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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.

[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.

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 imputed, 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.

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.

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

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

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

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

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

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

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

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

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

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

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

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

[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]

[CHAPTER VI.]
FORMULAS AND PROCEDURE.

The primitive lawgivers were too chary of words in their skeleton codes to embody in them the formula usually employed for the compurgatorial oath. We have therefore no positive evidence of its nature in the earliest times; but as the forms made use of by several races at a somewhat later period have been preserved, and as they resemble each other in all essential respects, we may reasonably assume that little variation had previously occurred. The most ancient that I have met with occurs in an Anglo-Saxon formulary which is supposed to date from about A. D. 900: “By the Lord, the oath is clean and unperjured which N. has sworn.”[158] A century later, in a compilation of the Lombard law, it appears: “That which the accused has sworn is true, so help me God.”[159] The form specified in Béarn, at a period somewhat subsequent, is curt and decisive: “By these saints, he tells the truth;”[160] while the code in force in Normandy until the sixteenth century directs an oath identical in spirit: “The oath which William has sworn is true, so help me God and his saints.”[161] It will be observed that all these, while essentially distinct from the oath of a witness, are still unqualified assertions of the truth of the principal, and not mere asseverations of belief or protestations of confidence. The earliest departure from this positive affirmation, in secular jurisprudence, occurs in the unsuccessful attempt at legislation for Norway and Iceland by Haco Haconsen in the thirteenth century. In this, the impropriety of such oaths is pointed out, and it is directed that in future the compurgator shall swear only, in confirmation of his principal, that he knows nothing to the contrary.[162] In the similar code promulgated in 1274 by his son Magnus in Norway, it is directed that the accused shall take a full oath of denial, and the conjurators shall swear in the same words that his oath is true, and that they know nothing truer.[163]

We shall see that, before the custom fell into total disuse, the change which Haco vainly attempted, came to be generally adopted, in consequence, principally, of the example set by the church. Even before this was formally promulgated by the Popes, however, ecclesiastics occasionally showed that they were more careful as to what they swore, and at a comparatively early period they introduced the form of merely asserting their belief in the oath taken by their principal. Thus, in 1101, we find two bishops endeavoring to relieve a brother prelate from a charge of simony, and their compurgatorial oath ventures no further than “So help me God, I believe that Norgaud, Bishop of Autun, has sworn the truth.”[164]

In the form of oath, however, as well as in so many other particulars, the Welsh had a more complicated system, peculiar to themselves. The ordinary raith-man only was required to take an oath “that it appears most likely to him that what he swears to is true.” In many aggravated crimes, however, a certain proportion, generally one-half, had to be nod-men who were bound to a more stringent form, as the law specifies that “the oath of a nod-man is, to be in accordance with what is sworn by the criminal.”[165] The difference, as we have seen, in the numbers required when a portion were nod-men shows how much more difficult it was to find men willing to swear to an absolute denial, and how much more weight was attached to such a declaration than to the lax expression of opinion contained in the ordinary oath of the raith-man.

Variations are likewise observable in the form of administering the oath. Among the Alamanni, for instance, the compurgators laid their hands upon the altar, and the principal placed his hand over the others, repeating the oath alone;[166] while among the Lombards, a law of the Emperor Lothair directs that each shall take the oath separately.[167] It was always, however, administered in a consecrated place, before delegates appointed by the judges trying the cause, sometimes on the altar and sometimes on relics. In the Welsh laws of the fifteenth century it is specified that all raiths shall be administered in the parish church of the defendant, before the priest shall have disrobed or distributed the sacramental bread.[168] At an earlier period a formula of Marculfus specifies the Capella S. Martini, or cope of St. Martin,[169] one of the most venerated relics of the royal chapel, whence we may perhaps conclude that it was habitually used for that purpose in the business of the royal Court of Appeals.

Notwithstanding the universality of the custom, and the absolute character of the decisions reached by the process, it is easy to discern that the confidence reposed in it was of a very qualified character, even at an early period. The primitive law of the Frisians describes some whimsical proceedings, prescribed for the purpose of determining the responsibility for a homicide committed in a crowd. The accuser was at liberty to select seven from among the participants of the brawl, and each of these was obliged to deny the crime with twelve conjurators. This did not absolve them, however, for each of them was also individually subjected to the ordeal, which finally decided as to his guilt or innocence. In this, the value of the compurgation was reduced to that of the merest technical ceremony, and yet a failure to procure the requisite number of supporters was tantamount to a conviction, while, to crown the absurdity of the whole, if any one succumbed in the ordeal, his conjurators were punished as perjurers.[170] A similar want of confidence in the principle involved is shown by a reference in the Anglo-Saxon laws to the conjurators of an accused party being outsworn (overcythed), when recourse was likewise had to the ordeal.[171] Among the heathen Norsemen, indeed, an offer by either party to produce conjurators could always be met by the antagonist with a challenge to the duel, which at once superseded all other proceedings.[172] As regards the church, although the authoritative use of compurgation among ecclesiastics would seem to demand for it among them implicit faith in its results, yet we have already seen that, in the ninth century, Hincmar did not hesitate to require that in certain cases it should be confirmed by the ordeal; and two centuries later, a remark of Ivo of Chartres implies a strong degree of doubt as to its efficacy. In relating that Sanctio, Bishop-elect of Orleans, when accused of simony by a disappointed rival, took the oath of negation with seven compurgators, he adds that the accused thus cleared himself as far as he could in the eyes of man.[173] That the advantages it offered to the accused were duly appreciated, both by criminals and judges, is evident from the case of Manasses, Archbishop of Reims. Charged with simony and other offences, after numerous tergiversations he was finally summoned for trial before the Council of Lyons, in 1080. As a last effort to escape the impending doom, he secretly offered to Bishop Hugh, the Papal legate, the enormous sum of two hundred ounces of gold and other presents in hand, besides equally liberal prospective payments, if he could obtain the privilege of compurgation with six suffragan bishops. Gregory VII. was then waging too uncompromising a war with the corroding abuse of simony for his lieutenant to yield to any bribe, however dazzling; the proffer was spurned, Manasses confessed his guilt by absence, and was accordingly deposed.[174] Incidents like this, however, did not destroy confidence in the system, for, some sixty years later, we find Innocent II. ordering the Bishop of Trent, when similarly accused of simony, to clear himself with the oaths of two bishops and three abbots or monks.[175]

The comparative value attached to the oaths of conjurators is illustrated by the provisions which are occasionally met with, regulating the cases in which they were employed in default of witnesses, or in opposition to them. Thus, in the Baioarian law, the oath of one competent witness is considered to outweigh those of six conjurators;[176] and among the Lombards, an accusation of murder which could be met with three witnesses required twelve conjurators as a substitute.[177]

It is therefore evident that conjurators were in no sense witnesses, that they were not expected to give testimony, and that they merely expressed their confidence in the veracity of their principal. It may consequently at first sight appear somewhat unreasonable that they should be held guilty of perjury and subject to its penalties in case of unluckily sustaining the wrong side of a cause. It is probably owing to this apparent injustice that some writers have denied that they were involved in the guilt of their principal, and among others the learned Meyer has fallen into this error.[178] The proof, however, is too clear for dispute. We have already seen that the oath was an unqualified assertion of the justice of the side espoused, without reservation justifying the escape of the compurgators from the charge of false swearing, and one or two incidental references have been made to the punishments inflicted on them when subsequently convicted of perjury. The code of the Alamanni recognized the guilt involved in such cases when it denied the privilege of compurgation to any one who had previously been more than once convicted of crime, giving as a reason the desire to save innocent persons from incurring the sin of perjury.[179] Similar evidence is derived from a regulation promulgated by King Liutprand in the Lombard Law, by which a man nominated as a conjurator, and declining to serve, was obliged to swear that he dared not take the oath for fear of his soul.[180] A case in point occurs in the life of St. Boniface, whose fellow-laborer Adalger in dying left his property to the church. The graceless brothers of the deceased disputed the bequest, and offered to make good their claim to the estate by the requisite number of oaths. The holy man ordered them to swear alone, in order not to be concerned in the destruction of their conjurators, and on their unsupported oaths gave up the property.[181]

The law had no hesitation in visiting such cases with the penalties reserved for perjury. By the Salic code unlucky compurgators were heavily fined.[182] Among the Frisians, they had to buy themselves off from punishment by the amount of their wer-gild—the value set upon their heads.[183] A slight relaxation of this severity is manifested in the Carlovingian legislation, by which they were punished with the loss of a hand—the customary penalty of perjury—unless they could establish, by undergoing the ordeal, that they had taken the oath in ignorance of the facts; but even in trifling causes a defeated litigant could accuse his own conjurator of perjury, when both parties were sent to the ordeal of the cross, and if the conjurator broke down he lost a hand.[184] So late as the close of the twelfth century, we find Celestin III. ordering the employment of conjurators in a class of cases about the facts of which they could not possibly know anything, and decreeing that if the event proved them to be in error they were to be punished for perjury.[185] That such liability was fully recognized at this period is shown by the argument of Aliprandus of Milan, a celebrated contemporary legist, who, in maintaining the position that an ordinary witness committing perjury must always lose his hand, without the privilege of redeeming it, adds that no witness can perjure himself unintentionally; but that conjurators may do so either knowingly or unknowingly, that they are therefore entitled to the benefit of the doubt, and if not wittingly guilty, that they should have the privilege of redeeming their hands.[186]

All this seems in the highest degree irrational, yet in criticising the hardships to which innocent conjurators were thus exposed, it should be borne in mind that the whole system had become a solecism. In its origin, it was simply summoning the kinsmen together to bear the brunt of the court, as they were bound to bear that of battle; and as they were liable for a portion of the fine which was the penalty of all crimes—personal punishments for freemen being unknown—they could well afford to incur the risk of paying for perjury in order to avoid the assessment to be levied upon them in case of the conviction of their relative. In subsequent periods, when the family responsibility became weakened or disused, and the progress of civilization rendered the interests of society more complex, the custom could only be retained by making the office one not to be lightly undertaken. A man who was endeavoring to defend himself from a probable charge of murder, or who desired to confirm his possession of an estate against a competitor with a fair show of title, was expected to produce guarantees that would carry conviction to the minds of impartial men. As long as the practice existed, it was therefore necessary to invest it with every solemnity, and to guard it with penalties that would obviate some of its disadvantages.

Accordingly, we find that it was not always a matter of course for a man to clear himself in this manner. The ancient codes have frequent provisions for the fine incurred by those unable to procure the requisite number of compurgators, showing that it was an occurrence constantly kept in mind by legislators. Nor was it only landless and friendless men who were exposed to such failures. In 794, a certain Bishop Peter was condemned by the Synod of Frankfort to clear himself, with two or three conjurators, of the suspicion of being involved in a conspiracy against Charlemagne, and, small as was the number, he was unable to procure them.[187] So, in the year 1100, when the canons of Autun, at the Council of Poitiers, accused their bishop, Norgaud, of simony and other irregular practices, and he proposed to absolve himself with the compurgatorial oaths of the Archbishop of Tours and the Bishop of Rédon, the canons went privately to those prelates and threatened that in such event they would bring an accusation of perjury and prove it by the ordeal of fire, whereupon the would-be conjurators wisely abandoned their intention, and Norgaud was suspended.[188] I have already referred (p. 51) to a case before the Papal Penitentiary about 1240, in which a priest accused of homicide was put upon his purgation and failed, whereupon his bishop deprived him of function and benefice, and he hastened to Rome with a complaint that the bishop had not been impartial in the selection of compurgators. The most rigid compliance with the requisitions of the law was exacted. Thus the statutes of Nieuport, in 1163, provide a heavy penalty, and in addition pronounce condemnation, when a single one of the conjurators declines the oath.[189] It goes without saying that failure in compurgation was equivalent to conviction or confession.[190]

[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]

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]

[CHAPTER VIII.]
ACCUSATORIAL CONJURATORS.

Though not strictly a portion of our subject, the question is not without interest as to the power or obligation of the plaintiff or accuser to fortify his case with conjurators. There is little evidence of such a custom in primitive times, but one or two allusions to it in the Leges Barbarorum show that it was occasionally practised. Some of the earlier texts of the Salic law contain a section providing that in certain cases the complainant shall sustain his action with a number of conjurators varying with the amount at stake; a larger number is required of the defendant in reply; and it is presumable that the judges weighed the probabilities on either side and rendered a decision accordingly.[263] As this is omitted in the later revisions of the law, it probably was not widely practised, or regarded as of much importance. Among the Baioarians, a claimant of an estate produced six conjurators who took the oath with him, and whose united efforts could be rebutted by the defendant with a single competent witness.[264] These directions are so precise that there can be no doubt that the custom prevailed to a limited extent among certain tribes, and a clause in the Decree of Childebert in 597, providing that the oaths of five or seven impartial men of good character shall convict a thief or malefactor, would seem evidently to refer to conjurators and not to witnesses.[265] In the treaty between Childebert and Clotair in 593, an accuser in case of theft is obliged to give twelve conjurators, half of them selected by himself, to swear that a theft has really taken place.[266] That it was, indeed, more generally employed than the scanty references to it in the codes would indicate, may be inferred from one of the ecclesiastical forgeries which Charlemagne was induced to adopt and promulgate. According to this, no accusation against a bishop could be successful unless supported by seventy-two witnesses, all of whom were to be men of good repute; forty-four were required to substantiate a charge against a priest, thirty-seven in the case of a deacon, and seven when a member of the inferior grades was implicated.[267] Though styled witnesses in the text, the number required is so large that they evidently could have been only conjurators, with whom the complainant supported his oath of accusation, and the fabrication of such a law would seem to show that the practice of employing such means of substantiating a charge was familiar to the minds of men.

Among the heathen Northmen, as we have seen, every pleader, whether plaintiff or defendant, was obliged to take a preliminary oath on the sacred stalla hringr, or altar ring, duly bathed in the blood of an ox sacrificed for the purpose. This custom was preserved in England, where the Anglo-Saxon laws required, except in trivial cases, a “fore-oath” from the accuser (forath, antejuramentum, præjuramentum), and William the Conqueror, in his compilation of the laws of Edward the Confessor, shows that this was sometimes strengthened by requiring the addition of conjurators, who were in no sense witnesses, since their oath had reference, not to the facts of the case, but solely to the purity of intention on the part of the accuser.[268] Indications of the same procedure are to be found in the collection known as the laws of Henry I.[269] Probably to the development of this may be attributed the peculiar device of the secta already referred to (p. 84), consisting of those who supported the plaintiff by their oaths while in no sense absolute witnesses. They were not even examined unless the defendant demanded it. The bringing of the secta or suit remained a matter of form long after the actual production of the witnesses had become obsolete in the fourteenth century, and it was not finally abolished until 1852.[270]

In an age of comparative simplicity, it is natural that men should turn rather to the guarantees of individual character, or to the forms of venerable superstition, than to the subtleties of legal procedure. Even as the defendant was expected to produce vouchers of his truthfulness, so might the plaintiff be equally required to give evidence that his repute among his neighbors was such as to justify the belief that he would not bring a false charge or advance an unfounded claim. The two customs appear to arise from the same process of reasoning and to be identical in spirit, leading to a contest between the two parties as to which could bring forward the largest and most credible number of conjurators, and the position of the accused being outsworn was a recognized circumstance in jurisprudence. Thus, the Council of Tribur in 895 provides that in such case he must either confess or undergo the ordeal.[271] In process of time accusatorial conjurators became commonly used in many places. In Béarn the laws of the thirteenth century provide that in cases of debt under forty sous, where there was no testimony on either side, the claimant could substantiate his case by bringing forward one conjurator, while the defendant could rebut it with two.[272] A similar rule obtained in England in all actions arising from contracts and sales;[273] and in the laws of Soest in Westphalia, compiled at the end of the eleventh or the commencement of the twelfth century, an accusation of homicide could be proved by six conjurators swearing with the prosecutor, while if this failed the accused could then clear himself with eleven compurgators.[274] Throughout Germany, in the thirteenth century, we find the principle of accusing conjurators generally received, as is evident from the juramentum supermortuum already referred to, and other provisions of the municipal law.[275] So thoroughly, indeed, was this established that, in some places, in prosecutions for highway robbery, arson, and other crimes, the accuser had a right to require every individual in court, from the judge to the spectator, to help him with an oath or to swear that he knew nothing of the matter, and even the attorney for the defendant was obliged to undergo the ceremony.[276] In Sweden it was likewise in use under the name of jeff niteed;[277] and in the compilation of the laws by Andreas, Archbishop of Lunden, in the thirteenth century, there is a curious provision for cases of secret murder by which the accuser could force nine men successively to undergo the hot-iron ordeal, after which, if thus far unsuccessful, he could still force a tenth man to trial on producing twelve conjurators to swear to the guilt of the accused—these conjurators, in case of acquittal, being each liable to a fine of three marks to the accused and as much to the church.[278] In Norway and Iceland, in certain cases of imputed crime, the accuser was bound to produce ten companions, of whom eight appeared simply as supporters, while two swore that they had heard the offence spoken of, but that they knew nothing about it of their own knowledge—the amount of weight attached to which asseveration is shown by the fact that the accused required only two conjurators to clear himself.[279]

Perhaps the most careful valuation of the oath of a plaintiff is to be found in the Coutumier of Bordeaux, which provides that, in civil cases not exceeding four sols in amount, the claimant should substantiate his case by an oath on the Gospels in the Mayor’s Court; when from four to twenty sols were at stake, he was sworn on the altar of St. Projet or St. Antoine; from twenty sols to fifteen livres, the oath was taken in the cemetery of St. Seurin, while for amounts above that sum it was administered on the “Fort” or altar of St. Seurin himself. Persons whose want of veracity was notorious were obliged in all cases, however unimportant, to swear on the Fort, and had moreover to provide a conjurator who with an oath of equal solemnity asserted his belief in the truth of his companion.[280]

The custom of supporting an accusatorial oath by conjurators was maintained in some portions of Europe to a comparatively recent period. Wachter[281] prints a curious account of a trial, occurring in a Suabian court in 1505, which illustrates this, as well as the weight which was still attached to the oath of a defendant. A woman accused three men on suspicion of being concerned in the murder of her husband. They denied the charge, but when the oath of negation was tendered to them, with the assurance that, if they were Suabians, it would acquit them, they demanded time for consideration. Then the advocate of the widow stepped forward to offer the oath of accusation, and two conjurators being found willing to support him the accused were condemned without further examination on either side. A similar process was observed in the Vehmgericht, or Court of the Free Judges of Westphalia, whose jurisdiction in the fourteenth and fifteenth centuries became extended over the whole of Germany. Accusations were supported by conjurators, and when the defendant was a Frei-graff, or presiding officer of a tribunal, the complainant was obliged to procure seven Frei-schöppen, or free judges, to take the accusatorial oath with him.[282]

The latest indication that I have met with of established legal provisions of this nature occurs in the custom of Britanny, as revised in 1539. By this, a man claiming compensation for property taken away is to be believed on oath as to his statement of its value, provided he can procure companions worthy of credence to depose “qu’ils croyent que le jureur ait fait bon et loyal serment.”[283] Even this last vestige disappears in the revision of the Coutumier made by order of Henry III. in 1580.

[II.]
THE WAGER OF BATTLE.

CHAPTER I.

When man is emerging from barbarism, the struggle between the rising power of reason and the waning supremacy of brute force is full of instruction. Wise in our generation, we laugh at the inconsistencies of our forefathers, which, rightly considered as portions of the great cycle of human progress, are rather to be respected as trophies of the silent victory, won by almost imperceptible gradations. When, therefore, in the dark ages, we find the administration of justice so strangely interrupted by appeals to the sword or to chance, dignified under the forms of Christianized superstition, we should remember that even this is an improvement on the all-pervading first law of violence. We should not wonder that barbarous tribes require to be enticed to the acknowledgment of abstract right through pathways which, though devious, may reach the goal at last. When the strong man is brought, by whatever means, to yield to the weak, a great conquest is gained over human nature; and if the aid of superstition is invoked to decide the struggle, it is idle for us, while enjoying the result, to contemn the means which the weakness of human nature has rendered necessary to the end. With uneducated nations, as with uneducated men, sentiment is stronger than reason, and sacrifices will be made for the one which are refused to the other. If, therefore, the fierce warrior, resolute to maintain an injustice or a usurpation, can be brought to submit his claim to the chances of an equal combat or of an ordeal, he has already taken a vast step towards acknowledging the supremacy of right and abandoning the personal independence which is incompatible with the relations of human society. It is by such indirect means that individuals, each relying on his own right hand, have been gradually led to endure regular forms of government, and to cherish the abstract idea of justice as indispensable between man and man. Viewed in this light, the ancient forms of procedure lose their ludicrous aspect, and we contemplate their whimsical admixture of force, faith, and reason, as we might the first rude engine of Watt, or the “Clermont,” which painfully labored in the waters of the Hudson—clumsy and rough it is true, yet venerable as the origin and prognostic of future triumphs.

There is a natural tendency in the human mind to cast the burden of its doubts upon a higher power, and to relieve itself from the effort of decision by seeking in the unknown the solution of its difficulties. Between the fetish worshippers of Congo and the polished sceptics who frequented the salon of Mlle. le Normant, the distance, though great, is bridged over by this common weakness; and whether the information sought be of the past or of the future, the impulse is the same. When, therefore, in the primitive mallum, the wisdom of the rachinborgs was at fault, and the absence or equal balance of testimony rendered a verdict difficult, what was more natural than to appeal for a decision to the powers above, and to leave the matter to the judgment of God?[284] Nor, with the warlike instincts of the race, is it surprising that this appeal should be made to the God of battles, to whom, whether they addressed him as Odin or Sabaoth, they looked in every case for a special interposition in favor of innocence. The curious mingling of procedure, in these untutored seekings after justice, is well illustrated in a form of process prescribed by the primitive Bavarian law. A man comes into court with six conjurators to claim an estate; the possessor defends his right with a single witness, who must be a landholder of the vicinage. The claimant then attacks the veracity of the witness—“Thou hast lied against me. Grant me the single combat, and let God make manifest whether thou hast sworn truth or falsehood;”[285] and, according to the event of the duel is the decision as to the truthfulness of the witness and the ownership of the property.

In discussing the judicial combat, it is important to keep in view the wide distinction between the wager of battle as a judicial institution, and the custom of duelling which has obtained with more or less regularity among all races and at all ages. When the Horatii met the Curiatii, or when Antony challenged Octavius to decide the empire of the world with their two swords, or when Edward III. in 1340 proposed to Philippe de Valois to settle their rival claims to the heritage of France army to army, a hundred to a hundred, or body to body,[286] or when the ancient Hindus were in the habit of averting the carnage of battles in the same manner[287]—these were simply expedients to save the unnecessary effusion of blood, or to gratify individual hate. When the raffiné of the times of Henri Quatre, or the modern fire-eater, has wiped out some imaginary stain in the blood of his antagonist, the duel thus fought, though bearing a somewhat closer analogy to the judicial combat, is not derived from it, but from the right of private vengeance which was common to all the barbarian tribes, and from the cognate right of private warfare which was the exclusive privilege of the gentry during the feudal period.[288] The established euphuistic formula of demanding “the satisfaction of a gentleman,” thus designates both the object of the custom and its origin. The abolition of private wars gave a stimulus to the duel at nearly the period when the judicial combat fell gradually into desuetude. The one thus succeeded to the other, and, being kindred in form, it is not surprising that for a time there was some confusion in the minds of men respecting their distinctive characteristics. Yet it is not difficult to draw the line between them. The object of the one was vengeance and reparation; the theory of the other was the discovery of truth and the impartial ministration of justice.

It is easy to multiply examples illustrating this. John van Arckel, a knight of Holland, followed Godfrey of Bouillon to the first crusade. When some German forces joined the army, a Tyrolese noble, seeing van Arckel’s arms displayed before his tent, and recognizing them as identical with his own, ordered them torn down. The insult was flagrant, but the injured knight sought no immediate satisfaction for his honor. He laid the case before the chiefs of the crusade as a judicial matter; an examination was made, and both parties proved their ancestral right to the same bearings. To decide the conflicting and incompatible pretensions, the judges ordered the judicial combat, in which van Arckel deprived his antagonist of life and quarterings together, and vindicated his claim to the argent 2 bars gules, which in gratitude to Heaven he bore for eight long years in Palestine. This was not a quarrel on a punctilio, nor a mode of obtaining redress for an insult, but an examination into a legal question which admitted of no other solution according to the manners of the age.[289] When, after the Sicilian Vespers, the wily Charles of Anjou was sorely pressed by his victorious rival Pedro III. of Aragon, and desired to gain time in order to repress a threatened insurrection among his peninsular subjects, he sent a herald to Don Pedro to accuse him of bad faith in having commenced the war without defiance. The fiery Catalan fell into the snare, and in order to clear himself of the charge, which was not ill-founded, he offered to meet his accuser in combat and determine their rights to the Sicilian throne. The terms were laboriously settled by six representatives of each king and were signed by the principals December 26, 1282; they were to meet, with a hundred knights on each side, June 1, 1283, in the neutral territory of Bordeaux and fight it out in the presence of Edward I. of England or of his deputy, and each swore that if he failed to be present he would forever hold himself as false and perjured and deprived of the royal station and dignity. When Charles applied to his cousin Edward to grant the champ-clos the latter emphatically replied that for the crowns of the Two Sicilies he would not be judge in such a combat; Martin II. chimed in with a bull forbidding him to serve, and the combat never took place, Charles of Anjou having obtained his purpose in the intervening suspension of arms.[290] Nothing more picturesquely romantic is to be found in the annals of chivalry than Muntaner’s relation of Don Pedro’s secret ride to Bordeaux and his appearance on the day appointed in the lists where Edward’s seneschal was unable to guarantee him a fair field.[291] So the challenge which Richard II., in 1383, sent to Charles VI. wore the aspect of the judicial duel to decide their claims to the realms of France under the judgment of God.[292] Though practically these challenges may differ little from that of Antony, still their form and purport were those of the judicial duel in civil or criminal cases. So, when Charles V. offered to maintain in single combat the charge that Francis I. had villainously forfeited his faith in disregarding the treaty of Madrid, and Francis hotly replied with a demand for a secure field in which to defend his honor, the challenge and its acceptance wore the form of the judicial duel to decide the question of guilt; although Charles in appointing the Bidasoa as the place of meeting gave as his reasons the avoidance of bloodshed and the ending of the war as well as the maintenance of his just cause.[293] The celebrated duel, fought in 1547, between Jarnac and La Chastaigneraye, so piteously deplored by honest old Brantôme, shows the distinction maintained to the last. It was conducted with all judicial ceremonies, in presence of Henry II., not to settle a point of honor, but to justify Jarnac from a disgusting accusation brought by his adversary. Resulting most unexpectedly in the death of La Chastaigneraye, who was a favorite of the king, the monarch was induced to put an end to all legalized combats, though the illegal practice of the private duel not only continued to flourish, but increased beyond all precedent during the succeeding half century—Henry IV. having granted in twenty-two years no less than seven thousand letters of pardon for duels fought in contravention of the royal edicts. Such a mode of obtaining “satisfaction” is so repugnant to the spirit of our age that it is perhaps not to be wondered at if its advocates should endeavor to affiliate it upon the ancient wager of battle. Both relics of barbarism, it is true, are developments from the same primitive habits and customs, yet they are essentially distinct and have coexisted as separate institutions; and, however much occasionally intermingled by the passions of periods of violence, they were practised for different ends, and were conducted with different forms of procedure. We have only to deal with the combat as a strictly judicial process, and shall, therefore, leave untouched the vast harvest of curious anecdote afforded by the monomachial propensities of modern times.

[CHAPTER II.]
ORIGIN OF THE JUDICIAL DUEL.

The mediæval panegyrists of the wager of battle sought to strengthen its title to respect by affirming that it was as old as the human race, and that Cain and Abel, unable to settle their conflicting claims in any other mode, agreed to leave the decision to the chances of the duel; while the combat between David and Goliath was considered by the early schoolmen as an unanswerable proof of the favor with which God regarded such encounters. Leaving such speculations aside, it is enough for us to know that all the tribes which settled in Europe practised the combat with so general a unanimity that its origin must be sought at a period anterior to their separation from the common stock, although it has left no definite traces in the written records which have reached us of the Asiatic Aryans.[294]

That some vague notions of Divine justice making itself manifest through the sword must have existed in prehistoric Hellenic times is apparent from Homer’s elaborate description of the duel between Menelaus and Paris. This has all the characteristics of a judicial combat to decide the guilt or innocence of the claimants for the possession of the fair Helen. A preliminary sacrifice is offered to Zeus; Hector and Ulysses measure out the ground; lots are cast to decide which of the antagonists shall have the first throw of the spear; and the assembled armies put up a prayer to Zeus, entreating him to send to Hades the guilty one of the two combatants.[295] This is not merely a device to put an end to the slaughter of brave warriors—it is an appeal to Heaven to elicit justice by means of arms.

The Italiote branch of the Aryans affords us a more definite illustration of the same belief in the custom of the Umbrians, who settled quarrels by single combat, and deemed that he who slew his adversary thus proved that his cause was just.[296]

Although Cæsar makes no mention of such a custom in Gaul, it evidently prevailed among the Celtic tribes. Livy describes how some Spaniards seized the opportunity of a show of gladiators, given by Scipio, to settle various civil suits by combat, and he proceeds to particularize a case in which two rival cousins decided in this manner a disputed question in the law of descent, despite the earnest remonstrances of the Roman commander.[297] Among the Irish Celts, at their appearance in history, we find the judicial duel established with fixed regulations. In the Senchus Mor, a code claiming to be compiled under the supervision of St. Patrick, the delay of five days in a distress is explained by the history of a combat between two long previous in Magh-inis. “When they had all things ready for plying their arms, except a witness alone, they met a woman at the place of combat, and she requested of them a delay, saying, ‘If it were my husband that were there I would compel you to delay.’ ‘I would delay,’ said one of them, ‘but it would be prejudicial to the man who sues me; it is his cause that would be delayed.’ ‘I will delay,’ said the other. The combat was then put off, but they did not know till when it was put off, until Conchubhur and Sencha passed judgment respecting it; and Sencha asked, ‘What is the name of this woman?’ ‘Cuicthi,’ (five) said she, ‘is my name.’ ‘Let the combat be delayed,’ said Sencha, ‘in the name of this woman for five days.’”[298] The combative ardor of the Feini, indeed, was so strong, and the appeal to the wager of battle so general, that on their conversion to Christianity they found it difficult to understand that the holy ministers of Christ should be restricted from vindicating their rights by arms, and St. Patrick, in a synod held in 456, was obliged to threaten his clergy with expulsion from the church if they endeavored to escape by appeal to the sword from settling obligations which they had incurred by giving security for heathens.[299]

This prevalence of the wager of battle among the Irish Celts renders probable its existence likewise among the early inhabitants of Britain. If so, the long domination of the Romans was doubtless sufficient to extinguish all traces of it. The Welsh laws attributed to Hoel Dda in the early part of the tenth century, which are exceedingly minute and precise in their directions as to all forms of legal procedure, make no allusion to it whatever. It is true that an ancient collection of laws asserts that the code of Dyvnwal-moel-mud, a British king, prescribed the ordeals of battle, of hot iron, and of boiling water, and that Hoel in his legislation considered them unjust, abrogated them, and substituted the proof by men, or raith.[300] This legend, however, is very apocryphal. There is no allusion to such customs in the Welsh codes up to the close of the twelfth century, and the few indications which occur in subsequent collections would seem to indicate that these were rather innovations due to the influence of the English conquest than revivals of ancient institutions.

Among the Slavs, as they emerge into history, the duel occupies a controlling position in the administration of justice. Ibn Dost, an Arab traveller in Russia in the tenth century, relates that a pleader dissatisfied with the judgment of the king could always appeal to the sword, and this decision was regarded as so absolute that the defeated party, his family and possessions were all at the disposition of the victor. In Bohemia at a later period the successful combatant was required to decapitate his antagonist.[301] The earliest records of the various other Slavic lands give evidence of the prevalence of the judicial combat, showing that it formed part of their ancestral customs prior to their occupation of their present territories.[302]

Among the Norræna branch of the Teutons the wager of battle can be traced back to the realm of legend and tradition. Saxo Grammaticus informs us that about the Christian era Frotho III., or the Great, of Denmark, ordered the employment of the duel to settle all controversies, preferring that his warriors should accustom themselves to rely, not on eloquence, but on courage and skill;[303] and however doubtful the chronology may be, the tradition shows that the origin of the custom was lost in the depths of antiquity. Among the heathen Norsemen, indeed, the holm-gang, or single combat, was so universal an arbiter that it was recognized as conferring a right where none pre-existed. Any athlete, who confided in his strength and dexterity with his weapons, could acquire property by simply challenging its owner to surrender his land or fight for it. When Iceland, for instance, was in process of settlement, Kraku Hreidar sailed thither, and on sighting land invoked Thor to assign to him a tract of ground which he would forthwith acquire by duel. He was shipwrecked on reaching the shore, and was hospitably received by a compatriot named Havard, with whom he passed the winter. In the spring he declared his purpose of challenging Sæmund Sudureyska for a sufficient holding, but Havard dissuaded him, arguing that this mode of acquiring property rarely prospered in the end, and Eirek of Goddolom succeeded in quieting him by giving him land enough. Others of these hardy sea-rovers were not so amenable to reason as Kraku. When Hallkell came to Iceland and passed the winter with his brother Ketelbiorn, the latter offered him land on which to settle, but Hallkell disdained so peaceful a proposition, and preferred to summon a neighbor named Grim to surrender his property or meet him in the holm-gang. Grim accepted the defiance, was slain, and Hallkell was duly installed as his heir. A variation of the custom is illustrated by the case of Hrolleif, who after some years’ settlement grew dissatisfied with his holding, and challenged his neighbor Eyvind to an exchange of properties or a combat, alternatives of which the peace-loving Eyvind accepted the former.[304] The Saga of Egil Skallagrimsson speaks of a noted duellist known as Ljot the Pale, who had come to the district a landless stranger, and had grown wealthy by thus challenging proprietors and taking their lands, but who met his fate at the hands of Egil, who, while travelling, came to the place where Ljot was about to engage in a holm-gang with a weaker antagonist. Egil volunteered to take his place, and promptly slew Ljot. The holm-gang was so named because the battle was usually fought on a small island or holm; and that it was regarded as an appeal to the gods is manifested by the custom of the victor sacrificing an ox as soon as he left the spot.[305]

It is true that Tacitus makes no allusion to such a custom among the Germans of his time, a passage which is frequently quoted to that effect being in reality only a description of a mode of divination in which, at the beginning of a war, one of the enemy was captured and made to fight with a chosen champion, the result of the combat being taken to foreshadow the event of the contest.[306] The object of Tacitus, however, was not to excite the curiosity of his countrymen, but rather to contrast their vices with the uncivilized virtues of the Germans, and his silence on this point is not a negative evidence of weight in comparison with the positive proofs which exist with regard to kindred tribes. Be this as it may, as soon as we obtain an insight into their customs from written laws, we find the wager of battle everywhere recognized. The earliest of these is the code of the Burgundians, collected by King Gundobald towards the close of the fifth century, and in this the duel occupies a place so conspicuous that it obtained in time the name of Lex Gundebalda or Loy Gombette, giving rise to a belief that it was of Burgundian origin.

In the ordinary texts of the Salic law no mention is made of it, but in one manuscript it is alluded to as a regular form of procedure.[307] This silence, however, does not justify the conclusion that the battle ordeal was not practised among the Franks. Enough instances of it are to be found in their early history to show that it was by no means uncommon;[308] and, at a later period, the same absence of reference to it is observable in the Lex Emendata of Charlemagne, though the capitularies of that monarch frequently allude to it as a legal process in general use. The off-shoots of the Salic law, the Ripuarian, Allemannic, and Bavarian codes—which were compiled by Thierry, the son of Clovis, revised successively by Childebert and Clotair II., and put into final shape by Dagobert I. about the year 630—in their frequent reference to the “campus,” show how thoroughly it pervaded the entire system of Germanic jurisprudence. The Lombards were, if possible, even more addicted to its use. Their earliest laws, compiled by King Rotharis in 643, seventy-six years after their occupation of Italy, make constant allusion to it, and their readiness to refer to its decision the most conspicuous cases is shown in the story of Queen Gundeberga, the wife of Ariovaldus, who was the immediate predecessor of Rotharis. Adalulf, a disappointed lover, brought against her a charge of conspiracy which induced Ariovaldus to cast her in prison, where she lay for three years, until Clotair the Great, to whom she was of kindred, sent an embassy to obtain her release. Diplomacy was of no avail, and all that the Frankish envoys could accomplish was to secure for her a trial by single combat, in which a champion named Pitto overcame Adalulf the accuser, and Gundeberga was restored to the throne with her innocence recognized.[309] Indeed, the tenacious hold which it maintained on the veneration of the Lombards is seen in the fruitless efforts to restrict its employment and to abrogate it by Rotharis and his successors under the civilizing influence of contact with Roman institutions. Thus Rotharis forbids its use in some cases of importance, substituting conjurators, with a marked expression of disbelief, which shows how little confidence was felt in its results by enlightened men.[310] The next lawgiver, King Grimoald, decreed that thirty years’ possession of either land or liberty relieved a defendant from maintaining his title by battle, the privilege of employing conjurators being then conceded to him.[311] In the succeeding century, King Liutprand sought to abolish it entirely, but finding the prejudices of his people too strong to be overcome, he placed on record in the statute-book a declaration of his contempt for it and a statement of his efforts to do away with it, while he was obliged to content himself with limiting the extent of its application, and diminishing the penalties incurred by the defeated party.[312]

While the laws of the Angles, the Saxons, and the Frisians bear ample testimony to the general use of the wager of battle,[313] it is not a little singular that the duel appears to have been unknown among the Anglo-Saxons. Employed so extensively as legal evidence throughout their ancestral regions, by the kindred tribes from which they sprang, and by the Danes and Norwegians who became incorporated with them; harmonizing, moreover, with their general habits and principles of action, it would seem impossible that they should not likewise have practised it. I can offer no explanation of the anomaly, and can only state the bare fact that the judicial combat is not referred to in any of the Anglo-Saxon or Anglo-Danish codes.[314] There seems, indeed, to be no reason to doubt that its introduction into English jurisprudence dates only from the time of William the Conqueror.[315]

The Goths, while yet untainted by the influence of Rome, were no less given to the employment of the judicial duel than their Teutonic kindred, and Theodoric vainly endeavored to suppress the custom among those of his subjects who had remained in Pannonia.[316] That no trace of it is to be found among the extant laws of both Ostrogoths and Wisigoths, framed subsequently to their settlement in Italy, France, and Spain, is easily explained. The effect upon the invaders of the decaying but still majestic civilization of Rome, the Byzantine education of Theodoric, the leader of the Ostrogoths, and his settled policy of conciliating the Italians by maintaining as far as possible the existing state of society, preclude any surprise that no allusion to the practice should occur in the short but sensible code known as the “Edict of Theodoric,” which shows how earnestly that enlightened conqueror endeavored to fuse the invaders and the vanquished into one body politic.[317] With regard to the Wisigoths, we must remember that early conversion to Christianity and long intercourse with civilization had already worn off much of the primitive ferocity of a race which could produce in the fourth century such a man as Ulphilas. They were the earliest of the invaders who succeeded in forming a permanent occupation of the conquered territories; and settling, as they did, in Narbonensian Gaul and Spain while the moral influence of Rome was yet all powerful, the imperial institutions exercised a much greater effect upon them than on the subsequent bands of Northern barbarians. Accordingly, we find their codes based almost entirely upon the Roman jurisprudence, with such modifications as were essential to adapt it to a ruder state of society. Their nicely balanced provisions and careful distinctions offer a striking contrast to the shapeless legislation of the races that followed, and neither the judicial combat nor canonical compurgation found a place in them. Even the vulgar ordeal would appear to have been unknown until a period long subsequent to the conquest of Aquitaine by Clovis, and but little anterior to the overthrow of the Gothic kingdom of Spain by the Saracens. But even as in Italy the Lombard domination destroyed the results of Theodoric’s labors, so in France the introduction of the Frankish element revived the barbarian instincts, and in the celebrated combat before Louis le Débonnaire, between Counts Bera and Sanila, who were both Goths, we find the “pugna duorum” claimed as an ancient privilege of the race, with the distinction of its being equestrian, in accordance with Gothic usages, and so thoroughly was the guilt of Bera considered to be proved by his defeat, that his name became adopted in the Catalan dialect as a synonym of traitor.[318]

[CHAPTER III.]
UNIVERSAL USE OF THE JUDICIAL COMBAT.

The wager of battle thus formed part of the ancestral institutions of all the races who founded the nations of Europe. With their conversion to Christianity the appeal was transferred from the heathen deities to God, who was expected to intervene and decide the battle in favor of the right.[319] It was an appeal to the highest court and popular confidence in the arbitrament of the sword was rather strengthened than diminished. Enlightened lawgivers not only shared, to a greater or less extent, in this confidence, but were also disposed to regard the duel with favor as the most practical remedy for the crime of false swearing which was everywhere prevalent. Thus Gundobald assumes that its introduction into the Burgundian code arose from this cause;[320] Charlemagne urged its use as greatly preferable to the shameless oaths which were taken with so much facility;[321] while Otho II., in 983, ordered its employment in various forms of procedure for the same reason.[322] It can hardly be a source of surprise, in view of the warlike manners of the times, and of the enormous evils for which a palliative was sought, that there was felt to be advantage in this mode of impressing upon principals and witnesses the awful sanctity of the oath, thus entailing upon them the liability of supporting their asseverations by undergoing the risks of a combat rendered doubly solemn by imposing religious ceremonies.

Various causes were at work to extend the application of the judicial duel to all classes of cases. In the primitive codes of the barbarians, there is no distinction made between civil and criminal law. Bodily punishment being almost unknown, except for slaves, and nearly all infractions of the law being visited with fines, there was no necessity for such niceties, the matter at stake in all cases being simply money or money’s worth. Accordingly, we find the wager of battle used indiscriminately, both as a defence against accusations of crime, and as a mode of settling cases of disputed property, real and personal. Yet some of the earlier codes refer to it but seldom. The Salic law, as we have seen, hardly recognizes its existence; the Ripuarian code alludes to it but four times, and that of the Alamanni but six times. In others, like the Baioarian, it is appealed to on almost every occasion, and among the Burgundians we may assume, from a remark of St. Agobard, that it superseded all evidence and rendered superfluous any attempt to bring forward witnesses.[323] This variation is probably rather apparent than real, and if in any of these bodies of laws there were originally substantial limitations on its use, in time they disappeared, for it was not difficult to find expedients to justify the extension of a custom which accorded so perfectly with the temper of the age. How little reason was requisite to satisfy the belligerent aspirations of justice is shown by a curious provision in the code of one of the Frisian tribes, by which a man unable to disprove an accusation of homicide was allowed to charge the crime on whomsoever he might select, and then the question between them was decided by combat.[324]

The elasticity, in fact, with which the duel lent itself to the advantage of the turbulent and unscrupulous had no little influence in extending its sphere of action. This feature in its history is well exemplified in a document containing the proceedings of an assembly of local magnates, held in the year 888, to decide a contention concerning the patronage of the church of Lessingon. After the testimony on one side had been given, the opposite party commenced in reply, when the leaders of the assembly, seizing their swords, vowed that they would affirm the truth of the first pleader’s evidence with their blood before King Arnoul and his court—and the case was decided without more ado.[325] The strong and the bold are apt to be the ruling spirits in all ages, and were emphatically so in those periods of scarcely curbed violence when the jurisprudence of the European commonwealths was slowly developing itself.

It is no wonder, therefore, that means were readily found for extending the jurisdiction of the wager of battle as widely as possible. One of the most fruitful of these expedients was the custom of challenging witnesses. The duel was a method of determining questions of perjury, and there was nothing to prevent a suitor, who saw his case going adversely, from accusing an inconvenient witness of false swearing and demanding the “campus” to prove it—a proceeding which adjourned the main case, and likewise decided its result. This summary process, of course, brought every action within the jurisdiction of force, and deprived the judges of all authority to control the abuse. That it obtained at a very early period is shown by a form of procedure occurring in the Bavarian law, already referred to, by which the claimant of an estate is directed to fight, not the defendant, but his witness;[326] and in 819 a capitulary of Louis le Débonnaire gives a formal privilege to the accused on a criminal charge to select one of the witnesses against him with whom to decide the question in battle.[327] It is easy, therefore, to understand the custom, prescribed in some of the codes, by which witnesses were required to come into court armed, and to have their weapons blessed on the altar before giving their testimony. If defeated they were fined, and were obliged to make good to the opposite party any damage which their testimony, had it been successful, would have caused him.[328]

Nor was this merely a temporary extravagance. Late in the thirteenth century, after enlightened legislators had been strenuously and not unsuccessfully endeavoring to limit the abuse of the judicial combat, the challenging of witnesses was still the favorite mode of escaping legal condemnation.[329] Even in the fourteenth century, the municipal law of Reims, which allowed the duel between principals only in criminal cases, permitted witnesses to be indiscriminately challenged and forced to fight, affording them the privilege of employing champions only on the ground of physical infirmity or advanced age.[330] A still more bizarre extension of the practice, and one which was most ingeniously adapted to defeat the ends of justice, is found in a provision of the English law of the thirteenth century, allowing a man to challenge his own witnesses. Thus in many classes of crimes, such as theft, forgery, coining, etc., the accused could summon a “warrantor” from whom he professed to have received the articles which formed the basis of the accusation. The warrantor could scarcely give evidence in favor of the accused without assuming the responsibility himself. If he refused, the accused was at liberty to challenge him; if he gave the required evidence, he was liable to a challenge from the accuser.[331] The warrantor was sometimes also employed as a champion, and served for hire, but this service was illegal and when detected involved the penalties of perjury.[332] Another mode extensively used in France about the same time was to accuse the principal witness of some crime rendering him incapable of giving testimony, when he was obliged to dispose of the charge by fighting, either personally or by champion, in order to get his evidence admitted.[333]

It is not easy to imagine any cases which might not thus be brought to the decision of the duel; and the evidence of its universality is found in the restriction which prevented the appearance as witnesses of those who could not be compelled to accept the combat. Thus the testimony of women and ecclesiastics was not receivable in lay courts in suits where appeal of battle might arise;[334] and when in the twelfth century special privileges were granted by the kings of France empowering serfs to bear testimony in court, the disability which prevented a serf from fighting with a freeman was declared annulled in such cases, as the evidence was only admissible when the witness was capable of supporting it by arms.[335]

The result of this system was that, in causes subject to such appeals, no witness could be forced to testify, by the French law of the thirteenth century, unless his principal entered into bonds to see him harmless in case of challenge, to provide a champion, and to make good all damages in case of defeat;[336] though it is difficult to understand how this could be satisfactorily arranged, since the penalties inflicted on a vanquished witness were severe, being, in civil causes, the loss of a hand and a fine at the pleasure of the suzerain, while in criminal actions “il perderoit le cors avecques.”[337] The only limit to this abuse was that witnesses were not liable to challenge in cases concerning matters of less value than five sous and one denier.[338]

If the position of a witness was thus rendered unenviable, that of the judge was little better. As though the duel had not received sufficient extension by the facilities for its employment just described, another mode of appealing to the sword in all cases was invented by which it became competent for the defeated party in any suit to challenge the court itself, and thus obtain a forcible reversal of judgment. It must be borne in mind that this was not quite as absurd a practice as it may seem to us in modern times, for under the feudal system the dispensing of justice was one of the most highly prized attributes of sovereignty; and, except in England, where the royal judges were frequently ecclesiastics, the seignorial courts were presided over by warriors. In Germany, indeed, where the magistrates of the lower tribunals were elective, they were required to be active and vigorous of body.[339] Towards the end of the twelfth century in England we find Glanville acknowledging his uncertainty as to whether or not the court could depute the settlement of such an appeal to a champion, and also as to what, in case of defeat, was the legal position of the court thus convicted of injustice.[340] These doubts would seem to indicate that the custom was still of recent introduction in England, and not as yet practised to an extent sufficient to afford a settled basis of precedents for its details. Elsewhere, however, it was firmly established. In 1195, the customs of St. Quentin allow to the disappointed pleader unlimited recourse against his judge.[341] Towards the latter half of the thirteenth century, we find in the Conseil of Pierre de Fontaines the custom in its fullest vigor and just on the eve of its decline. No restriction appears to be imposed as to the cases in which appeal by battle was permitted, except that it was not allowed to override the customary law.[342] The suitor selected any one of three judges agreeing in the verdict; he could appeal at any stage of the proceedings when a point was decided against him; if unsuccessful, he was only liable in a pecuniary penalty to the judges for the wrong done them, and the judge, if vanquished, was exposed to no bodily punishment.[343] The villein, however, was not entitled to the privilege, except by special charter.[344] While the feudal system was supreme, this appeal to arms was the only mode of reversing a judgment, and an appeal in any other form was an innovation introduced by the extension of the royal jurisdiction under St. Louis, who labored so strenuously and so effectually to modify the barbarism of feudal institutions by subordinating them to the principles of the Roman jurisprudence. De Fontaines, indeed, states that he himself conducted the first case ever known in Vermandois of an appeal without battle.[345] At the same time the progress of more rational ideas is manifested by his admission that the combat was not necessary to reverse a judgment manifestly repugnant to the law, and that, on the other hand, the law was not to be set aside by the duel.

Twenty years later, we find in Beaumanoir abundant evidence of the success of St. Louis in setting bounds to the abuses which he was endeavoring to remove. The restrictions which he enumerates are greatly more efficacious than those alluded to by de Fontaines. In capital cases, the appeal did not lie; while in civil actions, the suzerain before whom the appeal was made could refuse it when the justice of the verdict was self-evident. Some caution, moreover, was requisite in conducting such cases, for the disappointed pleader who did not manage matters rightly might find himself pledged to a combat, single handed, with all his judges at once; and as the bench consisted of a collection of the neighboring gentry, the result might be the confirmation of the sentence in a manner more emphatic than agreeable. An important change is likewise observable in the severe penalty imposed upon a judge vanquished in such an appeal, being a heavy fine and deprivation of his functions in civil cases, while in criminal ones it was death and confiscation—“il pert le cors et quanques il a.”[346]

The king’s court, however, was an exception to the general rule. No appeals could be taken from its judgments, for there was no tribunal before which they could be carried.[347] The judges of the royal court were therefore safe from the necessity of vindicating their decisions in the field, and they even carried this immunity with them and communicated it to those with whom they might be acting. De Fontaines accordingly advises the seigneur justicier who anticipates the appeal of battle in his court to obtain a royal judge to sit with him, and mentions an instance in which Philip (probably Philip Augustus) sent his whole council to sit in the court of the Abbey of Corbie, when an appeal was to be entered.[348]

By the German law of the same period, the privilege of reversing a sentence by the sword existed, but accompanied with regulations which seem evidently designed to embarrass, by enormous trouble and expense, the gratification of the impulse which disappointed suitors would have to establish their claims in such manner. Thus, by the Suabian law, it could only be done in the presence of the sovereign himself, and not in that of the immediate feudal superior;[349] while the Saxon code requires the extraordinary expedient of a pitched battle, with seven on each side, in the king’s presence.[350] It is not a little singular that the feudal law of the same period has no allusion to the custom, all appeals being regularly carried to and heard in the court of the suzerain.[351]

[CHAPTER IV.]
CONFIDENCE REPOSED IN THE JUDICIAL DUEL.

Thus carefully moulded in conformity with the popular prejudices or convictions of every age and country, it may readily be imagined how large a part the judicial combat played in the affairs of daily life. It was so skilfully interwoven throughout the whole system of jurisprudence that no one could feel secure that he might not, at any moment, as plaintiff, defendant, or witness, be called upon to protect his estate or his life either by his own right hand or by the club of some professional and possibly treacherous bravo. This organized violence assumed for itself the sanction of a religion of love and peace, and human intelligence seemed too much blunted to recognize the contradiction.

There was, in fact, no question which might not be submitted to the arbitrament of the sword or club. If Charlemagne, in dividing his vast empire, forbade the employment of the wager of battle in settling the territorial questions which might arise between his heirs,[352] the prohibition merely shows that it was habitually used in affairs of the highest moment, and the constant reference to it in his laws proves that it was in no way repugnant to his general sense of justice and propriety.

The next century affords ample evidence of the growing favor in which the judicial combat was held. About the year 930, Hugh, King of Provence and Italy, becoming jealous of his uterine brother, Lambert, Duke of Tuscany, asserted him to be a supposititious child, and ordered him in future to claim no relationship between them. Lambert, being “vir ... bellicosus et ad quodlibet facinus audax,” contemptuously denied the aspersion on his birth, and offered to clear all doubts on the subject by the wager of battle. Hugh accordingly selected a warrior named Teudinus as his champion; Lambert was victor in the ensuing combat, and was universally received as the undoubted son of his mother. His triumph, however, was illegally brought to a sudden close, for Hugh soon after succeeded in making him prisoner and deprived him of eyesight.[353] Still, the practice continued to be denounced by some enlightened ecclesiastics, represented by Atto, Bishop of Vercelli, who declared it to be totally inapplicable to churchmen and not to be approved for laymen on account of the uncertainty of its results;[354] but representations of this kind were useless. About the middle of the century, Otho the Great appears, throwing the enormous weight of his influence in its favor. As a magnanimous and warlike prince, the wager of battle appears to have possessed peculiar attraction for his chivalrous instincts, and he extended its application as far as lay in his power. Not only did he force his daughter Liutgarda, in defending herself from a villanous accusation, to forego the safer modes of purgation, and to submit herself to the perilous decision of a combat,[355] but he also caused the abstract question of representation in the succession of estates to be settled in the same manner; and to this day in Germany the division of a patrimony among children and grandchildren is regulated in accordance with the law enacted by the doughty arms of the champions who fought together nine hundred years ago at Steil.[356] There was no question, indeed, which according to Otho could not be satisfactorily settled in this manner. Thus when, in 963, he was indulging in the bitter recriminations with Pope John XII. which preceded the subjugation of the papacy under the Saxon emperors, he had occasion to send Bishop Liutprand to Rome to repel certain accusations brought against him, and he ordered the armed followers of his ambassador to sustain his assertions by the duel; a proposition promptly declined by the pontiff, skilled though he was in the use of weapons.[357] A duellist, in fact, seems to have been reckoned a necessary adjunct to diplomacy, for when, in 968, the same Liutprand was dispatched by Otho to Constantinople on a matrimonial mission, and during the negotiations for the hand of Theophania a discussion arose as to the circumstances which had led to Otho’s conquest of Italy, the warlike prelate offered to prove his veracity by the sword of one of his attendants: a proposition which put a triumphant end to the argument.[358] A more formal assertion of the diplomatic value of the duel was made when in 1177 the conflicting claims of the kings of Castile and Navarre were referred to Henry II. of England for adjudication, and both embassies to the English court were supplied with champions as well as with lawyers, so as to be prepared in case the matter was submitted to the duel for decision.[359]

Nor were these solitary instances of the reference of the mightiest state questions to the chances of the single combat. Allusion has already been made to the challenge which passed between Charles of Anjou and Pedro of Aragon, and not dissimilar was that which resulted from the interview at Ipsch in 1053 between the Emperor Henry III. of Germany and Henry I. of France.[360] A hundred years earlier, in 948, when, at the Synod of Ingelheim, Louis d’Outremer invoked the aid of the Church in his death-struggle with the rising race of Capet, he closed the recital of the wrongs endured at the hands of Hugh le grand by offering to prove the justice of his complaints in single combat with the aggressor.[361] When the battle ordeal was thus thoroughly incorporated in the manners of the age, we need scarcely be surprised that, in a life of St. Matilda, written by command of her son Otho the Great, the author, after describing the desperate struggles of the Saxons against Charlemagne, should gravely inform us that the war was at last concluded by a duel between the Christian hero and his great antagonist Witikind, religion and empire being both staked on the issue as a prize of the victor; nor does the pious chronicler shudder at the thought that the destiny of Christianity was intrusted to the sword of the Frank.[362] His story could not seem improbable to those who witnessed in 1034 the efforts of Conrad the Salic to pacify the Saxon marches. On his inquiring into the causes of the mutual devastations of the neighboring races, the Saxons, who were really the aggressors, offered to prove by the duel that the Pagan Luitzes were in fault, trusting that their Christianity would overbalance the injustice of their cause. The defeat of their champion by his heathen adversary was, however, a memorable example of the impartial justice of God, and was received as a strong confirmation of the value of the battle trial.[363]

The second Otho was fully imbued with his father’s views, and so completely did he carry them out, that in a gloss on the Lombard law he is actually credited with the introduction of the duel.[364] In the preceding essay, allusion has been made to his substitution of the judicial combat for the compurgatorial oath in 983, and about the same period he made an exception, in favor of the battle ordeal, to the immemorial policy of the barbarians which permitted to all subject races the enjoyment of their ancestral usages. At the council of Verona, where all the nobles of Italy, secular and ecclesiastical, were assembled, he caused the adoption of a law which forced the Italians in this respect to follow the customs of their conquerors.[365] Even the church was deprived of any exemption which she might previously have enjoyed, and was only allowed the privilege of appearing by her advocati or champions.[366] There were small chances of escape from the stringency of these regulations, for an edict of Otho I. in 971 had decreed the punishment of confiscation against any one who should refuse to undergo the chances of the combat.[367] It may even be assumed, from the wording of a constitution of the Emperor Henry II., that in the early part of the eleventh century it was no longer necessary that there should be a doubt as to the guilt of the accused to entitle him to the privileges of the combat, and that even the most notorious criminal could have a chance of escape by an appeal to the sword.[368]

Thus it came to pass that nearly every question that could possibly arise was finally deemed liable to the decision of the wager of battle. If Otho the Great employed champions to legislate respecting a disputed point of law, he was not more eccentric than the Spaniards, who settled in the same manner a controversy regarding the canonical observances of religion, when Gregory VII. endeavored to force the introduction of the Roman liturgy into Castile and Leon, in lieu of the national Gothic or Mozarabic rite. With considerable difficulty, some years before, Navarre and Aragon had been led to consent to the change, but the Castilians were doggedly attached to the observances of their ancestors, and stoutly refused compliance. In 1077, Alfonso I. procured the assent of a national council, but the people rebelled, and after repeated negotiations the matter was finally referred to the umpirage of the sword. The champion of the Gothic ritual was victorious, and tradition adds that a second trial was made by the ordeal of fire; a missal of each kind was thrown into the flames, and the national liturgy emerged triumphantly unscathed.[369]

Nearly contemporary with this was the celebrated case of Otho, Duke of Bavaria, perhaps the most noteworthy example of a judicial appeal to the sword. A worthless adventurer, named Egeno, accused Otho of conspiring against the life of Henry IV. In a diet held at Mainz, the duke was commanded to disprove the charge by doing battle with his accuser within six weeks. According to some authorities, his pride revolted at meeting an adversary so far his inferior; according to others, he was prevented from appearing in the lists only by the refusal of the emperor to grant him a safe conduct. Be this as it may, the appointed term elapsed, his default of appearance caused judgment to be taken against him, and his duchy was accordingly confiscated. It was bestowed on Welf, son of Azo d’Este and of Cunigunda, descendant and heiress of the ancient Guelfic Agilolfings; and thus, on the basis of a judicial duel, was founded the second Bavarian house of Guelf, from which have sprung so many royal and noble lines, including their Guelfic Majesties of Britain. Some years later, the emperor himself offered to disprove by the same means a similar accusation brought against him by a certain Reginger, of endeavoring to assassinate his rival, Rodolph of Suabia. Ulric of Cosheim, however, who was involved in the accusation, insisted on taking his place, and a day was appointed for the combat, which was prevented only by the opportune death of Reginger.[370]

Scarcely less impressive in its results, and even more remarkable in itself, as exhibiting the duel invested with legislative as well as judicial functions, is the case wherein the wager of battle was employed in 1180 to break the overgrown power of Henry the Lion. That puissant Duke of Saxony and Bavaria had long divided the power of the empire and defied the repeated efforts of Frederic Barbarossa to punish his constantly recurring rebellions. Cited to appear and answer for his treasons in successive diets, he constantly refused, on the plea that the law required him to have a trial within his own dominions. At length, in the diet of Würzburg, a noble arose and declared himself ready to prove by the single combat that the emperor could legally cite his princes before him at any place that he might select within the limits of the empire. Of course there was none to take up the challenge, and Frederic was enabled to erect the principle thus asserted into a binding law. Henry was condemned by default, and his confiscated possessions were shared between those who had arranged and enacted the comedy.[371]

No rank of life in fact procured exemption from the duel between antagonists of equal station. When in 1002, on the death of Otho III., the German throne was filled by the election of Henry the Lame, Duke of Bavaria, one of his disappointed competitors, Hermann, Duke of Suabia, is said to have demanded that their respective claims should be determined by a judicial combat, and the new king, feeling himself bound to accept the wager of battle, proceeded to the appointed place, and waited in vain for the appearance of his antagonist.[372] Thus the champion of England, who until 1821 figured in the coronation pageant of Westminster Abbey, was a relic of the times when it was not an idle ceremony for the armed and mounted knight to fling the gauntlet and proclaim aloud that he was ready to do battle with any one who challenged the right of the new monarch to his crown.[373] A striking example of the liability attaching to even the most exalted rank is afforded by a declaration of the privileges of the Duchy of Austria, granted by Frederic Barbarossa in 1156, and confirmed by Frederic II. in 1245. These privileges rendered the dukes virtually independent sovereigns, and among them is enumerated the right of employing a champion to represent the reigning duke when summoned to the judicial duel.[374] Even more instructive is the inference deducible from the For de Morlaas, granted to his subjects by Gaston IV. of Béarn about the year 1100. The privileges contained in it are guaranteed by a clause providing that, should they be infringed by the prince, the injured subject shall substantiate his complaint by his simple oath, and shall not be compelled to prove the illegality of the sovereign’s acts by the judicial combat, thus indicating a pre-existing custom of the duel between the prince and his vassals.[375]

It is not to be supposed, however, from these instances that the duel was an aristocratic institution, reserved for nobles and affairs of state. It was an integral part of the ordinary law, both civil and criminal, employed habitually for the decision of the most every-day affairs. Thus a chronicler happens to mention that in 1017 the Emperor St. Henry II. coming to Merseburg hanged a number of robbers who had been convicted in single combat by champions, and then proceeding to Magdeburg he had all the thieves assembled and treated them in the same manner.[376] So much was it a matter of course, that, by the English law of the thirteenth century, a pleader was sometimes allowed to alter the record of his preliminary plea, by producing a man who would offer to prove with his body that the record was incorrect, the sole excuse for the absurdity being that it was only allowed in matters which could not injure the other side;[377] and a malefactor turning king’s evidence was obliged, before receiving his pardon, to pledge himself to convict all his accomplices, if required, by the duel.[378]

The habitual use of such a method of administering justice required no little robustness of faith in the expected intervention of God to control the event. Even in the fifteenth century, when the combat was rapidly becoming obsolete, this faith is pictorially embodied in an illuminated MS. of Tallhöfer’s Kamp-recht, where a miniature represents the victor kneeling and returning thanks to God, while the vanquished is lying on his back with Satan grasping at his open mouth as though already seizing the soul of the criminal.[379] This robustness of faith was proof against experience and common sense, and sought to explain the frequent miscarriage of justice by any process of reasoning rather than the right one. Thus about the year 1100 a sacrilegious thief named Anselm stole the sacred vessels from the church of Laon and sold them to a merchant, from whom he exacted an oath of secrecy. Frightened at the excommunications fulminated by the authorities of the plundered church, the unhappy trader revealed the name of the robber. Anselm denied the accusation, offered the wager of battle, defeated the unfortunate receiver of stolen goods, and was proclaimed innocent. Encouraged by impunity, he repeated the offence, and after his conviction by the ordeal of cold water he confessed the previous crime. The doubts cast by this event on the efficacy of the judicial combat were, however, happily removed by the suggestion that the merchant had suffered for the violation of the oath which he had sworn to Anselm, and the reputation of the duel remained intact.[380]

The frequent cases of this nature often did not admit of so ingenious an explanation of the criminal’s escape, and legal casuists assumed a condition of being, guilty in the sight of God, but not in that of man—a refinement of speculation which even finds place in the German codes of the thirteenth century;[381] and men contented themselves then, as they do still, with predicting future misfortunes and an eternity of punishment. The more direct solution, in cases of unjust condemnation, was very much like that which justified the defeat of Anselm’s merchant—that the unfortunate victim, though innocent of the special offence charged, suffered in consequence of other sins. This doctrine was even supported by the infallible authority of the papacy, as enunciated in 1203 by Innocent III. in a case wherein the priory of St. Sergius was unjustly convicted of theft by the judicial duel, and its possessions were consequently seized by the authorities of Spoleto.[382]

An example justifying this theory is found in the case of Henry of Essex in 1163. He was a favorite of Henry II. and one of the most powerful nobles of his day, till he was accused of treason by his kinsman Robert de Montfort for having abandoned his king when in desperate straits in the Welsh war of 1157. A duel ensued, fought on an island of the Thames near Reading, in presence of an immense assemblage. Henry had been a bad neighbor to the Abbey of St. Edmund, and when engaged in the desperate contest he was dismayed at seeing the angry saint hovering in the air and threatening him; nor was this all, for Gilbert de Cerivilla, whom he had unjustly put to death, likewise appeared and menaced him. The inevitable result of this was his defeat; he was left for dead on the field, but at the instance of his powerful kindred his body was allowed Christian burial in the Abbey of Reading. Carried thither he unexpectedly revived and embraced a religious life in the abbey, where years afterwards he related the story of his discomfiture to the veracious chronicler who has handed it down.[383]

That the combatants themselves did not always feel implicit confidence in the event, or rely solely upon the righteousness of their cause, is shown by the custom of occasionally bribing Heaven either to assist the right or to defend the wrong. Thus, in the eleventh century, we find the monastery of St. Peter at Bèze in the enjoyment of certain lands bestowed on the Saint by Sir Miles the Stammerer, who in this way endeavored to purchase his assistance in a combat about to take place—a bargain no doubt highly appreciated by the worthy monks.[384] According to the belief of the pious, Heaven might be propitiated by less venal means, for Cæsarius of Heisterbach relates on the authority of an eye-witness that when Henry VI. entered Lombardy in 1196, a castellan was accused before him of oppression and rapine by his neighbors, who produced a champion of enormous size to vindicate their case. The Emperor decreed the battle, when the brother of the accused offered himself for the defence—a slender and most unequal antagonist. He prepared himself for the strife, however, by assiduous confession and prayer, and easily overcame his huge adversary; and thus, exclaims the worthy chronicler, a guilty man escaped the death he had deserved, solely by virtue of the humble confession of his brother.[385] Cæsarius also mentions another case, in a duel decreed by Frederic Barbarossa between a knight and a gigantic champion, where the inequality was more than counterbalanced by the fact that the knight piously took the precaution of receiving the sacrament before entering the lists, and thus was enabled to overcome his adversary.[386]

Less creditable means were sometimes employed, and men did not hesitate, with the unreasoning inconsistency characteristic of superstition, to appeal to God and at the same time endeavor to influence God’s judgment by the use of unlawful expedients. This was not confined to the laity. In 1355 there was an important suit between the Bishop of Salisbury and the Earl of Salisbury respecting the ownership of a castle, in which the combat was adjudged. When the champions entered the lists the customary examination of their arms and accoutrements was made, and the combat was adjourned in consequence, as it was said, of finding in the coat of the episcopal champion certain rolls containing prayers and charms. The case was finally compromised by the bishop paying fifteen hundred marks to the earl for the disputed property.[387] That precautions against such devices were deemed necessary is shown by the oath required of all combatants, whether principals or champions, that they had on them no charms or conjurations to affect the result.[388] A quaint formula for this is the oath of the champion in the case of Low vs. Paramore in 1571—“This hear you justices that I have this day neither eat, drunk, nor have upon me either bone, stone, ne glass or any enchantment, sorcery, or witchcraft where-through the power of the Word of God might be inleased or diminished and the devil’s power increased, and that my appeal is true, so help me God and his saints and by this Book.”[389]

[CHAPTER V.]
LIMITATIONS ON THE WAGER OF BATTLE.

The right of demanding the wager of battle between principals varied much with the age and race, though as a “bilateral” ordeal, as a rule, from the earliest times either party was entitled to claim it.[390] When Beaumanoir composed his Coutumes du Beauvoisis, in 1283, the practice may be considered to have entered upon its decadence; twenty years had elapsed since the determined efforts of St. Louis to abolish it; substitutes for it in legal processes had been provided; and the manner in which that enlightened jurist manifests his preference for peaceful forms of law shows that he fully appreciated the civilizing spirit in which the monarch had endeavored to soften the ferocity of his subjects. When, therefore, we see in Beaumanoir’s treatise how few restrictions existed in his time, we may comprehend the previous universality of the custom. In criminal cases, if an accuser offered battle, the defendant was forced either to accept it or to confess his guilt, unless he could prove an alibi, or unless the accuser was himself notoriously guilty of the crime in question, and the accusation was evidently a mere device to shift the guilt to the shoulders of another; or unless, in case of murder, the victim had disculpated him, when dying, and had named the real criminals.[391] If, on the other hand, the accused demanded to wage his battle, the judge could only refuse it when his guilt was too notorious for question.[392] A serf could not challenge a freeman, nor a bastard a man of legitimate birth (though an appeal of battle might lie between two bastards), nor a leper a sound man.[393] In civil actions, the battle trial was not allowed in cases relating to dower, to orphans under age,[394] to guardianships, or to the equity of redemption afforded by the feudal laws to kinsmen in the sale of heritable property, or where the matter at stake was of less value than twelve deniers.[395] St. Louis also prohibited the duel between brothers in civil cases, while permitting it in criminal accusations.[396] The slenderness of these restrictions shows what ample opportunities were afforded to belligerent pleaders.[397]

In Germany, as a general rule, either party had a right to demand the judicial combat,[398] subject, however, in practice, to several important limitations. Thus, difference of rank between the parties afforded the superior a right to decline a challenge, as we shall see more fully hereafter.[399] Relationship between the contestants was also an impediment, of which either might avail himself,[400] and even the fact that the defendant was not a native of the territory in which the action was brought gave him the privilege of refusing the appeal.[401] Still, we find the principle laid down even in the fourteenth century that cases of homicide could not be determined in any other manner.[402] There were circumstances, indeed, in which the complainant, if he could bring the evidence of seven witnesses in his favor, could decline the duel; but if he choose to prove the charge by the combat, no examination or testimony was admitted. In the same way, if a man was slain while committing theft or robbery, and was prosecuted for the crime, the accuser was not bound to offer the duel if he could produce the evidence of seven witnesses; but if a relative of the dead man offered to vindicate him by combat, this annulled all the evidence, and conviction could not be had without the battle ordeal.[403] A curious provision in the Saxon burgher law allowed a man who had been assaulted to challenge to the duel as many men as he had wounds—but the wounds were required to be of a certain degree of severity—wunden kampffbaren.[404] So the contemporary law of Suabia provides that in accusations of personal violence, the duel was not to be allowed, unless the injury inflicted on the complainant had been sufficiently serious to cause permanent maiming,[405] thus showing how thoroughly different in spirit was the judicial combat from the modern code of honor which has been affiliated upon it. Yet a general rule is found expressed to the effect that it was necessary only in cases where no other evidence was obtainable, when the result could be safely left to the judgment of Omniscience.[406]

In the Latin kingdoms of the East, and among the Armenians, who, curiously enough, adopted the customs of their fellow Christians from the West, it would seem that in both the noble and the roturier courts, in civil as well as in criminal cases, the plaintiff or prosecutor was not obliged personally to fight, but that if one of his witnesses offered battle, the defendant or accused was not permitted to decline the challenge under pain of losing his suit or being condemned. On the other hand, unless the complainant or accuser had a witness who was willing to offer battle, the oath of denial of the other party was sufficient, and in criminal cases the accuser was subjected to the talio.[407]

By the English law of the thirteenth century, a man accused of crime had, in doubtful cases only, the right of election between trial by jury and the wager of battle. When a violent presumption existed against him, he was obliged to submit to the verdict of a jury; but in cases of suspected poisoning, as satisfactory evidence was deemed unattainable, the accused had only the choice between confession and the combat.[408] On the other hand, when the appellant demanded the duel, he was obliged to make out a probable case before it was granted.[409] When battle had been gaged, however, no withdrawal was permitted, and any composition between the parties to avoid it was punishable by fine and imprisonment[410]—a regulation, no doubt, intended to prevent pleaders from rashly undertaking it, and to obviate its abuse as a means of extortion. In accusations of treason, indeed, the royal consent alone could prevent the matter from being fought out.[411] Any bodily injury on the part of the plaintiff, tending to render him less capable of defence or aggression, likewise deprived the defendant of the right to the wager of battle, and this led to such nice distinctions that the loss of molar teeth was adjudged not to amount to disqualification, while the absence of incisors was considered sufficient excuse, because they were held to be important weapons of offence.[412] Notwithstanding these various restrictions, cases of treason were almost always determined by the judicial duel, according to both Glanville and Bracton.[413] This was in direct opposition to the custom of Lombardy, where such cases were especially exempted from decision by the sword.[414] These restrictions of the English law, such as they were, did not, however, extend to the Scottish Marches, where the trial by battle was the universal resource and no proof by witnesses was admitted.[415]

In Bearn, the duel was permitted at the option of the accuser in cases of murder and treason, but in civil suits only in default of testimony.[416] That in such cases it was in common use is shown by a treaty made, in the latter part of the eleventh century, between Centulla I. of Bearn and the Viscount of Soule, in which all doubtful questions arising between their respective subjects are directed to be settled by the combat, with the singular proviso that the combatants shall be men who have never taken part in war.[417] In the thirteenth century, however, a provision occurs which must have greatly reduced the number of duels, as it imposed a fine of only sixteen sous on the party who made default, while, if vanquished, he was visited with a mulct of sixty sous and the forfeiture of his arms.[418] In the neighboring region of Bigorre an exemption was allowed in favor of the widow whose husband had been slain in war. Until she remarried or her sons were of age to bear arms she was exempt from all legal process—a provision evidently intended to relieve her from the duel in which suits were liable to terminate.[419]

In some regions greater restrictions were imposed on the facility for such appeals to the sword. In Catalonia, for instance, the judge alone had the power of deciding whether they should be permitted,[420] and a similar right was reserved in doubtful cases to the podestà in a code of laws in force at Verona in 1228.[421] This must often have prevented the injustice inherent in the system, and an equally prudent reserve was exhibited in a statute of Montpellier, which required the assent of both parties.[422] On the other hand, in Normandy, at the commencement of the thirteenth century, many cases relating to real estate were examined in the first instance by a jury of twelve men, and, if they failed of an unanimous verdict, the question was decided by the duel, whether the parties were willing or not.[423]

By the criminal procedure in England, at about the same period, the duel was prescribed only for cases of felony or crimes of importance, and it was forbidden in trifling misdemeanors.[424] Appeal of battle could not lie between a vassal and his lord during the existence of the connection, nor between a serf and his master except in cases of treason.[425] It would also seem that the defendant could avoid the duel if he could prove that the motive of the appeal was hatred, for there is a curious case on record in which, when the appellant demanded battle, the accused offered to the king a silver mark for an impartial jury to decide this preliminary question, and it was granted to him.[426] In Southern Germany a fifteenth century MS. enumerates seven crimes for which the duel could be prescribed—detraction of the emperor or empire, treason, theft, robbery and depredation, rape, arson, and poisoning.[427]

From a very early period, a minimum limit of value was established, below which a pugnacious pleader was not allowed to put the life or limb of his adversary in jeopardy. This varied of course with the race and the period. Thus, among the Angli and Werini, the lowest sum for which the combat was permitted was two solidi,[428] while the Baioarians established the limit at the value of a cow.[429] In the tenth century, Otho II. decided that six solidi should be the smallest sum worth fighting for.[430] The so-called laws of Henry I. of England decreed that in civil cases the appeal of battle should not lie for an amount less than ten solidi.[431] In France, Louis le Jeune, by an edict of 1168, forbade the duel when the sum in debate was less than five sous,[432] and this remained in force for at least a century.[433] The custom of Normandy in the thirteenth century specifies ten sous as the line of demarcation between the lex apparens and the lex simplex in civil suits,[434] and the same provision retains its place in the Coutumier in use until the sixteenth century.[435] In the Latin States of the East founded by the Crusaders, the minimum was a silver marc in cases of both nobles and roturiers.[436] A law of Aragon, in 1247, places the limit at ten sous.[437]

As regards the inferior classes of society, innumerable documents attest the right of peasants to decide their quarrels by the ordeal of battle. By the old Lombard law, slaves were allowed to defend themselves in this manner;[438] and they could even employ the duel to claim their liberty from their masters, as we may infer from a law of King Grimoald denying this privilege to those who could be proved to have served the same master for thirty continuous years.[439] Similarly, among the Frisians, a litus claiming his liberty was allowed to prove it against his master with arms.[440] The institutions of feudalism widened the distance between the different classes of society, and we have already seen that, in the thirteenth century, serfs were enfranchised in order to enable them to support their testimony by the combat; yet this was only the result of inequality of rank. In the time of Beaumanoir (1283), though an appeal would not lie from a serf to a freeman, it may be safely inferred from the context that a combat could be legally decreed between two serfs if the consent of their masters were obtained,[441] and other contemporary authorities show that a man claimed as a serf could defend his freedom with the sword against his would-be master.[442] Even Jews were held liable to the appeal of battle, as we learn from a decision of 1207, preserved in an ancient register of assizes in Normandy,[443] and they no doubt purchased the exemption, which was granted to them, except in cases of flagrant murder, by Philippe le Long, as a special favor, in 1317.[444]

Difference of condition thus became an impediment to the duel, and formed the subject of many regulations, varying with circumstance and locality. The free mountaineers of Béarn, as has been seen, placed the prince and the subject on an equality before the law, but this was a rare example of independence, and the privileges of station were sometimes exhibited in their most odious form. In France, for instance, while the battle trial could take place between the gentilhomme and the vilain, the former was secured by the distinction that if the villein presumed to challenge him, he enjoyed the right of fighting on horseback with knightly weapons, while the challenger was on foot and armed only with shield and staff; but if the gentleman condescended to challenge the villein, they met on equal terms.[445] This last regulation was enforced with impartial justice, for Beaumanoir mentions a case in which a gentleman challenged a roturier, and presented himself in the lists mounted and armed with his knightly weapons. The defendant protested against this illegal advantage, and the judges decided that the gentleman had forfeited his horse and arms, and that if he desired to continue the combat he must do so in the condition in which he was left by the disarmament—in his shirt without armor or weapons, while his adversary should retain coat of mail, target, and club.[446] The barbarous injustice of the general rule, moreover, was by no means of universal application. Pierre de Fontaines, for instance, directs that in cases of appeal from a roturier to a gentleman the combat shall take place on foot between champions;[447] and I find a case recorded in 1280, in which a femme de corps of Aimeri de Rochechouart accused the Sire de Montricher of burning her houses, and as the duel was adjudged she placed in the lists an armed and mounted knight as her champion, to whom no objection seems to have been made.[448]

Throughout both Northern and Southern Germany, where the minute distinctions of birth were guarded with the most jealous care from a very early period, the codes of the thirteenth century, including even the burgher laws, provided that a difference of rank permitted the superior to decline the challenge of an inferior, while the latter was obliged to accept the appeal of the former. So thoroughly was this principle carried into practice, that, to compel the appearance of a Semperfri, or noble of sixteen quarterings, the appellant was required to prove himself of equally untarnished descent.[449] In the same spirit a Jew could not decline the appeal of battle offered by a Christian accuser, though we may safely infer that the Jew could not challenge the Christian.[450] So, in the Latin kingdom of Jerusalem, the Greek, the Syrian, and the Saracen could not challenge the Frank, but could not, in criminal cases, decline his challenge, though they might do so in civil suits.[451] In Aragon, no judicial duel was permitted between a Christian and a Jew or a Saracen,[452] while in Castile both combatants had to be gentlemen, quarrels between parties of different ranks being settled by the courts.[453] On the other hand, in Wales, extreme difference of rank was held to render the duel necessary, as in cases of treason against a lord, for there the lord was plaintiff against his vassal, and as no man could enter into law with his lord, the combat was considered the only mode of prosecution befitting his dignity.[454]

A question of this nature was the remote occasion of the murder of Charles the Good, Count of Flanders, in 1127. Bertulf, Provost of the church of Bruges, was rich and powerful, although in reality his family were villeins of the count. He married his nieces to knights, one of whom, in presence of the count, appealed another knight to battle. The appellee refused on the ground that he was not obliged to notice the challenge of a villein, for according to the law of the land a freeman marrying a serf was reduced to the latter condition after the expiration of a year. The Count’s attention being thus called to his rights over the family of Bertulf, he proceeded to establish them, when Bertulf set on foot the conspiracy which ended in the assassination of the count.[455]

There were three classes—women, ecclesiastics, and those suffering under physical incapacity—with whom personal appearance in the lists would appear to be impossible. When interested in cases involving the judicial duel they were therefore allowed the privilege of substituting a champion, who took their place and did battle for the justice of their cause. So careful were legislators to prevent any failure in the procedure prescribed by custom, that the North German law provided that the dead when prosecuted could appear in the lists by substitutes,[456] and the Assises de Jerusalem ordered the suzerain to supply the expenses for forty days, when a suitor unable to fight was also too poor to pay for a champion to take his place; and when a murdered man left no relatives to prosecute the murderer, the suzerain was likewise obliged to furnish the champion in any trial that might arise.[457] Equally directed to the same purpose was the German law which provided that when a crippled defendant refused or neglected to procure a substitute, the judge was to seize one-half of his property with which to pay the services of a gladiator, who could claim nothing more.[458] Guardians of women and minors, moreover, were bound to furnish battle in their behalf.[459]

Women, however, did not always restrict themselves to fighting thus vicariously. The German laws refer to cases in which a woman might demand justice of a man personally in the lists, and not only are instances on record in which this was done, as in a case at Berne in 1228, in which the woman was the victor,[460] but it was of sufficiently frequent occurrence to have an established mode of procedure, which is preserved to us in all its details by illuminated MSS. of the period.[461] The chances between such unequal adversaries were adjusted by placing the man up to the navel in a pit three feet wide, tying his left hand behind his back, and arming him only with a club, while his fair opponent had the free use of her limbs and was furnished with a stone as large as the fist, or weighing from one to five pounds, fastened in a piece of stuff. A curious regulation provided the man with three clubs. If in delivering a blow he touched the earth with hand or arm he forfeited one of the clubs; if this happened thrice his last weapon was gone, he was adjudged defeated, and the woman could order his execution. On the other hand, the woman was similarly furnished with three weapons. If she struck the man while he was disarmed she forfeited one, and with the loss of the third she was at his mercy, and was liable to be buried alive. According to the customs of Freisingen these combats were reserved for accusations of rape. If the man was vanquished, he was beheaded; if the woman, she only lost a hand, for the reason that the chances of the fight were against her.[462] In Bohemia, also, women over the age of eighteen had the privilege of the duel; the man was put into a pit as deep as his waist; the woman was armed with sword and buckler, but was not allowed to approach nearer than a circle traced around the mouth of the pit.[463]

The liability of ecclesiastics to the duel varied with the varying relations between the church and state. As early as the year 819, Louis le Débonnaire, in his additions to the Salic law, directs that, in doubtful cases arising between laymen and ecclesiastics, the duel between chosen witnesses shall be employed, but that when both parties are clerical it shall be forbidden.[464] This restriction was not long observed. A decree of the Emperor Guy, in 892, gives to churchmen the privilege of settling their quarrels either by combat or by witnesses, as they might prefer;[465] and, about the year 945, Atto of Vercelli complains that the tribunals allowed to ecclesiastics no exemption from the prevailing custom.[466] As we have seen (p. 131), Otho II., at the Council of Verona in 983, subjected the churches to the law of the duel, only granting them the privilege of employing champions. Some intricate questions involved in the coexistence of the Lombard and the Roman law arose in a celebrated case between the Abbey of Farfa and that of SS. Cosmo and Damianus of Rome, which was pleaded in 998 and 999 before Otho III. and Popes Gregory V. and Sylvester II. The Abbey of Farfa proved that it lived under the Lombard law, while the other was under the Roman law. It was decided, as the Abbey of Farfa desired, that after hearing testimony the case should be settled by the duel, but the witnesses of the Roman abbey were so manifestly perjured that it was held not to have made out a case justifying an appeal to the combat, and the churches in dispute were adjudged to Farfa.[467]

So far was this liability to the duel from being deemed a hardship by the turbulent spirits of the period, that clerks not infrequently disdained to sustain their rights by the intervention of a champion, and boldly entered the lists themselves. In 1080 the Synod of Lillebonne adopted a canon punishing by a fine such belligerent churchmen as indulged in the luxury of duels without having first obtained from their bishops a special license authorizing it.[468] About the same period, Geoffrey, Abbot of Vendôme, in a letter to the Bishop of Saintes, complains of one of his monks who had fought in a judicial duel with a clerk of Saintes.[469] The practice continued, and though forbidden by Pope Innocent II. in 1140,[470] Alexander III. and Clement III. found it necessary to repeat the prohibition before the close of the century.[471] Yet Alexander, when appealed to with respect to a priest of the Campagna who had lost a finger in a duel, decided that neither the offence nor the mutilation debarred him from the exercise of his sacerdotal functions, and only directed him to undergo due penance.[472] The progress of the age, however, was shown when, about thirty years afterwards, Celestin III. pronounced sentence of deposition in a similar case submitted to him;[473] and this was formally and peremptorily confirmed by Innocent III. at the great council of Lateran in 1215.[474]

That the peaceful ministers of Christ should vindicate their rights with the sword, either personally or by proxy, was a sacrilege abhorrent to pious minds. As early as the middle of the ninth century, Nicholas I., who did so much to establish the supremacy of the church, endeavored to emancipate it from this necessity, and declared that the duel was not recognized by ecclesiastical law.[475] The utmost privilege which the secular law accorded the clergy, however, was the right of presenting a champion in the lists, which zealous churchmen naturally resented as an arbitrary injustice.[476] How thoroughly it was carried out in practice, notwithstanding all remonstrances, is shown by a charter granted in 1024 by St. Stephen of Hungary to the monastery of St. Adrian of Zala, by which, among other privileges, the pious king bound himself to supply a champion in all suits against the abbey, in order that the holy meditations of the monks might not be interrupted.[477] Not long after, in 1033, the celebrated abbey of St. Clement at Pescara was involved in a dispute concerning some lands which had been cut off from its possessions by a change in the course of the river Pescara, and had been seized by the lords of the contiguous territory. At an assembly of the magnates of the district it was adjudged that the matter must be settled by the duel. The night before the combat was to take place the holy abbot Guido, after enjoining earnest prayers by all the monks, sallied forth alone to the banks of the stream and stretching forth his staff adjured the waters to repair the evil which they had wrought under the impulsion of the devil. The river forthwith returned to its old channel, and next morning the multitude which assembled to witness the combat were astounded to see the miracle. The godless men who had seized on the possessions of the church humbly sought pardon for their sin, and the abbey remained in quiet enjoyment of its rights.[478]

The scandal of maintaining the claims of the church by carnal weapons and bloodshed was not soon suppressed. In 1112 we find a certain Guillaume Maumarel, in a dispute with the chapter of Paris concerning some feudal rights over the domain of Sucy, appearing in the court of the Bishop of Paris for the purpose of settling the question by the duel, and though the matter was finally compromised without combat, there does not seem to have been anything irregular in his proceeding.[479] So, about the same period, in a case between the abbey of St. Aubin in Anjou and a neighboring knight, involving some rights of property, the monks not only challenged their adversary, but the duel was held in the seignorial court of another monastery;[480] and in 1164, we find a duel decreed at Monza, by the Archbishop of Cologne as chancellor of Italy, between an abbey and a layman of the vicinity.[481] That such cases, indeed, were by no means uncommon is shown by their special prohibition in 1195 by Celestin III.[482] Yet, notwithstanding the repeated efforts of the Holy See, it was almost impossible for the church to exempt itself from the universal liability. Though in 1174 Louis VII. granted a special privilege of exemption to the church of Jusiers and its men, on the ground that he was bound to abrogate all improper customs,[483] still no general reform appears to have been practicable. An important step was gained when in 1176 Henry II., as a concession to the papacy, agreed that ecclesiastics should not be forced to the duel,[484] but this did not extend to the Scottish Marches, where by law an ecclesiastic was as liable as a layman to personal appearance in the lists; if he presented a champion he was held in custody till the event of the duel, when, if the champion was defeated, his principal was promptly beheaded. Innocent III. sternly prohibited this in 1216, but ineffectually, as is seen by a complaint of the English clergy, in 1237, in which they mention the case of the Prior of Lide, who had thus recently suffered the penalty. This was equally fruitless, for the Leges Marchiarum, enacted in 1249, declare that exemption from battle is confined to the persons of the kings and of the Bishops of St. Andrews and Durham.[485]

In France, during the thirteenth century, the liability continued. In 1239 a knight of Orleans, Gui de Santillac, testified before the royal council that the chapter of Saint-Aignan had appealed him in wager of battle.[486] As late as the year 1245, some vassals of the chapter of Nôtre Dame at Paris denied the service due by them, and demanded that the claim of the chapter should be made good by the wager of battle. That they had a legal right to do so is shown by the fact that the churchmen were obliged to implore the intervention of the pope; and Innocent IV. accordingly granted to the chapter a special privilege, in which, on the ground that single combats were forbidden by the canons, he declared that the church of Nôtre Dame should be entitled to prove its rights by witnesses, deeds, and other legitimate proofs, notwithstanding the custom existing to the contrary.[487] It was probably his interference in this case that led him a few years later, in 1252, to issue a decretal in which he pointed out the manifest hardship of forcing the clergy in France, when prosecuting such claims against their serfs, to have recourse to the duel, and thus, under the canon law, to forfeit their positions. To remedy this he proclaimed as a general rule that all verdicts should be void when obtained against clerks either by means of the duel or through reason of their refusing the combat;[488] yet in the following year he was obliged to intervene to protect the Archbishop of Sens, who complained that in these cases he was obliged to make good his claims by battle.[489] In this, Innocent was consistent, for one of the accusations which he had brought against the Emperor Frederic II. when the latter was deposed at the Council of Lyons in 1245 was that he had forced ecclesiastics to undergo the duel, to the confusion of all distinctions between clerk and layman.[490] Even in Italy about 1220 the podestà of Florence ordered the duel to decide a suit concerning certain property between some citizens and the church of the Apostles; the latter invoked the intervention of Honorius III., who commanded the matter to be settled by regular judicial process, boldly alleging that the duel was unheard of in such matters,[491] but in spite of this and the repeated prohibitions of the popes, trial by combat was still towards the close of the thirteenth century regarded as the only mode of settling disputed questions between churches when the genuineness of a charter was impugned.[492] Yet at the same period the doctors of canon law held that an ecclesiastic appearing in the lists, either personally or by a champion, was subject to deposition; it was better, they said, to lose lands and fiefs than to incur mortal sin. Unfortunately this was scarce more than a mere brutum fulmen, for a dispensation could always be had from bishop or pope.[493] Custom was stubborn, moreover, and half a century later, when the judicial duel was going out of fashion, a bishop of Liége so vexed the burghers of Louvain, by repeated citations to the combat to settle disputed questions, that John III. Duke of Brabant was obliged to appeal to the Emperor Charles IV., who accordingly wrote to the bishops of Trèves, Cambrai, and Verdun desiring them to find some means of putting an end to the bellicose tendencies of their episcopal brother.[494]

These sporadic cases only show how difficult it was throughout the whole extent of Christendom to eradicate a custom so deeply rooted in ancestral modes of thought. By the middle of the thirteenth century the church had succeeded in virtually establishing the claim, for which it had long striven, that ecclesiastics were not subject to secular law in either civil or criminal matters. This exemption of course released them from liability to the duel and placed them exclusively under spiritual jurisdiction, in which the strongly marked papal aversion to the duel had full opportunity of making itself effective.[495]

Another phase of the relations between the church and the duel is to be seen in the extensive secular jurisdiction of its prelates in their capacity as temporal seigneurs. In this they were accustomed to award the duel as freely as any other form of legal procedure. To do this was not only one of the privileges which marked the feudal superior, but was also a source of revenue from the fees and penalties thence accruing, and these rights were as eagerly sought and as jealously guarded by the spiritual lords as by the warlike barons. It would scarce be necessary to multiply instances, but I may mention a charter granted by Fulk Nera, Count of Anjou, about the year 1010, bestowing these rights on the abbey of Beaulieu in Touraine,[496] and one by the Emperor Henry III., in 1052, to the bishop and church of Volterra in Italy.[497] The first authentic evidence of the existence of the battle trial in Scotland is a charter of Alexander I. in 1124 to the Abbey of Scone, in which he bestows on the abbot and monks the right to grant the duel and ordeal in their jurisdiction; and his brother, St. David I., conferred the same rights on the Abbey of Holyrood.[498] Some conscientious churchmen objected to a practice so antagonistic to all the teachings of the religion of which they were professors, and lifted up their voices to check the abuse. Thus, about the close of the eleventh century, we find the celebrated canonist, St. Ivo of Chartres, rebuking the Bishop of Orleans for ordering the combat to decide an important suit in his court.[499] Ivo even carried out his principles to the sacrifice of the jurisdiction usually so dear to the prelates of his day, for in another case he refused to give judgment because it necessarily involved a trial by battle, and he eluded the responsibility by transferring the cause to the court of the Countess of Chartres.[500] A century later Peter Cantor declared that as a priest he would in no case furnish relics on which the preliminary oaths were to be taken, for churchmen were prohibited from being concerned in bloodshed.[501] These precepts and examples were equally unavailing. Churchmen continued to award the wager of battle, and resolutely resisted any invasion of their privileges. In 1150 the statutes of the chapter of Lausanne direct that all duels shall be fought before the provost—and the provost was Arducius, Bishop of Geneva.[502] In 1201 we see the Abbot of St. Alban’s and the Abbot of Westminster pleading as to their rights over the manor of Aldenham, including that of the duel.[503] Even in the thirteenth century, in the archbishop’s court or officiality of Reims, the duel was a matter of course;[504] and a case is recorded, occurring in 1224, in a dispute about the ownership of a house, which was decided by a duel in the court of the abbey of St. Remy, where the abbot presided over the lists and they were guarded by the royal officials.[505] In 1239 the Bishop of Orleans contested with the king as to the right of the former to the jurisdiction of the duel in his diocese;[506] and in a judgment rendered in 1269, concerning a combat waged within the limits of the chapter of Nôtre Dame of Paris, we find that the first blows of the fight, usually known as ictus regis or les cous lou roi, are alluded to as ictus capituli.[507] How eagerly these rights were maintained is apparent from numerous decisions concerning contested cases. Thus, an agreement of 1193, between the Countess of St. Quentin and the chapter of Nôtre Dame, respecting the disputed jurisdiction of the town of Viry, gives the official of the chapter the right to decree duels, but places the lists under the supervision of both parties, and divides the spoils equally between each.[508] A charter of 1199, concerning the village of Marne, shows that the sergeant, or officer of the chapter, had the cognizance of causes up to the gaging of battle, after which further proceedings were reserved for the court of the bishop himself.[509] In 1219 the commune of Novara arrogated to itself the right of decreeing the duel, but the bishop resisted this invasion of his privileges, and on the matter being referred for arbitration to the Bishop of Turin he decided in favor of his episcopal brother. The Bishop of Modena had a long and expensive suit with his city on the same question, which ended in 1227 with a compromise by which he abandoned the right; the Bishops of Vercelli were more fortunate, for they maintained it until the beginning of the fourteenth century, when judicial duels were going out of fashion.[510] In 1257, while St. Louis was exerting himself with so much energy to restrict the custom, an abbey is found engaged in a suit with the crown to prove its rights to decree the duel, and to enjoy the fees and mulcts thence arising;[511] and in 1277 a similar suit on the part of the abbey of St. Vaast d’Arras was decided in its favor.[512] From a verdict given in 1293, the right of the chapter of Soissons to decree the judicial combat appears to be undoubted, as well as the earnestness of the worthy ecclesiastics to exercise the privilege.[513] Even more significant is a declaration of the authorities of Metz, as late as 1299, by which the granting of all wagers of battle is expressly admitted by the civil magistrates of the city to appertain to the court of the archbishop;[514] and even in 1311 a bishop of St. Brieuc ordered a duel between two squires pleading in his court, in consequence of high words between them. From some cause the combat did not take place, and the Christian prelate seized the arms and horses of the parties as his mulct. They appealed to the Parlement of Paris, which ordered the restoration of the confiscated articles, and fined the bishop for his disregard of the royal edicts prohibiting the single combat.[515] Not long before, Beaumanoir had definitely asserted that the church could not be concerned in cases which involved the judicial duel, or the infliction of death or mutilation;[516] but the church was not disposed to admit this limitation on its jurisdiction, and in spite of the attempted suppression of the wager of battle by the crown it continued in its multifarious capacity of seigneur to execute the cruel laws of the period with undiminished activity.[517]

In other lands, where the duel had not experienced as in France the hostility of the supreme power, prelates continued to decree it, regardless of the papal anathemas. It was to no purpose that canon lawyers proved that they thereby incurred mortal sin, and that if death ensued they became “irregular” and incompetent to perform divine service. To all this they turned a deaf ear, and John of Freiburg, towards the close of the thirteenth century, is reduced to wishing that preachers would expound these principles in the pulpit and make them understood by the people at large.[518]

There was one jurisdiction which held itself more carefully aloof from the prevailing influence of barbarism—that of the Admiralty Courts, which covered a large portion of practical mercantile law. This is a fact easily explicable, not only from the character of the parties and of the transactions for which those courts were erected, but from the direct descent of the maritime codes from the Roman law, less modified by transmission than any other portions of mediæval jurisprudence. These codes, though compiled at a period when the wager of battle flourished in full luxuriance, have no reference to it whatever, and the Assises de Jerusalem expressly allude to the Admiralty Courts as not admitting the judicial duel in proof,[519] while an English document of 12 Edward III. attests the same principle.[520] When, however, the case was one implying an accusation of theft or deception, as in denying the receipt of cargo, the matter entered into the province of criminal law, and the battle trial might be legitimately ordered.[521]

[CHAPTER VI.]
REGULATIONS OF THE JUDICIAL COMBAT.

The forms and ceremonies employed in the judicial duel may furnish an interesting subject of investigation for the admirers of chivalry, but they teach in their details little concerning the habits and modes of thought of the Middle Ages, and for the most part are therefore interesting only to the pure archæologist. Although minute directions have come down to us in the manuals compiled for the guidance of judges of the lists, to enumerate them in their varying fashions would hardly be worth the necessary space. Yet there are some details which are of interest as illustrating both the theory and practice of the duel in its legal aspect. Thus the general principle on which the combat was conducted was the absolute assertion by each party of the justice of his cause, confirmed by a solemn oath on the Gospels, or on a relic of approved sanctity, before the conflict commenced.[522] Defeat was thus not merely the loss of the suit, but was also a conviction of perjury, to be punished as such; and in criminal cases it was also a conviction of malicious prosecution on the part of a worsted appellant. That it was regarded as much more serious than the simple loss of a suit is shown by the provisions of the custom of Normandy, whereby a vanquished combatant was classed with perjurers, false witnesses, and other infamous persons, as incapable thenceforth of giving evidence in courts, or of serving on a jury.[523] Accordingly, we find the vanquished party, whether plaintiff or defendant, subjected to penalties more or less severe, varying with time and place.

This was a primeval custom, even in civil cases. In the ancient laws of the Alamanni, when there was controversy as to the ownership of land, the contestants brought to the court of the district some earth and branches of trees from the disputed property. These were wrapped and sealed and placed in the lists, where the combatants touched the bundle with their swords and called upon God to grant victory to the right; the land passed to the victor and the defeated party was fined twelve sous for having made an unjust claim.[524] The tendency, as civilization advanced, was to render the penalty more severe. Thus, in 819, Louis le Débonnaire decreed that, in cases where testimony was evenly balanced, one of the witnesses from each side should be chosen to fight it out, the defeated champion suffering the usual penalty of perjury—the loss of a hand; while the remaining witnesses on the losing side were allowed the privilege of redeeming their forfeited members at the regular legal rate.[525] William the Conqueror imposed a fine of forty sous on the losing side impartially;[526] this was increased to sixty sous by the compilation known as the laws of Henry I.;[527] and the same regulation is stated by Glanville, with the addition that the defeated person was forever disqualified as a witness or champion;[528] but in practice the amount seems to have been indefinite, for in the Pipe Rolls the fines levied for recreantise vary from one mark to a hundred.[529] In a case occurring in 1221 where the defendant was victorious the record simply states that the appellant was ordered into custody;[530] while in the time of Edward II. the loser, except in cases of felony, paid to the victor forty sous besides a small gratification under the name of ruaille, in addition to the loss of the suit.[531] By the Lombard customs, early in the eleventh century, the appellant, if vanquished, had the privilege of redeeming his hand; the defendant, if defeated, lost his hand, and was of course subject in addition to the penalties of the crime of which he was proved guilty.[532] About the same time the Béarnese legislation is more merciful, a fine of sixty-six sous Morlaas being imposed impartially on the losing party.[533] In process of time this system was abandoned in some countries. The English law of the thirteenth century admitted the justice of the lex talionis in principle, but did not put it in practice, a vanquished appellant in capital cases being merely imprisoned as a calumniator, while the defendant, if defeated, was executed and his property confiscated.[534] The same distinction is to be found in the contemporary custom of Normandy.[535] So, by the code in force in Verona in 1228, the Podestà in criminal cases had the power of ordering the duel, and of punishing at his pleasure the accuser if vanquished—the accused when convicted of course undergoing the penalty of his crime.[536] Towards the end of the thirteenth century, however, there were some sceptics in Italy who argued that conviction by the duel ought not to entail the same punishment as conviction by witnesses “quia pugna est incertum Dei judicium.” This struck directly at the root of the whole system, and Roffredo insists that the legal penalty is to be enforced.[537]

Mediæval legislation was not usually lenient to a worsted appellant. The application of the lex talionis to the man who brought a false charge, thus adjudging to him the penalty which was incurred by the defendant if convicted, was widely current during the Middle Ages. This principle is to be found enunciated in the broadest and most decided manner in the ecclesiastical law,[538] and it was naturally brought into play in regulating the fate of those engaged in the wager of battle. Thus Guillaume le Breton states that when Philip Augustus, in 1203, wrested Normandy from the feeble grasp of John Lackland, one of the few changes which he ventured to introduce in the local laws of the duchy was to substitute this rule of confiscation, mutilation, or death, according to the degree of criminality involved in the accusation, for the comparatively light pecuniary mulct and loss of legal status previously incurred by a worsted appellant.[539] The same system is followed throughout the legislation of St. Louis, whether the punishment be light or capital, of an equal responsibility on both parties.[540] In capital cases, when champions were employed, the principals were held in prison with the cord around them with which the defeated party was to be hanged; and if one were a woman, for the cord was substituted the spade wherewith she was to be buried alive.[541] The same principle of equal responsibility prevailed throughout the Frankish kingdoms of the East, where, in an appeal of murder, as we have seen, the appellant fought by means of one of his witnesses, and the defendant personally. In civil cases, in the Bourgeois Court, the party defeated, including the plaintiff, if his side was the loser, was forever debarred from giving testimony, and had no future standing in court; while in serious criminal cases, in both upper and lower courts, either side, when defeated, was hanged with the utmost impartiality;[542] and it finally established itself in England, where in the fourteenth century we find it positively declared as an imperative regulation by Thomas, Duke of Gloucester, in an elaborate treatise on the rules of single combat printed by Spelman.[543]

In Germany the custom was not uniform. In the Sachsenspiegel, and in one text of the Schwabenspiegel, the principle is laid down that a defeated appellant escaped with a fine to the judge and to his adversary, while the defendant, if vanquished, was visited with the punishment due to his crime, or even with a heavier penalty;[544] while the Saxon burgher law and another text of the Suabian code direct that whichever party be defeated should lose a hand, or be executed, according to the gravity of the crime alleged.[545] An exceptional case, moreover, was provided for, in which both antagonists might suffer the penalty; thus, when a convicted thief accused a receiver of stolen goods of having suggested the crime, the latter was bound to defend himself by the duel, and if defeated, both combatants were hanged without further ceremony.[546] That these penalties were not merely nominal is shown by a case which occurred at Frankfort in 1369, when the divine interference was requisite, not to determine the victor, but to evade the enforcement of the law. Two knights, Zierkin von Vola and Adolf Hanche, who had married two sisters, quarrelled over the inheritance of a deceased brother-in-law, and agreed to settle their difference by the duel. When the appointed day came, October 12, they entered the lists on their chargers, prepared to do battle to the death, while their pious wives were earnestly praying God to soften their hearts and incline them to peace. These prayers were heard. With a mutual impulse the two warriors leaped from their horses, throwing themselves into each other’s arms and exclaiming, “Brother, I confess myself vanquished.” The chief magistrate of the city, who presided over the combat, was not disposed to deprive the spectators of their promised entertainment, and indignantly declared that the law of the duel did not permit both antagonists to depart unhurt, for the one who yielded must be put to death; and he confirmed this sentence by a solemn oath that one or the other should die before he would taste food. Then an affecting contest arose between the late antagonists, each one proclaiming himself the vanquished and demanding the penalty on his own head, when suddenly divine vengeance visited the bloody and remorseless judge, who fell dead, thus fulfilling his impious vow that he would not eat until he had a victim.[547]