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
By the latter part of the twelfth century, the ordeal had become so
discredited, in the time of Henry II. that the law of that reign provided
that any one charged before the king’s justices with the crime of
murder, theft, robbery, or the receipt of such offenders, or of arson,
or forgery, by the oaths of twelve knights of the hundred, or of twelve
free and lawful men, in the absence of such knights, should submit to
the water ordeal, and if he failed in the experiment, he should lose
one foot; and this law afterwards amended, at Northampton in order to
make the punishment more severe and the felon also lost his right hand,
as well as one of his feet. He was also required to abjure the realm,
within forty days and even though he was acquitted by the water ordeal,
he was required to find pledges to answer for his good behavior, and if
he were later charged with murder, or other felony, he was then required
to abjure the realm within the forty days, with all his goods, save what
his lord might distrain to discharge his obligations due him.[49] This
law was to remain in effect, as long as the king pleased and the effect
of this law was that the accused, if convicted, lost a limb and suffered
banishment and even if acquitted, by ordeal, he was likewise banished,
for such was the doubt then entertained as to the justness of the trial
by ordeal.[50]
This doubt upon the justness of the trial by ordeal, was due, in large
measure to the fact that many such trials were fraudulently managed, by
the Bishops, to bring about the acquittal of the accused.
It is related that William Rufus, who had caused fifty Englishmen of good
family, to be tried by ordeal for the violation of some law of the realm,
after their acquittal by the ordeal of the hot iron, declared that he
would try them again by the judgment of his court and would not abide by
this pretended judgment of God, “which was made favorable or unfavorable,
at any man’s pleasure.”[51] And Henry II., likewise convinced of the
fraud accompanying such acquittals, by this means, also refused to give
final effect to such acquittals.[52]
Trial by ordeal continued in England until the judgments of councils,
in the reign of Henry III., but in the third year of the reign of this
monarch on January 27’, 1219, direction was given to the justices
itinerant for the northern counties of the kingdom not to try persons
charged with murder, arson, robbery, theft or other felonies, by the
ordeals of fire or water, but for the present, until further provision
could be made, to keep them in prison, _so as not to endanger their life
or limb_[53] and those charged with the inferior offenses were to be
compelled to abjure the realm.[54]
This order of council, during the reign of Henry III., had such a potent
influence toward abolishing the superstitious trial of ordeal, that it
went quite out of use by the time of Bracton, who makes no mention of it
in his book.[55]
Public-domain text, read in full here on John Shaqi.
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