In an age of comparative simplicity, it is natural that men should turn rather to the guarantees of individual character, or to the forms of venerable superstition, than to the subtleties of legal procedure. Even as the defendant was expected to produce vouchers of his truthfulness, so might the plaintiff be equally required to give evidence that his repute among his neighbors was such as to justify the belief that he would not bring a false charge or advance an unfounded claim. The two customs appear to arise from the same process of reasoning and to be identical in spirit, leading to a contest between the two parties as to which could bring forward the largest and most credible number of conjurators, and the position of the accused being outsworn was a recognized circumstance in jurisprudence. Thus, the Council of Tribur in 895 provides that in such case he must either confess or undergo the ordeal.[271] In process of time accusatorial conjurators became commonly used in many places. In Béarn the laws of the thirteenth century provide that in cases of debt under forty sous, where there was no testimony on either side, the claimant could substantiate his case by bringing forward one conjurator, while the defendant could rebut it with two.[272] A similar rule obtained in England in all actions arising from contracts and sales;[273] and in the laws of Soest in Westphalia, compiled at the end of the eleventh or the commencement of the twelfth century, an accusation of homicide could be proved by six conjurators swearing with the prosecutor, while if this failed the accused could then clear himself with eleven compurgators.[274] Throughout Germany, in the thirteenth century, we find the principle of accusing conjurators generally received, as is evident from the juramentum supermortuum already referred to, and other provisions of the municipal law.[275] So thoroughly, indeed, was this established that, in some places, in prosecutions for highway robbery, arson, and other crimes, the accuser had a right to require every individual in court, from the judge to the spectator, to help him with an oath or to swear that he knew nothing of the matter, and even the attorney for the defendant was obliged to undergo the ceremony.[276] In Sweden it was likewise in use under the name of jeff niteed;[277] and in the compilation of the laws by Andreas, Archbishop of Lunden, in the thirteenth century, there is a curious provision for cases of secret murder by which the accuser could force nine men successively to undergo the hot-iron ordeal, after which, if thus far unsuccessful, he could still force a tenth man to trial on producing twelve conjurators to swear to the guilt of the accused—these conjurators, in case of acquittal, being each liable to a fine of three marks to the accused and as much to the church.[278] In Norway and Iceland, in certain cases of imputed crime, the accuser was bound to produce ten companions, of whom eight appeared simply as supporters, while two swore that they had heard the offence spoken of, but that they knew nothing about it of their own knowledge—the amount of weight attached to which asseveration is shown by the fact that the accused required only two conjurators to clear himself.[279]
Perhaps the most careful valuation of the oath of a plaintiff is to be found in the Coutumier of Bordeaux, which provides that, in civil cases not exceeding four sols in amount, the claimant should substantiate his case by an oath on the Gospels in the Mayor’s Court; when from four to twenty sols were at stake, he was sworn on the altar of St. Projet or St. Antoine; from twenty sols to fifteen livres, the oath was taken in the cemetery of St. Seurin, while for amounts above that sum it was administered on the “Fort” or altar of St. Seurin himself. Persons whose want of veracity was notorious were obliged in all cases, however unimportant, to swear on the Fort, and had moreover to provide a conjurator who with an oath of equal solemnity asserted his belief in the truth of his companion.[280]
The custom of supporting an accusatorial oath by conjurators was maintained in some portions of Europe to a comparatively recent period. Wachter[281] prints a curious account of a trial, occurring in a Suabian court in 1505, which illustrates this, as well as the weight which was still attached to the oath of a defendant. A woman accused three men on suspicion of being concerned in the murder of her husband. They denied the charge, but when the oath of negation was tendered to them, with the assurance that, if they were Suabians, it would acquit them, they demanded time for consideration. Then the advocate of the widow stepped forward to offer the oath of accusation, and two conjurators being found willing to support him the accused were condemned without further examination on either side. A similar process was observed in the Vehmgericht, or Court of the Free Judges of Westphalia, whose jurisdiction in the fourteenth and fifteenth centuries became extended over the whole of Germany. Accusations were supported by conjurators, and when the defendant was a Frei-graff, or presiding officer of a tribunal, the complainant was obliged to procure seven Frei-schöppen, or free judges, to take the accusatorial oath with him.[282]
The latest indication that I have met with of established legal provisions of this nature occurs in the custom of Britanny, as revised in 1539. By this, a man claiming compensation for property taken away is to be believed on oath as to his statement of its value, provided he can procure companions worthy of credence to depose “qu’ils croyent que le jureur ait fait bon et loyal serment.”[283] Even this last vestige disappears in the revision of the Coutumier made by order of Henry III. in 1580.
[II.]
THE WAGER OF BATTLE.
CHAPTER I.
When man is emerging from barbarism, the struggle between the rising power of reason and the waning supremacy of brute force is full of instruction. Wise in our generation, we laugh at the inconsistencies of our forefathers, which, rightly considered as portions of the great cycle of human progress, are rather to be respected as trophies of the silent victory, won by almost imperceptible gradations. When, therefore, in the dark ages, we find the administration of justice so strangely interrupted by appeals to the sword or to chance, dignified under the forms of Christianized superstition, we should remember that even this is an improvement on the all-pervading first law of violence. We should not wonder that barbarous tribes require to be enticed to the acknowledgment of abstract right through pathways which, though devious, may reach the goal at last. When the strong man is brought, by whatever means, to yield to the weak, a great conquest is gained over human nature; and if the aid of superstition is invoked to decide the struggle, it is idle for us, while enjoying the result, to contemn the means which the weakness of human nature has rendered necessary to the end. With uneducated nations, as with uneducated men, sentiment is stronger than reason, and sacrifices will be made for the one which are refused to the other. If, therefore, the fierce warrior, resolute to maintain an injustice or a usurpation, can be brought to submit his claim to the chances of an equal combat or of an ordeal, he has already taken a vast step towards acknowledging the supremacy of right and abandoning the personal independence which is incompatible with the relations of human society. It is by such indirect means that individuals, each relying on his own right hand, have been gradually led to endure regular forms of government, and to cherish the abstract idea of justice as indispensable between man and man. Viewed in this light, the ancient forms of procedure lose their ludicrous aspect, and we contemplate their whimsical admixture of force, faith, and reason, as we might the first rude engine of Watt, or the “Clermont,” which painfully labored in the waters of the Hudson—clumsy and rough it is true, yet venerable as the origin and prognostic of future triumphs.
There is a natural tendency in the human mind to cast the burden of its doubts upon a higher power, and to relieve itself from the effort of decision by seeking in the unknown the solution of its difficulties. Between the fetish worshippers of Congo and the polished sceptics who frequented the salon of Mlle. le Normant, the distance, though great, is bridged over by this common weakness; and whether the information sought be of the past or of the future, the impulse is the same. When, therefore, in the primitive mallum, the wisdom of the rachinborgs was at fault, and the absence or equal balance of testimony rendered a verdict difficult, what was more natural than to appeal for a decision to the powers above, and to leave the matter to the judgment of God?[284] Nor, with the warlike instincts of the race, is it surprising that this appeal should be made to the God of battles, to whom, whether they addressed him as Odin or Sabaoth, they looked in every case for a special interposition in favor of innocence. The curious mingling of procedure, in these untutored seekings after justice, is well illustrated in a form of process prescribed by the primitive Bavarian law. A man comes into court with six conjurators to claim an estate; the possessor defends his right with a single witness, who must be a landholder of the vicinage. The claimant then attacks the veracity of the witness—“Thou hast lied against me. Grant me the single combat, and let God make manifest whether thou hast sworn truth or falsehood;”[285] and, according to the event of the duel is the decision as to the truthfulness of the witness and the ownership of the property.