C O M P A R AT I V E S T U D Y which the persons involved in the dispute belonged to. Therefore, the law which was applied to the former subjects of the Roman Empire was still the Roman law, whilst the barbaric population which had become dominant, used their own juridical system which was mostly customary law. Around the VI century, as the rule of the barbarians strengthened and the contacts between the winners and the defeated intensified, the barbaric law began to influence and to modify the Roman laws in Western Europe. The courts of the former Western Roman Empire slowly but surely started to adopt the structure of the barbaric court procedure which was completely different from the Roman procedure. The trials were reduced to evidentiary procedure which presented two types of evidence: the judgment of God and the purgatorial judgment or purgatio. The judgment of God, called ordal (ordeal), could include full submersion of the body in cold water, or the holding a red-hot iron for some time. In order to pass the test, not only did it suffice to endure the pain, but the wounds had to heal within an exact time. Evidently, such tests were an assumption of the invisible presence of God during the trial, which would never have let an innocent fail the test.15 The scorched hand was bandaged and examined after three days, and if the burn healed, it would be taken as a sign of innocence and the person would be acquitted. The ordeal with the cold water involved the accused being thrown into the water: those who would sink were acquitted, and those who would float were deemed guilty and were punished. These tortures required the participation of the clergy. A priest was present during the procedure and would pray to God to bless the water or iron and to deliver his judgment.16 Unlike this judgment, the purgatory was a system of giving oath about the veracity of the accusation and the good reputation of the accused. The oath was taken by the accused and by the members of his/her family and it had the value of evidence since it was assumed that God would punish the perjurer with death or severe illness. According to certain theological interpretations, however, such tortures, as well as the so called blood punishments, which included mutilation or execution of the accused, were treacherous for the judges as they could pollute their souls. Christian scriptures were irreconcilable with the application of blood punishments, starting with the Sixth Commandment, “Thou shalt not kill,”17 and the Gospel of Matthew, “[J]udge not, lest ye be judged.”18 Bissacco Cristina, Il canone In dubio pro reo: tra concezione classica e moderna della prova, Padova, 2008, p. 17. 16 J. H. Baker, An Introduction to English Legal History 73 (4th ed., Butterworths 2002) (hereinafter “Baker”), discussing the rise of the jury trial and describing the abolition of ordeals as the prominent event in criminal procedure, p. 5. For more on history of trial by ordeal, see Thomas P. Gallanis, Ordeal: English Common Law, in 4 Oxford Encyclopedia of Legal History (Stanley N. Katz ed., Oxford University Press 2009). 17 Num. 31:19. 18 Matthew 7:1. 15 19