Page:Harvard Law Review Volume 5.djvu/76

60 60 HARVARD LAW REVIEW. There was the " Great Law," in which the accused swore with thirty-six freemen (six times, each time with six), chosen, half from the freemen of the east side of the rivulet of Walbrook, and half from the west; they were not to be chosen by the accused him- self, nor to be his kinsmen or bound to him by the tie of marriage or any other. The accused might object to them for reasonable cause ; they were chosen and struck, much after the way of a modern special jury. The " Middle Law " and " Third Law " were like this, but had eighteen and six compurgators respect- ively. 1 In civil cases of debt and trespass, compurgation with six others was the rule in London ; or, if the defendant was not a resident, with only two others. If he had not two, then the foreigner was to be taken by a sergeant of the court to the six churches nearest. 2 In the king's courts the earliest judicial records have many cases of this mode of trial; e.g., in 1202, in the Bedfordshire eyre, where, in an action for selling beer by a false measure, the defend- ant was ordered to defend herself " twelve-handed," i.e., by her oath, with eleven compurgators; and she gave pledges to make her " law" (vadiavit legem). 3 From being a favored mode of trial, wager of law steadily tended to become a thing exceptional, not going beyond the line of the precedents, and within that line a mere privilege, an optional trial alongside of the growing and now usual trial by jury. In the newer forms of action it was not allowed, and finally it survived mainly in detinue and debt. 4 Yet within a narrow range it held a firm place. In 1440, 5 in debt for board, Yelverton, for plaintiff, tried to maintain that the defendant could not have his law of a thing " which lies in the conusance of the pais." But the court held otherwise and the defendant had his law. In 1 45 4-5, 6 there was a great debate among the judges over a demurrer to a plea of non 1 Liber Albus, Mun. Gild. Lond. i., pp. 57-59, 92, 104. 2 A good Anglo-Saxon method. Fleta, Lib. 2, c. 63, s. 12, gives the merchants' way of proving a tally by his own oath in nine churches. He was to swear to the same thing in each, and then return to Guildhall for judgment. 8 Seld. Soc. Pub. i., case 61 ; s. c. Palg. Com. ii., p. cxix, note. And so elsewhere abundantly, in the earliest records. E.g. in 1 198-9, Rot. Cur. Reg. i. 200. And see Glanville, Bk. 1, cc. 9 and 16 (1187). ' « Y. B. 19 H. VI. 10, 25. 6 Y. B. 33 H. VI. 7, 23.
 * Steph. PI. (Tyler's ed.) 131-2.