trial by jury when that mighty plant first struck its root into English soil, and some of them lived long beside it. As we shall see, while that grew and spread, all of them dwindled and died out. II. But first something must be said of that institution of the complaint-witnesses, called also (as some other things were called) the " Secta," which has been the source of much confusion. This had a function which was a natural and almost necessary 1 The reasons which still make it so difficult to refer international controversies to the rational mode of trial may help us to understand our older law.