[32] De presbytero vero, si quilibet sacerdos a populo fuerit accusatus, si certi non fuerint testes qui criminis illati approbent veritatem, jusjurandum erit in medio, et illum testem proferat de innocentiæ suæ puritate cui nuda et aperta sunt omnia; sicque maneat in proprio gradu.—Gregor. PP. II. Epist. XIV. ad Bonifacium. Cf. Hincmari Remens. Epist. XXII.
[33] Thus Alfonso the Wise endeavored to introduce into Spain the mutual challenging of the parties involved in the Roman jusjurandum in jure, by his jura de juicio (Las Siete Partidas, P. III. Tit. xi. l. 2. Cf. Espéculo, Lib. V. Tit. xi. ley 2). Oddly enough, the same procedure is found incorporated in the municipal law of Rheims in the fourteenth century, probably introduced by some over-zealous civilian; “Si alicui deferatur jusjurandum, necesse habet jurare vel referre jusjurandum, et hoc super quovis debito, vel inter quasvis personas”—Lib. Pract. de Consuetud. Remens. § 15 (Archives Législat. de Reims, P. I. p. 37). By this time, however, the oaths of parties had assumed great importance. In the legislation of St. Louis, they occupy a position which was a direct incentive to perjury. Thus he provides for the hanging of the owner of a beast which had killed a man, if he was foolish enough not to swear that he was ignorant of its being vicious. “Et si il estoit si fox que il deist que il seust la teche de la beste, il en seroit pendus pour la recoignoissance”—Établissements, Liv. I. chap. cxxi.
A charter granted to the commune of Lorris, in 1155, by Louis le Jeune, gives to burghers the privilege of rebutting by oath, without conjurators, an accusation unsupported by testimony—Chart. Ludovic. junior. ann. 1155, cap. xxxii. (Isambert, Anciennes Lois Françaises I. 157.) And, in comparatively modern times, in Germany, the same rule was followed. “Juramento rei, quod purgationis vocatur, sæpe etiam innocentia, utpote quæ in anima constitit, probatur et indicia diluuntur;” and this oath was administered when the evidence was insufficient to justify torture. (Zangeri Tract. de Quæstionibus, cap. iii. No. 46.) In 1592, Zanger wrote an elaborate essay to prove the evils of the custom.
It is a noteworthy fact, however, that of all the medieval codes the one least affected by the influence of the Roman law was the Saxon, and in this the purgatorial power of the oath was admitted to a degree unknown elsewhere. The accused was allowed in certain cases to clear himself, however notorious were the facts, and no evidence was admitted to disprove his position, unless it were a question of theft, and the stolen articles were found in his possession, or he had suffered a previous conviction. (Jur. Provin. Saxon. Lib. I. Art. 15, 18, 39; Lib. II. Art. 4, 72.) Even this was an improvement on the previous custom, if we may believe Cardinal Henry of Susa, who denounces the practice in Saxony and Dacia, where a man can clear himself, even if he holds the stolen article in his hand and the loser has ample witnesses present (Hostiensis Aureæ Summæ Lib. V. De Purg. canon. § 3). This irrational abuse was long in vogue, and was denounced by the council of Bâle in the fifteenth century (Schilter. Thesaur. II. 291). It only prevailed in the north of Germany; the Jus Provin. Alaman. (cap. ccclxxxi. § 3), which regulated Southern Germany, alludes to it as one of the distinguishing features of the Saxon code.
So, also, at the same period a special privilege was claimed by the inhabitants of Franconia, in virtue of which a murderer was allowed to rebut with his single oath all testimony as to his guilt, unless he chanced to be caught with the red hand—Jur. Provin. Alaman. cap. cvi. § 7.
[34] “Ego solus jurare volo, tu, si audes, nega sacramentum meum et armis mecum contende.”—Ll. Ripuar. Tit. IX. § 3.
[35] Laws of Wihtræd, cap. 16-21. Comp. LI. Henrici I. Tit. lxiv. § 8.
[36] Anomalous Laws, Book IV. chap. i. § 11.
[37] Jur. Provin. Alaman. cclxiv. 7, 8.
[38] Fuero Viejo, III. ii.