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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

Published online by Cambridge University Press:  12 June 2012

William Sidney Gibson Esq.
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Extract

It will be readily admitted that few objects of archæological 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 discourse 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.

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Research Article
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Archaeologia , Volume 32 , Issue 2 , 1846 , pp. 263 - 297
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Copyright © The Society of Antiquaries of London 0000

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References

page 263 note a The late Mr. Studley Vidal communicated to the Society of Antiquaries, more than forty years ago, some Remarks on the different kinds of Trial by Ordeal, which formerly prevailed in England. Those remarks were published in volume XV. of the Archæologia, 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 consideration, 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. 1.

    1. A Brief Display of the Origin and History of Ordeals, &c. By James P. Gilchrist. London, 8vo. 1821.

  2. 2.

    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.

page 265 note a Missa Judicii. Spelm. Gloss, voce Ordalium.

page 266 note a Numb.v. 11—31.

page 266 note b V. 270.

page 266 note c Hist. Anglo-Sax. Church (ed. 1845), ii. 131.

page 267 note a Hincmari Epist. ad Hildegar. Metens. Episcopum. “Agobard, Ep. contra damnabilem opinionem putantium Divini judicii veritatem igne, vel aquis, vel conflictu armorum patefieri.”—See Cave, i. 515, 536. In the times of William Rufus, Hildebert Bishop of Mans, being accused of treason by that prince, was prepared to undergo one of these trials, when Ivo Bishop of Chartres convinced him that they were against the canons and constitutions of the Church, the latter prelate adding, that in this manner “Innocentiam defendere, est innocentiam perdere.”

page 267 note b Bale, Acta Rom. Pont. (ed. 1615), 136.

page 267 note c Gualo, guardian of Henry III., was the legate of Honorius.

page 267 note d The judges on circuit in the third year of this reign were directed that, instead of sending the accused to the ordeal, they should in petty offences take security for good behaviour; in cases of greater criminality, compel the culprit to abjure the realm; and in murder, robbery, or arson, remand him to prison without loss of life or member, evidently because it had not then been determined how to proceed in such cases. The mandate to the justices begins,—“Cum prohibitum sit per ecclesiam Romanam judicium ignis et aquæ, provisum est à concilio nostro ad præsens, ut in hoc itinere vestro, sic fiat de rectatis,” &c. Rot. Pat. 3 Hen. III. m. 5. Compare Rym. Fœd. tom. i. p. 228.

page 267 note e Hallam's Hist, of Europe in the Middle Ages (8vo. 1841), ii. p. 359 note, citing Bouquet, t. ii. p. 430.

page 268 note a This outline is given from the full account which may be seen in the “Histoire de Mess. Bertrand du Guesclin par Paul Hay du Chastelet,” livre i. chap. xix. The account given in Robertson's Charles V. (apparently from Roderigo de Toledo), vol. i. note xxii. varies in regard to the finality of the decision.

page 269 note a Post, p. 283, et seq.

page 269 note b Ancient Laws and Institutes of England (edit. 1840, 8vo.) i. 173.

page 269 note c The “lah-slit” was a mulct for offences committed by the Danes. See Glossary to Anc. Laws and Inst.

page 269 note d The “wite”was a mulct, fine, or penalty, to the Anglo-Saxon kings, payable for violations of the law. Ibid.

page 269 note e Ibid. ii. 249. King Edgar succeeded A.D. 959.

page 269 note f A similar prohibition is in the laws of King Edward the Confessor. Anc. Laws and Inst. i. 443. And in the laws of Canute, c. 17.

page 269 note g Eighteenth of the laws of Æthelred. Ibid. A.D. 1008. It is hardly necessary to observe that the practice of suspending judicial proceedings on days and in seasons consecrated to religious observances, was familiar to the Roman world before the introduction of Christianity. On this subject the reader may consult the interesting and well-executed work of Mr. Vansittart Neale, entitled “Feasts and Fasts;” and Sir Henry Spelman's learned treatise “On the Original of the Terms” (Lond. 1723, fol. part ii. p. 71, seq.); the occasion of which discourse was, as he tells us, a question proposed at a meeting of the gentlemen who formed the College or Society of Antiquaries which met weekly at Derby House, “to confer upon some questions in that faculty, and to sup together.”

page 270 note a Glanvil, who wrote (in the reign of Henry II.) the earliest known treatise of the laws of England, says, “He who is accused ought to purge himself by the judgment of God, to wit, by hot iron or by water, according to the difference of his condition; by hot iron if he be a freeman (si fuerit homo liber), and by water if he be a rustic (si fuerit rusticus).” Tract, de Leg. et Consuet. Regn. Angliæ, 12°. Lond. 1604, lib. xiv. ch. 1.

page 270 note b Laws of Æthelred, iii. 8. Anc. Laws and Inst. i. 297. “And if he be foul,” says the doom, that is, if he be not cleared at the ordeal, “let him be slain.” This law is more severe than the earlier law of Æthelstan, which merely directs that the accused moneyer go to the hot iron, “and therewith clear the hand with which he is charged to have wrought the fraud.” And if at the ordeal he were found guilty, his hand was to be struct off.

page 270 note c Laws of Æthelstan, iv. 6. Anc. Laws and Inst. i. 225. And see ibid. 297, for the law of Æthelred allowing option to the accuser.

page 270 note d Laws of Æthelst. v. i. (Jadicia Civitatis Londoniæ,) ibid. 229.

page 270 note e Surety.

page 271 note a The ora was equal to sixteen Saxon pennies.

page 271 note b Laws of Æthelst. v., enacted in the Council at Greatlea, A.D. 928. Anc. Laws and Inst. i. 225.

page 271 note c Æthelst. Ordinances in the same Council, i. 23; Anc. Laws and Inst. i. 213. And Spelm. Concilia, vol. i. p. 399, from which last mentioned authority the ordinance given in the text is derived.

page 271 note d And see Wilk. Gloss, p. 422. “Aqua vel ferro non licet in causa aliqua experiri nisi in qua modis aliis non potest veritas indagari.” De Jure Feudali Sax. c. 24, art. 19, apud Van Espen, ii. 336, cited by Lingard, ut sup. p. 132.

page 271 note e Lingard, ut sup. p. 133. And see the adjuration in MS. Ritual. Dunelm. A. iv. 19, f. 55, p. 114 in printed copy. Tradition calls this relic of the devotion of Anglo-Saxon Northumbria “King Ælfrid's Ritual.” See also Missa-Judic. apud Spelm. voce “Ordal.”

page 272 note a Leg. Sax. pp. 61–64. The ritual appropriated to the several kinds of ordeal is given in Canciani, torn. ii. p. 433. It begins with the following directions: “Inquisitus aliquis de furto, vel adulterio, vel de quocunque alio crimine, si nolit confiteri, pergat sacerdos ad ecclesiam, et induat se vestimentis sacris, excepta casula, portans in læva Sacrum Evangelium cum Chrismario, et reliquiis Sanctorum, calicemque cum patina, expectante plebe cum illo qui criminis reus esse deputatur, in atrio Ecclesiæ; et dicit plebi, Videte, fratres, Christianæ religionis officium,” &c. Anc. Laws and Inst. ii., Glossary.

page 272 note b Laws of Ætheist, iv. 7; Anc. Laws and Inst. i. p. 227.

page 272 note c A similar regulation is found in the old Chronicle of Jorevale.

page 272 note d The ninth of the laws of S. Edward relates to the persons who are to attend an ordeal, “De illis qui judicium faciunt aquæ vel ferri calidi:” “Assit ad judicium minister episcopi cum clericis suis, et justicia regis cum legalibus bominibus provincise illius, ut videant et audeant quod omnia eque fiant, et quos salvaverit Dominus per misericordiam suam et justicia eorum quieti sint et liberi abscedant; et quos iniquitas et injusticia sua condempnaverit, justicia regis de ipsis fieri faciat justicium.” Anc. Laws and Inst. i. 445.

page 272 note e Dr. Thorpe (in the Ancient Laws and Inst.) remarks that Stápela, which may also signify a pile (of wood, &c.) seems in this place to be synonymous with “staca.”

page 273 note a Mr. Price translated in-rezl-ian “and let his hand be sealed up;” but Dr. Thorpe believes the word is to be here understood in the sense envelope. The law of Æthelstan directed that the hand be not unsealed for the space of three days.

page 273 note b The venerable commentator, Sir William Blackstone, states the fire ordeal to have been 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 red-hot ploughshares laid lengthwise at unequal distances; but this statement, as we have seen, does not accurately describe the severity of the ordeal, since the accused not only took up the iron, but was obliged to carry it a certain number of regular paces. This error is pointed out by Mr. Vidal in the letter mentioned at the beginning of this memoir, and he further remarks, correctly, that the Anglo-Saxon laws do not notice the intermediate weight mentioned in the Commentaries, and, erroneously, also by Blount. Spelman, voce “Lada,” says that there were only the two degrees already mentioned.

page 273 note c The story is discredited by Godwin. See his work De Præsul. p. 56. Dr. Lingard (Hist. Angl. Sax. Church, i. 136) deems the story suspicious; and the Rev. J. S. Brewer, in his recent edition of Fuller's Church History (Oxf. 1845, vol. i. p. 376), says it must be regarded as of modern growth. Mr. Hallam added the weight of his great authority against the story, for he described it as “unsupported by any contemporary or even respectable testimony.”

page 273 note d See Mon. Angl. i. 34, for a full account of this trial; also Cressy's Church History, p. 960.

page 274 note a Thorn. Rudborn, Hist. Maj. Winton. lib. iv. ch. 1. This monk expressly states that the queen was not blindfolded: “Emma vero nullum maniphoram sive pannum ante oculos habens, super novem vomeres novem passus faciens, et singulos eorum totius corporis pleno premens pondere.”

page 274 note b Mon. Angl. i. 980.

page 274 note c Church Hist, of Brit. edit. 1845, i. 376.

page 274 note d “Only I wonder,” he adds, “that Bishop Ælfwine, equally suspected, and equally innocent, with Emma, should not proffer himself to the like trial. But, perchance, the prudent prelate remembered that such barbarous customs, though kept up amongst the common people, were forbidden by the ancient Canons; and now Emma, who went upon this sad errand, did the business for them both, and cleared their credits.” A story similar to this is related of Cunegunda, wife of the Emperor Henry II.

page 274 note e Leg. Inæ, c. 77, ap. Wilk. Leg. Sax. So in the Textus Roffensis (ed. Hearne), p. 33.

page 274 note f In the laws of Æthelstan it is provided that he dive an ell and a half by the rope. Leg. Æthelst. i.; Anc. Laws and Inst. ut sup. 213.

page 275 note a Leg. Sax. p. 26; ibid. p. 61. Grimm, D.R.A. 923, is cited on this point in Anc. Laws and Inst. Glossary. The following form of adjuration was pronounced by the priest over the water in which the accused person was to be cast: “I adjure thee, O thou water, in the name of the Father Almighty who created thee in the beginning, commanding thy use for human necessities; I adjure thee, by the unspeakable name of the Lord Jesus Christ, son of the living God, under whose feet the sea and element being severed was trod upon, and who was pleased to be baptized in the watery element; I also adjure thee by the Holy Ghost, which descended upon the Lord when He was baptized; I adjure thee also by the Name of the holy and individual Trinity, by whose will the element of waters was divided, and the people of Israel forthwith passed through dryfoot; at whose invocation the prophet Helisæas caused the axe which fell out of the helve to swim upon the water; that thou do not in any manner receive this man N. if he be guilty of that of which he is accused, by his act, consent, or knowledge, or any other device; but make him swim upon thee, to the end there may be no counterfeiting with thee, or any deception by the enemy, that may disguise the truth. And by the name of Christ we command thee that for His sake thou obey us, unto Whom every creature doth service,” &c. Orig. Jur. 87.

page 275 note b P. 566; Lingard, Hist. Engl. ed. 1844, ii. 290.

page 275 note c This is still expressed, says the venerable commentator, in that common mode of speech, “of going through fire and water to serve another.” Comm. b. vi. c. xxii. and Blount's Tenures (ed. Beckwith, 4to. Lond. 1815), 661, note.

page 275 note d Dr. John Webster, who was Master of the Free School in Clitheroe in 1643, and died in 1682, was an astrologer, and zealous detector of witchcraft. Butler alludes to the ordinary arts that were practised in the honourable business of witch-finding, where he refers to one Matthew Hopkins, who was of great celebrity in his day:—

“Has not the present Parliament
A legate to the devil sent,
Fully empowered to treat about
Finding revolted witches out ?
And has not he, within a year,
Hang'd three score of ‘em in a shire ?
Some only for not being drown'd,
And some for sitting above ground.”

From Brand we learn that in the melancholy year 1649 the sapient magistrates of Newcastle-upon-Tyne sent into Scotland with a view to make a bargain with a Scotchman, who professed the art of finding out witches. His plan was the simple one of pricking them with pins. The magistrates agreed to give this disgraceful practitioner twenty shillings a-piece for all he could condemn, and, moreover, bear his travelling expenses. On his arrival, the crier was sent through the town to invite persons to bring the suspected forward. Thirty women were led into the town hall, stripped, and subjected to the test: twenty-seven were found guilty. On this evidence (so called) one wizard and fourteen witches were tried at the assizes, convicted, and executed.

page 276 note a See Dissert, on Domesday, App. to Second Gen. Rep. of Commiss. p. 462.

page 276 note b Dugdale says that the first mention he finds of the family of Cobham is in the 12th John, when Henry de Cobbeham, of Cobbeham in Kent, gave 1,000 marks for the King's favour. Baronage, 65.

page 277 note a This probably was in right of the territorial franchise of Utfangenetheof, which was exercised so late as the reign of Edward I. Blomefield mentions two instances, both in 1285, where executions for felony took place by the sentence of a court baron, and the lord's privilege was questioned at the assizes.

page 277 note b Blount's Tenures by Beckwith, ut sup. p. 641, seq. The author elsewhere informs us, that in the hundred of Sandwich the execution of felons condemned to death was, in the fourteenth and fifteenth centuries, and probably much earlier, by drowning; and that in the year 1315 complaint was made against the prior of Christ Church, for that he had diverted the course of a certain stream called the Gestling, so that felons could not be executed for want of water. Here there is no distinction of sex. See Orig. Jurid. p. 88.

Another instance of the use of the trial by water occurs in the great roll of the Pipe, 12 Hen. II. when the shire-reeve of Norfolk and Suffolk “reddit compotum de catallis fugitivorum et eorum qui perierunt in judicio aquæ, viz. de Ricardo Haiward, iiijs. vijd.”

The ordeal of cold water is mentioned in a charter of King Philip Augustus, in A.D. 1200.

page 277 note c In Thorne's Chronicle an extract is given from the rolls of the Iter in 6 Ric. I. relating to the Ordeal trials in the lands of St. Augustine's Abbey. The following later instances are given in the Abbreviatio Placitorum: “Mariona uxor Hugonis Dobin malecreditur per totum visum de Markele, de morte Hugon’ Dobin viri sui, eo quod sepius fuit medleta et contentio int’ eos p’ delictis suis. Et quia plures adulterabantur cum ea, &c. Ideo purget se per judicium ferri, &c. David Blundus malecreditur quod ipse consentiens fuit, &c. Ideo purget se per aquam,” &c. Plac. Ric. I. et Joh. Heref. r. 6.

Several instances on Rot. Plac. Line, incerti temp. R. Joh. p. 68. “Loquendum in veredicto de Wilton’ de Gilberto serviente abbatisse de Wilton’ qui occisus fuit in …. Ille mundet se per aquam.” Plac. Ric. I. Wiltes', Hund’ de Cadew'rth.

“Philippus custodiatur quosque sciatur quid accidat de Walerando, qui debet se mundare per aquam pro facto illo.” Plac. Ric. I. Abb. Plac. p. 17, col. 1.

A like judgment in an accusation of murder and arson, ibid. “Juratores dicunt quod Osbertus Cole occidit quendam Godefridum cum quadam furca ferrea. Et Osbertus captus est, et venit et defendit quod eum non per cussit nee per eum mortem accepit. Mundet se per aquam, de morte ilia.” Plac. Ric. I. Wiltes'.

“Bernard’ Palmer dat D'no Regi j. marcam ut ipse qui appellatus est p’ Ricardum p'batorem et ætatem p'teriit possit purgare se per aquam vel per ferrum calidum.”

“Agnes uxor Odon’ m'catoris appellavit Galienam de sorceria. Et ipsa liberata est per judicium ferri. Et ideo Agnes remanet in misericordia.” Plac. Hil. 10 Joh'is, Norf. rot. 8. dorso.

In an appeal of manslaughter in 5 John, the judgment is, “Et ideo purget se per judicium aquœ.” Rot. 2. in anno, dors.

“Radulphus fil’ Hugonis, imprisonat’ apud Newgate et malecredit’ de latrocinio, &c. Purget se p’ aquam purgavit se et ejuravit regnum.” Plac. Trin. 15 Joh'is. Midd. r. 20.

See other instances in the same year, Abb. Plac. p. 90.

One Lenus, accused (malecreditus a juratoribus) of aiding and consenting in a manslaughter, is sent to the judicium ferri, Plac. 5 Johannis, Staff, r. 2.

The same roll contains two other cases of the judgment by water. One is on suspicion of homicide.

“Alius malecreditur de morte hominis. Purget se per aquam, quod non fuit consentiens periit et suspensus est.” Trin. 15 Joh'is, rot. 21.

“Quia ipsa elegit portare ferrum Et ideo purget se per judicium ferri,” &c. 5 Joh's, Staff, rot. 2. dorso.

“Walter’ aurifaber, de Fadewell, malecreditur de retonsura a xii. de Wapentac’ judicium purget se per aquam.”

Another is remitted to the judgment by iron. Ann. incert. Joh'is, Line. rot. 8.

page 278 note a Coke, Rep. 9, p. 32. Dugd. Orig. Jurid. c. xxix. 1 Rym. Foed. 228. Spelm. Gloss. 326. The King's mandate to the justices itinerant (inrolled Rot. Pat. 3 Hen. III.) may he seen in the Orig. Jurid. ut supra.

MS. treatises on the subject of these ordeal trials may be seen in the undermentioned codices in the Cottonian Library: JULIUS, C. II. fo. 58b. Cap. de Ferro Candente et Aqua. Ibid. fo. 95. Consuetudines Regni Angliæ; ubi quædam de Ordalio, etc. from the Textus Roffensis. CLAUDIUS, D. II. fo. 15b; a MS. of the fourteenth century. Institutum de Ordalio. This seems to be founded on the sixth law of Æthelstan, already described. TIBERIUS, B. VIII. an office book of the fourteenth century. Fo. 155. Benedictio ferri judicialis. Fo. 165b. Judicium aquæ ferventis, cum benedictione ejusdem. Fo. 177. Benedictio aquae frigidæ, ad judicium faciendum; cum adjuratione ejusdem, et hominis cui culpa objicitur. See a curious treatise on the proof by cold water, 4to. Franc. 1686, Grentzii.

page 278 note b The name “corsned” seems to be derived from “cor,” “kur,” trial, proof. See Glossary to Anc. Laws and Inst. citing Grimm, D.R.A. 932.

page 278 note c Hist. Ang.-Sax. Ch. ut supra, 133, citing Exorcismus Panis Ordeacii, apud Spelman, voce “Ordal.” For the old form of “Exorcismus panis ordeacii vel casei, ad probationem veri,” Blount, in the Tenures, refers to Lindenbrogius, p. 107. See also Text. Roffens. pp. 19–36.

page 279 note a Du Cange.

page 279 note b Blount (Tenures, ut supra, 663) cites the laws of King Canute, chapter 6 (but the reference does not apply) for the following: “Si quis altari ministrantium accusetur, et amicis destitutus sit, cum sacramentales non habeat, vadat ad judicium quod Anglice dicitur ‘Corsned,’ et fiat sicut Deus velit, nisi super sanctum Corpus Domini permittatur ut se purget.” This law is found in the Ordinances of Æthelred, A.D. 1014, art. 22; Anc. Laws and Inst. i. 345.

page 279 note c Numbers, v. 11–31.

page 279 note d See also Stevenson's edit, of Scalachronica, Append. 275. “Notable thinges translated into Englisch by John Leylande out of a booke caullid Scala Chronica, &c. Godwyne accusid at the table at Wyudesore of Alfride, King Edwardes brother's, death, according to his othe, was strangelid with a pece of brede, and burid at Winchestre.”

page 279 note e See Du Cange, and Jacob's Law Diet. tit. Corsned. Blount remarks that we have still some remembrance of this superstitious custom in the vulgar phrases of abjuration, such as “I will take the Sacrament upon it,” “May this bit be my last if,” &c. See also MS. Cott. Tiberius, B. VIII. (an office book of the fourteenth century, already quoted) where at fo. 186 b we have “Exorcismus panis et casei ad probationem veri investigandam, cum benedictione eorundem.” Dugdale (Orig. Jurid. 63) mentions a MS. treatise “De Judicio Aquæ et Ignis, Panis Hordeaci, et Casei et Sacramenti,” as being in MS. Cott. Vitell. A. VII., but the codex is wanting.

Father Cressy, in speaking of the trial by the holy Eucharist, says, that by such an examination Pope Adrian II. terribly convinced Lothair King of Lorrain, and several of his nobles, of perjury, for when at receiving the holy Eucharist they had attested their innocence touching adultery committed by the King, he presently after died miserably, and not any of the nobles outlived the year, but all were consumed by some fearful calamity. Church Hist. fo. 960. Thus the priest in the Church of England to this day, in giving notice of celebrating the holy Communion, is directed to warn his flock against the great peril of receiving the holy Sacrament unworthily, for then the receiving of it “doth nothing else but increase your damnation.”

page 280 note a It is there called “Barrecht.”

page 280 note b Richard III., Act I. Sc. 2.

page 281 note a Though Sir Walter Scott remarks, in his Note Book, from which Lockhart gives the passage, that “the conviction appears very doubtful indeed. Surely no one,” he says, “could seriously believe in 1688 that the body of the murdered bleeds at the touch of the murderer, and I see little else that directly touches Philip Stanfield.” Lockhart's Life of Scott, i. 261. A report of the trial of Stanfield may be seen in Lord Fountainhall's Chronological Notes of Scottish affairs (edited by Sir Walter Scott), 4to. Edin. 1822.

page 281 note b Walbran's Antiq. of Gainford, part i. 54, 55.

page 282 note a On the authority of D'Israeli, in Curios, of Lit. (ed. 1840), p. 58. His authority is not mentioned, and it has not been found by the writer of these remarks. He states that the Bishop of Paris and the Abbot of St. Denis disputed about the patronage of a monastery, and that King Pepin, not being able to decide upon their claims, decreed the judgment by the cross. The champions of the respective dignitaries appeared in the chapel, and stretched out their arms “in the form of a cross.” The Bishop's champion was first tired, and so he lost his patron's cause. See also Cressy, Ch. Hist. 960.

page 282 note b Montesq. Esprit des Lois, book xxviii, c. 18.

page 282 note c Reliques of Anc. English Poetry (ed. 1844), iii. 38.

page 283 note a Rot. Parl. vol. iv. p. 10.

page 283 note b The Pipe Rolls for Northumberland in 31st Hen. I. afford an instance of this, for in that year Cospatric of Newcastle is stated to owe twenty marks of silver, that he may clear himself of the judgment of fire ordeal by oath. Hodgson's Pipe Rolls for Northumb. in anno.

page 284 note a Montesq. Esprit des Lois, book xxviii. c. 18.

page 284 note b Lombard, de Ælfrede Kege. But see Hickes, and Hallam's Middle Ages, ii. 75, as to whether the ancient usage of compurgation is not meant.

page 284 note c In the Ordinances of Æthelred relating to the Marches of Wales it is directed that the juries be composed of six English and six Welsh; this was the origin of the modern juries de medietate linguoelig;.

page 284 note d Dissertations, 8vo. Lond. 1782, p. 59. Dugdale (Orig. Jurid. p. 88) remarks that “in actions of debt there hath been anciently a manner of trial which still continues in practice, for small sums of money, throughout divers parts of the realm, viz. where apparent proof is not made on the plaintiff's part, the defendant is permitted to wage his law, that is, to take his own oath that he oweth nothing at all to the plaintiff, and to bring as many credible persons as the court shall assign to make oath that they believe he swears true; which manner of waging law (adds the author) is very ancient, as may appear from what Mr. Lambard observeth thereof, though then in cases criminal.” This usage, indeed, was practised by the Jews. In the courts of the Wardens of the North Marches the defendant was allowed to clear himself by his oath that the accusation laid against him was false; and such a law is retained by the Scots, though exploded in every other code.

page 285 note a They are described fully in a paper communicated by the celebrated Warren Hastings to the society instituted in Bengal for inquiring into the history and antiquities, the arts, &c. of Asia, and published in the first volume of the Asiatic Researches, 388, seq.

page 285 note b In Forbes's Oriental Memoirs, vol. i. chap. xi. it is stated that the accused is guarded for several days before the ordeal; that his hand and arm are closely covered with waxed cloth, which is sealed up to prevent deceit; that a piece of money is used, as well as the ring; that when the liquid boils, the arm is unsealed and washed in the presence of the judges and accusers, while the attendant Brahmins supplicate their deities; that after the arm has been plunged into the oil it is again sealed up, and so remains until the time fixed for re-examination, when, if no blemish appears, the accused is declared innocent.

page 286 note a On the coast of Malabar a person accused of a serious crime is doomed to swim across a large river abounding with crocodiles, and if he escape unhurt he is esteemed innocent. At Siam the person spared by a tiger is considered innocent. Gilchrist, Brief Display, &c. ut sup. 11.

page 287 note a Mr. D'Israeli, in an article on “The Trials and Proofs of Guilt in Superstitious Ages,” reminds the reader that Voltaire mentions a secret for undergoing the trial by boiling water; that late travellers in the East have confirmed his statement that some dervises, and even some jugglers who have been seen in Europe, can hold red-hot iron between their teeth; and he suggests that terms might be made with the priest, and cold iron substituted for the fiery ball.

The conjectures of Dr. Henry are unworthy of notice, for they proceed upon a misconception of important particulars prescribed by the ritual.

Montesquieu suggests that the hands of the hard-working peasant might become able to resist hot iron; and Mr. Hallam points out that there are medicaments which help to resist the action of fire upon the skin.

Mr. Sharon Turner follows on the same side; but his conjectures do not aid the explanation of this curious inquiry.

page 287 note b Hist. of Europe, &c. i. p. 186, note, citing Greg. Turon. l. vii. c. 19; l. x. c. 10.

page 287 note c Montesq. Esprit des Lois, l. xxviii. c. 18.

page 287 note d Hallam, Hist. of Europe, ut sup. i. 186; and he cites Baluz, t. i. p. 80, and Muratori, Script. Rer. Ital. t. ii. c. 65, from whom it appears that Luitprand, King of the Lombards, says in one of his laws: “Incerti sumus de judicio Dei; et quosdam audivimus per pugnam sine justâ, causâ suam causam perdere. Sed propter consuetudinem gentis nostræ Longobardorum, legem impiam vetare uon possumus.”

page 288 note a When the Jewish rabbins had to decide upon such disputes between parties, neither of whom could produce evidence to substantiate his right, they terminated the dispute by the result of single combat. So the capitularies of Dagobert say, that if two neighbours dispute about the boundaries of their possessions, a piece of turf of the contested land is to be brought before the judge; the rival claimants, touching it with their weapons, are to call on God as witness of their claims; after which, victory is to decide the right.

Otho II. in a conference with Conrad, King of Burgundy, and with Italian lords, held at Verona in A.D. 988, made a law that disputes touching inheritance, or relating to fiefs, should be decided by combat; and the clergy were to be subject to the same law, but were to be allowed to fight by champion.

page 288 note b For the judicial combats, as also for common athletic exercises, an amphitheatrical circus of rude stones was formed. “Qusedam [saxa] circos claudebant, in quibus gigantes et pugiles duello strenue decertabant.” Ol. Worm. p. 62. Again: “Noc mora, circuatur campus, milite circus stipatur, concurrunt pugiles.” Ibid, p. 65. Circles of this kind are yet to be seen in Cornwall, a county still famous for athletic exercises.

page 288 note c Selden, “Duello.” Lond. 12mo. 1610.

page 288 note d Ibid. p. 39.

page 288 note e Concil. Trident. Sess. 9, can. 19, par. 2.

page 288 note f Seld. “Duello,” ut sup. p. 41.

page 288 note g Jocelin of Brakelond, in an episode to his Domestic History of the Abbey of St. Edmund's Bury, (published by the Camden Society,) relates that Henry of Essex, a powerful nobleman, being accused of treason by Robert of Montfort, and denying the accusation, met his adversary in camp-fight in a certain island hard by the abbey. This combat was fought in 1163. The accused was vanquished but not killed, and became a monk in that abbey.

He relates also that one Ketel, who held as a free tenant of the cellarer of St. Edmund's, and dwelt without the gate, was charged with theft, and being vanquished in camp-fight was hanged. The burgesses murmured at this, alleging that if the accused had happened to dwell within the borough he need not have fought, but might have acquitted himself by the oaths of his neighbours according to their privilege. The abbot thereupon (A.D. 1198) granted that malefactors taken upon the fee of the cellarer should nevertheless be tried by the portmanemot, or assembly of the borough. Such was the privilege of the citizens of London so early as the reign of Henry I. See ante, p. 283.

The appellation “Kemp” is Saxon, “cempa,” a soldier. See Lye's Dictionary, in voce. In the form “campio” it occurs in Domesday. The word is probably derived from “campus,” as the place for meetings in arms. So, labour performed in the field, as to reap, is in the North called “to kemp.”

page 289 note a Ol. Worm. Mon. Danicorum, lib. i. cap. 10. To the Danes Olaus Magnus derives it from the Goths—“Expurgatio in judicio duodecim legalium hominum,” he says, “per Gothos in Italia degentes, vetusto tempore observabatur; et hodierno die in Gothicis regnis observatur.”

page 289 note b His words are transcribed by Selden, ut sup. p. 41.

page 289 note c “Accusato,” says Ranulph de Glanvil, Justiciar under Henry II. “per omnia in curiâ legitimè negante, tune per duellum solet placitum terminari,” &c. lib. xiv. c. l.

page 289 note d Glanvil, 1. 2, c. 7. So Bracton tells us that the defendant “habebit electionem, utrum se ponere velit super patriam, vel non, vel defendendi se per corpus suum.” lib. 3, Tract, de Coron. c. 21.

page 290 note a Blackstone's Comm. ed. Stephens, iv. 413, in note.

page 290 note b Libellus de Vitâ et Mir. S. Godrici, curante Rev. Jos. Stevenson, p. 189–191. This very learned and admirable edition of a valuable work is one of the recent publications of the Surtees Society.

page 290 note c A man charged with a crime professes his innocence before the proper tribunal, and his readiness to wage battle in proof of his assertion. As a preliminary step he goes to the church of Norham (his parish church), to take the necessary oath of innocence upon a cross made of the wood of a table upon which St. Cuthbert had been in the habit of eating his refection, and upon which all the neighbouring people were accustomed to swear when an oath was required. The place of duel was called Midhop (the middle hill), the weapon was a lance, and Swain, the priest of Fishwick, on the opposite side of the Tweed, was an eye-witness. The accused, however, committed perjury, and was slain in the combat. Reg. Dunelm. Libellus, &c. cap. LVII.

page 290 note d Madox's Hist. Excheq. 66, 71. In the same work is a notice of a recovery of land decided by this process, p. 294. See also Dugd. Monast. new ed. iii. 306.

page 290 note e Plac. Mich. 6 Ric. I. r. 3. And see Selden's “Duello,” ut supra, p. 72.

In 34 Hen. III. Agnes de Rutelsdon, wife of Adam de Rutelsdon, impleaded Richard de Reymes for the fourth part of a fee in Overstrand, in the county of Norfolk. Richard had released it to Roger de Herlebirge for 80 marks of silver, and the latter was called to warrant the title. A combat was fought between him and a freeman on behalf of Agnes the demandant, and afterwards the parties came to an agreement. Blount's Tenures, ut sup. citing Blomefield's Hist. Norf. fol. ed. iii. p. 331. See also the instance, temp. Edw. I. mentioned by Selden in his “Duello,” ut sup. p. 77.

page 291 note a See p. 7. Duellum inter virumet mulierem, temp. Ric. I. r. 27, p. 31. Inter clericum et laicum, Mich'as 2 Joh. r. 24; pt. 2, pp. 86, 96, 122, 124. It is offered by the body of a freeman, 6 Ric. I. p. 4, and 1 Joh. p. 22.

Rex Johannes mandavit Justic’ de Banco q'd certa duella vadiata coram eis de roberia coram ipso Rege ponantur, quia ea vult videre, Mich'as 2 Joh. r. 3. p. 27. See also pp. 31, 32, 38, 62, 91.

“Et dies datus partibus ubicumq’ Justic’ itin’ in com’ Surr’ et tune venient armati.” Pasch. 25 Hen. III. Essex, r. 5, p. 116. See also p. 83, Mich'as 13 Joh. r. 7, pp. 66, 67. In the 4th John, parties are to proceed in the duello, “according to the customs of England.” Pasch. 4 Joh. Line. r. 7, p. 39. A person appealed of larceny is acquitted on finding sureties, the appellor having failed to appear on the day fixed for the combat, 34 Hen. III. p. 127. See also pp. 107 and 334; the latter an instance in 12 Edw. II.

page 291 note b In a suit in 22 Edw. I. A.D. 1294, between William de Vesey and John Fitz Thomas, for defamatory words, trial by combat was offered and admitted by the judge, Walter de la Hay, escheator of the King, and keeper of his office of Chief Justice in Ireland The wager of combat was accepted before the combat was judicially awarded, and this was contrary to the custom of the realm; whereupon the King's writ issued to William de Estden, his treasurer in Ireland, Robert Bagod, and the said Walter de la Hay; and the trial was removed before the King at Westminster, where, on the day appointed,—“venit praedictus Willielmus eques armatus armis militaribus, viz. cum dextrario, cooperturo, lancea, scuto, cultello, lorica, et cum aliis armis militaribus.” And the aforesaid John was called, but came not. The combatant who did appear prepared, desired that, if he had more or fewer arms than he ought, he might lessen or increase them accordingly. The whole record is in Rot. Parl. i. pp. 127–133.

The prover in an appeal of felony was assigned to try by combat in Smithfield, in 42 Edw. III. Rot. Parl. ii. p. 297.

During the reign of Edw. III. an adverse claim to the manor of Hawkeslawe, in Northumberland, which had been confirmed to the prior and monks of Tynemouth in that county, was to their great distress made by a powerful neighbouring lord, Sir Gerard de Woderington. Thomas de la Mere, then prior, defended the suit at law. Sir Thomas de Colvill, a valiant knight who had served with Edward “the Black Prince,” came into court during the trial, and suddenly offered to become champion for the prior, if a combat should be awarded. “But,” says the Chronicler, “none durst encounter him to try if the cause of the adversary were just, whereupon the prior's enemies being out of heart, he gained the termination that he wished.” MS. Cott. Claud. E. iv. fo. 232, seq. published in Gibson's History of Tynemouth, ii. cxviii.

Touching championship, it may be mentioned here, that Selden refers to a deed made in 42 Hen. III. whereby one Henry de Ferneberg, “dictus marescallus,” bound himself to the Abbat of Glastonbury to be his champion at all times, for certain manors, against the Bishop, Dean, and Chapter of Bath and Wells, and against any champions chosen by them, “pro triginta marcis sterlingorum.” The champions were wont to be sent to several churches to invoke the divine aid through the intercession of saints there honoured, to their victory, and the champions were to find pledges for their due appearance. Seld. Duello, 75, 76.

In 1355, Robert de Kellaw, formerly sacrist of Coldingham, cleared himself of an accusation “pro asportatione septemviginti librarum de bonis Cellse.” Vide Cartae Priorum et Conventus Dunelm. ii. In 1362 we have “Literæ testimoniales super purgatione Willelmi de Bamburgh Prioris de Coldingham accusati de Incontinentia.” Cartæ Episcop. S. Andr. ii. Willelmi (V.) Landells.

It was enacted in 6 Ric. II. that in an appeal of ravishment the defendant shall not be admitted to wage battle, but shall be tried by inquest. Rot. Parl. iii. p. 140.

In cases of treason, proof by combat was disallowed in 11th Ric. II. Rot. Parl. iii. p. 238.

But, in the reign of Elizabeth, two near kinsmen of the family of O'Connor having charged each other with sundry treasons in the late rebellion, and desiring a trial by combat, fought by consent of the lords justices of Ireland, in the court of the Castle of Dublin, according to the customary laws in such cases of England, each combatant in his shirt only, and armed with sword and target, when the appellant disarmed and cut off the head of the defendant, and presented it to the lords justices, who thereupon acquitted him. Collins's Peerage, ed. Brydges, vol. iv. p. 309. The award and presence of the lords justices might seem to give to this combat the character of a trial for purgation from the charge of treason; but it was probably angous to a proceeding in the court of chivalry (like that of the Marshal of England) for avenging an imputation of dishonour. Amongst the complaints exhibited against the unfortunate Richard II. in 1399, we find him charged with causing his subjects to be taken before the Constable and Marshal of England. “In qua curia died ligei accusati ad aliud responsum admitti non poterant nisi respondendo se in nullo fore culpabiles, et per eorum corpora et non aliter se justificarent et defenderent, non obstante quod accusatores et appellatores eorum essent juvenes, fortes, et sani, et illi accusati senes et impotentes, mutulati vel infirmi.” Rot. Parl. iii. p. 420.

page 292 note a One of the latest instances in which trial by battle was claimed and awarded on a demand of right to land, occurs in the reign of Elizabeth. The matter in question was a manor and demesne lands in Kent. Simon Low and John Kyme were plaintiffs, and Thomas Paramore defendant. He claimed to defend by battle, and the plaintiffs accepted his challenge. He alleged that he had purchased the land from a person under age, who, on coming of age, conveyed to the plaintiffs. The champions met before three of the judges of the Common Pleas sitting within the lists in Tothill Fields, Westminster; and, after the formal ceremonies had been performed, and in the presence of several thousand persons, proclamation was made for the appearance of the plaintiffs, who, however, had come to an arrangement with the defendant, and did not appear. The defendant's champion was one Thome, who is described as a big, broad, strong-set fellow. The plaintiffs’ champion was one Nailor, master of defence, and servant to the Earl of Leicester, a slender man, and not so tall as the other. He was dressed in a doublet, and “galey gascoigne breeches all of crimson sattin, cut and laced; a hat of black velvet, with a red feather and band, drums and fifes playing before him.” Thorne's gauntlet was borne before Nailor on a sword's point; and his baton (a staff of an ell long, made taper-wise, tipped with horn,) with his shield of hard leather, was borne after him. The Lord Chief Justice, after rehearsing the proceedings in the suit, and for default of the plaintiffs’ appearance, adjudged the land to Paramore, and dismissed the champion, acquitting their sureties. Antiq. Repertory, vol. i. p. 181.

page 293 note a See Notes of Parliamentary Proceedings in relation to trial by battle, between 1620 and 1641, in Kendall's Argument on Trial by Battle and Appeal. (8vo.Lond. 1818) 135 seq.

In 1632 an anonymous writer published a work, entitled “Anti Duello, or a treatise in which is discussed the lawfulness and unlawfulness of single combats,” &c. Lond. 4to. The author was John d'Espagne, a French Protestant divine.

page 293 note b Hallam, Hist, of Eur. in the Middle Ages, i. 187, citing Beaumanoir, who wrote in the reign of Philip the Bold. In the assizes de Jérusalem, a monument of customs two hundred years earlier than the age of Beaumanoir, we find, says Mr. Hallam, little mention of any other mode of decision than that by judicial combat.

page 293 note c That incomparable prince, unable to overthrow the judicial combat, confined himself to discouraging it by the example of a wiser jurisprudence. He listened to all complaints with a kind of patriarchal simplicity. “Many times,” says Joinville, “I have seen the good saint, after hearing mass in the summer season, lay himself at the foot of an oak, in the wood of Vincennes, and make us all sit round him; when those who would came and spake to him, without let of any officer; and he would ask aloud if there were any present who had suits; and, when they appeared, would bid two of his seneschals determine their cause upon the spot.” Hallam, ut supra, 188, citing Collection des Mémoires, t. 1, p. 25.

page 293 note d We nevertheless find that an Abbat of Angers in A.D. 1066, offered to justify his defence to a claim of the territorial lord by the trial of the ordeal, or by combat, and to furnish a champion; but the lord, after accepting the wager of battle, agreed to waive his claim, on the abbat undertaking that the convent should pray for him, his wife, and brothers, evermore.

page 294 note a Montesq. Esp. des Lois, 1. xxviii. c. 19.

page 294 note b Archæologia, vol. xxix. p. 348, seq.

page 294 note c For these ceremonies as practised on the continent see the Anciennes Loix Françoises of Houard, t. i. p. 764. Mr. Hallam refers to Velly, t. 6, p. 106; Recueil des Historiens, t. ii. Préf. p. 189; Du Cange, voce Duellum.

page 294 note d Orig. Jur. p. 68, et seq.

page 294 note e It is in Norman French, and describes the proceedings on a plea before the justices itinerant at Northampton, in 3 Edw. III. between Thomas FitzHugh de Staunton, and the prior of Lantony, for the advowson of the church of Harlaston in Northamptonshire.

page 295 note a The combat seems to have been performed between persons of the rank of gentlemen, in England, with lance, sword, and dagger, and sometimes with axes, and by persons under that rank with staves. Bondmen on the estates of the Church were, out of respect to her, to be put upon an equality with a free man of the laity.

page 295 note b See Hickes's account of the silver Dano-Saxon shield dug up in the Isle of Ely, having a runic inscription which was supposed to have the magical power of rendering those who bore it in combat invulnerable. Thesaur. Dissert. Epist. p. 187.

page 295 note c Woden himself was not only a warrior but a magician.

page 295 note d Dugd. Orig. Jurisd. p. 82. The oath of the combatant ran:—“This heare you, justices, that I have this day neither eate, drunke, nor have upon me either bone, stone, nor glasse, nor any inchantment, sorcerie, or witchcraft, wherethrough the power of the Word of God may be inleased” (from the French word enlasse, i. e. intangled or ensnared) “or diminished, and the devil's power increased, and that my appeal is true,” &c.

page 295 note e Dugd. Orig. Jur. 68, seq. Selden's Duello, and Kendall's Trial by Battle, ut sup. passim. Stat. de Westm. primer edit. ann. 3 Edw. I.; Coke, 2d Inst. (edit. 5) p. 246, and authorities’ there cited. See also Rot. Pat. 55 Hen. III. m. 3; Rot. Plac. 15 Edw. I. r. 8, Norf. MS. tracts on duels may be seen in MS. Cott. Tiber. E. VIII. fo. 50b, 190; Nero, D. vi. 82; Vitell. C. iv. 129; Titus, C. I.passim; IV. passim. A representation of the combat before the King and court is in Roy. MS. 14 E. 3, in Mus. Brit.

page 296 note a Seld. Duello, ut sup. 70.

page 296 note b Rot. Parl. iii. p. 5.

page 296 note c Ibid. iv. 421.

page 296 note d Rot. Parl. iv. 277. Mr. Hallam remarks that duelling, in the modern sense of the word, exclusive of casual frays and single combat during war, was unknown before the sixteenth century. All single combats, whether for the decision of a civil right, the trial of a criminal accusation, or the vindication of personal honour, were anciently invested with the character of judicial trials.

page 296 note e Rot. Parl. iii. 383.

page 296 note f Seld. “Duello,” ut sup. pp. 55,70. So lately as the month of June, 1846, a duel authorised by a tribunal of honour in Prussia was fought, with swords, before the judges, in the manner of the combats of the Middle Ages. An account of it may be seen in the Times newspaper 9th July, 1846.

page 296 note g Parties litigant have still their champions, for they are justly accounted foolish if they attempt to fight their own battles now in courts of justice; but the weapons and the mode of procedure are curiously changed. Refined distinctions, legal subtlety, and learning are now weapons of conflict, and masses of statutes occupy the place of few and simple regulations.