Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/106

 92 /. BEFORE THE NORMAN CONQUEST actual decisions. The efficiency of these poAvers varied in fact according to the king's means and capacity for exercising them. Under a wise and strong ruler like Alfred or iEthel- stan they might count for much; under a feeble one like ^thelred they could count for very little) A modern reader fresh to the sub j ect might perhaps expect to find that the procedure of the old popular courts was loose Q and informal. ' In fact it was governed by traditional rules ' of the most formal and unbending kind.^ Little as we know of the details, we know enough to be sure of this; and it agrees with all the evidences we have of the early history of legal proceedings elsewhere. The forms become not less but more stringent as we pursue them to a higher antiquity; they seem to have not more but less appreciable relation to any rational attempt to ascertain the truth in disputed matters of fact. That task, indeed, appears to have been regarded as too hard or too dangerous to be attempted by unassisted human faculties. All the accustomed modes of proof involved some kind of appeal to supernatural sanctions. The simplest was the oath of one of the parties, not by way of testimony to particular facts, but by way of assertion of his whole claim or defence; and this was fortified by the oaths of a greater or less number of helpers, according to the nature of the case and the importance of the persons con- cerned, who swore with him that his oath was true.^ He lost his cause without a chance of recovery if any slip was made in pronouncing the proper forms, or if a sufficient number of helpers were not present and ready to make the oath. On the other hand the oath, like all archaic forms of proof, was con- clusive when once duly carried through. Hence it was almost always an advantage to be called upon to make the oath of proof, and this usually belonged to the defendant. " Gain- saying is ever stronger than affirming .... Owning is Conquest (Glanv. xii. 23), and therefore, almost certainly, before. We know nothing of their character or importance, but I should conjecture that they were chiefly in verbal formulas. the decisory oath of Roman and modern Romanized procedure, where one party has the option of tendering the oath to the other alone, and is bound by the result.
 * There were variations in the practice of different counties after the
 * Advanced students will observe that this is wholly different from