[either fire-ordeal, or water-ordeal; the former being confined to persons of higher rank, the latter to the comBoth these might be performed by mon people (e). deputy; but the principal was to answer for the success of the trial, the deputy only venturing some corporal pain for hire, or perhaps for friendship (ƒ). 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,-bare foot, and blindfold,-over nine red hot plough-shares, laid lengthwise, at unequal distances; and if the party escaped being hurt, he 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 (g).

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 sank, he was acquitted. It is easy to trace out the traditional relics of this water-ordeal, in the ignorant barbarity that has been 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,

(e) Tenetur 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. s. 14, c. 1.

(f) This is still expressed in that common mode of speech, " of going through fire and water to serve another."

(g) Tho. Rudborne, Hist. Maj. Winton, 1. 4, c. 1.

[as has been well remarked, to the most dubious crime in the world the most dubious proof of innocence (h).

And indeed this purgation by ordeal, seems to have been very antient, and very universal, in the times of superstitious barbarity. It was known to the antient Greeks; for, in the Antigone of Sophocles, a person suspected by Creon of a misdemeanor, declares himself ready "to handle hot iron and to walk over fire," in order to manifest his innocence (i); which, the scholiast tells us, was then a very usual purgation. And Grotius gives us many instances of water-ordeal in Bithynia, Sardinia, and other places (k).

One cannot but be astonished 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 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 grounds: for which Stiernhook gives the reason,

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non defuit illis operæ et laboris pretium; semper enim ab ejusmodi judicio, aliquid lucri sacerdotibus obveniebat (m).” 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)." Upon this authority,-though the canons themselves were of no validity in England,—it was thought proper to dis

(h) Sp. L. b. 12, c. 5.

(i) V. 270.

(k) Grot. on Numb. v. 17. And see Mod. Univ. Hist. vii. 266.

(1) Spelm. Gloss. 435.

(m) De Jure Sueon. l. 1, c. 8.

(n) Decret. part 2, caus. 2, qu. 5, dist. 7; Decret. lib. 3, tit. 50, c. 9; and Gloss. ibid.

use and abolish this trial entirely in our courts of justice, by an Act of parliament in the third year of Henry the third, according to Sir Edward Coke (o); or rather by an order of the king in council (p).

II. Another species of purgation,--somewhat similar to the former, but probably sprung from a presumptuous abuse of revelation 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 if he was innocent (q). As the water of jealousy, among the Jews, was, by God's special appointment, to cause the belly to swell, and the thigh to rot, if the woman was guilty of adultery (r). This corsned, then, was given to the suspected person, who at the same time also received the holy sacrament (s); 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 buccellam deglutiendam abjuravit (t);" which stuck in his throat and killed him. This custom has been long since gradually abolished; though the remembrance of it still subsists, in

(o) 9 Rep. 32. It had been abolished in Denmark above a century before. (Mod. Un. Hist. xxxii. 105.)

(p) 1 Rym. Fod. 228; Spelm. Gloss. 326; 2 Pryn. Rec. Append. 20; Seld. Eadm. fol. 48.

(4) Spelm. Gloss. 439. (r) Numb. v.

(s) "Si quis alteri ministrantium accusetur et amicis destitutus sit cum sacramentales non habeat, vadat ad judicium quod Anglicè dicitur 'corsned,' et fiat sicut Deus velit, nisi super sanctum corpus Domini permittatur ut se purget."-Wilk. Leges Ang. Sax. LL. Canut. c. 6.

(t) Ingulph.

[certain phrases of abjuration retained among the common people (u).

These two antiquated methods of trial, were principally in use among our Saxon ancestors.] The next,-which though in modern times almost wholly laid aside, yet remained in force in the English law, till its abolition by the 59 Geo. III. c. 46 (x),-owed its introduction among us to the princes of the Norman line; and that is

III. The trial by battel, duel, or single combat (y); which was another species of presumptuous appeal to Providence, under an expectation that Heaven would unquestionably give the victory, to the innocent or injured party.] This obtained in appeals (z), and in approvements (a); and also in the civil action called a writ of right (b). [The first written injunction of judiciary combats that we meet with, is in the laws of Gundebald, A.D. 501, which are preserved in the Burgundian code; yet it does not seem to have been a local custom of this or that particular tribe, but to have been the common usage of all the northern people from the earliest times (c).] In a writ (u) As "I will take the sacrament upon it," "May this morsel be my last," and the like.

(x) Vide sup. p. 464.

(y) On the subject of trial by battel, some valuable information will be found in Hallam's Mid. Ag. vol. i. pp. 277-294.

(z) As to appeals, vide sup. p. 463. The last occasion on which trial by battel was offered in an appeal, was in Abraham Thornton's case in the year 1818 (1 Barn. & Ad. 405).

(a) 2 Hale, P. C. p. 233. As to approvements, vide sup. p. 479.

(b) This was one of the real actions now abolished. (Vide sup. vol. 111. pp. 507, 511, 608.) The last occasion on which trial by battel VOL. IV.

in a writ of right was awarded (of which we have an authentic account), was in the 13 Eliz. in the year 1571; and was granted, says Sir Henry Spelman, non sine magná jurisconsultorum perturbatione. (See Dyer, 301, from whose report it appears that no actual combat took place, the demandants making default.) Blackstone (vol. iii. p. 338) refers, however, to a later trial, which he states was waged in the county palatine of Durham in 1638. (See Cro. Car. 512.)

(c) Seld. on Duels, c. 5; et vide Stiern. de Jure Sueon. 1. 1, c. 7. Mr. Hallam says (vol. i. p. 278, in notis), that it may be met with under the first Merovingian kings in France; and was established by

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of right, [when the tenant pleaded the general issue; viz. that he had more right to hold than the demandant to recover;] he might offer to prove it by the body of his champion (d): which tender being accepted by the demandant, the champion for the tenant threw down his glove, as a gage or pledge; and was then said to wage battel with the champion of the demandant; who by taking up the gage or glove accepted on his part such challenge (e). And the battel was thus waged by champions, and not by the parties themselves, in order principally, as it would seem, [that no person might claim an exemption from this trial; as was allowed in criminal cases, where the battel was waged in person (f).] A piece of ground was then set out; and the champions were introduced, armed with batons and staves an ell long, and a fourcornered leather target. [In the court military, indeed, they fought with sword and lance, according to Spelman and Rushworth: as likewise, in France, only villeins fought with the buckler and baton; gentlemen, armed at all points. And upon this and other circumstances, Montesquieu hath, with great ingenuity, not only deduced the

(d) The wager of battel was the only decision of the question of right on a writ of right, after the Conquest, -until Henry the Second, by consent of parliament, introduced the grand assize, a peculiar species of trial by jury, in concurrence therewith; giving the tenant his choice of either the one or the other. The establishment of this alternative, Glanvil, chief justice to Henry the second, and probably his adviser herein, considers as a most noble improvement, (as in fact it

was,) of the law. "Est autem magna assisa regale quoddam beneficium, clementia principis, de consilio procerum, populis indultum; quo vitæ hominum, et status integritati tam salubriter consulitur, ut in jure quod quis in libero soli tenemento possidet retinendo, duelli casum declinare possint homines ambiguum. Ac per hoc contingit, insperata et præmaturæ mortis ultimum evadere supplicium, vel saltem perennis infamiæ opprobrium illius infesti et inverecundi verbi, quod in ore victi turpiter sonat, consecutivum."L. 2, c. 7.

(e) 3 Bl. Com. 338, 339.

(f) See also on the reason of this practice, Co. Litt. 294; Dyversité des Courtes, 304.