[501] Seriatim de verbo ad verbum. (Fleta L. 1. c. 21. s. 2.) Sufficit si communiter se defenderit dum tamen de causa: (Ibid.) a greater strictness in pleading being required on the part of the accuser than the accused.
[502] So great, indeed, is the crime, says Bracton, that scarcely is it permitted to the Heirs that they should live. (118.) In speaking of Treason, Bracton warms with his subject; and the grave Lawyer starts into the animated Orator.
[503] A Husbandman, says Skene. (Reg. Maj.) I translate the word literally, and refer the Reader to the last passage of the present chapter. Vide Mirror c. 2. s. 28.
[504] Mahemium is said to be derived from the old French word, mehaigne. (Co. Litt. 126. a. 288. a. Cowell and Spelm. Gloss.)
[505] The trial by Ordeal, the favorite offspring of Superstition, has been by Fleury, Le Brun, and others, supposed to be derived from the Ancients, because Pliny (L. 8. c. 2.) mentions a family in Tuscany, upon whom the sacred fire, made in honor of Apollo, had no effect. But M. Houard, with much more appearance of reason, imagines, that it originated from the Miracles attributed by the Christians to their Saints. (Traités sur les coutumes Anglo-Normand. Tom. 1. p. 577.) However that may be, this mode of Trial existed here so early as the Reign of Ina; and William the first found it in use in this country, when he mounted the throne. His Normans, attached by early habit to the Trial by Duel, rejected a mode of decision, which appeared to them as a superstitious formality, though it was still suffered to be resorted to by old and maimed men, and by women. According to the Laws of Ina, the accused had the choice of the Trial by fire, or that by water. If he preferred the former, an Iron was prepared that weighed three pounds at the most. No person, except the Priest, whose duty it was to preside on the occasion, entered the Temple, after the fire destined to heat the Iron was kindled. The Iron being placed upon the fire, two men posted themselves on each side of the Iron, to determine upon the degree of heat it ought to possess. As soon as they were agreed upon this point, the same number of men were introduced ab utroque latere, and they also placed themselves at the two extremities of the Iron. All these witnesses passed the night fasting, &c.
At day-break, the Priest, after sprinkling them with the holy-water, and making them drink, presented them with the Book of the Evangelists to kiss, and then crossed them. The Mass then began. From that moment, the fire was no more increased: but the Iron was left on the embers, until the last Collect. That finished, the Iron was raised, and the most profound silence was observed, in praying the Deity to manifest the truth. At this instant, the accused took the Iron into his hand, and carried it to the distance of nine feet, juxta mensuram pedum ejus. The Trial being ended, the hand of the accused was bound up, and the bandage sealed; and, three days after, the hand was examined, to ascertain whether it was or not impure, which M. Houard, thus explains: ce qui doit, je crois, faire entendre que l’on n’étoit pas coupable, quand la main conservoit des marques de brûlure mais seulement lorsque la brûlure tomboit en supuration. (ubi supra.) But, if the accused elected the Trial by Water, then, the Water was placed in a Vessel, and heated to the highest degree. For inferior Crimes, the accused plunged his arm up to the wrist: for crimes of deeper dye, he plunged it up to the Elbow. In every other part of the ceremony, the two species of Trial by water and fire agreed. (LL. Inæ c. 77.) The Mirror coincides with the text of Glanville, (c. 3. s. 23.) and Lord Hale informs us, “that in all the time of King John the purgation per ignem et aquam, or the Trial by Ordeal, continued, as appears by frequent Entries upon the Rolls; but, it seems to have ended with this king, for I do not find it in use in any time after.” (Hist. Com. Law. 152.)
[506] Vide Bracton 119. b. Britton c. 17. s. 1. Dial. de Scacc. L. 2. s. 10. The modern French Code gives the treasure to the person who finds it, if the owner of the Estate: if not, half to him, and the other half to the owner of the Estate. (Code Napoleon.)
[507] Yet see LL. Hen. 1. c. 63. Ed. Wilkins.
[508] At the time of Bracton, a probable presumption of a man’s having possessed himself of treasure-trove, arising from his sudden dressing or living in a higher style than he had been accustomed to, was held a sufficient ground to commit the party to Gaol. (120. a.)
[509] Vide Fleta L. 1. c. 23. Bracton 120. b. 134. a.