Anglo-Saxon Institutions. 449-1066 23
in court any questions that might be put to them in order
to bring out the whole truth about the matter under liti-
gation. Only one party to the suit produced them and
they knew beforehand the set formula to which they must
swear. There was no elasticity, no equity; it was simply
the question whether they could take the one oath which
was to be the defendant's proof.
The second kind of proof, the ordeal, might, if the court
so judged, be resorted to after the fore-oath and oath in
rebuttal, or it might follow a more or less unsuccessful
oath-helping. In the criminal cases other than cattle-
stealing, there was no attempt to use witnesses, compurga-
tion and ordeal being the only proofs. The ordeal was
used mainly in connection with the more serious wrong-
doing and was a deliberate appeal to supernatural know-
ledge (originally to the gods of fire and water) by men who
felt themselves powerless to penetrate the mysteries of
crime. The ordeals of hot and cold water and hot iron
were common, and the ordeal of the accursed morsel was
also used. The wager of battle, which was, properly
speaking, an ordeal, was not used by the Anglo-Saxons.
The ordeals, with their pain and risk, often caused those
to whom they had been awarded to hesitate, and there
were many last-moment compromises. A good many
primitive forms of justice performed their most useful
function in bringing about extra-judicial agreement.1
In a procedure dealing largely with criminal matters,
we naturally look for punishments to follow the proofs,
but there was little punishment of the sort that might be
expected. There were no prisons, and capital punish-
ment was rare. If we think of Anglo-Saxon courts as
helpless before the mysteries of "fact," they were also
helpless in adapting the punishment to the crime2 or in
z For a full discussion of the primitive methods of trial, see H. C. Lea,
Superstition and Force: essays on the wager of law, the wager of battle, the
ordeal, and the torture.
As to why the wager of battle was lacking in Anglo-Saxon law see P.
and M. i., 50, 51.
2 There was little classification of crimes. Secret slaying was much more
severely treated than open slaying. This was not wholly the root of our