Plurima est et in omni jure civili, et in pontificum libris, et in XII. tabulis, antiquitatis effigies.—CICERO, _de Oratore I._ 43. Fourth Edition, Revised. Philadelphia: Lea Brothers & Co. 1892. Entered according to Act of Congress in the year 1892, by Henry C. Lea, in the Office of the Librarian of Congress. All rights reserved. Collins Printing House. PREFACE. The history of jurisprudence is the history of civilization. The labors of the lawgiver embody not only the manners and customs of his time, but also its innermost thoughts and beliefs, laid bare for our examination with a frankness that admits of no concealment. These afford the surest outlines for a trustworthy picture of the past, of which the details are supplied by the records of the chronicler. It is from these sources that I have attempted, in the present work, a brief investigation into the group of laws and customs through which our forefathers sought to discover hidden truth when disputed between man and man. Not only do these throw light upon the progress of human development from primitive savagism to civilized enlightenment, but they bring into view some of the strangest mysteries of the human mind. In this edition I have endeavored to indicate, more clearly than before, the source, in prehistoric antiquity, of some of the superstitions which are only even now slowly dying out among us, and which ever and anon reassert themselves under the thin varnish of our modern rationalism. In a greatly condensed form the first three essays originally appeared in the North American Review. June, 1878. * * * * * Although in the revision of this volume for a fourth edition there has not been found much to alter, considerable additions have been made which render the survey of the subject more complete. In revising the essays on the Wager of Battle and the Ordeal I have had the advantage of the labors of two recent writers, Dr. Patetta, whose “Le Ordalie” is an extended and philosophical investigation into the whole topic of the Judgments of God, and George Neilson, Esq., whose “Trial by Combat” is a complete account, from the original sources, of the history of the judicial duel in Great Britain. Mr. Neilson has also had the courtesy to communicate to me the results of his further studies of the subject. I therefore indulge the hope that the present edition will be found more worthy of the favor with which the work has been received. PHILADELPHIA, October, 1892. CONTENTS. I. THE WAGER OF LAW. CHAPTER I. RESPONSIBILITY OF THE KINDRED. PAGE Crime originally an offence against individuals 13 Tribal organization—Responsibility of kindred 14 Compensation for injuries—The _Wer-gild_ 17 CHAPTER II. THE OATH AND ITS ACCESSORIES. Perplexities as to evidence 21 Guarantees required for the oath 25 CHAPTER III. CONJURATORS, OR PARTAKERS IN THE OATH. The Wager of Law a prehistoric Aryan custom 33 It is adopted by the Church 35 CHAPTER IV. SELECTION OF COMPURGATORS. They are originally the kindred 38 Strangers admitted 41 Numbers required 43 Modes of selection 47 CHAPTER V. CONDITIONS OF COMPURGATION. Employed in default of testimony 52 Except in Wales 54 Dependent on importance of case 56 As an alternative for the Wager of Battle 57 CHAPTER VI. FORMULAS AND PROCEDURE. Forms of compurgatorial oath 58 Modes of administration 60 Qualified confidence reposed in Compurgation 61 Conjurators liable to penalties of perjury 63 CHAPTER VII. DECLINE OF COMPURGATION. Early efforts to limit or abolish it 67 The oath no longer a positive asseveration 71 Influence of revival of Roman law 73 Conservatism of Feudalism 76 Gradual...