CRIME AND JUSTICE Florilegium Urbanum
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Keywords: medieval London legal procedure trial compurgation women oath
Subject: Custom concerning defence through wager of law
Original source: Corporation of London Records Office, Liber Albus, ff. 188-189
Transcription in: Henry Thomas Riley, ed. Liber Albus, Rolls Series, no.12, vol.1 (1859), 203-04.
Original language: French
Location: London
Date: 13th century


TRANSLATION

Concerning the wager of law

Once the parties have settled on [trial by] inquest, those parties cannot be called to answer until the inquest has been summoned. An inquest can be summoned either at the suit of the defendant or at the suit of the plaintiff. In pleas of debt, the defendant may wage his law – that he owes nothing to the plaintiff – as city custom prescribes; that is, if he is enfranchised within the city, or a resident of the city, [he may do his law] with the seventh hand, himself being one. These defendants may do their law in court as soon as such law has been waged, if they have the persons ready. Otherwise they shall be assigned a day for doing their law at the next court session following.

If the defendant is an outsider, a stranger, and not a resident of the city, he may straight away wage and do his law with the third hand, himself being one, that he owes nothing to the plaintiff, and thereby be acquitted. If he does not have two men ready to take the oath with him, then, at the request of the plaintiff, the defendant must go in the custody of a sergeant of the court to the 6 churches nearest to the Guildhall and, in those same churches, swear that the oath he made in the Guildhall was a true one. Following which, the defendant shall be brought back to the Guildhall and be judged acquitted (and the plaintiff will be amerced).

The same method is to be used in other personal actions where wager of law is acceptable. Where women are impleaded in such cases and wage their law, they may do their law with men or with women, whatever they wish.

If a man who is enfranchised within the city is impleaded for carrying off goods, under the charge of trespass, or for battery in which blood is not shed nor any injury evident, or for any other trespass alleged to be a breach of the peace, that freeman who is impleaded may wage and do his law with the seventh hand to prove he is not guilty, as city custom prescribes (as indicated above).



DISCUSSION

This passage well shows that the swearing of holy oaths could be taken very seriously in the Late Middle Ages. Although doubtless some people were sufficiently irreligious to perjure themselves, it was assumed that the fear of divine punishment – whether in this life or the hereafter – for taking a holy oath in vain would discourage true Christians from perjury. Thus, even if a defendant swore to his innocence in court, he (or she – the power of oaths being a matter of belief, without discrimination to sex) might be reluctant to damn himself further by repeating lies under oath in a place of God. The same concept applied to compurgation: it was recognized that a guilty party might, from desperation, commit perjury, but far less likely that a set of oath-helpers would all take the same risk. Hence the reason that, the more serious the crime, the larger the number of compurgators necessary; this was not a majority decision scenario – if a single one of the compurgators drew back from swearing the supporting oath, it was tantamount to a conviction. A successful defence led to the assumption that a wrongful charge had been laid by the plaintiff, who was consequently "in mercy" (i.e. fined by the court for wasting its time); see the Leicester example.

flourish

NOTES

"wage his law"
Wager of law here, in essence, means setting in motion (or selecting) a defence by compurgation.

"seventh hand"
The seventh hand refers to the number of compurgators necessary in a case such as this, of minor seriousness (as under the "Third Law"). The defendant would first swear that he did not owe any debt to the plaintiff; then his oath-helpers would swear that the defendant's oath was credible; unlike in cases of criminal action, the defendant could choose his own compurgators.

"third hand"
The reference to a three-handed oath in the case of outsiders (since many pleas of debt were bound to arise between Londoners and visiting merchants) has been challenged as a clerical error, stemming from the "Third Law" which prescribed a seven-handed oath for minor criminal cases. However, despite the fact that local judicial procedure would tend to place more trust in the credibility of a resident than that of a stranger, the reason for the reduced number of compurgators was clearly that a visitor could not be expected to find as many supporters in a place foreign to him.

"impleaded"
To be impleaded was to have a suit brought against one in court.




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Created: August 18, 2001. Last update: November 23, 2002 © Stephen Alsford, 2001-2003