forbidding blood and suffocation. Would they forbid blood, and yet enjoin the eating of blood too? 3. The best way for a pious man1 is to address himself to the sacrament with that reverence and devotion, as if Christ were really there present. CXXXIX. TRAITOR. 'Tis not seasonable to call a man traitor, who has an army at his heels. One with an army is a gallant man. My Lady Cotton was in the right, when she laughed at the Duchess of Richmond for taking such state upon her, when 10 she could command no forces. She a duchess! there is in Flanders a duchess indeed; meaning the arch-duchess. CXL. I. TRIALS are one of these three ways; by confession; or by demurrer, that is, confessing the fact, but denying it to be that wherewith a man is charged; for example, denying it to be treason, if a man be charged with treason: or by a jury. 2. Ordalium was a trial, and was either by going over 1 The best way for a pious man, &c.] with heading Transubstantiation' to This section appears in H. under which subject it seems more properly heading Sacrament.' In H. 2, it to belong. appears as an appendix to the MS. 1. 19. Ordalium was a trial] There were several forms of the ordeal. In the aquae frigidae judicium—una ex purgationibus vulgaribus quas judicia Dei appellabant-the suspected or accused person was plunged into deep water; if he swam he was held guilty, if he sank innocent. In the aquae ferventis judicium, the accused had nine red hot ploughshares, (as in the case of Queen Emma, accused for lying with the bishop of Winchester, over which she being led blindfold, and having passed all her irons, asked when she should come to her trial;) or 'twas by taking a red hot coulter in a man's hand, and carrying it so many steps, and then casting it from him. As soon as this was done, the feet or the hands were to be bound up, and certain charms to be said, and a day or two after to be opened; if the parts were whole, the party was judged 10 to be innocent; and so on the contrary. 3. The rack is used nowhere as in England. In other countries 'tis used in judicature, when there is a semiplena probatio, a half proof against a man; then to see if they can make it full, they rack him if he will not confess. But here in England they take a man and rack him, I do not to plunge his bare hand and arm into boiling water. Of the same kind was the judgment by hot iron, to which Selden here refers. See Ducange, Gloss., under Aquae and Ferrum Candens. Muratori adds, under 'Judicium ferri candentis,' the passing blindfold over hot ploughshares, and a further form known as the judicium crucis, in which the accused had to stand with his arms held out in the form of a cross, while a chapter in the Bible or some of the Psalms were read. If he could maintain the posture he was pronounced innocent, if he gave way he was guilty. See Muratori, Antiq. Ital. Dissert. 38, p. 611 ff. 1. 1. as in the case of Queen Emma] The account of Queen Emma's trial is given, as in the text, in Fabyan's Chronicle, pp. 224-5 (Ellis's ed. 1811). The ordeal, as might be assumed, was under the management of her episcopal friends. The Archbishop, Robert, who had declared against her, was not present. 1. 14. But here in England they take a man &c.] The infliction of torture was certainly against the English common law and against the Magna Charta, but it was no less certainly of regular and frequent occurrence. As to its illegality, we have, e. g., the statement of Chief Justice Fortescue, quoted and endorsed by Coke, and we have the declared opinion of the judges in Felton's case (November, 1628): 'That he ought not by the law to be tortured by the rack, for no such punishment is known or allowed by our law.' 'And yet' (says Jardine, in his Reading on the use of torture in England) 'it is an historical fact that, anterior to the Commonwealth, torture was know why, nor when; not in time of judicature, but when somebody bids. 4. Some men before they come to their trial, are cozened to confess upon examination, upon this trick. They are made to believe somebody has confessed before them; and then they think it a piece of honour to be clear and ingenuous1, and that destroys them. CXLI. TRINITY. THE Second Person is made of a piece of bread by the Papist; the Third Person is made of his own frenzy, malice, 10 ignorance and folly, by the Roundhead. To all these the spirit is intituled. One the baker makes, the other the cobbler; and betwixt these two, I think the First Person is sufficiently abused. 1 Ingenuous] ingenious, MSS. 2 Intituled, H. 2] intitled, H. always used, as a matter of course, in all grave accusations, at the mere discretion of the King and the Privy Council, and uncontrolled by any law besides the prerogative of the sovereign.' He traces the practice from Henry VIII's reign down to May 1640, Archer's case, which is (he says) 'the last recorded instance of the infliction of torture in England, and as far as I have been able to discover the last instance of its occurrence.' Jardine holds that, though not lawful by the common law, it was lawful as an act of prerogative, a power superior to the laws and able to suspend the laws; but it may be fairly questioned whether this strain of prerogative over law can be allowed to have been lawful in any sense. See' Prerogative,' sec. I. It is curious to find Grotius and other foreign jurists praising the law of England for its singular humanity in conducting criminal proceedings without the use of torture, and devising ingenious reasons to account for it; while Selden, well acquainted with the facts, compares English practice disadvantageously with that of other countries -an opinion which Jardine confirms by contrasting in detail the arbitrary and uncontrolled licence of the English method with the limitations and definite rules which prevailed in countries whose code was based on the Roman law. Reading, &c., p. 67. CXLII. TRUTH. I. THE Aristotelians say, all truth is contained in Aristotle, in one place or another. Galileo makes Simplicius say so, but shews the absurdity of that speech, by answering, that all truth is contained in a lesser compass, viz*. in the alphabet. Aristotle is not blamed for mistaking sometimes, but Aristotelians for maintaining those mistakes. They should acknowledge the good they have from him, and leave him when he is in the wrong. 10 There never breathed that person to whom mankind was more beholden. 2. The way to find out the truth is by others' mistakings: for if I was to go to such a place, and one had gone before me on the right hand, and he was out; another had gone on the left hand, and he was out; this would direct me to keep the middle way, that peradventure would bring me to the place I intended to go. 1.3. Galileo makes Simplicius say so, &c.] The passage occurs in the second of a series of imaginary conversations on mathematical and physical science, between Salviati and Sagredo, the spokesmen for modern science, and Simplicius, the Aristotelian commentator. Simplicius asserts that, with the aid of the syllogistic method, the man who can make a proper use of Aristotle's writings 'saprà cavar da' suoi libri le dimostrazioni di ogni scibile, perchè in essi è ogni cosa.' Sagredo replies, banteringly, 'Ma, Signor Simplicio mio... questo che voi, e gli altri filosofi bravi, farete con i testi d'Aristotile, farò io con i versi di Virgilio, o di Ovidio. . . . Ma che dico io di Virgilio, o di altro poeta? io ho un libretto assai più breve di Aristotile e d'Ovidio, nel quale si contengono tutte le scienze...e questo è l' alfabeto; e non è dubbio che quello, che saprà ben accoppiare e ordinare questa e quella vocale con quelle consonanti o con quell' altre, ne caverà le risposte verissime a tutti i dubbj, e ne trarrà gli insegnamenti di tutte le scienze e di tutte le arti.' Opere di Galilei, vol. xi. p. 266 (Classici Italiani, Milan, 1808–1811, in 13 vols.). 3. In troubled water you can scarce see your face; or see it very little, till the water be quiet and stand still. So in troubled times you can see little truth. When times are quiet and settled, then truth appears. CXLIII. UNIVERSITY. 1. THE best argument why Oxford should have precedence of Cambridge, is the act of parliament, by which Oxford is made a body; made what it is; and Cambridge is made what it is; and in that act it takes place. Besides, Oxford has the best monuments to show. 2. 'Twas well said of one, hearing of a history lecture to be founded in the university; Would to God, says he, they would erect a lecture of discretion there, this would do more good an hundred times. 3. He that comes from the university to govern the state, 1.6. The best argument why Oxford &c.] This question of precedence was raised in the House of Commons in January, 1640–1, when 'the Bill of four subsidies for the relief of the King's army and the northern counties having been drawn by a Committee, Cambridge was placed before Oxford in the same.' This gave rise to a hot and prolonged debate. Sir Simonds D'Ewes spoke at length in favour of giving Cambridge the precedence, on the ground that Cambridge was a renowned city before Oxford, and a nursery of learning before Oxford, so that Cambridge was in all respects the elder sister. So sharp was the contention that on that day 'the House came not to a final determination in the reading of the Bill.' See, Two Speeches by Sir S. D'Ewes (printed in 1642), and Nalson, Collections, i. 703. 1. 7. the act of parliament &c.] This is 13 Elizabeth, ch. 29, 'An Act concerning the incorporations of the Universities of Oxford and Cambridge,' in which Oxford is named before Cambridge in several places. Once only, towards the end of the Act, we have 'the said Universities of Cambridge and Oxford.' ΙΟ |