HARVARD

LAW REVIEW.

VOL. XV.

MAY, 1902.

No. 9.

MODES OF TRIAL IN THE MEDIEVAL BOROUGHS OF ENGLAND.

THE

HE boroughs of medieval England doubtless generated some new ideas of government and were a progressive element of society; but historians are inclined to ignore the fact that for a long time after the Norman Conquest the burgesses exhibited a strong conservative spirit in the maintenance of Anglo-Saxon legal usages. Traces of these old usages are visible in the town charters and customals of the twelfth and thirteenth centuries, a careful study of which would probably supplement our meagre knowledge of Anglo-Saxon law. Among the instructive vestiges of a remote past imbedded in town muniments those concerning legal procedure are particularly interesting. The adherence of the burgesses to the older modes of trial is a subject which has never been adequately investigated,1 and concerning which it is difficult to formulate general conclusions owing to the divergence of local usage and the meagreness of printed records.

To understand the peculiarities of procedure in the boroughs we must at the outset recall to mind the general history of procedure in the royal courts. In the Anglo-Saxon period justice was administered mainly in the local popular tribunals of the shire, hundred, and borough, and the most common forms of trial were compurgation and the ordeal of fire or water. After the Norman Conquest the king's court became the centre of gravity of the judicial sys1 One of the best accounts will be found in Thayer's Treatise on Evidence, 24-4

tem, and in suits tried by that tribunal the duel competed with compurgation and the old ordeals as a favorite test of justice. Henry II.'s Assize of Clarendon (1166) enacted that all indicted criminals should go to the ordeal of water; but about the year 1219 the fire and water tests were abolished and were soon replaced by the jury. In civil cases, also, this latter mode of trial rapidly gained ground since Henry II.'s reign, so that by the middle of the thirteenth century it was applied by the royal judges to most civil and criminal suits. But throughout the Middle Ages the duel and compurgation continued in use in the royal courts to a limited extent; the former to determine petitory actions and less frequently for the trial of persons appealed of felony; while compurgation was resorted to in some civil actions, especially to deny a debt or to prove that a party had not been summoned to appear in court. In such cases the denial would be supported with "the twelfth hand," i. e., with eleven oath-helpers, whom the chief swearer would be allowed to choose.2

I. The Ordeal. We are now prepared to trace the history of the various forms of trial in the boroughs. As regards the ordeals of fire and water, which received a deathblow throughout Western Europe by the enactment of the Lateran Council of 1215, little need be said, and little can be ascertained from an examination of the sources. They were used by litigants in Anglo-Saxon towns; 3 they are referred to in an early, undated customal of Preston ;* and, according to charters granted by Roger de Lacy to Pontefract in 1194, and by Maurice Paynell to Leeds in 1208, a person accused of larceny for the second time was to disprove the charge by the water ordeal or by combat.5 On the other hand, a contemporary biographer of Thomas Becket informs us that in criminal

1 Wm. Salt Soc. Collections, vi. pt. i. 71, 130, 134, 137, 204, xi. 58; new series, iii. 174, 175, iv. 99.

2 On the older modes of trial (including trial by witnesses) in the royal courts, see Thayer, Treatise on Evidence, 1-46; Pollock and Maitland, English Law, bk. ii. ch. ix. § 4. Compurgation also survived in the ecclesiastical and seignorial tribunals: Pollock and Maitland, 1st ed., i. 426, 427, ii. 632.

8 Athelstan, vi. c. 9; Ethelred, iv. cc. 3, 7: Schmid, Gesetze, 169, 219, 221.

4 English Hist. Review, xv. 497. The customal is of the twelfth or thirteenth century.

5 Hist. MSS. Com., viii. 270; Boothroyd, Pontefract, app. ii.; Wardell, Leeds, app. vi. Roger de Lacy asserts that the laws which he grants to Pontefract are those of Grimsby. During the twelfth and thirteenth centuries the fire and water ordeals were also used in some continental towns to rebut accusations: Lea, Superstition and Force, 4th ed., 202; Keutgen, Urkunden, 204, 207, 552.

accusations the ordeal of fire or water could not be imposed upon citizens of London, Oxford, and other towns against their will.1 This evidence, coupled with our information regarding the prevalence of compurgation, indicates pretty clearly that the fire and water tests were not prominent, at least in criminal cases, during the second half of the twelfth century.

II. The Duel. - Judicial combat was regarded with aversion by the burgesses, whose vocations naturally made them inclined to adopt more peaceful modes of litigation. A London record, seemingly of the thirteenth century, condemns it as an instrument of justice, on the ground that "the strong might put to shame the weak, the young the old, for the old and the weak would not be able to make proof by battle against the strong and the young.' A well-known law of William the Conqueror enabled the conquered Anglo-Saxons to avoid it in criminal suits; and exemption from the duel (quod nullus burgensis faciat duellum) is one of the most common privileges mentioned in the town charters of the twelfth and thirteenth centuries. The franchise thus granted is often limited to appeals of felony — criminal accusations brought by one person against another,5 for these were crown pleas reserved for the cognizance of the royal justices. Even when appeals are not expressly mentioned, many charters add to the exemption from battle the stipulation that "in crown pleas" the burgesses may clear themselves by a compurgatorial oath, or according to the ancient custom of the town, or according to the custom of some other town. In fact the burgesses desired above all to secure protection from the duel in criminal charges jeopar

1 "Non examine aquæ vel ferri candentis se purgabunt nisi sponte elegerint: " Materials for the History of Becket, iv. 148. The references in the Pipe Rolls to the water ordeal (judicium aquæ or juisium) in London and Windsor probably relate to the execution of the Assize of Clarendon and throw no light on our subject: 12 Henry II., 132; 13 Henry II., I; 14 Henry II., 198; 16 Henry II., 16.

2 Liber Albus, 109.

8 Stubbs, Select Charters, 84.

♦ Ibid. 108, 112, 266, 267; Rotuli Chartarum, ed. Hardy, 5, 20, 45, 56, 78, 83, 91, 135, 138, 175, 211, 217, 219; Madox, Firma Burgi, 28; Chartæ Hiberniæ, 6, 13, 20, 22, 24, 33, 36, 37, 39; Liber Albus, 128-164; Hist. MSS. Com., ix. pt. i. 166.

5 Chartæ Hiberniæ, 6, 12, 13, 20, 22, 24, 26, 36; Rotuli Chartarum, 78; Stubbs, Select Charters, 112; Boldon Buke, ed. Greenwell, app. xli. Cf. Liber Albus, 109; Select Pleas of Crown (Selden Soc.), 39.

6 Rotuli Chartarum, 20, 56, 83, 217, etc. The charter of Dunwich, 1215, seems to be the only one that specifies exemption from the duel in suits concerning land: "duellum non faciat . . . neque de terra neque de latrocinio neque de felonia neque de alia re, nisi tantum de morte hominis exterioris" (Ibid. 211).

dizing life or limb, which were tried in the eyre or curia regis; in their own municipal courts they were sufficiently protected by "ancient custom," which seems to have excluded judicial combat from both civil and criminal pleas.1

Writers who have heretofore examined this subject have, however, failed to observe that in certain cases the duel might be waged even in some of the most privileged boroughs.2 This could be done in London in the twelfth and thirteenth centuries if both parties consented and waived the franchise of the city. At Leicester, according to the finding of a jury in 1253, the duel was allowed, at least in pleas of land, until the time of Henry I. At Newcastleupon-Tyne in the reign of Henry I an appeal of treason had to be disproved by combat; and the same rule seems to be referred to in a grant of Richard I. to the citizens of York authorizing them to clear themselves by compurgation in all appeals of felony, except when they are appealed "of the body of the king." 5 A charter of Hugh Pudsey (temp. Hen. II.) states that a burgess of Wearmouth who is accused by a villain may defend himself by compurgation, except when accused of such felony as demands proof by combat. According to charters of Bristol, 1188, and Dunwich, 1215, wager of battle was permitted when a burgess was appealed for the death of a stranger. The charters of Pontefract and Leeds, already referred to in connection with the old ordeals, grant that a burgess may purge himself of a second accusation of larceny by combat ; and in the thirteenth century the burgesses of Kilkenny, Carlow, and Rosbercon are exempted from the duel except for the death of a man, larceny, and other pleas unde duellum rationabiliter fieri debeat. In the fourteenth century it was the custom at Fordwich to require a stranger (extraneus probator) who appealed a burgess of felony to prove his charge by fighting with the accused in the

1 See the thirteenth century customals of Ipswich, Hereford, and Winchester: Domesday of Ipswich, 32, 36; Johnson, Customs of Hereford, 38; Archæological Journal, ix. 75. Cf. Fleta, bk. ii. c. 55; Lyon, Dover, ii. 273; English Gilds, ed. T. Smith, 361; Statutes of the Realm, 1810, i. 218.

2 This statement also applies to Scotch and continental towns: Lea, Superstition and Force, 200-206; Keutgen, Urkunden, 575; Innes, Ancient Laws, 7, 8, 11, 163. 8 Materials for the History of Becket, iv. 148; Liber Albus, 109.

4 Records of Leicester, ed. Bateson, i. 40-42.

Stubbs, Select Charters, 112; Drake, Eboracum, 204 (confirmed, 36 Henry III., ibid.).

• "Nisi de tali scelere appellatur pro quo recte se debeat per duellum defendere: " Boldon Buke, app. xli.

7 Seyer, Charters of Bristol, 6 (confirmed, 1252, ibid. 17); Rotuli Chartarum, 211. 8 Chartæ Hiberniæ, 33, 37, 39.

water of the river Stour. But the wording of most of these documents indicates that we are here dealing with exceptions to a municipal privilege or general rule of burghal law which excluded judicial combat from legal procedure; and if we may judge from the few court records of boroughs which have been printed, we may conclude that in practice this rule was rarely broken.

III. Compurgation.

We come now to a form of purgation which was doubtless in common use in the boroughs before the Norman Conquest,2 and was the dominant feature of burghal procedure in the twelfth and thirteenth centuries. This is evidently the mode of trial referred to in the clause of the early town charters which grants that crown pleas are to be determined according to the ancient custom of the borough.3 Historians of legal institutions who have investigated this part of our subject have drawn their material from a limited range of sources, and have not sufficiently emphasized the wide prevalence of the compurgatorial process in the criminal actions of burgesses before and long after its disappearance as a normal form of purgation in the criminal procedure of the royal courts.

Various documents of the twelfth century refer to its use in appeals of felony or crown pleas, which, as we have already pointed out, were usually tried before the royal justices, and hence were liable to be decided by the duel, unless the chartered rights of the townsmen authorized them to purge themselves by the oaths of their neighbors. According to the customs of Newcastle-upon-Tyne, compiled in the reign of Henry I., a burgess appealed by a burgess is to defend himself not by duel but by compurgation (per legem); and Henry I.'s charter to the citizens of London permits rebuttal by oath in crown pleas.5 A biographer of Becket, writing between the years 1170 and 1177, says that in crown pleas the citizens of London shall respond in

1 Hist. MSS. Com., v. 442; Woodruff, Fordwich, 229. See also various references to the duel in the customal of Preston (twelfth or thirteenth century): English Hist. Review, xv. 497-9, 512.

2 Ethelred, iv. cc. 3, 7: Schmid, Gesetze, 219, 221.

3 Above, p. 693. Cf. Liber Albus, 89–92.

4 Stubbs, Select Charters, 112.

5 Ibid. 108. This privilege was confirmed by every king of England from Henry II. to Henry IV.: Liber Albus, 129-65; Liber Custumarum, 248-64. Charters of John, Edward III., and Richard II. grant that for any crime the punishment of which should endanger life or limb the citizens are to be judged per legem civitatis: Liber Albus, 148, 153; Liber Custumarum, 250.