CHAPTER VII.

DECLINE OF COMPURGATION.

In a system of which the fundamental principle was so vicious, the best efforts of legislation could prove but a slight palliation, and from an early period we find efforts made for its abrogation or limitation. In 983, a constitution of Otho II. abolished it in cases of contested estates, and substituted the wager of battle, on account of the enormous perjury which it occasioned.[191] In England, a more sweeping denunciation, declaring its abolition and replacing it with the vulgar ordeal, is found in the confused and contradictory compilation known as the laws of Henry I.[192]

We have already seen, from instances of later date, how little influence these efforts had in eradicating a custom so deeply rooted in the ancestral prejudices of all the European races. The hold which it continued to enjoy on the popular confidence is well illustrated by the oath which, according to the Romancero, was exacted of Alfonso VI. of Castile, by the Cid to clear him of suspicion of privity to the death of his brother and predecessor Sancho II. at the siege of Zamora, where he was slain by Bellido Delfos—

“Que nos fagays juramento Qual vos lo querrán tomar, Vos y doce de los vuesos, Quales vos querays juntar, Que de la muerte del Rey Non tenedes que culpar.... Ni tampoco della os plugo, Ni a ella distes lugar.”[193]

The same reliance on its efficacy is shown in a little ballad by Audefroi-le-Bâtard, a renowned _trouvère_ of the twelfth century:—

LA BELLE EREMBORS.[194]

“Quand vient en mai, que l’on dit as lons jors,” etc.

In the long bright days of spring-time, In the month of blooming May, The Franks from royal council field All homeward wend their way. Rinaldo leads them onward, Past Erembors’ gray tower, But turns away, nor deigns to look Up to the maiden’s bower. Ah, dear Rinaldo!

Full in her turret window Fair Erembors is sitting, The love-lorn tales of knights and dames In many a color knitting. She sees the Franks pass onward, Rinaldo at their head, And fain would clear the slanderous tale That evil tongues have spread. Ah, dear Rinaldo!

“Sir knight, I well remember When you had grieved to see The castle of old Erembors Without a smile from me.” “Your vows are broken, princess, Your faith is light as air, Your love another’s, and of mine You have nor reck nor care.” Ah, dear Rinaldo!

“Sir knight, my faith unbroken, On relics I will swear; A hundred maids and thirty dames With me the oath shall share. I’ve never loved another, From stain my vows are free. If this content your doubts and fears, You shall have kisses three.” Ah, dear Rinaldo!

Rinaldo mounts the staircase, A goodly knight, I ween, With shoulders broad and slender waist, Fair hair and blue eyes keen. Earth holds no youth more gifted In every knightly measure; When Erembors beholds him, She weeps with very pleasure. Ah, dear Rinaldo!

Rinaldo in the turret Upon a couch reposes, Where deftly limned are mimic wreaths Of violets and of roses. Fair Erembors beside him Sits clasped in loving hold, And in their eyes and lips they find The love they vowed of old! Ah, dear Rinaldo!

In England, although as we have seen (p. 57), the wager of law was the customary resource of the manorial courts in disputed questions, the shrewd and intelligent lawyers who were building up and systematizing the practice of the royal courts were disposed to limit it as much as possible in criminal cases. Towards the close of the twelfth century, Glanville compiled his excellent little treatise “De legibus Angliæ,” the first satisfactory body of legal procedure which the history of mediæval jurisprudence affords. Complete as this is in all the forms of prosecution and defence, the allusions to conjurators are so slight as to show that already they were employed rather on collateral points than on main questions. Thus a defendant who desired to deny the serving of a writ could swear to its non-reception with twelve conjurators;[195] and a party to a suit, who had made an unfortunate statement or admission in court, could deny it by bringing forward two to swear with him against the united recollections and records of the whole court.[196] The custom, however, still maintained its hold on popular confidence. In 1194, when Richard I. undertook, after his liberation, to bring about a reconciliation between his chancellor William, Bishop of Ely, and the Archbishop of York, one of the conditions was that the chancellor should swear with a hundred priestly compurgators that he had neither caused nor desired the arrest of the archbishop.[197] In the next century Bracton alludes to the employment of conjurators in cases of disputed feudal service between a lord and his vassal, wherein the utmost exactness was rigidly required both as to the number and fitness of the conjurators,[198] and we shall see that no formal abrogation of it took place until the nineteenth century. An outgrowth of the custom, moreover, was the Inquest of Fame, by which “the general character of the accused, as found by a jury, was accepted as an indication of the guilt or innocence of the prisoner.”[199]

Soon after the time of Glanville, the system of compurgation received a severe shock from its most important patron, the church. As stated above, in proceedings between ecclesiastics, it was everywhere received as the appropriate mode of deciding doubtful cases. At the same time the absolute character of the compurgatorial oath was too strong an incentive to perjury, ignorant or wilful, for conscientious minds to reconcile themselves to the practice, and efforts commenced to modify it. About 1130 Innocent II., in prescribing compurgation for the Bishop of Trent, accused of simony, orders that the oath of the conjurators shall be simply as to their belief in the bishop’s oath.[200] Gratian inserted this in his _Decretum_, and a commentator soon afterwards speaks of it as an opinion held by some authorities.[201] It was reserved for Innocent III. to give this the full sanction of law as a general regulation. Compurgation was too valuable a resource for churchmen to be discarded, and he endeavored to check the abuses to which it led, by demanding conjurators of good character, whose intimacy with the accused would give weight to their oaths.[202] At the same time, in endeavoring to remove one of the objections to its use, he in reality destroyed one of its principal titles to respect, for in decreeing that compurgators should only be obliged to swear to their belief in the truth of the principal’s oath,[203] he attacked the very foundation of the practice, and gave a powerful impulse to the tendency of the times no longer to consider the compurgator as sharing the guilt or innocence of the accused. Such an innovation could only be regarded as withdrawing the guarantee which had immemorially existed. To recognize it as a legal precept was to deprive the proceeding of its solemnity and to render it no longer a security worthy the confidence of the people or sufficient to occupy the attention of a court of justice.

In the confusion arising from the long and varying contest as to the boundaries of civil and ecclesiastical jurisdiction, it is not easy to determine the exact influence which this decretal may have exercised directly in secular jurisprudence. We have seen above that the ancient form of absolute oath was still employed without change until long after this period, but the moral effect of so decided a declaration from the head of the Christian church could not but be great. Another influence, not less potent, was also at work. The revival of the study of the Roman jurisprudence, dating from about the middle of the twelfth century, soon began to exhibit the results which were to work so profound a change in the legal maxims and principles of half of Europe.[204] The criminal procedure of the Barbarians had rested to a great degree on the system of negative proofs. In the absence of positive evidence of guilt, and sometimes in despite of it, the accused was bound to clear himself by compurgation or by the ordeal. The cooler and less impassioned justice of the Roman law saw clearly the futility of such attempts, and its system was based on the indisputable maxim that it is morally impossible to prove a negative—unless, indeed, that negative should chance to be incompatible with some affirmative susceptible of evidence—and thus the onus of proof was thrown upon the accuser.[205] The civil lawyers were not long in recognizing the truth of this principle, and in proclaiming it far and wide. The Spanish code of Alfonso the Wise, in the middle of the thirteenth century, asserts it in almost the same words as the Roman jurisconsult.[206] Not long before, the Assises de Jerusalem had unequivocally declared that “nul ne peut faire preuve de non;” and Beaumanoir, in the _Coutumes du Beauvoisis_, approvingly quotes the assertion of the civil doctors to the same effect, “Li clerc si dient et il dient voir, que negative ne doit pas quevir en proeve.”

Abstract principles, however, though freely admitted, were not yet powerful enough to eradicate traditional customs rooted deeply in the feelings and prejudices of the age. The three bodies of law just cited contradict their own admissions, in retaining with more or less completeness the most monstrous of negative proofs—the ordeal of battle—and the introduction of torture soon after exposed the accused to the chances of the negative system in its most atrocious form. Still these codes show a marked progress as relates to the kindred procedure of compurgation. The Partidas, promulgated about 1262, record the convictions of an enlightened ruler as to what should be law rather than the existing institutions of a people, and were not accepted as authoritative until the middle of the fourteenth century. The absence of compurgation in Spain, moreover, was a direct legacy from the Wisigothic code, transmitted in regular descent through the Fuero Juzgo.[207] The Assises de Jerusalem is a more precious relic of mediæval jurisprudence. Constructed as a code for the government of the Latin kingdoms of the East, in 1099, by order of Godfrey of Bouillon, it has reached us only in the form assumed about the period under consideration, and as it presents the combined experience of the warriors of many Western races, its silence on the subject of conjurators is not a little significant. The work of Beaumanoir, written in 1283, is not only the most perfect embodiment of the French jurisprudence of his time, but is peculiarly interesting as a landmark in the struggle between the waning power of feudalism and the Roman theories which gave intensity of purpose to the enlightened centralization aimed at by St. Louis: and Beaumanoir likewise passes in silence over the practice of compurgation, as though it were no longer an existing institution. All these legislators and lawyers had been preceded by the Emperor Frederic II., who, in 1231, promulgated his “Constitutiones Sicularum” for the government of his Neapolitan provinces. Frederic was Latin, and not Teutonic, both by education and predilection, and his system of jurisprudence is greatly in advance of all that had preceded it. That conjurators should find no place in his scheme of legal procedure is, therefore, only what might be expected. The collection of laws known as the _Êtablissements_ of St. Louis is by no means a complete code, but it is sufficiently copious to render the absence of all allusion to compurgation significant. In fact, the numerous references to the Digest show how strong was the desire to substitute the Roman for the customary law, and the efforts of the king to do away with all negative proofs of course included the one under consideration. The same may be said of the _Livres de Jostice et de Plet_ and the _Conseil_ of Pierre de Fontaines, two unofficial books of practice, which represent with tolerable fulness the procedures in vogue during the latter half of the thirteenth century; while the _Olim_, or records of the Parlement of Paris, the king’s high court of justice, show that the same principles were kept in view in the long struggle by which that body succeeded in extending the royal jurisdiction at the expense of the independence of the vainly resisting feudatories. In the _Olim_ from 1254 to 1318, I can find but two instances in which compurgation was required—one in 1279 at Noyon, and one in 1284 at Compiègne. As innumerable decisions are given of cases in which its employment would have been equally appropriate, these two can only be regarded as exceptional, and the inference is fair that some local custom rendered it impossible to refuse the privilege on these special occasions.[208]

All these were the works of men deeply imbued with the spirit of the resuscitated jurisconsults of Rome. Their labors bear testimony rather to the influences tending to overthrow the institutions bequeathed by the Barbarians to the Middle Ages, than to a general acceptance of the innovations attempted. Their authority was still circumscribed by the innumerable jurisdictions which yet defied their gradual encroachments and resolutely maintained ancestral customs. Thus, in 1250, we find in the settlement of a quarrel between Hugues Tirel Seigneur of Poix in Picardy and the commune of that place, that one of the articles was to the effect that the mayor with thirty-nine of the bourgeois should kneel before the dame de Poix and offer to swear that an insult inflicted on her had not been done, or that if it had, it had been in honor of the Seigneur de Poix.[209] Even an occasional instance may be found where the central power itself permitted the use of compurgation, showing how difficult it was to eradicate the prejudices transmitted through ages from father to son, and that the policy adopted by St. Louis and Philippe le Bel, aided by the shrewd and energetic civil lawyers who assisted them so ably, was not in all cases adhered to. Thus, in 1283, when the bailli of Amiens was accused before the Parlement of Paris of having invaded the privileges of the church by trying three clerks accused of crime, it was decided that he should swear with six compurgators as to his ignorance that the criminals were ecclesiastics.[210] So, in 1303, a powerful noble of the court of Philippe le Bel was accused of a foul and treacherous murder, which a brother of the victim offered to prove by the wager of battle. Philippe was endeavoring to abolish the judicial duel, and the accused desired strongly to escape that ordeal. He was accordingly condemned to clear himself of the imputed crime by a purgatorial oath with ninety-nine nobles, and at the same time to satisfy the fraternal claim of vengeance with an enormous fine[211]—a decision which offers the best practical commentary on the degree of faith reposed in this system of purgation. Even the Parlement of Paris in 1353 and a rescript of Charles le Sage in 1357 allude to compurgation as still in use and of binding force.[212]

It was in the provinces, however, that the system manifested its greatest vitality, protected both by the stubborn dislike to innovation and by the spirit of independence which so long and so bitterly resisted the centralizing efforts of the crown. The Roman law concentrated all power in the person of the sovereign, and reduced his subjects to one common level of implicit obedience. The genius of the barbaric institutions and of feudalism localized power. The principles were essentially oppugnant, and the contest between them was prolonged and confused, for neither party could in all cases recognize the ultimate result of the minuter points involved, though each was fully alive to the broad issues of the struggle.

How obstinate was the attachment to bygone forms may be understood when we see even the comparatively precocious civilization of a city like Lille preserve the compurgatorial oath as a regular procedure until the middle of the fourteenth century, even though the progress of enlightenment had long rendered it a mere formality, without serious meaning. Until the year 1351, the defendant in a civil suit was obliged to substantiate the oath of denial with two conjurators of the same sex, who swore to its truth, to the best of their belief.[213] The minutest regulations were enforced as to this ceremony, the position of every finger being determined by law, and though it was the veriest formality, serving merely as an introduction to the taking of testimony and the legal examination of the case, yet the slightest error committed by either party lost him the suit irrecoverably.[214]

Normandy was even more faithful to the letter of the ancient traditions. The Coutumier in use until the revision of 1583 under Henry III. retains a remnant of the practice under the name of _desrene_, by which, in questions of little moment, a man could rebut an accusation with two or four compurgators, even when it was sustained by witnesses. The form of procedure was identical with that of old, and the oath, as we have already seen (page 58), was an unqualified assertion of the truth of that of the accused.[215] Practically, however, we may assume that the custom had become obsolete, for the letters patent of Henry III., ordering the revision in 1577, expressly state that the provisions of the existing laws “estoient la pluspart hors d’usage et peu ou point entendu des habitants du pays;” and that compurgation was one of the forgotten formulas may fairly be inferred from the fact that Pasquier, writing previous to 1584, speaks of it as altogether a matter of the past.[216]

The fierce mountaineers of Béarn were comparatively inaccessible to the innovating spirit of the age, and preserved their feudal independence amid the progress and reform of the sixteenth century long after it had become obsolete elsewhere throughout Southern Europe. Accordingly, we find the practice of compurgation maintained as a regular form of procedure in the latest revision of their code, made by Henry II. of Navarre in 1551, which continued in force until the eighteenth century.[217] The influence of the age is shown, however, even there, in a modification of the oath, which is no longer an unreserved confirmation of the principal, but a mere affirmation of belief.[218]

In Castile, a revival of the custom is to be found in the code compiled by Pedro the Cruel, in 1356, by which, in certain cases, the defendant was allowed to prove his innocence with the oath of eleven hidalgos.[219] This, however, is so much in opposition to the principles of the Partidas, which had but a few years previous been accepted as the law of the land, and is so contrary to the spirit of the Ordenamiento de Alcalà, which continued in force until the fifteenth century, that it can only be regarded as a tentative resuscitation of mere temporary validity.

* * * * *

The Northern races resisted more obdurately the advances of the reviving influence of the Roman law. Though we have seen Frederic II. omitting all notice of compurgation in the code prepared for his Neapolitan dominions in 1231, he did not attempt to abrogate it among his German subjects, for it is alluded to in a charter granted to the city of Regensburg in 1230.[220] The Schwabenspiegel, which during the thirteenth and fourteenth centuries was the municipal law of Southern Germany, directs the employment of conjurators in various classes of actions which do not admit of direct testimony.[221] The code in force in Northern Germany, as we have already seen, gave great facilities for rebutting accusations by the single oath of the defendant, and therefore the use of conjurators is but rarely referred to in the Sachsenspiegel, though it was not unknown, for either of the parties to a judicial duel could refuse the combat by procuring six conjurators to swear with him that he was related to his antagonist.[222] In the Saxon burgher law, however, the practice is frequently alluded to, and it would seem from various passages that a man of good character who could get six others to take with him the oath of denial was not easily convicted. But where there was satisfactory proof, compurgation was not allowed, and in homicide cases, if a relative of the slain decided to proceed by the duel, his claim of vengeance was supreme, and no other process was admissible.[223] It is evident, however, that compurgation retained its hold on popular respect when we see, about 1300, the Emperor Albert I. substituting it for the duel in a considerable class of criminal cases.[224] In the early part of the sixteenth century, Maximilian I. did much to diminish the use of the compurgatorial procedure,[225] but that he failed to eradicate it entirely is evident from a constitution issued by Charles V. in 1548, wherein its employment is enjoined in doubtful cases in a manner to show that it was an existing resource of the law, and that it retained its hold upon public confidence, although the conjurators were only required to swear as to their belief in the oath of their principal.[226]

In the Netherlands it likewise maintained its position. Damhouder, writing in 1554, after describing its employment in the Courts Christian, adds that by their example it was occasionally used also in secular tribunals.[227]

In Scotland, as late as the middle of the fourteenth century, its existence is proved by a statute which provides that if a thief escaped from confinement, the lord of the prison should clear himself of complicity with the evasion by the oaths of thirty conjurators, of whom three were required to be nobles.[228]

The Scandinavian nations adhered to the custom with even greater tenacity. In the code of Haco Haconsen, issued towards the close of the thirteenth century, it appears as the basis of defensive procedure in almost all criminal cases, and even in civil suits its employment is not infrequently directed, the number of conjurators being proportioned to the nature of the crime or to the amount at stake, and regulations for administering the oath being given with much minuteness.[229] In Denmark it was not abolished until near the middle of the seventeenth century, under Christiern IV., after it had become a crying abuse through the habit of members of families, and even of whole guilds, entering into formal engagements to support each other in this manner.[230] The exact date of its abrogation is a matter of uncertainty, and the stubbornness with which the people clung to it is shown by the fact that even in 1683 Christiern V., in promulgating a new code, found it necessary formally to prohibit accused persons from being forced to provide conjurators.[231] In Sweden, its existence was similarly prolonged. Directions for its use are contained in the code which was in force until the seventeenth century;[232] it is constantly alluded to in the laws of Gustavus Adolphus;[233] and an edict of Charles XI. in 1662 reproves the readiness with which men were everywhere prompt to serve as compurgators, and requires the judges, before admitting them, to investigate whether they are proper persons and what are their reasons to believe in the innocence of their principal.[234] By this time, therefore, though not yet witnesses, they were becoming assimilated to them.

The vitality of communal societies among the Slavs naturally led to the maintenance of a custom which drew its origin from the solidarity of families, and it is therefore not surprising to find it in Poland described as in full force as late as the eighteenth century, the defendant being obliged to support his purgatorial oath with conjurators, who swore as to its truth.[235] Yet among the Poles confidence in it as a legal proof had long been undermined. In 1368 Casimir III. decreed that a man of good repute, when accused of theft, could clear himself by his own oath; but if his character was doubtful, and compurgation was prescribed, then if he fell short by one conjurator of the number required, he should satisfy the accuser, though he should not be rendered infamous for the future. This led to an increase of crime, and a hundred years later Casimir IV. proclaimed a law by which compurgation was only allowed three times, after which a persistent offender was abandoned to the full severity of the law, as being presumably guilty and not deserving of escape. At the same time any one summoned to compurgation, and appearing before the judge without compurgators, was _ipso facto_ pronounced infamous. From a case recorded it would appear that twelve conjurators were required to outweigh the single oath of the accuser.[236] Among the southern Slavs the custom was likewise preserved to a comparatively late date. An edict of Hermann, Ban of Slavonia, in 1416, orders that any noble accused of neglect to enforce a decree of proscription against a malefactor, should purge himself with five of his peers as conjurators, in default of which he was subject to a fine of twenty marcs.[237]

The constitutional reverence of the Englishman for established forms and customs, however, nominally preserved this relic of barbarism in the common law to a period later by far than its disappearance from the codes of other nations. The system of inquests and ordeals established by the Assize of Clarendon in 1166 and the rise of the jury system led to its being superseded in criminal matters, but in civil suits it held its own. According to Bracton, in the thirteenth century, in all actions arising from contracts, sales, donations, etc., when there was no absolute proof, the plaintiff came into court with his _secta_, and the defendant was bound to produce two conjurators for each one advanced by the plaintiff, the evidence apparently preponderating according to quantity rather than quality.[238] From the context, it would appear that the _secta_ of the plaintiff consisted of his friends and followers willing to take the oath with him, but not absolutely witnesses. The Fleta, however, some twenty-five years later, uses the term in the sense of witnesses, and in actions of debt directs the defence to be made with conjurators double in number the plaintiff’s witnesses,[239] thus offering an immense premium on dishonesty and perjury. Notwithstanding this, the nobles and gentry who came to London to attend the court and Parliament apparently were subjected to many annoyances by the citizens who strove to collect their debts, and in 1363 Edward III. relieved them by abrogating the wholesome rule laid down by Bracton, and enacting that a debtor could wage his law with a sufficient number of conjurators in spite of any papers put forward in evidence by the creditor, who is curtly told to find his remedy in some other way.[240] The unquestionable advantages which this offered to not the least influential part of a feudal community probably had something to do with its preservation. The “Termes de la Ley,” compiled in the early part of the sixteenth century, states as the existing practice that “when one shall wage his law, he shall bring with him 6, 8, or 12 of his neighbors, as the court shall assign him, to swear with him;” and when in a statute of 1585 imposing severe fines for using wood or charcoal in iron manufacture it is provided that offenders shall not be entitled to defence by the wager of law, it shows that proceeding to be still in common use, though it was recognized as a means of eluding justice.[241] Style’s “Practical Register,” published in 1657, also describes the process, but an absurd mistake as to the meaning of the traditional expression “jurare manu” shows that the matter was rather a legal curiosity than a procedure in ordinary use; and, indeed, the author expressly states that the practice having been “abused by the iniquity of the people, the law was forced to find out another way to do justice to the nation.” Still the law remained unaltered, and a case is recorded occurring in 1708, known as Gunner’s case, where “the plaintiff became nonsuit, when the defendant was ready to perfect his law,”[242] and Jacob, in his “Review of the Statutes,” published not long after, treats of it as still part of the existing judicial processes. As the wager of law came to be limited to simple actions of debt, shrewd lawyers found means of avoiding it by actions of “trespass upon the case,” and other indirect forms which required the intervention of a jury, but Burn in his Law Dictionary (Dublin, 1792) describes the whole process with all its forms as still existing, and in 1799 a case occurred in which a defendant successfully eluded the payment of a claim by producing compurgators who “each held up his right hand, and then laid their hands upon the book and swore that they believed what the defendant swore was true.” The court endeavored to prevent this injustice, but was forced to accept the law of the land. Even this did not provoke a change. In 1824, in the case of King _v._ Williams (2 Barnewell & Cresswell, 528), some black-letter lawyer revived the forgotten iniquity for the benefit of a client in want of testimony, and demanded that the court should prescribe the number of conjurators necessary for the defence, but the court refused assistance, desiring to give the plaintiff the benefit of any mistake that might be made. Williams then got together eleven conjurators, and appeared in court with them at his back, when the plaintiff, recognizing the futility of any further proceedings, abandoned his case in disgust.[243] Still, the fine reverential spirit postponed the inevitable innovation, and it was not until 1833 that the wager of law was formally abrogated by 3 and 4 William IV., c. 42, s. 13.[244]

English colonists carried the ancestral custom across the sea and seem to have resorted to it as an infallible mode of settling certain cases for which no positive evidence could be had. Small as was the infant colony of Bermuda, its court records for a little more than six months show four instances of its use, all of which occur in deciding cases of “suspition of incontinency” regularly presented by the grand jury or the ecclesiastical authorities.[245]

Doubtless if the early records of Virginia and Massachusetts could be searched similar evidence of its use would be found in them. Indeed it is quite possible that, strictly speaking, the wager of law may still preserve a legal existence in this country. In 1712 an act of the Colony of South Carolina, enumerating the English laws to be held as in force there, specifically includes those relating to this mode of defence, and I am not aware that they have ever been formally abrogated.[246] In 1811 Chancellor Kilty, of Maryland, speaks of the wager of law as being totally disused in consequence of the avoidance of the forms of suit which might admit of its employment, but he evidently regards it as not then specifically abolished.[247]

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While the common sense of mankind was gradually eliminating the practice from among the recognized procedures of secular tribunals, the immutable nature of ecclesiastical observances prolonged its vitality in the bosom of the church. We have seen above that Innocent III., about the commencement of the thirteenth century, altered the form of oath from an unqualified confirmation to a mere assertion of belief in the innocence of the accused. That this at once became the standard formula in ecclesiastical cases is probable when we find it adopted for the oaths of the compurgators who, during the Albigensian persecution, were required by the nascent Inquisition in all cases to assist in the purgation of such suspected heretics as were allowed to escape so easily.[248] And this is no doubt the “congruous purgation” to which Innocent III. and Gregory IX. alluded as that by which suspected heretics should clear themselves.[249] Zealous inquisitors, however, paid little attention to such forms which allowed their victims a chance of escape, for it is related of Conrad of Marburg, who for a short time spread terror and desolation throughout Germany, that when the accused confessed he subjected them to torture and the frightful penance provided by the church, but that when they denied their guilt he sent them at once to the stake. The compurgatorial process, however, vindicated itself in a notable manner when Conrad’s cruelties at length aroused effective opposition. Count Sayn, whom he had accused, was virtually acquitted at the Council of Mainz, July, 1233, soon after which Conrad was assassinated: the count, however, required formal vindication, and at the Diet of Frankfort, in February, 1234, he cleared himself of the charge of heresy in the most imposing manner with a train of compurgators comprising eight bishops, twelve Cistercian abbots, twelve Franciscan and three Dominican monks, and a number of Benedictine abbots, clergy, and noble laymen. After this, in April, the Council of Mainz declared him and others of Conrad’s victims to be innocent and to be restored to reputation and to their possessions.[250]

The practice of compurgation thus introduced at the foundation of the Inquisition was maintained to the last by that terrible tribunal. “Our holy mother church,” says Simancas, Bishop of Badajos, a writer of the sixteenth century, “can in no way endure the suspicion of heresy, but seeks by various remedies to cure the suspect. Sometimes she forces them to abjure or to purge themselves; sometimes she elicits the truth by torture, and very often she coerces them with extraordinary punishments.” Therefore, any one whose orthodoxy was doubtful, if he was unwilling to clear himself, at the command of the judge, was held to be convicted of heresy. By the secular law he had a year’s grace before condemnation, but under the ecclesiastical law he was instantly punishable.[251]

Canonical purgation, according to the rules of the Inquisition, was indicated when public report rendered a man suspected and there was no tangible evidence against him. The number of compurgators was left to the discretion of the judge, who at the same time decided whether the deficiency of one, two, or more would amount to a condemnation. They were to be peers of the accused; and though he was allowed to select them, yet the qualification that they were to be good men and orthodox practically left their nomination to the officials—even as the customary accusation by the promotor-fiscal was held to be in itself the requisite amount of suspicion required as a condition precedent for the trial. The greater the suspicion, however, the larger was the number of compurgators to be adduced.

When the accused had chosen his men, and they were accepted by the judge, they were summoned, and each one examined separately by the Inquisitors as to his acquaintance with the defendant—a process by which, it may readily be conceived, the terrors of the Holy Office might easily be so used as to render them extremely unwilling to become his sponsors. They were then assembled together; the accused was brought in, the charge against him was read, and he took an oath denying it. Each conjurator was then taken separately and sworn as to his belief in the truth or falsity of the oath of denegation, and according as they expressed their conviction of the veracity of the accused the sentence was usually rendered, absolving or condemning him.

No process of administering compurgation can well be conceived more shrewdly adapted to reduce to a minimum the chances of acquittal, or to leave the result subject to the wishes of the officials. The testimony of the doctors of law, both civil and canon, accordingly was that it was blind, deceitful, and perilous.[252] In fact, it is easy to conceive of the difficulty of finding five, or nine, or eleven men willing to risk their lives and families by standing up in support of any one who had fallen into the grasp of the Holy Office. The terrible apprehension which the Inquisition spread abroad among all classes, and the dread which every man felt of being suspected and seized as an accomplice of heresy, are unconsciously intimated by Simancas when, arguing against this mode of trial, he observes that “the morals of mankind are so corrupt at the present day, and Christian charity has grown so cold, that it is almost impossible to find any one willing to join in clearing his neighbor, or who does not easily believe the worst of him and construe all doubtful things against him. When it is enough for the condemnation of the accused that the compurgators shall declare that they are ignorant or doubtful as to his innocence, who is there that will not express doubt when they know that he would not have been condemned to purge himself if he had not been violently suspected?” For these reasons he says that those of Moorish or Jewish stock should never be subjected to it, for it is almost impossible not to think ill of them, and, therefore, to send them to purgation is simply to send them to the stake.[253]

For all this, there was a lively discussion in the time of Simancas, whether if the accused succeeded in thus clearing himself, it was sufficient for acquittal. Many Inquisitors, indeed, held to the older practice that the accused should first be tortured, when if no confession could be forced from him he was put on his purgation; if he passed safely through this, he was then made to abjure the errors of which he had not been convicted, and after all this he was punished at the discretion of the judge.[254] Such an accumulation of injustice seems incredible, and yet Simancas feels himself obliged to enter into an elaborate discussion to prove its impropriety.

In countries where the Inquisition had not infected society and destroyed all feeling of sympathy between man and man this process of purgation was not impossible. Thus, in 1527, during one of the early persecutions of the reformers under Henry VIII., while numbers were convicted, two women, Margaret Cowbridge and Margery Bowgas, were allowed to clear themselves by compurgators, though there were several positive witnesses against them. It is also noteworthy that in these cases a portion of the compurgators were women.[255]

In the regular ecclesiastical courts the practice was maintained. When the Council of Constance, in its futile efforts at reformation, prepared an elaborate code of discipline, it proposed strenuous regulations to correct the all-pervading vice of simony. To prevent the sale of benefices this project of law decreed deprivation of all preferment as the punishment for such offences, and as transactions of the kind were commonly accomplished in secret, it ordained that common report should be sufficient for conviction; yet it nullified the regulation by permitting the accused to clear himself by canonical purgation.[256] Towards the close of the fifteenth century, Angelo da Chiavasco describes it as customary where there is no formal accuser and yet public rumor requires action, although the judge can also order it in cases of accusation: if the defendant fails of his purgation in the latter case he is to be punished as provided for his crime; if there is only rumor, then the penalty is discretional.[257] The judge determined the number of conjurators, who were all to be of good reputation and familiar with the life of the accused; if he were a monk, they ought if possible to be of the same order; they simply swore to their belief in his oath of denial.[258] A century later Lancelotti speaks of compurgation as the only mode of defence then in use in doubtful cases, where the evidence was insufficient.[259] This applied not only to cases between churchmen, but also to secular matters subject to ecclesiastical jurisdiction. Grillandus, writing about 1530, speaks of six conjurators of the kindred as the customary formula in proceedings for nullity of marriage, and mentions an instance personally known to him, wherein this procedure was successfully adopted by a wife desirous of a divorce from her husband who for three years had been rendered impotent by witchcraft, in accordance with the rules laid down in the canon law for such cases.[260] And among certain orders of monks within the last century, questions arising between themselves were settled by this mode of trial.[261]

In England, after the Anglican Church had received its final shape under Cranmer, during the reign of Edward VI., the custom appears in a carefully compiled body of ecclesiastical law, of which the formal adoption was only prevented accidentally by the untimely death of the young king. By this, a man accused of a charge resting on presumptions and incompletely proved, was required to clear himself with four compurgators of his own rank, who swore, as provided in the decretals of Innocent III., to their belief in his innocence.[262]