CHAPTER THE TWENTY-SEVENTH. OF TRIAL AND CONVICTION. HE feveral methods of trial and conviction of offend TH ers established by the laws of England, were formerly more numerous than at present, through the superstition of our Saxon ancestors: who, like other northern nations, were extremely addicted to divination: a character, which Tacitus obfèrves of the antient Germans a. They therefore invented a confiderable number of methods of purgation or trial, to preserve innocence from the danger of falfe witneffes, and in confequence of a notion that God would always interpofe miraculously, to vindicate the guiltless. I. THE most antient fpecies of trial was that by ordeal; which was peculiarly distinguished by the appellation of judicium Dei; and fometimes vulgaris purgatio, to distinguish it from the canonical purgation, which was by the oath of the party. This was of two forts, either fire-ordeal, or waterordeal; the former being confined to perfons of higher rank, the latter to the common people". Both thefe might be per[343 ] formed by deputy: but the principal was to answer for the fuccefs of the trial; the deputy only venturing fome cor. a de mor. Germ. 10. c Mirr. c. 3. 23. a Tenetur fe purgare is qui accufatur, per Dei judicium; fcilicet per calidum 8 ferrum, vel per aquam, pro diverfitate conditionis hominum: per ferrum calidum fi fuerit bomo liber; per aquam, fi fuerit rufticus. (Gianv. 7. 14. c. 1.) poral poral pain, for hire, or perhaps for friendship. Fire-ordeal was performed either by taking up in the hand, unhurt, a piece of red-hot iron, of one, two, or three pounds weight; or else by walking, barefoot, and blindfold, over nine redhot plowshares, laid lengthwife at unequal distances: and if the party escaped being hurt, he was adjudged innocent; but if it happened otherwise, as without collufion it usually did, he was then condemned as guilty. However, by this latter method queen Emma, the mother of Edward the confeffor, is mentioned to have cleared her character, when fufpected 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 efcaping unhurt thereby or by cafting the perfon fufpected 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 funk, 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 cafting 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 fame purpose by the emperor Theodore Lafcaris; who, attributing his fickness to magic, caused all those whom he suspected to handle the hot iron : thus joining (as had been well remarked) to the most dubious crime in the world, the moft dubious proof of innocence. AND indeed this purgation by ordeal feems to have been very antient, and very universal, in the times of fuperftitious barbarity. It was known to the antient Greeks: for in the Antigone of Sophocles", a perfon, fufpected by Creon of a [344] mifdemefnor, declares himself ready to handle hot iron, " and to walk over fire," in order to manifeft his innocence; Book IV. which, the fcholiaft tells us, was then a very ufual purgation. And Grotius gives us many instances of water-ordeal in Bithynia, Sardinia, and other places. There is also a very peculiar fpecies 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 fwim over a large river abounding with crocodiles, and, if he escapes unhurt, he is reputed innocent. As, in Siam, befides the ufual methods of fire and water-ordeal, both parties are fometimes exposed to the fury of a tyger let loofe for that purpose: and, if the beaft fpares either, that perfon is accounted innocent; if neither, both are held to be guilty; but if he fpares both, the trial is incomplete, and they proceed to a more certain criterion *. ONE cannot but be aftonished at the folly and impiety of pronouncing a man guilty, unless he was cleared by a miracle; and of expecting that all the powers of nature should be fufpended, by an immediate interpofition of providence to fave the innocent, whenever it was prefumptuously required. And yet in England, fo late as king John's time, we find grants to the bishops and clergy to use the judicium ferri, aquae, et ignis'. And, both in England and Sweden, the clergy prefided at this trial, and it was only performed in the churches or in other confecrated ground; for which Stiernhook m gives the reafon; "non defuit illis operae et "baboris pretium, femper enim ab ejufmodi judicio aliquid lucri "facerdotibus obveniebat." But, to give it it's 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 fit contra praeceptum Domini, non tentabis Dominum "Deum tuum"." Upon this authority, though the canons [345] themfelves were of no validity in England, it was thought proper (as had been done in Denmark above a century before) to disuse and abolish this trial entirely in our courts 86 i On Numb. v. 17. k Mod. Univ. Hift. vii. 266. m de jure Sucnum, 1. 1. c. 8. n Decret. part. 2. cauf. 2. qu. 5. dift. 7. Decretal. lib. 3. tit. 50. c. 9. & Gloff. ibid. • Mod. Un. Hift. xxxii. 105. of of justice, by an act of parliament in 3 Hen. III, according to fir Edward Coke P, or rather by an order of the king in council 9. II. ANOTHER fpecies of purgation, fomewhat fimilar to the former, but probably sprung from a presumptuous abuse of revelation in the ages of dark fuperftition, was the corfned or morfel of execration: being a piece of cheese or bread, of about an ounce in weight, which was confecrated with a form of exorcism; defiring of the Almighty that it might caufe convulfions and paleness, and find no paffage, if the man was really guilty; but might turn to health and nourishment, if he was innocent: as the water of jealousy among the Jews was, by God's fpecial appointment, to cause the belly to fwell, and the thigh to rot, if the woman was guilty of adultery. This corfned was then given to the fufpected. perfon, who at the fame time also received the holy facrament: if indeed the corfned was not, as fome have fufpected, the facramental bread itself; till the fubfequent invention of transubstantiation preserved it from profane uses with a more profound respect than formerly. Our historians affure us, that Godwin, earl of Kent, in the reign of king Edward the confeffor, abjuring the death of the king's brother, at last appealed to his corfned, “ per buccellam deglutien«dam abjuravit "," which ftuck in his throat and killed him. This cuftom has been long fince gradually abolished, though the remembrance of it still fubfifts in certain phrases of abjuration retained among the common people *. HOWEVER we cannot but remark, that though in Euro- [ 346 ] pean countries this custom moft probably arose from an abuse of revealed religion, yet credulity and superstition will, in Book IV. all ages and in all climates, produce the fame or fimilar effects. And therefore we shall not be surprized to find, that in the kingdom of Pegu there still fubfifts a trial by the corfned, very fimilar to that of our ancestors, only fubftituting raw rice instead of bread. And, in the kingdom of Monomotapa, they have a method of deciding lawfuits equally whimsical and uncertain. The witness for the plaintiff. chews the bark of a tree, endued with an emetic quality; which, being fufficiently mafticated, is then infused in water, which is given the defendant to drink. If his ftomach rejects it, he is condemned: if it ftays with him, he is abfolved, unless the plaintiff will drink fome of the fame water; and, if it stays with him alfo, the fuit is left undetermined. THESE two antiquated methods of trial were principally in ufe among our Saxon ancestors. The next, which still remains in force, though very rarely in ufe, owes it's introduction among us to the princes of the Norman line. And that is III. THE trial by battel, duel, or fingle combat; which was another fpecies of prefumptuous appeals to providence, under an expectation that heaven would unquestionably give the victory to the innocent or injured party. The nature of this trial in cafes of civil injury, upon iffue joined in a writ of right, was fully difcuffed in the preceding book2: to which I have only to add, that the trial by battel may be demanded at the election of the appellee, in either an appeal or an approvement; and that it is carried on with equal folemnity as that on a writ of right: but with this difference, that there each party might hire a champion, but here they muft fight in their proper perfons. And therefore if the appel[347] lant or approver be a woman, a prieft, an infant, or of the age of fixty, or lame, or blind, he or she may counterplead and refufe the wager of battel; and compel the appellee to put * Mod. Univ. Hift. vii. rag. z See Vol. III. pag. 337. himself |