Superstition and Force / Essays on The Wager of Law—The Wager of Battle—The Ordeal—Torture

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Title: Superstition and Force

Essays on The Wager of Law--The Wager of Battle--The Ordeal--Torture

Author: Henry Charles Lea

Language: English

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SUPERSTITION AND FORCE.

ESSAYS ON

THE WAGER OF LAW—THE WAGER OF BATTLE—THE ORDEAL—TORTURE.

BY

HENRY CHARLES LEA, LL.D.

Plurima est et in omni jure civili, et in pontificum libris, et in XII. tabulis, antiquitatis effigies.— Cicero, de Oratore I. 43.

FOURTH EDITION, REVISED.

PHILADELPHIA:

LEA BROTHERS & CO.

1892.

Entered according to Act of Congress in the year 1892, by

HENRY C. LEA,

in the Office of the Librarian of Congress. All rights reserved.

COLLINS PRINTING HOUSE.

PREFACE.

The history of jurisprudence is the history of civilization. The labors of the lawgiver embody not only the manners and customs of his time, but also its innermost thoughts and beliefs, laid bare for our examination with a frankness that admits of no concealment. These afford the surest outlines for a trustworthy picture of the past, of which the details are supplied by the records of the chronicler.

It is from these sources that I have attempted, in the present work, a brief investigation into the group of laws and customs through which our forefathers sought to discover hidden truth when disputed between man and man. Not only do these throw light upon the progress of human development from primitive savagism to civilized enlightenment, but they bring into view some of the strangest mysteries of the human mind.

In this edition I have endeavored to indicate, more clearly than before, the source, in prehistoric antiquity, of some of the superstitions which are only even now slowly dying out among us, and which ever and anon reassert themselves under the thin varnish of our modern rationalism.

In a greatly condensed form the first three essays originally appeared in the North American Review.

June, 1878.

Although in the revision of this volume for a fourth edition there has not been found much to alter, considerable additions have been made which render the survey of the subject more complete. In revising the essays on the Wager of Battle and the Ordeal I have had the advantage of the labors of two recent writers, Dr. Patetta, whose Le Ordalie is an extended and philosophical investigation into the whole topic of the Judgments of God, and George Neilson, Esq., whose Trial by Combat is a complete account, from the original sources, of the history of the judicial duel in Great Britain. Mr. Neilson has also had the courtesy to communicate to me the results of his further studies of the subject. I therefore indulge the hope that the present edition will be found more worthy of the favor with which the work has been received.

Philadelphia, October, 1892.

CONTENTS.

CHAPTER I. RESPONSIBILITY OF THE KINDRED.

I.

THE WAGER OF LAW.

CHAPTER I.

RESPONSIBILITY OF THE KINDRED.

The conception of crime as a wrong committed against society is too abstract to find expression in the institutions of uncivilized communities. The slayer or the spoiler is an enemy, not of his fellows in general, but only of the sufferer or of his kindred; and if society can provide means for the wronged to exact reparation, it has done its duty to the utmost, and has, indeed, made a notable advance on the path that leads from barbarism to civilization. How recent has been our progress beyond this stage of development is illustrated in the provisions of a code granted so lately as 1231 by the Abbey of St. Bertin to the town of Arques. By these laws, when a man was convicted of intentional homicide, he was handed over to the family of the murdered person, to be slain by them in turn. 1 It still was vengeance, and not justice, that was to be satisfied.

In early times, therefore, the wrong-doer owed no satisfaction to the law or to the state, but only to the injured party. That injured party, moreover, was not a mere individual. All the races of the great Aryan branch of mankind have developed through a common plan of organization, in which each family—sometimes merely the circle of near kindred, at others enlarged into a gens or sept—was a unit with respect to the other similar aggregations in the tribe or nation, presenting, with respect to personal rights, features analogous to their communal holding of land. 2 Within these units, as a general rule, each individual was personally answerable for all, and all were answerable for each. A characteristic incident of this system was the wer-gild or blood-money, through which offences were condoned and the aggrieved were satisfied by a payment made, when the crime was homicide, to the kindred of the slain, and generally contributed by the kindred of the slayer.

The fragments of the Avesta are the earliest records of Aryan legislation that have reached us, and in them we find distinctly marked evidence of this common responsibility of the kindred. 3 Among the Hindus, the ancient code, known as the Manava Dharma Sastra, represents a highly complex social organization, in which primitive institutions have been completely overlaid by the later and antagonistic elements of caste and Brahmanism, but yet it reveals the existence of village communities which were a direct development of the primal system of the family; 4 and the ancient solidarity of these communities is shown in the provision that if a murder or robbery could not be traced, the village in which it occurred was obliged to make it good, or that to which the track of the offender could be followed. 5 In the adventures of the Kauravas and Pandavas, moreover, the Mahabharata preserves fragments of traditions conveying some indications of a pre-existing solidarity among kindred. 6 Much more clearly defined were the Hellenic organizations of the patræ and phratriæ; while the institution of the wer-gild is seen in the wages earned by Heracles in serving Omphale, to be paid to the kinsmen of the murdered Iphitus; and its existence can be traced to historic times in the payments provided by the Trallian laws to the families of the subject Leleges and Minyans who might be slain. Sir Henry Maine has acutely suggested, also, that the belief in an hereditary curse, which plays so awful a part in Grecian legend, is derived from the primal idea of the solidarity of the family group. 7 In Rome, notwithstanding the powerful Latin tendency to absorb all minor subdivisions into the state, the institution of the gens, and the relationship between the patron and his clients, bear striking analogies to the organizations which we find among the Teutonic tribes as they emerge into history; while the fine imposed on the elder Horatius, to expiate for his son the crime of slaying his sister, shows a remnant still existing of the wer-gild levied on the relatives. 8 The early legislation of the Celts, both in the Irish and Welsh tribes, as we shall presently see, carried the solidarity of the family to its highest point of development. The same institutions form a prominent feature of social organization among the Slavs. The Russian Mir, or communal society, is evidently a development of the original family; while the Ruskaia Prawda, the earliest extant code, promulgated by Yaroslav Vladomirovich in the eleventh century, allows the relatives of a murdered man either to kill the murderer or to accept a wer-gild from him. The district, moreover, in which a homicide occurs is liable to a fine, unless the victim is an unknown stranger: as such, there are none to claim compensation for him, he is outside of all family organization, and the law has no protection for him. 9 In Poland, the laws in force until the close of the fifteenth century provided no other penalty for murder than a wer-gild to be divided among the kindred and friends of the slain; and during the fifteenth century there was only a short term of imprisonment added. 10 Among the southern Slavs the Zadruga takes the place of the Russian Mir, and is a still more absolute and primitive form of family organization. 11

In obedience to this all-pervading tendency of organization, the barbarian tribes which overthrew the Roman Empire based their institutions on two general principles—the independence of the individual freeman and the solidarity of the family group—and on these were founded their simple forms of jurisprudence. As the criminal was not responsible to the state, but to the injured party, personal punishments were unknown, and the law made no attempt to decree them. All that it could do was to provide rude courts before which a plaintiff could state his case, and a settled tariff of pecuniary compensation to console him for his sufferings. 12 If he disdained this peaceful process, he was at liberty to assemble his kindred and friends, and exact what satisfaction he could with sword and axe. The offender, moreover, could not legitimately refuse to appear when summoned before the mallum, or judicial assembly of the tribe; nor could he, as a rule, claim the right of armed defence, if the complainant preferred to receive the money payment provided for the offence of which he might prove his antagonist guilty.

This wer-gild was in no sense a fine inflicted as a punishment for guilt, but only a compensation to induce the injured party to forego his right of reprisals, and the interest which society felt in it was not in the repression of crime, but in the maintenance of peace by averting the endless warfare of hostile families. An Anglo-Saxon proverb, quoted approvingly in the laws of Edward the Confessor, as collected by William the Conqueror, says: Bicge spere of side oðer bere—Buy off the spear from thy side or endure it. 13 The application of the system is to be seen in the minute and complex tariffs of crime which form so large a portion of the barbarian codes. Every attempt against person and property is rated at its appropriate price, from the theft of a sucking pig to the armed occupation of an estate, and from a wound of the little finger to the most atrocious of parricides. To what extent this at last was carried may be seen in the Welsh codes, where every hair of the eyelash is rated at a penny. 14

This system introduced into legal proceedings a commercial spirit which seems strangely at variance with the savage heroism commonly attributed to our barbarian ancestors. In the translation by Mr. Dasent of the old Icelandic Saga of Burnt Njal is vividly set forth the complex procedure which arose from the development of these principles, whereby suits could be sold and assigned by one party to another, and a plaintiff with a promising claim for damages would part with it to some speculator who undertook the chances of the suit; or, if the prospects were not encouraging, he would pay some shrewd lawyer or mighty warrior to prosecute it in his stead. As either party in the primitive Icelandic code could at any moment interrupt the proceedings with a challenge to single combat, or a powerful pleader might collect his friends for a raid on the Althing, and thus break up the court, this traffic in suits was a speculation well fitted to vary the monotony of a sea-rover’s life on shore.

In the application of this principle of compensation the solidarity of the family bore a part as conspicuous as in the alternative of private warfare. The kindred of the offender were obliged to contribute shares proportionate to their degrees of relationship; while those of the man who was wronged received respective percentages calculated on the same basis. Thus the most ancient Barbarian code that has reached us—that of the Feini, or primitive Irish—in a fanciful quadripartite enumeration of the principles in force in levying fines, alludes to the responsibility of kindred—And because there are four things for which it is levied: ‘cin’ (one’s own crime), and ‘tobhach’ (the crime of a near kinsman), ‘saighi’ (the crime of a middle kinsman), and the crime of a kinsman in general. 15 A very complete example of the development of this system is to be found in the Icelandic legislation of the twelfth century, where the fines exacted diminish gradually, as far as the relatives in the fifth degree on both sides, each grade of the criminal’s family paying its rate to the corresponding grade of the sufferer’s kindred. 16 When, however, the next of kin were females, and were thus incompetent to prosecute for murder, the person who undertook that office was rewarded with one-third of the fine. 17 It was not until about 1270 that King Haco, in his unsuccessful attempt to reform these laws, ventured to decree that in cases of murder the blood-money should not be divided among the family of the victim, but should all be paid to the heir. 18 On the other hand, in Denmark, Eric VII., in 1269, relieved the kindred of the murderer from contributing to the wer-gild, although it continued to be divided among the relatives of the slain. 19

Among the Welsh the provisions for levying and distributing the fines were almost as complex as those of the early Icelandic law, one body of jurisprudence extending the liability even as far as sixth cousins; 20 and perhaps the quaintest expression of the responsibility of the kindred is to be found in the regulation that if any one should draw blood from the abbot of either of the seven great houses of Dyved, the offender should forfeit seven pounds, while a female of his kindred should become a washerwoman in token of disgrace. 21 The firm hold which this practical solidarity of the family had upon the jurisprudence of the European races is shown by a clause in the statutes of the city of Lille, as late as the fourteenth century, where the malefactor had the right to collect from his relatives a portion of the wer-gild which he had incurred; and elaborate tables were drawn up, showing the amount payable by each relative in proportion to his degree of kinship, the liability extending as far as to third cousins. 22 A still more pregnant example of the responsibility of kindred is found in the customs of Aspres, in 1184, where the kindred of a homicide, if they would abjure him by oath on relics, were entitled to the public peace; but, if they refused to do so, it became the duty of the Count of Hainault, the Abbot of St. Vaast, and the relatives of the slain, to hunt them down, and seize all their property. 23

The introduction of Christianity, with the all-pervading sacerdotalism of the church, rendered necessary an innovation on the primeval form of social organization, for ecclesiastical ties dissolved those of the family. By the Carlovingian legislation, when a priest was slain his wer-gild was paid to the church, which was held to be nearer to him than any relative, 24 though this regulation subsequently was modified so as to divide the composition into three parts, of which one was paid to the church of the deceased, one to his bishop, and the third to his kindred. 25 As a general rule, therefore, the clerk could claim no share of the blood-money collected for the murder of his kinsmen; nor be called upon to contribute to that incurred by his family; 26 though it is true that, by the Welsh laws of Hoel the Good, compiled in the tenth century, children, even prospective, were a link through which the liability might be again incurred. "Neither clerks nor women are to have a share of the galanas, since they are not avengers; however, they are to pay for their children or to make oath that they shall never have any." 27

With this exception, therefore, in its relations to the community, each family in the barbaric tribes was a unit, both for attack and defence, whether recourse was had to the jealously preserved right of private warfare, or whether the injured parties contented themselves with the more peaceful processes of the mallum or althing. This solidarity of the kindred is the key to much that would otherwise appear irrational in their legislation, and left, as we have seen, its traces late in the customary law.

CHAPTER II. THE OATH AND ITS ACCESSORIES.

CHAPTER II.

THE OATH AND ITS ACCESSORIES.

Between the commission of an offence and its proof in a court of justice there lies a wide field for the exercise or perversion of human ingenuity. The subject of evidence is one which has taxed man’s reasoning powers to the utmost; and the subtle distinctions of the Roman law, with its probatio, præsumptio juris, præsumptio juris tantum: the endless refinements of the glossators, rating evidence in its different grades, as probatio optima, evidentissima, apertissima, legitima, sufficiens, indubitata, dilucida, liquida, evidens, perspicua, and semiplena; and the artificial rules of the common law, so repugnant frequently to human common sense, all alike show the importance of the subject, and its supreme difficulty. The semi-barbarian, impatient of such expenditure of logic, arrived at results by a shorter process.

The time has passed for the romantic school of writers who assume that the unsupported oath of the accused was originally sufficient to clear him of a charge, when the fierce warrior disdained to shrink from the consequences of his act. It was not, indeed, until long after the Teutonic tribes had declined from the assumed virtues of their native forests, that an unsupported oath was receivable as evidence, and the introduction of such a custom may be traced to the influence of the Roman law, in which the importance of the oath was overwhelming. 28 The Wisigoths, who moulded their laws on the Roman jurisprudence, were the only race of barbarians who permitted the accused, in the absence of definite testimony, to escape on his single oath, 29 and this exception only tends to prove the rule, for at the council of Valence, in 855, the Wisigothic custom was denounced in the strongest terms as an incentive to perjury. 30 It is true that the oath of a master could clear a slave accused of certain crimes, 31 which was no less an incentive to perjury, for the master was liable in case of conviction, but presumably in such case he took upon himself the responsibility and laid himself open to an accusation of perjury. As a rule, however, we may assume that the purgatorial power of a single oath was an innovation introduced by the church, which was trained in the Roman institutions and claimed for its members the privilege, when testimony was deficient, of clearing themselves by appealing in this manner to God. 32 Continued contact with the remains of Roman civilization strengthened the custom, and its development was to a great extent due to the revival of the study of the imperial jurisprudence in the twelfth century. 33 The primitive principle is well expressed in the Frisian code, where the pleader says, I swear alone, if thou darest, deny my oath and fight me, 34 where the oath is only the preliminary to proof by the judgment of God.

The exceptions to this in the early legislation of the barbarians are merely special immunities bestowed on rank. Thus in one of the most primitive of the Anglo-Saxon codes, which dates from the seventh century, the king and the bishop are permitted to rebut an accusation with their simple asseveration, and the thane and the mass-priest with a simple oath, while the great body both of clerks and laymen are forced to clear themselves by undergoing the regular form of canonical compurgation which will be hereafter described. 35 So, in the Welsh legislation, exemption from the oath of absolution was accorded to bishops, lords, the deaf, the dumb, men of a different language, and pregnant women. 36 Instances of class-privileges such as these may be traced throughout the whole period of the dark ages, and prove nothing except the advantages claimed and enjoyed by caste. Thus, by the law of Southern Germany, the unsupported oath of a claimant was sufficient, if he were a person of substance and repute, while, if otherwise, he was obliged to provide two conjurators, 37 and in Castile, the fijodalgo, or noble, could rebut a claim in civil cases by taking three solemn oaths, in which he invoked on himself the vengeance of God in this world and the next. 38

So far, indeed, were the Barbarians from reposing implicit confidence in the integrity of their fellows that their earliest records show how fully they shared in the common desire of mankind to place the oath under the most efficient guarantees that ingenuity could devise. In its most simple form the oath is an invocation of some deity or supernatural power to grant or withhold his favor in accordance with the veracity of the swearer, but at all times men have sought to render this more impressive by interposing material objects dear to the individual, which were understood to be offered as pledges or victims for the divine wrath. Thus, among the Hindus, the ancient Manava Dharma Sastra prescribes the oath as satisfactory evidence in default of evidence, but requires it to be duly reinforced—

"In cases where there is no testimony, and the judge cannot decide upon which side lies the truth, he can determine it fully by administering the oath.

"Oaths were sworn by the seven Maharshis, and by the gods, to make doubtful things manifest, and even Vasishtha sware an oath before the king Sudama, son of Piyavana, when Viswamitra accused him of eating a hundred children.

"Let not the wise man take an oath in vain, even for things of little weight; for he who takes an oath in vain is lost in this world and the next.

Let the judge swear the Brahman by his truth; the Kshatriya by his horses, his elephants, or his arms; the Vaisya by his cows, his corn, and his gold; the Sudra by all crimes. 39

And in the more detailed code of Vishnu there is an exceedingly complicated system of objects to be sworn upon, varying with the amount at stake and the caste of the swearer. 40

We see the same custom in Greece, where Homer represents Hera as exculpating herself by an oath on the sacred head of Zeus, and on their marriage-bed, a practice which mortals imitated by swearing on the heads of their children, or on that of their patron, or of the king. 41 Under the Roman law, oaths were frequently taken on the head of the litigant, or on those of his children. 42 The Norse warrior was sworn, like the Hindu Kshatriya, on his warlike gear:

"Oaths shalt thou

First to me swear,

By board of ship,

By rim of shield,

By shoulder of steed,

By edge of sword,

That thou wilt not slay

The wife of Volund,

Nor of my bride

Cause the death." 43

When these material pledges were not offered, the sanctions of religion have in all ages been called into play to impress the imagination of the swearer with the awful responsibility incurred, the presence of the deity being obtained by the offer of a sacrifice, or his interposition being assured by the use of some object of peculiar sacredness. In Deuteronomy, when the corpse of a murdered man was found, the elders of the nearest city disculpated themselves and their fellow-citizens before the Levites over the body of a heifer slain for the purpose. 44 We see the same principle applied to promissory oaths in the horse which Tyndareus sacrificed and buried when he exacted from the suitors of Helen the oath that they would accede to her choice of a bridegroom and defend her and her husband against all comers; 45 and it is only necessary to allude to the well-known Ara Maxima of Hercules in Rome to show the prevalence of the same customs among the Italiotes. Similar practices were familiar to the Norsemen. Among them the Godi was both priest and judge, the judgment-seat adjoined the temple, and all parties to a suit, including judge and witnesses, were solemnly sworn upon the sacred ring kept for that purpose on the altar. It was sprinkled with the blood of a sacrificial bull, and then the oath was taken by invoking Freyr and Niord, and the almighty As to help the swearer as he should maintain truth and justice. 46 Yet so little did all these precautions serve to curb the untruthfulness of the cunning sea-kings that in Viga-Glums Saga we find Glum denying a charge of murder by an oath taken in three temples, in which he called Odin to witness in words so craftily framed that while he was in reality confessing his guilt he apparently was denying it most circumstantially. 47

Similarly in Christian times, the most venerated forms of religion were, from a very early period, called in to lend sanctity to the imprecation, by devices which gave additional solemnity to the awful ceremony. In this the natural tendency of the church to follow the traditional customs of the populations from which its members were drawn was reinforced by the example of the practices of Judaism. The covenant between the pieces, by which Yahveh confirmed his promises to Abram, and by which the Jews renewed their promises to him, was a sacrificial ceremony of the most impressive character, only to be used on occasions of supreme importance. As soon as a permanent place of worship was provided, the altar in the temple was resorted to by litigants in order that the oath might be taken in the presence of Yahveh himself; and so powerful was the impression of this upon the Christian mind that in the early ages of the church there was a popular superstition that an oath taken in a Jewish synagogue was more binding and more efficient than one taken elsewhere. 48 These beliefs developed into a great variety of formulas, which would reward an examination more detailed than that which I can give them here.

In the middle of the sixth century, Pope Pelagius I. did not disdain to absolve himself from the charge of having been concerned in the troubles which drove his predecessor Vigilius into exile, by taking a disculpatory oath in the pulpit, holding over his head a crucifix and the gospels; 49 and in the eighth century a priest accused without witnesses to prove his guilt was enabled to absolve himself by placing the cross upon his head and declaring his innocence by the Everlasting God. 50 So, when the holy Gregory of Tours was accused of reproachful words truly spoken of Queen Fredegonda, a council of bishops decided that he should clear himself of the charge by oaths on three altars, after celebrating mass on each, which he duly performed, doubtless more to his corporeal than his spiritual benefit. 51 This plan of reduplicating oaths on different altars was an established practice among the Anglo-Saxons, who, in certain cases, allowed the plaintiff to substantiate his assertion by swearing in four churches, while the defendant could rebut the charge by taking an oath of negation in twelve. 52 Seven altars are similarly specified in the ancient Welsh laws in cases where a surety desired to deny his suretyship; 53 and, according to the Fleta, as late as the thirteenth century, a custom was current among merchants of proving the payment of a debt by swearing in nine churches, the abuse of which led to its abrogation. 54

The intense veneration with which relics were regarded, however, caused them to be generally adopted as the most effective means of adding security to oaths, and so little respect was felt for the simple oath that, ere long, the adjuncts came to be looked upon as the essential feature, and the imprecation itself to be divested of binding force without them. Thus, in 680, when Ebroin, mayor of the palace of Burgundy, had defeated Martin, Duke of Austrasia, and desired to entice him from his refuge in the stronghold of Laon, two bishops were sent to him bearing the royal reliquaries, on which they swore that his life should be safe. Ebroin, however, had astutely removed the holy remains from their cases in advance, and when he thus got his enemy in his power, he held it but a venial indiscretion to expose Martin to a shameful death. 55 How thoroughly this was in accordance with the ideas of the age is shown by the incorporation, in the canons of the church, of the doctrine that an oath was to be estimated by its externals and not by itself. The penitential of David, dating from the latter half of the sixth century, provides that perjury committed in a church shall be punished by a fine of four times the value of that for which the false oath was taken, 56 but no penalty is provided for false swearing elsewhere. As the theory developed itself this tacit condoning of such perjury was boldly declared to be good ecclesiastical law, and the venerable code of morality which passes under the name of Theodore Archbishop of Canterbury assumes that a false oath taken on a consecrated cross requires, for absolution, three times the penance necessary in cases where the oath had been taken on an unconsecrated one, while, if the ministration of a priest had not been employed, the oath was void, and no penalty was inflicted for its violation. 57 In a similar mood the penitential known as that of Gregory III. provides that three years’ penance will absolve for perjury committed on a consecrated cross or on the hand of a bishop or priest, while seven years are requisite if the oath has been taken on the gospels or on an altar with relics. 58 This rule took its final shape in the canon law, which provides one year’s penance for perjury committed on an unconsecrated cross, and three years’ for that on a consecrated one, or on the hand of a bishop. 59

These principles were adopted as the fundamental basis of all legal procedures in Wales. Every prosecution and defence required relics to give validity to the oaths of both parties, and even in the fifteenth century a collection of laws declares that a plaintiff coming into court without a relic on which to make his oath, not only lost his cause, but incurred a fine of nine-score pence. The same tendency is shown in the rule by which a man who suspected another of theft could go to him with a relic, and in the presence of witnesses demand an oath of negation, a failure in which was a conviction of the crime im puted, without further trial. 60 In the same spirit, ecclesiastical authority was even found to admit that a powerful motive might extenuate the sin of perjury. If committed voluntarily, seven years of penitence were enjoined for its absolution; if involuntarily, sixteen months, while if to preserve life or limb, the offence could be washed out with four months. 61 When such doctrines were received and acted upon, we can hardly wonder at the ingenious device which the sensitive charity of King Robert the Pious imitated from the duplicity of Ebroin, to save the souls of his friends. He provided two reliquaries on which to receive their oaths—one for his magnates, splendidly fabricated of crystal and gold, but entirely empty, the other for the common herd, plainer and enshrining a bird’s egg. Knowing in advance that his lieges would be forsworn, he thus piously sought to save them from sin in spite of themselves, and his monkish panegyrist is delighted in recounting this holy deceit. 62

It was easy, from a belief such as this, to draw the deduction that when an oath was sworn on relics of peculiar sanctity, immediate punishment would follow perjury; and thus it followed that some shrines obtained a reputation which caused them to be resorted to in the settlement of disputed judicial questions. Even as early as St. Augustin there are traces of such practices, which that Father of the Church not only records, but imitated, 63 and at a later period the legends are numerous which record how the perjured sinner was stricken down senseless or rendered rigid and motionless in the act of swearing falsely. 64 From this point of view oaths were really ordeals, and as such we shall consider them hereafter. At present it suffices to observe that the profit which the church derived from thus administering oaths on relics affords an easy explanation of her teachings, and of the extension of these practices. Their resultant advantages are well illustrated by the example of the holy taper of Cardigan, in Wales. A miraculous image of the Virgin was cast ashore, bearing this taper burning in its hand. A church was built for it, and the taper contynued styll burnynge the space of nyne yeres, without wastynge, until the tyme that one forsware himselfe thereon, so then it extincted, and never burned after. At the suppression of the house under Henry VIII., the prior, Thomas Hore, testified: Item, that since the ceasynge of burnynge of the sayd taper, it was enclosed and taken for a greate relyque, and so worshipped and kyssed of pylgremes, and used of men to sweare by in difficill and harde matters, whereof the advauntage admounted to greate sommes of money in tymes passed, payenge yerely to the same XXti nobles for a pencion unto thabbott of Chersey. 65

In all this Spain would seem to be exceptional. In the thirteenth century the rule is expressed that a pleader must take the oath required of him by his antagonist; if he is required to swear by God, it will not suffice for him to swear by some saint, or by his own head. Oaths could indeed be taken on crosses or altars, but they could also be reduced to the simplest asseveration. Thus, there is a provision that if one party says Swear to me on your simple word, then the reply know that it is so, or believe me that it is so, suffices, and has all the force of the most solemn adjuration. 66

CHAPTER III. CONJURATORS, OR PARTAKERS IN THE OATH.

CHAPTER III.

CONJURATORS, OR PARTAKERS IN THE OATH.

Notwithstanding the earnestness with which these teachings were enforced, it may readily be believed that the wild barbarian, who was clamoring for the restoration of stolen cattle, or the angry relatives, eager to share the wer-gild of some murdered kinsman, would scarce submit to be balked of their rights at the cost of simple perjury on the part of the criminal. We have seen that both before and after their conversion to Christianity they had little scruple in defiling the most sacred sanctions of the oath with cunning fraud, and they could repose little confidence in the most elaborate devices which superstition could invent to render perjury more to be dreaded than defeat. It was therefore natural that they should perpetuate an ancestral custom, which had arisen from the structure of their society, and which derived its guarantee from the solidarity of families alluded to above. This was the custom which was subsequently known as canonical compurgation, and which long remained a part of English jurisprudence, under the name of the Wager of Law. The defendant, when denying the allegation under oath, appeared surrounded by a number of companions— juratores, conjuratores, sacramentales, collaudantes, compurgatores, as they were variously termed—who swore, not to their knowledge of the facts, but as sharers and partakers in the oath of denial.

This form of procedure derives importance from the fact that it is an expression of the character, not of an isolated sept, but of nearly all the races that have moulded the destinies of modern Europe. Although unknown to the Roman law, there are traces of it in the ancient Hellenic legislation. 67 The Ostrogoths in Italy, and the Wisigoths of the south of France and Spain were the only nations in whose extant codes it occupies no place, and they, as has already been remarked, at an early period yielded themselves completely to the influence of the Roman civilization. 68 On the other hand, the Salians, the Ripuarians, the Alamanni, the Baioarians, the Lombards, the Frisians, the Norsemen, the Saxons, the Angli and Werini, the Anglo-Saxons, and the Welsh, races whose common origin must be sought in the prehistoric past, all gave to this form of purgation a prominent position in their jurisprudence, and it may be said to have reigned from Southern Italy to Scotland. 69

The earliest text of the Salic law presents us with the usages of the Franks unaltered by any allusions to Christianity, and it may therefore be presumed to date from a period not later than the conversion of Clovis. In this primitive code there are directions for the employment of conjurators, which show that the procedure was a settled and established form at that period. 70 So in the Frisian law, which, although compiled in the eighth century, still reveals pagan customs and the primitive condition of society, the practice of compurgation evidently forms the basis of judicial proceedings. The Islands Landnamabok also exhibits it as a form of regular procedure among the heathen Norsemen. Although the other codes have only reached us in revisions subsequent to the conversion of the several tribes, still, the universal use of the practice shows that its origin must be traced to a period anterior to the separation of the several races from the original common stock.

The church, with the tact which distinguished her dealings with her new converts, was not long in adopting a system which was admirably suited for her defence in an age of brute force. As holy orders sundered all other ties, and as the church was regarded as one vast family, ecclesiastics speedily arrogated to themselves and obtained the privilege of having men of their own class as compurgators, and, thus fortified for mutual support, they were aided in resisting the oppressors who invaded their rights on every hand. This claim, with all its attendant advantages, was fully conceded when Charlemagne, in the year 800, went to Rome for the purpose of trying Pope Leo III. on a grave charge, and in that august presence the Pontiff, whom no witnesses dared to accuse, cleared himself of the crimes imputed to him by solemnly taking the oath of denial in company with twelve priests as compurgators. 71 Three years afterwards, the Emperor decreed that, in all doubtful cases, priests should defend themselves with three, five, or seven ecclesiastical compurgators, and he announced that this decision had been reached by the common consent of pope, patriarchs, bishops, and all the faithful. 72 It is true that a few months later, on being shown a decretal of Gregory II. 73 ordering the clergy to rebut with their single oaths all accusations unsupported by witnesses, he modified his previous command, and left the matter to the discretion of his prelates; but this had no practical result, for Charlemagne’s capitulary was adopted in the canon law and ascribed to Leo himself. 74 The custom soon received the papal sanction again in the most solemn manner. In 823, Pope Pascal I. was more than suspected of complicity in the murder of Theodore and Leo, two high dignitaries of the papal court. Desirous to avoid an investigation by the commissioners sent by Louis le Débonnaire, he hastily purged himself of the crime in anticipation of their arrival, by an oath taken with a number of bishops as his compurgators; 75 and it is a striking example of the weight accorded to the procedure that, although the assumed fault of the victims had been their devotion to the imperial party, and though the pope had by force of arms prevented any pursuit of the murderers, the emperor was powerless to exact satisfaction, and there was nothing further to be done. Pope Pascal stood before the world an innocent man.

It is true that, in the tenth century, Atto of Vercelli complains bitterly that a perverse generation refused to be satisfied with the single oath of an accused priest, and required him to be surrounded by compurgators of his class, which that indignant sacerdotalist regarded as a grievous wrong. 76 As the priesthood, however, failed in obtaining the entire immunity for which they strove during those turbulent times, the unquestioned advantages which compurgation afforded recommended it to them with constantly increasing force. Forbidden at length to employ the duel in settling their differences, and endeavoring, in the eleventh and twelfth centuries, to obtain exemption from the ordeal, they finally accepted compurgation as the special mode of trial adapted to members of the church, and for a long period we find it recognized as such in all the collections of canons and writings of ecclesiastical jurists. 77 From this fact it obtained its appellation of purgatio canonica, or canonical compurgation.

CHAPTER IV. SELECTION OF COMPURGATORS.

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