The facts relative to compurgation, by the oath of a certain number of witnesses, are more important and more curious. "Compurgation," says our author, "is directed in express terms in all the Teutonic laws; but it does not appear to have been admissible in trials conducted according to the forms prescribed by the Fuero juzgo. Yet afterwards, this ordeal was widely spread as a fuero, both in civil and criminal trials. Though discountenanced by the legislature, it was retained in practice; and a forcible illustration is thus given of the stubbornness with which the Goths adhered to their usages and customs. Trial by jury, through it, in its germ was felt to be a benefit."
"As an ancient and general usage of Castile, the trial is sanctioned in the Fuero Viejo. As a local custom or bye-law of the cities of Castile and Leon and their dependencies, it was very frequently established, or rather declared, by the charters granted by their founders.
"Three thousand sueldos, according to the Fuero Viejo, were paid for dishonouring the palace of the king, or spoiling his castle; and five hundred sueldos was the price of the head of the merino, or the composition for scandalizing him; and every man who wished to save himself from the payment of these mulcts, was to defend himself by the oath of twelve men, for such was the usage of Castile in the old time. When accused of the death of another fijo d'algo, the suspected noble defended himself by the oath of eleven other fijos d'algo, himself the twelfth, and, as true knights, they were all sworn upon the Gospel Book, with their spurs upon their heels. There were two insults only which gave a Dueña, or a squire, the right of complaining that a fijo d'algo had scandalized them, viz., a blow or a wound, or the robbery of their mules or garments. Within three days, the party so injured by a caitiff knight was obliged to complain of the offence, and to disclose the injury to the fijos d'algo of the town, the labradores, and to the inmates of the fijos d'algo, if there were any, and to cause the town-bell to be rung, saying, "such a one hath thus dishonoured me." These formalities having been observed, the fijo d'algo was bound to answer the complaint; reparation was made if he confessed it, by forfeiting five hundred sueldos, the price of his own head; but if he denied it, he was to clear himself by the oath of eleven other fijos d'algo, himself the twelfth. But a labrador accused of injuring a fijo d'algo was not to be admitted to defend himself by his peers; and he was unfairly compelled to swear with eleven fijos d'algo, himself the twelfth.
"These customs are taken from the general code. In peculiar districts, compurgation was so much in vogue, that compurgatrixes were allowed to female culprits. At Anguas, as well as in other towns, a woman charged with theft could defend herself by the oaths of a jury of other women. More whimsical was the Fuero of Cuenca, which is passing strange, both for the spirit of the law and the terms in which it is expressed. If perchance any husband suspected that his wife had planted horns upon his head, although he was not able to prove the fact by evidence, the wife was to justify herself by swearing to her chastity, with twelve good wives of the neighbourhood; and if they pronounced her to be pure, her husband was obliged to be persuaded that she was so.
"The customs of St. Sebastien in Guipuscoa, allowed an odd kind of proceeding, resembling the assessment of damages by the verdict of a jury. The ravisher was to pay the price of virginity, or he was to marry the object of his ungovernable passion; which punishment, as the charter wisely observes, 'is fully equal to a fine.' But if she, who had been a maid, was unworthy of becoming his wife, he was to provide her with such a husband as she might have reasonably expected to have obtained previous to her mishap, 'according to the estimation of the alcalde, and of twelve good men of St. Sebastien.'
"The fullest directions concerning the use of the ordeal are contained in the charter of Molina. Don Molrique de Lara incorporated the town of Molina, the seigniory of the noble house of Lara, in the year 1152. His charter may be quoted as the most valuable record concerning the ancient municipal jurisprudence of Castile which has yet been published, as it displays the entire constitution and government of a Castilian town. … Fines, according to the old Gothic law, were enacted at Molina for wounds and maims. The accuser was to support his charge by three 'vecinos' or burghers of the town, if the offence was committed within its walls. Two vecinos sufficed if without. And, in default of full proof, the culprit either swore with twelve vecinos, or fought with the accuser; but the latter had the choice of the ordeal. … When a murder had been committed, if one of those engaged in the fray took the guilt on his own head, saying, 'I killed him,' the others were 'to save themselves with twelve true burghers,'—los otros salvense con doce vecinos derecheros. It might happen, that none would confess the crime; and as all were then equally liable to suspicion, the relations of the dead man were at liberty to select any one as the murderer, 'just as they thought fit;' after which the supposed murderer named eleven relations of the slain, and these, together with the accuser, swore to his being guilty or not guilty. Unanimity was required; and if one or two would not swear, that is to say, if they could not agree with the majority, each one who was so dissentient swore with twelve, that neither he, nor any one for his use, had received any bribe; then he was discharged. But if the defendant did not 'fall' by the withdrawing of his juror, he was at liberty to name another. This proceeding is remarkable; a new aspect is given to the ordeal by calling in the compurgators to swear with the accuser instead of the accused; and in this form it is, perhaps, more closely assimilated to a jury-trial. It may be observed, that a practice once prevailed in England of withdrawing the dissentient jurors, and replacing them by others, till an unanimous verdict was obtained."
Such are the facts which the author of these researches has collected on the existence of ancient Germanic customs, or analogous usages, in the towns of Castile and Leon, dating from the twelfth century. He unhesitatingly concludes therefrom that these same customs existed in the sixth and seventh centuries among the Spanish Visigoths, and formed a part of their institutions.
Errors Of The Preceding Theory.
It is inconvenient to prove that facts are not true, for it devolves on him who affirms them to prove that they are so; and, in such a case as this, when we speak of epochs separated by five or six centuries, and by such a revolution as the dispossession of a people and a foreign conquest, inductions are not sufficient. The Forum judicum is absolutely silent upon the appointment of military leaders, and upon compurgation by juries; nay, more, this latter institution is incompatible with the arrangements of this code in reference to judges and the administration of justice. No other contemporary authority contradicts the Forum judicum. Must we, upon the authority of facts of much more recent date, and which refer to an entirely different state of civilization, refuse to believe proofs so direct, and testimonies so positive?
I am aware of all that may be said about the disorders of these times, the continual gaps in the laws, and the disposition of legislators to omit precisely those usages which were most simple and universal, as though they had no need to be consecrated or even indicated by formal enactment. It is, in fact, very possible that the practice of compurgation by juries was not completely unknown to the Visigoths; it recurs in all Germanic customs, and it may not have disappeared either entirely or all at once, even after the introduction of a code derived principally from the Roman laws. But it is impossible to believe, in spite of this code, that it continued to be the common law, the fundamental institution, the veritable judicial system of the nation.