CHAPTER IV.

SELECTION OF COMPURGATORS.

As already remarked, the origin of the custom is to be traced to the principle of the unity of families. As the offender could summon his kindred around him to resist an armed attack of the injured party, so he took them with him to the court, to defend him with their oaths. Accordingly, we find that the service was usually performed by the kindred, and in some codes this is even prescribed by law, though not universally.[78] This is well illustrated in the Welsh laws, where the _raith_, or compurgation, was the basis of almost all procedure, and where consequently the system was brought to its fullest perfection. Complicated rules existed as to the proportion of paternal and maternal kindred required in various cases, and the connection between the _wer-gild_ and the obligation of swearing in defence of a kinsman was fully recognized—“Because the law adjudges the men nearest in worth in every case, excepting where there shall be men under vows to deny murder,” therefore the compurgators were required to be those “nearest to obtain his worth if killed.”[79] Under these circumstances, the _raith-man_ could be objected to on the score of not being of kin, when the oaths of himself and his principal were received as sufficient proof of relationship;[80] and the _alltud_, or foreigner, was not entitled to the raith unless he had kindred to serve on it.[81] How the custom sometimes worked in practice among the untameable barbarians is fairly illustrated by a case recounted by Aimoin as occurring under Chilperic I. in the latter half of the sixth century. A wife suspected by her husband offered the oath of purgation on the altar of St. Denis with her relatives, who were persuaded of her innocence; the husband not yet satisfied, accused the compurgators of perjury, and the fierce passions of both parties becoming excited, weapons were speedily drawn, and the sanctity of the venerable church was profaned with blood.[82]

It was manifestly impossible, however, to enforce the rule of kinship in all cases, for the number of compurgators varied in the different codes, and in all of them a great number were required when the matter at stake was large, or the crime or criminal important. Thus when Chilperic I. was assassinated in 584, doubts were entertained as to the legitimacy of his son Clotair, an infant of four months—doubts which neither the character of Queen Fredegonda nor the manner of Chilperic’s death had any tendency to lessen—and Gontran, brother of the murdered king, did not hesitate to express his belief that the royal child’s paternity was traceable to some one of the minions of the court, a belief doubtless stimulated by the promise it afforded him of another crown. Fredegonda, however, repaired her somewhat questionable reputation and secured the throne to her offspring, by appearing at the altar with three bishops and three hundred nobles, who all swore with her as to the legitimacy of the little prince, and no further doubts were ventured on the delicate subject.[83] A similar case occurred in Germany in 899, when Queen Uta cleared herself of an accusation of infidelity, by taking a purgatorial oath with eighty-two nobles.[84] So in 824, a dispute between Hubert, Bishop of Worcester, and the Abbey of Berkeley, concerning the monastery of Westbury, was settled by the oath of the bishop, supported by those of fifty mass-priests, ten deacons, and a hundred and fifty other ecclesiastics.[85] These were, perhaps, exceptional instances, but in Wales the law required, as a regular matter, enormous numbers of compurgators in many cases. Privity to homicide, for instance, was divided into three triads, or nine classes of various degrees of guilt. Of these, the first triad called for one hundred raith-men to establish the denial; the second triad, 200, and the third, 300;[86] while, to rebut an accusation of killing with savage violence or poisoning, the enormous number of six hundred compurgators was considered necessary.[87] Even these armies of oath-takers did not widen the circle from which selection was allowed, for the law absolutely specifies that “the oaths of three hundred men of a kindred are required to deny murder, blood, and wound,”[88] and the possibility of finding them is only explicable by the system of tribes or clans in which all were legally related one to another. This is illustrated by a further regulation, according to which, under the Gwentian code, in an accusation of theft, with positive evidence, the thief was directed to clear himself with twenty-four raith=men of his own _cantrev_ or district, in equal number from each _cymwd_ or sub-district.[89]

Under a different social organization, it is evidently impossible that a kindred sufficiently large could have been assembled in the most numerous families, and even when the requirements were more reasonable, the same difficulty must frequently have occurred. This is recognized in the Danish laws of the thirteenth and fourteenth centuries, where the conjuratorial oaths of kindred, known as _neffn i kyn_, were requisite, unless the accused could swear that he had no relations, in which case he was allowed to produce twelve other men of proper character, _lag feste men_.[90] In a constitution of Frederic II. in 1235, the compurgators are required to be of the same class as their principal, and to be _sinodales homines_, men of undoubted character.[91] Thus the aid of those not connected by ties of blood must often have been necessary, and as it was a service not without danger, as we shall see hereafter, it is not easy to understand how the requisite number was reached. In certain cases, no doubt, the possibility of obtaining those not bound by kindred to undertake the office is traceable to the liability which in some instances rested upon a township for crime committed within its borders;[92] while the system of guilds in which the members shared with each other a responsibility resembling that of kinship rendered participation in the oath of denial almost a necessity when a comrade was prosecuted.[93]

It would be endless to specify all the variations in the numbers required by the different codes in all imaginable cases of quarrel between every class of society. Numerous elements entered into these regulations; the nature of the crime or claim, the station of the parties, the rank of the compurgators, and the mode by which they were selected. Thus, in the simplest and most ancient form, the Salic law merely specifies twenty-five compurgators to be equally chosen by both parties.[94] Some formulas of Marculfus specify three freeholders and twelve friends of the accused.[95] A Merovingian edict of 593 directs the employment of three peers of the defendant, with three others chosen for the purpose, probably by the court.[96] Alternative numbers, however, soon make their appearance, depending upon the manner in which the men were chosen. Thus among the Alamanni, on a trial for murder, the accused was obliged to secure the support of twenty designated men, or, if he brought such as he had selected himself, the number was increased to eighty.[97] So, in a capitulary of 803, Charlemagne prescribes seven chosen conjurators, or twelve if taken at random,[98] a rule which is virtually the same as that laid down by the Emperor Henry III. in the middle of the eleventh century.[99] In 922 the council of Coblentz directs that accusations of sacrilege could be rebutted with twenty-four chosen men, or seventy-two freemen not thus selected.[100] In Bigorre the law thus discriminated against the _cagots_—an infamous wandering race of uncertain origin—for cases in which the oaths of seven conjurators ordinarily sufficed required thirty _cagots_, when the latter were called upon to act.[101] In an English record of the fifteenth century we find a defendant called upon to prove his innocence with six of his neighbors or twelve strangers.[102]

Strangely enough, the church at one time adopted the principle that the higher the rank of the accused the more he must present of his peers as compurgators. Thus the bishop required eleven bishops, the priest five priests, and the deacon two deacons; but Cardinal Henry of Susa who enunciates this says it is an error, and that the number is at the discretion of the judge.[103] The rule, moreover, that the compurgators must be of the same rank and class as the accused was waived when they were presumably inimical to him or the proper number could not be had, and thus a cleric might be cleared by the oaths of laymen.[104]

Variations likewise occur arising from the nature of the case and the character of the plaintiff. Thus in the Scottish law of the twelfth century, in a criminal charge, a man could defend himself against his lord with eleven men of good reputation, but if the king were the accuser, twenty-four were requisite, who were all to be his peers, while in a civil case twelve were sufficient.[105] So in the burgher laws of David I., ordinary cases between citizens were settled with ten conjurators, but eleven were necessary if the king were a party, or if the matter involved the life, limb, or lands of one of the contestants; and in cases occurring between a citizen and a countryman, each party had to provide conjurators of his own class.[106] In the complicated rules for compurgation which form the basis of the Welsh jurisprudence, there are innumerable details of this nature. We have seen that for some crimes many hundred _raith-men_ were required, while similar numbers were enjoined in some civil suits respecting real property.[107] From this the number diminishes in proportion to the gravity of the case, as is well illustrated by the provisions for denying the infliction of a bruise. If the mark remained until the ninth day, the accused could deny it with “two persons of the same privilege as himself;” if it remained until the eighteenth day, the oaths of three conjurators were necessary; if till the twenty-seventh day, four _raith-men_ were required.[108]

The character of the _raith-men_ also affected the number demanded. Thus, in a collection of Welsh laws of the fifteenth century there is an explanation of the apparent anomaly that privity to theft or homicide required for its defence a vastly greater number of compurgators than the commission of the crime itself. The large bodies prescribed for the former consisted simply of any men that could be had—of course within the recognized grades of kindred—while, for the latter, rules of varying complexity were laid down. Thus, of the twenty-four required for theft, in some texts it is prescribed that two-thirds are to be of the nearest paternal kin, and one-third of the nearest maternal; or, again, one-half _nod-men_.[109] So, in accusations of homicide, the same proportions of paternal and maternal kindred were required, all were to be proprietors in the country of the _raith_, and three, moreover, were to be men under vows of abstinence from linen, horses, and women, besides a proper proportion of _nod-men_.[110]

Instances also occur in which the character of the defendant regulated the number required. Among the Welsh, the laws of Hoel Dda provide that a wife accused of infidelity could disprove a first charge with seven women; if her conduct provoked a second investigation, she had to procure fourteen; while, on a third trial, fifty female conjurators were requisite for her escape.[111] Another application of the same principle is found in the provision that when a man confessed a portion of the crime imputed to him and denied the remainder, an augmented _raith_ was required to support his denial, because it is more difficult to believe a man who has admitted his participation in a criminal act. Thus when only fifty men were requisite to rebut a charge of homicide, and the accused admitted one of the accessories to homicide, his denial of the main charge had to be substantiated by one hundred, two hundred, or three hundred men, according to the nature of the case. On the other hand, where no criminal act was concerned, confession of a portion diminished the _raith_ for the remainder. Thus in a claim for suretyship, six compurgators were necessary to the defendant; but if he admitted part of the suretyship, his unsupported oath was sufficient to rebut the remainder, as the admission of a portion rendered him worthy of belief.[112] In the Anglo-Saxon jurisprudence, the _frangens jusjurandum_, as it was called, also grew to be an exceedingly complex system in the rules by which the number and quality of the conjurators were regulated according to the nature of the crime and the rank of the accused. In cases of peculiar atrocity, such as violation of the sanctity of the grave, only thanes were esteemed competent to appear.[113] In fact, among the Anglo-Saxons, the value of a man’s oath was rated according to his rank, that of a thane, for instance, being equal to those of seven villeins.[114] The same peculiarity is observable among the Frisians, whose laws required that compurgators should be of the same class as their principal, and the lower his position in the State, the larger was the number requisite.[115]

It was, however, not only the number of compurgators required that affected the result, but the method by which they were chosen, and this gave rise to wide variations in practice. Originally, it is probable that the selection was left to the accused, who gathered them from among his kindred. This would lead almost inevitably to his acquittal, as forcibly pointed out by Hincmar in the ninth century. In objecting to admit the purgation of an offending priest with ecclesiastics of his own choice, he states that evil-minded men combined together to defeat justice and secure immunity for their crimes by serving each other in turn, so that when the accused insisted on offering his companions to the oath, it was necessary to make them undergo the ordeal to prove their sincerity.[116] His expressions indicate that the question of selection at that time was undecided in France, and the alternative numbers alluded to above show one of the methods adopted to meet the evident evils of the process. Other nations devised various expedients. The original Lombard law of King Rotharis gave to the plaintiff the privilege of naming a majority of the compurgators, the remainder being chosen by the defendant,[117] but even in this the solidarity of the family was recognized, since it was the duty of the plaintiff to select the nearest relatives of his adversary, provided they were not personally hostile to the accused.[118] This same spirit is shown even so late as 1116, in a charter by which Baldwin VII. of Flanders gratified the citizens of Ypres by substituting among them the process of compurgation for the ordeal and battle trial. According to this, the accuser selected four of the relatives of the accused to take the purgatorial oath; if they refused through known enmity, he was bound to select four other of the kindred, and if none such were to be found then four legal men sufficed.[119] The English law was the first to educe a rational mode of trial from the absurdity of the barbaric traditions, and there the process finally assumed a form which occasionally bears a striking resemblance to trial by jury—in fact, it insensibly runs into the latter, to the rise of which it probably contributed. By the laws of Canute, in some cases, fourteen men were named to the defendant, among whom he was obliged to find eleven willing to take the purgatorial oath with him.[120] The selection of these virtual jurors was probably made by the _gerefa_, or sheriff;[121] they could be challenged for suspicion of partiality or other competent cause, and were liable to rejection unless unexceptionable in every particular.[122] Very similar to this was the _stockneffn_ of the ancient Danish law, by which, in cases where the relatives were not called upon, thirteen men were chosen, a majority of whom could clear the accused by taking the oath with him. They were nominated by a person appointed for the purpose, and if the court neglected this duty, the privilege enured to the plaintiff.[123] More facile for the defence was a process prescribed in a Spanish charter of 1135, where, in cases of homicide, it sufficed for the accused to obtain five conjurators out of twelve selected by the magistrates.[124] A method combining selection and chance is described in the custumal of Ipswich in the twelfth century, to decide questions of debt between the townsfolk. The party on whom proof was incumbent brought in ten men; these were divided into two bands of five each, and a knife was thrown up between them; the band towards which the point of the knife fell was taken, one of the five was set aside, and the remaining four served as conjurators.[125]

The Northern nations were evidently less disposed to favor the accused than the Southern. In Sweden and Denmark, another regulation provides that although the defendant had a right to demand this mode of purgation, yet the plaintiff had the selection of the twelve men who served as conjurators; three of these the accused could challenge for enmity, but their places were supplied by the plaintiff.[126] The evanescent code compiled for Iceland by Haco Haconsen and his son Magnus, towards the close of the thirteenth century, is more equitable in its provisions. Though it leaves the nomination of the conjurators to the defendant, the choice is subject to limitations which placed it virtually in the power of the court. They were required to be men of the vicinage, of good repute, peers of the accused, and in no way connected with him by blood or other ties.[127] The more lasting code promulgated at the same time by Magnus for his Norwegian dominions, a code which became the common law of Norway for 500 years, provides, for cases in which eleven conjurators are required, that seven of them shall be selected of intelligent men of full age, and in no way related to the accused, yet residents of the vicinage, and acquainted with the facts; the accused can then add four more of good character, himself making the twelfth.[128] We see here, as in the English jurisprudence, how nearly the conjuratorial process approaches to the jury-trial, and how completely it has departed from its origin in the solidarity of the family.

Such care in the selection of those on whom duties so responsible devolved did not prevail among the more Southern races at an earlier age. Among the Lombards slaves and women in tutelage were often employed.[129] The Burgundians required that the wife and children, or, in their absence, the father and mother of the accused should assist in making up the number of twelve,[130] the object being evidently to increase the responsibility of the family for the action of its head. The abuses of this custom, however, caused its prohibition under Charlemagne for the reason that it led to the swearing of children of tender and irresponsible age.[131] That legislator, however, contented himself with forbidding those who had once been convicted of perjury from again appearing either as witnesses or conjurators;[132] and the little care that was deemed necessary in their selection under the Carlovingian jurisprudence is shown by a law of Louis le Débonnaire ordering that landless freemen should be allowed to serve as conjurators, though ineligible as witnesses.[133] A truer conception of the course of justice is manifested, some centuries later, by the Béarnese legislation, which required that the _seguidors_ or conjurators, as well as the _testimonis_ or witnesses should be men able to pay the amount at stake, together with the fine incurred by the losing party,[134] or that they should be fair and loyal men, not swayed by enmity.[135]

In ecclesiastical trials it would seem that the selection of compurgators rested with the bishop. In a case occurring in the thirteenth century, of a priest accused of homicide who failed in his compurgation, he appealed to the Holy See on the ground that his accusers were perjurers and that the bishop had chosen the compurgators to suit himself.[136] As a matter of course, the result of the trial depended, as it does with the modern jury, on the fairness with which the choice was made, and in the universal corruption of the middle ages there is no reason to suppose that favoritism or bribery was not a controlling influence in a majority of cases.