Page:The American Cyclopædia (1879) Volume XII.djvu/689

ORDERICUS YITALIS ORDINARY 675 the practice fell gradually into disuse. Other forms of ordeal, chiefly local, such as the weighing of witches, were practised in north- ern Germany as late as the beginning of the 18th century. If they were exceedingly light, they were declared guilty. The practice of these ordeals sprang from a superstitious be- lief that a just God would interfere to punish the guilty. Yet, although ordeals were per- formed upon consecrated ground, and though so late as the reign of King John the clergy of England had the privilege of using ihejudicium ferri, aquae et ignis, the church early and ear- nestly endeavored to do away with them. The temporal power came to the aid of the spiri- tual, and by the 16th century the practice with a few exceptions had been given up. Accord- ing to Sir Edward Coke, it was abolished in England in the reign of Henry III. In Hindo- stan especially the system of ordeals was devel- oped, so that, according to Warren Hastings in the first volume of the "Asiatic Researches," there were nine kinds of ordeal in use, all equally absurd. The laws of Manu contain the following directions : ' ' According to the nature of the case, let the judge cause him who is un- der trial to take fire in his hand, or to plunge in water, or to touch separately the heads of his children and of his wife. Whom the flame burns not, whom the water rejects not from its depths, whom misfortune overtakes not speedily, his oath shall be received as undoubt- ed." Ordeals of various kinds, but chiefly the trials by fire and by water, are found among the Japanese, the Chinese, the natives of Pegu and of Guinea, and the tribes of Asiatic Russia. In Japan, while the ordeal of fire was employed, accused persons were also sometimes required to swallow a paper inscribed with mysterious characters, which was supposed to give them no rest if guilty till they confessed. In Siam the accuser and the accused were placed to- gether, and a tiger was let loose upon them. If one was spared, he was considered inno- cent; if both were destroyed, they were both deemed guilty. In Madagascar the trial by ordeal was long practised, the supposed crimi- nal being made to drink a decoction of a poi- sonous fruit called the tangena, a small dose of which acts as an emetic, while a large dose is fatal. By managing the size of the dose, those who administered it could decide the result. In 1862 the practice was totally abolished by royal edict. See "Superstition and Force," by Henry C. Lea (Philadelphia, 1870). ORDERICl'S VITALIS, an English chronicler, born at Attingesham (now Atcham), near Shrewsbury, Feb. 17, 1075, died about 1143. He passed most of his life in the monastery of St. Evroult in Normandy. He wrote an " Ec- clesiastical History of England and Normandy " down to the year 1141, which was first printed in Duchesne's Historic Normannorum Scrip- tores (1619). There is an English translation by T. Forester in Bohn's "Antiquarian Li- brary " (4 vols., 1853-'6). ORDERS, or Holy Orders. See ORDINATION. ORDERS, Religions. See RELIGIOUS OBDERS, and MONACHISM. . ORDERS IN COUNCIL, a term applied to orders made by the sovereign of Great Britain by advice of the privy council. Strictly these can only be made in the exercise of executive au- thority, and an order in its nature legislative would be unconstitutional as encroaching upon the authority of parliament. The famous or- ders in council of 1807-'8, made in retalia- tion for the Berlin and Milan decrees of Na- poleon, were condemned as legislative, but were defended by the supporters of the gov- ernment as being issued in pursuance of the sovereign's authority to declare and prosecute war. In emergencies, when parliament is not in session, the executive sometimes assumes to take legislative action on some subjects, rely- ing upon being indemnified by act of parlia- ment afterward, as for instance when circum- stances are thought to render imperative a suspension of the writ of habeas corpus, or of specie payments by the bank of England. ORDINARY (Roman law, judex ordinarius), in its proper sense, or that which it bore in the Roman law, a judge who took cognizance of causes in the regular course and proper right of his office, and not by way of special deputa- tion. This acceptation of the word is very ex- actly preserved in the ecclesiastical law, though in books of the common law the bishop who is the ordinary in England is familiarly referred to as " one who has ordinary jurisdiction in causes ecclesiastical." The bishop of each di- ocese is the ordinary therein. In virtue of his office he certifies excommunications, the law- fulness of marriages, and the like ecclesiastical and spiritual matters, to the courts of common law. Formerly, and until the statute 8 Eliza- beth, c. 4, under claim of the benefit of clergy, he asserted an exclusive jurisdiction over his clerks. But the particular and most prominent judicial function of the ordinary consisted in his grant of probate of wills and letters testa- mentary. Of these matters the bishops, or in certain cases the archbishops, had for many centuries, and until very recently, exclusive ju- risdiction. It has been much discussed whether the probate of wills and the granting of admin- istrations were matters entirely and originally of ecclesiastical cognizance. It is now the bet- ter opinion that they were not, but that they belonged to the county courts, or to the courts baron of the lords of manors. Certainly these courts existed and wills were made before an ecclesiastical jurisdiction was established. Af- ter that was done, and until the time of the conquest, the bishop sat with the earl in the county court. The spiritual and temporal courts were separated in the time of William I., but it is not clear to which of the two the cognizance of wills was intrusted. But Spel- man asserts, mainly on the authority of Glan- vil, that in the times of Henry I. and Henry II. testamentary causes were regularly heard