Common law. The Giants and the Gods

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Common law . The Giants and the Gods

See Common law. The Giants and the Gods 2

From Sir Frederick Pollock, The Genius of the Common Law [1912]

At this day there is no need to explain that formality is an essential feature of archaic law. It has long ceased to be plausible, if it ever was, to regard strict insistence on form as a degeneration from some better pattern of justice which our remote ancestors were supposed to have followed in a simpler golden age. Persons who talk of primitive simplicity, if any still do, confound rudeness of instruments and poverty in execution with simplicity of ideas. Prehistoric language, customs and superstitions are exceedingly complex. If there was ever an earlier stage in which they were otherwise, we know nothing of it. The history of modern culture is, in essentials, a history of simplification.

Now formalism in law and procedure seems to have two roots, one rational and the other irrational. The rational ground is the need of a hard and fast rule to make it clear that the law is the same for all men. Suitors in the early age of regular justice are highly suspicious of personal favour and caprice, and will not hear of giving any room for discretion. As they apprehend it, a Court once allowed to relax the customary forms could make of the law itself whatever its members and managers for the time being pleased. The irrational ground goes back to the oldest form of superstition, older than both statecraft and priestcraft, the prehistoric belief in symbolic magic. It is assumed that words have in themselves an operative virtue which is lost if any one word is substituted for any other. He who does not follow the exact words prescribed by the legal ritual does not bring himself within the law. If the Twelve Tables gave an action for damage to ‘trees’ it would not do to say ‘vines’; any such variation was to early Roman ears not only futile but almost blasphemous. A medieval English lawyer might have compromised on a videlicet and allowed ‘certain trees of the plaintiff, to wit vines’ to be well enough. These two motives, jealousy of personal authority and superstitious worship of the letter, are as different as possible in origin and nature, but they are by no means inconsistent. Rather they have been a pair of hands to tie the magistrate fast in bonds woven with the double strand of magic and policy. Between them they have fostered, all the world over, official and professional attachment to form for form’s sake, a passion with which we have all made acquaintance at some time, to our greater or less vexation. Its operation is not at all confined to legal proceedings. Neither of the motives now mentioned will go very far towards accounting for the actual origin of ceremonies and formulas. For that purpose other causes would have to be discussed, and in particular the taste or instinct which leads men to clothe their collective action in dramatic and rhythmical shapes; an instinct not without a practical side, as the symbols it creates are both impressive at the time and easily remembered. Ritual of one sort and another answers to a desire that lies pretty deep in human nature. But the further analysis of this, whether simple or complex, would help us very little just now. Certainly it would not explain why legal forms, or any form, should be treated as invariable, for that is by no means a universal attribute of ceremonies. It is quite possible to have a type of ritual, even elaborate ritual, with considerable room for variations; longer and shorter alternative recensions, and so forth. It is no less possible to be strict in matters of detail without holding that a slip is fatal. Opinions differ as to the value of smartness in drill and equipment beyond what is positively needful, and some officers have been martinets. But surely no commander ever went so far as to tell his subalterns on the eve of going into action, that the battle would infallibly be lost, if a single button was awry. Therefore it seems to me that we must not be tempted to dally with the aesthetic history of ritual at large. It is too remotely connected with our specific subject of legal formation, and we may leave anthropologists to settle its proper place and importance in their own Learning .

There is an important distinction to be noted in the ways of early Germanic and probably of other procedure. It is not correct to say that everything was formal, but rather that, whenever form was required, no relaxation or amendment was admissible. When the members of the Court (originally the whole of the assembled free men) had the means of acting on their own immediate knowledge, they could act without any form at all. Thus, in criminal justice, the manslayer who was pursued and caught red-handed was put to death without ceremony: this was so in England down to the thirteenth century. Thus, in civil matters, it seems the county court could itself bear witness to a disposition made by a landholder whose right to make it was admitted, and then give judgment accordingly.1 Let the fact be disputed, however, and our ancestors’ minds were at once filled with deep distrust of human testimony and entire disbelief in the power of human judgment to discover the truth, perhaps also in the existence of any impartial will to discover it. An external standard was demanded, but not in the rational sense in which my friend Justice Holmes has taught us to use the term. In this manner we find that formalism is at its strongest in archaic methods of proof, while executive acts, partly but not altogether by the necessary reason of their nature, are to a great extent exempt from it.

Now as to proof, the archaic view of it is quite simple. I do not say evidence, because there are no archaic rules of evidence; the conception is unknown. Evidence is offered with a view to leading a judge or a jury to some inference of fact which may determine or help to determine the decision of the case as a whole. But the archaic proof comes after judgment, not before. It is adjudged that John or Peter is to make his proof. Not that he is bound to make it, as a modern student is tempted to think, but that he is entitled to make it, that he has the prerogative of proving as they said in comparatively modern Scottish practice. Formal affirmation by the plaintiff generally reinforced by a ‘suit’ of fellow-swearers, has been the first step. It has been met by denial, a formal denial which, on pain of failure, had to traverse every point of the plaintiff’s assertion word for word. The Court awards proof to one or the other party, and then he is in possession of the cause. Let us suppose that the proof is by oath, which is the most regular and instructive case. There is a process by which the adversary can stop the oath if he will, at his peril, challenge the swearer and his helpers as incredible. He may seize the hand before it is uplifted to swear, or before it touches the relics on which the oath is to be made; he may bar the way into the church by stretching his arm or his sword across the door. Herein, as in all steps of archaic procedure, he acts, at best, at his own risk. But he must act at exactly the right moment. The oath, once begun, may not be interrupted. Every one who has seen the ‘Gotterdammerung’ will remember Brünnhilde’s attempt to ‘levy’ Siegfried from his oath, not before he swears but after he has sworn. Wagner took no more license than many other dramatists have taken, surely none so great as the wholesale violation of natural as well as legal justice which is accepted without demur – such is Shakespeare’s art, in the suit of Shylock against Antonio. No one is troubled there by a civil action being turned without notice into an official prosecution of the plaintiff for an offence of which no one has accused him; and in the ‘Gotterdammerung’ nobody minds Brunnhilde’s interruption being out of time. But I fear the only possible judgment of Gunther’s court, off the stage, would have been that the proceeding was altogether irregular. Siegfried’s ‘prerogative of proving’ should have been challenged before he could speak a word.

On the other hand, the oath-taker and his helpers, when they have begun, must perform their parts exactly, not only in word, but in gesture. A hand held up must not be lowered, a hand laid on relics, or on a sword, or on the oath helpers’ hands, must not be moved until the oath is fully spoken.1 If nothing goes wrong in the solemnity, if all the right words are said in the right order, if all hands and fingers keep their right station, and if, all being duly done, the customary pause has elapsed without any one being visibly smitten by the divine wrath for perjury, then the proof is not only complete but conclusive.

What has been said about proof not being a burden but an advantage does not apply to trial by battle, nor to the other kinds of ‘judgment of God,’ namely ordeal by fire or water. In the case of battle, the parties have an equal chance. As for the man sent to the ordeal, he is already half condemned; if he were of good repute he would have claimed, and would have been allowed, to clear himself by oath. What he gets is a last chance of escape, and a better one, apparently, than most moderns would guess. Offers to prove claims by any form of ordeal, ‘omnibus modis’ or ‘omnibus legibus,’ may be found, no doubt, from Domesday Book onwards. I have never met with any case of such an offer ripening into performance, and I strongly suspect that they were not seriously meant or taken.

Neither ordeal nor trial by battle could be reduced to strictly ceremonial proceedings. And yet it is abundantly clear that trial by battle in civil cases did from an early time tend to become little more than a picturesque setting for an ultimate compromise. The parties agree at the last moment; the judges call on the champions to strike a blow or two, ‘the King’s strokes,’ for sport; the ‘horned staves’ – representing, it seems, the Frankish double ax – resound on the targets; the shaven and leather-coated professionals depart lovingly, we may presume, to drink up a competent portion of their fees; and the public, we hope, think the show was good enough without any slaying or hanging. Also we read of much incidental and preliminary ceremony: the champion’s gloves are offered to the Court with a silver penny in every finger, and, contrary to the intention of preventing perjury, which was originally given as the reason for the judicial duel, there is elaborate swearing. But it does not appear that every detail was essential, or that the whole thing would have come to naught if, for example, only four pennies had been found in one of the gloves. In fact, the medieval writings in which the ritual of the judicial combat has been described at various times are pretty strong to show that at none of those times was the proceeding common enough to be fresh in any one’s memory. Perhaps even in the fourteenth century, certainly in the sixteenth, it was an antiquarian pageant in which little mistakes were very possible. On the last occasion when battle was waged, in the early ninteenth century,1 a fearfully and wonderfully adorned glove, supposed to be of medieval pattern, was thrown down in Court. It was remarkable for having no fingers at all,2 which would have been incorrect in a writ of right, but some one may have thought it was the proper practice in an appeal of felony. Long before this, however, the picturesque aspect of the ceremony had prevailed over the real archaic faith which takes adherence to every point of form in dead earnest. There is already something consciously romantic about the latter generations of the Middle Ages. Perhaps this was not the least fatal symptom of decay.


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Common law, Common law. The Giants and the Gods 2, Learning, The Genius of the Common Law.

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