the following execration: "Let this water be to thee now for a trial." And this conjuration is to be used to the cold water, wherein the person supposed guilty is to be put, viz.

"I adjure thee, O thou water, in the name of the Father Almighty, who created thee in the beginning, commanding thy use for human necessities, and that thou shouldest be separated from the waters above : I adjure thee, by the unspeakable name of the Lord Jesus Christ, son of the living God, under whose feet, the sea and element being severed, was trode upon, and who was pleased to be baptized in the watry element I also adjure thee by the Holy Ghost, which descended upon the Lord when he was baptized: I adjure thee likewise by the name of the holy and individual Trinity, by whose will the element of waters was divided, and the people of Israel forthwith passed thorough dry foot; at whose invocation the prophet Helisæas caused the axe which fell out of the helve to swim upon the water; that thou do not in any manner receive this man N. if he be guilty of what he is accused, by his act, consent, or knowledge, or any other device, but make him swim upon thee, to the end there may be no counterfeiting with thee, or any exploit of the enemy, that may disguise it. And by the name of Christ, we command thee, that for his sake thou obey us, unto whom every creature doth service; whom Cherubim and Seraphim do praise, saying, Holy, Holy, Holy, Lord God of Hosts, who ruleth and reigneth world without end." After this and other exorcisms being recited, the person sup

posed guilty, putting off his garments, is to be cast (his thumbs and toes tied together with cords) into the water into which if he sink, he is freed; but in case he swim, then to be condemned.

Several instances occur in history of persons who underwent this kind of trial by ordeal; the most remarkable of whom is Emma, mother to Edward the Confessor, though she is usually stated to have walked barefooted over nine burning ploughshares.

Ogerus Dapifer, shireeve of Norfolk and Suffolk, in 12 Hen. II. in his accompt for that year, upon record in the exchequer-reddit compotum de catallis fugitivorum, & eorum qui perierunt in judicio aquæ, viz. de Ricardo Haiward, 4s. 7d. &c.

This law was totally abolished by Henry III. in the third year of his reign, as appears from his special precept 3 for that purpose still preserved.

Wager of Law.]-Vadatio legis, as the foregoing is called wager of battle, vadatio duelli; because as in the former case the defendant gave a pledge, gage or vadium, to try the cause by battle; so here he was to put in sureties or vadios, that at such a day he will make his law, that is, take the benefit which the law has allowed him: which benefit is, that where apparent proof is not made on the plaintiff's part, the defendant is admitted to wage his law; that is, to take his own oath, that he owes nothing at all to the plaintiff; and to bring as many credible persons as the court shall assign, to make oath, that they believe he swears true.

3 Pat. 3 H. 3. p. 1. m. 5.

This method of trial, which still continues in force in certain cases 4, was a part of the Mosaical law: "If a man deliver unto his neighbour an ass or an ox, or a sheep, or any beast, to keep, and it die, or be hurt, or driven away, no man seeing it; then shall an oath of the Lord be between them both, that he hath not put his hand unto his neighbour's goods; and the owner of it shall accept thereof, and he shall not make it good." It is to be found in the codes of almost all the northern nations, and bears a manifest resemblance to the canonical purgation of the Romish clergy, when accused of any capital crime. The defendant, or person accused, was, in both cases, to make oath of his own innocence, and to produce a certain number of compurgators, who swore they believed his oath.

"In England wager of law is never required, and is then only admitted where an action is brought upon such matters as may be supposed to be privately transacted between the parties, and wherein the defendant may be presumed to have made satisfaction without being able to prove it: therefore it is only in actions of debt upon simple contract, or for amercement in actions of detinue and of account, where the debt may have been paid, the goods restored, or the account balanced, without any evidence of either; it is only in these actions, I say, that the defendant is admitted to wage his law; so that wager of law lieth not when there is any specialty as a bond or deed to charge the defendant, for that would be cancelled, if satisfied; but when the debt groweth by word only: nor doth it lie in an action of debt for arrears of an account settled by auditors in a former action. And by such wager of law, when admitted, the plaintiff is perpetually barred; for the law, in the simplicity of the ancient times, presumed that no one should for swear himself for any worldly thing. Wager of law, however, lieth in a real action where the tenant alleges he was not legally summoned to appear, as well as in mere personal contracts."

The manner of waging and making law is this: He that has waged or given security to make his law brings with him into court eleven of his neighbours: a custom which we find particularly described so early as in the league between Alfred and Guthrun the Dane; for, by the old Saxon constitution, every man's credit in courts of law depended upon the opinion which his neighbours had of his veracity. The defendant then standing at the end of the bar is admonished of the nature and danger of a false oath "; and if he still persists, he is to repeat this or the like oath: "Hear this, ye justices, that I do not owe unto Richard Jones the sum of ten pounds, nor any penny thereof, in manner and form as the said Richard hath declared against me; so help me God." And thereupon his eleven neighbours, or compurgators, shall avow upon their oaths, that they believe in their consciences that he saith the truth, so that himself must be sworn de fidelitate, and the eleven de credulitate". It is held, indeed, by later authorities, that fewer than eleven compurgators will do; but sir Edward Coke is positive that there must be this number; and his opinion not only seems founded upon better authority, but also upon better reason; for as wager of law is equivalent to a verdict in the defendant's favour, it ought to be established by the same or equal testimony, namely, by the oath of twelve men.

A man outlawed, attainted for false verdict, or for conspiracy, or perjury, or otherwise become infamous, as by pronouncing the horrible word in a trial of battle, shall not be permitted to wage his law. Neither shall an infant, under the age of twenty-one, for he cannot be admitted to his oath; and therefore, on the other hand, the course of justice shall flow equally, and the defendant, where an infant is plaintiff, shall not wage his law: but a feme-covert, when joined with her husband, may be admitted to wage her law; and an alien shall do it in his own language9.

CHAP. VI.

MISCELLANEOUS.

Of Punishment in criminal Cases.

THE punishment of felons by death, with hanging upon gallows, is very ancient, being ordained by the laws of Ina nearly 1100 years since. This was abolished by the Conqueror, who appointed instead of it the punishment should be, pulling out eyes, gelding, or cutting off hands or foot, according to the greatness of the offence, to the end they might live and be a terror to others; as were those Welchmen, of whom Flor. Wigorn. in his Annals, viz. an. 1098, makes mention, who for treason had all those several kinds of punishment inflicted on them.

• Co. Litt. 295.