Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/108

 94 /. BEFORE THE NORMAN CONQUEST disqualified from clearing himself by oath for one of the reasons above mentioned, the results were probably less remote from rough justice than we should expect, and it seems that the proportion of acquittals was also larger. Certainly people generally believed to be guilty did often escape, how far accidentally or otherwise we can only conjecture.^ An- other form of ordeal favoured in many Germanic tribes from early times, notwithstanding protest from the Church, and in use for deciding every kind of dispute, was trial by battle : b ut this mak es its first appearance in Engla nd and Scotlan d not as a Saxon but as a distmctly .Norman institution.^^ It is hard to say why, but the fact is so. It seems from Anglo- Norman evidence that a party to a dispute which we should now call purely civil sometimes offered to prove his case not only by oath or combat, but by ordeal, as the court might award. This" again suggests various explanations of which none is certain.^ Inasmuch as all the early modes of proof involved large elements of unknown risk, it was rather common for the parties to compromise at the last moment. Also, since there ! were no ready means of enforcing the performance of a judg- i ment on unwilling parties, great men supported by numerous followers could often defy the court, and this naturally made it undesirable to carry matters to extremity which, if both parties were strong, might mean private war. Most early forms of jurisdiction, indeed, of which we have any knowl- edge, seem better fitted to put pressure on the litigants to agree than to produce an effective judgment of compulsory force. Assuredly this was the case with those which we find in England even after the consolidation of the kingdom under the Danish dynasty. Rigid and cumbrous as Anglo-Saxon justice was in the ' The cold-water ordeal was apparently most feared ; see the case of Ailward, Materials for Hist. St. Thomas, i. 156, ii. 172; Bigelow, Plac. A.-N. 260. For a full account see Lea, Superstition and Force. esting monograph. under Henry H we find, in terms, such an oflFer, but it looks, in the light of the context, more like a rhetorical asseveration — in fact the modern "j'en mettrais ma main au feu" — than anything else: op. cit. 196.
 * See more in Neilson, Trial by Combat, an excellent and most inter-
 * Cases from D. B. collected in Bigelow, Plac. A.-N., 40-44, 61. Even