Separation of Torts from Crimes
By Brian Madigan LL.B.
In the 12th century, torts and crimes were separated to some degree. While an accused could by charged with an offence by a jury of presentment, there was still another procedure available to the victim.
The victim could initiate legal proceedings themselves. This was like a private prosecution and was referred to as an "appeal of felony". The word felony simply meant "wrongdoing".
If there was a private prosecution then the public prosecution ceased. The trial was a trial by battle for a man and a trial by ordeal for a woman. You will appreciate that mutilation, serious injury and death were often the result of this type of trial.
But, compromise was the new solution. The payment of money by the accused to the victim frequently sufficed and the trial by either battle or ordeal was avoided.
Interestingly enough, the Catholic Church was opposed to these largely barbaric methods of trials and through its intervention the practice changed from ordeal to jury. The Church was concerned that God's reputation was being tarnished when clearly innocent people were found guilty through ordeal.
Trials were supervised by the King's court and upon conclusion the accused would often pay a fine to the King. On occasion, the King would share the fine with the victim. Certainly where there was substantial injury, this made a lot of sense.
To some degree, this was the beginning of the modern system of damages, since the victim would plead his case before the court as the amount and extent of his injuries to justify the receipt of a greater fine, or a greater portion of the fine to be paid to him.
It was recognized that in the interest of justice, rather than maiming the accused and having him non-functional, it would be better that he worked it off so that the victim might be compensated. This even made sense to the injured victim, since compensation would be better than short-lived outright revenge.
Brian Madigan LL.B., Broker is an author and commentator on real estate matters, if you are interested in residential or commercial properties in Mississauga, Toronto or the GTA, you may contact him through Royal LePage Innovators Realty, Brokerage 905-796-8888
www.OntarioRealEstateSource.com
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