15 Feb 1804

Evidence

Circumstance

Subsequential

Ch. Divine

The cases in which supernatural evidence has been resorted to, present one main /natural/ distinction: - cases in which it was extracted without fraud - cases in which fraud suggested or regulated /presided over/ the extraction of it.

An example of the former case is that of Trial by Battle, fairly fought: and it is almost the only example.

An example of the other case is that of Trial by Ordeal: of which the modifications have been innumerable. Trial by Ordeal was virtually trial by the arbitrary and disguised will of those by whom the trial was conducted: that is in most if not all instances, by the Minister of religion - of the national religion howsoever modified.

In comparison of the unfraudulent mode, the fraudulent was not so absolutely mischievous as at first sight might be supposed. In the unfraudulent mode, the chance in favour of justice might be an equal chance, but could not be any thing more. The fraudulent mode was not incapable of being made an instrument in the hands of justice: (viz: either under its own name or that of mercy.) It transferred the decision from the man whose power was constituted[?] by force, to the man whose power was constituted by fraud: if the latter were /was/ the better man of the two, substantial justice had so much the better chance. It might be resorted to as a means of destroying those who without it could not be destroyed: it might be resorted to as a means of saving those who without it could not be save.

/Under a suspicion of [...?]/ A Queen of England suspected of [...?] was set to play at blind-man's buff with red hot plough-shares instead of play-fellows: her guilt or innocence depended upon t eh holy hand that had the tying on of the handkerchief. Her honour stood the test, and her husband /the King/ was or was not satisfied /persuaded of her native[?] innocence/. If he was, the trial by plough shares was in that instance better than a modern English trial in the King's Bench.

In one of the barbarous nations of the middle ages in a criminal case of certain descriptions /no matter what description/, the defendant used to be set to plunge his hand into a vessel of water supposed to be boiling hot, and /and/ if innocent he was to draw a ring out from the bottom of it without the appearance of a scale. Guilt or innocence depended upon the operator who had the boiling of the water: and if any of the modes at present so well known of [...?] the appearance of boiling without heat happened to be known to him, the management of the trial would be so much the more easy.