In Scotland, as late as the middle of the fourteenth century, its existence is proved by a statute which provides that if a thief escaped from confinement, the lord of the prison should clear himself of complicity with the evasion by the oaths of thirty conjurators, of whom three were required to be nobles.[228]
The Scandinavian nations adhered to the custom with even greater tenacity. In the code of Haco Haconsen, issued towards the close of the thirteenth century, it appears as the basis of defensive procedure in almost all criminal cases, and even in civil suits its employment is not infrequently directed, the number of conjurators being proportioned to the nature of the crime or to the amount at stake, and regulations for administering the oath being given with much minuteness.[229] In Denmark it was not abolished until near the middle of the seventeenth century, under Christiern IV., after it had become a crying abuse through the habit of members of families, and even of whole guilds, entering into formal engagements to support each other in this manner.[230] The exact date of its abrogation is a matter of uncertainty, and the stubbornness with which the people clung to it is shown by the fact that even in 1683 Christiern V., in promulgating a new code, found it necessary formally to prohibit accused persons from being forced to provide conjurators.[231] In Sweden, its existence was similarly prolonged. Directions for its use are contained in the code which was in force until the seventeenth century;[232] it is constantly alluded to in the laws of Gustavus Adolphus;[233] and an edict of Charles XI. in 1662 reproves the readiness with which men were everywhere prompt to serve as compurgators, and requires the judges, before admitting them, to investigate whether they are proper persons and what are their reasons to believe in the innocence of their principal.[234] By this time, therefore, though not yet witnesses, they were becoming assimilated to them.
The vitality of communal societies among the Slavs naturally led to the maintenance of a custom which drew its origin from the solidarity of families, and it is therefore not surprising to find it in Poland described as in full force as late as the eighteenth century, the defendant being obliged to support his purgatorial oath with conjurators, who swore as to its truth.[235] Yet among the Poles confidence in it as a legal proof had long been undermined. In 1368 Casimir III. decreed that a man of good repute, when accused of theft, could clear himself by his own oath; but if his character was doubtful, and compurgation was prescribed, then if he fell short by one conjurator of the number required, he should satisfy the accuser, though he should not be rendered infamous for the future. This led to an increase of crime, and a hundred years later Casimir IV. proclaimed a law by which compurgation was only allowed three times, after which a persistent offender was abandoned to the full severity of the law, as being presumably guilty and not deserving of escape. At the same time any one summoned to compurgation, and appearing before the judge without compurgators, was ipso facto pronounced infamous. From a case recorded it would appear that twelve conjurators were required to outweigh the single oath of the accuser.[236] Among the southern Slavs the custom was likewise preserved to a comparatively late date. An edict of Hermann, Ban of Slavonia, in 1416, orders that any noble accused of neglect to enforce a decree of proscription against a malefactor, should purge himself with five of his peers as conjurators, in default of which he was subject to a fine of twenty marcs.[237]
The constitutional reverence of the Englishman for established forms and customs, however, nominally preserved this relic of barbarism in the common law to a period later by far than its disappearance from the codes of other nations. The system of inquests and ordeals established by the Assize of Clarendon in 1166 and the rise of the jury system led to its being superseded in criminal matters, but in civil suits it held its own. According to Bracton, in the thirteenth century, in all actions arising from contracts, sales, donations, etc., when there was no absolute proof, the plaintiff came into court with his secta, and the defendant was bound to produce two conjurators for each one advanced by the plaintiff, the evidence apparently preponderating according to quantity rather than quality.[238] From the context, it would appear that the secta of the plaintiff consisted of his friends and followers willing to take the oath with him, but not absolutely witnesses. The Fleta, however, some twenty-five years later, uses the term in the sense of witnesses, and in actions of debt directs the defence to be made with conjurators double in number the plaintiff’s witnesses,[239] thus offering an immense premium on dishonesty and perjury. Notwithstanding this, the nobles and gentry who came to London to attend the court and Parliament apparently were subjected to many annoyances by the citizens who strove to collect their debts, and in 1363 Edward III. relieved them by abrogating the wholesome rule laid down by Bracton, and enacting that a debtor could wage his law with a sufficient number of conjurators in spite of any papers put forward in evidence by the creditor, who is curtly told to find his remedy in some other way.[240] The unquestionable advantages which this offered to not the least influential part of a feudal community probably had something to do with its preservation. The “Termes de la Ley,” compiled in the early part of the sixteenth century, states as the existing practice that “when one shall wage his law, he shall bring with him 6, 8, or 12 of his neighbors, as the court shall assign him, to swear with him;” and when in a statute of 1585 imposing severe fines for using wood or charcoal in iron manufacture it is provided that offenders shall not be entitled to defence by the wager of law, it shows that proceeding to be still in common use, though it was recognized as a means of eluding justice.[241] Style’s “Practical Register,” published in 1657, also describes the process, but an absurd mistake as to the meaning of the traditional expression “jurare manu” shows that the matter was rather a legal curiosity than a procedure in ordinary use; and, indeed, the author expressly states that the practice having been “abused by the iniquity of the people, the law was forced to find out another way to do justice to the nation.” Still the law remained unaltered, and a case is recorded occurring in 1708, known as Gunner’s case, where “the plaintiff became nonsuit, when the defendant was ready to perfect his law,”[242] and Jacob, in his “Review of the Statutes,” published not long after, treats of it as still part of the existing judicial processes. As the wager of law came to be limited to simple actions of debt, shrewd lawyers found means of avoiding it by actions of “trespass upon the case,” and other indirect forms which required the intervention of a jury, but Burn in his Law Dictionary (Dublin, 1792) describes the whole process with all its forms as still existing, and in 1799 a case occurred in which a defendant successfully eluded the payment of a claim by producing compurgators who “each held up his right hand, and then laid their hands upon the book and swore that they believed what the defendant swore was true.” The court endeavored to prevent this injustice, but was forced to accept the law of the land. Even this did not provoke a change. In 1824, in the case of King v. Williams (2 Barnewell & Cresswell, 528), some black-letter lawyer revived the forgotten iniquity for the benefit of a client in want of testimony, and demanded that the court should prescribe the number of conjurators necessary for the defence, but the court refused assistance, desiring to give the plaintiff the benefit of any mistake that might be made. Williams then got together eleven conjurators, and appeared in court with them at his back, when the plaintiff, recognizing the futility of any further proceedings, abandoned his case in disgust.[243] Still, the fine reverential spirit postponed the inevitable innovation, and it was not until 1833 that the wager of law was formally abrogated by 3 and 4 William IV., c. 42, s. 13.[244]
English colonists carried the ancestral custom across the sea and seem to have resorted to it as an infallible mode of settling certain cases for which no positive evidence could be had. Small as was the infant colony of Bermuda, its court records for a little more than six months show four instances of its use, all of which occur in deciding cases of “suspition of incontinency” regularly presented by the grand jury or the ecclesiastical authorities.[245]
Doubtless if the early records of Virginia and Massachusetts could be searched similar evidence of its use would be found in them. Indeed it is quite possible that, strictly speaking, the wager of law may still preserve a legal existence in this country. In 1712 an act of the Colony of South Carolina, enumerating the English laws to be held as in force there, specifically includes those relating to this mode of defence, and I am not aware that they have ever been formally abrogated.[246] In 1811 Chancellor Kilty, of Maryland, speaks of the wager of law as being totally disused in consequence of the avoidance of the forms of suit which might admit of its employment, but he evidently regards it as not then specifically abolished.[247]
While the common sense of mankind was gradually eliminating the practice from among the recognized procedures of secular tribunals, the immutable nature of ecclesiastical observances prolonged its vitality in the bosom of the church. We have seen above that Innocent III., about the commencement of the thirteenth century, altered the form of oath from an unqualified confirmation to a mere assertion of belief in the innocence of the accused. That this at once became the standard formula in ecclesiastical cases is probable when we find it adopted for the oaths of the compurgators who, during the Albigensian persecution, were required by the nascent Inquisition in all cases to assist in the purgation of such suspected heretics as were allowed to escape so easily.[248] And this is no doubt the “congruous purgation” to which Innocent III. and Gregory IX. alluded as that by which suspected heretics should clear themselves.[249] Zealous inquisitors, however, paid little attention to such forms which allowed their victims a chance of escape, for it is related of Conrad of Marburg, who for a short time spread terror and desolation throughout Germany, that when the accused confessed he subjected them to torture and the frightful penance provided by the church, but that when they denied their guilt he sent them at once to the stake. The compurgatorial process, however, vindicated itself in a notable manner when Conrad’s cruelties at length aroused effective opposition. Count Sayn, whom he had accused, was virtually acquitted at the Council of Mainz, July, 1233, soon after which Conrad was assassinated: the count, however, required formal vindication, and at the Diet of Frankfort, in February, 1234, he cleared himself of the charge of heresy in the most imposing manner with a train of compurgators comprising eight bishops, twelve Cistercian abbots, twelve Franciscan and three Dominican monks, and a number of Benedictine abbots, clergy, and noble laymen. After this, in April, the Council of Mainz declared him and others of Conrad’s victims to be innocent and to be restored to reputation and to their possessions.[250]
The practice of compurgation thus introduced at the foundation of the Inquisition was maintained to the last by that terrible tribunal. “Our holy mother church,” says Simancas, Bishop of Badajos, a writer of the sixteenth century, “can in no way endure the suspicion of heresy, but seeks by various remedies to cure the suspect. Sometimes she forces them to abjure or to purge themselves; sometimes she elicits the truth by torture, and very often she coerces them with extraordinary punishments.” Therefore, any one whose orthodoxy was doubtful, if he was unwilling to clear himself, at the command of the judge, was held to be convicted of heresy. By the secular law he had a year’s grace before condemnation, but under the ecclesiastical law he was instantly punishable.[251]
Canonical purgation, according to the rules of the Inquisition, was indicated when public report rendered a man suspected and there was no tangible evidence against him. The number of compurgators was left to the discretion of the judge, who at the same time decided whether the deficiency of one, two, or more would amount to a condemnation. They were to be peers of the accused; and though he was allowed to select them, yet the qualification that they were to be good men and orthodox practically left their nomination to the officials—even as the customary accusation by the promotor-fiscal was held to be in itself the requisite amount of suspicion required as a condition precedent for the trial. The greater the suspicion, however, the larger was the number of compurgators to be adduced.