Report and Recommendations - Scottish Government

canonical rule on the need for proof by two or more sworn witnesses 20 . Proofby such methods continued in relation to what might now be categorised ascivil cases. In serious criminal cases, which were dealt with by the secularauthorities, although such proof appears to have been required at one time,there seems to have been a growth, during the 10th to 12th centuries, in trialby ordeal, that is, for example, by hot iron or water. This became a prevalentmethod of proof of guilt itself, rather than purely a method of establishinginnocence in the face of such proof 21 . This may have been an Anglo-Normaninfluence 22 . At all events, the results of an ordeal were regarded as adetermination by God and proof by this method was thought, at least by many,to be stronger than by testimony given under oath. However, it came to berealised that an ordeal was not the most reliable method by which to securesound convictions 23 .7.1.9 In 1215 the Fourth Lateran Council effectively abolished trial by the twoordeals of iron and water 24 by prohibiting the necessary involvement of priestsin the relative rituals 25 . This was followed in Scotland by a statute ofAlexander II in 1230 26 . In future, at least in most systems influenced by theius commune 27 , proof of guilt would revert to the determination of a humanjudge. It was important for any proof to be the equivalent of the judgment ofGod. Certainty, or something very akin to it, was required in order to20 see generally Brundage: Medieval Canon Law p 13221 see generally Bartlett: Trial by Fire and Water p 6922 ibid p 48-4923 see Walker: “Evidence” in Stair Society Vol 20, p 30224 see Bartlett pp 100 et seq for an analysis of the reasons25 trial by battle appears to have survived for some time26 c 6, APS: 400 “of challenge of thyft or of reyflake” abolishing, at least for theft or robbery, theordeals of “dykpot na yrn”27 the general Romano-canonical law applicable, subject to municipal variations, in most ofChristendom245