Trial by Ordeal, New Style, 50 Yale Law Journal 778 (1941)
THE good old custom of trial by ordeal still endures. But as judges, who have always been learned, have become literate, it has changed its form. Fire, water, hot irons have receded; the syllogism, the reference of instance to category, the staccato of an unruly dialectic have come into their places. In so verbal a ceremonial where a parade of sequiturs separates premises from conclusion, there is many a chance for a "therefore" to go astray; and the arbiter who would keep a combat at law the instrument of justice must be wise in the vagrant ways of the mind. Great jurists- Stone, Cardozo, Black for example- admit the difficulty of their task and confess their human frailty. They practice an elusive art, keenly aware of the pitfalls into which the would-be omniscient judge may fall: assumption of the thing to be proved, the trespass of the abstract rule on the facts, the mask of logic worn by the undistributed middle, the use of colorful words to prod a balking reason, the putting of the question in a way that will induce the right answer. For one who cries to the courts there is no escape from a judgment which emerges from an exercise with fictions. But due process would seem to demand that he who resorts to the law has the right to a proper ceremonial performed by a priest well versed in its mysteries.
Date of Authorship for this Version
Hamilton, Walton H., "Trial by Ordeal, New Style" (1941). Faculty Scholarship Series. Paper 4679.