[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 66 to handle hot iron and to walk over fire," in order to manifest his innocence; which, the scholiast tell us, was then a very usual purgation (i). And Grotius gives us many instances of water-ordeal in Bithynia, Sardinia, and other places (). One cannot but be astonished at the folly and impiety of pronouncing a man guilty, unless 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, "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 disuse and abolish this trial entirely in (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. 1. 1, c. 8. (n) Decret. part 2, caus. 2, qu. 5, dist. 7; Decret. lib. 3, tit. 50, c. 9; and Gloss. ibid. [our courts of justice by an act of parliament in the third year of Henry the third, according to Sir Edward Coke (0); though it seems rather to have been 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 (»). 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;" which stuck in his throat and killed him (t). This custom has long since fallen into complete disuse; though the remembrance of it still sub (0) 9 Rep. 32. It had been abolished in Denmark above a century before. (Mod. Univ. Hist. xxxii. 105.) (p) 1 Rym. Foed. 228; Spelm. Gloss. 326; 2 Pryn. Rec. Append. 20; Seld. Eadm. fol. 48. (9) Spelm. Gloss. 439. () 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. [sists, in certain phrases of abjuration retained among the common people (u). III. The trial by battle, duel, or single combat (x); was another species of presumptuous appeal to Providence, under an expectation that Heaven would unquestionably give the victory to the innocent or injured party. 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 (y).] This species of trial used to obtain not only in appeals on criminal charges (≈) and in approvement (a), but also in the antient but now abolished civil action called a writ of right, which formerly was the only action by which land could be recovered (b). And the ceremonials observed were very similar, whether the issue to be tried arose in a civil action or on a criminal charge, except that in the latter case the combat was waged by the parties themselves, and not by champions, as in the (u) As "I will take the sacrament upon it,' ," "May this morsel be my last," and the like. (x) On the subject of trial by combat, some valuable information will be found in Hallam's Mid. Ag. vol. i. pp. 277-294. (y) 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 the laws of the Alemanni or Swabians, and also of the Lombards; and he cites Baluz. t. 1, p. 80, and Muratori, Script. Rer. Ital. t. 2, c. 65. () As to appeals, vide sup. p. 380. (a) 2 Hale, P. C. p. 233. As to approvements, vide sup. p. 395. (b) Vide sup. bk. v. The last occasion on which trial by battle in a writ of right was awarded, of which we have an authentic account, was in the 13 Eliz. in the year 1571; and it was granted, says Sir Henry Spelman, non sine magnâ jurisconsultorum perturbatione. (See Dyer, 301, from whose report it appears that no actual combat took place, the demandants making default.) Blackstone, however (vol. iii. p. 338), refers to a later trial by battle, which he states was waged in the county palatine of Durham in 1638. (See Cro. Car. 512.) civil action (d). Thus in a writ of right (respecting which the accounts handed down to us are the more copious, and from which therefore what follows as to this method of trial is chiefly drawn), we find that when the tenant pleaded the general issue; viz. that he had more right to hold the land than the demandant to recover; [he might offer to prove such plea by the body of his champion (e) 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 battle with the champion of the demandant; who by taking up the gage or glove accepted, on his part, such challenge (f). A piece of ground was then set out; and the champions were introduced, armed with batons and staves an ell long, and a four-cornered 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 impious custom of private duels on imaginary points of honour,-but hath also traced the heroic madness of knight errantry, from the same original of judicial combats (g). But to proceed: When the champions arrived within the lists, the champion of the tenant took his adversary by the hand, and made oath that the tenements in dispute were not the right of the demandant; and the champion of the demandant, then taking the other by the hand, swore in the (d) See Flet. 1. 1, c. 34; Hawk. P. C. b. 2, c. 45. (e) The wager of battle 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 [same manner that they were; next an oath against sorcery and enchantment, was taken by both champions in this or a similar form, "Hear this, ye justices, that I "have this day neither eat, drank, nor have upon me "neither bones, stones, ne grass, nor any enchantment, "sorcery, or witchcraft whereby the law of God may be "abased, or the law of the devil exalted.-So help me "God and his saints" (h). The battle was thus begun; and the combatants were bound to fight till the stars appeared in the evening: and if the champion of the tenant could defend himself till the stars appeared, the tenant was to prevail in his cause; but if victory declared itself for either party, for him was judgment finally given. This victory might arise from the death of either of the champions, or by either of them proving recreant, i. e., yielding, and pronouncing the horrible word of craven; a word of disgrace and obloquy, rather than any determinate meaning (i). The effect of the termination of the battle in either of these modes was, that the vanquished party forfeited his claim, and paid a fine (k); and the champion, if recreant, was condemned amittere liberam legem; i. e., to become infamous, and not to be accounted liber et legalis homo,-being supposed by the event to be proved forsworn, and not fit to be put upon a jury, or admitted as a witness in any cause (7).] (h) See 3 Bl. Com. p. 340, who cites Dyer, 301, and Spelm. Gloss. 103. See also Rushw. Coll. vol. ii. pt. 2, fol. 112; 19 Rym. 322; R. v. Dryden, Cro. Car. 512, and 11 Harg. St. Tr. 124, where will be found an account of the proceedings in the last trial by battle, which took place in this country, viz. that in the case of Lord Rea v. Ramsey (see also 7 Car. 1). Mr. Hallam (vol. i. p. 278, 7th ed.) refers for the ceremonies of trial by combat, to Houard, Anc. Loix de France, t. 1, p. 264; Velly, t. 6, p. 106; Recueil des Historiens, t. 2, pref. p. 189; Ducange v. Duellum. But he says the great original authorities are the Assises de Jerusalem, c. 104, and Beaumanoir, c. 31. (i) Bl. Com. ubi sup. (k) Hall. Mid. Ag. vol. i. p. 278, 7th ed. (1) Bl. Com. ubi sup. The compiler of the Assises de Jerusalem, c. 167, thinks it would be very injurious if no wager of battle were to be allowed against witnesses in causes affecting succession; since otherwise every right heir might be disinherited; as it would be easy |