神明审判

现代人(我)：迷信 ~ 以人能否熬过苦难→决定对错


P19

If a case could not be solved, it became a decision for the gods. The legal solution in Hammurabi’s code was a trial by ordeal, where the accused had to leap into the Euphrates River: “If he sink in the river his accuser shall take possession of his house. But if the river prove that the accused is not guilty, and he escape unhurt, then he who had brought the accusation shall be put to death.”

如果一个案件无法解决，它就成了诸神的决定。汉谟拉比法典中的法律解决方案是神明审判，即被告必须跳入幼发拉底河。"如果他在河中沉没，指控他的人将占有他的房子。但如果河水证明被告无罪，而他又能安然无恙地逃脱，那么提出指控的人将被处死"。


P52 苦难审判 6-12世纪

Judging legal cases by ordeal developed from the law codes of the Germanic peoples, which emerged in the 6th century ce after the fall of the Roman Empire. The practice arose where defendants and plaintiffs were not able to satisfy other modes of proof, such as providing a sufficient number of witnesses to swear to their version of the facts. Where a defendant was unable to provide witnesses or was considered to be untrustworthy, the chieftain or designated judges could resort to ordeal.

通过神明审判法律案件是从罗马帝国灭亡后于公元6世纪出现的日耳曼民族的法典中发展而来的。这种做法出现在被告和原告无法满足其他证明方式的情况下，例如提供足够数量的证人对他们的事实版本进行宣誓。当被告无法提供证人或被认为不值得信任时，酋长或指定的法官可以诉诸于神判。


Water and fire

Several forms of ordeal became common in England and mainland Europe. Ordeal by hot water was first mentioned in the Salic Laws of the Franks (c. 507–511). The accused had to retrieve a stone from boiling water by dipping his hand into it. (The depth of the water depended on the severity of the crime.) The hand was bound and unwrapped 3 days later; if it had healed, the accused was deemed innocent. Ordeal by iron involved walking on red-hot irons or coals and examining the wound to see if it had festered or healed. Under the ordeal of the cross, the defendant and plaintiff were made to stand with their arms outstretched; the first one to drop his arms lost the case.

在英格兰和欧洲大陆，有几种形式的折磨变得很普遍。在法兰克人的《萨利克法》（约507-511年）中首次提到了用热水进行赎罪。被告必须将手浸入沸水中，从水中捞出一块石头。(水的深度取决于罪行的严重程度。)手被绑住，3天后解开；如果痊愈了，被告被视为无罪。铁刑是指在烧红的铁块或煤炭上行走，检查伤口是否溃烂或愈合。在十字架的考验下，被告和原告被要求站立，伸出双臂；第一个放下双臂的人就会输掉官司。



Guilty parties often paid a fine or fled rather than face an ordeal. The innocent—believing they would suffer no injury—submitted. The clergy who administered the ordeals understood this and did not wish the innocent to suffer, so they often cheated; “boiling” water would be merely hot, for example.

有罪的一方往往支付罚款或逃跑，而不是面对磨难。无辜的人相信他们不会受到任何伤害，于是就屈服了。实施折磨的神职人员明白这一点，不希望无辜者受苦，所以他们经常作弊；例如，"沸腾 "的水只是热的。


Trial by combat

While trials by ordeal were usually administered to the lower classes, wealthy parties made more use of trial by combat—effectively, judicial duels—as a mode of proof. This was because in some systems they were permitted to hire champions to fight for them, and because, at least in English law, trial by combat was available in respect of rights to land, which only the wealthy would have. Common in western Europe from at least the 9th century, the practice was imported into England after the Norman Conquest in 1066.

虽然神明审判通常是针对下层阶级的，但富有的一方更多的是使用战斗审判，即有效的司法决斗，作为一种证明方式。这是因为在一些制度中，他们被允许雇用冠军为他们而战，而且至少在英国法律中，只有富人才会有土地权方面的战斗审判。至少从9世纪开始，这种做法在西欧很常见，1066年诺曼征服后传入英格兰。


The rules of engagement for trial by combat varied in different countries. In England, each side agreed to the rules under the supervision of the judge, who determined if the case could be decided this way, and gauntlets were exchanged to symbolize that a challenge had been accepted. The combat lasted until one participant was killed, mortally wounded, or cried out “craven” to halt the fight. If the defendant was the loser, he suffered the original penalty for his crime and perhaps additional loss of property. If the plaintiff lost, he had to cede the case and pay a fine.

在不同的国家，战斗审判的交战规则有所不同。在英国，每一方都在法官的监督下同意这些规则，由法官决定案件是否可以以这种方式裁决，并交换战甲以象征挑战被接受。战斗一直持续到一名参与者被杀、受重伤或喊出 "懦夫 "来停止战斗。如果被告是失败者，他将受到对其罪行的原始惩罚，并可能遭受额外的财产损失。如果原告败诉，他必须放弃案件并支付罚款。


Disuse and abolition 废弃

In 1215, Pope Innocent III banned the clergy from practicing trials by f ire and water. Four years later, King Henry III banned the general use of trial by ordeal in England. Trial by combat gradually fell into disuse, and concerns about the practice paved the way for jury trial. By 1819, when trial by combat was removed from the UK statute book, it had become an antiquarian legal curiosity.

1215年，教皇英诺森三世禁止神职人员实行火刑和水刑审判。四年后，国王亨利三世禁止在英国普遍使用神明审判。搏斗审判逐渐被废弃，对这种做法的担忧为陪审团审判铺平了道路。到1819年，当战斗审判从英国的法规书中删除时，它已经成为一种古老的法律奇观。

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P12

Punishments and rights Long after the Greek and Roman civilizations declined, barbaric forms of justice existed in medieval Europe. In the absence of evidence or credible witnesses, alleged offenders (usually the poor) could be tried by ordeal, their innocence gauged by how well they recovered f rom physical ordeals, such as scalding or burning.

惩罚和权利 在希腊和罗马文明衰落很久后，中世纪的欧洲还存在着野蛮的司法形式。在没有证据或可信证人的情况下，被指控的罪犯（通常是穷人）可以通过折磨来受审，根据他们在身体折磨（如烫伤或烧伤）后的恢复情况来衡量他们是否无辜。


Some disputes were settled by trial by combat: a physical fight. Trial by ordeal was banned by a 13th-century papal decree; trial by combat persisted much longer. Legal systems changed as people beyond a small ruling elite became richer and better educated. Apart from the poorest, ordinary citizens began to acquire greater rights and protections. Chapter 39 of Magna Carta, sealed in 1215, established the right to justice of every free man, a right later enshrined in the Habeas Corpus Act of 1679. In England and Wales, poverty, too, was addressed in the Poor Law Act of 1601, which provided a very basic safety net for those at the bottom of society.

有些纠纷是通过战斗审判解决的：肉搏战。13世纪的教皇法令禁止了神明审判；战斗审判则持续了很长时间。随着少数统治精英以外的人们变得更加富有和受过更好的教育，法律制度也发生了变化。除了最贫穷的人之外，普通公民开始获得更多的权利和保护。1215年签署的《大宪章》第39章规定，每个自由人都有获得正义的权利，这项权利后来被载入1679年的《人身保护法》中。在英格兰和威尔士，1601年的《济贫法》也解决了贫困问题，为社会底层的人提供了一个非常基本的安全网。


P65

A significant innovation in the 12th century in England was the introduction of assize courts. These were convened from time to time in towns and cities, presided over by traveling judges. Assizes wrested control of the law from the church and bolstered the idea of a common law. They also required local jurors to give evidence and, after trial by ordeal fell into disuse, to judge guilt in a precursor of the jury system.

12世纪英格兰的一项重大创新是引入了巡回法庭。这些法庭不时地在城镇召开，由巡回法官主持。巡回法庭从教会手中夺回了对法律的控制权，支持了普通法的理念。他们还要求当地的陪审员提供证据，并在神明审判不再使用后，在陪审团制度的前身中判断是否有罪。


The role of jurors In a jury of presentment, the jurors had to report, under oath, to the justices on local suspects for the most serious crimes—murder, rape, and theft. Jurors did not have to decide on a suspect’s guilt: if the person had been apprehended committing the crime, his or her guilt could be presumed.

陪审员的作用 在预设的陪审团中，陪审员们必须在宣誓后向法官报告 向大法官报告当地最严重的犯罪嫌疑人的情况 最严重的罪行--谋杀、强奸和盗窃。和偷窃。陪审员不需要 决定嫌疑人是否有罪：如果该人是在实行犯罪中被逮捕，那么他或她的 罪行可以被推定。


The Assize of Clarendon had also replaced the previous practice of compurgation, by which the accused could prove innocence by producing a sufficient number of witnesses to swear to it. Trial by cold water now became the prime legal process of proof in criminal trials; it had earlier been used only on lower classes. Those found guilty by the ordeal faced a fine, confiscation of property, and the amputation of a foot; even those found innocent could be exiled if they were of ill repute. Large numbers of accused simply f led rather than face the ordeal, but their property could still be seized.

克拉伦登的巡回审判也取代了以前的反诉做法，根据这种做法，被告可以通过提出足够数量的证人来宣誓来证明自己的清白。冷水审判现在成为刑事审判中的主要法律证明程序；早些时候，它只适用于下层社会。那些通过折磨被认定有罪的人将面临罚款、没收财产和截肢；即使是那些被认定无罪的人，如果他们声誉不佳，也可能被流放。大量的被告人宁可选择逃亡，也不愿意面对严刑拷打，但他们的财产仍会被扣押。


The Assize of Northampton in 1176 added arson and forgery to offenses to be dealt with by justices in eyre. Penalties became harsher, with the guilty suffering amputation of a hand as well as a foot.

1176年的北安普顿巡回审判将纵火和造假加入到由法官处理的罪行中。刑罚变得更加严厉，有罪的人将被砍掉一只手和一只脚。


Evolution of the jury

When the Fourth Lateran Council (a Roman Catholic synod in Rome) in 1215 forbade clerics from taking part in trials by ordeal, such trials were discounted as a practical method of determining guilt. Juries were now asked to judge whether defendants were innocent or guilty. This new role created a conflict of interest with the role of a jury of presentment, so in 1353, a statute of Edward III forbade a person f rom sitting on both forms of jury.

陪审团的演变

当1215年第四届拉特兰会议（罗马天主教会议）禁止神职人员参加神明审判时，这种审判作为一种确定罪行的实际方法被排除在外。现在，陪审团被要求判断被告是无罪还是有罪。这一新角色与预审陪审团的角色产生了利益冲突，因此在1353年，爱德华三世的一项法规禁止一个人同时参加两种形式的陪审团。


Trial by cold water, shown here in the 9th-century Codex Lambacensis, a manuscript of church rules, involved dropping the accused into a pond, lake, or river. If he sank, he was innocent.

在9世纪的《Lambacensis法典》（一份教会规则的手稿）中显示，冷水审判涉及将被告扔进池塘、湖泊或河流。如果他沉下去，他就是无辜的。


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