Doubtless, in deeply superstitious times the ordeals, with their solemn prayers and incantations, were fairly effective. But yet they do not seem to have been altogether trusted, at any rate in the later period,[[194]] since even those who passed successfully through them were obliged to quit the country within forty days.[[195]] Most people, however, who underwent ordeals had been arraigned by twelve knights of the county (who thus resembled a Grand Jury) and were already under grave suspicion;[[196]] the ordeal, then, could only say not proven. Moreover, it would appear from various sources that the tests and trials were frequently tampered with,[[197]] the elaborate ritual giving plenty of opportunity;[[198]] at least one king scoffed at priestly acquittals.[[199]]
After incurring the disapproval of many Popes, the ordeals were condemned at the fourth Council of Lateran in 1215, and by the eighteenth canon priests were forbidden to pronounce their blessing upon them.[[200]] The ordeals were abolished in England in the reign of Henry III. and the juries took their place.[[201]]
Another species of ordeal, and certainly another means of escape from the criminal law, was the wager of battle. This very ancient mode of trial[[202]] was introduced into England by the Normans under William I. If a man made a charge against another, and proofs of guilt were not obvious and overwhelming, the latter could demand trial by battle,[[203]] unless the complainant were over sixty years old or were sick and infirm,[[204]] or laboured under some physical disability,[[205]] in which case he might choose the ordeal.[[206]] Priests, infirm persons, and women might have champions to represent them.[[207]] The knights fought with their usual weapons,[[208]] the plebeians with staves forty-five inches long, which were tipped with iron heads shaped like rams’ horns.[[209]] They were to be bareheaded, barefooted, and close-shaven; and so they fought till death or surrender,[[210]] at first with the clubs, and afterwards, failing them, in hideous grapple, killing as best they could. If the accuser were defeated he could be committed to gaol as a calumniator,[[211]] but was not to lose life or limb; he was, however, fined sixty shillings and lost civil rights.[[212]]
If the person who was accused—were he knight or peasant—yielded, he was then forthwith hanged or beheaded as being guilty.[[213]] If, however, he prevailed in the combat or defended himself till the stars came out,[[214]] he might leave the field as being acquitted,[[215]] unless, perchance, the justices desired to put him on trial for something else, which they occasionally did.
The custom of trial by battle, along with all other kinds of ordeals,[[216]] dropped out of practical usage during the thirteenth century,[[217]] but continued the law for five hundred years afterwards. In 1818 it was recalled into action.[[218]] One Abraham Thornton was strongly suspected of having outraged and murdered a girl, Mary Ashford. Although he was acquitted when tried by a jury, he was immediately accused by her brother and heir-at-law, and claimed to defend by the wager of battle. The fight was refused by the plaintiff, and shortly afterwards there was passed “An Act to abolish Appeals of Murder, Treason, Felony, or other Offences ... and Wager of Battel,”[[219]] so it could not be claimed again.
Another haven of refuge from the clutches of the State was found within the pale of Sanctuary. Although, like prayer or sacrifice,[[220]] existing round the globe from the beginning, we may confine ourselves to Christian shelters, as they alone affected our laws.
The early Church doubtless afforded refuge as soon as it possessed the power to do so, and gave asylum from the reign of Constantine.[[221]] Laws were made on the right of refuge by Theodosius in 392,[[222]] boundaries of sanctuary were extended by Theodosius junior in the fifth century,[[223]] while many kinds of offenders were debarred from it under Justinian (483–565).[[224]]
The saving power of sanctuary[[225]] would seem to have been but feeble and tentative in the earlier period, since debtors to the State, Jewish converts who were debtors, heretics and apostates, the slaves of orthodox masters (the slaves of heretics and heathens obtained their freedom[[226]]), and persons guilty of the more serious offences, were refused privilege.[[227]]
But the protection of the mighty Roman Church was to be something more than a mere respite for the lesser grades of offenders. In the year 511 a Council of Orleans[[228]] ordered that criminals who sought refuge in a church or house of a bishop should not be dragged forth from it. Even the slave given up to his master was not to be hurt by him. About a century later Pope Boniface V. (619–625)[[229]] commanded that none who had taken refuge should be abandoned. The same spirit is found in the Decretum Gratiani compiled in 1151. Pope Innocent III., in a letter written in 1200,[[230]] ordered that only night robbers, bandits, and persons doing violence within the church should be given up.[[231]] And this we find reaffirmed by Gregory IX. in the year 1234.[[232]] In 1261 Boniface, Archbishop of Canterbury, in his Constitutions[[233]] expressly forbade that any obstacle should be placed in the way of food being brought to such as were in a sanctuary—so much had the Church increased in power since Alfred’s time—and that any should be molested who, having taken it, had forsworn the country.[[234]]
The exiles to whom this thirteenth-century archbishop alludes were persons who had fled into churches, where they could then claim refuge for forty days.[[235]] The buildings were watched that no one should escape, and if a man got away the parish was fined. At the end of this period the refugees must surrender,[[236]] but they might make an oath before the coroner admitting their guilt, and also promising to quit the realm. A road and port of destination were then assigned them,[[237]] and they might travel thither “with a wooden cross in their hands, barefooted, ungirded, and bareheaded, in their coats only.[[238]] And,” said the king, “we forbid any one under peril of life and limb to kill them so long as they are on their road pursuing their journey.”[[239]] But they would forfeit goods and chattels if they had any.[[240]]