Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/107

 S. POLLOCK: ANGLO-SAXON LAW 93 nearer to him who has the thing than to him who claims." * Our modern phrase " burden of proof " is quite inappHcable to the course of justice in Anglo-Saxon courts: the benefit or " prerogative " of proof, as it is called even in modern Scottish books, was eagerly contended for. The swearer and his oath-helpers might perjure themselves, but if they did there was no remedy for the loser in this world, unless he was prepared to charge the court itself with giving false judg- ment. Obviously there was no room in such a scheme for what we now call rules of evidence. Rules there were, but they declared what number of oath-helpers was required, or how many common men's oaths would balance a thegn's. In the absence of manifest facts, such as a fresh wound, which could be shown to the court, an oath called the " fore-oath " was required of the complainant in the first instance as a security against frivolous suits. This was quite different from the final oath of proof. Oath being the normal mode of proof in disputes about property, we find it supplemented by ordeal in criminal accusations. A man of good repute could usually clear himself by oath; but circumstances of grave suspicion in the particular case, or previous bad character, would drive the defendant to stand his trial by ordeal. In the usual forms of which we read in England the tests were sinking or float- ing in cold water,^ and recovery within a limited time from the effects of plunging the arm into boiling water or handling red-hot iron. The hot-water ordeal at any rate was in use from an early time, though the extant forms of ritual, after the Church had assumed the direction of the proceedings, are comparatively late. Originally, no doubt, the appeal was to the god of water or fire, as the case might be. The Church objected, temporized, hallowed the obstinate heathen customs by the addition of Christian ceremonies, and finally, but not until the thirteenth century, was strong enough to banish them. As a man was not put to the ordeal unless he was k » ^thelr. ii. 9. tn. • There is a curious French variant of the cold-water ordeal in which not the accused person, but some bystander taken at random, is im- J mersed : I do not know of any English example. J