An accused person desiring to purge himself by the Great Law was required to observe the following order: He had to make an oath in his own person that he was innocent touching the felony and breach of the King's peace, and the entire crime laid to his charge—"So help me God and these hallows!" (i.e., the Gospels on which he was sworn). After that six men had to swear that, according to their privity and knowledge, he had made a sound oath. Then the accused repeated the oath, and was supported by the sworn testimony of six more witnesses. So it went on until thirty-six sworn men had testified in his favour.
With regard to the impanelling of this body it was the custom in London to choose one of the number from the part of the city east of Walbrook and the other half from the part west of Walbrook. They were to be of the liberty of the city, honourable men not kinsmen of the accused; and the selection was made in his absence. He was then summoned, and the list of names having been read over to him, he might indicate to the Mayor and Aldermen any that he held suspect. If he produced reasonable grounds, the names were erased and others substituted for them. When, at length, he was content, he placed himself in the hands of this jury as regarded the purgation of the charge. The names of the thirty-six persons were delivered to the Justices of the King, before whom the accused had subsequently to appear and wage his law.
The same rules were observed in the case of the Middle Law, except that the accused had to make only three oaths and a panel of eighteen sufficed. In the Third Law the accused made no more than one oath and the panel was reduced to six. These were to be of his vicinage, but not bound to him by the tie whether of blood or marriage. Where a non-freeman was charged with homicide, forty-two compurgators were required, this disadvantage being due to the prejudice of the citizens against "foreigners," of which further evidence will be adduced later. On the other hand if the prosecution were on the part of the Crown, seven compurgators were deemed enough, the reason being that the King had not the personal interest in bringing a criminal to justice of a private appellor.
The date of the election of the compurgators was fixed, at the will of the Justices, and on that day fortnight the accused had to answer the appeal, unless the Justices chose to assign a longer term. That is, according to one statement. Another version sets forth that, by the law and liberty of the city, a term of forty days was given for answer to an appeal in a particular case; and this may mark the extreme limit usual. Probably also it may be connected with the period during which a criminal was commonly allowed to avail himself of the right of sanctuary. If the accused did not appear on the day named for the trial, he was outlawed at the folkmoot. Meanwhile he was delivered in bail to twelve men, provided that there was some surety sufficient for the payment of a hundred shillings in case they did not produce him at the appointed time. Anyone appealed and attached for homicide could not demand "recognition" until he had acquitted himself of the appeal made against him; and meanwhile, if he could not find sureties, he was committed to prison. If the accused was outlawed and abjured the realm, the sureties were acquitted out of respect for the Church.
By the word "recognition" in the above description is apparently intended an inquisition into the circumstances by an assize or jury of twelve sworn men under the presidency of the Justices. In the case of an appeal—that is, where there was a private prosecutor, who was bound to have some interest in the matter, e.g., as a blood-relation—this was not allowed, and the onus of proving his innocence was thrown on the accused.
It was otherwise when a man was taxed with homicide by the voice of public fame. He was then attached either by pledges or by imprisonment; and the Justices held a very strict and careful inquisition into the case, as the result of which the accused might be wholly absolved, or he might be compelled to resort to compurgation. The compurgators, few or many, were at once judge, jury, and witnesses; and the final issue of the proceedings lay with them and the accused himself, the Mayor and Alderman making the preliminary arrangements and the King's Justices seeing that the forms were duly observed.
We saw at the outset that purgation by oath was a privilege only permitted to persons of good reputation, and that failure to secure the testimony of his neighbours to his innocence, where his reputation had been damaged, subjected a man to the judgment of water or fire. In Saxon times every freeman had his borh or surety, who presented him, if he was accused. Should he be tyht bysig, of evil repute, he was forced to undergo the triple ordeal without more ado; but if his lord gave him a good character and seven of his neighbours came forward and swore that oath had never failed him and that he had never paid theof gyld (fine for thieving), then he might make his election between a pound-worth oath or single ordeal. If the seven persons summoned declined to take the oath, the triple ordeal was inevitable, and if the guilt of the accused was established by this process, he had to restore to the accuser twofold, pay a fine to his lord, and find sureties that he would abstain from evil for the future. If he absconded and avoided the ordeal, the borh was obliged to pay the ceap-gyld or monetary value of the article stolen to the accuser and the fine to the lord. If the accused happened to be theow man (servant), and he failed in the ordeal, the law was that he should be branded the first time; the second time, there was no bot, or reparation, but the head! Finally, the appellor was obliged to swear by seven lawful men, who were to be named, that he had laid upon the accused the necessity of the ordeal neither from hatred nor from any other cause but that he might acquire his right.
There were various forms of ordeal. A man might be tried by fire or water, and there was a cold-water as well as a hot-water test. Moreover, the ordeal might be single or triple, according to the degree of immersion or the weight of the iron employed. The laws of Athelstan prescribe that in the hot-water ordeal, if single, the hand should dive after the stone up to the wrist; if triple, up to the elbow. Similarly, by the laws of King Edgar, the weight of the iron for the single ordeal was to be one pound, and for the triple ordeal three pounds.
The ordeal, being the Judgment of God, was distinctly a religious ceremony, and the whole of the proceedings were in the hands of the clergy. The three days following the accusations were spent in prayer and fasting, and the rite, varied according to the nature of the ordeal, was performed in a church.