Legal antiquities : $b A collection of essays upon ancient laws and customsWhite, Edward J. (Edward Joseph)
History
Legal antiquities : $b A collection of essays upon ancient laws and customs
White, Edward J. (Edward Joseph)
Criminal law -- History; Law -- History; Law, Ancient; Punishment -- History
It is true that in Alfred’s time there were trials by jury, and it seems
that trial by ordeal may have been re-established, after trial by jury,
in doubtful cases, as a refuge or solution of an otherwise doughty
problem for the barbarian mind to solve.[34]
Pursuance to the terms of a certain league, made between Edward the Elder
and Guthrun, the Dane, ordeals were forbidden upon festivals or fasting
days[35] and the same provision was inserted in the constitution made by
the synod held at Eanham, under King Ethelred.[36]
The laws of Canute and Edward the Confessor also contained provisions
forbidding trials by ordeal upon festivals or fasting days, for we read
that the _judicium Dei_, upon these auspicious occasions, was to be
postponed, until the affairs of mortals could be better arranged for its
reception, by the following provision:[37]
“We forbid ordeals and oaths” (the name law trials at that
time were called) “on feast days and ember days, and from the
advent of our Lord till the eighth day after twelfth be past;
and from Septuagesima till fifteen nights after Easter. And the
sages have ordained that St. Edward’s day shall be festival all
England on the fifteenth cal. of April, and St. Dunstan’s, on
the fourteenth cal. of June; and that all Christians, as right
it is, should keep them hallowed and in peace.”
In the simple ordeal, of the Anglo-Saxons, the hot iron weighed one pound
and in the triple ordeal, it was to weigh three pounds. The triple ordeal
was used in the crimes of arson and murder, treason and forgery.[38]
In the laws of Edward the Elder, perhaps the earliest reference in
Anglo-Saxon laws, to the ordeal, it was provided that perjured persons,
or those once convicted should not thereafter be deemed oath-worthy, but
on their accusation, should be hurried to the ordeal,[39] and similar
provisions are to be found in the laws of Ethelred, Cnut and Henry I.[40]
Trial by ordeal at first carried with it the sanction of the priest, as
well as the civil power and the clergy continued to approve and interject
the spiritual portion of the proceeding, until the early portion of the
thirteenth century.[41] Under the law of William the Conqueror, the
conduct of the ordeal, as a known ecclesiastical procedure, was declared
to be the business of the bishop, but the civil and spiritual powers were
to co-operate harmoniously, in the trial by ordeal, the court of the
hundred making the original order by which a man was sent to the ordeal
of fire or water, but the bishop presided at the ceremony and regulated
the course of the proceeding, in accordance with the solemn religious
ceremony, whereby the element used was blessed and the Divine Wisdom of
Omnipotence was invoked to the conclusion of the whole proceeding.[42]
Public-domain text, read in full here on John Shaqi.
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