A Concise History of the Common Law. Theodore F. T. Plucknett

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 prosecutor, and not at suit of the Crown; as for compurgation, the Assize of Clarendon tells us that a successful defence by this means was not very convincing, and even imposes punishment upon those who thereby clear themselves, if they are of bad character generally. Only the ordeal remained, and this was no doubt the general method of trial at the end of the twelfth century—tempered perhaps by the discretion of the justices, who may have allowed their private judgment upon the guilt or innocence of the accused to overrule the result of the ordeal if it turned out obviously unsatisfactory.

ABOLITION OF THE ORDEAL

The opposition within the Church to trial by ordeal⁵ which dates from the days of Agobard, bishop of Lyons (d. 840), was particularly constant at Rome. Remoter provinces, however, were faced by a more primitive populace. Regino of Prüm (c. 906) admitted the ordeal into his work on canon law, and so did Burchard of Worms later still (1008-12), who was so dismayed at the prevalence of perjury, that the ordeal seemed to him preferable to the oath as a mode of trial.⁶ A century later still, in 1116, Ypres received a charter abolishing both ordeals and trial by battle.⁷ It was yet another century before reform reached England when Innocent III in the Fourth Lateran Council (1215) forbade clergy from performing any religious ceremonies in connection with ordeals. This, of course, robbed the ordeal of all religious sanction, and to all intents and purposes abolished it as a regular means of trial (although it seems that in some localities it still persisted with the connivance of disobedient clergy). Henry III’s government immediately recognised the decree, and appreciated the extremely difficult position which it created, for the only remaining method of trying suspected criminals had been forbidden by the Church. A writ to the Justices in Eyre was therefore issued in 1219 giving temporary instructions how to proceed until further order was taken. It reads as follows:

      “The King to his beloved and faithful... Justices Itinerant... greeting: Because it was in doubt and not definitely settled before the beginning of your eyre, with what trial those are to be judged who are accused of robbery, murder, arson, and similar crimes, since the trial by fire and water (the ordeal) has been prohibited by the Roman Church, it has been provided by our Council that, at present, in this eyre of yours, it shall be done thus with those accused of excesses of this kind; to wit, that those who are accused of the aforesaid greater crimes, and of whom suspicion is held that they are