58 HARVARD LAW REVIEW. plaintiff the taking of a fore-oath, so the defendant was allowed sometimes to clear himself merely by his own oath. But the great mediaeval form of trial by oath was where the party swore with the auxiliary oath of others — compurgation. In the Salic law, that " manual of law and legal procedure for the use of the free judges in the oldest and most nearly universal of the organized Teutonic courts, the court of the hundred," 1 in the fifth century, we find it. 2 It continued among the Germanic people in full force. These fellow-swearers were not witnesses ; they swore merely to the truth- fulness of another person's oath, or, as it was refined afterwards, to their belief of its truth. It was not requisite that they should have their own knowledge of the facts. Although constantly called by the ambiguous name testis, they were not witnesses. They might be, and perhaps originally should be, the kinsmen of the party. 3 In our own early books this was a great and famous " trial," and its long survival has made it much more familiar to the mod- ern English student than some of its mediaeval companions. It was the chief trial in the popular courts, and as regards personal actions, in the king's courts, where, in real actions also, it was re- sorted to in incidental questions. 4 In the towns it was a great favo- rite. An early and quaint illustration of it is found in the Custumal of Ipswich, drawn up about the year 1201 by way of preserving the old usages of the town, and again compiled a hundred years later because of the loss of the older copy. 5 In debt between citizens of the town, the party who had to prove his case was to bring in ten men ; five were set on one side and five on the other, and a knife was tossed up in the space between them. The five towards whom the handle lay were then set aside ; from the other 1 Maine, Early Law and Custom, 144. 2 Hessels & Kern col. 208, xxxvii ; and see ib., Extravagantia, B, p. 421 ; Lea, Sup< and Force, 3d ed., 40, 48. 8 Lea, Sup. and Force, 3d ed., 35. Mr. Lea's excellent book is full of instruction. 4 Palgrave, Eng. Com. i. 262-3. For its extensive use in the manor courts, see Selden Soc. Publications, vols. ii. and iv. The highly formal character which it some- times took on, and the perils which attended it, are illustrated in a passage from an unpublished treatise of the fourteenth century, preserved by Professor Maitland in vol. iv. p. 17. All comes to naught if the principal withdraws his hand from the book while swearing, " or does not say the words in full as they are charged against him. ... If a defendant fails to make his law he has to pay whatever the plaintiff has thought fit to demand." We are told (Lea, Sup. and Force, 3d ed., 72) that in the city of Lille, down to the year 1351, the position of every finger was determined by law, and the slightest error lost the suit irrevocably. 6 Black Book of the Admiralty, ii. 170-173.
