Page:Harvard Law Review Volume 5.djvu/80

64 64 HARVARD LAW REVIEW. discover it everywhere among barbarous people, the conclusion seems just that it is indigenous with the human creature in the earlier stages of his development. 1 Like the rest, our ancestors had it. Glanville, for instance, our earliest text-book (about 1 187), 2 lays it down that an accused person who is disabled by mayhem tenetur se purgare. . . . per Dei judicium. . . . scilicet per callidum ferritin si fuerit homo liber, per aquam si fuerit rusticus. This was found to be a convenient last resort, not only when the accused was old or disabled from fighting in the duel, but when compurgators or witnesses could not be found or were contradictory, or for any reason no decision could otherwise be reached. 3 The earliest instance of the ordeal in our printed judicial records occurs in 1198-9, 4 on an appeal of death, by a maimed person, where two of the defendants are adjudged to purge themselves by the hot iron. But within twenty years or so this mode of trial came to a sudden end in England, through the powerful agency of the Church, — an event which was the more remarkable because Henry II., in the Assize of Clarendon (1166) and again in that of Northampton (1176), providing a public mode of ac- cusation in the case of the larger crimes, had fixed the ordeal as the mode of trial. The old form of trial by oath was no longer recog- nized in such cases in the king's courts. It was the stranger, therefore, that such quick operation should have been allowed in England to the decree, in November, 1215, of the Fourth Lateran Council at Rome. That this was recognized and accepted within about three years (12 18-19) by the English crown is shown by the well-known writs of Henry III. to the judges, dealing with the puzzling question of what to do for a mode of trial, cum prohibitum sit per Ecclesiatn Romanam judicium ignis et aquae? I find no case of trial by ordeal in our printed records later than Trinity 1 Patetta, Ordalie, c. I. 2 Book xiv., c. i. 8 It is worth remarking that civilization has not yet developed a satisfactory substi- tute for these tests of the barbarians, in cases where there is merely strong and per- sistent ground for suspicion ; in such a case, for example, as a well-known instance of the drowning of a young woman at a leading summer resort (Bar Harbor) in 1887. In earlier days the ordeal would have been the trial there. 4 Rot. Cur. Reg I. 204. 6 Sacros. Cone. xiii. ch. 18, pp. 954-5. Rymer's Foedera (old ed.) 228, ib. (Rec. Com. ed.) 154, has one of these writs. Maitland quotes it in his Gloucester Pleas, p. xxxviii.