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Superstition and force
by Henry Charles Lea
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Excerpt:
In Denmark, Eric VII., in 1269, relieved the kindred of a murderer from being compelled to share the fine, although the relatives of the victim continued to divide the wehrgild.—Constit. Eric. ann. 1269, § vii. (Ludewig, Reliq. MSS. T. XII. p. 204.) But, even as late as the fourteenth century, the statutes of the city of Lille gave the malefactor a right to collect from his relatives a portion of the wehrgild which he had incurred; and elaborate tables were drawn up, showing the amount payable by each relation in proportion to his grade of kinship, even to third cousins.—Boisin, Franchises Ao. de la ville de Lille, pp. 106-7.
of families, rallying together for the field and for the court, and ready to sustain any of their members by force of arms, or by the procedures of justice. The forms of these procedures are revealed to us, and we learn what efforts were made to soften the native ferocity of the Frank, and the modes by which he is tempted to forego the privilege of revenge. Every offence against persons or property is rated at its appropriate price, and a complete tariff of crime is drawn up, from the theft of a sucking-pig to the armed occupation of an estate, and from a wound of the little finger to the most atrocious of parricides; nor can the offender refuse to appear when duly summoned before the mallum, or claim the right of armed defence if the injured party has recourse to peaceable proceedings.
But, between the commission of an offence and its proof in a court of justice, there lies a wide field for the exercise or perversion of human ingenuity. The subject of evidence is one which has taxed man's powers of reasoning to the utmost, and the subtle distinctions of the Roman law, with its probatio, prsesumptio juris, prsesumptio juris tantum, the endless refinement of the glossators, rating evidence in its different grades, as probatio optima, evidentissima, apertissima, legitima, sufficiens, indubitata, dilucida, liquida, evidens,perspicua, and semiplena, and the complicated rules which bewilder the student of the common law, all alike show the importance of the subject, and its supreme difficulty. The semi-barbarous Frank, impatient of such expenditure of logic, arrived at results by a shorter and more direct process.
Some writers have assumed that the unsupported oath of the accused was originally sufficient to clear him of a charge, and they present an attractive fancy sketch of the heroic age, when a lie is cowardice, and the fierce warrior disdains to shrink from the consequences of his act. All this is pure invention, for which proof may be vainly sought in any of the unadulterated "Leges Barbarorum." It was
not, indeed, until long after they had declined from the rude virtue of their native forests, that an unsupported oath was receivable as evidence, and its introduction may be traced to the influence of the Roman law, in which its importance was overwhelming.1 The Wisigoths, who adopted the Roman jurisprudence as their own, were the only race of barbarians who permitted the accused, in the absence of definite testimony, to escape on his single oath,3 and this exception only tends to prove the rule. So great was the abhorrence of the other races for practices of this kind, that at the council of Valence, in 855, the Wisigothic custom was denounced in the strongest terms as an incentive to perjury.3 It was not until long after the primitive customs of the wild tribes had become essentially modified by contact with the remains of Roman civilization, that such procedures were regarded as admissible; and, indeed, it required the revival of the study of the civil law in the twelfth century to give the practice a position entitled to respect.4
1 The oath may be regarded as the foundation of Roman legal procedure. "Dato jurejurando non aliud quaeritur, quam an juratum sit; remissa quaestione an debeatur; quasi satis probatum sit jurejurando." L. 5, § 2, D. xii. ii. The jusjurandum necessarium could always be administered by the judge in cases of deficient evidence, and the jusjuramlum injure proffered by the plaintiff to the defendant was conclusive: 11 Manifesto turpitudinis et confessionis est nolle neo jurare nec jusjurandum referre." Ibid. 1. 38.
3 LI. Wisigoth. Lib. II. Tit. ii. c. 5.
