- "The aim of the following essays is simply to group together facts so that, with a slender thread of commentary, they may present certain phases of human society and progress which are not without interest for the student of history and of man. The authorities for all statements have been scrupulously cited, and it will be seen that, for the most part, they are drawn from the original sources. The conclusions the reader can verify for himself." Preface
- "The idea that crime is an offence against society at large found little place in the conceptions of the barbarian lawgivers. The loosely-knit organizations which overthrew the Roman Empire were based upon two central principles -- the independence of the individual citizen and the solidarity of the family; and on the mutual interaction of these organic laws was based the jurisprudence of the period. The criminal was not responsible to the State, but to the injured party; and all that the State professed to do was to provide some definite process by which the latter could assert his rights. Personal chastisement for the freeman was thus unknown, for each man was responsible for his acts not to the law but to those whom he might wrong. All that the law pretended to do was to provide rude courts, before which a plaintiff might urge his case, and settled principles of pecuniary compensation to console him for his injuries. If he disdained this peaceful process he was at liberty to assemble his friends and kindred, and exact what satisfaction he could with sword and axe.
Whether he adopted the one mode or the other, his proceedings were regulated by the other great principle of the solidarity of the family. All members of a kindred were indissolubly united. They suffered for the crimes of their kinsmen, and an offence committed against one was committed against all. Together they stood in the court or in the field, in some sort a unit, mutually responsible for each other. Yet the endless warfare of hostile families was for the most part averted by the principle of compensation for injuries, by which every crime was rated at its appropriate price, or wehr-gild, which was payable to the injured party; nor could the offender legitimately refuse to appear if summoned to the mallum or judicial assembly of his tribe, and claim the right of armed defence if his victim chose to have recourse to peaceful proceedings." pp. 14-15
Note: Lea indicates that the extended family (sometimes to the fifth degree of relationship) of the criminal is responsible for the payment of the wehr-gild and the extended family (sometimes to the fifth degree of relationship) of the victim receives the wehr-gild. The legal system was one in which the whole family was perceived as being responsible for the actions of all of its members and of benefiting from the services of all of its members.
- "These principles were adopted as the fundamental basis of all legal procedures in Wales. Every prosecution and defence required relics to give validity to the oaths of both parties, and even in the fifteenth century a collection of laws declared that a plaintiff coming into court without a relic on which to make his oath, not only lost his cause but incurred a fine of nine-score pence. The same tendency is shown in the rule by which a man who suspected another of theft could go to him with a relic and in the presence of witnesses demand an oath of negation, a failure in which was a conviction of the crime imputed, without further trial. In the same spirit, ecclesiastical authority was even found to admit that a powerful motive might extenuate the sin of perjury. If committed voluntarily, seven years of penitence were enjoined for its absolution; if involuntarily, sixteen months, while if to preserve life or limb, the offence could be washed out with four months. When such doctrines were received and acted upon, we can hardly wonder at the ingenious device which the sensitive charity of King Robert the Pious imitated from the duplicity of Ebroin, to save the souls of his friends. He provided two reliquaries on which to receive their oaths -- one for his magnates, splendidly fabricated of crystal and gold, but entirely empty, the other for the common herd, plainer and enshrining a bird's egg. Knowing in advance that his lieges would be forsworn, he thus piously sought to save them from sin in spite of themselves, and his monkish panegyrist is delighted in recounting this holy deceit." pp. 25-26
- "As already remarked, the origin of the custom is to be traced to the principle of the unity of families. As the offender could summon his kindred around him to resist an armed attack of the injured party, so he took them with him to the court, to defend him with their oaths. Accordingly, we find that the service was usually performed by the kindred, and in some codes this is even prescribed by law, though not universally. This is well illustrated in the Welsh laws, where the "raith," or compurgation, was the basis of almost all procedure, and where consequently the system was brought to its fullest perfection. Complicated rules existed as to the proportion of paternal and maternal kindred required in various cases, and the connection between the wehr-gild and the obligation of swearing in defence of a kinsman was fully recognized -- "Because the law adjudges the men nearest in worth in every case, excepting where there shall be men under vows to deny murder," therefore the compurgators were required to be those "nearest to obtain his worth if killed." Under these circumstances, the raith-man could be objected to on the score of not being of kin, when the oaths of himself and his principal were received as sufficient proof of relationship; and the "alltud," or foreigner, was not entitled to the raith unless he had kindred to serve on it. How the custom sometimes worked in practice among the untameable barbarians is fairly illustrated by a case recounted by Aimoin as occurring under Chilperic I in the latter half of the sixth century. A wife suspected by her husband offered the oath of purgation on the altar of St. Denis with her relatives, who were persuaded of her innocence; the husband not yet satisfied, accused the compurgators of perjury, and the fierce passions of both parties becoming excited, weapons were speedily drawn, and the sanctity of the venerable church was profaned with blood." pp. 34-35
- "We have already seen that the oath was an unqualified assertion of the justice of the side espoused, without reservation that would enable the compurgator to escape the charge of false swearing, and one or two allusions have been made to the punishments inflicted on them when subsequently convicted of mistake. 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." p. 55
- "All this seems in the highest degree irrational, yet in criticizing the hardships to which innocent conjurators were thus exposed, it should be borne in mind that the whole system was 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 this 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." pp. 57-58
- "Towards the close of the twelfth century, Glanville compiled his excellent little treatise "De legibus Angliae," the first satisfactory body of legal procedure which the history of mediaeval jurisprudence affords." p. 61
- "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, and we shall see that no formal abrogation of it took place until the nineteenth century.
Soon after the time of Glanville, however, the system 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. Innocent III himself, who did so much to abrogate the kindred absurdity of the ordeal, continued to prescribe its use in cases of the highest moment involving dignitaries of lofty station; though, sensible of the abuses to which it led, he was careful in demanding conjurators of good character, whose intimacy with the accused would give weight to their oaths. 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. He decreed that compurgators should only be obliged to swear to their belief in the truth of their principal's oath, and thus 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 authority 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 potential, was also at work. The revival of the study of 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. 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. The enthusiastic worshippers of the Pandects were not long in recognizing it far and wide. The Spanish code of Alphonso the Wise, in the middle of the thirteenth century, asserts it in almost the same words as the Roman jurisconsult. Not long before, the Assises de Jerusalem had unequivocally declared that "nul ne pent faire preuve de non;" and Beaumanoir, in the "Coutomes de 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."
Abstract principles, however, though freely admitted, were not yet powerful enough to eradicate traditional customs rooted deeply in the feelings and prejudices of the age. The three bodies of law just cited contradict their own admissions, in retaining with more or less completeness the most monstrous of negative proofs -- the ordeal of battle -- and the introduction of torture soon after exposed the accused to the chances of the negative system in its most atrocious form. Still these codes show a marked progress as relates to the kindred procedure of compurgation." p. 63-65
- "Still, the fine reverential spirit postponed the inevitable innovation, and it was not until 1833 that the wager of law [use of compurgators] was formally abrogated by 3 and 4 William IV, c. 42, s. 13." p. 75
- "When the accused had chosen his men, and they were accepted by the judge, they were summoned, and each one examined separately by the Inquisitors as to his acquaintance with the defendant -- a process by which, it may readily be conceived, the terrors of the Holy Office might easily be so used as to render them extremely unwilling to become his sponsors. They were then assembled together; the accused was brought in, the charge against him was read, and he took an oath denying it. Each conjurator was then taken separately and sworn as to his belief in the truth or falsity of the oath of denigration -- and according as they expressed their conviction of the veracity of the accused the sentence was usually rendered, absolving or condemning him.
No process of administering compurgation can well be conceived more shrewdly adapted to reduce to a minimum the chances of acquittal, or to leave the result subject to the wishes of the officials. The testimony of the doctors of law, both civil and canon, accordingly was that it was blind, deceitful, and perilous. In fact, it is easy to conceive of the impossibility of finding six or ten, or twelve men willing to risk their lives and families by standing up in support of any one who had fallen into the grasp of the Holy Office. The terrible apprehension which the Inquisition spread abroad among all classes, and the dread which every man felt of being suspected and seized as an accomplice of heresy, are unconsciously intimated by Simancas when, arguing against this mode of trial, he observes that "the morals of mankind are so corrupt at the present day, and Christian charity has grown so cold, that it is almost impossible to find any one willing to join in clearing his neighbor, or who does not easily believe the worst of him and construe all doubtful things against him. When it is enough for the condemnation of the accused that the compurgators shall declare that they are ignorant or doubtful as to his innocence, who is there that will not express doubt when they know that he would not have been condemned to purge himself if he had not been violently suspected?" For these reasons he says that those of Moorish or Jewish stock should never be subjected to it, for it is almost impossible not to think ill of them, and, therefore, to send them to purgation is simply to send them to the stake.
For all this, there was a lively discussion in the time of Simancas, whether if the accused succeeded in thus clearing himself, it was sufficient for acquittal. Many Inquisitors indeed held to the older practice that the accused should first be tortured, when if no confession could be forced from him he was put on his purgation; if he passed safely through this, he was then made to abjure the errors of which he had not been convicted, and after all this he was punished at the discretion of the judge. Such an accumulation of injustice seems incredible, and yet Simancas feels himself obliged to enter into an elaborate discussion to prove its impropriety.
In countries where the Inquisition had not infected society and destroyed all feeling of sympathy between man and man this process of purgation was not impossible. Thus, in 1527, during one of the early persecutions of the reformers under Henry VIII, while numbers were convicted, two women, Margaret Cowbridge and Margery Bowgas, were allowed to clear themselves by compurgators, though there were several positive witnesses against them. It is also noteworthy that in these cases a portion of the compurgators were women." pp. 77-79
- "In discussing the judicial combat, it is important to keep in view the wide distinction between the wager of battle as a judicial institution, and the custom of dueling which has obtained with more or less regularity among all races at all ages. When the Horatii met the Curiatii, or when Antony challenged Octavius to decide the empery of the world with their two swords, these were isolated proposals to save the unnecessary effusion of blood, or to gratify individual hate. When the raffiné of the times of Henri Quatre, or the modern fire-eater, wiped out some imaginary stain in the blood of his antagonist, the duel thus fought, though bearing a somewhat closer analogy to the judicial combat, is not derived from it, but from the right of private vengeance which was common to all the Teutonic tribes, and from the cognate right of private warfare which was the exclusive privilege of the gentry during the feudal period. The established euphemistic formula of demanding "the satisfaction of a gentleman," thus designates both the object of the custom and its origin. The abolition of private wars gave a stimulus to the duel at nearly the period when the judicial combat fell gradually into desuetude. The one thus succeeded to the other, and, being kindred in nature, it is not surprising that for a time there was some confusion in the minds of men respecting their distinctive characteristics. Yet it is not difficult to draw the line between them. The object of the one was vengeance and reparation; the theory of the other was the discovery of truth, and the impartial ministration of justice. " pp. 87-88
The theory behind trial by combat [wager of battle] went something like this: Nothing happened in this world without the God's knowledge; everything that happened in this world happened because it was God's will. God wanted justice and right to prevail. Hence, God would involve Godself in the judicial combat to ensure that the victory went to the person who was right.
- "Arising thus spontaneously from the habits and character of so many races, it is no wonder that the wager of battle [trial by combat], adapting itself to their various usages, became a permanent institution. Its roots lay deep among the recesses of popular prejudice and superstition, and its growth was correspondingly strong and vigorous. In this it was greatly assisted by the ubiquitous evils of the facility for perjury afforded by the practice of sacramental purgation, and it seems to have been regarded by legislators as the only remedy for the crime of false swearing which was everywhere prevalent." pp. 98-99
- "The elasticity with which the duel lent itself to the advantage of the turbulent and unscrupulous had no little influence in extending its sphere of action." pp. 100-101
- "Nor was this merely a temporary extravagance. Late in the thirteenth century, after enlightened legislators had been strenuously and not unsuccessfully endeavoring to limit the abuse of the judicial combat, the challenging of witnesses was still the favorite mode of escaping legal condemnation. Even in the fourteenth century, the municipal law of Rheims, which allowed the duel between principals only in criminal cases, permitted witnesses to be indiscriminately challenged and forced to fight, affording them the privilege of employing champions only on the grounds of physical infirmity or advanced age." p. 102
- "The result of this system was that, in causes subject to such appeals, no witness could be forced to testify, by the French law of the thirteenth century, unless his principal entered into bonds to see him harmless in case of challenge, to provide a champion, and to make good all damages in case of defeat; though it is difficult to understand how this could be satisfactorily arranged, since the penalties inflicted on a vanquished witness were severe, being, in civil causes, the loss of a hand and a fine at the pleasure of the suzerain, while in criminal actions "il perderoit le cors avecques." The only limit to this abuse was that witnesses were not liable to challenge in cases concerning matters of less value than five sous and one dernier." pp. 103-104
- "The wager of battle was not long in experiencing the first assaults of the new power. The earliest efficient steps towards its abolition were taken in 1231 by the Emperor Frederic II in his Neapolitan code. He pronounces it to be in no sense a legal proof, but only a species of divination, incompatible with every notion of equity and justice, and he prohibits it for the future, except in cases of murder and treason where other proof is unattainable; and even in these it is placed at the option of the accuser alone, as if to render it a punishment and not a trial." p. 170
The Ordeal
- "Accordingly, in the earlier epochs of almost all races, a belief in a Divine Being is accompanied with the expectation that special manifestations of power will be made on all occasions, and that the interposition of Providence may be had for the asking, whenever man, in the pride of his littleness, condescends to waive his own judgment, and undertakes to test the inscrutable ways of his Creator by the touchstone of his own limited reason. Thus miracles come to be expected as matters of every-day occurrences, and the laws of nature are to be suspended whenever man chooses to tempt his God with the promise of right and the threat of injustice to be committed in His name.
To these elements of the human mind is attributable the almost universal adoption of the so-called Judgment of God, by which men, oppressed with doubt, have essayed in all ages to relieve themselves of responsibility by calling in the assistance of Heaven. Nor, in so doing, have they seemed to appreciate the self-exaltation implied in the act itself, but in all humility have cast themselves and their sorrows at the feet of the Great Judge, making a merit of abnegating the reason which, however limited, has been bestowed to be used and not rejected." pp. 201 - 202
Torture
- Regarding torture under Roman law:
"One important safeguard, however, existed, which, if properly maintained, must have greatly lessened the frequency of torture as applied to freeman. In bringing an accusation the accuser was obliged to inscribe himself formally, and was exposed to the lex talionis in case he failed to prove the justice of the charge." p. 332
[Sunny's note; under lex talionis if the accused is found innocent, the accuser is liable to whatever penalty the innocent would have incurred had he been found guilty. For example, suppose a person is charged with a crime in which the penalty is to have his hand cut off. Under lex talionis, if the person is acquitted, the accuser had his hand cut off.]
- "In the witch persecutions, especially, which in Scotland rivalled the worst excesses of the Inquisition of Germany and Spain, it was carried to a pitch of frightful cruelty which far transcended the limits assigned to it elsewhere. Indeed, it is difficult to believe that the accounts which have been preserved to us of these terrible scenes are not exaggerated. No cruelty is too great for the conscientious persecutor who believes that he is avenging his God, but the limitless capacity of human nature for inflicting is not complemented by a limitless capacity of endurance on the part of the victim; and well authenticated as the accounts of the Scottish witch-trials may be, they seem to transcend the possibility of human strength. In another respect these witch-trials were marked with a peculiar atrocity. Elsewhere, as we have seen, confession was requisite for condemnation, thus affording some color of excuse for torture. In Scotland, however, the testimony of the pricker was sufficient, and torture thus became a wanton and cruel surplusage, rendered the less defensible in that the poor wretch who yielded to the torment and confessed was rewarded by being mercifully strangled before being burnt, while those who held out under torture were condemned and burnt alive." pp. 446-447
- "Accordingly, an occasional voice was raised in denunciation of the use of torture. The Spaniard, Juan Luis Vives, one of the profoundest scholars of the sixteenth century, condemned it as useless and inhuman. The sceptic of the period, Montaigne, was too cool and clear-headed not to appreciate the vicious principle on which it was based, and he did not hesitate to stamp it with his reprobation." p. 449
- "From 1770 to 1783, Saxony was engaged in a thorough remodelling of her system of criminal jurisprudence, in which the whole apparatus of torture was swept away; and in Switzerland and Austria it shared a like fate about the same time. In Russia, Empress Catherine, in 1762, removed it from the jurisdiction of the inferior courts, where it had been greatly abused; in 1767, by a secret order, it was restricted to cases in which the confession of the accused proved actually indispensable, and even in these it was only permitted under the special command of governors of provinces. In the singularity enlightened instructions which she drew up for the framing of the new code in 1767 the use of torture was earnestly argued against in a manner which betrays the influence of Beccaria. Under these auspices it soon became almost obsolete, and it was finally abolished in 1801. Yet, in some of the states of central Europe, the progress of enlightenment was wonderfully slow. Torture continued to disgrace the jurisprudence of Wirtemberg and Bavaria until 1806 and 1807. Though the wars of Napoleon abolished it temporarily in other states, on his fall in 1814 it was actually restored. In 1819, however, George IV consented, at the request of his subjects, to dispense with it in Hanover; while in Baden it continued to exist until 1831." pp. 452-453
- "Yet so long as human nature retains its imperfections the baffled impatience of the strong will be apt to wreak its vengeance on the weak and defenseless." p. 457
- "In casting a retrospective glance over this long history of cruelty and injustice, it is curious that Christian communities, where the truths of the Gospel were received with unquestioning veneration, systematized the administration of torture with a cold-blooded ferocity unknown to the legislation of the heathen nations whence they derived it. The careful restrictions and safeguards, with which the Roman jurisprudence sought to protect the interests of the accused, contrast strangely with the reckless disregard of every principle of justice which sullies the criminal procedure of Europe from the thirteenth almost to the nineteenth century. From this no race or religion was exempt. What the Calvinist suffered in Flanders, he inflicted in Scotland; what the Catholic enforced in Italy, he endured in England; nor did either of them deem that he was forfeiting his share in the Divine Evangel of peace on earth and goodwill to men.
The mysteries of the human conscience and of human motives are well nigh inscrutable, and it may seem shocking to assert that these centuries of unmitigated wrong are indirectly traceable to that religion of which the second great commandment was that man should love his neighbor as himself. Yet so it was. The first commandment, to love God with all our heart, when perverted by superstition, gave a strange direction to the teachings of Christ. For ages, the assumptions of an infallible church had led men to believe that the interpreter was superior to Scripture. Every expounder of the holy text felt in his inmost heart that he alone, with his fellows, worshipped God as God desired to be worshipped, and that every ritual but his own was an insult to the Divine nature. Outside of his own communion there was no escape from eternal perdition, and the fervor of religious conviction thus made persecution a duty to God and man. This led the Inquisition, as we have seen, to perfect a system of which the iniquity was complete. Thus commended, that system became part and parcel of secular law, and when the Reformation arose the habits of thought which ages had consolidated were universal. The boldest Reformers who shook off the yoke of Rome, as soon as they had attained power, had as little scruple as Rome itself in rendering obligatory their interpretation of divine truth, and in applying to secular as well as to religious affairs the cruel maxims in which they had been educated.
Yet, in the general enlightenment which caused and accompanied the Reformation, there passed away gradually the necessity which had created the rigid institutions of the Middle Ages. Those institutions had fulfilled their mission, and the savage tribes that had broken down the worn-out civilization of Rome were at last becoming fitted for a higher civilization than the world had yet seen, wherein the precepts of the Gospel might at length find practical expression and realization. For the first time in the history of man the universal love and charity which lie at the foundation of Christianity are recognized as the elements on which human society should be based. Weak and erring as we are, and still far distant from the ideal of the Savior, yet are we approaching it, even if our steps are painful and hesitating. In the slow evolution of the centuries, it may only be by comparing distant periods that we can mark our progress; but progress nevertheless exists, and future generations, perhaps, may be able to emancipate themselves wholly from the cruel and arbitrary domination of superstition and force." pp. 457-459
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