Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/130

 116 //. FROM THE llOO'S TO THE 1800'S only the ordeal or trial by battle, which he might accept or refuse at his own peril. In the simple ordeal he dipped his hand in boiling water to the wrist, or carried a bar of red- hot iron three paces. If in consequence of his lord's testi- mony being against him the triple ordeal was used, he had to plunge his arm in water up to the elbow, or to carry the iron for nine paces. If he were condemned to the ordeal by water, his death seems to have been certain, since sinking was the sign of innocence, and if the prisoner floated he was put to death as guilty. The other alternative, trial by battle, which had been introduced by the Normans, was extremely unpopular in England; it told hardly against men who were weak or untrained to arms, or against the man of humble birth, who was allowed against his armed opponent neither horse nor the arms of a knight, but simply a leathern jacket, a shield of leather or wood, and a stick without knots or points. (/ At the beginning of the reign of Henry II. the Shire courts seem to have been nearly as bad as they could be. Scarcely any attempt had been made, perhaps none had till now been greatly needed, to improve a system which had grown up in a dim and ruder past. The Norman kings, J indeed, had introduced into England a new method of decid- ing doubtful questions of property by the " recognition " of sworn witness instead of by the English process of com- purgation or ordeal. Twelve men, who must be freemen and hold property, were chosen from the neighbourhood, and as " jurors " were sworn to state truly what they knew about the question in dispute, and the matter was decided accord- ing to their witness or " recognition." If those who were summoned were unacquainted with the facts, they were dis- missed and others called ; if they knew the facts but diff'ered in their statement, others were added to their number, till twelve at least were found whose testimony agreed together. These inquests on oath had been used by the Conqueror for fiscal purposes in the drawing up of Doomsday Book. From that time special " writs " from king or justiciar were occa- sionally granted, by which cases were withdrawn from the usual modes of trial in the local courts, and were decided