Page:Harvard Law Review Volume 5.djvu/81

THE OLDER MODES OF TRIAL. 65 Term of the 15 John (1213). 1 We read then of these cases. One Ralph, accused of larceny, is adjudged to purge himself by- water; he did clear himself, and abjured the realm. And so in another exactly like case of murder. 2 It was the hard order of the Assize of Clarendon that he who had come safely through the ordeal might thus be required to abjure the realm, a circum- stance which recalls the shrewd scepticism of William Rufus when he remarked of the judicium Dei that God should no longer decide in these matters, — he would do it himself. 3 In the third case a person was charged with supplying the knife with which a homicide was committed, and was adjudged to purge himself by water of consenting to the act. He failed, and was hanged. In England, then, this mode of trial lived about a century and a half after the Conquest, going out after Glanville wrote, and before Bracton. The latter is silent about it. VI. Trial by Battle. — This is often classified as an ordeal, " a God's judgment." But in dealing with our law it is convenient to discriminate these, for the battle has certainly other aspects than merely that of an appeal to heaven. Moreover, it survived the ordeal proper for centuries. It had, also, no such universal vogue. Although it existed among almost all the Germanic people, the Anglo-Saxons seem not to have had it; but it came into England with the Normans in full strength. In Glanville, a century after the Conquest, we see it as one of the chief modes of trial in the 1 Plac. Ab. 90, col. 2. Two of these cases are given in Seld. Soc. Pub. i., case 116, where also there follow three others, 119, 122, and 125, " of uncertain date." 2 Patetta, Ordalie, 312, doubts the accepted opinion that the disappearance of the ordeal in England was thus due to the Lateran Council decree. He remarks, truly, that the action of the Council merely forbade ecclesiastics to take part in the ordeal, and adds that there is mention of the ordeal in Henry the Third's Magna Carta of 1224-5. But one is inclined to doubt whether Dr. Patetta had in mind the king's writs above referred to; those and the sudden cessation of the cases seem conclusive. As regards the men- tion of legem manifestam as late as the Magna Carta of 1224-5, ^ mav > perhaps, be explained by the circumstance that this was a reissue of an earlier document. The mere legem of the former documents had already become legem manifestam nee adjura- mentnm, in the second reissue, of 1217. The phrase was also used for the battle as well as the ordeal in its narrower sense — the sense now under consideration. See Brunner's interesting comment on this passage of Magna Carta in Zeits. der Sav.-Stift. (Germ. Abt.) ii. 213. There occurs a reference to the ordeal in a record of I22i,but on exam- ination it proves to be a statement that one Robert underwent the ordeal at a previous trial, which may well have been some years earlier. Maitland's Gloucester Pleas, case 383, and p. xxii ; and notes on this case at p. 150, and on case 434, at p. 151. 8 Cited by Brunner, Schw. 182.