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On Some Ancient Modes of Trial, Especially Those in Which Appeal Was Made to the Divine Judgment Through the Ordeals of Water, Fire, and Other Judicia Dei

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On Some Ancient Modes of Trial, Especially Those in Which Appeal Was Made to the Divine Judgment Through the Ordeals of Water, Fire, and Other Judicia Dei 263 XXI.—On some Ancient Modes of Trial, especially those in which Appeal was made to the Divine Judgment through the Ordeals of Water, Fire, and other Judicia Dei. By WILLIAM SIDNEY GIBSON, Esq. F.S.A., Barrister-at-Law. Read June 17th, 1847. IT will be readily admitted that few objects of archaeological research are better deserving of our attention than those which illustrate the jurisprudential system of our ancestors, and the history of our venerable laws. A most extraordinary feature of the judicial code of ancient times was the practice of the Ordeal Trials, in which the solemnities of religion were united with the administration of secular justice, and a mode of divination resorted to for the discovery of hidden truth; and since those modes of trial were for many ages a part of English law and usage in the trial of criminal causes, though now (perhaps happily) they are matter of history alone, the author proposes in the present dis- course to put together as concisely as he can the information and examples he has collected in elucidation of the origin and practice of the Ordeal Trials, and to invite references to any judicial records which may further illustrate the subject* a The late Mr. Studley Vidal communicated to the Society of Antiquaries, more than forty years ago, some Eemarks on the different kinds of Trial by Ordeal, which formerly prevailed in England. Those remarks were published in volume XV. of the Archseologia, pp. 192—197. In them Mr. Vidal intimated that the Notes he had collected on this subject would be laid before the public under the title of " An Inquiry concerning the Forms and Ceremonies used in some of the more Ancient Modes of Trial in England, particularly in the Fire and Water Ordeals, the Corsned, the Judicial Combat, and other Judicia Dei." He remarks that this subject had not been treated of by any writer in a work devoted to its consi- deration, although it is apparent from the writings of Parker, Spelman, Selden, Du Fresne, Montesquieu, Mabillon, Muratori, Dugdale, Lambard, Nicolson, Hickes, Brady, Tyrrell, and of many other eminent antiquaries, that the subject was thought by them not undeserving of a particular investigation. The author of the following discourse has not been enabled to find that Mr. Vidal's intended work was ever published, nor to trace that gentleman's collections for the undertaking, if they should yet exist in MS. The only separate works upon this subject known to the author are:— 1. A Brief Display of the Origin and History of Ordeals, &c. By James P. Gilchrist. London, 8vo. 1821. 2. An Argument for construing largely the Right of an Appellee of Murder to insist on Trial by Battle, and also for abolishing Appeals, by E. A. Kendall, Esq. F.A.S. London, 8vo. 1818. The former of these works gives only a popular sketch of the subject, and is deficient in references to historical authorities. 264 On the ancient Ordeals of Water, Fire, fyc. In these days, when the redress of public and private wrongs, the discovery of truth, and the earthly punishment of wickedness are exclusively sought from those eminent and time-honoured tribunals of reason and justice of which Englishmen can boast, it is difficult to conceive that, after the diffusion of Christianity, there were ages in which appeal was authoritatively made to tests that appear to have had their origin in heathen superstitions and in the practice of a barbarous people. It is in this age startling to be told that there was a time in Christian England when civil controversies were frequently referred to decision by the sword in personal combat, wherein he who prevailed over his adversary was afterwards adjudged by the law to have the better right; and when criminal accusations were in many cases tried by the same method, or more frequently by a sort of divination through the medium of water or of fire, in which trials the accused person was adjudged guilty in whose favour the Judge of all men did not miraculously interpose. And yet such customs prevailed in this country during some centuries, for the trials by ordeal were long recognized by the laws under the Anglo-Saxon princes, and were not abolished until the reign of King Henry III.; while the trial by combat, first ordained in England by the Normans, having been long resorted to by nations of Scandinavian origin, continued to be known to the law even down to a late period in the reign of King George the Third, though it had then nearly fallen into desuetude. It was one of the many legal cobwebs which retained a place in judicial archives while religion, laws, and dynasties were undergoing change or removal around them, and which survived in antiquated rigidity a mere dead letter, utterly repugnant to modern ideas of jurisprudence. And so the trial by combat came to be swept away, in recent times, from our courts of justice. Few subjects connected with legal antiquities afford, however, more striking features with which to contrast the habits and opinions of our own day than these ancient customs of our unlettered ancestors. But they are not to be rashly con- demned merely because they differ from modern notions, and are not recognised by our elaborate and artificial system of jurisprudence; many as are the remains of expired and forgotten laws that have fallen before the vigour of modern legislation, more numerous still, and perhaps less innocent in many particulars, are the tangled meshes which, in these prolific days of statute-making, the legislative spiders have produced, and the parliaments have thrown around the venerable tree of legal knowledge. Many are the branches that have been engrafted on it in substitution for those which have been lopped away; for while modern wisdom in its self- sufficiency has been unsparing, and even ruthless, in altering the ancient laws of England, legislative zeal has been indefatigable in making others to supply their On the ancient Ordeals of Water, Fire, fyc. 265 place; but, whatever may be thought of some other changes, it can never be said that the abolition of the trial by ordeal and by combat is a matter for regret. The ancient Germans and other northern nations were accustomed to resort to divination, and their superstitious notions led them to invent many methods of purgation or trial now unknown to the law. The object of all those inventions was to preserve innocence from the danger of false witnesses, for they believed that God would always interpose miraculously to vindicate the guiltless from an accu- sation ; and the interference of Heaven was confidently expected to aid the arm of the man, who, with the advantage of right in his quarrel, appealed to the decision of his sword. The devout credence which was given in the middle ages to the miracles of saints, probably fostered the belief that the all-powerful Judge whose intervention in the affairs of men had been thus miraculously exemplified, would interpose in behalf of right and justice, on the solemn appeals which were made in the ordeal trials. While the Anglo-Saxons worshipped the gods of their fathers, the decision of criminal prosecutions was frequently (says Dr. Lingard) intrusted to the wisdom of Woden; when they became Christians they confidently expected from the true God that miraculous interposition which they had before sought from an imaginary deity. He was a Being of infinite knowledge and infinite power, the patron of virtue and the avenger of crimes ; could He then remain indifferent when He was solemnly invoked ? Could He permit falsehood to triumph over truth, innocence to be confounded with guilt ?a It has been remarked, that among an illiterate people, an appeal in doubtful cases to the equity of the Creator would at once exonerate the conscience of the judge, and establish the guilt or innocence of the accused. The feudal chieftain, neither qualified nor inclined to decide intricate questions, rejected the balance but retained the sword; and he sent the parties litigant to the combat, believing that Heaven would benignly interpose in favour of the right, and give to innocence, or to the rightful claimant, the efficacy of strength. These customs, therefore, long supplied the place of written law and judicial sagacity, among a barbarous people incapable of the refined inquiries, the subtle distinctions, and the elaborate investigations which are demanded by the procedure of courts of law amongst a civilised nation; for, as an acute writer has remarked, " to elicit the truth from conflicting evidence, demands a faculty which it were in vain to expect from the magistrates of a nation just emerging from ignorance and barbarity." But the fear of an award of the judicial combat must have deterred many a person from becoming appellant or prosecutor, and, in most cases, this mode of trial appears in the light of a sanguinary and oppressive custom. Yet, a Missa Judicii. Spelm. Gloss, voce Ordalium. 266 On the ancient Ordeals <tf Water, Fire, Montesquieu concludes, that there was such a coincidence between the laws which admitted of these trials and the manners of the people, that the laws were not so productive of injustice as they were themselves unjust, and were more unreasonable than tyrannical. In England, however, the evils of the judicial combat were softened by the concurrent efficacy of the trial by jury. And motives of conve- nience only could hardly have maintained these customs in force for so long a period; they were believed to accomplish the ends of justice, and at all events they terminated controversies in a speedy and summary way; for, before quarrels came to be conducted as they now are on skins of parchment, instead of on those of the parties litigant, the dispute was by the ordeal or the combat terminated for ever, there being, by the very nature of the trial, no appeal to a superior court.
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