But however it may have arisen, the joining of issue (which, though usually entered on the record, is not otherwise joined in any part of the proceedings) seems to be clearly the meaning of this obscure expression; which has puzzled our most ingenious etymologists, and is commonly understood as if the clerk of the arraigns, immediately on plea pleaded, had fixed an opprobrious name on the prisoner, by asking him, “culprit, how wilt thou be tried?" for immediately upon issue joined it used to be inquired of the prisoner, by what trial he would make his innocence appear. This form latterly had reference to appeals and approvements only, wherein the appellee had [ 314] his choice either to try the accusation by battel or by jury. h After the abolition of ordeal, there could be no other trial but When the prisoner has thus put himself upon his trial, the clerk answers in the humane language of the law, which always hopes that the party's innocence rather than his guilt may appear, "God send thee a good deliverance." And then they proceed, as soon as conveniently may be, to the trial, the manner of which will be considered at large in the next chapter. 2 Hawk. P. C. 399. f 2 Hal. P. C. 258. A learned author, who is very seldom mistaken in his conjectures, has observed that the proper answer is, "by God or the country," that is, either by ordeal or by jury, because the question supposes an option in the prisoner. And certainly it gives some countenance to this observation, that the trial by ordeal used formerly to be called judicium Dei. But it should seem that, when the question gives the prisoner an option, his answer must be positive, and not in the disjunctive, which returns the option back to the prosecutor. h Kelynge, 57; State Trials, passim. By the stat. 4 & 5 Vict. c. 22, peers must plead as any other of her majesty's subjects.' CHAPTER XXVII. OF TRIAL AND CONVICTION. THE several methods of trial and conviction of offenders, [342] established by the laws of England, were formerly more numerous than at present, through the superstition of our Saxon ancestors; who, like other northern nations, were extremely addicted to divination, a character which Tacitus observes of the ancient Germans. They therefore invented a considerable number of methods of purgation or trial, to preserve innocence from the danger of false witnesses, and in consequence of a notion that God would always interpose miraculously to vindicate the guiltless. a b C ordeal. 1. The most ancient species of trial was that by ordeal: 1. Trial by which was peculiarly distinguished by the appellation of judicium Dei; and sometimes vulgaris purgatio, to distinguish it from the canonical purgation, which was by the oath of the party. This was of two sorts, either fire-ordeal, or water-ordeal; the former being confined to persons of higher rank, the latter to the common people. Both these might be performed by deputy but the principal was to answer for the success of the trial; the deputy only venturing some corporal pain, for [ 343 ] hire, or perhaps for friendship. Fire-ordeal was performed Fire-ordeal. 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: and if the party escaped being hurt, he was adjudged innocent; but if it happened otherwise, as without collusion it usually did, he was then con conditionis hominum; per ferrum calidum • This is still expressed in that com- Water-ordeal. demned as guilty. However, by this latter method, Queen Emma, the mother of Edward the Confessor, is mentioned to have cleared her character, when suspected of familiarity with Alwyn, Bishop of Winchester. Water-ordeal was performed, either by plunging the bare arm up to the elbow in boiling water, and escaping unhurt thereby; or by casting the person suspected into a river or pond of cold water; and, if he floated therein without any action of swimming, it was deemed an evidence of his guilt; [344] but, if he sunk, he was acquitted. It is easy to trace out the traditional relics of this water-ordeal, in the ignorant barbarity still practised in many countries to discover witches by casting them into a pool of water, and drowning them to prove their innocence. And in the Eastern empire, the fire-ordeal was used to the same purpose by the Emperor Theodore Lascaris, who, attributing his sickness to magic, caused all those whom he suspected to handle the hot iron; thus joining (as has been well remarked) to the most dubious crime in the world, the most dubious proof of innocence. History of trial by ordeal. And indeed this purgation by ordeal seems to have been very ancient and very universal, in the times of superstitious barbarity. It was known to the ancient Greeks: for in the "Antigone" of Sophocles, a person, suspected by Creon of a misdemeanor, declares himself ready "to handle hot iron, and to walk over fire," in order to manifest his innocence; which, the scholiast tells us, was then a very usual purgation. And Grotius gives us many instances of water-ordeal in Bithynia, Sardinia, and other places. There is also a very peculiar species of water-ordeal, said to prevail among the Indians on the coast of Malabar; where a person accused of any enormous crime is obliged to swim over a large river abounding with crocodiles, and, if he escapes unhurt, he is reputed innocent. As, in Siam, besides the usual methods of fire and water ordeal, both parties are sometimes exposed to the fury of a tiger let loose for that purpose: and, if the beast spares either, that person is accounted innocent; if neither, both are held to be guilty; but if he spares both, the trial is incomplete, and they proceed to a more certain criterion.1 Rudborne, Hist. Winton, 1. 4, c. 1. h On Numb. v. 17. i Mod. Univ. Hist. vii. 266. One cannot but be astonished at the folly and impiety of pronouncing a man guilty, unless he was 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. And, both in England and Sweden, the clergy presided at this trial, and it was only performed in the churches or in other consecrated ground: for which Stiernhook* gives the reason; "non defuit illis operæ et laboris pretium; semper enim ab ejusmodi judicio aliquid lucri sacerdotibus obveniebat." 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." Upon this authority, though Abolished, temp. the canons themselves were of no validity in England, it was thought proper (as had been done in Denmark above a century before) to disuse and abolish this trial entirely in our courts of justice, by an Act of Parliament in 3 Hen. III. according to Sir Edward Coke," or rather by an order of the king in council. Henry III. [345] corsned, or morsel II. Another species of purgation, somewhat similar to the II. Trial by the former, but probably sprung from a presumptuous abuse of of execration. 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; P 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 was then given to the suspected person, who at the p [346] III. Trial by battel, same time also received the holy sacrament; 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. This custom has been long since gradually abolished, though the remembrance of it still subsists in certain phrases of abjuration retained among the common people.t However, we cannot but remark, that though in European countries this custom most probably arose from an abuse of revealed religion, yet credulity and superstition will, in all ages and in all climates, produce the same or similar effects. And therefore we shall not be surprised to find, that in the kingdom of Pegu there still subsists a trial by the corsned, very similar to that of our ancestors, only substituting raw rice instead of bread." And, in the kingdom of Monomotapa, they have a method of deciding lawsuits equally whimsical and uncertain. The witness for the plaintiff chews the bark of a tree, endued with an emetic quality; which, being sufficiently masticated, is then infused in water, which is given the defendant to drink. If his stomach rejects it, he is condemned; if it stays with him, he is absolved, unless the plaintiff will drink some of the same water; and if it stays with him also, the suit is left undetermined." These two antiquated methods of trial were principally in use among our Saxon ancestors. The next, which remained in force until recently,' though very rarely in use, owed its introduction among us to the princes of the Norman line. And that is, III. The trial by battel, duel, or single combat, which was |