This marked the end of trials by ordeal as recognised by law. The process of extermination had long been in progress, but popular opinion was against reform, and certain of these curious customs survived. Although the clergy had at first taken part in these ceremonials, and presided over them in church, they came in time to discountenance them. The canon law declared against ordeals as being the work of the Devil, and a decree to this effect was issued in the eighteenth canon of the fourth Lateran Council in November, 1215. Upon this authority it was thought proper, says Blackstone (as had been done in Denmark a century ago), “to disuse and abolish these trials entirely in our courts of justice by an Act of Parliament, Henry III., according to Sir Edward Coke, or rather by an order of the King in Council.” The actual date of the abolition of ordeals by fire and water was 1261. On the Continent these forms of trial had been abolished by civil and ecclesiastical law much earlier, although in 1498 an attempt was made to test the doctrine of Savonarola by means of a challenge from one of his disciples to a Franciscan friar to walk through a pile of burning wood. Old customs die hard, and the incident is a curious and interesting instance of the persistence of a popular form of trial even among the members of a party by which it had been condemned.
On Symbols.
By George Neilson.
The wayward fancies of mankind are well illustrated in the diversity of symbolic observances, some never losing their meaning, some absolutely unintelligible in their historic form, and some as much characterised by a befitting dignity, as others are by the want of it. All once were self-explanatory and possessed a measure of propriety proportioned to the state of the people amidst whom they originated. But tradition is long, centuries elapse, each modifying a ceremony, and when the procedure emerges within the knowledge of record, it has often so lost touch with its surroundings, that it is hopeless to speculate how it arose.
Symbols are drawn from and applied to every field of human activity. Of course in a general sense man expresses himself only so, and a regular alphabet is but a comparatively trifling advance on the language of signs. What we call civilization, is at bottom little more than a clear recognition of certain symbols of government. The Queen’s crown, the Judge’s ermine, the Mayor’s mace, what are they else? The sceptre is only a glorified stick, of which the policeman’s baton is a humbler shape. Each embodies the great thought that behind it stands a nation’s determination to be ruled by law.
In the history of law, symbol and the traces of symbol meet us at every turn. The middle ages teemed with them. Roman law had bequeathed not a few. Perhaps the most wondrous of them all is one that has long ceased to have any legal connection, although its mark is all-powerful over civilisation. How daring was the imagination which prompted the choice, for the heraldic badge of Christianity, of the dread emblem of capital punishment by crucifixion! In the pure domain of the law of the early and middle ages, a perfect wilderness of symbols presents itself to eyes which strive to explore the origins of institutions.
Law is ever beset by a tendency towards formalism, and in early times a severe insistence upon ceremony, no doubt, gave prominence and prescriptive sanction to symbolic acts. Law and custom after all only mean that the way things were done yesterday is the safest way of doing them to-day. The acceptance of a common form implies a very large public consent, which is equally necessary to its abrogation, once it is accepted. No small part of its value lies in its certainty, “certainty which,” Coke well says, “is the mother of quiet and repose.”
Hence the fixity and longevity of many emblematic methods of performing acts affecting status or property rights. The constitution or discharge of slavery, or the transfer of a slave from one master to another, had a variety of set forms. A freeman might deliver himself to serfage by putting a leathern thong upon his neck. When a church was the donee, the ceremony might take place at the altar, and the man present himself there with cords round his throat. “Thus he offered himself,” says an old record, “to the Almighty Lord.” A coin or two on the head was also a customary part of the process. In the manumission or liberation of the slave, these coins struck off the head served the purpose of declaring him free, as did the companion symbol of open doors, or the placing him at four cross roads, and bidding him go whither he would. Another common symbol of enfranchisement was the delivery of an arrow, thought to denote the right confined to freemen of bearing arms.