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all his men. If the man's character was good he might be tried by "Compurgation." Bat, if he could not procure the requisite persons to swear to their belief in his innocence, or if his general character was bad, or he was a stranger,
lis had then to submit to the Ordeal.
- If the ordeal went against him, he had, for a Arst offence, usually to make bot (i.s., give com- pensation) to the accuser two fold and to pay to the lord his wer (a price which varied according to his station in life), and he had also to find sureties thereafter to abstain from evil. For a second offence the punishment was death or mutilation. In the olden days crimes of violence were not uncommon, and an eminent anthority points out that, of the 17 Laws of King Alfrel, no less than 34 deal with injuries resulting from unlawful violence The bot," or compensation, is prescribed with remarkable detail. Here is a specimen. If the great toe is struck off let twenty chillings he paid as bot. If it be the second toe, fifteen shillings." The others were valued, respectively, at nine shillings, siz shillings, and five shillings. It almost reminds one of the children's nursery rhymes about. This little pig went to market, &o,, &o." I may add that some serious crimes were botless, not to be parged by compensation at all.
it seems wonderful that the extraordinary system of trial by Ordeal could have lastey even so long as it did. It is not surprising that it was at last condemned by the Lateran Council in A.D. 1215. It was an appeal to the Almighty to work a miracle in attestation of the innocence of the accused person.
The tests were such that, in the absence of trickery which in some cases could not easily have been resorted to, the accused could not escape suffering and injury as preliminary to the final penalty inflicted because, the miracle not having been worked, he was held guilty of the charge. The handling of red hot iron, walking bare-foot over heated ploughshares, plunging the hand and arm into boiling water, must have afforded little chance of escape. In Ethelbert's laws it is said of the accused when found guilty. "Let him be smit. ten so that his neck break." While the punish meats in King Canute's time were regulated by the enactmout which said "Let his hands be cut aff or his feet or both, according as the deed
may be, and if he have wrought yet greater
wrong then let his eyes be put out and his nose and ears and his upper lip be cut off, or let him ba scalped, whichever of these those shall coun- sel whose duty it is to counsel thereupon, so that punishment be inflicted and also the soul be preserved.' There is a
quaint sound about the suggestion of salvation by scalp ing.
One would have thought the water orueal was scarcely a fair test. Sinking was a sign of in- nocence, floating the sign of guilt. Assuming the accused to sink it was not always deemed necessary to pull him out. Indeed one of the Archbishops required a rope to be tied to the accused, as otherwise he would be drowned un- ess he came to the surface when he would be deemed guilty and killed. Possibly the rope was only insisted on where it was desired to save the life of the accused.
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Another ordeal was that of the "accursed morsel;” a piece of hard dry bread specially con- secrated by the priest. The accused first called on the Deity to make the bread stick in his throat if he were guilty and then proceeded to slowly eat the morsel. It is said the great Earl Godwin was choked in that way.
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THE HONGKONG WEEKLY PRESS AND the trial of arms, and on that day in lists pre- sided over by the Sheriff or the itinerat Justices, the combat took place with all the solemnity. The charge was read over and the accused (appellant) swore on the Gospels to his belief in its truth. Then the accused, in like | manner, avouehed his innocence. Theu, armed in mode suited to their rank, the duellists began the encounter. The hour fixed for the com- mencemeat of the proceedings was generally an early one.
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[February 10, 1900.
Justios being in anɛ unknown language, those who are summoned and impleaded having no knowledge or understanding of what is alleged for or against them in the pleadings of their lawysts and attorneys who use a character not legible to any but persons practising the law.” &e. Thenceforth, English in plain hand. writing was to take the place of the quaint Latin and French.
No allusion is made in any Act of Parlia. ment prior to the middle of the 16th century, to the preliminary Inquiry of Justices into crimes, with a view to the committal of the ac cused for trial. The old practice in such mat ters was regulated by the Aots passed in 1554 and 1555, in Queen Mary's reign. Sir J. F. Stephen points out that, under the system established in the 18th century, the Magistrate acted the part of a public prosecutor, while under the present system he occupies the posi tion of a preliminary Judge. Under the old system the accused was fully questioned as to all the circumstances connected with his suppos. ed offence, while under the Act of Victoria he cannot be questioned at all.
JUSTICES OF THE PEACE, If the accused oonld disable his adversary, or To Edward III, we owe the Institution of make him ory "craven," or prolong the fight Justices of the Peace and the srigin of their jur. until the evening, he was declared guiltless of | isdiction which, in modern times, is so extensive the charge, and the accuser was fined and declar- | as regards the pauishment of triding offences ed. infamous. If, however, the acoused got and the preliminary investigation of more worsted, his lot, if yet alive, was hanging. Wa-serious crime. A vast improvement in the ger of battle could not be claimed if the acouser | mode of conducting such preliminary investi- was a woman, or a priest, or a child, or an old gations was effected by Sir John Jarvis' Acts man over sixty years of age. In those cases, at of 1849. first, compurgation or the ordeal were re- sorted to, but after the reign of John, Trial by Jury, then in its infancy, superseded the former methods. Appeal of Felony continued to exist side by side with Trial by Jury until the Tudor period. It then fell more and more into disuse until, by the time of the Stuarts, it was practi- cally lost sight of. It was not, however, speci- fleally abolished, and thus it happened that in| 1817 the “ Wager of Battle was claimed by a man named Thornton, aconsed of murder, and as the aconser declined the challenge, Thorn- ton had to be acquitted. Two years later the Appeal of Felony was abolished by the Act 59 Geo. III o. 6. Among recorded | instances of Wager by Battle may be men- tioued the battle by single combat which was fought before King William II. and the Peers in A.D. 1096, between Geoffrey Baynard and the Earl of Eu. Baynard having accused the Earl of high treason, conquered him in the fight and the Earl was accordingly deemed con- victed and was blinded and mutilated. Readers of Shakespeare will remember how the combat proposed between Henry Bolin broke (after wards Henry IV.) and Thomas Dake of Nor- folk in 1398 was forbidden by Richard II. when the combatants were in the Lists and | had gone through all the preliminaries so well | described by our great dramatist.
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ORIGIN OF TRIAL BY JURY,
Gradually, however, the payment of “1001
or money compensation for crime became abolished. Modern fives usually go to the Pablic Treasury and stand on a different basis. l'he distinction between a crime and a tort or private wrong, become well established. A crime began to be treated as a breach of the King's Peace and to be prosecuted by the Crown, though at the instance of a private
acouser. But when the Crown became a party to the proceedings, the wager of battle ceased to be appropriate. The sovereign could not be challenged to fight, and thus Trial by Jary came more into general uso. In the time presented by the hundred jury, a jury of twelve, of Edward III, when a prisoner had been
which may be called the Inquest Jury, were sworn to try the question of guilt or innocence. Such a jury brought in their verdict of their own knowledge of the facts of the and of the character of the accused.
case not
upon evidence adduced before them. Great F. Stephen, differ on the question whether,
authorities, such as Mr. Maitland and Sir J.
at first, the Inquest Jurors were the same as those who presented the prisoner for trial. But, in any case, it was probably not until the 15th century that the jurors began to find their verdicts simply on the evidence of witnesses
called before them.
INDICTMENTS FORMERLY IN LATIN,
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CRIMINAL LAW SINCE THE NORMAN CON- QUEST- WAGER OF BATTLE AND
TRIAL BY JURY, William the Conqueror did not abolish the It was in the reign of Edward I. that Indict. old Saxon modes of trial by ordeal and compur. ments were reduced to writing. The language gation, though, by the middle of the 13th cen-
was Latin and in that language, such is the tary, they had ceased to be used. He, how. force of custom, the written accusation against ever, introduced from Nermandy the Wager of the prisoner continued to be framed for Loro Battle, or trial by duel, of which Sir Walter than four centuries. It seems incredible, Scott gives us some spirited pictures in his but it is the fact, that all Criminal Iudict. novels. This was known as the Appeal of Fe- ments were written in Latin while Com. lony. In cases of murder and manslaughter mon Law Pleadings were framed in a sort any blood relation of the slain man could appeal of barbarous Norman French, till the reign against the slayer. The latter throw down his of George 11. The recital of the Act of glove and claimed the combat, and unless the Parliament, 4 George 11., o. 26, is instructive: accuser took up the challenge the accused went "Whereas many and great mischiefs do free. If as usually happoned, the challenge frequently happen to the subjects of this was accepted, a speedy day was appointed for' Kingdom from the proceedings in Courts of
Under the Statutes of Mary, the examination of witnesses and the recording of their deposi tions was intended only for the information of the Court. The prisoner had no right to be and probably seldom was present while the evidence was being taken, and he was not even allowed to see the depositions.
It would seem as if the Continental system of trying to expose and detect a person presumed to be guilty was resorted to. The practice under the modern Aot is aimed, on the other hand, at obtaining a full enquiry into the guilt or innocence of the accused.
BENEFIT OF CLERGY.
One of the most remarkable subjects in the
history of English Criminal Law is that known words imply, a special privillege enjoyed by the as Benefit of Clergy. Orginally it was what the Clergy, namely, freedom from the jurisdiction of lay Courts, and the right of being dealt with exclusively by the Ecclesiastical Courts. In Bracton's time, when a Clerk was acoused of crime, the Court had on request to deliver him over to his Bishop to be dealt with. The Bishop was to keep him safely till he made Ecolesiasti- cal purgation, failing which be was to be de- The process of graded or put to penance. purgation was as follows. The Bishop or his
and got persons as compurgators to swear they deputy presided and the jury consisted of 12 Clerks. The accused swore to his innocence
believed he spoke the truth. Only witnesses for the defence were allowed to be called and, consequently, the verdict usually acquitted the accused.
orders could not claim Benefit of Clergy till he had been tried and convicted by the ordinary
Later on, it was established that a Clerk in
tribunals.
Then the privilege was extended to all men who could read-an accomplishment not so common in those days. It amounted to this eventually, that when a man was found guilty of any clergyable felony and was asked what he had to say why sentence of death should not be passed upon him, he "fell on his kuees and prayed his Clergy," and, for a first offence, got some much lighter punishment, such as im prisonment for a year after being branded on the haud so as to prevent a second plea of Clergy. Of course this was very illogical,
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Death was the punishment of so many off- ences that the law was extremely severe. If the law was too severe, the logical course was to lessen the punishments, but, instead of that, benefit of clergy " was allowed in a number of cases. Women, however, could not be ordained, so they were not able, in the olden days, to be kindly assumed to be Clerks like man who could read, and thus they could not plead their clergy.
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