Page:Harvard Law Review Volume 5.djvu/75

THE OLDER MODES OF TRIAL. 59 five one was removed, and the remaining four took the oath as compurgators. In criminal cases in the king's courts, compurgation is thought to have disappeared in consequence of what has been called " the implied prohibition" of the Assize of Clarendon, in 1166. But it remained long in the local and in the ecclesiastical courts. Pal- grave * preserves as the latest instances of compurgation in crimi- nal cases that can be traced, some cases as late as 1440-1, in the Hundred Court of Winchelsea in Sussex. They are cases of felony, and the compurgation is with thirty-six neighbors. They show a mingling of the old and the new procedure. On April 4, 1435, Agnes Archer was indicted by twelve men, sworn before the mayor and coroner to inquire as to the death of Alice Colyn- bourgh. Alice addncta fuit in pleno hundredo . . . tnodo felonico, nuda capite et pedibus, discincta, et manibus deligatis ; tendens manum suam dexteram altam, per communeni clericum arreinata fuit in his verbis (and then follows in English a col- loquy) : "Agnes Archer, is that thy name? which answered, yes. . . . Thou art endyted that thou . . . felonly morderiste her with a knyff fyve tymes in the throte stekyng, throwe the wheche stekyng the saide Alys is deed. ... I am not guilty of thoo dedys, ne noon of hem, God help me so. . . . How wylte thou acquite the? . . . By God and by my neighbours of this town." And she was to acquit herself by thirty-six compur- gators to come from the vill of Winchelsea, chosen by herself. The privilege of defending one's self in this way in pleas of the crown was jealously valued by the towns. London had it in its charters. In the fifty Anglo-Saxon words of the first short charter granted by the Conqueror, and still " preserved with great care in an oaken box amongst the archives of the city," 2 there is nothing specific upon this. But in the charter of Henry I., s. 6, the right of a citizen is secured in pleas of the crown, to purge himself by the usual oath ; and this is repeated over and over again in charters of succeeding kings. 3 Henry III., in his ninth charter, cut down the right, by disallowing a former privilege of the accused to supply the place of a deceased compurgator by swearing upon his grave. 4 1 Com. ii., p. cxvi, note ; compare ib. i. 217. 2 Norton's London, 324, note. 8 Of Henry II., Richard, John, Henry III., the three Edwards, and Richard II. For the charters, see Liber Albus, Mun. Gild. Lond. i. 128 et seq. 4 Lib. Alb., Mun. Gild. Lond. i. 137-8; Riley's ed., 123, note.