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OF TRIAL AND CONVICTION.
methods of trial and conviction
THE several methods of trial and conviction of offenders The various established by the laws of England, were formerly more nu-are, merous than at present, through the superstition of our Saxon ancestors; who, like other northern nations, were extremely addicted to divination ; a character which Tacitus observes of the ancient Germans (a). They therefore invented a considerable number of methods of purgation or trial, to preserve innocence from the danger of false witnesses, and in consequence of a notion that God would always interpose miraculously, to vindicate the guiltless. I. The most ancient (6) species of trial was that by ordeal; most ancient
1. Ordeal, the which was peculiarly distinguished by the appellation of being of two judicium Dei; and sometimes vulgaris purgatio, to distinguish it from the canonical purgation, which was by the oath of the party. This was of two sorts (c), either fire-ordeal or water-ordeal; the former being confined to persons of higher rank, the latter to the common people (d). Both these might be *performed by deputy: but the principal was to [*343] answer for the success of the trial; the deputy only venturing some corporal pain, for hire, or perhaps for friendship (e). Fire-ordeal was performed either by taking up in fire-orderl, and the hand, unhurt, a piece of redhot iron, of one, two, or three pounds weight; or else by walking, barefoot and blindfold, over nine redhot ploughshares, laid lengthwise at unequal distances : and if the party escaped being hurt, he
(a) De mor Germ. 10.
(d) Teneteur se purgare is qui accusatur, per Dei judicium ; scilicet per calidum ferrum, vel per aquam, pro diversitate conditionis hominum : per ferrum calidum si fuerit homo liber; per aquam, si fuerit rusticus ; (Glanv. I. 14, c. 1.)“ The accused is bound to purge
himself by the judgment of God, viz.
(e) This is still expressed in that
water ordeal ;
was adjudged innocent; but if it happened otherwise, as without collusion it usually did, he was then condemned as guilty. However, by this latter method queen Emma, the mother of Edward the Confessor, is mentioned to have cleared her character, when suspected of familiarity with Alwyn bishop of Winchester (f).
Water-ordeal was performed, either by plunging the bare arm up to the elbow in boiling water, and escaping unhurt thereby; or by casting the person suspected into a river or pond of cold water; and, if he floated therein without any action of swimming, it was deemed an evidence of his guilt ; but, if he sunk, he was acquitted. It is easy to trace out the traditional relics of this water-ordeal, in the ignorant barbarity still practised in many countries to discover witches, by casting them into a pool of water, and drowning them to prove their innocence. And in the eastern empire the fire-ordeal was used to the same purpose by the emperor Theodore Lascaris; who, attributing his sickness to magic, caused all those whom he suspected to handle the hot iron : thus joining, as had been well remarked (9) to the most dubious crime in the world, the most dubious proof of inno
And indeed this purgation by ordeal seems to have been very ancient, and very universal, in the times of superstitious
barbarity. It was known to the ancient Greeks: for in the [*314] *Antigone of Sophocles (1), a person, suspected by Creon of
a misdemesnor, declares himself ready “to handle hot iron, and to walk over fire,” in order to manifest his innocence ; which the scholiast tells us, was a very usual purgation. And Grotius (i) gives us many instances of water-ordeal in Bithynia, Sardinia, and other places. There is also a very peculiar species of water-ordeal, said to prevail among the Indians on the coast of Malabar; where a person accused of any enormous crime is obliged to swim over a large river abounding with crocodiles, and, if he escapes unhurt, he is reputed innocent, As, in Siam, besides the usual methods of fire and water ordeal, both parties are sometimes exposed to the fury of a tiger let loose for that purpose : and, if the beast spares either, that person is accounted innocent; if neither, both are held to
(f) Tho. Rudborne Hist. Maj. Winton, I. 4, c. 1.
(g) Sp. L. b. 12, c. 5.
(h) V. 270.
be guilty; but if he spares both, the trial is incomplete, and they proceed to a more certain criterion (1).
One cannot but be astonished at the folly and impiety of pro- and which was nouncing a man guilty, unless he was cleared by a miracle ; and reign of H. III. of expecting that all the powers of nature should be suspended, by an immediate interposition of Providence to save the innocent, whenever it was presumptuously required. And yet in England, so late as king John's time, we find grants to the bishops and clergy to use the judicium ferri, aquæ, et ignis (1). And, both in England and Sweden, the clergy presided at this trial, and it was only performed in the churches or in other consecrated ground; for which Stiernhook (m) gives the reason ;
non defuit illis opera et laboris pretium ; semper enim ab ejusmodi judicio aliquid lucri sacerdotibus obveniebat (1).” But, to give it its due praise, we find the canon law very early declaring against trial by ordeal, or vulgaris purgatio, as being the fabric of the devil,"cum sit contra præceptum Domini, non tentabis Dominum Deum tuum (n) (2).” Upon this authority, though the canons *themselves [*345] were of no validity in England, it was thought proper, as had been done in Denmark above a century before (o), to disuse and abolish this trial entirely in our courts of justice, by an Act of Parliament in 3 Hen. III. according to Sir Edward Coke (p), or rather by an order of the king in council (9).
II. Another species of purgation, somewhat similar to the II. The corsned, former, but probably sprung from a presumptuous abuse of been long aborevelation in the ages of dark superstition, was the corsned or morsel of execration : being a piece of cheese or bread, of about an ounce in weight, which was consecrated with a form of exorcism ; desiring of the Almighty that it might cause convulsions and paleness, and find no passage, if the man was really guilty ; but might turn to health and nourishment,
(k) Mod. Univ. Hist. vii. 266.
(n) Decret. part. 2, caus. 2, qu. 5, dist. 7. Decretal, tib. 3, tit, 50, c. 9, and Gloss. ibid.
(o) Mod. Un. Hist. xxxii. 105.
(9) 1 Rym. Foed. 228; Spelm.
(1) They did not lose the reward of their care and labour, for in every ordeal of this kind, some profit accrued to the priest.
(2) Inasmuc as it is contrary to the commandment of the Lord, Thou shalt not tempt the Lord thy God,
if he was innocent (r): as the water of jealousy among the Jews (s) was, by God's special appointment, to cause the belly to swell, and the thigh to rot, if the woman was guilty of adultery. This corsned was then given to the suspected person, who at the same time also received the holy sacrament: if indeed the corsned was not, as some have suspected, the sacramental bread itself; till the subsequent invention of transubstantiation preserved it from profane uses with a more profound respect than formerly. Our historians assure us, that Godwin, Earl of Kent, in the reign of king Edward the Confessor, abjuring the death of the king's brother, at last appealed to his corsned, “per bucellam deglutiendam abjuravit (u)," which stuck in his throat and killed him. This custom has been long since gradually abolished, though the remembrance of it still subsists in certain phrases of abjuration retained among the common people (w).
* However, we cannot but remark, that though in European countries this custom most probably arose from an abuse of revealed religion, yet credulity and superstition will, in all ages and in all climates, produce the same or similar effects. And therefore we shall not be surprised to find, that in the kingdom of Pegu there still subsists a trial by the corsned, very similar to that of our ancestors, only substituting raw rice instead of bread (x). And, in the kingdom of Monomotapa, they have a method of deciding lawsuits equally whimsical and uncertain. The witness for the plaintiff chews the bark of a tree, endued with an emetic quality; which, being sufficiently masticated, is then infused in water, which is given the defendant to drink. If his stomach rejects it, he is condemned ; if it stays with him, he is absolved, unless the plaintiff will drink some of the same water; and, if it stays with him also, the suit is left undetermined (y).
These two antiquated methods of trial were principally in use among our Saxon ancestors. The next, which still remains in force, though very rarely in use, owes its introduction among us to the princes of the Norman line. And that is
III. The trial by battle, duel, or single combat ; which
(r) Spelm. Gl. 439.
upon it; may this morsel be my last ;"
(r) Mod. Univ. Hist. vii. 129.
was another species of presumptuous appeals to Providence, III. Trial by under an expectation that Heaven would unquestionably give the victory to the innocent or injured party. The nature of this trial in cases of civil injury, upon issue joined in a writ of right, was fully discussed in the preceding book (2): to which I have only to add, that the trial by battle may be demanded at the election of the appellee, in either an appeal or an approvement ; and that it is carried on with equal solemnity as that on a writ of right; but with this difference, that there each party might hire a champion, but here they must fight in their proper persons. And therefore if the *appel
the *appel- [*347] lant or approver be a woman, a priest, an infant, or of the age of sixty, or lame, or blind, he or she may counterplead and refuse the wager of battle; and compel the appellee to put himself upon the country. Also peers of the realm, bringing an appeal, shall not be challenged to wage battle, on account of the dignity of their persons; nor the citizens of London, by special charter, because fighting seems foreign to their education and employment. So likewise if the crime be notorious; as if the thief be taken with the mainour, or the murderer in the room with a bloody knife, the appellant may refuse the tender of battle from the appellee (a); for it is unreasonable that an innocent man should stake his life against one who is already half-convicted.
The form and manner of waging battle upon appeals are much the same as upon a writ of right; only the oaths of the two combatants are vastly more striking and solemn (6). The appellee, when appealed of felony, pleads not guilty, and throws down his glove, and declares he will defend the same by his body; the appellant takes up the glove, and replies that he is ready to make good the appeal, body for body. And thereupon the appellee, taking the book in his right hand, and in his left the right hand of his antagonist, swears to this effect; “ Hoc audi, homo, quem per manum teneo, &c. Hear this, O man, whom I hold by the hand, who callest thyself John by the name of baptism, that I, who call myself Thomas by the name of baptism, did not feloniously murder thy father, William by name, nor am anywise guilty of the said felony. So help me God, and the saints; and this I will defend against thee by my body, as this court shall (2) See vol. III. page 337.
(b) Flet. I. 1, c. 34; 2. Hawk, P. C. (a) 2 Hawk. P. C. 427.