uld be subjected to it. Montesquieu answers the objection,
which he foresaw would be made, by remarking, that women might have
avoided this proof, if they could find a champion to combat in their
favor; and he thinks a just presumption might be formed against a woman
of rank who was so destitute of friends as to find no protector. It must
be owned that the barbarous people all over Europe were much guided by
presumptions in all their judicial proceedings; but how shall we
reconcile all this with the custom of the Anglo-Saxons, among whom the
ordeal was in constant use, and even for women, without the alternative
of the combat, to which it appears this people were entire strangers?
What presumption can arise from the event of the water ordeal, in which
no callosity of hands, no bravery, no skill in arms, could be in any
degree serviceable? The causes of both may with more success be sought
amongst the superstitious ideas of the ancient Northern world. Amongst
the Germans the administration of the law was in the hands of the
priests or Druids.[64] And as the Druid worship paid the highest respect
to the elements of fire and water, it was very natural that they who
abounded with so many conjurations for the discovery of doubtful facts
or future events should make use of these elements in their divination.
It may appear the greater wonder, how the people came to continue so
long, and with, such obstinacy, after the introduction of Christianity,
and in spite of the frequent injunctions of the Pope, whose authority
was then much venerated, in the use of a species of proof the
insufficiency of which a thousand examples might have detected. But this
is perhaps not so unaccountable. Persons were not put to this trial,
unless there was pretty strong evidence against them, something
sufficient to form what is equivalent to a _corpus delicti_; they must
have been actually found guilty by the _duodecemvirale judicium_, before
they could be subjected in any sort to the ordeal. It was in effect
showing the accused an indulgence to give him this chance, even such a
chance as it was, of an acquittal; and it was certainly much milder than
the torture, which is used, with full as little certainty of producing
its end, among the most civilized nations. And the ordeal without
question frequently operated by the mere terror. Many persons, from a
dread of the event, chose to discover rather than to endure the trial.
Of those that did endure it,