[72] Capit. Aquisgran. ann. 803, cap. vii.
[73] Bonifacii Epist. cxxvi.
The subject of the oaths of priests was one of considerable perplexity during the dark ages. Among the numerous privileges assumed by the sacerdotal body was exemption from the necessity of swearing, an exemption which had the justification of the ancient Roman custom; “Sacerdotem, Vestalem, et Flaminem Dialem in omni mea jurisdictione jurare non cogam” (Edict. Perpet. ap. Aul. Gell. x. 15). The effort to obtain the reversion of this privilege dates from an early period, and was sometimes allowed and sometimes rejected by the secular authorities, both as respects promissory, judicial, and exculpatory oaths. The struggle between church and state on this subject is well exemplified in a case which occurred in 1269. The Archbishop of Reims sued a burgher of Chaudardre. When each party had to take the oath, the prelate demanded that his should be taken by his attorney. The defendant demurred to this, alleging that the archbishop had in person presented the complaint. Appeal was made to the Parlement of Paris, which decided that the defendant’s logic was correct, and that the personal oath of the prelate was requisite (Olim, I. 765).
In Spain, a bishop appearing in a secular court, either as plaintiff or defendant, was not exempt from the oath, but had the singular privilege of not being compelled to touch the gospels on which he swore.—Siete Partidas, P. III. Tit. xl. l. 24.
[74] Gratian. c. 19, Caus. II. Q. V.
[75] Eginhard. Annal. ann. 823.
[76] Atton. de Pressuris Ecclesiast. P. 1.
[77] Buchardus, Ivo, Gratianus, passim.—Ivon. Epist. 74.
[78] L. Longobard. Lib. II. Tit. xxi. § 9; Tit. lv. § 12.—L. Burgund. Tit. vii.—Laws of Ethelred, Tit. ix. §§ 23, 24.—L. Henrici I. cap. lxxiv. § 1. Feudor. Lib. V. Tit. ii.
This point illustrates the essential distinction between witnesses and compurgators. The Roman law exercised great discrimination in admitting the evidence of a relative to either party in an action (Pauli Sentent. Lib. V. Tit. xv.—Ll. 4, 5, 6, 9. Dig. XXII. v.). The Wisigoths not only adopted this principle, but carried it so far as to exclude the evidence of a kinsman in a cause between his relative and a stranger (L. Wisigoth. Lib. II. Tit. iv. c. 12), which was adopted into the Carlovingian legislation (Benedict. Levit. Capitul. Lib. VI. c. 348) under the strong Romanizing influence which then prevailed. The rule, once established, retained its place through the vicissitudes of the feudal and customary law (Beaumanoir, Coutumes du Beauvoisis, cap. xxxix. § 38.—Cout. de Bretagne, Tit. vii. art. 161, 162). In the ancient Brahmanic legislation the evidence of both friends and enemies was excluded (Institutes of Vishnu, viii. 3).