CHAPTER V.

CONDITIONS OF COMPURGATION.

The conditions under which resort was had to this mode of deciding litigation have been the subject of some discussion. It has been assumed that, in the early period, before the ferocious purity of the Barbarians had become adulterated under the influence of Roman civilization, it was used in all description of cases, at the option of the defendant, and was in itself a full and satisfactory proof, received on all hands as equal to any other.[137] The only indication that I have met with, among the races of Teutonic stock, tending to the support of such a conjecture, occurs in the Lombard code, where Rotharis, the earliest compiler of written laws, abolishes a previously existing privilege of denying under oath a crime after it had been confessed.[138] A much more powerful argument on the other side, however, is derivable from the earliest text of the Salic law, to which reference has already been made. In this, the formula shows clearly that conjurators were only employed in default of other testimony;[139] and what lends additional force to the conclusion is that this direction disappears in subsequent revisions of the law, wherein the influences of Christianity and of Roman civilization are fully apparent. No safe deductions, indeed, can be drawn from mere omissions to specify that the absence of witnesses was necessary, for these ancient codes are drawn up in the rudest manner, and regulations which might safely be presumed to be familiar to every one would not, in their curt and barbarous sentences, be repeated with the careful redundancy which marks our modern statutes. Thus there is a passage in the code of the Alamanni which declares in the most absolute form that if a man commits a murder and desires to deny it, he can clear himself with twelve conjurators.[140] This, by itself, would authorize the assumption that compurgation was allowed to override the clearest and most convincing testimony, yet it is merely a careless form of expression, for another section of the same code expressly provides that where a fact is proved by competent witnesses the defendant shall not have the privilege of producing compurgators.[141]

It therefore seems evident that, even in the earliest times, this mode of proof was only an expedient resorted to in doubtful matters, and on the necessity of its use the _rachinborgs_ or judges probably decided. A case recorded in the Landnamabok certainly shows that among the heathen Norsemen the Godi or priest-judge had this power, for when Thorbiorn Digre prosecuted Thorarin of Mafahlid for horse-stealing, and demanded that he should produce twelve conjurators, Arnkell, the Godi, decided that the accused might clear himself with his simple oath on the holy ring of the altar, and thus the prosecution came to naught except as leading to a bloody feud.[142] That this discretion was lodged in the court in subsequent times is generally admitted. It is scarcely worth while to multiply proof; but a few references will show the light in which the custom was regarded.[143]

As employed by the Church, the rule was distinctly enunciated in the thirteenth century that the accused was not to be allowed to clear himself by canonical purgation when the crime was notorious or when the accuser offered to prove the charge.[144]

The Welsh, however, were exceptional in this respect. The _raith_ was the corner-stone of their system of jurisprudence. It was applied to almost all actions, whether of civil or criminal law, and even cases of doubtful paternity were settled by it, no woman, except one “of bush and brake” who had no legal kindred, being allowed to give testimony or take an oath with respect to the paternity of her illegitimate child.[145] It excluded and superseded all other procedures. If the accused declined to take the oath of denial, then testimony on both sides could be introduced, and the case be settled on the evidence adduced;[146] but where he chose to abide by the _raith_, the Book of Cynog formally declares that “Evidences are not to be brought as to _galanas_ [homicide], nor _saraad_ [insults], nor blood, nor wound, nor ferocious acts, nor waylaying, nor burning buildings, nor theft, nor surety, nor open assault, nor adultery, nor violence, nor in a case where guardians should be, nor in a case where an established raith is appointed by law; because evidences are not to extinguish a raith.”[147] Indeed, the only case which I have found wherein it was refused is where a priest of the same parish as one accused of theft testifies to have seen him in open daylight with the article stolen in his possession, when apparently the sacred character of the witness precludes a denial on the part of the defendant.[148]

Among other races confidence in its ability to supplement absent or deficient testimony was manifested in another form—the _juramentum supermortuum_—which was employed by various nations, at wide intervals of time. Thus, in the earliest legislation of the Anglo-Saxons, we find that when the defendant or an important witness was dead, the oath which he would have taken or the deposition which he would have made was obtained by proceeding to his tomb, where a certain number of conjurators swore as to what he could or would have done if alive.[149] Two centuries later, the same custom is alluded to in the Welsh laws of Hoel Dda,[150] and even as late as the thirteenth century it was still in force throughout Germany.[151] There were other cases in which evidence of any kind was almost impossible, and in these the wager of law offered a convenient resource. Thus, Frederic II., in 1235, decreed that a man harboring an outlaw should himself be outlawed, but he was allowed to prove with six conjurators that he was ignorant of the outlawry.[152]

A remarkable use of conjurators to confirm the evidence of witnesses occurs in 850 in a dispute between Cantius, Bishop of Siena, and Peter, Bishop of Arezzo, concerning certain parishes claimed by both. The occasion was a solemn one, for it was before a council held in Rome presided over jointly by Pope Leo IV. and the Emperor Louis II. Peter relied upon written charters, while Cantius produced witnesses. The Emperor pronounced the claim of the latter to be just, when he and twelve priests swore that the oaths of the witnesses were true and without deceit, whereupon the disputed parishes were adjudged to him.[153]

The employment of compurgators, however, depended frequently upon the degree of crime alleged, or the amount at stake. Thus, in many codes, trivial offences or small claims were disposed of by the single oath of the defendant, while more important cases required compurgators, whose numbers increased with the magnitude of the matter in question. This principle is fairly illustrated in a charter granted to the Venetians in the year 1111 by Henry V. In suits which involved only the value of a silver pound, the oath of the party was sufficient; but if the claim amounted to twelve pounds or more, then twelve chosen men were requisite to substantiate the oath of negation.[154]

In England in the thirteenth century we find compurgation very generally employed in the manorial courts for the settlement of petty criminal actions. So general was its use, indeed, that it obtained the name of “law,” as the legal method _par excellence_, and the process is curtly described in the reports as “facere legem,” “esse ad legem,” “vadiare legem,” whence is derived the term “wager of law.” The number of compurgators was generally two or five, and they seem to have been left, as a rule, to the choice of the defendant, so that failure to procure the requisite number was very unusual.[155]

In later times, compurgation was also sometimes used as an alternative when circumstances prevented the employment of other popular modes of deciding doubtful cases. Those, for instance, who would ordinarily be required to defend themselves by the wager of battle, were permitted by some codes to substitute the oaths of a certain number of conjurators, when precluded by advanced age from appearing in the arena. The burgher law of Scotland affords an example of this,[156] though elsewhere such cases were usually settled by the substitution of champions. Class privileges also manifested themselves in this as in so many other features of mediæval law, and we sometimes find compurgation allowed as a favor to those of gentle birth. Thus, in the Council of Reims in 1119, among the provisions for the enforcement of the Truce of God, accusations of its violation are rebutted by knights with six compurgators, while common people are required to undergo the ordeal.[157]