exhorted by the priest during Mass to confess his guilt if he were guilty; if he persisted in maintaining his innocence then—
“let the hands of the accused be bound together under the bent knees after the manner of a man who is playing the game of Champ-estroit. Then he shall be bound around the loins with a rope strong enough to hold him; and in the rope will be made a knot at the distance of the length of his hair; and so he shall be let down gently into the water so as not to make a splash. If he sinks down to the knot he shall be drawn up saved; otherwise let him be adjudged a guilty man by the spectators.”2
Still another variety of ordeal was that of the cursed morsel, which was used only for the trial of clergy. This consisted in making the accused swallow a piece of food in which was concealed a feather or such like; if he was successful, he was innocent, but if he choked he was guilty. Although the Church adopted the ordeals which it found in use among the populace, some of the more critical clergy had misgivings. Then also there was obviously the possibility of the priest manipulating the ordeal, and Peter the Chanter, a celebrated theologian of the university of Paris (ob. 1197), suggests that he had some sort of moral responsibility for the rightness of the result.1 Its abolition was rendered all the more difficult by the system of fees which grew up around it—always a powerful obstruction in the way of reform. A particular church, like St. Peter’s, Northampton, might have a monopoly of the proceedings;2 elsewhere, the archdeacon might be entitled to dues—as at Coventry where he received thirty pence for each ordeal.3
In the great majority of cases the ordeal was the accused’s mode of defence; yet on rare occasions we may find a prosecutor offering to undergo an ordeal himself in proof of his accusation,4 and in two cases of 1202 the accused was given the choice of bearing the iron himself or of letting the accuser do it—and naturally elected the latter procedure.5 Countless varieties of ordeal are still in use in different parts of the world among primitive tribes.6
WAGER OF LAW
The “wager of law” which we have just mentioned, although still essentially an ordeal, contained features which give the impression that its principle was rather more rational. The party who was called upon to make his law had to find a number of people, twelve or some other number fixed by the court according to circumstances, and then take a solemn oath that he was innocent. His companions, or “compurgators” as they were called, then swore that the oath which he had taken was clean.7 In other words, the court calls upon the accused to produce a specified number of people (occasionally from a particular class or even from the names on a given list) who are prepared to swear that in their opinion his oath is trustworthy. They do not swear to the facts of the case, but merely to their judgment that the accused is a credible person. Wager of law, therefore, reduces itself to a character test; in the earlier period when there were strong religious sanctions surrounding the oath it is clear that a disreputable person would have difficulty in finding compurgators. Cases of failure to make one’s law do occur from time to time in the records.8 The Church used it considerably under the title of “Canonical Purgation” in circumstances where other modes of proof were impossible, and long after the Reformation it survived in ecclesiastical courts. Opinion as to its value seems always to have been divided. The passage we have quoted from the Assize of Clarendon1 makes it clear that the Crown had little respect for it, at least as a defence to criminal charges. On the other hand, certain towns, and notably the city of London, stubbornly retained compurgation as a defence to charges even of felony. They seem to have regarded it as a valuable privilege, which is surely not without significance, for business interests, then as now, must have had the firm enforcement of criminal law often in mind. It should perhaps be noted that the privilege was restricted to actual members of the city and was not extended indiscriminately to all the inhabitants. The “great law” of London must have been a severe test. City officials chose the compurgators, eighteen east of Walbrook and eighteen west of Walbrook, subject to challenges by the accused; if the charge was homicide, the failure of any one of the thirty-six compurgators would be enough to send the accused to the gallows.2
In civil matters, however, there are signs that it had a place; contemporaries seem to have regarded it as superior in some cases to witness proof.3 The citizens of London as late as 1364 obtained a statute preserving their right to wage law as a defence to debts which were claimed on the evidence of a merchant’s books—it is significant that a mercantile community should consider compurgation successfully performed as more weighty evidence than a merchant’s accounts.4 In the actions of debt and detinue wager of law as a defence lasted until the nineteenth century. The courts in such cases endeavoured to substitute jury trial as far as possible, both by developing alternative actions and by strictly defining those few cases in which it lay. It was not finally abolished until 1833.5
TRIAL BY BATTLE
The Normans introduced trial by battle—unless, indeed, “trial by battle may well have been known in the Danelaw throughout the tenth century”.6 In civil cases it was not fought between the parties themselves, but between their respective champions. The ancient formula suggests that the champion was originally a witness who was also a tenant bound by homage to defend his lord’s title, and that a judicial duel between contradictory witnesses was allowed to decide the rights of the parties. The champion’s regular oath (which soon became a matter of mere form)1 stated that his father on his deathbed had informed him that the plaintiff had the right which was then in dispute, and charged him to maintain that right with all his power. We have already mentioned that when the county court recorded its proceedings for the purpose of review by the Court of Common Pleas, a party might dispute the accuracy of the record and compel the county to defend it by battle. We very soon find from the rolls that there was a professional band of champions who undertook business all over the country; courts would arrange the dates of battle so that the champions could fit in their engagements conveniently. Some very great landowners, such as the larger monasteries, were so constantly involved in litigation that they maintained their own full-time champions. The names of these champions constantly appear on the rolls, and we sometimes hear of a champion’s “master” or manager,2 and of a champion who abandoned his client because the other side offered him a premium.3 It is therefore not surprising that a bishop should have regarded a champion as unsuitable for holding a rectory.4 But in criminal cases battle was a much more serious affair. It lay when a private person brought a criminal charge against another, and was fought by the accuser and accused in person. It was deadly; if the defeated defendant was not already slain in the battle he was immediately hanged on the gallows which stood ready. As it only lay in these private proceedings (called “appeals of felony”) there was no question of trial by battle where the accused had been indicted or where the Crown was a party.5
A curious incident in 1774 throws light upon the perverse uses to which history can be put, especially by those who have given but little thought to it. Events in Boston decided the English Government to improve the administration of justice in Massachusetts by means of a bill which inter alia abolished battle on appeals of murder. This proposal roused opposition in England from those who affected to regard trial by battle as a great pillar of the constitution, and in the end it was withdrawn on the more liberal grounds that parliament ought not to restrain the liberties of the colonies.1 A last attempt to bring an appeal of murder in 1819 was frustrated by a hasty act abolishing appeals and also trial by battle in real actions.2
These, then, were the methods of proof available to the justices when confronted by the crowd of suspects brought before them through the presentment of the juries of the hundreds and vills.3 As for those whose guilt was beyond question, no difficulty arose. They had already been dealt with by very summary methods (which can hardly be called a trial) immediately upon their capture.4
It will be seen that there was very little choice. A criminal could be tried by battle only at the suit of a private
