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]