TRANSLATIONS AND REPRINTS

FROM THE

ORIGINAL SOURCES OF EUROPEAN HISTORY.

VOL. IV. ORDEALS, COMPURGATION, EXCOMMUNICATION
AND INTERDICT.

I.

II.

III.

JUDGMENTS OF GOD-WAGER OF BATTLE.

I. Example of Judicial Duel in Germany

2. Example of Judicial Duel in Spain.

3. Prohibition of Judicial Duel by Frederic II.

IV.

EXCOMMUNICATION.

I. St. Cyprian on the Unity of the Church

2.

St. Ambrose's Threat against Theodosius.

3.

4.

State Aid in the Enforcement of Excommunication.
Excommunication of Frederic II.

5. Example of Excommunication ipso facto

6.

Excommunication of Animals.

7. Declaration of Louis XIV.

MEDIEVAL LEGAL PROCEDURE.

INTRODUCTION.

In the jurisprudence of the Middle Ages we do not find any trial in the modern sense of the word, no careful weighing of testimony followed by a decision in accordance with the evidence. The chief function of the court was to give a fore-judgment -the Beweisurteil-indicating which litigant was to have the privilege of offering proof as to the justice of his contention. Any form of compromise was unknown. One party was entirely in the right, the other absolutely in the wrong. The methods of proof were compurgation, ordeal and wager of battle, and the party on whom the burden of proof lay usually had the advantage in the subsequent proceedings. This was especially the case with compurgation, where compliance with the minute details of the prescribed forms insured complete success. In the ordeal this was less true, the result oftener depending on the attitude of those conducting the ceremony. The judicial duel and one form of the ordeal—that of the cross-were the only methods of procedure in which both sides were given the opportunity of proof. Throughout the Middle Ages the theory of the law placed the burden of proof on the negative side; and it may be counted a most important step in the progress of European civilization when the Germanic idea finally gave place to the Roman maxim that it is impossible to prove a negative, and that the necessity of producing evidence lies with the accuser. The barbarian system of negative proofs was worked out by means of oaths and of appeals to the judgment of God through ordeals and single combat. Whatever hardships the Germanic methods of proof may have involved theoretically, the practical outcome was to make easy the escape of bold criminals. A Hungarian manuscript in which a record was kept for the 13th century, shows the numbers of convictions and of acquittals in the ordeal of hot iron to be about equal, while in England the accused was in certain cases given the choice whether he or the accuser should bear the iron. Speaking of the condition of things in John's reign Maitland says: "Criminal justice was extremely ineffectual; the punishment of a criminal was a rare event; the law may have been cruel. but bloody it was not. In Henry III.'s time some satisfactory hanging was accomplished, but the number of presentments of undiscovered crime is very large.”+ The irrationality of such forms of legal procedure was strongly felt by the most enlightened minds, and from the middle of the 12th century we find ecclesiastical as well as secular legislation attempting to bring about a change. This reform did not involve the abandonment of negative proofs, but brought in the worst form of that system, namely, torture, wherein the chances of escape were reduced to a minimum and conviction became practically inevitable.

*

Compurgation-or wager of law as it was more commonly called in England, from the legal phrase vadiare legem, to pledge or wage one's law-consisted in a litigant's furnishing the court satisfactory proof of the justice of his cause by means of his own

Cited in Pollock and Maitland's History of English Law, II., 596, note 5. + Select Pleas of the Crown, p. xxiv.

oath supported by that of helpers or compurgators who swore to the truth of their principal's assertions. This method of proof dates back to remote antiquity among the Germanic tribes, and on their conversion it was adopted by the church, which made such extensive use of it in its efforts to secure immunity of the clergy from secular jurisdiction that the process finally became known as canonical compurgation. The compurgators were originally kinsmen, who would have had to pay the wer-gild in case the accused had been convicted of the charge, but later custom permitted them to be neighbors or others acceptable to the court. Their number varied according to the gravity of the charge and the character of the accused. It is probable that even in the earliest times compurgation was not resorted to when the proof of the crime was plain and indubitable, and at a later period this rule was carefully enforced, it being left to the discretion of the judge whether the accused should be allowed this form of trial or not. Such permission was almost tantamount to acquittal, yet an effort was made to check the abuses of the system by the provision that compurgators who were so unfortunate as to support a losing cause should be punished as perjurers, that is, should have one hand cut off. Some codes, however, permitted the redemption of the hand by the payment of a money fine. At an early period confidence in the system became weakened, but it was not until the revival of the study of Roman law about the middle of the 12th century that compurgation, together with most forms of appeal to the judgment of God, began to lose ground in medieval jurisprudence. From that time on it was discouraged by royal legislation. By 1300 it may be said to have disappeared from the king's court in France, though it still lingered for a long time in the provinces. In Germany it seems to have flourished as late as the 16th century, as also in most of the countries of northern Europe; while in England it was not formally abolished until 1833. In ecclesiastical courts the system was employed down to the 17th century, though the development of the inquisitorial process in the 13th century deprived it of most of its characteristic features.

I. TWO FORMS OF COMPURGATORIAL OATH.

8th century.

(a) Form. Turon., M.G. LL., Sec. V, p. 154. Latin. [Defendant made oath denying the crime.] Likewise, witnesses of his own order, who were eye-witnesses and cognizant of the facts in the case, swore after him that the aforesaid N. had given a true and satisfactory oath in what he had sworn regarding the matter.

(b) Thorpe's Ancient Laws of England, I, p. 180. 10th century. By the Lord, the oath which N. has sworn is clean and without falsehood.

2. COMPURGATION OF QUEEN FREDEGONDA IN 585.

Gregory of Tours, Hist. Franc. Lib., viii, c. 9, M.G. SS. Mer., p. 330.

On the assassination of Chilperic I. king Gontran became guardian of his brother's infant son. Doubts were entertained as to the child's legitimacy, especially as Chilperic was said to have been murdered by a paramour of queen Fredegonda. The latter, however, fully established the paternity of the child by a compurgatorial oath, and thus prevented the kingdom of Neustria from passing into the hands of Gontran.

After this the king [Gontran] went to Paris and openly addressed all the people, saying: "My brother Chilperic on his death is said to have left a son, whose governors begged me at the mother's solicitation to stand sponsor for him at the baptismal font on the day of the festival of our Lord's birth; but they did not appear. Next they asked me to have him baptised at Easter, but the child was not brought then. For the third time they prayed me that he might be presented for the sacred rite on St. John's Day, but the child was still kept back. And so they have compelled me to leave home at this disagreeable season of the year. Therefore I have come, and behold, the boy is concealed, he is not shown me. For these reasons I feel certain that matters are not as they have been represented, but that the child is, as I believe, the son of some one of our nobles. For, if it had been of our race, it would have been brought to me. Know, therefore, that I will not acknowledge it until I receive satisfactory proofs of its paternity." When queen Fredegonda heard this she summoned the chief men of her kingdom, namely, three bishops and three hundred nobles, and with them made oath that Chilperic was the father of the child. By this means suspicion was removed from the king's mind.

3.

COMPURGATION OF THE BROTHERS OF ADELHER.

Passio S. Bonifatii, in Jaffé, Bibliotheca Rer. Germ., III, p. 475. Latin. 11th century.

This story illustrates one of the abuses to which the system of compurgation lent itself, and at the same time shows how the clergy attempted to overcome it by emphasizing the danger of immediate punishment to the perjurer.

Some time after this it happened that a certain priest named Adelher was stricken with great weakness. He was indeed deeply devoted to the bishop [Boniface] on account of his noble character, and knowing the latter's secrets he served him truly. And when he perceived the end of life approaching, by the council of the man of God he gave what property he had inherited to St. Martin of Mainz. After this, his sickness increasing, he died. Afterwards his brothers violently seized what he had given to St. Martin in the following places, And when they had been summoned and questioned regarding their action, they promised to prove by an oath that the property was rightly theirs; and the bishop promised to be present. On the appointed day they brought together a large number of their relatives. The man of God was likewise there, and when the brothers

had fetched their compurgators to the altar he is reported to have said: "If ye will swear, swear alone; I do not desire that ye should cause the damnation of all these." But the brothers took the oath. And immediately the bishop turning to them said: "Have ye sworn ?" "We have," they replied. Then to the elder he said: "Thou wilt shortly be killed by a bear;" but to the younger, "Never wilt thou see son or daughter from thy seed." Both of the prophecies proved true. And so the church of St. Martin received the heritage given to it.

4.

COMPURGATION OF BISHOP NORGAUD OF AUTUN,

Hugh of Flavigny, Chron. Lib. II, M.G. SS., VIII, p. 494. Latin. Norgaud, Bishop of Autun, had been accused of simony by his canons, and had attempted to clear himself by the oath-helpers; but the compurgators were deterred by fear of the charge of perjury, and Norgaud was deposed. He refused to resign his office, and in the following year succeeded in being reinstated by purging himself in the absence of his enemies. The incident shows another form of abuse of the system.

In the year of our Lord 1101 John, bishop of Frascati, was sent by the pope into England to look after the papal property. . . . The cardinals had now returned to Rome openly confirming the sentence of deposition against the invader of the see of Autun and pronouncing it to be canonical by authentic proofs, when the bishop of Lyons began openly and publicly to condemn their action. As he was setting out on a pilgrimage to Jerusalem in company with the bishop af Chalonssur-Saone and the simoniacal bishop of Autun, he was met on the way by the aforesaid bishop of Frascati who, in the absence of accusers and outside the boundaries of his province, received the purgation of him of Autun. The bishop of Lyons aided and confirmed the oath as follows: "I believe that Norgaud, bishop of Autun, has sworn the truth, so help me God." The bishop of Chalons-sur-Sâone also assisted and swore the same thing. I am astonished that the good judgment of so great a man,* renowned everywhere for his inborn goodness and honesty, whose unvarying constancy is venerated by the Gallican church, could be deceived by the man to such an extent that even to the present time he takes his part as a compurgator, cherishes and protects him, and is almost the only one in the world to believe good of him, although an almost universal sentiment condemns such a favorable opinion.

I. e., the bishop of Lyons.