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fended himself by the oath of eleven other fijos-d'algo, himself the twelfth; and, as true knights, they were all sworn upon the Gospel book, with their spurs upon their heels.' There were I two insults only which gave a ‡ Dueña, or a Squire, the right of complaining that a fijo-d'algo had scandalized them, viz. a blow or wound, or the robbery of their mules or garments. Within three days, the party so injured by a caitiff knight was obliged to complain of the offence, and to disclose the injury to the fijos-d'algo of the town, to the labradores, and to the inmates of the fijos-d'algo, if there were any; and to cause the town-bell to be rung, saying- Such-a-one hath thus dishonoured me.' These formalities having been observed, the fijo-d'algo was to answer the complaint; reparation was made if he confessed it, by forfeiting five hundred sueldos, the price of his own head, but, if he denied it, he was to clear himself by the oath of eleven other fijos-d'algo, himself the twelfth.' But a labrador accused of injuring a fijo-d'algo was not to be admitted to defend himself by his peers; and he was unfairly compelled to swear with eleven fijos-d'algo, himself the twelfth.'

These customs are taken from the general code. In peculiar districts, compurgation was so much in vogue, that compurgatrixes were allowed to female culprits. At Anguas, as well as in other towns, a woman charged with theft could defend herself by the oaths of a jury of other women. More whimsical was the Fuero

of Cuenca, which is passing strange, both for the spirit of the law and the terms in which it is expressed. If perchance any husband suspected that his wife had planted horns ‡ upon his head,' although he was not able to prove the fact by evidence, the wife was to justify herself by swearing to her chastity with twelve good wives of the neighbourhood; and if they pronounced her to be pure, her husband was bound to be persuaded that she was so, maugre all the suggestions of the green-eyed monster. The jealous Castilian required the unanimity of a jury of matrons, from whom his consort, if either fair or frail, could scarcely hope to obtain an acquittal. This is a curious variation from the Gothic customs, by which the oaths of men alone were received in these delicate inquiries. In Jutland, for instance, the law of Hensburg required that a woman who was

F. V. lib. 1, tit. 5, c. 12.

The wife of a Ricohombre.

Granted by Alonso VIII. about the year 1190.

We believe this is one of the earliest allusions to the terrific, Cimier di Cornovaglia,' which, alas! hath been placed upon sa Many a noble helm.

accused of adultery should justify herself by the oaths of twelve men of her husband's guild. At present, we can only recollect one instance of compurgation by females in the northern laws. Haco orders the witch to repel the charge of sorcery, by the oaths of six true women; but they were such as men knew to → be good queans; so that these jurywomen must have often been exposed to a peremptory challenge.

The customs of St Sebastian in Guipuscoa* allowed of an odd kind of proceeding, resembling the assessment of damages by the verdict of a jury. The ravisher was to pay the price of virginity, or he was to marry the object of his ungovernable passion; which punishment, as the charter wisely observes, is fully equal to a fine.' But if she who had been a maid was unworthy of becoming his wife, he was to provide her with such a husband as she might reasonably have expected to have obtained previous to her mishap, according to the estimation of the alcalde, and of twelve good men of St Sebastian.' This, however, was rather a decision by twelve echevins than an ordeal; but it demonstrates their adherence to the ancient custom of appealing to the judgment of twelve men.

We have seen the cases in which compurgation was allowed by the Fuero Viejo of Castile. How far the general custumal was received in the chartered towns, is a question which we are not prepared to discuss. But in many of them the ordeal received a more extended application. The fullest directions concerning it are contained in the charter of Molina. Don Malrique de Lara incorporated the town of Molina, the seignory of the noble house of Lara, in the year 1152. His charter may be quoted as the most valuable record concerning the ancient municipal jurisprudence of Castile which has yet been published, as it displays the entire constitution and government of a Castilian town. At Molina, the mode of compurgation was singularly, and we think judiciously, varied with the nature of the offence. And in no other antient law which we have had an opportunity of consulting, is the principle upon which this trial proceeded more clearly enounced. Fines, according to the old Gothic law, were exacted at Molina for wounds and maims. The accuser was to support his charge by three witnesses, vecinos' or burghers of the town, if the offence was committed within its walls. Two vecinos sufficed, if without. And, in default of full proof, the culprit either swore with twelve vecinos, or fought with the accuser; but the latter had the choice of the ordeal. He who was riotous at the gate of the judge, or of the alcalde, or in the council

*`Charter granted by Alonso VIII. 1202.

chamber, or in the chamber of justice on Friday, when the Court sat, forfeited an hundred maravedis. But the evidence of two alcaldes was required to convict him; and, if this was wanting, he swore with twelve,' and was discharged.

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When a murder had been committed, if one of those engaged in the fray took the guilt upon his own head, saying, 'I killed him,' the others were to save themselves with twelve true burghers'-los otros salvense con doce vecinos derecheros. It might happen, that none would confess the crime; and as all were then equally liable to suspicion, the relations of the dead man were at liberty to select any one as the murderer, just as they thought fit:' after which, the supposed murderer named eleven relations of the slain; and these, together with the accuser, swore to his being guilty or not guilty. Unanimity was required; and if one or two would not swear, that is to say, if they could not agree with the majority, each who was so dissentient'swore with twelve,' that neither he, nor any one for his use, had received any bribe; then he was discharged. But the defendant did not fall by the withdrawing of his juror; and he was at liberty to name another. This proceeding is remarkable; a new aspect is given to the ordeal, by calling in the compurgators to swear with the accuser instead of the accused; and in this form it is perhaps more closely assimilated to a jury trial. It may be observed, that a practice once prevailed in England, of withdrawing the dissentient jurors, and replacing them by others, till an unanimous verdict was obtained. The continuation of the law of Molina is obscure, and a part of the text seems to be lost. If there were no relations, we think it appears that the accuser was supported by the oath of twelve burghers taken at large from the town. The fraudu lent substitution of a stranger was punished by the payment of the full weregild. Though the charter of Molina is very minute, yet no provision is made for murder committed otherwise than in a quarrel among many. This strongly indicates the prevalence of party feuds and family enmities. When one man killed another, he must either have been judged by the Fuero Juzgo or the Fuero Viejo, or the regulations in the charter were followed as nearly as might be. Battle might be demanded in many cases; but it was always in the power of the appellant, after he had so demanded it, to waive the proof by the body, and to require the appellee to swear with twelve,' or, as it may be said, to put himself upon a jury. Compurgation was gaining ground, and considered as better adapted for the furtherance of justice than the appeal to arms.

Legal usages, such as the battle and fire ordeals, appear to place the middle ages at an immeasurable distance from us, and teach us to consider those who lived in them as beings alike

ignorant and depraved, and with whom we are less in communion than with the savages of New Zealand. We are not wholly estranged by their domestic habits, their sports or their solemnities. We are not inclined to shun the moated castle, nor do we rush away from Deis and the festive board. Unwonted spectacles are no doubt exhibited there; yet not so wildly rude as to be repugnant to our nature. We can imagine ourselves quaffing from the beaker of Hypocras, or sipping piment and morat. After a due course of starvation, it is not impossible but that we might have swallowed a mess of charlot gentyl, or even have made a meal of that royal dainty, a barbacued porpoise. Knights justing in the lists, or monks chanting in the choir, rise up before us like splendid visions or holy dreams; and, forgetting the evils of feudality and popery, we contemplate the pageants with enthusiasm. On a nearer view, indeed, their beauty fades. But the noble and the burgess reeking in coarseness; the soldier abusing his brutal strength; and the priest wallowing in the filth of superstition; are not so intolerable as the seeming profanation of the sacred name of Justice. Accustomed to the patient and impartial trial of the culprit, we shudder at the superstitious ferocity which surrendered the victim to the ordeal of the fire; we execrate the barbarous law which compelled the accused and accuser to risk their lives in judicial contest; or we deplore the pious folly which bade the criminal go forth unpunished, when twelve good men had sworn to his innocence. Were not these trials calculated for the oppression of the guiltless, and the protection of the ill doer? Yet those who appealed to the chance of the field, or the judgments of God, were not destitute of good sense and discernment; and they must have deceived themselves into a toleration of the inconveniences attendant on these proceedings. Some allowance must be made for prevailing opinions. Words exercise a strange witchery over the wisest of us all. We who are so well pleased with our own wisdom and humanity, do not hesitate to settle points of honour by the pistol: They, with equal willingness, decided points of law with club and target. An age of good order and refinement, in which duelling is cherished by the unwritten usages' constituting the code of society, may perhaps excuse the age of turbulence and ferocity, in which ordeal by battle was allowed to retain its place in the code of law. If our great grandchildren advance as rapidly in the scale of civilization as we have done, it is possible that they may learn to consider a meeting at Chalkfarm in the same light as we now view a battle before the Judges of the kingdom of Jerusalem. But in the mean while, let us do justice, both to the twelfth century and to the nine

teenth, by confessing, that in both, this apparently absurd appeal to arms has given that protection to the individual which he could scarcely have obtained without it. Our courts of law will not grant us adequate redress for those injuries which inflict the keenest pain. Not a farthing can be recovered against him who salutes us as rogues or liars. Nor can the spotless virgin maintain an action against the foul-mouthed wretch who prefers a verbal charge of incontinency against her, unless any damage ensues which may be considered by the wisdom of the law as affording her a foundation for a per quod.' But the half drunken bully stops short in the middle of the words of affront, anticipating the unwelcome civility of the challenge, and the cool politeness of the friend who bears it. Rapine and lust, in like manner, might not be restrained by the tribunals of a feudal kingdom, conniving at crimes, or fearing to punish them; but they must have often been checked by the salutary terrors of the solemn battle.

Sentiments which, if not praiseworthy, were at least excusable, dictated the ordeals of the ploughshare and the caldron, and required the assisting testimony of the compurgator. With a firm and lively faith, the omniscience of the Almighty was invoked by Judges who distrusted the wisdom of man: But though distrusting his wisdom, they confided in his faith; and therefore, they hesitated to doubt the truth of his appeal to his Creator. By degrees, the mistaken piety which tempted Providence, and required the Author of the universe to subvert the laws of nature, yielded to a rational reliance on those faculties which His goodness has bestowed upon us. Another mode of trial, however, remained,-Ordeal by compurgation, which, though less awful, seems, according to our ideas of judicial investigation, to afford room for equal, if not for greater abuses. We may conjecture how the criminal would labour to evade the judgment of God.'-He granted his broad lands to holy church in purchase of the favour of the priest; and his hand was anointed with juices and medicaments of wondrous potency-and during the lengthened recitation of the prayer and the psalm, the intense radiance of the probationary iron became dimmed into an obscurer glow. Yet, even then, sufficient danger still accompanied the fiery proof, to render it appalling: But he who might wage

f Blackstone's Commentaries, v. iii. p. 124–5.

Deus cujus notitiam nulla unquam secrets effugiunt, fidei nostræ tua comitate responde et præsta, ut quisquis purgandi ex gratia hoc ignitum tulerit ferrum, vel absolvatur innocens vel rei noxius detegatur. Formula solennes exorcismorum. Lind. p. 1310.

VOL. XXXI. NO. 61.

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