Studies in Civics | Page 7

fact is characteristic of society in its primitive
state. Modes of establishing justice similar in principle to these boy
practices prevail to this day among superstitious peoples. They have
prevailed even in Europe, not only among people of low mental power,
but also among the cultured Greeks. Among our own Saxon ancestors
the following modes of trial are known to have been used: A person
accused of crime was required to walk blindfolded and barefoot over a
piece of ground on which hot ploughshares lay at unequal distances, or
to plunge his arm into hot water. If in either case he escaped unhurt he
was declared innocent. This was called Trial by Ordeal. The theory was
that Providence would protect the innocent.
Trial by Battle.--Sometimes boys settle their disputes by fighting. This,
too, was one of the modes of adjudication prevalent in early times
among men. Trial by Battle was introduced into England by the
Normans. "It was the last and most solemn resort to try titles to real
estate." [Footnote: Dole's Talks about Law, p. 53.] The duel remained

until recently, and indeed yet remains in some countries, as a reminder
of that time. And disputes between countries are even now, almost
without exception, settled by an appeal to arms. Perhaps the thought is
that "he is thrice armed that hath his quarrel just." Sometimes when one
of the boys is too small to fight for his rights, another boy will take his
part and fight in his stead. Similarly, in the Trial by Battle, the parties
could fight personally or by "champion." Interesting accounts of this
mode of trial are given by Green and Blackstone, and in Scott's
"Talisman."
Arbitration.--Two boys who have a difference may "leave it to" some
other boy in whom they both have confidence. And men did and do
settle disputes in a similar way. They call it settlement by Arbitration.
A boy would hardly refer a matter for decision to his little brother.
Why?
Folk-Moot.--Still another common way for two boys to decide a
question about which they differ is to "leave it to the boys," some of
whom are knowing to the facts and others not. Each of the disputants
tells his story, subject to more or less interruption, and calls upon other
boys to corroborate his statements. The assembled company then
decides the matter, "renders its verdict," and if necessary carries it into
execution. In this procedure the boys are re-enacting the scenes of the
_Folk-moot_ or town meeting of our Saxon ancestors.
Boy-Courts.--Let us look at this boy-court again to discover its
principal elements.
In the first place, we see that every boy in the crowd feels that he has a
right to assist in arriving at the decision, that "the boys" collectively are
to settle the matter. In other words, that _the establishment of justice is
a public trust._ So our Saxon forefathers used to come together in the
Folk-moot and as a body decide differences between man and man. The
boys have no special persons to perform special duties; that is, no court
officers. Neither, at first, did those old Saxons.
Secondly, in the boy-court the facts in the case are brought out by
means of witnesses. So it was in the Folk-moot, and so it is in most
civilized countries today. Among those old Saxons the custom grew up
of allowing the facts in the case to be determined by twelve men of the
neighborhood, who were most intimately acquainted with those facts.
When they came over to England these Saxons brought this custom

with them, and from it has been developed the Trial by Jury. The
colonists of this country, most of whom came from England, brought
with them this important element in the establishment of justice, and it
is found today in nearly all the states.
Again, when in the boy-court the facts of the case have been
established and it becomes necessary to apply the rules of the game to
the particular case, the boys frequently, invariably in difficult cases,
turn to some boy or boys known to be well versed in the principles of
the game, and defer to his or their opinion. And, similarly, in the
Folk-moot, much deference was paid in rendering judgment to the old
men who for many years had helped to render justice, and who, in
consequence, had much knowledge of the customs, unwritten laws, in
accordance with which decisions were rendered. In this deference to
one or more persons who are recognized as understanding the
principles involved in the case, we see the germ of judgeship in our
present courts.
And finally, a boy naturally reserves the right, mentally or avowedly, of
appealing from the decision of the boys to the teacher or his father, in
case he feels