BOOK CHAP. VIII. Their Ordeals and legal Punishments. WE have a full account of the Anglo-Saxon ordeals, of hot water and hot iron, in the laws of Ina. The iron was to be three pounds in weight for the threefold trial, and therefore probably one pound only for the more, simple charge; and the accused was to have the option, whether he would prefer the water "ordal" or the iron "ordal." No man was to go within the church after the fire was lighted by which the ordeal was to be heated, except the priest and the accused. The distance of nine feet was to be then measured out, from the stake, of the length of the foot of the accused. If the trial was to be by hot water, the water. was heated till it boiled furiously; and the vessel that contained it was to be iron or copper, lead or clay. If the charge was of the kind they called anfeald, or simple, the accused was to immerge his hand as far as the wrist in the water, to take out the stone; if the charge was of threefold magnitude, he was to plunge his arm up to the elbow. When the ordeal was ready, two men were to enter of each side, and to agree that the water was boiling furiously. Then an equal number of men were to enter from each side, and to stand along the church on both sides of the ordeal, all fasting. After this the priest was to sprinkle them with holy water, of which each was to taste; they were to kiss the gospels, and to be signed with the cross. All this time the fire was not to be mended any more; but the iron, if the ordeal was to be by hot iron, was to lay on the coals till the last collect was finished; and it was then to be placed on the staples which were to sustain it. VIII. While the accused was snatching the stone out of the water, CHAP. or carrying the hot iron for the space of nine feet, nothing was to be said but a prayer to the Deity to discover the truth. The hand was to be then bound up and sealed, and to be kept so for three days; after that time the seal and the bandage were removed, and the hand was to be examined, to see whether it was foul or clear.' From this plain account, the ordeal was not so terrible as it may at first sight appear; because, independently of the opportunity which the accused had, by going alone into the church, of making terms with the priest, and of the ease with which his dexterity could have substituted cold iron or stone for the heated substances, at the moment of the trial, and the impossibility of the detection, amid the previous forms of the holy water, the diminution of the fire, prayers on the occasion, and the distance of the few spectators; independently of these circumstances, the actual endurance of the ordeal admitted many chances of acquittal. It was not exacted that the hand should not be burnt, but that after the space of three days it should not exhibit that appearance which would be called foul, or guilty. As the iron was to be carried only for the space of nine of the feet of the accused, it would be hardly two seconds in his hand. The hand was not to be immediately inspected, but it was carefully kept from air, which would irritate the wound, and was left to the chances of a good constitution to be so far healed in three days as to discover those appearances, when inspected, which were allowed to be satisfactory. Besides, there was, no doubt, much preparatory training, suggested by the more experienced, which would indurate the epidermis so much as to make it less sensible to the action of the hot substances which it was to hold.* Ordeals were forbidden on festivals and fast-days.' Wilk. Leg. Inæ. p. 27. * Some authors have mentioned the pre parations that were used to indurate the BOOK XI. Of the single ordeal, it was ordered, that if the persons had been accused of theft, and were found guilty by it, and did not know who would be their borh, they should be put into prison, and be treated as the laws had enjoined.* An accused mint-master was to undergo the ordeal of the hot iron.' The ordeal might be compounded for.* The law of Ethelstan added some directions as to the ordeal. Whoever appealed to it was to go three nights before to the priest who was to transact it, and should feed on bread and salt, water and herbs. He was to be present at the masses in the mean time, and make his offerings and receive the holy sacrament on the day of his going through the ordeal; and he should swear, that with folc-right he was guiltless of the accusation before he went to the ordeal. If the trial was the hot water, he was to plunge his arm half way above the elbow on the rope. If the ordeal was the iron, three days were to pass before it was examined. They who attended were to have fasted, and not to exceed twelve in number of either side; or the ordeal was to be void unless they departed.' A thief found guilty by the ordeal was to be killed, unless his relations redeemed him by paying his were, and the value of the goods, and giving borh for his good behaviour.' The command of the ordeals must have thrown great power into the hands of the church; and as in most cases they who appealed to them did so from choice, it is probable, that whoever expressed this deference to the ecclesiastical order were rewarded for the compliment, as far as discretion and contrivance would permit. The ordeal was a trial, not a punishment. The most popular of the legal punishments were the pecuniary mulcts. → Wilk. p. 57. Ib. 59. • Ib. 60. 7 Wilk. p. 61. Ib. 65. For the ordeal of other nations, see Muratori, v.; and Du Cange. VIII. But as the imperfection and inutility of these could not be CHAP. always disguised as they were sometimes impunity to the rich, who could afford them, and to the poor, who had nothing to pay them with, other punishments were enacted. Among these we find imprisonment,' outlawry," banishment," slavery," and transportation." In other cases we have whipping," branding," the pillory," amputation of limb," mutilation of the nose and ears and lips," the eyes plucked out, hair torn off," stoning," and hanging." Nations not civilized have barbarous punishments. BOOK IN CHA P. IX. The Trial by Jury. N considering the origin of the happy and wise institution of the ENGLISH JURY, which has contributed so much to the excellence of our national character, and to the support of our constitutional liberty, it is impossible not to feel considerable diffidence and difficulty. It is painful to decide upon a subject on which great men have previously differed. It is peculiarly desirable to trace, if possible, the seed bud, and progressive vegetation of a tree so beautiful and so venerable. It is not contested that the institution of a jury existed in the time of the Conqueror. The document which remains of the dispute between Gundulf, the bishop of Rochester, and Pichot, the sheriff, ascertains this fact. We will state the leading circumstances of this valuable account. The question was, Whether some land belonged to the church or to the king? “The king commanded that all the "men of the county should be gathered together, that by their judgment it might be more justly ascertained to whom the "land belonged." This was obviously a shire-gemot. 66 "They being assembled, from fear of the sheriff, affirmed "that the land was the king's: but as the bishop of Bayeux, "who presided at that placitum, did not believe them, he "ordered, that if they knew that what they said was true, they "should chuse twelve from among themselves, who should "confirm with an oath what all had declared. But these, "when they had withdrawn to counsel, and were there "harassed by the sheriff through his messenger, returned and "swore to the truth of what they asserted." By this decision the land became the king's. But a monk, |