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3 - Trial at common law

Published online by Cambridge University Press:  10 January 2011

J. R. Spencer
Affiliation:
University of Cambridge
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Summary

It is generally accepted that there have been two main systems of trial in civilised law, the accusatorial and the inquisitorial. At the time of the foundation of our legal system in the twelfth and thirteenth centuries, common law procedure was accusatorial; the parties came before the court upon an equal footing and the court gave no help to either of them. It was the duty of one party to formulate his grievance and the duty of the other party to deny it. The mode of trial was some type of ordeal, which was judicium dei: the judgment was that of God, not that of the president of the court. A dislike of such proceedings was manifested by the Church. When, for instance, it was alleged that a priest was not conducting himself properly the ecclesiastical superiors showed little enthusiasm for a trial by judicium dei; the twelfth-century technique was to send a trusted person along to inquire into the allegations. This founded the inquisitorial concept of a trial, whereby the judge was expected to find out for himself what had happened, and he was to do this by examining all persons, including the accused or suspected person, who might have been able to enlighten him. In the thirteenth century the inquisitorial system represented the cause of progress and eventually became the accepted theory on the Continent.

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Publisher: Cambridge University Press
Print publication year: 1989

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  • Trial at common law
  • J. R. Spencer, University of Cambridge
  • Book: Jackson's Machinery of Justice
  • Online publication: 10 January 2011
  • Chapter DOI: https://doi.org/10.1017/CBO9780511560071.005
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  • Trial at common law
  • J. R. Spencer, University of Cambridge
  • Book: Jackson's Machinery of Justice
  • Online publication: 10 January 2011
  • Chapter DOI: https://doi.org/10.1017/CBO9780511560071.005
Available formats
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To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Trial at common law
  • J. R. Spencer, University of Cambridge
  • Book: Jackson's Machinery of Justice
  • Online publication: 10 January 2011
  • Chapter DOI: https://doi.org/10.1017/CBO9780511560071.005
Available formats
×