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.”