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Title: Superstition and Force - Essays on The Wager of Law—The Wager of Battle—The Ordeal—Torture
Author: Lea, Henry Charles
Language: English
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SUPERSTITION AND FORCE.
Essays on
The Wager of Law—The Wager of Battle—The Ordeal—Torture.
by
HENRY CHARLES LEA, LL.D.
Plurima est et in omni jure civili, et in pontificum libris, et in XII.
tabulis, antiquitatis effigies.—CICERO, _de Oratore I._ 43.
Fourth Edition, Revised.
Philadelphia:
Lea Brothers & Co.
1892.
Entered according to Act of Congress in the year 1892, by
Henry C. Lea,
in the Office of the Librarian of Congress. All rights reserved.
Collins Printing House.
PREFACE.
The history of jurisprudence is the history of civilization. The
labors of the lawgiver embody not only the manners and customs of his
time, but also its innermost thoughts and beliefs, laid bare for our
examination with a frankness that admits of no concealment. These
afford the surest outlines for a trustworthy picture of the past, of
which the details are supplied by the records of the chronicler.
It is from these sources that I have attempted, in the present work, a
brief investigation into the group of laws and customs through which
our forefathers sought to discover hidden truth when disputed between
man and man. Not only do these throw light upon the progress of human
development from primitive savagism to civilized enlightenment, but
they bring into view some of the strangest mysteries of the human mind.
In this edition I have endeavored to indicate, more clearly than
before, the source, in prehistoric antiquity, of some of the
superstitions which are only even now slowly dying out among us, and
which ever and anon reassert themselves under the thin varnish of our
modern rationalism.
In a greatly condensed form the first three essays originally appeared
in the North American Review.
June, 1878.
* * * * *
Although in the revision of this volume for a fourth edition there has
not been found much to alter, considerable additions have been made
which render the survey of the subject more complete. In revising the
essays on the Wager of Battle and the Ordeal I have had the advantage
of the labors of two recent writers, Dr. Patetta, whose “Le Ordalie” is
an extended and philosophical investigation into the whole topic of the
Judgments of God, and George Neilson, Esq., whose “Trial by Combat” is
a complete account, from the original sources, of the history of the
judicial duel in Great Britain. Mr. Neilson has also had the courtesy
to communicate to me the results of his further studies of the subject.
I therefore indulge the hope that the present edition will be found
more worthy of the favor with which the work has been received.
PHILADELPHIA, October, 1892.
CONTENTS.
I.
THE WAGER OF LAW.
CHAPTER I.
RESPONSIBILITY OF THE KINDRED.
PAGE
Crime originally an offence against individuals 13
Tribal organization—Responsibility of kindred 14
Compensation for injuries—The _Wer-gild_ 17
CHAPTER II.
THE OATH AND ITS ACCESSORIES.
Perplexities as to evidence 21
Guarantees required for the oath 25
CHAPTER III.
CONJURATORS, OR PARTAKERS IN THE OATH.
The Wager of Law a prehistoric Aryan custom 33
It is adopted by the Church 35
CHAPTER IV.
SELECTION OF COMPURGATORS.
They are originally the kindred 38
Strangers admitted 41
Numbers required 43
Modes of selection 47
CHAPTER V.
CONDITIONS OF COMPURGATION.
Employed in default of testimony 52
Except in Wales 54
Dependent on importance of case 56
As an alternative for the Wager of Battle 57
CHAPTER VI.
FORMULAS AND PROCEDURE.
Forms of compurgatorial oath 58
Modes of administration 60
Qualified confidence reposed in Compurgation 61
Conjurators liable to penalties of perjury 63
CHAPTER VII.
DECLINE OF COMPURGATION.
Early efforts to limit or abolish it 67
The oath no longer a positive asseveration 71
Influence of revival of Roman law 73
Conservatism of Feudalism 76
Gradual disappearance of Compurgation in Continental Europe 78
Preserved in England until 1833 84
Traces in the British colonies 87
Maintained in the Church and in the Inquisition 88
CHAPTER VIII.
ACCUSATORIAL CONJURATORS.
Employed by the Barbarians 94
Maintained until the sixteenth century 98
II.
THE WAGER OF BATTLE.
CHAPTER I.
Natural tendency to appeal to Heaven 101
Distinction between the Judicial Combat and the Duel 103
CHAPTER II.
ORIGIN OF THE JUDICIAL COMBAT.
A prehistoric Aryan custom 107
CHAPTER III.
UNIVERSAL USE OF THE JUDICIAL COMBAT.
Its form Christianized into an appeal to God 117
Causes of its general employment 118
Practice of challenging witnesses 120
of challenging judges 123
CHAPTER IV.
CONFIDENCE REPOSED IN THE JUDICIAL DUEL.
Its jurisdiction universal 127
Implicit faith reposed in it 135
CHAPTER V.
LIMITATIONS IMPOSED ON THE WAGER OF BATTLE.
Respective rights of plaintiff and defendant 140
Minimum limit of value 147
Questions of rank 148
Liability of women to the Combat 152
of ecclesiastics 155
The Combat under ecclesiastical jurisdiction 161
Not recognized in mercantile law 165
CHAPTER VI.
REGULATIONS OF THE JUDICIAL COMBAT.
Penalty for defeat 166
_Lex talionis_ 169
Security required of combatants 173
Penalty for default 174
Choice of weapons 176
CHAPTER VII.
CHAMPIONS.
Originally kinsmen 179
Employment of champions becomes general 180
Hired champions were originally witnesses 182
Punishment for defeated champions 184
Professional champions—their disabilities 186
Efforts to limit the use of champions 189
Champions of communities 196
of the Church 197
CHAPTER VIII.
DECLINE OF THE JUDICIAL COMBAT.
Iceland and Norway the first to prohibit it 199
Opposition of the Municipalities 200
of the Church 206
Influence of the Roman law 211
Decline of the Judicial Duel in Spain 214
Struggle over its abolition in France 216
Reforms of St. Louis 217
Resistance of the Feudatories 218
Reaction after the death of St. Louis 222
Renewed efforts of Philippe le Bel 222
Continued by his successors 227
Occasional cases in fourteenth, fifteenth, and sixteenth
centuries 228
Final disappearance 235
Its later history in Italy, Hungary, Flanders, Russia, Scotland 235
Maintained in England until the nineteenth century 241
Traces of its legal existence in the United States 246
III.
THE ORDEAL.
CHAPTER I.
UNIVERSAL INVOCATION OF THE JUDGMENT OF GOD.
Tendency of the human mind to cast its doubts on God 249
China an exception 251
The Ordeal in Japan 253
in Africa 254
in the Indian and Pacific Archipelagoes 257
among pre-Aryan Indian Tribes 258
Traces of the Ordeal in Egypt 259
Among Semitic Races—The Assyrians, Hebrews, Moslem 260
Among Aryans—Mazdeism 265
Hinduism—Buddhism 267
Hellenes and Italiotes 269
Celts, Teutons, Slavs 272
The Ordeal in the Barbarian occupation of Europe 275
Adopted by the Church 276
CHAPTER II.
ORDEAL OF BOILING WATER.
Details of its administration 278
Miracles reversing the ordinary process 285
CHAPTER III.
ORDEAL OF RED-HOT IRON.
Various forms of its administration 286
Examples of its use 291
Miracles reversing the ordinary process 301
CHAPTER IV.
ORDEAL OF FIRE.
Its prototypes 303
Examples of its use 305
Used to test relics 314
CHAPTER V.
ORDEAL OF COLD WATER.
Mode of administration 318
Supposed origin in ninth century 320
Received in general use 322
Prolonged employment in witchcraft cases 325
Occasionally used in nineteenth century 332
CHAPTER VI.
ORDEAL OF THE BALANCE.
Modes of administration 334
CHAPTER VII.
ORDEAL OF THE CROSS.
It is one of endurance 336
Its limited use and disappearance 338
CHAPTER VIII.
THE CORSNÆD.
Formula of employment 339
Examples of its use 341
CHAPTER IX.
THE EUCHARIST AS AN ORDEAL.
Superstitions connected with the Eucharist 344
Examples of its use as an ordeal 347
Still used in the seventeenth century 351
CHAPTER X.
ORDEAL OF THE LOT.
Various modes of its administration 352
Appeals to chance—Ordeal of Bible and key 356
Sieve-driving 358
CHAPTER XI.
BIER-RIGHT.
Doubtful origin 359
Examples of its use 361
It lingers to the present day 367
Attempts to explain it 368
Weight ascribed to it 369
CHAPTER XII.
OATHS AS ORDEALS.
Superstitions connected with the oath 371
Risks of perjury in oaths on relics 372
CHAPTER XIII.
POISON ORDEALS.
Used in India, not in Europe 375
CHAPTER XIV.
IRREGULAR ORDEALS.
Iron bands on murderers 377
Examples of miraculous interposition 379
CHAPTER XV.
CONDITIONS OF THE ORDEAL.
It is a regular judicial procedure 383
Compounding for ordeals 383
Ordeal for defeated accuser 385
Absence of testimony usually a prerequisite 386
Usually a means of defence 389
Used in failure of compurgation 390
Sometimes regarded as a punishment 391
Its use in extorting confessions 394
Practically amounts to torture 395
Influence of imagination 396
Champions in ordeals 398
CHAPTER XVI.
CONFIDENCE REPOSED IN THE ORDEAL.
Conflicting views as to its efficacy 399
Explanations of its unjust results 401
Regulations to enforce its impartial administration 404
Usually results in acquittal 406
Use of magic arts 407
CHAPTER XVII.
THE CHURCH AND THE ORDEAL.
Complex relations of the Church to the ordeal 408
Occasional opposition of the papacy 409
But it is sustained by the clergy 409
Its use in trials of heretics 410
Impressiveness of its ritual 413
Reasons of papal opposition 414
Advantages derived from it by the clergy 415
The popes at length accomplish its abolition 417
CHAPTER XVIII.
REPRESSIVE SECULAR LEGISLATION.
Forbidden in England in 1219 420
Gradually falls into desuetude 422
Persistence of superstition 427
IV.
TORTURE.
CHAPTER I.
TORTURE IN EGYPT AND ASIA.
The ordeal and torture are substitutes for each other 429
Torture in Egypt—in Assyria—not used by Hebrews 430
Not used by Oriental Aryans 431
Not used in China—used in Japan 431
CHAPTER II.
GREECE AND ROME.
Usages of torture in Greece 432
Rome—freemen not liable under Republic 434
Cæsarism extends the use of torture 435
Limited by Inscription and the _Lex Talionis_ 439
Torture of witnesses 440
Liability of slaves to torture 441
Limitations on use of torture 444
Value of evidence under torture 446
CHAPTER III.
THE BARBARIANS.
Structure of Barbarian society 449
Freemen originally not liable—torture of slaves 451
Illegal torture of freemen by the Merovingians 454
CHAPTER IV.
THE GOTHS AND SPAIN.
Influence of Roman institutions on the Goths 456
Torture under the Ostrogoths 457
Employed by the Wisigoths—details of its use 458
Transmitted by them to modern Spain 461
Legislation of Las Siete Partidas 462
Final shape of torture system in Castile 466
CHAPTER V.
CARLOVINGIAN AND FEUDAL LAW.
Torture first used for witchcraft, under Charlemagne 469
The Church averse to it 471
Character of institutions adverse to its use 471
Feudalism not favorable to it 472
Torture used for punishment and extortion 473
Ecclesiastical influence adverse to its use 477
CHAPTER VI.
REAPPEARANCE OF TORTURE.
Influence of the Roman law 479
Torture first appears in Latin kingdom of Jerusalem 480
It is revived in Italy in the thirteenth century 481
Influence of the Inquisition 483
First appearance of torture in France, in 1254 487
Its gradual introduction—1283 to 1319 491
Resistance of the nobles in 1315 494
Permanently established in opposition to Feudalism 497
Examples of procedure in the Châtelet of Paris, 1389-1392 500
Introduction in Germany 505
in Italy 506
in Hungary—Poland—Russia 508
in the ecclesiastical courts 510
CHAPTER VII.
THE INQUISITORIAL PROCESS.
Secret proceedings and denial of opportunity for defence 512
Perfected by Francis I. 514
Revised under Louis XIV. 517
Torture _avec réserve des preuves_ 518
Illegal extension of the system in the Netherlands 521
Germany—the Caroline Constitutions 522
CHAPTER VIII.
FINAL SHAPE OF THE TORTURE SYSTEM.
The Roman Law engrafted on German Jurisprudence 524
Theoretical exemptions practically annulled 525
Limitations disregarded in practice 527
Influence of the system on the judge 534
Arbitrary abuses 539
Torture of witnesses 541
Grades of torture 543
Denial of opportunities for defence 544
Confirmation of confession necessary 548
Inconsistencies in the torture system 550
Influence of witch-trials in aggravating the torture system 553
Use of charms to produce insensibility 556
Deceit used in failure of torture 558
Torture in monasteries 560
CHAPTER IX.
ENGLAND AND THE NORTHERN RACES.
Early use of torture in Iceland 561
Influence of the jury-trial in delaying introduction of Torture
in Denmark, Norway, and Sweden 562
England—Torture unknown to the Common Law 563
Introduced as a concession to the royal prerogative 566
Influence of witch-trials 570
Scotland—frightful severity of torture trials 572
CHAPTER X.
DECLINE OF THE TORTURE SYSTEM.
Opponents arise—Vives, Montaigne, Gräfe, etc.—Discussion in the
schools 575
Abolished in Prussia in 1740 579
in Saxony, Austria, Russia 580
Continued in Baden till 1831—Retention of the Inquisitorial Process,
and Revival of Torture in the German Empire 581
Abolished in Spain in 1812 582
in France, 1780-1789 583
in Italy in 1786 586
Retained in Naples 587
Recent instances of its use 588
I.
THE WAGER OF LAW.
CHAPTER I.
RESPONSIBILITY OF THE KINDRED.
The conception of crime as a wrong committed against society is
too abstract to find expression in the institutions of uncivilized
communities. The slayer or the spoiler is an enemy, not of his fellows
in general, but only of the sufferer or of his kindred; and if society
can provide means for the wronged to exact reparation, it has done
its duty to the utmost, and has, indeed, made a notable advance on
the path that leads from barbarism to civilization. How recent has
been our progress beyond this stage of development is illustrated
in the provisions of a code granted so lately as 1231 by the Abbey
of St. Bertin to the town of Arques. By these laws, when a man was
convicted of intentional homicide, he was handed over to the family
of the murdered person, to be slain by them in turn.[1] It still was
vengeance, and not justice, that was to be satisfied.
In early times, therefore, the wrong-doer owed no satisfaction to the
law or to the state, but only to the injured party. That injured party,
moreover, was not a mere individual. All the races of the great Aryan
branch of mankind have developed through a common plan of organization,
in which each family—sometimes merely the circle of near kindred,
at others enlarged into a _gens_ or sept—was a unit with respect to
the other similar aggregations in the tribe or nation, presenting,
with respect to personal rights, features analogous to their communal
holding of land.[2] Within these units, as a general rule, each
individual was personally answerable for all, and all were answerable
for each. A characteristic incident of this system was the _wer-gild_
or blood-money, through which offences were condoned and the aggrieved
were satisfied by a payment made, when the crime was homicide, to the
kindred of the slain, and generally contributed by the kindred of the
slayer.
The fragments of the Avesta are the earliest records of Aryan
legislation that have reached us, and in them we find distinctly marked
evidence of this common responsibility of the kindred.[3] Among the
Hindus, the ancient code, known as the Manava Dharma Sastra, represents
a highly complex social organization, in which primitive institutions
have been completely overlaid by the later and antagonistic elements
of caste and Brahmanism, but yet it reveals the existence of village
communities which were a direct development of the primal system
of the family;[4] and the ancient solidarity of these communities
is shown in the provision that if a murder or robbery could not be
traced, the village in which it occurred was obliged to make it good,
or that to which the track of the offender could be followed.[5] In
the adventures of the Kauravas and Pandavas, moreover, the Mahabharata
preserves fragments of traditions conveying some indications of a
pre-existing solidarity among kindred.[6] Much more clearly defined
were the Hellenic organizations of the _patræ_ and _phratriæ_; while
the institution of the _wer-gild_ is seen in the wages earned by
Heracles in serving Omphale, to be paid to the kinsmen of the murdered
Iphitus; and its existence can be traced to historic times in the
payments provided by the Trallian laws to the families of the subject
Leleges and Minyans who might be slain. Sir Henry Maine has acutely
suggested, also, that the belief in an hereditary curse, which plays
so awful a part in Grecian legend, is derived from the primal idea
of the solidarity of the family group.[7] In Rome, notwithstanding
the powerful Latin tendency to absorb all minor subdivisions into the
state, the institution of the _gens_, and the relationship between the
patron and his clients, bear striking analogies to the organizations
which we find among the Teutonic tribes as they emerge into history;
while the fine imposed on the elder Horatius, to expiate for his son
the crime of slaying his sister, shows a remnant still existing of
the _wer-gild_ levied on the relatives.[8] The early legislation of
the Celts, both in the Irish and Welsh tribes, as we shall presently
see, carried the solidarity of the family to its highest point of
development. The same institutions form a prominent feature of social
organization among the Slavs. The Russian Mir, or communal society,
is evidently a development of the original family; while the Ruskaia
Prawda, the earliest extant code, promulgated by Yaroslav Vladomirovich
in the eleventh century, allows the relatives of a murdered man either
to kill the murderer or to accept a _wer-gild_ from him. The district,
moreover, in which a homicide occurs is liable to a fine, unless
the victim is an unknown stranger: as such, there are none to claim
compensation for him, he is outside of all family organization, and the
law has no protection for him.[9] In Poland, the laws in force until
the close of the fifteenth century provided no other penalty for murder
than a _wer-gild_ to be divided among the kindred and friends of the
slain; and during the fifteenth century there was only a short term of
imprisonment added.[10] Among the southern Slavs the Zadruga takes the
place of the Russian Mir, and is a still more absolute and primitive
form of family organization.[11]
In obedience to this all-pervading tendency of organization, the
barbarian tribes which overthrew the Roman Empire based their
institutions on two general principles—the independence of the
individual freeman and the solidarity of the family group—and on these
were founded their simple forms of jurisprudence. As the criminal
was not responsible to the state, but to the injured party, personal
punishments were unknown, and the law made no attempt to decree
them. All that it could do was to provide rude courts before which
a plaintiff could state his case, and a settled tariff of pecuniary
compensation to console him for his sufferings.[12] If he disdained
this peaceful process, he was at liberty to assemble his kindred and
friends, and exact what satisfaction he could with sword and axe.
The offender, moreover, could not legitimately refuse to appear when
summoned before the _mallum_, or judicial assembly of the tribe;
nor could he, as a rule, claim the right of armed defence, if the
complainant preferred to receive the money payment provided for the
offence of which he might prove his antagonist guilty.
This _wer-gild_ was in no sense a fine inflicted as a punishment for
guilt, but only a compensation to induce the injured party to forego
his right of reprisals, and the interest which society felt in it
was not in the repression of crime, but in the maintenance of peace
by averting the endless warfare of hostile families. An Anglo-Saxon
proverb, quoted approvingly in the laws of Edward the Confessor, as
collected by William the Conqueror, says: “Bicge spere of side oðer
bere”—Buy off the spear from thy side or endure it.[13] The application
of the system is to be seen in the minute and complex tariffs of crime
which form so large a portion of the barbarian codes. Every attempt
against person and property is rated at its appropriate price, 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. To what
extent this at last was carried may be seen in the Welsh codes, where
every hair of the eyelash is rated at a penny.[14]
This system introduced into legal proceedings a commercial spirit
which seems strangely at variance with the savage heroism commonly
attributed to our barbarian ancestors. In the translation by Mr. Dasent
of the old Icelandic Saga of Burnt Njal is vividly set forth the
complex procedure which arose from the development of these principles,
whereby suits could be sold and assigned by one party to another, and a
plaintiff with a promising claim for damages would part with it to some
speculator who undertook the chances of the suit; or, if the prospects
were not encouraging, he would pay some shrewd lawyer or mighty
warrior to prosecute it in his stead. As either party in the primitive
Icelandic code could at any moment interrupt the proceedings with a
challenge to single combat, or a powerful pleader might collect his
friends for a raid on the Althing, and thus break up the court, this
traffic in suits was a speculation well fitted to vary the monotony of
a sea-rover’s life on shore.
In the application of this principle of compensation the solidarity
of the family bore a part as conspicuous as in the alternative of
private warfare. The kindred of the offender were obliged to contribute
shares proportionate to their degrees of relationship; while those of
the man who was wronged received respective percentages calculated on
the same basis. Thus the most ancient Barbarian code that has reached
us—that of the Feini, or primitive Irish—in a fanciful quadripartite
enumeration of the principles in force in levying fines, alludes to
the responsibility of kindred—“And because there are four things for
which it is levied: ‘cin’ (one’s own crime), and ‘tobhach’ (the crime
of a near kinsman), ‘saighi’ (the crime of a middle kinsman), and the
crime of a kinsman in general.”[15] A very complete example of the
development of this system is to be found in the Icelandic legislation
of the twelfth century, where the fines exacted diminish gradually, as
far as the relatives in the fifth degree on both sides, each grade of
the criminal’s family paying its rate to the corresponding grade of the
sufferer’s kindred.[16] When, however, the next of kin were females,
and were thus incompetent to prosecute for murder, the person who
undertook that office was rewarded with one-third of the fine.[17] It
was not until about 1270 that King Haco, in his unsuccessful attempt
to reform these laws, ventured to decree that in cases of murder the
blood-money should not be divided among the family of the victim, but
should all be paid to the heir.[18] On the other hand, in Denmark, Eric
VII., in 1269, relieved the kindred of the murderer from contributing
to the _wer-gild_, although it continued to be divided among the
relatives of the slain.[19]
Among the Welsh the provisions for levying and distributing the fines
were almost as complex as those of the early Icelandic law, one
body of jurisprudence extending the liability even as far as sixth
cousins;[20] and perhaps the quaintest expression of the responsibility
of the kindred is to be found in the regulation that if any one
should draw blood from the abbot of either of the seven great houses
of Dyved, the offender should forfeit seven pounds, while a female
of his kindred should become a washerwoman in token of disgrace.[21]
The firm hold which this practical solidarity of the family had upon
the jurisprudence of the European races is shown by a clause in the
statutes of the city of Lille, as late as the fourteenth century, where
the malefactor had the right to collect from his relatives a portion
of the _wer-gild_ which he had incurred; and elaborate tables were
drawn up, showing the amount payable by each relative in proportion
to his degree of kinship, the liability extending as far as to third
cousins.[22] A still more pregnant example of the responsibility
of kindred is found in the customs of Aspres, in 1184, where the
kindred of a homicide, if they would abjure him by oath on relics,
were entitled to the public peace; but, if they refused to do so, it
became the duty of the Count of Hainault, the Abbot of St. Vaast, and
the relatives of the slain, to hunt them down, and seize all their
property.[23]
The introduction of Christianity, with the all-pervading sacerdotalism
of the church, rendered necessary an innovation on the primeval form
of social organization, for ecclesiastical ties dissolved those of the
family. By the Carlovingian legislation, when a priest was slain his
_wer-gild_ was paid to the church, which was held to be nearer to him
than any relative,[24] though this regulation subsequently was modified
so as to divide the composition into three parts, of which one was paid
to the church of the deceased, one to his bishop, and the third to his
kindred.[25] As a general rule, therefore, the clerk could claim no
share of the blood-money collected for the murder of his kinsmen; nor
be called upon to contribute to that incurred by his family;[26] though
it is true that, by the Welsh laws of Hoel the Good, compiled in the
tenth century, children, even prospective, were a link through which
the liability might be again incurred. “Neither clerks nor women are to
have a share of the _galanas_, since they are not avengers; however,
they are to pay for their children or to make oath that they shall
never have any.”[27]
With this exception, therefore, in its relations to the community,
each family in the barbaric tribes was a unit, both for attack and
defence, whether recourse was had to the jealously preserved right of
private warfare, or whether the injured parties contented themselves
with the more peaceful processes of the _mallum_ or _althing_. This
solidarity of the kindred is the key to much that would otherwise
appear irrational in their legislation, and left, as we have seen, its
traces late in the customary law.
CHAPTER II.
THE OATH AND ITS ACCESSORIES.
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
reasoning powers to the utmost; and the subtle distinctions of the
Roman law, with its _probatio_, _præsumptio juris_, _præsumptio juris
tantum_: the endless refinements 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 artificial
rules of the common law, so repugnant frequently to human common
sense, all alike show the importance of the subject, and its supreme
difficulty. The semi-barbarian, impatient of such expenditure of logic,
arrived at results by a shorter process.
The time has passed for the romantic school of writers who assume that
the unsupported oath of the accused was originally sufficient to clear
him of a charge, when the fierce warrior disdained to shrink from the
consequences of his act. It was not, indeed, until long after the
Teutonic tribes had declined from the assumed virtues of their native
forests, that an unsupported oath was receivable as evidence, and the
introduction of such a custom may be traced to the influence of the
Roman law, in which the importance of the oath was overwhelming.[28]
The Wisigoths, who moulded their laws on the Roman jurisprudence, were
the only race of barbarians who permitted the accused, in the absence
of definite testimony, to escape on his single oath,[29] and this
exception only tends to prove the rule, for at the council of Valence,
in 855, the Wisigothic custom was denounced in the strongest terms
as an incentive to perjury.[30] It is true that the oath of a master
could clear a slave accused of certain crimes,[31] which was no less an
incentive to perjury, for the master was liable in case of conviction,
but presumably in such case he took upon himself the responsibility
and laid himself open to an accusation of perjury. As a rule, however,
we may assume that the purgatorial power of a single oath was an
innovation introduced by the church, which was trained in the Roman
institutions and claimed for its members the privilege, when testimony
was deficient, of clearing themselves by appealing in this manner to
God.[32] Continued contact with the remains of Roman civilization
strengthened the custom, and its development was to a great extent
due to the revival of the study of the imperial jurisprudence in the
twelfth century.[33] The primitive principle is well expressed in the
Frisian code, where the pleader says, “I swear alone, if thou darest,
deny my oath and fight me,”[34] where the oath is only the preliminary
to proof by the judgment of God.
The exceptions to this in the early legislation of the barbarians
are merely special immunities bestowed on rank. Thus in one of the
most primitive of the Anglo-Saxon codes, which dates from the seventh
century, the king and the bishop are permitted to rebut an accusation
with their simple asseveration, and the thane and the mass-priest with
a simple oath, while the great body both of clerks and laymen are
forced to clear themselves by undergoing the regular form of canonical
compurgation which will be hereafter described.[35] So, in the Welsh
legislation, exemption from the oath of absolution was accorded to
bishops, lords, the deaf, the dumb, men of a different language, and
pregnant women.[36] Instances of class-privileges such as these may be
traced throughout the whole period of the dark ages, and prove nothing
except the advantages claimed and enjoyed by caste. Thus, by the law of
Southern Germany, the unsupported oath of a claimant was sufficient,
if he were a person of substance and repute, while, if otherwise,
he was obliged to provide two conjurators,[37] and in Castile, the
_fijodalgo_, or noble, could rebut a claim in civil cases by taking
three solemn oaths, in which he invoked on himself the vengeance of God
in this world and the next.[38]
So far, indeed, were the Barbarians from reposing implicit confidence
in the integrity of their fellows that their earliest records show
how fully they shared in the common desire of mankind to place the
oath under the most efficient guarantees that ingenuity could devise.
In its most simple form the oath is an invocation of some deity or
supernatural power to grant or withhold his favor in accordance with
the veracity of the swearer, but at all times men have sought to render
this more impressive by interposing material objects dear to the
individual, which were understood to be offered as pledges or victims
for the divine wrath. Thus, among the Hindus, the ancient Manava Dharma
Sastra prescribes the oath as satisfactory evidence in default of
evidence, but requires it to be duly reinforced—
“In cases where there is no testimony, and the judge cannot decide
upon which side lies the truth, he can determine it fully by
administering the oath.
“Oaths were sworn by the seven Maharshis, and by the gods, to make
doubtful things manifest, and even Vasishtha sware an oath before the
king Sudama, son of Piyavana, when Viswamitra accused him of eating a
hundred children.
“Let not the wise man take an oath in vain, even for things of little
weight; for he who takes an oath in vain is lost in this world and the
next.
“Let the judge swear the Brahman by his truth; the Kshatriya by his
horses, his elephants, or his arms; the Vaisya by his cows, his corn,
and his gold; the Sudra by all crimes.”[39]
And in the more detailed code of Vishnu there is an exceedingly
complicated system of objects to be sworn upon, varying with the amount
at stake and the caste of the swearer.[40]
We see the same custom in Greece, where Homer represents Hera as
exculpating herself by an oath on the sacred head of Zeus, and on
their marriage-bed, a practice which mortals imitated by swearing on
the heads of their children, or on that of their patron, or of the
king.[41] Under the Roman law, oaths were frequently taken on the head
of the litigant, or on those of his children.[42] The Norse warrior was
sworn, like the Hindu Kshatriya, on his warlike gear:
“Oaths shalt thou
First to me swear,
By board of ship,
By rim of shield,
By shoulder of steed,
By edge of sword,
That thou wilt not slay
The wife of Volund,
Nor of my bride
Cause the death.”[43]
When these material pledges were not offered, the sanctions of religion
have in all ages been called into play to impress the imagination of
the swearer with the awful responsibility incurred, the presence of the
deity being obtained by the offer of a sacrifice, or his interposition
being assured by the use of some object of peculiar sacredness. In
Deuteronomy, when the corpse of a murdered man was found, the elders
of the nearest city disculpated themselves and their fellow-citizens
before the Levites over the body of a heifer slain for the purpose.[44]
We see the same principle applied to promissory oaths in the horse
which Tyndareus sacrificed and buried when he exacted from the suitors
of Helen the oath that they would accede to her choice of a bridegroom
and defend her and her husband against all comers;[45] and it is only
necessary to allude to the well-known Ara Maxima of Hercules in
Rome to show the prevalence of the same customs among the Italiotes.
Similar practices were familiar to the Norsemen. Among them the Godi
was both priest and judge, the judgment-seat adjoined the temple, and
all parties to a suit, including judge and witnesses, were solemnly
sworn upon the sacred ring kept for that purpose on the altar. It
was sprinkled with the blood of a sacrificial bull, and then the
oath was taken by invoking Freyr and Niord, and the almighty As to
help the swearer as he should maintain truth and justice.[46] Yet so
little did all these precautions serve to curb the untruthfulness of
the cunning sea-kings that in Viga-Glums Saga we find Glum denying
a charge of murder by an oath taken in three temples, in which he
called Odin to witness in words so craftily framed that while he was
in reality confessing his guilt he apparently was denying it most
circumstantially.[47]
Similarly in Christian times, the most venerated forms of religion
were, from a very early period, called in to lend sanctity to the
imprecation, by devices which gave additional solemnity to the awful
ceremony. In this the natural tendency of the church to follow the
traditional customs of the populations from which its members were
drawn was reinforced by the example of the practices of Judaism. The
“covenant between the pieces,” by which Yahveh confirmed his promises
to Abram, and by which the Jews renewed their promises to him, was
a sacrificial ceremony of the most impressive character, only to be
used on occasions of supreme importance. As soon as a permanent place
of worship was provided, the altar in the temple was resorted to
by litigants in order that the oath might be taken in the presence
of Yahveh himself; and so powerful was the impression of this upon
the Christian mind that in the early ages of the church there was a
popular superstition that an oath taken in a Jewish synagogue was more
binding and more efficient than one taken elsewhere.[48] These beliefs
developed into a great variety of formulas, which would reward an
examination more detailed than that which I can give them here.
In the middle of the sixth century, Pope Pelagius I. did not disdain
to absolve himself from the charge of having been concerned in the
troubles which drove his predecessor Vigilius into exile, by taking a
disculpatory oath in the pulpit, holding over his head a crucifix and
the gospels;[49] and in the eighth century a priest accused without
witnesses to prove his guilt was enabled to absolve himself by placing
the cross upon his head and declaring his innocence by the Everlasting
God.[50] So, when the holy Gregory of Tours was accused of reproachful
words truly spoken of Queen Fredegonda, a council of bishops decided
that he should clear himself of the charge by oaths on three altars,
after celebrating mass on each, which he duly performed, doubtless
more to his corporeal than his spiritual benefit.[51] This plan of
reduplicating oaths on different altars was an established practice
among the Anglo-Saxons, who, in certain cases, allowed the plaintiff
to substantiate his assertion by swearing in four churches, while the
defendant could rebut the charge by taking an oath of negation in
twelve.[52] Seven altars are similarly specified in the ancient Welsh
laws in cases where a surety desired to deny his suretyship;[53] and,
according to the _Fleta_, as late as the thirteenth century, a custom
was current among merchants of proving the payment of a debt by
swearing in nine churches, the abuse of which led to its abrogation.[54]
The intense veneration with which relics were regarded, however, caused
them to be generally adopted as the most effective means of adding
security to oaths, and so little respect was felt for the simple oath
that, ere long, the adjuncts came to be looked upon as the essential
feature, and the imprecation itself to be divested of binding force
without them. Thus, in 680, when Ebroin, mayor of the palace of
Burgundy, had defeated Martin, Duke of Austrasia, and desired to entice
him from his refuge in the stronghold of Laon, two bishops were sent
to him bearing the royal reliquaries, on which they swore that his
life should be safe. Ebroin, however, had astutely removed the holy
remains from their cases in advance, and when he thus got his enemy
in his power, he held it but a venial indiscretion to expose Martin
to a shameful death.[55] How thoroughly this was in accordance with
the ideas of the age is shown by the incorporation, in the canons of
the church, of the doctrine that an oath was to be estimated by its
externals and not by itself. The penitential of David, dating from the
latter half of the sixth century, provides that perjury committed in
a church shall be punished by a fine of four times the value of that
for which the false oath was taken,[56] but no penalty is provided for
false swearing elsewhere. As the theory developed itself this tacit
condoning of such perjury was boldly declared to be good ecclesiastical
law, and the venerable code of morality which passes under the name of
Theodore Archbishop of Canterbury assumes that a false oath taken on
a consecrated cross requires, for absolution, three times the penance
necessary in cases where the oath had been taken on an unconsecrated
one, while, if the ministration of a priest had not been employed, the
oath was void, and no penalty was inflicted for its violation.[57] In
a similar mood the penitential known as that of Gregory III. provides
that three years’ penance will absolve for perjury committed on a
consecrated cross or on the hand of a bishop or priest, while seven
years are requisite if the oath has been taken on the gospels or on
an altar with relics.[58] This rule took its final shape in the canon
law, which provides one year’s penance for perjury committed on an
unconsecrated cross, and three years’ for that on a consecrated one, or
on the hand of a bishop.[59]
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 declares 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.[60] 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.[61] 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.[62]
It was easy, from a belief such as this, to draw the deduction that
when an oath was sworn on relics of peculiar sanctity, immediate
punishment would follow perjury; and thus it followed that some
shrines obtained a reputation which caused them to be resorted to in
the settlement of disputed judicial questions. Even as early as St.
Augustin there are traces of such practices, which that Father of
the Church not only records, but imitated,[63] and at a later period
the legends are numerous which record how the perjured sinner was
stricken down senseless or rendered rigid and motionless in the act
of swearing falsely.[64] From this point of view oaths were really
ordeals, and as such we shall consider them hereafter. At present it
suffices to observe that the profit which the church derived from
thus administering oaths on relics affords an easy explanation of her
teachings, and of the extension of these practices. Their resultant
advantages are well illustrated by the example of the holy taper of
Cardigan, in Wales. A miraculous image of the Virgin was cast ashore,
bearing this taper burning in its hand. A church was built for it, and
the taper “contynued styll burnynge the space of nyne yeres, without
wastynge, until the tyme that one forsware himselfe thereon, so then
it extincted, and never burned after.” At the suppression of the house
under Henry VIII., the prior, Thomas Hore, testified: “Item, that
since the ceasynge of burnynge of the sayd taper, it was enclosed and
taken for a greate relyque, and so worshipped and kyssed of pylgremes,
and used of men to sweare by in difficill and harde matters, whereof
the advauntage admounted to greate sommes of money in tymes passed,
payenge yerely to the same XXti nobles for a pencion unto thabbott of
Chersey.”[65]
In all this Spain would seem to be exceptional. In the thirteenth
century the rule is expressed that a pleader must take the oath
required of him by his antagonist; if he is required to swear by God,
it will not suffice for him to swear by some saint, or by his own head.
Oaths could indeed be taken on crosses or altars, but they could also
be reduced to the simplest asseveration. Thus, there is a provision
that if one party says “Swear to me on your simple word,” then the
reply “know that it is so,” or “believe me that it is so,” suffices,
and has all the force of the most solemn adjuration.[66]
CHAPTER III.
CONJURATORS, OR PARTAKERS IN THE OATH.
Notwithstanding the earnestness with which these teachings were
enforced, it may readily be believed that the wild barbarian, who was
clamoring for the restoration of stolen cattle, or the angry relatives,
eager to share the _wer-gild_ of some murdered kinsman, would scarce
submit to be balked of their rights at the cost of simple perjury on
the part of the criminal. We have seen that both before and after their
conversion to Christianity they had little scruple in defiling the most
sacred sanctions of the oath with cunning fraud, and they could repose
little confidence in the most elaborate devices which superstition
could invent to render perjury more to be dreaded than defeat. It was
therefore natural that they should perpetuate an ancestral custom,
which had arisen from the structure of their society, and which derived
its guarantee from the solidarity of families alluded to above. This
was the custom which was subsequently known as canonical compurgation,
and which long remained a part of English jurisprudence, under the
name of the Wager of Law. The defendant, when denying the allegation
under oath, appeared surrounded by a number of companions—_juratores_,
_conjuratores_, _sacramentales_, _collaudantes_, _compurgatores_, as
they were variously termed—who swore, not to their knowledge of the
facts, but as sharers and partakers in the oath of denial.
This form of procedure derives importance from the fact that it is an
expression of the character, not of an isolated sept, but of nearly all
the races that have moulded the destinies of modern Europe. Although
unknown to the Roman law, there are traces of it in the ancient
Hellenic legislation.[67] The Ostrogoths in Italy, and the Wisigoths
of the south of France and Spain were the only nations in whose extant
codes it occupies no place, and they, as has already been remarked,
at an early period yielded themselves completely to the influence
of the Roman civilization.[68] On the other hand, the Salians, the
Ripuarians, the Alamanni, the Baioarians, the Lombards, the Frisians,
the Norsemen, the Saxons, the Angli and Werini, the Anglo-Saxons, and
the Welsh, races whose common origin must be sought in the prehistoric
past, all gave to this form of purgation a prominent position in their
jurisprudence, and it may be said to have reigned from Southern Italy
to Scotland.[69]
The earliest text of the Salic law presents us with the usages of the
Franks unaltered by any allusions to Christianity, and it may therefore
be presumed to date from a period not later than the conversion of
Clovis. In this primitive code there are directions for the employment
of conjurators, which show that the procedure was a settled and
established form at that period.[70] So in the Frisian law, which,
although compiled in the eighth century, still reveals pagan customs
and the primitive condition of society, the practice of compurgation
evidently forms the basis of judicial proceedings. The Islands
Landnamabok also exhibits it as a form of regular procedure among the
heathen Norsemen. Although the other codes have only reached us in
revisions subsequent to the conversion of the several tribes, still,
the universal use of the practice shows that its origin must be traced
to a period anterior to the separation of the several races from the
original common stock.
The church, with the tact which distinguished her dealings with her
new converts, was not long in adopting a system which was admirably
suited for her defence in an age of brute force. As holy orders
sundered all other ties, and as the church was regarded as one vast
family, ecclesiastics speedily arrogated to themselves and obtained
the privilege of having men of their own class as compurgators, and,
thus fortified for mutual support, they were aided in resisting the
oppressors who invaded their rights on every hand. This claim, with
all its attendant advantages, was fully conceded when Charlemagne, in
the year 800, went to Rome for the purpose of trying Pope Leo III.
on a grave charge, and in that august presence the Pontiff, whom no
witnesses dared to accuse, cleared himself of the crimes imputed to him
by solemnly taking the oath of denial in company with twelve priests
as compurgators.[71] Three years afterwards, the Emperor decreed
that, in all doubtful cases, priests should defend themselves with
three, five, or seven ecclesiastical compurgators, and he announced
that this decision had been reached by the common consent of pope,
patriarchs, bishops, and all the faithful.[72] It is true that a few
months later, on being shown a decretal of Gregory II.[73] ordering the
clergy to rebut with their single oaths all accusations unsupported by
witnesses, he modified his previous command, and left the matter to
the discretion of his prelates; but this had no practical result, for
Charlemagne’s capitulary was adopted in the canon law and ascribed to
Leo himself.[74] The custom soon received the papal sanction again in
the most solemn manner. In 823, Pope Pascal I. was more than suspected
of complicity in the murder of Theodore and Leo, two high dignitaries
of the papal court. Desirous to avoid an investigation by the
commissioners sent by Louis le Débonnaire, he hastily purged himself
of the crime in anticipation of their arrival, by an oath taken with a
number of bishops as his compurgators;[75] and it is a striking example
of the weight accorded to the procedure that, although the assumed
fault of the victims had been their devotion to the imperial party,
and though the pope had by force of arms prevented any pursuit of the
murderers, the emperor was powerless to exact satisfaction, and there
was nothing further to be done. Pope Pascal stood before the world an
innocent man.
It is true that, in the tenth century, Atto of Vercelli complains
bitterly that a perverse generation refused to be satisfied with the
single oath of an accused priest, and required him to be surrounded
by compurgators of his class, which that indignant sacerdotalist
regarded as a grievous wrong.[76] As the priesthood, however, failed
in obtaining the entire immunity for which they strove during those
turbulent times, the unquestioned advantages which compurgation
afforded recommended it to them with constantly increasing force.
Forbidden at length to employ the duel in settling their differences,
and endeavoring, in the eleventh and twelfth centuries, to obtain
exemption from the ordeal, they finally accepted compurgation as the
special mode of trial adapted to members of the church, and for a long
period we find it recognized as such in all the collections of canons
and writings of ecclesiastical jurists.[77] From this fact it obtained
its appellation of _purgatio canonica_, or canonical compurgation.
CHAPTER IV.
SELECTION OF COMPURGATORS.
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.[78] 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
_wer-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.”[79] 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;[80] and the _alltud_, or foreigner, was not
entitled to the raith unless he had kindred to serve on it.[81] 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.[82]
It was manifestly impossible, however, to enforce the rule of kinship
in all cases, for the number of compurgators varied in the different
codes, and in all of them a great number were required when the matter
at stake was large, or the crime or criminal important. Thus when
Chilperic I. was assassinated in 584, doubts were entertained as to
the legitimacy of his son Clotair, an infant of four months—doubts
which neither the character of Queen Fredegonda nor the manner of
Chilperic’s death had any tendency to lessen—and Gontran, brother of
the murdered king, did not hesitate to express his belief that the
royal child’s paternity was traceable to some one of the minions of
the court, a belief doubtless stimulated by the promise it afforded
him of another crown. Fredegonda, however, repaired her somewhat
questionable reputation and secured the throne to her offspring, by
appearing at the altar with three bishops and three hundred nobles,
who all swore with her as to the legitimacy of the little prince,
and no further doubts were ventured on the delicate subject.[83] A
similar case occurred in Germany in 899, when Queen Uta cleared herself
of an accusation of infidelity, by taking a purgatorial oath with
eighty-two nobles.[84] So in 824, a dispute between Hubert, Bishop
of Worcester, and the Abbey of Berkeley, concerning the monastery of
Westbury, was settled by the oath of the bishop, supported by those
of fifty mass-priests, ten deacons, and a hundred and fifty other
ecclesiastics.[85] These were, perhaps, exceptional instances, but
in Wales the law required, as a regular matter, enormous numbers of
compurgators in many cases. Privity to homicide, for instance, was
divided into three triads, or nine classes of various degrees of
guilt. Of these, the first triad called for one hundred raith-men to
establish the denial; the second triad, 200, and the third, 300;[86]
while, to rebut an accusation of killing with savage violence or
poisoning, the enormous number of six hundred compurgators was
considered necessary.[87] Even these armies of oath-takers did not
widen the circle from which selection was allowed, for the law
absolutely specifies that “the oaths of three hundred men of a kindred
are required to deny murder, blood, and wound,”[88] and the possibility
of finding them is only explicable by the system of tribes or clans in
which all were legally related one to another. This is illustrated by
a further regulation, according to which, under the Gwentian code, in
an accusation of theft, with positive evidence, the thief was directed
to clear himself with twenty-four raith=men of his own _cantrev_ or
district, in equal number from each _cymwd_ or sub-district.[89]
Under a different social organization, it is evidently impossible
that a kindred sufficiently large could have been assembled in the
most numerous families, and even when the requirements were more
reasonable, the same difficulty must frequently have occurred. This
is recognized in the Danish laws of the thirteenth and fourteenth
centuries, where the conjuratorial oaths of kindred, known as _neffn
i kyn_, were requisite, unless the accused could swear that he had no
relations, in which case he was allowed to produce twelve other men of
proper character, _lag feste men_.[90] In a constitution of Frederic
II. in 1235, the compurgators are required to be of the same class
as their principal, and to be _sinodales homines_, men of undoubted
character.[91] Thus the aid of those not connected by ties of blood
must often have been necessary, and as it was a service not without
danger, as we shall see hereafter, it is not easy to understand how
the requisite number was reached. In certain cases, no doubt, the
possibility of obtaining those not bound by kindred to undertake the
office is traceable to the liability which in some instances rested
upon a township for crime committed within its borders;[92] while
the system of guilds in which the members shared with each other a
responsibility resembling that of kinship rendered participation in the
oath of denial almost a necessity when a comrade was prosecuted.[93]
It would be endless to specify all the variations in the numbers
required by the different codes in all imaginable cases of quarrel
between every class of society. Numerous elements entered into these
regulations; the nature of the crime or claim, the station of the
parties, the rank of the compurgators, and the mode by which they
were selected. Thus, in the simplest and most ancient form, the Salic
law merely specifies twenty-five compurgators to be equally chosen by
both parties.[94] Some formulas of Marculfus specify three freeholders
and twelve friends of the accused.[95] A Merovingian edict of 593
directs the employment of three peers of the defendant, with three
others chosen for the purpose, probably by the court.[96] Alternative
numbers, however, soon make their appearance, depending upon the manner
in which the men were chosen. Thus among the Alamanni, on a trial
for murder, the accused was obliged to secure the support of twenty
designated men, or, if he brought such as he had selected himself,
the number was increased to eighty.[97] So, in a capitulary of 803,
Charlemagne prescribes seven chosen conjurators, or twelve if taken
at random,[98] a rule which is virtually the same as that laid down
by the Emperor Henry III. in the middle of the eleventh century.[99]
In 922 the council of Coblentz directs that accusations of sacrilege
could be rebutted with twenty-four chosen men, or seventy-two freemen
not thus selected.[100] In Bigorre the law thus discriminated against
the _cagots_—an infamous wandering race of uncertain origin—for cases
in which the oaths of seven conjurators ordinarily sufficed required
thirty _cagots_, when the latter were called upon to act.[101] In an
English record of the fifteenth century we find a defendant called
upon to prove his innocence with six of his neighbors or twelve
strangers.[102]
Strangely enough, the church at one time adopted the principle that the
higher the rank of the accused the more he must present of his peers
as compurgators. Thus the bishop required eleven bishops, the priest
five priests, and the deacon two deacons; but Cardinal Henry of Susa
who enunciates this says it is an error, and that the number is at the
discretion of the judge.[103] The rule, moreover, that the compurgators
must be of the same rank and class as the accused was waived when they
were presumably inimical to him or the proper number could not be had,
and thus a cleric might be cleared by the oaths of laymen.[104]
Variations likewise occur arising from the nature of the case and the
character of the plaintiff. Thus in the Scottish law of the twelfth
century, in a criminal charge, a man could defend himself against his
lord with eleven men of good reputation, but if the king were the
accuser, twenty-four were requisite, who were all to be his peers,
while in a civil case twelve were sufficient.[105] So in the burgher
laws of David I., ordinary cases between citizens were settled with
ten conjurators, but eleven were necessary if the king were a party,
or if the matter involved the life, limb, or lands of one of the
contestants; and in cases occurring between a citizen and a countryman,
each party had to provide conjurators of his own class.[106] In the
complicated rules for compurgation which form the basis of the Welsh
jurisprudence, there are innumerable details of this nature. We have
seen that for some crimes many hundred _raith-men_ were required,
while similar numbers were enjoined in some civil suits respecting
real property.[107] From this the number diminishes in proportion to
the gravity of the case, as is well illustrated by the provisions for
denying the infliction of a bruise. If the mark remained until the
ninth day, the accused could deny it with “two persons of the same
privilege as himself;” if it remained until the eighteenth day, the
oaths of three conjurators were necessary; if till the twenty-seventh
day, four _raith-men_ were required.[108]
The character of the _raith-men_ also affected the number demanded.
Thus, in a collection of Welsh laws of the fifteenth century there
is an explanation of the apparent anomaly that privity to theft
or homicide required for its defence a vastly greater number of
compurgators than the commission of the crime itself. The large
bodies prescribed for the former consisted simply of any men that
could be had—of course within the recognized grades of kindred—while,
for the latter, rules of varying complexity were laid down. Thus, of
the twenty-four required for theft, in some texts it is prescribed
that two-thirds are to be of the nearest paternal kin, and one-third
of the nearest maternal; or, again, one-half _nod-men_.[109] So, in
accusations of homicide, the same proportions of paternal and maternal
kindred were required, all were to be proprietors in the country
of the _raith_, and three, moreover, were to be men under vows of
abstinence from linen, horses, and women, besides a proper proportion
of _nod-men_.[110]
Instances also occur in which the character of the defendant regulated
the number required. Among the Welsh, the laws of Hoel Dda provide
that a wife accused of infidelity could disprove a first charge with
seven women; if her conduct provoked a second investigation, she had
to procure fourteen; while, on a third trial, fifty female conjurators
were requisite for her escape.[111] Another application of the same
principle is found in the provision that when a man confessed a
portion of the crime imputed to him and denied the remainder, an
augmented _raith_ was required to support his denial, because it is
more difficult to believe a man who has admitted his participation in
a criminal act. Thus when only fifty men were requisite to rebut a
charge of homicide, and the accused admitted one of the accessories to
homicide, his denial of the main charge had to be substantiated by one
hundred, two hundred, or three hundred men, according to the nature
of the case. On the other hand, where no criminal act was concerned,
confession of a portion diminished the _raith_ for the remainder. Thus
in a claim for suretyship, six compurgators were necessary to the
defendant; but if he admitted part of the suretyship, his unsupported
oath was sufficient to rebut the remainder, as the admission of
a portion rendered him worthy of belief.[112] In the Anglo-Saxon
jurisprudence, the _frangens jusjurandum_, as it was called, also
grew to be an exceedingly complex system in the rules by which the
number and quality of the conjurators were regulated according to
the nature of the crime and the rank of the accused. In cases of
peculiar atrocity, such as violation of the sanctity of the grave,
only thanes were esteemed competent to appear.[113] In fact, among the
Anglo-Saxons, the value of a man’s oath was rated according to his
rank, that of a thane, for instance, being equal to those of seven
villeins.[114] The same peculiarity is observable among the Frisians,
whose laws required that compurgators should be of the same class as
their principal, and the lower his position in the State, the larger
was the number requisite.[115]
It was, however, not only the number of compurgators required that
affected the result, but the method by which they were chosen, and this
gave rise to wide variations in practice. Originally, it is probable
that the selection was left to the accused, who gathered them from
among his kindred. This would lead almost inevitably to his acquittal,
as forcibly pointed out by Hincmar in the ninth century. In objecting
to admit the purgation of an offending priest with ecclesiastics of
his own choice, he states that evil-minded men combined together to
defeat justice and secure immunity for their crimes by serving each
other in turn, so that when the accused insisted on offering his
companions to the oath, it was necessary to make them undergo the
ordeal to prove their sincerity.[116] His expressions indicate that the
question of selection at that time was undecided in France, and the
alternative numbers alluded to above show one of the methods adopted to
meet the evident evils of the process. Other nations devised various
expedients. The original Lombard law of King Rotharis gave to the
plaintiff the privilege of naming a majority of the compurgators, the
remainder being chosen by the defendant,[117] but even in this the
solidarity of the family was recognized, since it was the duty of the
plaintiff to select the nearest relatives of his adversary, provided
they were not personally hostile to the accused.[118] This same spirit
is shown even so late as 1116, in a charter by which Baldwin VII. of
Flanders gratified the citizens of Ypres by substituting among them
the process of compurgation for the ordeal and battle trial. According
to this, the accuser selected four of the relatives of the accused
to take the purgatorial oath; if they refused through known enmity,
he was bound to select four other of the kindred, and if none such
were to be found then four legal men sufficed.[119] The English law
was the first to educe a rational mode of trial from the absurdity
of the barbaric traditions, and there the process finally assumed
a form which occasionally bears a striking resemblance to trial by
jury—in fact, it insensibly runs into the latter, to the rise of
which it probably contributed. By the laws of Canute, in some cases,
fourteen men were named to the defendant, among whom he was obliged to
find eleven willing to take the purgatorial oath with him.[120] The
selection of these virtual jurors was probably made by the _gerefa_,
or sheriff;[121] they could be challenged for suspicion of partiality
or other competent cause, and were liable to rejection unless
unexceptionable in every particular.[122] Very similar to this was the
_stockneffn_ of the ancient Danish law, by which, in cases where the
relatives were not called upon, thirteen men were chosen, a majority
of whom could clear the accused by taking the oath with him. They were
nominated by a person appointed for the purpose, and if the court
neglected this duty, the privilege enured to the plaintiff.[123] More
facile for the defence was a process prescribed in a Spanish charter
of 1135, where, in cases of homicide, it sufficed for the accused to
obtain five conjurators out of twelve selected by the magistrates.[124]
A method combining selection and chance is described in the custumal of
Ipswich in the twelfth century, to decide questions of debt between the
townsfolk. The party on whom proof was incumbent brought in ten men;
these were divided into two bands of five each, and a knife was thrown
up between them; the band towards which the point of the knife fell was
taken, one of the five was set aside, and the remaining four served as
conjurators.[125]
The Northern nations were evidently less disposed to favor the
accused than the Southern. In Sweden and Denmark, another regulation
provides that although the defendant had a right to demand this mode
of purgation, yet the plaintiff had the selection of the twelve men
who served as conjurators; three of these the accused could challenge
for enmity, but their places were supplied by the plaintiff.[126] The
evanescent code compiled for Iceland by Haco Haconsen and his son
Magnus, towards the close of the thirteenth century, is more equitable
in its provisions. Though it leaves the nomination of the conjurators
to the defendant, the choice is subject to limitations which placed
it virtually in the power of the court. They were required to be men
of the vicinage, of good repute, peers of the accused, and in no way
connected with him by blood or other ties.[127] The more lasting code
promulgated at the same time by Magnus for his Norwegian dominions, a
code which became the common law of Norway for 500 years, provides,
for cases in which eleven conjurators are required, that seven of them
shall be selected of intelligent men of full age, and in no way related
to the accused, yet residents of the vicinage, and acquainted with the
facts; the accused can then add four more of good character, himself
making the twelfth.[128] We see here, as in the English jurisprudence,
how nearly the conjuratorial process approaches to the jury-trial, and
how completely it has departed from its origin in the solidarity of the
family.
Such care in the selection of those on whom duties so responsible
devolved did not prevail among the more Southern races at an earlier
age. Among the Lombards slaves and women in tutelage were often
employed.[129] The Burgundians required that the wife and children, or,
in their absence, the father and mother of the accused should assist
in making up the number of twelve,[130] the object being evidently
to increase the responsibility of the family for the action of its
head. The abuses of this custom, however, caused its prohibition under
Charlemagne for the reason that it led to the swearing of children
of tender and irresponsible age.[131] That legislator, however,
contented himself with forbidding those who had once been convicted of
perjury from again appearing either as witnesses or conjurators;[132]
and the little care that was deemed necessary in their selection
under the Carlovingian jurisprudence is shown by a law of Louis le
Débonnaire ordering that landless freemen should be allowed to serve as
conjurators, though ineligible as witnesses.[133] A truer conception
of the course of justice is manifested, some centuries later, by
the Béarnese legislation, which required that the _seguidors_ or
conjurators, as well as the _testimonis_ or witnesses should be men
able to pay the amount at stake, together with the fine incurred by
the losing party,[134] or that they should be fair and loyal men, not
swayed by enmity.[135]
In ecclesiastical trials it would seem that the selection of
compurgators rested with the bishop. In a case occurring in the
thirteenth century, of a priest accused of homicide who failed in
his compurgation, he appealed to the Holy See on the ground that his
accusers were perjurers and that the bishop had chosen the compurgators
to suit himself.[136] As a matter of course, the result of the trial
depended, as it does with the modern jury, on the fairness with which
the choice was made, and in the universal corruption of the middle ages
there is no reason to suppose that favoritism or bribery was not a
controlling influence in a majority of cases.
CHAPTER V.
CONDITIONS OF COMPURGATION.
The conditions under which resort was had to this mode of deciding
litigation have been the subject of some discussion. It has been
assumed that, in the early period, before the ferocious purity of
the Barbarians had become adulterated under the influence of Roman
civilization, it was used in all description of cases, at the option
of the defendant, and was in itself a full and satisfactory proof,
received on all hands as equal to any other.[137] The only indication
that I have met with, among the races of Teutonic stock, tending
to the support of such a conjecture, occurs in the Lombard code,
where Rotharis, the earliest compiler of written laws, abolishes a
previously existing privilege of denying under oath a crime after it
had been confessed.[138] A much more powerful argument on the other
side, however, is derivable from the earliest text of the Salic law,
to which reference has already been made. In this, the formula shows
clearly that conjurators were only employed in default of other
testimony;[139] and what lends additional force to the conclusion is
that this direction disappears in subsequent revisions of the law,
wherein the influences of Christianity and of Roman civilization are
fully apparent. No safe deductions, indeed, can be drawn from mere
omissions to specify that the absence of witnesses was necessary, for
these ancient codes are drawn up in the rudest manner, and regulations
which might safely be presumed to be familiar to every one would not,
in their curt and barbarous sentences, be repeated with the careful
redundancy which marks our modern statutes. Thus there is a passage
in the code of the Alamanni which declares in the most absolute form
that if a man commits a murder and desires to deny it, he can clear
himself with twelve conjurators.[140] This, by itself, would authorize
the assumption that compurgation was allowed to override the clearest
and most convincing testimony, yet it is merely a careless form of
expression, for another section of the same code expressly provides
that where a fact is proved by competent witnesses the defendant shall
not have the privilege of producing compurgators.[141]
It therefore seems evident that, even in the earliest times, this
mode of proof was only an expedient resorted to in doubtful matters,
and on the necessity of its use the _rachinborgs_ or judges probably
decided. A case recorded in the Landnamabok certainly shows that among
the heathen Norsemen the Godi or priest-judge had this power, for when
Thorbiorn Digre prosecuted Thorarin of Mafahlid for horse-stealing, and
demanded that he should produce twelve conjurators, Arnkell, the Godi,
decided that the accused might clear himself with his simple oath on
the holy ring of the altar, and thus the prosecution came to naught
except as leading to a bloody feud.[142] That this discretion was
lodged in the court in subsequent times is generally admitted. It is
scarcely worth while to multiply proof; but a few references will show
the light in which the custom was regarded.[143]
As employed by the Church, the rule was distinctly enunciated in the
thirteenth century that the accused was not to be allowed to clear
himself by canonical purgation when the crime was notorious or when the
accuser offered to prove the charge.[144]
The Welsh, however, were exceptional in this respect. The _raith_ was
the corner-stone of their system of jurisprudence. It was applied to
almost all actions, whether of civil or criminal law, and even cases of
doubtful paternity were settled by it, no woman, except one “of bush
and brake” who had no legal kindred, being allowed to give testimony
or take an oath with respect to the paternity of her illegitimate
child.[145] It excluded and superseded all other procedures. If the
accused declined to take the oath of denial, then testimony on both
sides could be introduced, and the case be settled on the evidence
adduced;[146] but where he chose to abide by the _raith_, the Book of
Cynog formally declares that “Evidences are not to be brought as to
_galanas_ [homicide], nor _saraad_ [insults], nor blood, nor wound,
nor ferocious acts, nor waylaying, nor burning buildings, nor theft,
nor surety, nor open assault, nor adultery, nor violence, nor in a
case where guardians should be, nor in a case where an established
raith is appointed by law; because evidences are not to extinguish a
raith.”[147] Indeed, the only case which I have found wherein it was
refused is where a priest of the same parish as one accused of theft
testifies to have seen him in open daylight with the article stolen in
his possession, when apparently the sacred character of the witness
precludes a denial on the part of the defendant.[148]
Among other races confidence in its ability to supplement absent or
deficient testimony was manifested in another form—the _juramentum
supermortuum_—which was employed by various nations, at wide intervals
of time. Thus, in the earliest legislation of the Anglo-Saxons, we
find that when the defendant or an important witness was dead, the
oath which he would have taken or the deposition which he would have
made was obtained by proceeding to his tomb, where a certain number of
conjurators swore as to what he could or would have done if alive.[149]
Two centuries later, the same custom is alluded to in the Welsh laws
of Hoel Dda,[150] and even as late as the thirteenth century it was
still in force throughout Germany.[151] There were other cases in which
evidence of any kind was almost impossible, and in these the wager of
law offered a convenient resource. Thus, Frederic II., in 1235, decreed
that a man harboring an outlaw should himself be outlawed, but he was
allowed to prove with six conjurators that he was ignorant of the
outlawry.[152]
A remarkable use of conjurators to confirm the evidence of witnesses
occurs in 850 in a dispute between Cantius, Bishop of Siena, and
Peter, Bishop of Arezzo, concerning certain parishes claimed by both.
The occasion was a solemn one, for it was before a council held in
Rome presided over jointly by Pope Leo IV. and the Emperor Louis II.
Peter relied upon written charters, while Cantius produced witnesses.
The Emperor pronounced the claim of the latter to be just, when he
and twelve priests swore that the oaths of the witnesses were true
and without deceit, whereupon the disputed parishes were adjudged to
him.[153]
The employment of compurgators, however, depended frequently upon the
degree of crime alleged, or the amount at stake. Thus, in many codes,
trivial offences or small claims were disposed of by the single oath of
the defendant, while more important cases required compurgators, whose
numbers increased with the magnitude of the matter in question. This
principle is fairly illustrated in a charter granted to the Venetians
in the year 1111 by Henry V. In suits which involved only the value
of a silver pound, the oath of the party was sufficient; but if the
claim amounted to twelve pounds or more, then twelve chosen men were
requisite to substantiate the oath of negation.[154]
In England in the thirteenth century we find compurgation very
generally employed in the manorial courts for the settlement of petty
criminal actions. So general was its use, indeed, that it obtained the
name of “law,” as the legal method _par excellence_, and the process
is curtly described in the reports as “facere legem,” “esse ad legem,”
“vadiare legem,” whence is derived the term “wager of law.” The number
of compurgators was generally two or five, and they seem to have been
left, as a rule, to the choice of the defendant, so that failure to
procure the requisite number was very unusual.[155]
In later times, compurgation was also sometimes used as an alternative
when circumstances prevented the employment of other popular modes of
deciding doubtful cases. Those, for instance, who would ordinarily be
required to defend themselves by the wager of battle, were permitted by
some codes to substitute the oaths of a certain number of conjurators,
when precluded by advanced age from appearing in the arena. The burgher
law of Scotland affords an example of this,[156] though elsewhere
such cases were usually settled by the substitution of champions.
Class privileges also manifested themselves in this as in so many
other features of mediæval law, and we sometimes find compurgation
allowed as a favor to those of gentle birth. Thus, in the Council of
Reims in 1119, among the provisions for the enforcement of the Truce
of God, accusations of its violation are rebutted by knights with
six compurgators, while common people are required to undergo the
ordeal.[157]
CHAPTER VI.
FORMULAS AND PROCEDURE.
The primitive lawgivers were too chary of words in their skeleton codes
to embody in them the formula usually employed for the compurgatorial
oath. We have therefore no positive evidence of its nature in the
earliest times; but as the forms made use of by several races at a
somewhat later period have been preserved, and as they resemble each
other in all essential respects, we may reasonably assume that little
variation had previously occurred. The most ancient that I have met
with occurs in an Anglo-Saxon formulary which is supposed to date
from about A. D. 900: “By the Lord, the oath is clean and unperjured
which N. has sworn.”[158] A century later, in a compilation of the
Lombard law, it appears: “That which the accused has sworn is true, so
help me God.”[159] The form specified in Béarn, at a period somewhat
subsequent, is curt and decisive: “By these saints, he tells the
truth;”[160] while the code in force in Normandy until the sixteenth
century directs an oath identical in spirit: “The oath which William
has sworn is true, so help me God and his saints.”[161] It will be
observed that all these, while essentially distinct from the oath
of a witness, are still unqualified assertions of the truth of the
principal, and not mere asseverations of belief or protestations of
confidence. The earliest departure from this positive affirmation,
in secular jurisprudence, occurs in the unsuccessful attempt at
legislation for Norway and Iceland by Haco Haconsen in the thirteenth
century. In this, the impropriety of such oaths is pointed out, and
it is directed that in future the compurgator shall swear only,
in confirmation of his principal, that he knows nothing to the
contrary.[162] In the similar code promulgated in 1274 by his son
Magnus in Norway, it is directed that the accused shall take a full
oath of denial, and the conjurators shall swear in the same words that
his oath is true, and that they know nothing truer.[163]
We shall see that, before the custom fell into total disuse, the
change which Haco vainly attempted, came to be generally adopted, in
consequence, principally, of the example set by the church. Even before
this was formally promulgated by the Popes, however, ecclesiastics
occasionally showed that they were more careful as to what they swore,
and at a comparatively early period they introduced the form of merely
asserting their belief in the oath taken by their principal. Thus, in
1101, we find two bishops endeavoring to relieve a brother prelate from
a charge of simony, and their compurgatorial oath ventures no further
than “So help me God, I believe that Norgaud, Bishop of Autun, has
sworn the truth.”[164]
In the form of oath, however, as well as in so many other particulars,
the Welsh had a more complicated system, peculiar to themselves. The
ordinary _raith-man_ only was required to take an oath “that it appears
most likely to him that what he swears to is true.” In many aggravated
crimes, however, a certain proportion, generally one-half, had to be
_nod-men_ who were bound to a more stringent form, as the law specifies
that “the oath of a nod-man is, to be in accordance with what is sworn
by the criminal.”[165] The difference, as we have seen, in the numbers
required when a portion were _nod-men_ shows how much more difficult
it was to find men willing to swear to an absolute denial, and how
much more weight was attached to such a declaration than to the lax
expression of opinion contained in the ordinary oath of the _raith-man_.
Variations are likewise observable in the form of administering the
oath. Among the Alamanni, for instance, the compurgators laid their
hands upon the altar, and the principal placed his hand over the
others, repeating the oath alone;[166] while among the Lombards, a
law of the Emperor Lothair directs that each shall take the oath
separately.[167] It was always, however, administered in a consecrated
place, before delegates appointed by the judges trying the cause,
sometimes on the altar and sometimes on relics. In the Welsh laws
of the fifteenth century it is specified that all _raiths_ shall be
administered in the parish church of the defendant, before the priest
shall have disrobed or distributed the sacramental bread.[168] At an
earlier period a formula of Marculfus specifies the Capella S. Martini,
or cope of St. Martin,[169] one of the most venerated relics of the
royal chapel, whence we may perhaps conclude that it was habitually
used for that purpose in the business of the royal Court of Appeals.
Notwithstanding the universality of the custom, and the absolute
character of the decisions reached by the process, it is easy to
discern that the confidence reposed in it was of a very qualified
character, even at an early period. The primitive law of the Frisians
describes some whimsical proceedings, prescribed for the purpose of
determining the responsibility for a homicide committed in a crowd.
The accuser was at liberty to select seven from among the participants
of the brawl, and each of these was obliged to deny the crime with
twelve conjurators. This did not absolve them, however, for each of
them was also individually subjected to the ordeal, which finally
decided as to his guilt or innocence. In this, the value of the
compurgation was reduced to that of the merest technical ceremony,
and yet a failure to procure the requisite number of supporters was
tantamount to a conviction, while, to crown the absurdity of the whole,
if any one succumbed in the ordeal, his conjurators were punished as
perjurers.[170] A similar want of confidence in the principle involved
is shown by a reference in the Anglo-Saxon laws to the conjurators
of an accused party being outsworn (_overcythed_), when recourse was
likewise had to the ordeal.[171] Among the heathen Norsemen, indeed,
an offer by either party to produce conjurators could always be met by
the antagonist with a challenge to the duel, which at once superseded
all other proceedings.[172] As regards the church, although the
authoritative use of compurgation among ecclesiastics would seem to
demand for it among them implicit faith in its results, yet we have
already seen that, in the ninth century, Hincmar did not hesitate to
require that in certain cases it should be confirmed by the ordeal;
and two centuries later, a remark of Ivo of Chartres implies a
strong degree of doubt as to its efficacy. In relating that Sanctio,
Bishop-elect of Orleans, when accused of simony by a disappointed
rival, took the oath of negation with seven compurgators, he adds
that the accused thus cleared himself as far as he could in the eyes
of man.[173] That the advantages it offered to the accused were duly
appreciated, both by criminals and judges, is evident from the case of
Manasses, Archbishop of Reims. Charged with simony and other offences,
after numerous tergiversations he was finally summoned for trial
before the Council of Lyons, in 1080. As a last effort to escape the
impending doom, he secretly offered to Bishop Hugh, the Papal legate,
the enormous sum of two hundred ounces of gold and other presents in
hand, besides equally liberal prospective payments, if he could obtain
the privilege of compurgation with six suffragan bishops. Gregory VII.
was then waging too uncompromising a war with the corroding abuse of
simony for his lieutenant to yield to any bribe, however dazzling; the
proffer was spurned, Manasses confessed his guilt by absence, and was
accordingly deposed.[174] Incidents like this, however, did not destroy
confidence in the system, for, some sixty years later, we find Innocent
II. ordering the Bishop of Trent, when similarly accused of simony,
to clear himself with the oaths of two bishops and three abbots or
monks.[175]
The comparative value attached to the oaths of conjurators is
illustrated by the provisions which are occasionally met with,
regulating the cases in which they were employed in default of
witnesses, or in opposition to them. Thus, in the Baioarian law, the
oath of one competent witness is considered to outweigh those of six
conjurators;[176] and among the Lombards, an accusation of murder which
could be met with three witnesses required twelve conjurators as a
substitute.[177]
It is therefore evident that conjurators were in no sense witnesses,
that they were not expected to give testimony, and that they merely
expressed their confidence in the veracity of their principal. It may
consequently at first sight appear somewhat unreasonable that they
should be held guilty of perjury and subject to its penalties in case
of unluckily sustaining the wrong side of a cause. It is probably
owing to this apparent injustice that some writers have denied that
they were involved in the guilt of their principal, and among others
the learned Meyer has fallen into this error.[178] The proof, however,
is too clear for dispute. We have already seen that the oath was an
unqualified assertion of the justice of the side espoused, without
reservation justifying the escape of the compurgators from the charge
of false swearing, and one or two incidental references have been made
to the punishments inflicted on them when subsequently convicted of
perjury. 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.[179] Similar evidence is derived from a regulation promulgated
by King Liutprand in the Lombard Law, by which a man nominated as a
conjurator, and declining to serve, was obliged to swear that he dared
not take the oath for fear of his soul.[180] A case in point occurs in
the life of St. Boniface, whose fellow-laborer Adalger in dying left
his property to the church. The graceless brothers of the deceased
disputed the bequest, and offered to make good their claim to the
estate by the requisite number of oaths. The holy man ordered them to
swear alone, in order not to be concerned in the destruction of their
conjurators, and on their unsupported oaths gave up the property.[181]
The law had no hesitation in visiting such cases with the penalties
reserved for perjury. By the Salic code unlucky compurgators were
heavily fined.[182] Among the Frisians, they had to buy themselves off
from punishment by the amount of their _wer-gild_—the value set upon
their heads.[183] A slight relaxation of this severity is manifested
in the Carlovingian legislation, by which they were punished with the
loss of a hand—the customary penalty of perjury—unless they could
establish, by undergoing the ordeal, that they had taken the oath in
ignorance of the facts; but even in trifling causes a defeated litigant
could accuse his own conjurator of perjury, when both parties were
sent to the ordeal of the cross, and if the conjurator broke down
he lost a hand.[184] So late as the close of the twelfth century,
we find Celestin III. ordering the employment of conjurators in a
class of cases about the facts of which they could not possibly know
anything, and decreeing that if the event proved them to be in error
they were to be punished for perjury.[185] That such liability was
fully recognized at this period is shown by the argument of Aliprandus
of Milan, a celebrated contemporary legist, who, in maintaining the
position that an ordinary witness committing perjury must always lose
his hand, without the privilege of redeeming it, adds that no witness
can perjure himself unintentionally; but that conjurators may do so
either knowingly or unknowingly, that they are therefore entitled to
the benefit of the doubt, and if not wittingly guilty, that they should
have the privilege of redeeming their hands.[186]
All this seems in the highest degree irrational, yet in criticising the
hardships to which innocent conjurators were thus exposed, it should
be borne in mind that the whole system had become 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 the 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.
Accordingly, we find that it was not always a matter of course for a
man to clear himself in this manner. The ancient codes have frequent
provisions for the fine incurred by those unable to procure the
requisite number of compurgators, showing that it was an occurrence
constantly kept in mind by legislators. Nor was it only landless and
friendless men who were exposed to such failures. In 794, a certain
Bishop Peter was condemned by the Synod of Frankfort to clear himself,
with two or three conjurators, of the suspicion of being involved in a
conspiracy against Charlemagne, and, small as was the number, he was
unable to procure them.[187] So, in the year 1100, when the canons
of Autun, at the Council of Poitiers, accused their bishop, Norgaud,
of simony and other irregular practices, and he proposed to absolve
himself with the compurgatorial oaths of the Archbishop of Tours and
the Bishop of Rédon, the canons went privately to those prelates and
threatened that in such event they would bring an accusation of perjury
and prove it by the ordeal of fire, whereupon the would-be conjurators
wisely abandoned their intention, and Norgaud was suspended.[188] I
have already referred (p. 51) to a case before the Papal Penitentiary
about 1240, in which a priest accused of homicide was put upon his
purgation and failed, whereupon his bishop deprived him of function and
benefice, and he hastened to Rome with a complaint that the bishop had
not been impartial in the selection of compurgators. The most rigid
compliance with the requisitions of the law was exacted. Thus the
statutes of Nieuport, in 1163, provide a heavy penalty, and in addition
pronounce condemnation, when a single one of the conjurators declines
the oath.[189] It goes without saying that failure in compurgation was
equivalent to conviction or confession.[190]
CHAPTER VII.
DECLINE OF COMPURGATION.
In a system of which the fundamental principle was so vicious, the best
efforts of legislation could prove but a slight palliation, and from
an early period we find efforts made for its abrogation or limitation.
In 983, a constitution of Otho II. abolished it in cases of contested
estates, and substituted the wager of battle, on account of the
enormous perjury which it occasioned.[191] In England, a more sweeping
denunciation, declaring its abolition and replacing it with the vulgar
ordeal, is found in the confused and contradictory compilation known as
the laws of Henry I.[192]
We have already seen, from instances of later date, how little
influence these efforts had in eradicating a custom so deeply rooted in
the ancestral prejudices of all the European races. The hold which it
continued to enjoy on the popular confidence is well illustrated by the
oath which, according to the Romancero, was exacted of Alfonso VI. of
Castile, by the Cid to clear him of suspicion of privity to the death
of his brother and predecessor Sancho II. at the siege of Zamora,
where he was slain by Bellido Delfos—
“Que nos fagays juramento
Qual vos lo querrán tomar,
Vos y doce de los vuesos,
Quales vos querays juntar,
Que de la muerte del Rey
Non tenedes que culpar....
Ni tampoco della os plugo,
Ni a ella distes lugar.”[193]
The same reliance on its efficacy is shown in a little ballad by
Audefroi-le-Bâtard, a renowned _trouvère_ of the twelfth century:—
LA BELLE EREMBORS.[194]
“Quand vient en mai, que l’on dit as lons jors,” etc.
In the long bright days of spring-time,
In the month of blooming May,
The Franks from royal council field
All homeward wend their way.
Rinaldo leads them onward,
Past Erembors’ gray tower,
But turns away, nor deigns to look
Up to the maiden’s bower.
Ah, dear Rinaldo!
Full in her turret window
Fair Erembors is sitting,
The love-lorn tales of knights and dames
In many a color knitting.
She sees the Franks pass onward,
Rinaldo at their head,
And fain would clear the slanderous tale
That evil tongues have spread.
Ah, dear Rinaldo!
“Sir knight, I well remember
When you had grieved to see
The castle of old Erembors
Without a smile from me.”
“Your vows are broken, princess,
Your faith is light as air,
Your love another’s, and of mine
You have nor reck nor care.”
Ah, dear Rinaldo!
“Sir knight, my faith unbroken,
On relics I will swear;
A hundred maids and thirty dames
With me the oath shall share.
I’ve never loved another,
From stain my vows are free.
If this content your doubts and fears,
You shall have kisses three.”
Ah, dear Rinaldo!
Rinaldo mounts the staircase,
A goodly knight, I ween,
With shoulders broad and slender waist,
Fair hair and blue eyes keen.
Earth holds no youth more gifted
In every knightly measure;
When Erembors beholds him,
She weeps with very pleasure.
Ah, dear Rinaldo!
Rinaldo in the turret
Upon a couch reposes,
Where deftly limned are mimic wreaths
Of violets and of roses.
Fair Erembors beside him
Sits clasped in loving hold,
And in their eyes and lips they find
The love they vowed of old!
Ah, dear Rinaldo!
In England, although as we have seen (p. 57), the wager of law was the
customary resource of the manorial courts in disputed questions, the
shrewd and intelligent lawyers who were building up and systematizing
the practice of the royal courts were disposed to limit it as much as
possible in criminal cases. Towards the close of the twelfth century,
Glanville compiled his excellent little treatise “De legibus Angliæ,”
the first satisfactory body of legal procedure which the history of
mediæval jurisprudence affords. Complete as this is in all the forms
of prosecution and defence, the allusions to conjurators are so slight
as to show that already they were employed rather on collateral
points than on main questions. Thus a defendant who desired to deny
the serving of a writ could swear to its non-reception with twelve
conjurators;[195] and a party to a suit, who had made an unfortunate
statement or admission in court, could deny it by bringing forward
two to swear with him against the united recollections and records
of the whole court.[196] The custom, however, still maintained its
hold on popular confidence. In 1194, when Richard I. undertook,
after his liberation, to bring about a reconciliation between his
chancellor William, Bishop of Ely, and the Archbishop of York, one of
the conditions was that the chancellor should swear with a hundred
priestly compurgators that he had neither caused nor desired the arrest
of the archbishop.[197] 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,[198] and we shall
see that no formal abrogation of it took place until the nineteenth
century. An outgrowth of the custom, moreover, was the Inquest of
Fame, by which “the general character of the accused, as found by a
jury, was accepted as an indication of the guilt or innocence of the
prisoner.”[199]
Soon after the time of Glanville, the system of compurgation 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. At the same time
the absolute character of the compurgatorial oath was too strong an
incentive to perjury, ignorant or wilful, for conscientious minds to
reconcile themselves to the practice, and efforts commenced to modify
it. About 1130 Innocent II., in prescribing compurgation for the Bishop
of Trent, accused of simony, orders that the oath of the conjurators
shall be simply as to their belief in the bishop’s oath.[200] Gratian
inserted this in his _Decretum_, and a commentator soon afterwards
speaks of it as an opinion held by some authorities.[201] It was
reserved for Innocent III. to give this the full sanction of law as
a general regulation. Compurgation was too valuable a resource for
churchmen to be discarded, and he endeavored to check the abuses
to which it led, by demanding conjurators of good character, whose
intimacy with the accused would give weight to their oaths.[202] 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,
for in decreeing that compurgators should only be obliged to swear to
their belief in the truth of the principal’s oath,[203] 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 influence 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 potent, was also at work. The revival of the
study of the 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.[204] 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.[205] The civil lawyers were not long in recognizing the truth
of this principle, and in proclaiming it far and wide. The Spanish code
of Alfonso the Wise, in the middle of the thirteenth century, asserts
it in almost the same words as the Roman jurisconsult.[206] Not long
before, the Assises de Jerusalem had unequivocally declared that “nul
ne peut faire preuve de non;” and Beaumanoir, in the _Coutumes du
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. The Partidas, promulgated about 1262,
record the convictions of an enlightened ruler as to what should be
law rather than the existing institutions of a people, and were not
accepted as authoritative until the middle of the fourteenth century.
The absence of compurgation in Spain, moreover, was a direct legacy
from the Wisigothic code, transmitted in regular descent through the
Fuero Juzgo.[207] The Assises de Jerusalem is a more precious relic
of mediæval jurisprudence. Constructed as a code for the government
of the Latin kingdoms of the East, in 1099, by order of Godfrey of
Bouillon, it has reached us only in the form assumed about the period
under consideration, and as it presents the combined experience of
the warriors of many Western races, its silence on the subject of
conjurators is not a little significant. The work of Beaumanoir,
written in 1283, is not only the most perfect embodiment of the
French jurisprudence of his time, but is peculiarly interesting as a
landmark in the struggle between the waning power of feudalism and
the Roman theories which gave intensity of purpose to the enlightened
centralization aimed at by St. Louis: and Beaumanoir likewise passes
in silence over the practice of compurgation, as though it were no
longer an existing institution. All these legislators and lawyers had
been preceded by the Emperor Frederic II., who, in 1231, promulgated
his “Constitutiones Sicularum” for the government of his Neapolitan
provinces. Frederic was Latin, and not Teutonic, both by education and
predilection, and his system of jurisprudence is greatly in advance of
all that had preceded it. That conjurators should find no place in his
scheme of legal procedure is, therefore, only what might be expected.
The collection of laws known as the _Êtablissements_ of St. Louis is
by no means a complete code, but it is sufficiently copious to render
the absence of all allusion to compurgation significant. In fact, the
numerous references to the Digest show how strong was the desire to
substitute the Roman for the customary law, and the efforts of the king
to do away with all negative proofs of course included the one under
consideration. The same may be said of the _Livres de Jostice et de
Plet_ and the _Conseil_ of Pierre de Fontaines, two unofficial books
of practice, which represent with tolerable fulness the procedures
in vogue during the latter half of the thirteenth century; while the
_Olim_, or records of the Parlement of Paris, the king’s high court
of justice, show that the same principles were kept in view in the
long struggle by which that body succeeded in extending the royal
jurisdiction at the expense of the independence of the vainly resisting
feudatories. In the _Olim_ from 1254 to 1318, I can find but two
instances in which compurgation was required—one in 1279 at Noyon, and
one in 1284 at Compiègne. As innumerable decisions are given of cases
in which its employment would have been equally appropriate, these two
can only be regarded as exceptional, and the inference is fair that
some local custom rendered it impossible to refuse the privilege on
these special occasions.[208]
All these were the works of men deeply imbued with the spirit of the
resuscitated jurisconsults of Rome. Their labors bear testimony rather
to the influences tending to overthrow the institutions bequeathed by
the Barbarians to the Middle Ages, than to a general acceptance of
the innovations attempted. Their authority was still circumscribed
by the innumerable jurisdictions which yet defied their gradual
encroachments and resolutely maintained ancestral customs. Thus, in
1250, we find in the settlement of a quarrel between Hugues Tirel
Seigneur of Poix in Picardy and the commune of that place, that one
of the articles was to the effect that the mayor with thirty-nine of
the bourgeois should kneel before the dame de Poix and offer to swear
that an insult inflicted on her had not been done, or that if it had,
it had been in honor of the Seigneur de Poix.[209] Even an occasional
instance may be found where the central power itself permitted the
use of compurgation, showing how difficult it was to eradicate the
prejudices transmitted through ages from father to son, and that the
policy adopted by St. Louis and Philippe le Bel, aided by the shrewd
and energetic civil lawyers who assisted them so ably, was not in all
cases adhered to. Thus, in 1283, when the bailli of Amiens was accused
before the Parlement of Paris of having invaded the privileges of the
church by trying three clerks accused of crime, it was decided that
he should swear with six compurgators as to his ignorance that the
criminals were ecclesiastics.[210] So, in 1303, a powerful noble of
the court of Philippe le Bel was accused of a foul and treacherous
murder, which a brother of the victim offered to prove by the wager
of battle. Philippe was endeavoring to abolish the judicial duel, and
the accused desired strongly to escape that ordeal. He was accordingly
condemned to clear himself of the imputed crime by a purgatorial oath
with ninety-nine nobles, and at the same time to satisfy the fraternal
claim of vengeance with an enormous fine[211]—a decision which offers
the best practical commentary on the degree of faith reposed in this
system of purgation. Even the Parlement of Paris in 1353 and a rescript
of Charles le Sage in 1357 allude to compurgation as still in use and
of binding force.[212]
It was in the provinces, however, that the system manifested its
greatest vitality, protected both by the stubborn dislike to
innovation and by the spirit of independence which so long and so
bitterly resisted the centralizing efforts of the crown. The Roman law
concentrated all power in the person of the sovereign, and reduced his
subjects to one common level of implicit obedience. The genius of the
barbaric institutions and of feudalism localized power. The principles
were essentially oppugnant, and the contest between them was prolonged
and confused, for neither party could in all cases recognize the
ultimate result of the minuter points involved, though each was fully
alive to the broad issues of the struggle.
How obstinate was the attachment to bygone forms may be understood
when we see even the comparatively precocious civilization of a city
like Lille preserve the compurgatorial oath as a regular procedure
until the middle of the fourteenth century, even though the progress of
enlightenment had long rendered it a mere formality, without serious
meaning. Until the year 1351, the defendant in a civil suit was obliged
to substantiate the oath of denial with two conjurators of the same
sex, who swore to its truth, to the best of their belief.[213] The
minutest regulations were enforced as to this ceremony, the position
of every finger being determined by law, and though it was the veriest
formality, serving merely as an introduction to the taking of testimony
and the legal examination of the case, yet the slightest error
committed by either party lost him the suit irrecoverably.[214]
Normandy was even more faithful to the letter of the ancient
traditions. The Coutumier in use until the revision of 1583 under Henry
III. retains a remnant of the practice under the name of _desrene_, by
which, in questions of little moment, a man could rebut an accusation
with two or four compurgators, even when it was sustained by witnesses.
The form of procedure was identical with that of old, and the oath,
as we have already seen (page 58), was an unqualified assertion of
the truth of that of the accused.[215] Practically, however, we may
assume that the custom had become obsolete, for the letters patent of
Henry III., ordering the revision in 1577, expressly state that the
provisions of the existing laws “estoient la pluspart hors d’usage et
peu ou point entendu des habitants du pays;” and that compurgation was
one of the forgotten formulas may fairly be inferred from the fact that
Pasquier, writing previous to 1584, speaks of it as altogether a matter
of the past.[216]
The fierce mountaineers of Béarn were comparatively inaccessible to the
innovating spirit of the age, and preserved their feudal independence
amid the progress and reform of the sixteenth century long after it
had become obsolete elsewhere throughout Southern Europe. Accordingly,
we find the practice of compurgation maintained as a regular form of
procedure in the latest revision of their code, made by Henry II.
of Navarre in 1551, which continued in force until the eighteenth
century.[217] The influence of the age is shown, however, even there,
in a modification of the oath, which is no longer an unreserved
confirmation of the principal, but a mere affirmation of belief.[218]
In Castile, a revival of the custom is to be found in the code
compiled by Pedro the Cruel, in 1356, by which, in certain cases,
the defendant was allowed to prove his innocence with the oath of
eleven hidalgos.[219] This, however, is so much in opposition to
the principles of the Partidas, which had but a few years previous
been accepted as the law of the land, and is so contrary to the
spirit of the Ordenamiento de Alcalà, which continued in force until
the fifteenth century, that it can only be regarded as a tentative
resuscitation of mere temporary validity.
* * * * *
The Northern races resisted more obdurately the advances of the
reviving influence of the Roman law. Though we have seen Frederic
II. omitting all notice of compurgation in the code prepared for his
Neapolitan dominions in 1231, he did not attempt to abrogate it among
his German subjects, for it is alluded to in a charter granted to the
city of Regensburg in 1230.[220] The Schwabenspiegel, which during the
thirteenth and fourteenth centuries was the municipal law of Southern
Germany, directs the employment of conjurators in various classes of
actions which do not admit of direct testimony.[221] The code in force
in Northern Germany, as we have already seen, gave great facilities
for rebutting accusations by the single oath of the defendant, and
therefore the use of conjurators is but rarely referred to in the
Sachsenspiegel, though it was not unknown, for either of the parties to
a judicial duel could refuse the combat by procuring six conjurators
to swear with him that he was related to his antagonist.[222] In the
Saxon burgher law, however, the practice is frequently alluded to, and
it would seem from various passages that a man of good character who
could get six others to take with him the oath of denial was not easily
convicted. But where there was satisfactory proof, compurgation was not
allowed, and in homicide cases, if a relative of the slain decided to
proceed by the duel, his claim of vengeance was supreme, and no other
process was admissible.[223] It is evident, however, that compurgation
retained its hold on popular respect when we see, about 1300, the
Emperor Albert I. substituting it for the duel in a considerable class
of criminal cases.[224] In the early part of the sixteenth century,
Maximilian I. did much to diminish the use of the compurgatorial
procedure,[225] but that he failed to eradicate it entirely is
evident from a constitution issued by Charles V. in 1548, wherein its
employment is enjoined in doubtful cases in a manner to show that it
was an existing resource of the law, and that it retained its hold upon
public confidence, although the conjurators were only required to swear
as to their belief in the oath of their principal.[226]
In the Netherlands it likewise maintained its position. Damhouder,
writing in 1554, after describing its employment in the Courts
Christian, adds that by their example it was occasionally used also in
secular tribunals.[227]
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.
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 denegation, 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.[252] In fact, it is easy
to conceive of the difficulty of finding five, or nine, or eleven 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.[253]
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.[254] 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.[255]
In the regular ecclesiastical courts the practice was maintained.
When the Council of Constance, in its futile efforts at reformation,
prepared an elaborate code of discipline, it proposed strenuous
regulations to correct the all-pervading vice of simony. To prevent
the sale of benefices this project of law decreed deprivation of all
preferment as the punishment for such offences, and as transactions
of the kind were commonly accomplished in secret, it ordained that
common report should be sufficient for conviction; yet it nullified
the regulation by permitting the accused to clear himself by canonical
purgation.[256] Towards the close of the fifteenth century, Angelo da
Chiavasco describes it as customary where there is no formal accuser
and yet public rumor requires action, although the judge can also order
it in cases of accusation: if the defendant fails of his purgation
in the latter case he is to be punished as provided for his crime;
if there is only rumor, then the penalty is discretional.[257] The
judge determined the number of conjurators, who were all to be of good
reputation and familiar with the life of the accused; if he were a
monk, they ought if possible to be of the same order; they simply swore
to their belief in his oath of denial.[258] A century later Lancelotti
speaks of compurgation as the only mode of defence then in use in
doubtful cases, where the evidence was insufficient.[259] This applied
not only to cases between churchmen, but also to secular matters
subject to ecclesiastical jurisdiction. Grillandus, writing about 1530,
speaks of six conjurators of the kindred as the customary formula
in proceedings for nullity of marriage, and mentions an instance
personally known to him, wherein this procedure was successfully
adopted by a wife desirous of a divorce from her husband who for three
years had been rendered impotent by witchcraft, in accordance with the
rules laid down in the canon law for such cases.[260] And among certain
orders of monks within the last century, questions arising between
themselves were settled by this mode of trial.[261]
In England, after the Anglican Church had received its final shape
under Cranmer, during the reign of Edward VI., the custom appears in
a carefully compiled body of ecclesiastical law, of which the formal
adoption was only prevented accidentally by the untimely death of the
young king. By this, a man accused of a charge resting on presumptions
and incompletely proved, was required to clear himself with four
compurgators of his own rank, who swore, as provided in the decretals
of Innocent III., to their belief in his innocence.[262]
CHAPTER VIII.
ACCUSATORIAL CONJURATORS.
Though not strictly a portion of our subject, the question is not
without interest as to the power or obligation of the plaintiff or
accuser to fortify his case with conjurators. There is little evidence
of such a custom in primitive times, but one or two allusions to it
in the _Leges Barbarorum_ show that it was occasionally practised.
Some of the earlier texts of the Salic law contain a section providing
that in certain cases the complainant shall sustain his action with
a number of conjurators varying with the amount at stake; a larger
number is required of the defendant in reply; and it is presumable that
the judges weighed the probabilities on either side and rendered a
decision accordingly.[263] As this is omitted in the later revisions of
the law, it probably was not widely practised, or regarded as of much
importance. Among the Baioarians, a claimant of an estate produced six
conjurators who took the oath with him, and whose united efforts could
be rebutted by the defendant with a single competent witness.[264]
These directions are so precise that there can be no doubt that the
custom prevailed to a limited extent among certain tribes, and a clause
in the Decree of Childebert in 597, providing that the oaths of five
or seven impartial men of good character shall convict a thief or
malefactor, would seem evidently to refer to conjurators and not to
witnesses.[265] In the treaty between Childebert and Clotair in 593,
an accuser in case of theft is obliged to give twelve conjurators,
half of them selected by himself, to swear that a theft has really
taken place.[266] That it was, indeed, more generally employed than
the scanty references to it in the codes would indicate, may be
inferred from one of the ecclesiastical forgeries which Charlemagne
was induced to adopt and promulgate. According to this, no accusation
against a bishop could be successful unless supported by seventy-two
witnesses, all of whom were to be men of good repute; forty-four were
required to substantiate a charge against a priest, thirty-seven
in the case of a deacon, and seven when a member of the inferior
grades was implicated.[267] Though styled witnesses in the text,
the number required is so large that they evidently could have been
only conjurators, with whom the complainant supported his oath of
accusation, and the fabrication of such a law would seem to show that
the practice of employing such means of substantiating a charge was
familiar to the minds of men.
Among the heathen Northmen, as we have seen, every pleader, whether
plaintiff or defendant, was obliged to take a preliminary oath on the
sacred _stalla hringr_, or altar ring, duly bathed in the blood of an
ox sacrificed for the purpose. This custom was preserved in England,
where the Anglo-Saxon laws required, except in trivial cases, a
“fore-oath” from the accuser (_forath, antejuramentum, præjuramentum_),
and William the Conqueror, in his compilation of the laws of Edward the
Confessor, shows that this was sometimes strengthened by requiring the
addition of conjurators, who were in no sense witnesses, since their
oath had reference, not to the facts of the case, but solely to the
purity of intention on the part of the accuser.[268] Indications of the
same procedure are to be found in the collection known as the laws of
Henry I.[269] Probably to the development of this may be attributed the
peculiar device of the _secta_ already referred to (p. 84), consisting
of those who supported the plaintiff by their oaths while in no sense
absolute witnesses. They were not even examined unless the defendant
demanded it. The bringing of the _secta_ or suit remained a matter
of form long after the actual production of the witnesses had become
obsolete in the fourteenth century, and it was not finally abolished
until 1852.[270]
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.
* * * * *
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 duelling which has obtained with more or less
regularity among all races and at all ages. When the Horatii met the
Curiatii, or when Antony challenged Octavius to decide the empire of
the world with their two swords, or when Edward III. in 1340 proposed
to Philippe de Valois to settle their rival claims to the heritage of
France army to army, a hundred to a hundred, or body to body,[286] or
when the ancient Hindus were in the habit of averting the carnage of
battles in the same manner[287]—these were simply expedients 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,
has 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 barbarian tribes, and from the
cognate right of private warfare which was the exclusive privilege of
the gentry during the feudal period.[288] The established euphuistic
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 form, 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.
It is easy to multiply examples illustrating this. John van Arckel, a
knight of Holland, followed Godfrey of Bouillon to the first crusade.
When some German forces joined the army, a Tyrolese noble, seeing
van Arckel’s arms displayed before his tent, and recognizing them
as identical with his own, ordered them torn down. The insult was
flagrant, but the injured knight sought no immediate satisfaction
for his honor. He laid the case before the chiefs of the crusade as
a judicial matter; an examination was made, and both parties proved
their ancestral right to the same bearings. To decide the conflicting
and incompatible pretensions, the judges ordered the judicial combat,
in which van Arckel deprived his antagonist of life and quarterings
together, and vindicated his claim to the argent 2 bars gules, which
in gratitude to Heaven he bore for eight long years in Palestine. This
was not a quarrel on a punctilio, nor a mode of obtaining redress for
an insult, but an examination into a legal question which admitted of
no other solution according to the manners of the age.[289] When, after
the Sicilian Vespers, the wily Charles of Anjou was sorely pressed by
his victorious rival Pedro III. of Aragon, and desired to gain time
in order to repress a threatened insurrection among his peninsular
subjects, he sent a herald to Don Pedro to accuse him of bad faith in
having commenced the war without defiance. The fiery Catalan fell into
the snare, and in order to clear himself of the charge, which was not
ill-founded, he offered to meet his accuser in combat and determine
their rights to the Sicilian throne. The terms were laboriously settled
by six representatives of each king and were signed by the principals
December 26, 1282; they were to meet, with a hundred knights on each
side, June 1, 1283, in the neutral territory of Bordeaux and fight it
out in the presence of Edward I. of England or of his deputy, and each
swore that if he failed to be present he would forever hold himself as
false and perjured and deprived of the royal station and dignity. When
Charles applied to his cousin Edward to grant the _champ-clos_ the
latter emphatically replied that for the crowns of the Two Sicilies
he would not be judge in such a combat; Martin II. chimed in with a
bull forbidding him to serve, and the combat never took place, Charles
of Anjou having obtained his purpose in the intervening suspension of
arms.[290] Nothing more picturesquely romantic is to be found in the
annals of chivalry than Muntaner’s relation of Don Pedro’s secret ride
to Bordeaux and his appearance on the day appointed in the lists where
Edward’s seneschal was unable to guarantee him a fair field.[291] So
the challenge which Richard II., in 1383, sent to Charles VI. wore
the aspect of the judicial duel to decide their claims to the realms
of France under the judgment of God.[292] Though practically these
challenges may differ little from that of Antony, still their form and
purport were those of the judicial duel in civil or criminal cases.
So, when Charles V. offered to maintain in single combat the charge
that Francis I. had villainously forfeited his faith in disregarding
the treaty of Madrid, and Francis hotly replied with a demand for
a secure field in which to defend his honor, the challenge and its
acceptance wore the form of the judicial duel to decide the question
of guilt; although Charles in appointing the Bidasoa as the place of
meeting gave as his reasons the avoidance of bloodshed and the ending
of the war as well as the maintenance of his just cause.[293] The
celebrated duel, fought in 1547, between Jarnac and La Chastaigneraye,
so piteously deplored by honest old Brantôme, shows the distinction
maintained to the last. It was conducted with all judicial ceremonies,
in presence of Henry II., not to settle a point of honor, but to
justify Jarnac from a disgusting accusation brought by his adversary.
Resulting most unexpectedly in the death of La Chastaigneraye, who was
a favorite of the king, the monarch was induced to put an end to all
legalized combats, though the illegal practice of the private duel
not only continued to flourish, but increased beyond all precedent
during the succeeding half century—Henry IV. having granted in
twenty-two years no less than seven thousand letters of pardon for
duels fought in contravention of the royal edicts. Such a mode of
obtaining “satisfaction” is so repugnant to the spirit of our age that
it is perhaps not to be wondered at if its advocates should endeavor
to affiliate it upon the ancient wager of battle. Both relics of
barbarism, it is true, are developments from the same primitive habits
and customs, yet they are essentially distinct and have coexisted as
separate institutions; and, however much occasionally intermingled by
the passions of periods of violence, they were practised for different
ends, and were conducted with different forms of procedure. We have
only to deal with the combat as a strictly judicial process, and
shall, therefore, leave untouched the vast harvest of curious anecdote
afforded by the monomachial propensities of modern times.
CHAPTER II.
ORIGIN OF THE JUDICIAL DUEL.
The mediæval panegyrists of the wager of battle sought to strengthen
its title to respect by affirming that it was as old as the human race,
and that Cain and Abel, unable to settle their conflicting claims in
any other mode, agreed to leave the decision to the chances of the
duel; while the combat between David and Goliath was considered by
the early schoolmen as an unanswerable proof of the favor with which
God regarded such encounters. Leaving such speculations aside, it is
enough for us to know that all the tribes which settled in Europe
practised the combat with so general a unanimity that its origin must
be sought at a period anterior to their separation from the common
stock, although it has left no definite traces in the written records
which have reached us of the Asiatic Aryans.[294]
That some vague notions of Divine justice making itself manifest
through the sword must have existed in prehistoric Hellenic times
is apparent from Homer’s elaborate description of the duel between
Menelaus and Paris. This has all the characteristics of a judicial
combat to decide the guilt or innocence of the claimants for the
possession of the fair Helen. A preliminary sacrifice is offered to
Zeus; Hector and Ulysses measure out the ground; lots are cast to
decide which of the antagonists shall have the first throw of the
spear; and the assembled armies put up a prayer to Zeus, entreating him
to send to Hades the guilty one of the two combatants.[295] This is not
merely a device to put an end to the slaughter of brave warriors—it is
an appeal to Heaven to elicit justice by means of arms.
The Italiote branch of the Aryans affords us a more definite
illustration of the same belief in the custom of the Umbrians, who
settled quarrels by single combat, and deemed that he who slew his
adversary thus proved that his cause was just.[296]
Although Cæsar makes no mention of such a custom in Gaul, it evidently
prevailed among the Celtic tribes. Livy describes how some Spaniards
seized the opportunity of a show of gladiators, given by Scipio, to
settle various civil suits by combat, and he proceeds to particularize
a case in which two rival cousins decided in this manner a disputed
question in the law of descent, despite the earnest remonstrances of
the Roman commander.[297] Among the Irish Celts, at their appearance
in history, we find the judicial duel established with fixed
regulations. In the Senchus Mor, a code claiming to be compiled under
the supervision of St. Patrick, the delay of five days in a distress
is explained by the history of a combat between two long previous in
Magh-inis. “When they had all things ready for plying their arms,
except a witness alone, they met a woman at the place of combat, and
she requested of them a delay, saying, ‘If it were my husband that
were there I would compel you to delay.’ ‘I would delay,’ said one
of them, ‘but it would be prejudicial to the man who sues me; it is
his cause that would be delayed.’ ‘I will delay,’ said the other. The
combat was then put off, but they did not know till when it was put
off, until Conchubhur and Sencha passed judgment respecting it; and
Sencha asked, ‘What is the name of this woman?’ ‘Cuicthi,’ (five) said
she, ‘is my name.’ ‘Let the combat be delayed,’ said Sencha, ‘in the
name of this woman for five days.’”[298] The combative ardor of the
Feini, indeed, was so strong, and the appeal to the wager of battle
so general, that on their conversion to Christianity they found it
difficult to understand that the holy ministers of Christ should be
restricted from vindicating their rights by arms, and St. Patrick, in
a synod held in 456, was obliged to threaten his clergy with expulsion
from the church if they endeavored to escape by appeal to the sword
from settling obligations which they had incurred by giving security
for heathens.[299]
This prevalence of the wager of battle among the Irish Celts renders
probable its existence likewise among the early inhabitants of Britain.
If so, the long domination of the Romans was doubtless sufficient to
extinguish all traces of it. The Welsh laws attributed to Hoel Dda in
the early part of the tenth century, which are exceedingly minute and
precise in their directions as to all forms of legal procedure, make no
allusion to it whatever. It is true that an ancient collection of laws
asserts that the code of Dyvnwal-moel-mud, a British king, prescribed
the ordeals of battle, of hot iron, and of boiling water, and that
Hoel in his legislation considered them unjust, abrogated them, and
substituted the proof by men, or _raith_.[300] This legend, however,
is very apocryphal. There is no allusion to such customs in the Welsh
codes up to the close of the twelfth century, and the few indications
which occur in subsequent collections would seem to indicate that these
were rather innovations due to the influence of the English conquest
than revivals of ancient institutions.
Among the Slavs, as they emerge into history, the duel occupies a
controlling position in the administration of justice. Ibn Dost, an
Arab traveller in Russia in the tenth century, relates that a pleader
dissatisfied with the judgment of the king could always appeal to the
sword, and this decision was regarded as so absolute that the defeated
party, his family and possessions were all at the disposition of the
victor. In Bohemia at a later period the successful combatant was
required to decapitate his antagonist.[301] The earliest records of
the various other Slavic lands give evidence of the prevalence of the
judicial combat, showing that it formed part of their ancestral customs
prior to their occupation of their present territories.[302]
Among the Norræna branch of the Teutons the wager of battle can be
traced back to the realm of legend and tradition. Saxo Grammaticus
informs us that about the Christian era Frotho III., or the
Great, of Denmark, ordered the employment of the duel to settle
all controversies, preferring that his warriors should accustom
themselves to rely, not on eloquence, but on courage and skill;[303]
and however doubtful the chronology may be, the tradition shows that
the origin of the custom was lost in the depths of antiquity. Among
the heathen Norsemen, indeed, the _holm-gang_, or single combat, was
so universal an arbiter that it was recognized as conferring a right
where none pre-existed. Any athlete, who confided in his strength
and dexterity with his weapons, could acquire property by simply
challenging its owner to surrender his land or fight for it. When
Iceland, for instance, was in process of settlement, Kraku Hreidar
sailed thither, and on sighting land invoked Thor to assign to him
a tract of ground which he would forthwith acquire by duel. He was
shipwrecked on reaching the shore, and was hospitably received by
a compatriot named Havard, with whom he passed the winter. In the
spring he declared his purpose of challenging Sæmund Sudureyska for a
sufficient holding, but Havard dissuaded him, arguing that this mode of
acquiring property rarely prospered in the end, and Eirek of Goddolom
succeeded in quieting him by giving him land enough. Others of these
hardy sea-rovers were not so amenable to reason as Kraku. When Hallkell
came to Iceland and passed the winter with his brother Ketelbiorn, the
latter offered him land on which to settle, but Hallkell disdained so
peaceful a proposition, and preferred to summon a neighbor named Grim
to surrender his property or meet him in the _holm-gang_. Grim accepted
the defiance, was slain, and Hallkell was duly installed as his heir.
A variation of the custom is illustrated by the case of Hrolleif,
who after some years’ settlement grew dissatisfied with his holding,
and challenged his neighbor Eyvind to an exchange of properties or a
combat, alternatives of which the peace-loving Eyvind accepted the
former.[304] The Saga of Egil Skallagrimsson speaks of a noted duellist
known as Ljot the Pale, who had come to the district a landless
stranger, and had grown wealthy by thus challenging proprietors and
taking their lands, but who met his fate at the hands of Egil, who,
while travelling, came to the place where Ljot was about to engage in a
holm-gang with a weaker antagonist. Egil volunteered to take his place,
and promptly slew Ljot. The holm-gang was so named because the battle
was usually fought on a small island or holm; and that it was regarded
as an appeal to the gods is manifested by the custom of the victor
sacrificing an ox as soon as he left the spot.[305]
It is true that Tacitus makes no allusion to such a custom among the
Germans of his time, a passage which is frequently quoted to that
effect being in reality only a description of a mode of divination
in which, at the beginning of a war, one of the enemy was captured
and made to fight with a chosen champion, the result of the combat
being taken to foreshadow the event of the contest.[306] The object of
Tacitus, however, was not to excite the curiosity of his countrymen,
but rather to contrast their vices with the uncivilized virtues of
the Germans, and his silence on this point is not a negative evidence
of weight in comparison with the positive proofs which exist with
regard to kindred tribes. Be this as it may, as soon as we obtain an
insight into their customs from written laws, we find the wager of
battle everywhere recognized. The earliest of these is the code of the
Burgundians, collected by King Gundobald towards the close of the fifth
century, and in this the duel occupies a place so conspicuous that it
obtained in time the name of Lex Gundebalda or Loy Gombette, giving
rise to a belief that it was of Burgundian origin.
In the ordinary texts of the Salic law no mention is made of it, but in
one manuscript it is alluded to as a regular form of procedure.[307]
This silence, however, does not justify the conclusion that the battle
ordeal was not practised among the Franks. Enough instances of it are
to be found in their early history to show that it was by no means
uncommon;[308] and, at a later period, the same absence of reference
to it is observable in the Lex Emendata of Charlemagne, though the
capitularies of that monarch frequently allude to it as a legal process
in general use. The off-shoots of the Salic law, the Ripuarian,
Allemannic, and Bavarian codes—which were compiled by Thierry, the
son of Clovis, revised successively by Childebert and Clotair II.,
and put into final shape by Dagobert I. about the year 630—in their
frequent reference to the “campus,” show how thoroughly it pervaded
the entire system of Germanic jurisprudence. The Lombards were, if
possible, even more addicted to its use. Their earliest laws, compiled
by King Rotharis in 643, seventy-six years after their occupation of
Italy, make constant allusion to it, and their readiness to refer to
its decision the most conspicuous cases is shown in the story of Queen
Gundeberga, the wife of Ariovaldus, who was the immediate predecessor
of Rotharis. Adalulf, a disappointed lover, brought against her a
charge of conspiracy which induced Ariovaldus to cast her in prison,
where she lay for three years, until Clotair the Great, to whom she
was of kindred, sent an embassy to obtain her release. Diplomacy was
of no avail, and all that the Frankish envoys could accomplish was to
secure for her a trial by single combat, in which a champion named
Pitto overcame Adalulf the accuser, and Gundeberga was restored to the
throne with her innocence recognized.[309] Indeed, the tenacious hold
which it maintained on the veneration of the Lombards is seen in the
fruitless efforts to restrict its employment and to abrogate it by
Rotharis and his successors under the civilizing influence of contact
with Roman institutions. Thus Rotharis forbids its use in some cases
of importance, substituting conjurators, with a marked expression of
disbelief, which shows how little confidence was felt in its results by
enlightened men.[310] The next lawgiver, King Grimoald, decreed that
thirty years’ possession of either land or liberty relieved a defendant
from maintaining his title by battle, the privilege of employing
conjurators being then conceded to him.[311] In the succeeding
century, King Liutprand sought to abolish it entirely, but finding
the prejudices of his people too strong to be overcome, he placed on
record in the statute-book a declaration of his contempt for it and
a statement of his efforts to do away with it, while he was obliged
to content himself with limiting the extent of its application, and
diminishing the penalties incurred by the defeated party.[312]
While the laws of the Angles, the Saxons, and the Frisians bear ample
testimony to the general use of the wager of battle,[313] it is not a
little singular that the duel appears to have been unknown among the
Anglo-Saxons. Employed so extensively as legal evidence throughout
their ancestral regions, by the kindred tribes from which they sprang,
and by the Danes and Norwegians who became incorporated with them;
harmonizing, moreover, with their general habits and principles of
action, it would seem impossible that they should not likewise have
practised it. I can offer no explanation of the anomaly, and can only
state the bare fact that the judicial combat is not referred to in any
of the Anglo-Saxon or Anglo-Danish codes.[314] There seems, indeed, to
be no reason to doubt that its introduction into English jurisprudence
dates only from the time of William the Conqueror.[315]
The Goths, while yet untainted by the influence of Rome, were no less
given to the employment of the judicial duel than their Teutonic
kindred, and Theodoric vainly endeavored to suppress the custom among
those of his subjects who had remained in Pannonia.[316] That no
trace of it is to be found among the extant laws of both Ostrogoths
and Wisigoths, framed subsequently to their settlement in Italy,
France, and Spain, is easily explained. The effect upon the invaders
of the decaying but still majestic civilization of Rome, the Byzantine
education of Theodoric, the leader of the Ostrogoths, and his settled
policy of conciliating the Italians by maintaining as far as possible
the existing state of society, preclude any surprise that no allusion
to the practice should occur in the short but sensible code known as
the “Edict of Theodoric,” which shows how earnestly that enlightened
conqueror endeavored to fuse the invaders and the vanquished into one
body politic.[317] With regard to the Wisigoths, we must remember that
early conversion to Christianity and long intercourse with civilization
had already worn off much of the primitive ferocity of a race which
could produce in the fourth century such a man as Ulphilas. They were
the earliest of the invaders who succeeded in forming a permanent
occupation of the conquered territories; and settling, as they did,
in Narbonensian Gaul and Spain while the moral influence of Rome was
yet all powerful, the imperial institutions exercised a much greater
effect upon them than on the subsequent bands of Northern barbarians.
Accordingly, we find their codes based almost entirely upon the Roman
jurisprudence, with such modifications as were essential to adapt it to
a ruder state of society. Their nicely balanced provisions and careful
distinctions offer a striking contrast to the shapeless legislation of
the races that followed, and neither the judicial combat nor canonical
compurgation found a place in them. Even the vulgar ordeal would appear
to have been unknown until a period long subsequent to the conquest
of Aquitaine by Clovis, and but little anterior to the overthrow of
the Gothic kingdom of Spain by the Saracens. But even as in Italy the
Lombard domination destroyed the results of Theodoric’s labors, so in
France the introduction of the Frankish element revived the barbarian
instincts, and in the celebrated combat before Louis le Débonnaire,
between Counts Bera and Sanila, who were both Goths, we find the
“pugna duorum” claimed as an ancient privilege of the race, with the
distinction of its being equestrian, in accordance with Gothic usages,
and so thoroughly was the guilt of Bera considered to be proved by
his defeat, that his name became adopted in the Catalan dialect as a
synonym of traitor.[318]
CHAPTER III.
UNIVERSAL USE OF THE JUDICIAL COMBAT.
The wager of battle thus formed part of the ancestral institutions of
all the races who founded the nations of Europe. With their conversion
to Christianity the appeal was transferred from the heathen deities
to God, who was expected to intervene and decide the battle in favor
of the right.[319] It was an appeal to the highest court and popular
confidence in the arbitrament of the sword was rather strengthened than
diminished. Enlightened lawgivers not only shared, to a greater or
less extent, in this confidence, but were also disposed to regard the
duel with favor as the most practical remedy for the crime of false
swearing which was everywhere prevalent. Thus Gundobald assumes that
its introduction into the Burgundian code arose from this cause;[320]
Charlemagne urged its use as greatly preferable to the shameless oaths
which were taken with so much facility;[321] while Otho II., in 983,
ordered its employment in various forms of procedure for the same
reason.[322] It can hardly be a source of surprise, in view of the
warlike manners of the times, and of the enormous evils for which a
palliative was sought, that there was felt to be advantage in this
mode of impressing upon principals and witnesses the awful sanctity of
the oath, thus entailing upon them the liability of supporting their
asseverations by undergoing the risks of a combat rendered doubly
solemn by imposing religious ceremonies.
Various causes were at work to extend the application of the judicial
duel to all classes of cases. In the primitive codes of the barbarians,
there is no distinction made between civil and criminal law. Bodily
punishment being almost unknown, except for slaves, and nearly all
infractions of the law being visited with fines, there was no necessity
for such niceties, the matter at stake in all cases being simply
money or money’s worth. Accordingly, we find the wager of battle used
indiscriminately, both as a defence against accusations of crime, and
as a mode of settling cases of disputed property, real and personal.
Yet some of the earlier codes refer to it but seldom. The Salic law,
as we have seen, hardly recognizes its existence; the Ripuarian code
alludes to it but four times, and that of the Alamanni but six times.
In others, like the Baioarian, it is appealed to on almost every
occasion, and among the Burgundians we may assume, from a remark of St.
Agobard, that it superseded all evidence and rendered superfluous any
attempt to bring forward witnesses.[323] This variation is probably
rather apparent than real, and if in any of these bodies of laws there
were originally substantial limitations on its use, in time they
disappeared, for it was not difficult to find expedients to justify
the extension of a custom which accorded so perfectly with the temper
of the age. How little reason was requisite to satisfy the belligerent
aspirations of justice is shown by a curious provision in the code
of one of the Frisian tribes, by which a man unable to disprove an
accusation of homicide was allowed to charge the crime on whomsoever
he might select, and then the question between them was decided by
combat.[324]
The elasticity, in fact, with which the duel lent itself to the
advantage of the turbulent and unscrupulous had no little influence in
extending its sphere of action. This feature in its history is well
exemplified in a document containing the proceedings of an assembly of
local magnates, held in the year 888, to decide a contention concerning
the patronage of the church of Lessingon. After the testimony on one
side had been given, the opposite party commenced in reply, when the
leaders of the assembly, seizing their swords, vowed that they would
affirm the truth of the first pleader’s evidence with their blood
before King Arnoul and his court—and the case was decided without more
ado.[325] The strong and the bold are apt to be the ruling spirits in
all ages, and were emphatically so in those periods of scarcely curbed
violence when the jurisprudence of the European commonwealths was
slowly developing itself.
It is no wonder, therefore, that means were readily found for extending
the jurisdiction of the wager of battle as widely as possible. One of
the most fruitful of these expedients was the custom of challenging
witnesses. The duel was a method of determining questions of perjury,
and there was nothing to prevent a suitor, who saw his case going
adversely, from accusing an inconvenient witness of false swearing
and demanding the “campus” to prove it—a proceeding which adjourned
the main case, and likewise decided its result. This summary process,
of course, brought every action within the jurisdiction of force,
and deprived the judges of all authority to control the abuse. That
it obtained at a very early period is shown by a form of procedure
occurring in the Bavarian law, already referred to, by which the
claimant of an estate is directed to fight, not the defendant, but his
witness;[326] and in 819 a capitulary of Louis le Débonnaire gives
a formal privilege to the accused on a criminal charge to select
one of the witnesses against him with whom to decide the question
in battle.[327] It is easy, therefore, to understand the custom,
prescribed in some of the codes, by which witnesses were required to
come into court armed, and to have their weapons blessed on the altar
before giving their testimony. If defeated they were fined, and were
obliged to make good to the opposite party any damage which their
testimony, had it been successful, would have caused him.[328]
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.[329] Even in the fourteenth century, the municipal
law of Reims, 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 ground of physical infirmity or advanced
age.[330] A still more bizarre extension of the practice, and one which
was most ingeniously adapted to defeat the ends of justice, is found
in a provision of the English law of the thirteenth century, allowing
a man to challenge his own witnesses. Thus in many classes of crimes,
such as theft, forgery, coining, etc., the accused could summon a
“warrantor” from whom he professed to have received the articles which
formed the basis of the accusation. The warrantor could scarcely give
evidence in favor of the accused without assuming the responsibility
himself. If he refused, the accused was at liberty to challenge him; if
he gave the required evidence, he was liable to a challenge from the
accuser.[331] The warrantor was sometimes also employed as a champion,
and served for hire, but this service was illegal and when detected
involved the penalties of perjury.[332] Another mode extensively used
in France about the same time was to accuse the principal witness of
some crime rendering him incapable of giving testimony, when he was
obliged to dispose of the charge by fighting, either personally or by
champion, in order to get his evidence admitted.[333]
It is not easy to imagine any cases which might not thus be brought to
the decision of the duel; and the evidence of its universality is found
in the restriction which prevented the appearance as witnesses of those
who could not be compelled to accept the combat. Thus the testimony of
women and ecclesiastics was not receivable in lay courts in suits where
appeal of battle might arise;[334] and when in the twelfth century
special privileges were granted by the kings of France empowering serfs
to bear testimony in court, the disability which prevented a serf from
fighting with a freeman was declared annulled in such cases, as the
evidence was only admissible when the witness was capable of supporting
it by arms.[335]
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;[336] 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.”[337] 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 denier.[338]
* * * * *
If the position of a witness was thus rendered unenviable, that of the
judge was little better. As though the duel had not received sufficient
extension by the facilities for its employment just described, another
mode of appealing to the sword in all cases was invented by which it
became competent for the defeated party in any suit to challenge the
court itself, and thus obtain a forcible reversal of judgment. It
must be borne in mind that this was not quite as absurd a practice as
it may seem to us in modern times, for under the feudal system the
dispensing of justice was one of the most highly prized attributes
of sovereignty; and, except in England, where the royal judges were
frequently ecclesiastics, the seignorial courts were presided over
by warriors. In Germany, indeed, where the magistrates of the lower
tribunals were elective, they were required to be active and vigorous
of body.[339] Towards the end of the twelfth century in England we
find Glanville acknowledging his uncertainty as to whether or not the
court could depute the settlement of such an appeal to a champion,
and also as to what, in case of defeat, was the legal position of
the court thus convicted of injustice.[340] These doubts would seem
to indicate that the custom was still of recent introduction in
England, and not as yet practised to an extent sufficient to afford a
settled basis of precedents for its details. Elsewhere, however, it
was firmly established. In 1195, the customs of St. Quentin allow to
the disappointed pleader unlimited recourse against his judge.[341]
Towards the latter half of the thirteenth century, we find in the
_Conseil_ of Pierre de Fontaines the custom in its fullest vigor and
just on the eve of its decline. No restriction appears to be imposed
as to the cases in which appeal by battle was permitted, except that
it was not allowed to override the customary law.[342] The suitor
selected any one of three judges agreeing in the verdict; he could
appeal at any stage of the proceedings when a point was decided against
him; if unsuccessful, he was only liable in a pecuniary penalty to
the judges for the wrong done them, and the judge, if vanquished, was
exposed to no bodily punishment.[343] The villein, however, was not
entitled to the privilege, except by special charter.[344] While the
feudal system was supreme, this appeal to arms was the only mode of
reversing a judgment, and an appeal in any other form was an innovation
introduced by the extension of the royal jurisdiction under St. Louis,
who labored so strenuously and so effectually to modify the barbarism
of feudal institutions by subordinating them to the principles of the
Roman jurisprudence. De Fontaines, indeed, states that he himself
conducted the first case ever known in Vermandois of an appeal without
battle.[345] At the same time the progress of more rational ideas
is manifested by his admission that the combat was not necessary to
reverse a judgment manifestly repugnant to the law, and that, on the
other hand, the law was not to be set aside by the duel.
Twenty years later, we find in Beaumanoir abundant evidence of the
success of St. Louis in setting bounds to the abuses which he was
endeavoring to remove. The restrictions which he enumerates are greatly
more efficacious than those alluded to by de Fontaines. In capital
cases, the appeal did not lie; while in civil actions, the suzerain
before whom the appeal was made could refuse it when the justice of
the verdict was self-evident. Some caution, moreover, was requisite in
conducting such cases, for the disappointed pleader who did not manage
matters rightly might find himself pledged to a combat, single handed,
with all his judges at once; and as the bench consisted of a collection
of the neighboring gentry, the result might be the confirmation of the
sentence in a manner more emphatic than agreeable. An important change
is likewise observable in the severe penalty imposed upon a judge
vanquished in such an appeal, being a heavy fine and deprivation of
his functions in civil cases, while in criminal ones it was death and
confiscation—“il pert le cors et quanques il a.”[346]
The king’s court, however, was an exception to the general rule. No
appeals could be taken from its judgments, for there was no tribunal
before which they could be carried.[347] The judges of the royal court
were therefore safe from the necessity of vindicating their decisions
in the field, and they even carried this immunity with them and
communicated it to those with whom they might be acting. De Fontaines
accordingly advises the seigneur justicier who anticipates the appeal
of battle in his court to obtain a royal judge to sit with him, and
mentions an instance in which Philip (probably Philip Augustus) sent
his whole council to sit in the court of the Abbey of Corbie, when an
appeal was to be entered.[348]
By the German law of the same period, the privilege of reversing a
sentence by the sword existed, but accompanied with regulations which
seem evidently designed to embarrass, by enormous trouble and expense,
the gratification of the impulse which disappointed suitors would have
to establish their claims in such manner. Thus, by the Suabian law, it
could only be done in the presence of the sovereign himself, and not
in that of the immediate feudal superior;[349] while the Saxon code
requires the extraordinary expedient of a pitched battle, with seven
on each side, in the king’s presence.[350] It is not a little singular
that the feudal law of the same period has no allusion to the custom,
all appeals being regularly carried to and heard in the court of the
suzerain.[351]
CHAPTER IV.
CONFIDENCE REPOSED IN THE JUDICIAL DUEL.
Thus carefully moulded in conformity with the popular prejudices or
convictions of every age and country, it may readily be imagined
how large a part the judicial combat played in the affairs of daily
life. It was so skilfully interwoven throughout the whole system of
jurisprudence that no one could feel secure that he might not, at any
moment, as plaintiff, defendant, or witness, be called upon to protect
his estate or his life either by his own right hand or by the club
of some professional and possibly treacherous bravo. This organized
violence assumed for itself the sanction of a religion of love and
peace, and human intelligence seemed too much blunted to recognize the
contradiction.
There was, in fact, no question which might not be submitted to the
arbitrament of the sword or club. If Charlemagne, in dividing his vast
empire, forbade the employment of the wager of battle in settling the
territorial questions which might arise between his heirs,[352] the
prohibition merely shows that it was habitually used in affairs of the
highest moment, and the constant reference to it in his laws proves
that it was in no way repugnant to his general sense of justice and
propriety.
The next century affords ample evidence of the growing favor in which
the judicial combat was held. About the year 930, Hugh, King of
Provence and Italy, becoming jealous of his uterine brother, Lambert,
Duke of Tuscany, asserted him to be a supposititious child, and ordered
him in future to claim no relationship between them. Lambert, being
“vir ... bellicosus et ad quodlibet facinus audax,” contemptuously
denied the aspersion on his birth, and offered to clear all doubts on
the subject by the wager of battle. Hugh accordingly selected a warrior
named Teudinus as his champion; Lambert was victor in the ensuing
combat, and was universally received as the undoubted son of his
mother. His triumph, however, was illegally brought to a sudden close,
for Hugh soon after succeeded in making him prisoner and deprived him
of eyesight.[353] Still, the practice continued to be denounced by some
enlightened ecclesiastics, represented by Atto, Bishop of Vercelli,
who declared it to be totally inapplicable to churchmen and not to be
approved for laymen on account of the uncertainty of its results;[354]
but representations of this kind were useless. About the middle of
the century, Otho the Great appears, throwing the enormous weight of
his influence in its favor. As a magnanimous and warlike prince, the
wager of battle appears to have possessed peculiar attraction for
his chivalrous instincts, and he extended its application as far as
lay in his power. Not only did he force his daughter Liutgarda, in
defending herself from a villanous accusation, to forego the safer
modes of purgation, and to submit herself to the perilous decision of a
combat,[355] but he also caused the abstract question of representation
in the succession of estates to be settled in the same manner; and to
this day in Germany the division of a patrimony among children and
grandchildren is regulated in accordance with the law enacted by the
doughty arms of the champions who fought together nine hundred years
ago at Steil.[356] There was no question, indeed, which according to
Otho could not be satisfactorily settled in this manner. Thus when, in
963, he was indulging in the bitter recriminations with Pope John XII.
which preceded the subjugation of the papacy under the Saxon emperors,
he had occasion to send Bishop Liutprand to Rome to repel certain
accusations brought against him, and he ordered the armed followers of
his ambassador to sustain his assertions by the duel; a proposition
promptly declined by the pontiff, skilled though he was in the use
of weapons.[357] A duellist, in fact, seems to have been reckoned a
necessary adjunct to diplomacy, for when, in 968, the same Liutprand
was dispatched by Otho to Constantinople on a matrimonial mission,
and during the negotiations for the hand of Theophania a discussion
arose as to the circumstances which had led to Otho’s conquest of
Italy, the warlike prelate offered to prove his veracity by the sword
of one of his attendants: a proposition which put a triumphant end to
the argument.[358] A more formal assertion of the diplomatic value of
the duel was made when in 1177 the conflicting claims of the kings
of Castile and Navarre were referred to Henry II. of England for
adjudication, and both embassies to the English court were supplied
with champions as well as with lawyers, so as to be prepared in case
the matter was submitted to the duel for decision.[359]
Nor were these solitary instances of the reference of the mightiest
state questions to the chances of the single combat. Allusion has
already been made to the challenge which passed between Charles of
Anjou and Pedro of Aragon, and not dissimilar was that which resulted
from the interview at Ipsch in 1053 between the Emperor Henry III. of
Germany and Henry I. of France.[360] A hundred years earlier, in 948,
when, at the Synod of Ingelheim, Louis d’Outremer invoked the aid of
the Church in his death-struggle with the rising race of Capet, he
closed the recital of the wrongs endured at the hands of Hugh le grand
by offering to prove the justice of his complaints in single combat
with the aggressor.[361] When the battle ordeal was thus thoroughly
incorporated in the manners of the age, we need scarcely be surprised
that, in a life of St. Matilda, written by command of her son Otho the
Great, the author, after describing the desperate struggles of the
Saxons against Charlemagne, should gravely inform us that the war was
at last concluded by a duel between the Christian hero and his great
antagonist Witikind, religion and empire being both staked on the issue
as a prize of the victor; nor does the pious chronicler shudder at the
thought that the destiny of Christianity was intrusted to the sword
of the Frank.[362] His story could not seem improbable to those who
witnessed in 1034 the efforts of Conrad the Salic to pacify the Saxon
marches. On his inquiring into the causes of the mutual devastations
of the neighboring races, the Saxons, who were really the aggressors,
offered to prove by the duel that the Pagan Luitzes were in fault,
trusting that their Christianity would overbalance the injustice of
their cause. The defeat of their champion by his heathen adversary was,
however, a memorable example of the impartial justice of God, and was
received as a strong confirmation of the value of the battle trial.[363]
The second Otho was fully imbued with his father’s views, and so
completely did he carry them out, that in a gloss on the Lombard law
he is actually credited with the introduction of the duel.[364] In
the preceding essay, allusion has been made to his substitution of
the judicial combat for the compurgatorial oath in 983, and about the
same period he made an exception, in favor of the battle ordeal, to
the immemorial policy of the barbarians which permitted to all subject
races the enjoyment of their ancestral usages. At the council of
Verona, where all the nobles of Italy, secular and ecclesiastical, were
assembled, he caused the adoption of a law which forced the Italians
in this respect to follow the customs of their conquerors.[365] Even
the church was deprived of any exemption which she might previously
have enjoyed, and was only allowed the privilege of appearing by her
_advocati_ or champions.[366] There were small chances of escape
from the stringency of these regulations, for an edict of Otho I. in
971 had decreed the punishment of confiscation against any one who
should refuse to undergo the chances of the combat.[367] It may even
be assumed, from the wording of a constitution of the Emperor Henry
II., that in the early part of the eleventh century it was no longer
necessary that there should be a doubt as to the guilt of the accused
to entitle him to the privileges of the combat, and that even the most
notorious criminal could have a chance of escape by an appeal to the
sword.[368]
Thus it came to pass that nearly every question that could possibly
arise was finally deemed liable to the decision of the wager of battle.
If Otho the Great employed champions to legislate respecting a disputed
point of law, he was not more eccentric than the Spaniards, who settled
in the same manner a controversy regarding the canonical observances
of religion, when Gregory VII. endeavored to force the introduction
of the Roman liturgy into Castile and Leon, in lieu of the national
Gothic or Mozarabic rite. With considerable difficulty, some years
before, Navarre and Aragon had been led to consent to the change, but
the Castilians were doggedly attached to the observances of their
ancestors, and stoutly refused compliance. In 1077, Alfonso I. procured
the assent of a national council, but the people rebelled, and after
repeated negotiations the matter was finally referred to the umpirage
of the sword. The champion of the Gothic ritual was victorious, and
tradition adds that a second trial was made by the ordeal of fire;
a missal of each kind was thrown into the flames, and the national
liturgy emerged triumphantly unscathed.[369]
Nearly contemporary with this was the celebrated case of Otho, Duke
of Bavaria, perhaps the most noteworthy example of a judicial appeal
to the sword. A worthless adventurer, named Egeno, accused Otho of
conspiring against the life of Henry IV. In a diet held at Mainz, the
duke was commanded to disprove the charge by doing battle with his
accuser within six weeks. According to some authorities, his pride
revolted at meeting an adversary so far his inferior; according to
others, he was prevented from appearing in the lists only by the
refusal of the emperor to grant him a safe conduct. Be this as it may,
the appointed term elapsed, his default of appearance caused judgment
to be taken against him, and his duchy was accordingly confiscated. It
was bestowed on Welf, son of Azo d’Este and of Cunigunda, descendant
and heiress of the ancient Guelfic Agilolfings; and thus, on the basis
of a judicial duel, was founded the second Bavarian house of Guelf,
from which have sprung so many royal and noble lines, including their
Guelfic Majesties of Britain. Some years later, the emperor himself
offered to disprove by the same means a similar accusation brought
against him by a certain Reginger, of endeavoring to assassinate his
rival, Rodolph of Suabia. Ulric of Cosheim, however, who was involved
in the accusation, insisted on taking his place, and a day was
appointed for the combat, which was prevented only by the opportune
death of Reginger.[370]
Scarcely less impressive in its results, and even more remarkable
in itself, as exhibiting the duel invested with legislative as well
as judicial functions, is the case wherein the wager of battle was
employed in 1180 to break the overgrown power of Henry the Lion. That
puissant Duke of Saxony and Bavaria had long divided the power of the
empire and defied the repeated efforts of Frederic Barbarossa to punish
his constantly recurring rebellions. Cited to appear and answer for
his treasons in successive diets, he constantly refused, on the plea
that the law required him to have a trial within his own dominions.
At length, in the diet of Würzburg, a noble arose and declared
himself ready to prove by the single combat that the emperor could
legally cite his princes before him at any place that he might select
within the limits of the empire. Of course there was none to take up
the challenge, and Frederic was enabled to erect the principle thus
asserted into a binding law. Henry was condemned by default, and his
confiscated possessions were shared between those who had arranged and
enacted the comedy.[371]
No rank of life in fact procured exemption from the duel between
antagonists of equal station. When in 1002, on the death of Otho III.,
the German throne was filled by the election of Henry the Lame, Duke
of Bavaria, one of his disappointed competitors, Hermann, Duke of
Suabia, is said to have demanded that their respective claims should
be determined by a judicial combat, and the new king, feeling himself
bound to accept the wager of battle, proceeded to the appointed place,
and waited in vain for the appearance of his antagonist.[372] Thus the
champion of England, who until 1821 figured in the coronation pageant
of Westminster Abbey, was a relic of the times when it was not an
idle ceremony for the armed and mounted knight to fling the gauntlet
and proclaim aloud that he was ready to do battle with any one who
challenged the right of the new monarch to his crown.[373] A striking
example of the liability attaching to even the most exalted rank is
afforded by a declaration of the privileges of the Duchy of Austria,
granted by Frederic Barbarossa in 1156, and confirmed by Frederic II.
in 1245. These privileges rendered the dukes virtually independent
sovereigns, and among them is enumerated the right of employing a
champion to represent the reigning duke when summoned to the judicial
duel.[374] Even more instructive is the inference deducible from the
For de Morlaas, granted to his subjects by Gaston IV. of Béarn about
the year 1100. The privileges contained in it are guaranteed by a
clause providing that, should they be infringed by the prince, the
injured subject shall substantiate his complaint by his simple oath,
and shall not be compelled to prove the illegality of the sovereign’s
acts by the judicial combat, thus indicating a pre-existing custom of
the duel between the prince and his vassals.[375]
It is not to be supposed, however, from these instances that the duel
was an aristocratic institution, reserved for nobles and affairs of
state. It was an integral part of the ordinary law, both civil and
criminal, employed habitually for the decision of the most every-day
affairs. Thus a chronicler happens to mention that in 1017 the Emperor
St. Henry II. coming to Merseburg hanged a number of robbers who had
been convicted in single combat by champions, and then proceeding to
Magdeburg he had all the thieves assembled and treated them in the same
manner.[376] So much was it a matter of course, that, by the English
law of the thirteenth century, a pleader was sometimes allowed to alter
the record of his preliminary plea, by producing a man who would offer
to prove with his body that the record was incorrect, the sole excuse
for the absurdity being that it was only allowed in matters which
could not injure the other side;[377] and a malefactor turning king’s
evidence was obliged, before receiving his pardon, to pledge himself to
convict all his accomplices, if required, by the duel.[378]
The habitual use of such a method of administering justice required
no little robustness of faith in the expected intervention of God to
control the event. Even in the fifteenth century, when the combat was
rapidly becoming obsolete, this faith is pictorially embodied in an
illuminated MS. of Tallhöfer’s Kamp-recht, where a miniature represents
the victor kneeling and returning thanks to God, while the vanquished
is lying on his back with Satan grasping at his open mouth as though
already seizing the soul of the criminal.[379] This robustness of
faith was proof against experience and common sense, and sought to
explain the frequent miscarriage of justice by any process of reasoning
rather than the right one. Thus about the year 1100 a sacrilegious
thief named Anselm stole the sacred vessels from the church of Laon
and sold them to a merchant, from whom he exacted an oath of secrecy.
Frightened at the excommunications fulminated by the authorities of the
plundered church, the unhappy trader revealed the name of the robber.
Anselm denied the accusation, offered the wager of battle, defeated
the unfortunate receiver of stolen goods, and was proclaimed innocent.
Encouraged by impunity, he repeated the offence, and after his
conviction by the ordeal of cold water he confessed the previous crime.
The doubts cast by this event on the efficacy of the judicial combat
were, however, happily removed by the suggestion that the merchant had
suffered for the violation of the oath which he had sworn to Anselm,
and the reputation of the duel remained intact.[380]
The frequent cases of this nature often did not admit of so ingenious
an explanation of the criminal’s escape, and legal casuists assumed
a condition of being, guilty in the sight of God, but not in that of
man—a refinement of speculation which even finds place in the German
codes of the thirteenth century;[381] and men contented themselves
then, as they do still, with predicting future misfortunes and an
eternity of punishment. The more direct solution, in cases of unjust
condemnation, was very much like that which justified the defeat of
Anselm’s merchant—that the unfortunate victim, though innocent of the
special offence charged, suffered in consequence of other sins. This
doctrine was even supported by the infallible authority of the papacy,
as enunciated in 1203 by Innocent III. in a case wherein the priory
of St. Sergius was unjustly convicted of theft by the judicial duel,
and its possessions were consequently seized by the authorities of
Spoleto.[382]
An example justifying this theory is found in the case of Henry of
Essex in 1163. He was a favorite of Henry II. and one of the most
powerful nobles of his day, till he was accused of treason by his
kinsman Robert de Montfort for having abandoned his king when in
desperate straits in the Welsh war of 1157. A duel ensued, fought
on an island of the Thames near Reading, in presence of an immense
assemblage. Henry had been a bad neighbor to the Abbey of St. Edmund,
and when engaged in the desperate contest he was dismayed at seeing the
angry saint hovering in the air and threatening him; nor was this all,
for Gilbert de Cerivilla, whom he had unjustly put to death, likewise
appeared and menaced him. The inevitable result of this was his defeat;
he was left for dead on the field, but at the instance of his powerful
kindred his body was allowed Christian burial in the Abbey of Reading.
Carried thither he unexpectedly revived and embraced a religious life
in the abbey, where years afterwards he related the story of his
discomfiture to the veracious chronicler who has handed it down.[383]
That the combatants themselves did not always feel implicit confidence
in the event, or rely solely upon the righteousness of their cause, is
shown by the custom of occasionally bribing Heaven either to assist
the right or to defend the wrong. Thus, in the eleventh century, we
find the monastery of St. Peter at Bèze in the enjoyment of certain
lands bestowed on the Saint by Sir Miles the Stammerer, who in this
way endeavored to purchase his assistance in a combat about to take
place—a bargain no doubt highly appreciated by the worthy monks.[384]
According to the belief of the pious, Heaven might be propitiated by
less venal means, for Cæsarius of Heisterbach relates on the authority
of an eye-witness that when Henry VI. entered Lombardy in 1196, a
castellan was accused before him of oppression and rapine by his
neighbors, who produced a champion of enormous size to vindicate their
case. The Emperor decreed the battle, when the brother of the accused
offered himself for the defence—a slender and most unequal antagonist.
He prepared himself for the strife, however, by assiduous confession
and prayer, and easily overcame his huge adversary; and thus, exclaims
the worthy chronicler, a guilty man escaped the death he had deserved,
solely by virtue of the humble confession of his brother.[385] Cæsarius
also mentions another case, in a duel decreed by Frederic Barbarossa
between a knight and a gigantic champion, where the inequality was
more than counterbalanced by the fact that the knight piously took the
precaution of receiving the sacrament before entering the lists, and
thus was enabled to overcome his adversary.[386]
Less creditable means were sometimes employed, and men did not
hesitate, with the unreasoning inconsistency characteristic of
superstition, to appeal to God and at the same time endeavor to
influence God’s judgment by the use of unlawful expedients. This
was not confined to the laity. In 1355 there was an important suit
between the Bishop of Salisbury and the Earl of Salisbury respecting
the ownership of a castle, in which the combat was adjudged. When
the champions entered the lists the customary examination of their
arms and accoutrements was made, and the combat was adjourned in
consequence, as it was said, of finding in the coat of the episcopal
champion certain rolls containing prayers and charms. The case was
finally compromised by the bishop paying fifteen hundred marks to the
earl for the disputed property.[387] That precautions against such
devices were deemed necessary is shown by the oath required of all
combatants, whether principals or champions, that they had on them no
charms or conjurations to affect the result.[388] A quaint formula for
this is the oath of the champion in the case of Low _vs._ Paramore in
1571—“This hear you justices that I have this day neither eat, drunk,
nor have upon me either bone, stone, ne glass or any enchantment,
sorcery, or witchcraft where-through the power of the Word of God might
be inleased or diminished and the devil’s power increased, and that my
appeal is true, so help me God and his saints and by this Book.”[389]
CHAPTER V.
LIMITATIONS ON THE WAGER OF BATTLE.
The right of demanding the wager of battle between principals varied
much with the age and race, though as a “bilateral” ordeal, as a rule,
from the earliest times either party was entitled to claim it.[390]
When Beaumanoir composed his _Coutumes du Beauvoisis_, in 1283, the
practice may be considered to have entered upon its decadence; twenty
years had elapsed since the determined efforts of St. Louis to abolish
it; substitutes for it in legal processes had been provided; and the
manner in which that enlightened jurist manifests his preference for
peaceful forms of law shows that he fully appreciated the civilizing
spirit in which the monarch had endeavored to soften the ferocity of
his subjects. When, therefore, we see in Beaumanoir’s treatise how
few restrictions existed in his time, we may comprehend the previous
universality of the custom. In criminal cases, if an accuser offered
battle, the defendant was forced either to accept it or to confess
his guilt, unless he could prove an alibi, or unless the accuser was
himself notoriously guilty of the crime in question, and the accusation
was evidently a mere device to shift the guilt to the shoulders of
another; or unless, in case of murder, the victim had disculpated
him, when dying, and had named the real criminals.[391] If, on the
other hand, the accused demanded to wage his battle, the judge could
only refuse it when his guilt was too notorious for question.[392] A
serf could not challenge a freeman, nor a bastard a man of legitimate
birth (though an appeal of battle might lie between two bastards),
nor a leper a sound man.[393] In civil actions, the battle trial was
not allowed in cases relating to dower, to orphans under age,[394] to
guardianships, or to the equity of redemption afforded by the feudal
laws to kinsmen in the sale of heritable property, or where the matter
at stake was of less value than twelve deniers.[395] St. Louis also
prohibited the duel between brothers in civil cases, while permitting
it in criminal accusations.[396] The slenderness of these restrictions
shows what ample opportunities were afforded to belligerent
pleaders.[397]
In Germany, as a general rule, either party had a right to demand
the judicial combat,[398] subject, however, in practice, to several
important limitations. Thus, difference of rank between the parties
afforded the superior a right to decline a challenge, as we shall see
more fully hereafter.[399] Relationship between the contestants was
also an impediment, of which either might avail himself,[400] and
even the fact that the defendant was not a native of the territory
in which the action was brought gave him the privilege of refusing
the appeal.[401] Still, we find the principle laid down even in the
fourteenth century that cases of homicide could not be determined in
any other manner.[402] There were circumstances, indeed, in which the
complainant, if he could bring the evidence of seven witnesses in his
favor, could decline the duel; but if he choose to prove the charge
by the combat, no examination or testimony was admitted. In the same
way, if a man was slain while committing theft or robbery, and was
prosecuted for the crime, the accuser was not bound to offer the duel
if he could produce the evidence of seven witnesses; but if a relative
of the dead man offered to vindicate him by combat, this annulled
all the evidence, and conviction could not be had without the battle
ordeal.[403] A curious provision in the Saxon burgher law allowed a
man who had been assaulted to challenge to the duel as many men as he
had wounds—but the wounds were required to be of a certain degree of
severity—_wunden kampffbaren_.[404] So the contemporary law of Suabia
provides that in accusations of personal violence, the duel was not to
be allowed, unless the injury inflicted on the complainant had been
sufficiently serious to cause permanent maiming,[405] thus showing how
thoroughly different in spirit was the judicial combat from the modern
code of honor which has been affiliated upon it. Yet a general rule is
found expressed to the effect that it was necessary only in cases where
no other evidence was obtainable, when the result could be safely left
to the judgment of Omniscience.[406]
In the Latin kingdoms of the East, and among the Armenians, who,
curiously enough, adopted the customs of their fellow Christians from
the West, it would seem that in both the noble and the roturier courts,
in civil as well as in criminal cases, the plaintiff or prosecutor
was not obliged personally to fight, but that if one of his witnesses
offered battle, the defendant or accused was not permitted to decline
the challenge under pain of losing his suit or being condemned. On the
other hand, unless the complainant or accuser had a witness who was
willing to offer battle, the oath of denial of the other party was
sufficient, and in criminal cases the accuser was subjected to the
_talio_.[407]
By the English law of the thirteenth century, a man accused of crime
had, in doubtful cases only, the right of election between trial by
jury and the wager of battle. When a violent presumption existed
against him, he was obliged to submit to the verdict of a jury; but
in cases of suspected poisoning, as satisfactory evidence was deemed
unattainable, the accused had only the choice between confession
and the combat.[408] On the other hand, when the appellant demanded
the duel, he was obliged to make out a probable case before it was
granted.[409] When battle had been gaged, however, no withdrawal was
permitted, and any composition between the parties to avoid it was
punishable by fine and imprisonment[410]—a regulation, no doubt,
intended to prevent pleaders from rashly undertaking it, and to obviate
its abuse as a means of extortion. In accusations of treason, indeed,
the royal consent alone could prevent the matter from being fought
out.[411] Any bodily injury on the part of the plaintiff, tending to
render him less capable of defence or aggression, likewise deprived
the defendant of the right to the wager of battle, and this led to
such nice distinctions that the loss of molar teeth was adjudged not
to amount to disqualification, while the absence of incisors was
considered sufficient excuse, because they were held to be important
weapons of offence.[412] Notwithstanding these various restrictions,
cases of treason were almost always determined by the judicial duel,
according to both Glanville and Bracton.[413] This was in direct
opposition to the custom of Lombardy, where such cases were especially
exempted from decision by the sword.[414] These restrictions of the
English law, such as they were, did not, however, extend to the
Scottish Marches, where the trial by battle was the universal resource
and no proof by witnesses was admitted.[415]
In Bearn, the duel was permitted at the option of the accuser in
cases of murder and treason, but in civil suits only in default of
testimony.[416] That in such cases it was in common use is shown by
a treaty made, in the latter part of the eleventh century, between
Centulla I. of Bearn and the Viscount of Soule, in which all doubtful
questions arising between their respective subjects are directed to be
settled by the combat, with the singular proviso that the combatants
shall be men who have never taken part in war.[417] In the thirteenth
century, however, a provision occurs which must have greatly reduced
the number of duels, as it imposed a fine of only sixteen sous on the
party who made default, while, if vanquished, he was visited with
a mulct of sixty sous and the forfeiture of his arms.[418] In the
neighboring region of Bigorre an exemption was allowed in favor of the
widow whose husband had been slain in war. Until she remarried or her
sons were of age to bear arms she was exempt from all legal process—a
provision evidently intended to relieve her from the duel in which
suits were liable to terminate.[419]
In some regions greater restrictions were imposed on the facility for
such appeals to the sword. In Catalonia, for instance, the judge alone
had the power of deciding whether they should be permitted,[420] and a
similar right was reserved in doubtful cases to the podestà in a code
of laws in force at Verona in 1228.[421] This must often have prevented
the injustice inherent in the system, and an equally prudent reserve
was exhibited in a statute of Montpellier, which required the assent of
both parties.[422] On the other hand, in Normandy, at the commencement
of the thirteenth century, many cases relating to real estate were
examined in the first instance by a jury of twelve men, and, if they
failed of an unanimous verdict, the question was decided by the duel,
whether the parties were willing or not.[423]
By the criminal procedure in England, at about the same period, the
duel was prescribed only for cases of felony or crimes of importance,
and it was forbidden in trifling misdemeanors.[424] Appeal of battle
could not lie between a vassal and his lord during the existence of
the connection, nor between a serf and his master except in cases of
treason.[425] It would also seem that the defendant could avoid the
duel if he could prove that the motive of the appeal was hatred, for
there is a curious case on record in which, when the appellant demanded
battle, the accused offered to the king a silver mark for an impartial
jury to decide this preliminary question, and it was granted to
him.[426] In Southern Germany a fifteenth century MS. enumerates seven
crimes for which the duel could be prescribed—detraction of the emperor
or empire, treason, theft, robbery and depredation, rape, arson, and
poisoning.[427]
From a very early period, a minimum limit of value was established,
below which a pugnacious pleader was not allowed to put the life or
limb of his adversary in jeopardy. This varied of course with the
race and the period. Thus, among the Angli and Werini, the lowest
sum for which the combat was permitted was two solidi,[428] while
the Baioarians established the limit at the value of a cow.[429] In
the tenth century, Otho II. decided that six solidi should be the
smallest sum worth fighting for.[430] The so-called laws of Henry I.
of England decreed that in civil cases the appeal of battle should
not lie for an amount less than ten solidi.[431] In France, Louis
le Jeune, by an edict of 1168, forbade the duel when the sum in
debate was less than five sous,[432] and this remained in force for
at least a century.[433] The custom of Normandy in the thirteenth
century specifies ten sous as the line of demarcation between the
_lex apparens_ and the _lex simplex_ in civil suits,[434] and the
same provision retains its place in the Coutumier in use until the
sixteenth century.[435] In the Latin States of the East founded by
the Crusaders, the minimum was a silver marc in cases of both nobles
and roturiers.[436] A law of Aragon, in 1247, places the limit at ten
sous.[437]
As regards the inferior classes of society, innumerable documents
attest the right of peasants to decide their quarrels by the ordeal
of battle. By the old Lombard law, slaves were allowed to defend
themselves in this manner;[438] and they could even employ the duel
to claim their liberty from their masters, as we may infer from a law
of King Grimoald denying this privilege to those who could be proved
to have served the same master for thirty continuous years.[439]
Similarly, among the Frisians, a _litus_ claiming his liberty was
allowed to prove it against his master with arms.[440] The institutions
of feudalism widened the distance between the different classes of
society, and we have already seen that, in the thirteenth century,
serfs were enfranchised in order to enable them to support their
testimony by the combat; yet this was only the result of inequality of
rank. In the time of Beaumanoir (1283), though an appeal would not lie
from a serf to a freeman, it may be safely inferred from the context
that a combat could be legally decreed between two serfs if the consent
of their masters were obtained,[441] and other contemporary authorities
show that a man claimed as a serf could defend his freedom with the
sword against his would-be master.[442] Even Jews were held liable to
the appeal of battle, as we learn from a decision of 1207, preserved
in an ancient register of assizes in Normandy,[443] and they no doubt
purchased the exemption, which was granted to them, except in cases of
flagrant murder, by Philippe le Long, as a special favor, in 1317.[444]
Difference of condition thus became an impediment to the duel, and
formed the subject of many regulations, varying with circumstance and
locality. The free mountaineers of Béarn, as has been seen, placed the
prince and the subject on an equality before the law, but this was
a rare example of independence, and the privileges of station were
sometimes exhibited in their most odious form. In France, for instance,
while the battle trial could take place between the gentilhomme and
the _vilain_, the former was secured by the distinction that if the
villein presumed to challenge him, he enjoyed the right of fighting on
horseback with knightly weapons, while the challenger was on foot and
armed only with shield and staff; but if the gentleman condescended
to challenge the villein, they met on equal terms.[445] This last
regulation was enforced with impartial justice, for Beaumanoir mentions
a case in which a gentleman challenged a roturier, and presented
himself in the lists mounted and armed with his knightly weapons. The
defendant protested against this illegal advantage, and the judges
decided that the gentleman had forfeited his horse and arms, and that
if he desired to continue the combat he must do so in the condition
in which he was left by the disarmament—in his shirt without armor
or weapons, while his adversary should retain coat of mail, target,
and club.[446] The barbarous injustice of the general rule, moreover,
was by no means of universal application. Pierre de Fontaines, for
instance, directs that in cases of appeal from a roturier to a
gentleman the combat shall take place on foot between champions;[447]
and I find a case recorded in 1280, in which a _femme de corps_ of
Aimeri de Rochechouart accused the Sire de Montricher of burning her
houses, and as the duel was adjudged she placed in the lists an armed
and mounted knight as her champion, to whom no objection seems to have
been made.[448]
Throughout both Northern and Southern Germany, where the minute
distinctions of birth were guarded with the most jealous care from
a very early period, the codes of the thirteenth century, including
even the burgher laws, provided that a difference of rank permitted
the superior to decline the challenge of an inferior, while the latter
was obliged to accept the appeal of the former. So thoroughly was
this principle carried into practice, that, to compel the appearance
of a _Semperfri_, or noble of sixteen quarterings, the appellant was
required to prove himself of equally untarnished descent.[449] In the
same spirit a Jew could not decline the appeal of battle offered by a
Christian accuser, though we may safely infer that the Jew could not
challenge the Christian.[450] So, in the Latin kingdom of Jerusalem,
the Greek, the Syrian, and the Saracen could not challenge the Frank,
but could not, in criminal cases, decline his challenge, though they
might do so in civil suits.[451] In Aragon, no judicial duel was
permitted between a Christian and a Jew or a Saracen,[452] while in
Castile both combatants had to be gentlemen, quarrels between parties
of different ranks being settled by the courts.[453] On the other
hand, in Wales, extreme difference of rank was held to render the duel
necessary, as in cases of treason against a lord, for there the lord
was plaintiff against his vassal, and as no man could enter into law
with his lord, the combat was considered the only mode of prosecution
befitting his dignity.[454]
A question of this nature was the remote occasion of the murder of
Charles the Good, Count of Flanders, in 1127. Bertulf, Provost of the
church of Bruges, was rich and powerful, although in reality his family
were villeins of the count. He married his nieces to knights, one of
whom, in presence of the count, appealed another knight to battle.
The appellee refused on the ground that he was not obliged to notice
the challenge of a villein, for according to the law of the land a
freeman marrying a serf was reduced to the latter condition after the
expiration of a year. The Count’s attention being thus called to his
rights over the family of Bertulf, he proceeded to establish them, when
Bertulf set on foot the conspiracy which ended in the assassination of
the count.[455]
* * * * *
There were three classes—women, ecclesiastics, and those suffering
under physical incapacity—with whom personal appearance in the lists
would appear to be impossible. When interested in cases involving the
judicial duel they were therefore allowed the privilege of substituting
a champion, who took their place and did battle for the justice of
their cause. So careful were legislators to prevent any failure in the
procedure prescribed by custom, that the North German law provided that
the dead when prosecuted could appear in the lists by substitutes,[456]
and the Assises de Jerusalem ordered the suzerain to supply the
expenses for forty days, when a suitor unable to fight was also too
poor to pay for a champion to take his place; and when a murdered man
left no relatives to prosecute the murderer, the suzerain was likewise
obliged to furnish the champion in any trial that might arise.[457]
Equally directed to the same purpose was the German law which provided
that when a crippled defendant refused or neglected to procure a
substitute, the judge was to seize one-half of his property with which
to pay the services of a gladiator, who could claim nothing more.[458]
Guardians of women and minors, moreover, were bound to furnish battle
in their behalf.[459]
Women, however, did not always restrict themselves to fighting thus
vicariously. The German laws refer to cases in which a woman might
demand justice of a man personally in the lists, and not only are
instances on record in which this was done, as in a case at Berne
in 1228, in which the woman was the victor,[460] but it was of
sufficiently frequent occurrence to have an established mode of
procedure, which is preserved to us in all its details by illuminated
MSS. of the period.[461] The chances between such unequal adversaries
were adjusted by placing the man up to the navel in a pit three feet
wide, tying his left hand behind his back, and arming him only with a
club, while his fair opponent had the free use of her limbs and was
furnished with a stone as large as the fist, or weighing from one
to five pounds, fastened in a piece of stuff. A curious regulation
provided the man with three clubs. If in delivering a blow he touched
the earth with hand or arm he forfeited one of the clubs; if this
happened thrice his last weapon was gone, he was adjudged defeated, and
the woman could order his execution. On the other hand, the woman was
similarly furnished with three weapons. If she struck the man while
he was disarmed she forfeited one, and with the loss of the third she
was at his mercy, and was liable to be buried alive. According to the
customs of Freisingen these combats were reserved for accusations of
rape. If the man was vanquished, he was beheaded; if the woman, she
only lost a hand, for the reason that the chances of the fight were
against her.[462] In Bohemia, also, women over the age of eighteen
had the privilege of the duel; the man was put into a pit as deep as
his waist; the woman was armed with sword and buckler, but was not
allowed to approach nearer than a circle traced around the mouth of the
pit.[463]
The liability of ecclesiastics to the duel varied with the varying
relations between the church and state. As early as the year 819,
Louis le Débonnaire, in his additions to the Salic law, directs that,
in doubtful cases arising between laymen and ecclesiastics, the duel
between chosen witnesses shall be employed, but that when both parties
are clerical it shall be forbidden.[464] This restriction was not long
observed. A decree of the Emperor Guy, in 892, gives to churchmen the
privilege of settling their quarrels either by combat or by witnesses,
as they might prefer;[465] and, about the year 945, Atto of Vercelli
complains that the tribunals allowed to ecclesiastics no exemption
from the prevailing custom.[466] As we have seen (p. 131), Otho II.,
at the Council of Verona in 983, subjected the churches to the law of
the duel, only granting them the privilege of employing champions. Some
intricate questions involved in the coexistence of the Lombard and the
Roman law arose in a celebrated case between the Abbey of Farfa and
that of SS. Cosmo and Damianus of Rome, which was pleaded in 998 and
999 before Otho III. and Popes Gregory V. and Sylvester II. The Abbey
of Farfa proved that it lived under the Lombard law, while the other
was under the Roman law. It was decided, as the Abbey of Farfa desired,
that after hearing testimony the case should be settled by the duel,
but the witnesses of the Roman abbey were so manifestly perjured that
it was held not to have made out a case justifying an appeal to the
combat, and the churches in dispute were adjudged to Farfa.[467]
So far was this liability to the duel from being deemed a hardship
by the turbulent spirits of the period, that clerks not infrequently
disdained to sustain their rights by the intervention of a champion,
and boldly entered the lists themselves. In 1080 the Synod of
Lillebonne adopted a canon punishing by a fine such belligerent
churchmen as indulged in the luxury of duels without having first
obtained from their bishops a special license authorizing it.[468]
About the same period, Geoffrey, Abbot of Vendôme, in a letter to the
Bishop of Saintes, complains of one of his monks who had fought in a
judicial duel with a clerk of Saintes.[469] The practice continued,
and though forbidden by Pope Innocent II. in 1140,[470] Alexander III.
and Clement III. found it necessary to repeat the prohibition before
the close of the century.[471] Yet Alexander, when appealed to with
respect to a priest of the Campagna who had lost a finger in a duel,
decided that neither the offence nor the mutilation debarred him from
the exercise of his sacerdotal functions, and only directed him to
undergo due penance.[472] The progress of the age, however, was shown
when, about thirty years afterwards, Celestin III. pronounced sentence
of deposition in a similar case submitted to him;[473] and this was
formally and peremptorily confirmed by Innocent III. at the great
council of Lateran in 1215.[474]
That the peaceful ministers of Christ should vindicate their rights
with the sword, either personally or by proxy, was a sacrilege
abhorrent to pious minds. As early as the middle of the ninth century,
Nicholas I., who did so much to establish the supremacy of the church,
endeavored to emancipate it from this necessity, and declared that
the duel was not recognized by ecclesiastical law.[475] The utmost
privilege which the secular law accorded the clergy, however, was the
right of presenting a champion in the lists, which zealous churchmen
naturally resented as an arbitrary injustice.[476] How thoroughly it
was carried out in practice, notwithstanding all remonstrances, is
shown by a charter granted in 1024 by St. Stephen of Hungary to the
monastery of St. Adrian of Zala, by which, among other privileges, the
pious king bound himself to supply a champion in all suits against
the abbey, in order that the holy meditations of the monks might not
be interrupted.[477] Not long after, in 1033, the celebrated abbey
of St. Clement at Pescara was involved in a dispute concerning some
lands which had been cut off from its possessions by a change in the
course of the river Pescara, and had been seized by the lords of the
contiguous territory. At an assembly of the magnates of the district
it was adjudged that the matter must be settled by the duel. The
night before the combat was to take place the holy abbot Guido, after
enjoining earnest prayers by all the monks, sallied forth alone to
the banks of the stream and stretching forth his staff adjured the
waters to repair the evil which they had wrought under the impulsion
of the devil. The river forthwith returned to its old channel, and
next morning the multitude which assembled to witness the combat were
astounded to see the miracle. The godless men who had seized on the
possessions of the church humbly sought pardon for their sin, and the
abbey remained in quiet enjoyment of its rights.[478]
The scandal of maintaining the claims of the church by carnal weapons
and bloodshed was not soon suppressed. In 1112 we find a certain
Guillaume Maumarel, in a dispute with the chapter of Paris concerning
some feudal rights over the domain of Sucy, appearing in the court
of the Bishop of Paris for the purpose of settling the question by
the duel, and though the matter was finally compromised without
combat, there does not seem to have been anything irregular in his
proceeding.[479] So, about the same period, in a case between the
abbey of St. Aubin in Anjou and a neighboring knight, involving some
rights of property, the monks not only challenged their adversary, but
the duel was held in the seignorial court of another monastery;[480]
and in 1164, we find a duel decreed at Monza, by the Archbishop of
Cologne as chancellor of Italy, between an abbey and a layman of the
vicinity.[481] That such cases, indeed, were by no means uncommon
is shown by their special prohibition in 1195 by Celestin III.[482]
Yet, notwithstanding the repeated efforts of the Holy See, it was
almost impossible for the church to exempt itself from the universal
liability. Though in 1174 Louis VII. granted a special privilege of
exemption to the church of Jusiers and its men, on the ground that
he was bound to abrogate all improper customs,[483] still no general
reform appears to have been practicable. An important step was gained
when in 1176 Henry II., as a concession to the papacy, agreed that
ecclesiastics should not be forced to the duel,[484] but this did not
extend to the Scottish Marches, where by law an ecclesiastic was as
liable as a layman to personal appearance in the lists; if he presented
a champion he was held in custody till the event of the duel, when,
if the champion was defeated, his principal was promptly beheaded.
Innocent III. sternly prohibited this in 1216, but ineffectually, as
is seen by a complaint of the English clergy, in 1237, in which they
mention the case of the Prior of Lide, who had thus recently suffered
the penalty. This was equally fruitless, for the _Leges Marchiarum_,
enacted in 1249, declare that exemption from battle is confined to the
persons of the kings and of the Bishops of St. Andrews and Durham.[485]
In France, during the thirteenth century, the liability continued. In
1239 a knight of Orleans, Gui de Santillac, testified before the royal
council that the chapter of Saint-Aignan had appealed him in wager of
battle.[486] As late as the year 1245, some vassals of the chapter of
Nôtre Dame at Paris denied the service due by them, and demanded that
the claim of the chapter should be made good by the wager of battle.
That they had a legal right to do so is shown by the fact that the
churchmen were obliged to implore the intervention of the pope; and
Innocent IV. accordingly granted to the chapter a special privilege,
in which, on the ground that single combats were forbidden by the
canons, he declared that the church of Nôtre Dame should be entitled
to prove its rights by witnesses, deeds, and other legitimate proofs,
notwithstanding the custom existing to the contrary.[487] It was
probably his interference in this case that led him a few years later,
in 1252, to issue a decretal in which he pointed out the manifest
hardship of forcing the clergy in France, when prosecuting such claims
against their serfs, to have recourse to the duel, and thus, under the
canon law, to forfeit their positions. To remedy this he proclaimed
as a general rule that all verdicts should be void when obtained
against clerks either by means of the duel or through reason of their
refusing the combat;[488] yet in the following year he was obliged to
intervene to protect the Archbishop of Sens, who complained that in
these cases he was obliged to make good his claims by battle.[489] In
this, Innocent was consistent, for one of the accusations which he had
brought against the Emperor Frederic II. when the latter was deposed
at the Council of Lyons in 1245 was that he had forced ecclesiastics to
undergo the duel, to the confusion of all distinctions between clerk
and layman.[490] Even in Italy about 1220 the podestà of Florence
ordered the duel to decide a suit concerning certain property between
some citizens and the church of the Apostles; the latter invoked
the intervention of Honorius III., who commanded the matter to be
settled by regular judicial process, boldly alleging that the duel was
unheard of in such matters,[491] but in spite of this and the repeated
prohibitions of the popes, trial by combat was still towards the
close of the thirteenth century regarded as the only mode of settling
disputed questions between churches when the genuineness of a charter
was impugned.[492] Yet at the same period the doctors of canon law held
that an ecclesiastic appearing in the lists, either personally or by a
champion, was subject to deposition; it was better, they said, to lose
lands and fiefs than to incur mortal sin. Unfortunately this was scarce
more than a mere _brutum fulmen_, for a dispensation could always be
had from bishop or pope.[493] Custom was stubborn, moreover, and half
a century later, when the judicial duel was going out of fashion,
a bishop of Liége so vexed the burghers of Louvain, by repeated
citations to the combat to settle disputed questions, that John III.
Duke of Brabant was obliged to appeal to the Emperor Charles IV.,
who accordingly wrote to the bishops of Trèves, Cambrai, and Verdun
desiring them to find some means of putting an end to the bellicose
tendencies of their episcopal brother.[494]
These sporadic cases only show how difficult it was throughout the
whole extent of Christendom to eradicate a custom so deeply rooted in
ancestral modes of thought. By the middle of the thirteenth century the
church had succeeded in virtually establishing the claim, for which it
had long striven, that ecclesiastics were not subject to secular law
in either civil or criminal matters. This exemption of course released
them from liability to the duel and placed them exclusively under
spiritual jurisdiction, in which the strongly marked papal aversion to
the duel had full opportunity of making itself effective.[495]
Another phase of the relations between the church and the duel is to
be seen in the extensive secular jurisdiction of its prelates in their
capacity as temporal seigneurs. In this they were accustomed to award
the duel as freely as any other form of legal procedure. To do this
was not only one of the privileges which marked the feudal superior,
but was also a source of revenue from the fees and penalties thence
accruing, and these rights were as eagerly sought and as jealously
guarded by the spiritual lords as by the warlike barons. It would
scarce be necessary to multiply instances, but I may mention a charter
granted by Fulk Nera, Count of Anjou, about the year 1010, bestowing
these rights on the abbey of Beaulieu in Touraine,[496] and one by
the Emperor Henry III., in 1052, to the bishop and church of Volterra
in Italy.[497] The first authentic evidence of the existence of the
battle trial in Scotland is a charter of Alexander I. in 1124 to the
Abbey of Scone, in which he bestows on the abbot and monks the right
to grant the duel and ordeal in their jurisdiction; and his brother,
St. David I., conferred the same rights on the Abbey of Holyrood.[498]
Some conscientious churchmen objected to a practice so antagonistic
to all the teachings of the religion of which they were professors,
and lifted up their voices to check the abuse. Thus, about the close
of the eleventh century, we find the celebrated canonist, St. Ivo
of Chartres, rebuking the Bishop of Orleans for ordering the combat
to decide an important suit in his court.[499] Ivo even carried out
his principles to the sacrifice of the jurisdiction usually so dear
to the prelates of his day, for in another case he refused to give
judgment because it necessarily involved a trial by battle, and he
eluded the responsibility by transferring the cause to the court of
the Countess of Chartres.[500] A century later Peter Cantor declared
that as a priest he would in no case furnish relics on which the
preliminary oaths were to be taken, for churchmen were prohibited from
being concerned in bloodshed.[501] These precepts and examples were
equally unavailing. Churchmen continued to award the wager of battle,
and resolutely resisted any invasion of their privileges. In 1150
the statutes of the chapter of Lausanne direct that all duels shall
be fought before the provost—and the provost was Arducius, Bishop of
Geneva.[502] In 1201 we see the Abbot of St. Alban’s and the Abbot of
Westminster pleading as to their rights over the manor of Aldenham,
including that of the duel.[503] Even in the thirteenth century, in
the archbishop’s court or officiality of Reims, the duel was a matter
of course;[504] and a case is recorded, occurring in 1224, in a
dispute about the ownership of a house, which was decided by a duel
in the court of the abbey of St. Remy, where the abbot presided over
the lists and they were guarded by the royal officials.[505] In 1239
the Bishop of Orleans contested with the king as to the right of the
former to the jurisdiction of the duel in his diocese;[506] and in a
judgment rendered in 1269, concerning a combat waged within the limits
of the chapter of Nôtre Dame of Paris, we find that the first blows
of the fight, usually known as _ictus regis_ or _les cous lou roi_,
are alluded to as _ictus capituli_.[507] How eagerly these rights were
maintained is apparent from numerous decisions concerning contested
cases. Thus, an agreement of 1193, between the Countess of St. Quentin
and the chapter of Nôtre Dame, respecting the disputed jurisdiction of
the town of Viry, gives the official of the chapter the right to decree
duels, but places the lists under the supervision of both parties,
and divides the spoils equally between each.[508] A charter of 1199,
concerning the village of Marne, shows that the sergeant, or officer of
the chapter, had the cognizance of causes up to the gaging of battle,
after which further proceedings were reserved for the court of the
bishop himself.[509] In 1219 the commune of Novara arrogated to itself
the right of decreeing the duel, but the bishop resisted this invasion
of his privileges, and on the matter being referred for arbitration
to the Bishop of Turin he decided in favor of his episcopal brother.
The Bishop of Modena had a long and expensive suit with his city on
the same question, which ended in 1227 with a compromise by which he
abandoned the right; the Bishops of Vercelli were more fortunate, for
they maintained it until the beginning of the fourteenth century, when
judicial duels were going out of fashion.[510] In 1257, while St. Louis
was exerting himself with so much energy to restrict the custom, an
abbey is found engaged in a suit with the crown to prove its rights to
decree the duel, and to enjoy the fees and mulcts thence arising;[511]
and in 1277 a similar suit on the part of the abbey of St. Vaast
d’Arras was decided in its favor.[512] From a verdict given in 1293,
the right of the chapter of Soissons to decree the judicial combat
appears to be undoubted, as well as the earnestness of the worthy
ecclesiastics to exercise the privilege.[513] Even more significant
is a declaration of the authorities of Metz, as late as 1299, by
which the granting of all wagers of battle is expressly admitted by
the civil magistrates of the city to appertain to the court of the
archbishop;[514] and even in 1311 a bishop of St. Brieuc ordered a
duel between two squires pleading in his court, in consequence of high
words between them. From some cause the combat did not take place, and
the Christian prelate seized the arms and horses of the parties as
his mulct. They appealed to the Parlement of Paris, which ordered the
restoration of the confiscated articles, and fined the bishop for his
disregard of the royal edicts prohibiting the single combat.[515] Not
long before, Beaumanoir had definitely asserted that the church could
not be concerned in cases which involved the judicial duel, or the
infliction of death or mutilation;[516] but the church was not disposed
to admit this limitation on its jurisdiction, and in spite of the
attempted suppression of the wager of battle by the crown it continued
in its multifarious capacity of seigneur to execute the cruel laws of
the period with undiminished activity.[517]
In other lands, where the duel had not experienced as in France the
hostility of the supreme power, prelates continued to decree it,
regardless of the papal anathemas. It was to no purpose that canon
lawyers proved that they thereby incurred mortal sin, and that if
death ensued they became “irregular” and incompetent to perform divine
service. To all this they turned a deaf ear, and John of Freiburg,
towards the close of the thirteenth century, is reduced to wishing that
preachers would expound these principles in the pulpit and make them
understood by the people at large.[518]
* * * * *
There was one jurisdiction which held itself more carefully aloof from
the prevailing influence of barbarism—that of the Admiralty Courts,
which covered a large portion of practical mercantile law. This is a
fact easily explicable, not only from the character of the parties and
of the transactions for which those courts were erected, but from the
direct descent of the maritime codes from the Roman law, less modified
by transmission than any other portions of mediæval jurisprudence.
These codes, though compiled at a period when the wager of battle
flourished in full luxuriance, have no reference to it whatever, and
the Assises de Jerusalem expressly allude to the Admiralty Courts
as not admitting the judicial duel in proof,[519] while an English
document of 12 Edward III. attests the same principle.[520] When,
however, the case was one implying an accusation of theft or deception,
as in denying the receipt of cargo, the matter entered into the
province of criminal law, and the battle trial might be legitimately
ordered.[521]
CHAPTER VI.
REGULATIONS OF THE JUDICIAL COMBAT.
The forms and ceremonies employed in the judicial duel may furnish an
interesting subject of investigation for the admirers of chivalry, but
they teach in their details little concerning the habits and modes
of thought of the Middle Ages, and for the most part are therefore
interesting only to the pure archæologist. Although minute directions
have come down to us in the manuals compiled for the guidance of judges
of the lists, to enumerate them in their varying fashions would hardly
be worth the necessary space. Yet there are some details which are of
interest as illustrating both the theory and practice of the duel in
its legal aspect. Thus the general principle on which the combat was
conducted was the absolute assertion by each party of the justice of
his cause, confirmed by a solemn oath on the Gospels, or on a relic
of approved sanctity, before the conflict commenced.[522] Defeat was
thus not merely the loss of the suit, but was also a conviction of
perjury, to be punished as such; and in criminal cases it was also a
conviction of malicious prosecution on the part of a worsted appellant.
That it was regarded as much more serious than the simple loss of a
suit is shown by the provisions of the custom of Normandy, whereby a
vanquished combatant was classed with perjurers, false witnesses, and
other infamous persons, as incapable thenceforth of giving evidence
in courts, or of serving on a jury.[523] Accordingly, we find the
vanquished party, whether plaintiff or defendant, subjected to
penalties more or less severe, varying with time and place.
This was a primeval custom, even in civil cases. In the ancient laws
of the Alamanni, when there was controversy as to the ownership of
land, the contestants brought to the court of the district some earth
and branches of trees from the disputed property. These were wrapped
and sealed and placed in the lists, where the combatants touched the
bundle with their swords and called upon God to grant victory to the
right; the land passed to the victor and the defeated party was fined
twelve sous for having made an unjust claim.[524] The tendency, as
civilization advanced, was to render the penalty more severe. Thus, in
819, Louis le Débonnaire decreed that, in cases where testimony was
evenly balanced, one of the witnesses from each side should be chosen
to fight it out, the defeated champion suffering the usual penalty of
perjury—the loss of a hand; while the remaining witnesses on the losing
side were allowed the privilege of redeeming their forfeited members at
the regular legal rate.[525] William the Conqueror imposed a fine of
forty sous on the losing side impartially;[526] this was increased to
sixty sous by the compilation known as the laws of Henry I.;[527] and
the same regulation is stated by Glanville, with the addition that the
defeated person was forever disqualified as a witness or champion;[528]
but in practice the amount seems to have been indefinite, for in the
Pipe Rolls the fines levied for _recreantise_ vary from one mark to
a hundred.[529] In a case occurring in 1221 where the defendant was
victorious the record simply states that the appellant was ordered
into custody;[530] while in the time of Edward II. the loser, except
in cases of felony, paid to the victor forty sous besides a small
gratification under the name of _ruaille_, in addition to the loss of
the suit.[531] By the Lombard customs, early in the eleventh century,
the appellant, if vanquished, had the privilege of redeeming his hand;
the defendant, if defeated, lost his hand, and was of course subject
in addition to the penalties of the crime of which he was proved
guilty.[532] About the same time the Béarnese legislation is more
merciful, a fine of sixty-six sous Morlaas being imposed impartially
on the losing party.[533] In process of time this system was abandoned
in some countries. The English law of the thirteenth century admitted
the justice of the _lex talionis_ in principle, but did not put it
in practice, a vanquished appellant in capital cases being merely
imprisoned as a calumniator, while the defendant, if defeated, was
executed and his property confiscated.[534] The same distinction is to
be found in the contemporary custom of Normandy.[535] So, by the code
in force in Verona in 1228, the Podestà in criminal cases had the power
of ordering the duel, and of punishing at his pleasure the accuser if
vanquished—the accused when convicted of course undergoing the penalty
of his crime.[536] Towards the end of the thirteenth century, however,
there were some sceptics in Italy who argued that conviction by the
duel ought not to entail the same punishment as conviction by witnesses
“quia pugna est incertum Dei judicium.” This struck directly at the
root of the whole system, and Roffredo insists that the legal penalty
is to be enforced.[537]
Mediæval legislation was not usually lenient to a worsted appellant.
The application of the _lex talionis_ to the man who brought a false
charge, thus adjudging to him the penalty which was incurred by the
defendant if convicted, was widely current during the Middle Ages. This
principle is to be found enunciated in the broadest and most decided
manner in the ecclesiastical law,[538] and it was naturally brought
into play in regulating the fate of those engaged in the wager of
battle. Thus Guillaume le Breton states that when Philip Augustus,
in 1203, wrested Normandy from the feeble grasp of John Lackland, one
of the few changes which he ventured to introduce in the local laws
of the duchy was to substitute this rule of confiscation, mutilation,
or death, according to the degree of criminality involved in the
accusation, for the comparatively light pecuniary mulct and loss of
legal status previously incurred by a worsted appellant.[539] The same
system is followed throughout the legislation of St. Louis, whether
the punishment be light or capital, of an equal responsibility on both
parties.[540] In capital cases, when champions were employed, the
principals were held in prison with the cord around them with which the
defeated party was to be hanged; and if one were a woman, for the cord
was substituted the spade wherewith she was to be buried alive.[541]
The same principle of equal responsibility prevailed throughout the
Frankish kingdoms of the East, where, in an appeal of murder, as we
have seen, the appellant fought by means of one of his witnesses, and
the defendant personally. In civil cases, in the Bourgeois Court,
the party defeated, including the plaintiff, if his side was the
loser, was forever debarred from giving testimony, and had no future
standing in court; while in serious criminal cases, in both upper and
lower courts, either side, when defeated, was hanged with the utmost
impartiality;[542] and it finally established itself in England,
where in the fourteenth century we find it positively declared as an
imperative regulation by Thomas, Duke of Gloucester, in an elaborate
treatise on the rules of single combat printed by Spelman.[543]
In Germany the custom was not uniform. In the Sachsenspiegel, and
in one text of the Schwabenspiegel, the principle is laid down that
a defeated appellant escaped with a fine to the judge and to his
adversary, while the defendant, if vanquished, was visited with the
punishment due to his crime, or even with a heavier penalty;[544] while
the Saxon burgher law and another text of the Suabian code direct
that whichever party be defeated should lose a hand, or be executed,
according to the gravity of the crime alleged.[545] An exceptional
case, moreover, was provided for, in which both antagonists might
suffer the penalty; thus, when a convicted thief accused a receiver
of stolen goods of having suggested the crime, the latter was bound
to defend himself by the duel, and if defeated, both combatants were
hanged without further ceremony.[546] That these penalties were not
merely nominal is shown by a case which occurred at Frankfort in 1369,
when the divine interference was requisite, not to determine the
victor, but to evade the enforcement of the law. Two knights, Zierkin
von Vola and Adolf Hanche, who had married two sisters, quarrelled over
the inheritance of a deceased brother-in-law, and agreed to settle
their difference by the duel. When the appointed day came, October 12,
they entered the lists on their chargers, prepared to do battle to the
death, while their pious wives were earnestly praying God to soften
their hearts and incline them to peace. These prayers were heard. With
a mutual impulse the two warriors leaped from their horses, throwing
themselves into each other’s arms and exclaiming, “Brother, I confess
myself vanquished.” The chief magistrate of the city, who presided
over the combat, was not disposed to deprive the spectators of their
promised entertainment, and indignantly declared that the law of the
duel did not permit both antagonists to depart unhurt, for the one
who yielded must be put to death; and he confirmed this sentence by
a solemn oath that one or the other should die before he would taste
food. Then an affecting contest arose between the late antagonists,
each one proclaiming himself the vanquished and demanding the penalty
on his own head, when suddenly divine vengeance visited the bloody and
remorseless judge, who fell dead, thus fulfilling his impious vow that
he would not eat until he had a victim.[547]
It was probably as an impressive symbol of the penalties affixed by
law to defeat in these combats that in some places the suggestive
custom was in force of placing in the lists two biers in readiness for
their ghastly occupants. In a duel which occurred at Augsburg in 1409,
between two men named Marschalck and Hachsenacker, the former threw his
adversary on the ground, and then asked him what he would have done
had he been the victor. Hachsenacker grimly replied that he would have
slain his foe, whereupon Marschalck despatched him, and placing himself
in his bier caused himself to be carried to the church of St. Ulric,
where he returned thanks for his victory.[548]
The most hideous exaggeration of the system, however, was found in
the Frankish kingdoms of the East, which reserved a special atrocity
for women—one of the numerous instances to be observed in mediæval
law of the injustice applied habitually to the weaker sex. When a
woman appeared, either as appellant or defendant, in the lists by her
champion, if he was defeated she was promptly burnt, no matter what was
the crime for which the duel occurred—and as many accusations could
only be determined by the wager of battle, she had no choice but to
undergo the chance of the most dreadful of deaths.[549]
It was not customary to order the combat to take place immediately,
but to allow a certain interval for the parties to put their affairs
in order and to undergo the necessary training. In Southern Germany
this delay was for nobles from four to six weeks, and for others a
fortnight, and during this period any assault by one on the other
was a capital offence.[550] They were required to give security
for their due appearance at the appointed time, various fines and
punishments being inflicted on defaulters. By the law of both Northern
and Southern Germany, when default was made by the defendant he was
held guilty of the crime charged upon him: and if he was allowed the
privilege of redeeming hand or life either as defendant or appellant,
he was declared infamous, and deprived of the protection of the law.
According to some MSS., indeed, all the possessions of a defaulter
were forfeited, either to his heirs or to his feudal superior.[551]
In a case occurring in the twelfth century in Hainault, between a
seigneur and a man whom he claimed as a serf, the latter demanded the
duel, which was allowed, but on the appointed day he failed to appear
by nine o’clock. His adversary had waited for him since daybreak, and
claimed the verdict which was awarded him by the council of Hainault.
At this moment the missing man presented himself, but was adjudged to
be too late, and was delivered to his claimant as a serf. According
to the custom of Flanders, indeed, the combatant who failed to appear
suffered banishment, with confiscation of all his possessions.[552]
This extreme rigor, however, did not obtain universally. Among the
Béarnese, for instance, the forfeiture for a default was only sixteen
sous Morlaas.[553] By the English law, the defaulter was declared
infamous, and was also liable to a fine to the king, for which there
was apparently no fixed amount.[554] The Scandinavians punished him
popularly by erecting a “nithstong”—_pertica execrationis_—a post
inscribed with defamatory runes, and so flagrant was this insult
considered, that finally it was prohibited by law under pain of
exile.[555] Perhaps the most emphatic assertion, however, of the
obligation to appear is the rule in the law of the Scottish Marches
in 1249, that if the accused should die before the appointed day his
body must be brought to the lists, “for no man can essoin himself by
death.”[556]
The bail, of course, was liable for all legal penalties incurred by
a defaulter, and occasionally, indeed, was made to share the fate
of his principal, when the latter appeared and was defeated. In the
law of Southern Germany, according to one text, the bail under these
circumstances was liable to the loss of a hand, which, however, he
could redeem, while another version makes him suffer the penalty
incurred by his principal.[557] This latter rule is announced in a
miracle play of the fourteenth century, where a stranger knight at the
court of Paris, compelled to fight in defence of the honor of the
king’s daughter, is unable to find security. The queen and princess
offer themselves as hostages and are accepted, but the king warns them—
Dame, par Dieu le roy celestre!
Bien vous recevray pour hostage;
Mais de tant vous fas-je bien sage,
Se le dessus en peut avoir
Ardré, je vous feray ardoir.
Et mettre en cendre.[558]
Poverty on the part of one of the combatants, rendering him unable to
equip himself properly for the combat, was not allowed to interfere
with the course of justice. In such cases, under the law of Northern
Germany, the judge was required to provide him with the requisite
weapons.[559] In England, where the royal jurisdiction embraced all
criminal cases, the king furnished the weapons and paid all expenses,
and when the combatant was an “approver,” or criminal who had turned
state’s evidence, he was supported until his duty was accomplished
of fighting all whom he accused as accomplices. Thus in the accounts
of the sheriff of Lincolnshire for 1190, there is an entry of 15_s._
10_d._ for the approver Adam Godechap from Pask until Michaelmas at one
penny per diem; also 6_s._ for his armor in three duels, and 38_s._
6_d._ for carts to convey prisoners, sureties, and probators from
Lincoln to London and elsewhere.[560] The crown likewise paid the
expenses of administering the other ordeals: in 1166 a single entry in
the Exchequer accounts shows payment for thirty-four ordeals and five
battles.[561]
As regards the choice of weapons, much curious anecdote could be
gathered from the pages of Brantôme and others learned in punctilio,
without throwing additional light upon mediæval customs. It may be
briefly observed, however, that when champions were employed on both
sides, the law appears generally to have restricted them to the
club and buckler, and to have prescribed perfect equality between
the combatants.[562] An ordonnance of Philip Augustus, in 1215,
directs that the club shall not exceed three feet in length.[563]
In England the club or battoon was rendered more efficient with a
“crook,” usually of horn, but sometimes of iron, giving to the weapon
the truly formidable aspect of a pickaxe or tomahawk.[564] When the
principals appeared personally, it would seem that in early times
the appellant had the choice of weapons, which not only gave him an
enormous advantage, but enabled him to indulge any whims which his
taste or fancy might suggest, as in the case of a Gascon knight in
the thirteenth century, who stipulated that each combatant should be
crowned with a wreath of roses. As every detail of equipment was thus
subject to the caprice of the challenger, those who were wealthy
sometimes forced their poorer adversaries to lavish immense sums on
horses and armor.[565] When, however, the spirit of legislation became
hostile to the wager of battle, this advantage was taken from the
appellant. Frederic II. appears to have been the first to promulgate
this rational idea, and, in decreeing that in future the choice of
arms shall rest with the defendant, he stigmatizes the previous custom
as utterly iniquitous and unreasonable.[566] In this, as in so many
other matters, he was in advance of his age, and the general rule was
that neither antagonist should have any advantage over the other,
except the fearful inequality, to which allusion has already been
made, when a roturier dared to challenge a gentleman.[567] In the law
of Northern Germany care was taken that the advantage of the sun was
equally divided between the combatants; they fought on foot, with bare
heads and feet, clad in tunics with sleeves reaching only to the elbow,
simple gloves, and no defensive armor except a wooden target covered
with hide, and bearing only an iron boss; each carried a drawn sword,
but either might have as many more as he pleased in his belt.[568]
Even when nobles were concerned, who fought on horseback, it was the
rule that they should have no defensive armor save a leather-covered
wooden shield and a glove to cover the thumb; the weapons allowed
were lance, sword, and dagger, and they fought bare-headed and clad
in linen tunics.[569] According to Upton, in the fifteenth century,
the judges were bound to see that the arms were equal, but he admits
that on many points there were no settled or definite rules.[570] In
Wales, an extraordinary custom violated all the principles of equality.
Under the Welsh law, twins were considered as one person, and as they
were entitled to but one share in the patrimony of the family, so
they were allowed to come into the field of combat as one man.[571]
In Russia, each combatant followed his own pleasure; and a traveller
in the sixteenth century relates that the Muscovites were in the
habit of embarrassing themselves with defensive armor to an extent
which rendered them almost helpless, so that in combats with Poles,
Lithuanians, and Germans they were habitually worsted, until judicial
duels between natives and foreigners were at length prohibited on this
account.[572]
As a general rule the combat ended at sunset or when the stars became
visible, and in such case if it was a drawn battle the case was decided
in favor of the defendant, because the prosecutor had not proved his
charge. Yet a charter of 961 recites that two gentlemen, Bernard and
Gerbert, appeared before Count Raymond, each claiming the church of
St. Médard and its appurtenances, which had been bequeathed by the
late owner Ricaud, for the repose of his soul, to the Abbey of St.
Peter of Beaulieu. The count granted them the trial by battle. At two
o’clock their champions entered the lists and fought without result
until sunset. Then the count declared the battle ended and adjudged the
church to the abbey; the contestants acquiesced and signed the charter
confirming its rights.[573] In Italy, however, the duel was fought
to an end; if stopped by darkness the judge was instructed to note
carefully the respective positions of the combatants and replace them
exactly the next morning, so that neither might derive advantage from
the adjournment.[574]
The issue at stake being death or dishonor, with severe penalties
hanging over the vanquished, whether principal or champion, no
chivalric courtesy was to be expected in these combats. They were
fought to the bitter end with persistent and brutal ferocity,
resembling the desperate encounters of wild beasts. A fairly
illustrative example is furnished in an incident which followed the
assassination of Charles the Good of Flanders in 1127. One of the
accomplices, a knight named Guy, was challenged for complicity by
another named Herman. Both were renowned warriors, but Herman was
speedily unhorsed by his adversary, who with his lance frustrated all
his attempts to remount. Then Herman disabled the horse of his opponent
and the combat was renewed on foot with swords. Equally skilful in
fence they continued the struggle till fatigue compelled them to drop
sword and shield and they wrestled for the mastery. Guy threw his
antagonist, fell on him and beat him in the face with his gauntlets
till he seemed to be motionless, but Herman quietly slipped his hand
below the other’s coat of mail, grasped his testicles and with a mighty
effort wrenched them away. Guy fell over and expired; he we adjudged
guilty and his body, after exposure in the pillory, was hung on the
top of a mast along with that of the leader of the conspiracy who had
been executed the same day, the two corpses being made to embrace each
other, as though conferring about the plot.[575] Ghastly details such
as these serve to emphasize the difference between the judicial combat
and the modern duel.
CHAPTER VII.
CHAMPIONS.
Allusions have occurred above to the employment of champions, a
peculiarity of these combats which received an application sufficiently
extended to deserve some special notice.[576] It has been seen that
those unable to wield the sword or club were not therefore exempted
from the duel, and even the scantiest measure of justice would require
that they should have the right to delegate their vindication to
some more competent vehicle of the Divine decision. This would seem
originally to have been the office of some member of the family,
as in the cognate procedure of sacramental purgation. Among the
Alamanni, for instance, a woman when accused could be defended by a
kinsman _cum tracta spata_;[577] the same rule is prescribed by the
Lombard law,[578] and by that of the Angli and Werini;[579] while
the universal principle of family unity renders the presumption fair
that it prevailed throughout the other races in whose codes it is
not specifically indicated. Restricted to cases of disability, the
use of champions was a necessity to the battle ordeal; but at a very
early period the practice received a remarkable extension, which was
directly in conflict with the original principles of the judicial duel,
in permitting able-bodied antagonists to put forward substitutes,
whether connected with them or not by ties of blood, who fought
the battle for their principals. With regard to this there appears
to have been a considerable diversity of practice among the races
of primitive barbarians. The earliest Frisian laws not only grant
unlimited permission for their employment, but even allow them to be
hired for money.[580] The laws of the Franks, of the Alamanni, and of
the Saxons make no allusion to such a privilege, and apparently expect
the principal to defend his rights himself, and yet an instance occurs
in 590, where, in a duel fought by order of Gontran, the defendant was
allowed to intrust his cause to his nephew, though, as he was accused
of killing a stag in the king’s forest, physical infirmity could
hardly have been pleaded.[581] From some expressions made use of by
St. Agobard, in his onslaught on the ordeal of battle, we may fairly
presume that, under Louis le Débonnaire, the employment of champions,
in the Burgundian law, was, if not forbidden, at least unusual as
respects the defendant, even in cases where age or debility unfitted
him for the combat, while it was allowed as a matter of course to the
appellant.[582] On the other hand, the Baioarian law, which favored
the duel more than any of the other cognate codes, alludes to the
employment of champions in every reference to it, and with the Lombards
the judicial combat and the champion seem to have been likewise
convertible terms even with regard to defendants.[583] In a charter of
the latter half of the tenth century in France, recording a judicial
duel to decide a contest concerning property, the judge, in ordering
the combat, calls upon the antagonists to produce skilled champions to
defend their claims at the time and place indicated, which would show
that the principals were not expected to appear personally.[584] Under
the North German law it rested with the appellant to demand the duel
either with or without champions. If the defendant were crippled, and
was on that account obliged to appear by a hired champion, then the
appellant could put forward another to meet him. A defendant, moreover,
who had suffered a previous conviction for theft or rapine was always
obliged to appear personally. When the duel was decreed by the court,
and not demanded by the appellant, then the accused could decline it
if he could prove that the prosecutor had hired a champion.[585] The
practical spirit of the Italians led to the universal substitution of
champions for the principals; they were selected by the magistrates
and were paid by the state when the parties were too poor to bear the
expense.[586]
In all these provisions for the putting forward of substitutes in the
duel there is something so repugnant to the fierce and self-relying
spirit in which the wager of battle found its origin, and the use of a
professional gladiator is so inconsistent with the pious reference to
the judgment of God, which was the ostensible excuse for the duel, that
some external reason is required to account for its introduction. This
reason is doubtless to be found in the liberty allowed of challenging
witnesses, to which allusion has already been made (p. 121). The
prevalence of this throughout Western Europe readily enabled parties,
unwilling themselves to encounter the risks of a mortal struggle, to
put forward some truculent bravo who swore unscrupulously, and whose
evidence would require him to be forced out of court at the sword’s
point.
This becomes very evident as early as we have detailed regulations of
procedure in the books of the twelfth and thirteenth centuries. In
England, for instance, until the first statute of Westminster, issued
by Edward I., in 1275, the hired champion of the defendant, in a
suit concerning real estate, was obliged to assume the position of a
witness, by swearing that he had been personally present and had seen
seizin given of the land, or that his father when dying had enjoined
him by his filial duty to maintain the defendant’s title as though he
had been present.[587] This legal fiction was common also to the Norman
jurisprudence of the period, where in such cases the champion of the
plaintiff was obliged to swear that he had heard and seen the matters
alleged in support of the claim, while the opposing champion swore that
they were false.[588] In a similar spirit, an earlier code of Normandy
prescribes that champions shall be taken to see the lands and buildings
in dispute, before receiving the oath of battle, in the same manner as
a jury of view.[589] We have seen that in the Assises d’Antioche it was
requisite for a prosecutor or a plaintiff to have a witness who was
ready to offer battle, in default of which the unsupported oath of the
other party was sufficient to secure a verdict.[590] It necessarily
follows that this witness must in most cases have been a hired
champion, and this connection between the two functions is further
shown in the regulation of the Assises de Jerusalem and of the Sicilian
constitutions, which directed that the champion should swear on the
field of battle as to his belief in the justice of the quarrel which
he was about to defend,[591] a practice which is also found in the
Scottish law of the thirteenth century.[592] An English legal treatise
of the period, indeed, assumes that the principals can put forward
only witnesses as substitutes, and gives as a reason why combats in
civil suits were always conducted by champions, that in such cases the
principals could not act as witnesses for themselves.[593] In a similar
spirit, if on the field of battle one of the parties presented a
champion who was not receivable as a witness and had not been accepted
by the court, the case could be decided against him by default.[594]
Looking on the profession of a champion in this light, as that of a
witness swearing for hire, we can find a justification for the heavy
penalties to which he was subjected in case of defeat—penalties of
which the real purport presumably was to insure his fidelity to his
principal. Thus, in the Norman coutumier above referred to, in civil
suits as to disputed landed possessions, the champion swearing to
the truth of his principal’s claim was, if defeated, visited with a
heavy fine and was declared infamous, being thenceforth incapable of
appearing in court either as plaintiff or as witness, while the penalty
of the principal was merely the loss of the property in dispute;[595]
and a similar principle was recognized in the English law of the
period.[596] In criminal cases, from a very early period, while the
principal perhaps escaped with fine or imprisonment, the hired ruffian
was hanged, or at best lost a hand or foot, the immemorial punishment
for perjury;[597] while the laws of the Kingdom of Jerusalem prescribe
that in combats between champions, the defeated one shall be promptly
hanged, whether dead or alive.[598] The Assises d’Antioche are somewhat
more reasonable, for they provide merely that the vanquished champion
and his principal shall suffer the same penalty, whether simply a
forfeiture of civil rights in civil cases, or hanging as in accusations
of homicide or other serious crime.[599] That, in the later periods,
at least, the object of this severity was to prevent the champion from
betraying his employer’s cause was freely admitted. Beaumanoir thus
defends it on the ground of the liability of champions to be bought
over by the adverse party, which rendered the gentle stimulus of
prospective mutilation necessary to prevent them from being purchased
by the adversary;[600] and it is probably owing to this that the full
severity of the punishment is shown to be still in existence by a
charter of so late a date as 1372, when the use of the judicial duel
had fully entered on its decline.[601] In the same spirit, the Emperor
Frederic II. prohibited champions from bargaining with each other not
to use teeth and hands. He commanded them to inflict all the injury
possible on their adversaries, and decreed that they should, in case of
defeat, share the punishment incurred by the principal, if the judge of
the combat should consider that through cowardice or treachery they had
not conducted the duel with proper energy and perseverance.[602]
With such risks to be encountered, it is no wonder that the trade of
the champion offered few attractions to honest men, who could keep
body and soul together in any other way. In primitive times, the
solidarity of the family no doubt caused the champion in most cases to
be drawn from among the kindred; at a later period he might generally
be procured from among the freedmen or clients of the principal,
and an expression in the Lombard law justifies the assumption that
this was habitual, among that race at least.[603] In the palmy days
of chivalry, it was perhaps not uncommon for the generous knight to
throw himself bodily into the lists in defence of persecuted and
friendless innocence, as he was bound to do by the tenor of his oath of
knighthood.[604] Even as late as the fifteenth century, indeed, in a
collection of Welsh laws, among the modes by which a stranger acquired
the rights of kindred is enumerated the act of voluntarily undergoing
the duel in the place of a principal unable or unwilling to appear for
himself.[605] A vast proportion of pleaders, however, would necessarily
be destitute of these chances to avoid the personal appearance in
the arena for which they might be unfitted or disinclined, and thus
there arose the regular profession of the paid gladiator. Reckless
desperadoes, skilled at quarter-staff, or those whose familiarity with
sword and dagger, gained by a life spent in ceaseless brawls, gave them
confidence in their own ability, might undertake it as an occupation
which exposed them to little risk beyond what they habitually incurred,
and of such was the profession generally composed. This evil must
have made itself apparent early, for we find Charlemagne endeavoring
to oppose it by decreeing that no robber should be allowed to appear
in the lists as a champion, and the order needed to be frequently
repeated.[606]
When the Roman law commenced to exercise its powerful influence
in moulding the feudal customs into a regular body of procedure,
and admiring jurists lost no opportunity of making use of the
newly-discovered treasures of legal lore, whether applicable or not,
it is easy to understand that the contempt and the civil disabilities
lavished by the Imperial jurisprudence on the gladiator of antiquity
came to be transferred to the mediæval champion; although the latter,
by the theory of the law, stood forth to defend the innocent, while
the former ignobly exposed his life for the gratification of an
imbruted populace. This legacy of shame is clearly traceable in Pierre
de Fontaines. To be a gladiator or an actor was, by the Roman law, a
competent cause for disinheritance.[607] One of the texts prescribing
it is translated bodily by de Fontaines, the _arenarius_ of the
Roman becoming the _champions_ of the Frenchman;[608] and in another
similar transcription from the Digest, the _athleta_ of the original
is transformed into a “champion.”[609] By the thirteenth century,
the occupation of champion had thus become infamous. Its professors
were classed with the vilest criminals, and with the unhappy females
who exposed their charms for sale, as the champion did his skill and
courage.[610] They were held incapable of appearing as witnesses, and
the extraordinary anomaly was exhibited of seeking to learn the truth
in affairs of the highest moment by a solemn appeal to God, through the
instrumentality of those who were already considered as convicts of
the worst kind, or who, by the very act, were branded with infamy if
successful in justifying innocence, and if defeated were mutilated or
hanged.[611] By the codes in force throughout Germany in the thirteenth
and fourteenth centuries, they were not only, in common with bastards,
actors, and jugglers, deprived of all legal privileges, such as
succeeding to property, bearing witness, etc., but even their children
were visited with the same disabilities.[612] The utter contempt in
which they were held was moreover quaintly symbolized in the same codes
by the provisions of a tariff of damages to be assessed for blows and
other personal injuries. A graduated list of fines is given for such
insults offered to nobles, merchants, peasants, etc., in compensation
of their wounded honor; below the serf come the mountebank and juggler,
who could only cuff the assailant’s shadow projected on the wall;
and last of all are rated the champion and his children, whose only
redress was a glance of sunshine cast upon them by the offender from a
duelling shield. Deemed by law incapable of receiving an insult, the
satisfaction awarded was as illusory as the honor to be repaired.[613]
That this poetical justice was long in vogue is proved by the
commentary upon it in the Richstich Landrecht, of which the date is
shown to be not earlier than the close of the fourteenth century, by an
allusion in the same chapter to accidental deaths arising from the use
of firearms.[614]
The Italians, however, took a more sensible and practical view of the
matter. Accepting as a necessity the existence of champions as a class,
they were disposed rather to elevate than to degrade the profession.
The law required that they should not be criminals or infamous, and
the fact that they fought for hire did not render them so.[615] In
the Veronese code of 1228, they appear as an established institution,
consisting of individuals selected and appointed by the magistrates,
who did not allow them to receive more than one hundred sous for the
performance of their office.[616]
It is evident that the evils attendant upon the employment of champions
were generally recognized, and it is not singular that efforts were
occasionally made to abrogate or limit the practice. Otho II., whose
laws did so much to give respectability to the duel, decreed that
champions should be permitted only to counts, ecclesiastics, women,
boys, old men, and cripples.[617] That this rule was strictly enforced
in some places we may infer from the pleadings of a case occurring
in 1010 before the Bishop of Arezzo, concerning a disputed property,
wherein a crippled right hand is alleged as the reason for allowing
a champion to one of the parties.[618] In other parts of Italy,
however, the regulation must have been speedily disregarded, for about
the same period Henry II. found it necessary to promulgate a law
forbidding the employment of substitutes to able-bodied defendants
in cases of parricide or of aggravated murder;[619] and when, two
hundred years later, Frederic II. almost abolished the judicial combat
in his Neapolitan dominions, we may fairly presume from one of his
remarks that champions were universally employed.[620] Indeed, he
made provision for supplying them at the public expense to widows,
orphans, and paupers who might be unable to secure for themselves such
assistance.[621] In Germany, early in the eleventh century, it would
seem that champions were a matter of course, from the expressions made
use of in describing the execution of a number of robbers convicted
in this manner at Merseburg in 1017.[622] At a later period, it
seems probable, from a comparison of two chapters of the Suabian
laws, that efforts were made to prevent the hiring of professional
gladiators,[623] and in the Saxon burgher laws a man could refuse the
duel if he could prove that his antagonist was a champion serving for
pay.[624] That these efforts to restrict the practice, however, were
attended with little success may be inferred from the disabilities
which were so copiously showered on the class by the same laws.
In England, where, as we have seen, the identity of champions and
witnesses was clearly asserted, there were prolonged efforts to
suppress their hiring. In 1150, Henry II. strictly prohibited the
wager of battle with hired champions in his Norman territories;[625]
although the Norman custom not only admitted them but required the
principal to pay the full sum agreed upon to his champion whether
defeated or not.[626] We learn from Glanville that a champion suspected
of serving for money might be objected to by the opposite party,
whence arose a secondary combat to determine his fitness for the
primary one.[627] Bracton, moreover, develops this by asserting as
a rule that a witness suspected of being a hired champion was not
allowed to proceed to the combat, but was tried for the attempt by a
jury, and if convicted suffered the penalty of perjury in the loss of
a hand or a foot,[628] and in another passage he states that hired
champions were not permitted.[629] How far these rules were enforced
it would now be difficult to determine. Records show that a frequent
defence against an adverse witness was an offer to prove that he was
a hired champion.[630] On the other hand, the payment of champions
was frequent and no concealment seems to have been thought necessary
concerning it. Towards the close of the twelfth century, by a charter
Stephen de Nerbana grants two _virgata_ of land to William son of
Ralph “propter duellum quod fecit pro me.”[631] In another charter of
Bracton’s date John “quondam porcarius de Coldingham” grants to the
Priory of Coldingham a tract of land which he had received from Adam
de Riston in payment for victoriously fighting a duel for him.[632]
Even more significant are the formal agreements with champions, such as
that by which in 1276 Bishop Swinefeld declares to all men that he has
appointed Thomas of Brydges his champion, on a salary of 6s. 8d. per
annum, so long as he shall be able to fight, with extra compensation
in case he is called upon to perform his functions.[633] Eventually,
as we have seen (p. 183), in civil cases, both parties were compelled
by law to employ champions, which presupposes, as a matter of course,
that in a great majority of instances the substitutes must have been
hired.[634] In criminal cases there seems to have been a compromise;
in felonies, the defendant was obliged to appear personally, while in
accusations of less moment he was at liberty to put forward a witness
as champion;[635] and when the appellant, from sex or other disability,
or the defendant from age, was unable to undergo the combat personally,
it was forbidden, and the case was decided by a jury.[636] By the
Scottish law of the thirteenth century, it is evident that champions
were not allowed in any case, since those disabled by age or wounds
were forced to undergo the ordeal in order to escape the duel.[637]
This strictness became relaxed in time, though the practice of
employing champions seems never to have received much encouragement. By
a law of Alexander II., about the year 1250, it appears that a noble
had the privilege of putting forward a substitute; but if a peasant
challenged a noble, he was obliged to appear personally, unless his
lord undertook the quarrel for him and presented the champion as from
himself.[638]
The tendency exhibited by the English law in distinguishing between
civil and criminal cases is also manifested elsewhere. Thus, in France
and the Frankish kingdoms of the East, there were limitations placed
by law on the employment of champions in prosecutions for crime,[639]
while in civil actions there appear to have been, at least in France,
no restrictions whatever.[640] This distinction between civil and
criminal practice is very clearly enunciated by Pierre de Fontaines,
who states that in appeal of judgment the appellant in criminal cases
is bound to show satisfactory cause for employing a champion, while
in civil affairs the right to do so requires no argument.[641] In
practice, however, it is doubtful whether there was any effectual bar
to their use in any case, for the Monk of St. Denis, in praising St.
Louis for suppressing the battle-trial, gives as one of the benefits
of its abrogation, the removal of the abuse by which a rich man could
buy all the champions of the vicinity, so that a poorer antagonist
had no resource to avoid the loss of life or heritage.[642] This
hiring of champions, moreover, was legally recognized as a necessity
attendant upon the privilege of employing them.[643] High rank, or a
marked difference between the station of parties to an action, was
also admitted as justifying the superior in putting forward a champion
in his place.[644] Local variations, however, are observable in the
customs regulating these matters. Thus the municipal laws of Reims, in
the fourteenth century, not only restrict the admission of champions
in criminal matters to cases in which age or physical disability
may incapacitate the principals from personally taking part in the
combat, but also require the accused to swear that the impediment has
supervened since the date of the alleged offence; and even this was
of no avail if the prosecutor had included in his appeal of battle an
assertion that such disability had existed at the time specified.[645]
Witnesses obliged to support their testimony by the duel were not only
subject to the same restrictions, but in substituting a hired gladiator
were obliged to swear that they had vainly sought among their friends
for some one to assume the office voluntarily.[646] The whole tenor of
these provisions, indeed, manifests a decided intention to surround the
employment of champions with every practicable impediment. In Béarn,
again, the appellant in cases of treason had a right to decide whether
the defendant should be allowed to put forward a substitute, and from
the expressions in the text it may be inferred that in the selection
of champions there was an endeavor to secure equality of age, size,
and strength.[647] This equalization of chances was thoroughly carried
out in Italy, where the law required them to be selected with that
view.[648] Thus in the Veronese code of 1228, where, as has been seen,
the champions were a recognized body, regulated and controlled by the
state, no one could engage a champion before a duel had been judicially
decreed. Then the magistrate was bound to choose gladiators of equal
prowess, and the choice between them was given to the defendant; an
arrangement which rendered the mutilation inflicted on the vanquished
combatant only justifiable on the score of suspected treachery.[649]
A Bolognese regulation of the thirteenth century was even fairer, and
reduced the combat to an affair of chance in which the judgment of God
had the fullest scope, for when the champions were in the lists a child
placed inside of the garments of each a card bearing the name of his
principal, and until the combat was ended no one knew which of them
represented the plaintiff and which the defendant.[650] In Bigorre, the
only restriction seems to have been that champions should be natives
and not foreigners, and their payment was recognized as a matter
of course.[651] By the Spanish law of the thirteenth century, the
employment of champions was so restricted as to show an evident desire
on the part of the legislator to discourage it as far as possible. The
defendant had the right to send a substitute into the field, but the
appellant could do so only by consent of his adversary. The champion
was required to be of birth equal to his principal, which rendered
the hiring of champions almost impossible, and not superior to him in
force and vigor. Women and minors appeared by their next of kin, and
ecclesiastics by their advocates.[652] In Russia, until the sixteenth
century, champions were never employed, contestants being always
obliged to appear in person. In 1550, the code known as the Sudebtnick
at length permitted the employment of champions in certain cases.[653]
* * * * *
There were two classes of pleaders, however, with whom the hiring
of champions was a necessity, and who could not be bound by the
limitations imposed on ordinary litigants. While the sexagenary, the
infant, and the crippled might possibly find a representative among
their kindred, and while the woman might appear by her husband or next
of kin, the ecclesiastical foundations and chartered towns had no
such resource. Thus, in a suit for taxes, in 1164, before the court
of Verona, Bonuszeno of Soavo proved that the village of Soavo had
exempted his father Petrobatalla from all local imposts for having
served as champion in a duel between it and a neighboring community,
and his claim to the reversion of the exemption was allowed.[654] So
a charter of 1104 relates how the monks of Noailles were harassed by
the seizure of some mills belonging to their abbey, claimed by an
official of William Duke of Aquitaine, until at length the duke agreed
to allow the matter to be decided by the duel, when the champion of
the church was victorious and the disputed property was confirmed to
the abbey.[655] At length the frequent necessity for this species of
service led to the employment of regularly appointed champions, who
fought the battles of their principals for an annual stipend, or for
some other advantages bestowed in payment. Du Cange, for instance,
gives the text of an agreement by which one Geoffry Blondel, in 1256,
bound himself to the town of Beauvais as its champion for a yearly
salary of twenty sous Parisis, with extra gratifications of ten livres
Tournois every time that he appeared in arms to defend its cause, fifty
livres if blows were exchanged, and a hundred livres if the combat
were carried to a triumphant issue. It is a little singular that
Beaumanoir, in digesting the customs of Beauvais but a few years later,
speaks of this practice as an ancient and obsolete one, of which he had
only heard through tradition.[656] That it continued to be in vogue
until long after, is shown by Monteil, who alludes to several documents
of the kind, bearing date as late as the fifteenth century.[657]
As a rule, ecclesiastical communities were likewise under the necessity
of employing champions to defend their rights. Sometimes, as we have
seen, these were hired, and were of no better character than those
of common pleaders. They seem to have been well paid if we may judge
from an agreement of 1258 between the Abbey of Glastonbury and Henry
de Fernbureg, by which the latter bound himself to defend by battle
the rights of the abbey to certain manors against the Bishop of Bath
and Wells, for which he is to receive thirty sterling marks, of which
ten are to be paid when battle is gaged, five when he is shaved for
the combat, and on the day of the duel fifteen are to be placed in
the hands of a third party to be paid over to him if he strikes a
single blow.[658] Sometimes, however, gentlemen did not disdain to
serve God by fighting for the Church in special cases, as when, so
late as the middle of the fourteenth century, the priory of Tynemouth
had a suit with a troublesome neighbor, Gerard de Widdrington, over
the manor of Hawkshaw, and Sir Thomas Colville, who had won great
renown in the French wars, appeared in court as its champion and
offered the combat. No one could be found hardy enough to accept his
challenge and the manor was adjudged to the priory.[659] There was,
moreover, another class of champions of the Church who occupied a
distinguished position, and were bound to defend the interests of
their clients in the field as well as in the court and in the lists;
they also led the armed retainers of the church when summoned by the
suzerain to national war. The office was honorable and lucrative, and
was eagerly sought by gentlemen of station, who turned to account the
opportunities of aggrandizement which it afforded; and many a noble
family traced its prosperity to the increase of ancestral property
thus obtained, directly or indirectly, by espousing the cause of fat
abbeys and wealthy bishoprics, as when, in the ninth century, the Abbot
of Figeac, near Cahors, bestowed on a neighboring lord sixty churches
and five hundred mansi on condition of his fighting the battles of the
abbey.[660] The influence of feudalism early made itself felt, and the
office of _Vidame_ or _Avoué_ became generally hereditary, after which
its possessors, for the most part, rendered themselves independent of
their benefactors, their exactions and spoliations becoming a favorite
theme of objurgation among churchmen, who regarded them as the worst
enemies of the foundations which they had sworn to protect.[661] In
many instances the position was a consideration obtained for donations
bestowed upon churches, so that in some countries, and particularly
in England, the title of _advocatus_ became gradually recognized as
synonymous with patron. Thus, one of the worst abuses of the Anglican
Church is derived from this source, and the forgotten wrongs of the
Middle Ages are perpetuated, etymologically at least, in the advowson
which renders the cure of souls too often a matter of bargain and sale.
CHAPTER VIII.
DECLINE OF THE JUDICIAL COMBAT.
So many influences were at work in favor of the judicial duel, and
it was so thoroughly engrafted in the convictions and prejudices of
Europe, that centuries were requisite for its extirpation. Curiously
enough, the earliest decisive action against it took place in
Iceland, where it was formally interdicted as a judicial proceeding
in 1011;[662] and though the assumption that this was owing to the
introduction of Christianity has been disproved, still, the fact that
both events were contemporaneous allows us to conclude that some
influence may have been exercised by even so imperfect a religion as
that taught to the new converts, though the immediate cause was a
_holm-gang_ between two skalds of distinction, Gunnlaug Ormstunga and
Skald-Rafn.[663] Norway was not long in following the example, for
about the same period the Jarls Erik and Sven Hakonsen abolished the
_holm-gang_, while paganism was as yet widely prevalent.[664] Denmark
was almost equally prompt: indeed Saxo Grammaticus in one passage
attributes to it the priority, asserting that when Poppo, in 965,
converted Harold Blaatand by the ordeal of red-hot iron, it produced so
powerful an effect as to induce the substitution of that mode of trial
for the previously existing wager of battle.[665] Yet it evidently was
not abolished for a century later, for when Harold the Simple, son of
Sven Estrith, ascended the throne in 1074, among the legal innovations
which he introduced was the substitution of the purgatorial oath for
all other forms of defence, which, as Saxo specifically states, put an
end to the wager of battle, and opened the door to great abuses.[666]
Fiercer tribes than these in Europe there were none, and their
abrogation of the battle trial at this early age is an inexplicable
anomaly. It was an exceptional movement, however, without results
beyond their own narrow boundaries. Other causes had to work slowly and
painfully for ages before man could throw off the bonds of ancestral
prejudice. One of the most powerful of these causes was the gradual
rise of the Tiers-État to consideration and importance. The sturdy
bourgeois, though ready enough with morion and pike to defend their
privileges, were usually addicted to a more peaceful mode of settling
private quarrels. Devoted to the arts of peace, seeing their interest
in the pursuits of industry and commerce, enjoying the advantage of
settled and permanent tribunals, and exposed to all the humanizing
and civilizing influences of close association in communities, they
speedily acquired ideas of progress very different from those of the
savage feudal nobles living isolated in their fastnesses, or of the
wretched serfs who crouched for protection around the castles of their
masters. Accordingly, the desire to escape from the necessity of
purgation by battle is almost coeval with the founding of the first
communes. The earliest instance of this tendency that I have met with
is contained in the charter granted to Pisa by the Emperor Henry IV.
in 1081, by which he agrees that any accusations which he may bring
against citizens can be tried without battle by the oaths of twelve
compurgators, except when the penalties of death or mutilation are
involved; and in questions concerning land, the duel is forbidden when
competent testimony can be procured.[667] Limited as these concessions
may seem, they were an immense innovation on the prejudices of the
age, and are important as affording the earliest indication of the
direction which the new civilization was assuming. More comprehensive
was the privilege granted soon afterwards by Henry I. to the citizens
of London, by which he released them wholly from the duel, and this was
followed by similar exemptions during the twelfth century bestowed on
one town after another; but it was not till near the end of the century
that in Scotland William the Lion granted the first charter of this
kind to Inverness.[668] About the year 1105, the citizens of Amiens
received a charter from their bishop, St. Godfrey, in which the duel is
subjected to some restriction—not enough in itself, perhaps, to effect
much reform, yet clearly showing the tendency which existed. According
to the terms of this charter no duel could be decreed concerning any
agreement entered into before two or three magistrates if they could
bear witness to its terms.[669] One of the earliest instances of
absolute freedom from the judicial combat occurs in a charter granted
to the town of Ypres, in 1116 by Baldwin VII. of Flanders, when he
substituted the oath with four conjurators in all cases where the
duel or the ordeal was previously in use.[670] This was followed by a
similar grant to the inhabitants of Bari by Roger, King of Naples,
in 1132.[671] Curiously enough, almost contemporary with this is a
similar exemption bestowed on the rude mountaineers of the Pyrenees.
Centulla I. of Bigorre, who died in 1138, in the Privileges of Lourdes,
authorizes the inhabitants to prosecute their claims without the
duel;[672] and his desire to discourage the custom is further shown by
a clause permitting the pleader who has gaged his battle to withdraw
on payment of a fine of only five sous to the seigneur, in addition to
what the authorities of the town may levy.[673] Still more decided was
a provision of the laws of Soest in Westphalia, somewhat earlier than
this, by which the citizens were absolutely prohibited from appealing
each other in battle;[674] and this is also to be found in a charter
granted to the town of Tournay by Philip Augustus in 1187, though in
the latter the cold water ordeal is prescribed for cases of murder and
of wounding by night.[675] In the laws of Ghent, granted by Philip of
Alsace in 1178, there is no allusion to any species of ordeal, and
all proceedings seem to be based on the ordinary processes of law,
while in the charter of Nieuport, bestowed by the same prince in 1163,
although the ordeal of red-hot iron and compurgatorial oaths are freely
alluded to as means of rebutting accusations, there is no reference
whatever to the battle trial, showing that it must then have been no
longer in use.[676] The charters granted to Medina de Pomar in 1219 by
Fernando III. of Castile, and to Treviño by Alfonso X. in 1254, provide
that there shall be no trial by single combat.[677] Louis VIII. in
the charter of Crespy, granted in 1223, promised that neither himself
nor his officials should in future have the right to demand the wager
of battle from its inhabitants;[678] and shortly after, the laws of
Arques, conceded by the abbey of St. Bertin in 1231, provided that the
duel could only be decreed between two citizens of that commune when
both parties should assent to it.[679] In the same spirit the laws of
Riom, granted by Alphonse de Poitiers, the son of St. Louis, in 1270,
declared that no inhabitant of the town should be forced to submit
to the wager of battle.[680] In the customs of Maubourguet, granted
in 1309, by Bernard VI. of Armagnac, privileges similar to those of
Lourdes, alluded to above, were included, rendering the duel a purely
voluntary matter.[681] Even in Scotland, partial exemptions of the same
kind in favor of towns are found as early as the twelfth century. A
stranger could not force a burgher to fight, except on an accusation of
treachery or theft, while, if a burgher desired to compel a stranger
to the duel, he was obliged to go beyond the confines of the town. A
special privilege was granted to the royal burghs, for their citizens
could not be challenged by the burghers of nobles or prelates, while
they had the right to offer battle to the latter.[682] Much more
efficient was the clause of the third _Keure_ of Bruges, granted in
1304 by Philip son of Count Guy of Flanders, which strictly prohibited
the duel. Any one who gave or received a wager of battle was fined
sixty sols, one-half for the benefit of the town, and the other for the
count.[683]
The special influence exercised by the practical spirit of trade in
rendering the duel obsolete is well illustrated by the privilege
granted, in 1127, by William Clito, to the merchants of St. Omer,
declaring that they should be free from all appeals to single combat in
all the markets of Flanders.[684] In a similar spirit, when Frederic
Barbarossa, in 1173, was desirous of attracting to the markets of
Aix-la-Chapelle and Duisbourg the traders of Flanders, in the code
which he established for the protection of such as might come, he
specially enacted that they should enjoy immunity from the duel.[685]
Even Russia found it advantageous to extend the same exemption to
foreign merchants, and in the treaty which Mstislas Davidovich made in
1228 with the Hanse-town of Riga, he granted to the Germans who might
seek his dominions immunity from liability to the red-hot iron ordeal
and wager of battle.[686]
Germany seems to have been somewhat later than France or Italy in
the movement, yet her burghers evidently regarded it with favor.
Frederic II., who recorded his disapproval of the duel in his Sicilian
Constitutions, was ready to encourage them in this tendency, and in his
charters to Ratisbon and Vienna he authorized their citizens to decline
the duel and clear themselves by compurgation,[687] while as early as
1219 he exempted the Nürnbergers from the appeal of battle throughout
the empire.[688] The burgher law of Northern Germany alludes to the
judicial combat only in criminal charges, such as violence, homicide,
housebreaking, and theft;[689] and this is limited in the statutes of
Eisenach, of 1283, which provide that no duel shall be adjudged in the
town, except in cases of homicide, and then only when the hand of the
murdered man shall be produced in court at the trial.[690] In 1291,
Rodolph of Hapsburg issued a constitution declaring that the burghers
of the free imperial cities should not be liable to the duel outside
of the limits of their individual towns,[691] and in the Kayser-Recht
this privilege is extended by declaring the burghers exempt from all
challenge to combat, except in a suit brought by a fellow-citizen.[692]
Notwithstanding this, special immunities continued to be granted,
showing that these general laws were of little effect unless supported
by the temper of the people. Thus Louis IV. in 1332 gave such a
privilege to Dortmund, and so late as 1355 Charles IV. bestowed it on
the citizens of Worms.[693]
A somewhat noteworthy exception to this tendency on the part of the
municipalities is to be found in Moravia. There, under the laws of
Ottokar Premizlas, in 1229 the duel was forbidden between natives
and only allowed when one of the parties was a foreigner. Yet his
son Wenceslas, some years later, confirmed the customs of the town
of Iglau, in which the duel was a recognized feature enforced by an
ascending scale of fines. If the accused compounded with the prosecutor
before the duel was ordered he paid the judge one mark; after it was
adjudged, two marks; after the lists were entered, three marks; after
weapons were taken, four marks; and if he waited till the weapons were
drawn he had to pay five marks.[694]
* * * * *
All these were local regulations which had no direct bearing on general
legislation, except in so far as they might assist in softening the
manners of their generation and aiding in the general spread of
civilization. A more efficient cause was to be found in the opposition
of the Church. From Liutprand the Lombard to Frederic II., a period
of five centuries, no secular lawgiver, south of Denmark, seems to
have thought of abolishing the judicial combat as a measure of general
policy, and those whose influence was largest were the most conspicuous
in fostering it. During the whole of this period the Church was
consistently engaged in discrediting it, notwithstanding that the local
interests or pride of individual prelates might lead them to defend the
vested privileges connected with it in their jurisdictions.
When King Gundobald gave form and shape to the battle ordeal in
digesting the Burgundian laws, Avitus, Bishop of Vienne, remonstrated
loudly against the practice as unjust and unchristian. A new
controversy arose on the occasion of the duel between the Counts Bera
and Sanila, to which allusion has already been made as one of the
important events in the reign of Louis le Débonnaire. St. Agobard,
Archbishop of Lyons, took advantage of the opportunity to address to
the Emperor a treatise in which he strongly deprecated the settlement
of judicial questions by the sword; and he subsequently wrote another
tract against ordeals in general, consisting principally of scriptural
texts with a running commentary, proving the incompatibility of
Christian doctrines with these unchristian practices.[695] Some
thirty-five years later the Council of Valence, in 855, denounced
the wager of battle in the most decided terms, praying the Emperor
Lothair to abolish it throughout his dominions, and adopting a canon
which not only excommunicated the victor in such contests, but refused
the rights of Christian sepulture to the victim.[696] By this time
the forces of the church were becoming consolidated in the papacy,
and the Vicegerent of God was beginning to make his voice heard
authoritatively throughout Europe. The popes accordingly were not long
in protesting energetically against the custom. Nicholas I. denounced
it vigorously as a tempting of God, unauthorized by divine law,[697]
and his successors consistently endeavored, as we have already seen, to
discredit it. In the latter half of the twelfth century, Peter Cantor
argues that a champion undertaking the combat relies either on his
superior strength and skill, which is manifest injustice; or on the
justice of his cause, which is presumption; or on a special miracle,
which is a devilish tempting of God.[698] Alexander III. decided
that a cleric engaging in a duel, whether willingly or unwillingly,
whether victor or vanquished, was subject to deposition, but that his
bishop could grant him a dispensation provided there had been loss of
neither life nor limb.[699] Towards the close of the century Celestine
III. went further, and in the case of a priest who had put forward a
champion who had slain his antagonist he decided that both principal
and champion were guilty of homicide and the priest could no longer
perform his functions, though he might have a dispensation to hold his
benefice.[700] These cases suggest one of the reasons why the repeated
papal prohibitions were so ineffective. The all-pervading venality of
the Church of the period found in the dispensing power an exhaustless
source of profit, and dispensations for “irregularities” of all kinds
were so habitually issued that the threatened punishments lost their
terrors, and as Rome gradually absorbed the episcopal jurisdiction,
offenders of all kinds knew that relief from the operation of the
canons could always be had there. Some reason for setting them aside
was never hard to find. In 1208 a canon of Bourges was elected prior;
his disappointed competitor claimed that he was ineligible because
he had once served as judge in a duel in which there was effusion of
blood. Innocent III. was appealed to, who decided that the canon was
capable of promotion to any dignity, and the chief reason alleged was
that the evil custom of the duel was so universal in some regions
that ecclesiastics of all classes from the lowest to the highest were
habitually concerned in them.[701]
Innocent III., however, took care that the great council of Lateran in
1215 should confirm all the previous prohibitions of the practice.[702]
It was probably this papal influence that led Simon de Montfort, the
special champion of the church, to limit the use of the duel in the
territories which he won in his crusade against the Count of Toulouse.
In a charter given December 1, 1212, he forbids its use in all the
seignorial courts in his dominions, except in cases of treason, theft,
robbery, and murder.[703] De Montfort’s dependence on Rome, however,
was exceptional, and Christendom at large was not as yet prepared to
appreciate the reformatory efforts of the popes. The most that the
Council of Paris, held in 1212 for the reformation of the church by the
cardinal-legate Robert de Curzon, could do was to order the bishops
not to permit the duel in cemeteries or other sacred places.[704]
The opposition of the church as represented by its worthiest and most
authoritative spokesmen continued. St. Ramon de Peñafort, the leading
canonist of his time, about 1240, asserts uncompromisingly that all
concerned in judicial combats are guilty of mortal sin; the sin is
somewhat lightened indeed when the pleader is obliged to accept the
combat by order of the judge, but the judge himself, the assessors
who counsel it, and the priest who gives the benediction all sin most
gravely; if death occurs they are all homicides and are rendered
“irregular.”[705] About the same time Alexander Hales ingeniously
argued away the precedent of David and Goliath by showing that it
was simply a prefiguration of the Passion, in which Christ triumphed
over Satan as in a duel.[706] With the development, moreover, of the
subtilties of scholastic theology the doctors found that the duel was
less objectionable than the other forms of ordeal, because, as Thomas
Aquinas remarks, the hot iron or boiling water is a direct tempting
of God, while the duel is only a matter of chance, for no one expects
miraculous interposition unless the champions are very unequal in age
or strength.[707] This struck at the very root of the faith on which
confidence in the battle ordeal was based, yet in spite of it the
persistence of ecclesiastical belief in the divine interposition is
fairly illustrated by a case, related with great triumph by monkish
chroniclers, as late as the fourteenth century, when a duel was
undertaken by direction of the Virgin Mary herself. In 1325, according
to the story, a French Jew feigned conversion to Christianity in
order to gratify his spleen by mutilating the images in the churches,
and at length he committed the sacrilege of carrying off the holy
wafer to aid in the hideous rites of his fellows. The patience of
the Virgin being at last exhausted, she appeared in a vision to a
certain smith, commanding him to summon the impious Israelite to the
field. A second and a third time was the vision repeated without
effect, till at last the smith, on entering a church, was confronted
by the Virgin in person, scolded for his remissness, promised an
easy victory, and forbidden to pass the church door until his duty
should be accomplished. He obeyed and sought the authorities. The
duel was decreed, and the unhappy Hebrew, on being brought into the
lists, yielded without a blow, falling on his knees, confessing his
unpardonable sins, and crying that he could not resist the thousands of
armed men who appeared around his adversary with threatening weapons.
He was accordingly promptly burned, to the great satisfaction of all
believers.[708]
Evidently the clergy at large did not second the reformatory efforts of
their pontiffs. There was not only the ancestral belief implanted in
the minds of those from among whom they were drawn, but the seignorial
rights enjoyed by prelates and abbeys were not to be willingly
abandoned. The progress of enlightenment was slow and the teachings
of the papacy can only be enumerated as one of the factors at work to
discredit the judicial duel.[709] We can estimate how deeply rooted
were the prejudices to be overcome when we find Dante seriously
arguing that property acquired by the duel is justly acquired; that
God may be relied upon to render the just cause triumphant; that it is
wicked to doubt it, while it is folly to believe that a champion can be
the weaker when God strengthens him.[710]
In its endeavors to suppress the judicial duel the Church had to weigh
opposing difficulties. It could, as we have seen (p. 156), enjoin its
members from taking part in such combats and from adjudging them in
their jurisdictions; it could decree that priests became “irregular” if
death ensued in duels where they gave the benediction, or perhaps even
where they had only brought relics on which the combatants took the
oaths. But over the secular courts it had only the power of persuasion,
or at most of moral coercion, and among the canon doctors there was
considerable discussion as to the extent to which it could pronounce
participation in the duel a mortal sin, entailing excommunication and
denial of the rites of sepulture. When a man sought the duel, when he
demanded it of the judge and provoked his adversary to it, he could be
pronounced guilty of homicide if death ensued. It was otherwise where
an innocent man was accused of a mortal crime and would be hanged if
he refused the duel adjudged to him by court. It was argued that the
Church was a harsh mother if she forced her children thus to submit
to death and infamy for a scruple of recent origin, raised merely by
papal command, though the more rigid casuists insisted even on this.
All agreed, however, that in civil cases a man ought rather to undergo
the loss of his property than to imperil his soul and disobey the
Church.[711]
* * * * *
Perhaps the most powerful cause at work was the revival of the Roman
jurisprudence, which in the thirteenth century commenced to undermine
all the institutions of feudalism. Its theory of royal supremacy was
most agreeable to sovereigns whose authority over powerful vassals
was scarcely more than nominal; its perfection of equity between
man and man could not fail to render it enticing to clear-minded
jurists, wearied with the complicated and fantastic privileges of
ecclesiastical, feudal, and customary law. Thus recommended, its
progress was rapid. Monarchs lost no opportunity of inculcating respect
for that which served their purpose so well, and the civil lawyers,
who were their most useful instruments, speedily rose to be a power in
the state. Of course the struggle was long, for feudalism had arisen
from the necessities of the age, and a system on which were based all
the existing institutions of Europe could only be attacked in detail,
and could only be destroyed when the advance of civilization and the
general diffusion of enlightenment had finally rendered it obsolete.
The French Revolution was the final battle-field, and that terrible
upheaval was requisite to obliterate a form of society whose existence
had numbered nine hundred years.
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 poisoning or
secret murder and treason where other proof is unattainable; and even
in these it is placed at the option of the accuser alone; moreover,
if the accuser commences by offering proof and fails he cannot then
have recourse to combat; the accused must be acquitted.[712] The
German Imperial code, known as the Kayser-Recht, which was probably
compiled about the same time, contains a similar denunciation of the
uncertainty of the duel, but does not venture on a prohibition,
merely renouncing all responsibility for it, while recognizing it as a
settled custom.[713] In the portion, however, devoted to municipal law,
which is probably somewhat later in date, the prohibition is much more
stringently expressed, manifesting the influences at work;[714] but
even this is contradicted by a passage almost immediately preceding it.
How little influence these wise counsels had, in a state so intensely
feudal and aristocratic, is exemplified in the Suabian and Saxon codes,
where the duel plays so important a part. Yet the desire to escape it
was not altogether confined to the honest burghers of the cities, for
in 1277 Rodolph of Hapsburg, even before he granted immunity to the
imperial towns, gave a charter to the duchy of Styria, securing to the
Styrians their privileges and rights, and in this he forbade the duel
in all cases where sufficient testimony could be otherwise obtained;
while the general tenor of the document shows that this was regarded as
a favor.[715] The Emperor Albert I. was no less desirous of restricting
the duel, and in ordinary criminal cases endeavored to substitute
compurgation.[716]
Still, as late as 1487, the Inquisitor Sprenger, in discountenancing
the red-hot iron ordeal in witch-trials, feels himself obliged to
meet the arguments of those who urged the lawfulness of the duel as
a reason for permitting the cognate appeal to the ordeal. To this he
naïvely replies, as Thomas Aquinas had done, that they are essentially
different, as the champions in a duel are about equally matched, and
the killing of one of them is a simple affair, while the iron ordeal,
or that of drinking boiling water, is a tempting of God by requiring a
miracle.[717] This shows at the same time how thoroughly the judicial
combat had degenerated from its original theory, and that the appeal
to the God of battles had become a mere question of chance, or of the
comparative strength and skill of a couple of professional bravos.
In Spain the influence of Roman institutions, transmitted through
the Wisigothic laws, had allowed to the judicial duel less foothold
than in other mediæval lands, and the process of suppressing it began
early. In Aragon the chivalrous Jayme I., _el Conquistador_, in the
franchises granted to Majorca, on its conquest in 1230, prohibited
the judicial combat in both civil and criminal cases.[718] Within
forty years from this, Alfonso the Wise of Castile issued the code
generally known as Las Siete Partidas. In this he evidently desired
to curb the practice as far as possible, stigmatizing it as a custom
peculiar to the military class (_por lid de caballeros ò de peones_),
and as reprehensible both as a tempting of God and as a source of
perpetual injustice.[719] Accordingly, he subjected it to very
important limitations. The wager of battle could only be granted by
the king himself; it could only take place between gentlemen, and in
personal actions alone which savored of treachery, such as murder,
blows, or other dishonor, inflicted without warning or by surprise.
Offences committed against property, burning, forcible seizure, and
other wrongs, even without defiance, were specifically declared not
subject to its decision, the body of the plaintiff being its only
recognized justification.[720] Even in this limited sphere, the consent
of both parties was requisite, for the appellant could prosecute in
the ordinary legal manner, and the defendant, if challenged to battle,
could elect to have the case tried by witnesses or inquest, nor could
the king himself refuse him the right to do so.[721] When to this
is added that a preliminary trial was requisite to decide whether
the alleged offence was treacherous in its character or not, it will
be seen that the combat was hedged around with such difficulties
as rendered its presence on the statute book scarcely more than an
unmeaning concession to popular prejudice; and if anything were wanting
to prove the utter contempt of the legislator for the decisions of the
battle-trial, it is to be found in the regulation that if the accused
was killed on the field, without confessing the imputed crime, he was
to be pronounced innocent, as one who had fallen in vindicating the
truth.[722] The same desire to restrict the duel within the narrowest
possible limits is shown in the rules concerning the employment of
champions, which have been already alluded to. Although the Partidas
as a scheme of legislation was not confirmed until the cortes of 1348
these provisions were lasting and produced the effect designed. It is
true that in 1342 we hear of a combat ordered by Alfonso XI. between
Pay Rodriguez de Ambia and Ruy Paez de Biedma, who mutually accused
each other of treason. It was fought before the king and lasted for
three days without either party obtaining the victory, till, on the
evening of the third day, the king entered the lists and pacified
the quarrel, saying that both antagonists could serve him better by
fighting the Moors, with whom he was at war, than by killing each
other.[723] Not long afterwards Alfonso in the Ordenamiento de Alcalá,
issued in 1348, repeated the restrictions of the Partidas, but in a
very cursory manner, and rather incidently than directly, showing
that the judicial combat was then a matter of little importance.[724]
In fact, the jurisprudence of Spain was derived so directly from the
Roman law through the Wisigothic code and its Romance recension, the
Fuero Juzgo, that the wager of battle could never have become so
deeply rooted in the national faith as among the more purely barbarian
races. It was therefore more readily eradicated, and yet, as late as
the sixteenth century, a case occurred in which the judicial duel was
prescribed by Charles V., in whose presence the combat took place.[725]
The varying phases of the struggle between progress and centralization
on the one side, and chivalry and feudalism on the other, were
exceedingly well marked in France, and as the materials for tracing
them are abundant, a more detailed account of the gradual reform may
perhaps have interest, as illustrating the long and painful strife
which has been necessary to evoke order and civilization out of the
incongruous elements from which modern European society has sprung.
The sagacity of St. Louis, so rarely at fault in the details of civil
administration, saw in the duel not only an unchristian and unrighteous
practice, but a symbol of the disorganizing feudalism which he so
energetically labored to suppress. His temper led him rather to adopt
pacific measures, in sapping by the forms of law the foundations
of the feudal power, than to break it down by force of arms as his
predecessors had attempted. The centralization of the Roman polity
might well appear to him and his advisers the ideal of a well-ordered
state, and the royal supremacy had by this time advanced to a point
where the gradual extension of the judicial prerogatives of the
crown might prove the surest mode of humbling eventually the haughty
vassals who had so often bearded the sovereign. No legal procedure
was more closely connected with feudalism, or embodied its spirit
more thoroughly, than the wager of battle, and Louis accordingly did
all that lay in his power to abrogate the custom. The royal authority
was strictly circumscribed, however, and though, in his celebrated
Ordonnance of 1260, he formally prohibited the battle trial in the
territory subject to his jurisdiction,[726] he was obliged to admit
that he had no power to control the courts of his barons beyond the
domains of the crown.[727] Even within this comparatively limited
sphere, we may fairly assume from some passages in the Établissements,
compiled about the year 1270, that he was unable to do away entirely
with the practice. It is to be found permitted in some cases both civil
and criminal, of peculiarly knotty character, admitting of no other
apparent solution.[728] It seems, indeed, remarkable that he should
even have authorized personal combat between brothers, in criminal
accusations, only restricting them in civil suits to fighting by
champions,[729] when the German law of nearly the same period forbids
the duel, like marriage, between relations in the fifth degree, and
states that previously it had been prohibited to those connected in the
seventh degree.[730]
Even this qualified reform provoked determined opposition. Every motive
of pride and interest prompted resistance. The prejudices of birth, the
strength of the feudal principle, the force of chivalric superstition,
the pride of self-reliance gave keener edge to the apprehension of
losing an assured source of revenue. The right of granting the wager of
battle was one of those appertaining to the _hauts-justiciers_, and so
highly was it esteemed that paintings of champions fighting frequently
adorned their halls as emblems of their prerogatives; Loysel, indeed,
deduces from it a maxim, “The pillory, the gibbet, the iron collar, and
paintings of champions engaged, are marks of high jurisdiction.”[731]
This right had a considerable money value, for the seigneur at whose
court an appeal of battle was tried received from the defeated party
a fine of sixty livres if he was a gentleman, and sixty sous if a
roturier, besides a perquisite of the horses and arms employed, and
heavy mulcts for any delays which might be asked,[732] besides fines
from those who withdrew after the combat was decreed.[733] Nor was
this all, for during the centuries of its existence there had grown
and clustered around the custom an immeasurable mass of rights and
privileges which struggled lustily against destruction. Thus, hardly
had the ordonnance of prohibition been issued when, in 1260, a knight
named Mathieu le Voyer actually brought suit against the king for the
loss it inflicted upon him. He dolefully set forth that he enjoyed the
privilege of guarding the lists in all duels adjudged in the royal
court at Corbon, for which he was entitled to receive a fee of five
sous in each case; and, as his occupation thus was gone, he claimed
compensation, modestly suggesting that he be allowed the same tax
on all inquests held under the new law.[734] How closely all such
sources of revenue were watched is illustrated by a case occurring in
1286, when Philippe le Bel remitted the fines accruing to him from a
duel between two squires adjudged in the royal court of Tours. The
seneschal of Anjou and Touraine brought suit before the Parlement
of Paris to recover one-third of the amount, as he was entitled to
that proportion of all dues arising from combats held within his
jurisdiction, and he argued that the liberality of the king was not to
be exercised to his disadvantage. His claim was pronounced just, and a
verdict was rendered in his favor.[735]
But the loss of money was less important than the curtailment of
privilege and the threatened absorption of power of which this reform
was the precursor. Every step in advancing the influence of peaceful
justice, as expounded by the jurists of the royal courts, was a heavy
blow to the independence of the feudatories. They felt their ancestral
rights assailed at the weakest point, and they instinctively recognized
that, as the jurisdiction of the royal bailiffs became extended, and as
appeals to the court of the Parlement of Paris became more frequent,
their importance was diminished, and their means of exercising a petty
tyranny over those around them were abridged. Entangled in the mazes of
a code in which the unwonted maxims of Roman law were daily quoted with
increasing veneration, the impetuous seigneur found himself the prey
of those whom he despised, and he saw that subtle lawyers were busily
undoing the work at which his ancestors had labored for centuries.
These feelings are well portrayed in a song of the period, exhumed
not long since by Le Roux de Lincy. Written apparently by one of the
sufferers, it gives so truthful a view of the conservative ideas of the
thirteenth century that a translation of the first stanza may not be
amiss:—
Gent de France, mult estes esbahis!
Je di à touz ceus qui sont nez des fiez, etc.[736]
Ye men of France, dismayed and sore
Ye well may be. In sooth, I swear,
Gentles, so help me God, no more
Are ye the freemen that ye were!
Where is your freedom? Ye are brought
To trust your rights to inquest law,
Where tricks and quibbles set at naught
The sword your fathers wont to draw.
Land of the Franks!—no more that name
Is thine—a land of slaves art thou,
Of bondsmen, wittols, who to shame
And wrong must bend submissive now!
Even legists—de Fontaines, whose admiration of the Digest led him on
all occasions to seek an incongruous alliance between the customary
and imperial law, and Beaumanoir, who in most things was far in
advance of his age, and who assisted so energetically in the work of
centralization—even these enlightened lawyers hesitate to object to the
principles involved in the battle trial, and while disapproving of the
custom, express their views in language which contrasts strongly with
the vigorous denunciations of Frederic II. half a century earlier.[737]
How powerful were the influences thus brought to bear against the
innovation is shown by the fact that when the mild but firm hand
of St. Louis no longer grasped the sceptre, his son and successor
could not maintain his father’s laws. In 1280 there is a record of
a duel adjudged in the king’s court between Jeanne de la Valete and
the Sire of Montricher on an accusation of arson;[738] and about 1283
Philippe even allowed himself to preside at a judicial duel, scarcely
more than twenty years after the promulgation of the ordonnance of
prohibition.[739] The next monarch, Philippe le Bel, was at first
guilty of the same weakness, for when in 1293 the Count of Armagnac
accused Raymond Bernard of Foix of treason, a duel between them was
decreed, and they were compelled to fight before the king at Gisors;
though Robert d’Artois interfered after the combat had commenced, and
induced Philippe to separate the antagonists.[740] Philippe, however,
was too astute not to see that his interests lay in humbling feudalism
in all its forms; while the rapid extension of the jurisdiction of the
crown, and the limitations on the seignorial courts, so successfully
invented and asserted by the lawyers, acting by means of the Parlement
through the royal bailiffs, gave him power to carry his views into
effect such as had been enjoyed by none of his predecessors. Able and
unscrupulous, he took full advantage of his opportunities in every way,
and the wager of battle was not long in experiencing the effect of his
encroachments. Still, he proceeded step by step, and the vacillation of
his legislation shows how obstinate was the spirit with which he had
to deal. In 1296 he prohibited the judicial duel in time of war, and
in 1303 he was obliged to repeat the prohibition.[741] It was probably
not long after this that he interdicted the duel wholly[742]—possibly
impelled thereto by a case occurring in 1303, in which he is described
as forced to grant the combat between two nobles, on an accusation
of murder, very greatly against his wishes, and in spite of all his
efforts to dissuade the appellant.[743]
In thus abrogating the wager of battle, Philippe le Bel was in advance
of his age. Before three years were over he was forced to abandon
the position he had assumed; and though he gave as a reason for the
restoration of the duel that its absence had proved a fruitful source
of encouragement for crime and villany,[744] yet at the same time he
took care to place on record the assertion of his own conviction that
it was worthless as a means of seeking justice.[745] In thus legalizing
it by the Ordonnance of 1306, however, he by no means replaced it on
its former footing. It was restricted to criminal cases involving the
death penalty, excepting theft, and it was only permitted when the
crime was notorious, the guilt of the accused probable, and no other
evidence attainable.[746] The ceremonies prescribed, moreover, were
fearfully expensive, and put it out of the reach of all except the
wealthiest pleaders. As the ordonnance, which is very carefully drawn,
only refers to appeals made by the prosecutor, it may fairly be assumed
that the defendant could merely accept the challenge and had no right
to offer it.
Even with these limitations, Philippe was not disposed to sanction
the practice within the domains of the crown, for, the next year
(1307), we find him commanding the seneschal of Toulouse to allow
no duel to be adjudged in his court, but to send all cases in which
the combat might arise to the Parlement of Paris for decision.[747]
This was equivalent to a formal prohibition. During the whole of the
period under consideration, numerous causes came before the Parlement
concerning challenges to battle, on appeals from various jurisdictions
throughout the country, and it is interesting to observe how uniformly
some valid reason was found for its refusal. In the public register of
decisions, extending from 1254 to 1318, scarcely a single example of
its permission is to be found.[748] One doubtful instance which I have
observed is a curious case occurring in 1292, wherein a man accused
a woman of homicide in the court of the Chapter of Soissons, and the
royal officers interfered on the ground that the plaintiff was a
bastard. As by the local custom he thus was in some sort a serf of the
crown, they assumed that he could not risk his body without the express
permission of the king. The Chapter contended for the appellant’s
legitimacy, and the case became so much obscured by the loss of the
record of examination made, that the Parlement finally shuffled it out
of court without any definite decision.[749]
Two decisions, in 1309, show that the Ordonnance of 1306 was in force,
for while they admit that the duel was legally possible, the cases
are settled by inquest as capable of proof by investigation. One of
these was an incident in the old quarrel between the Counts of Foix
and Armagnac, and its decision shows how great a stride had been made
since their duel of 1293. Raymond de Cardone, a kinsman of Foix, gaged
his battle in the king’s court against Armagnac; Armagnac did the same
against Foix and claimed that his challenge had priority over that
of Raymond, while Bernard de Comminges also demanded battle of Foix.
All these challenges arose out of predatory border incursions between
these nobles, and in its verdict the Parlement refuses to grant the
combat in any of them, orders all the parties to swear peace and give
bail to keep it, and moreover condemns Foix in heavy damages to his
adversaries and to the king, whose territories he had invaded in one
of his forays. The Count of Foix made some objection to submitting to
the sentence, but a short imprisonment brought him to his senses.[750]
A more thorough vindication of the royal jurisdiction over powerful
feudatories could scarcely be imagined, and the work of the civil
lawyers seemed to be perfectly accomplished. It was the same with all
the variety of cases involving the duel which were brought to the
cognizance of the Parlement. Some ingenious excuse was always found for
refusing it, whether by denying the jurisdiction of the court which had
granted it, or by alleging other reasons more or less frivolous, the
evident intention of all the _arrêts_ being to restrict the custom,
as allowed under the ordonnance, within limits so narrow as to render
it practically a nullity. The astute lawyers who composed the royal
court knew too well the work committed to them to hesitate as to their
conclusions, while Philippe’s distaste for the duel probably received
a stimulus when, at the Council of Vienne in 1312 he endeavored to
obtain the condemnation of the memory of Boniface VIII., and two
Catalan knights offered to prove by the single combat that the late
pope had been legitimately elected and had not been a heretic.[751]
In spite of these efforts, the progress of reform was slow. On the
breaking out afresh of the perennial contest with Flanders, Philippe
found himself, in 1314, obliged to repeat his order of 1296, forbidding
all judicial combats during the war, and holding suspended such as were
in progress.[752] As these duels could have little real importance
in crippling his military resources, it is evident that he seized
such occasions to accomplish under the war power what his peaceful
prerogative was unable to effect, and it is a striking manifestation of
his zeal in the cause, that he could turn aside to give attention to it
amid the preoccupations of the exhausting struggle with the Flemings.
Yet how little impression he made, and how instinctively the popular
mind still turned to the battle ordeal, as the surest resource in all
cases of doubt, is well illustrated by a passage in a rhyming chronicle
of the day. When the close of Philippe’s long and prosperous reign was
darkened by the terrible scandal of his three daughters-in-law, and two
of them were convicted of adultery, Godefroy de Paris makes the third,
Jeanne, wife of Philippe le Long, offer at once to prove her innocence
by the combat:—
Gentil roy, je vous requier, sire,
Que vous m’oiez en defendant.
Se nul ou nule demandant
Me vait chose de mauvestie,
Mon cuer sens si pur, si haitie,
Que bonement me deffendrai,
Ou tel champion baillerai,
Qui bien saura mon droit deffendre,
S’il vous plest à mon gage prendre.[753]
* * * * *
The iron hand of Philippe was no sooner withdrawn than the nobles made
desperate efforts to throw off the yoke which he had so skilfully and
relentlessly imposed on them. His son, Louis Hutin, not yet firmly
seated on the throne, was constrained to yield a portion of the
newly-acquired prerogative. The nobles of Burgundy, for instance, in
their formal list of grievances, demanded the restoration of the wager
of battle as a right of the accused in criminal cases, and Louis was
obliged to promise that they should enjoy it according to ancient
custom.[754] Those of Amiens and Vermandois were equally clamorous, and
for their benefit he re-enacted the Ordonnance of 1306, permitting the
duel in criminal prosecutions where other evidence was deficient, with
an important extension authorizing its application to cases of theft,
in opposition to previous usage.[755] A legal record, compiled about
1325 to illustrate the customs of Picardy, shows by a group of cases
that it was still quite common, and that indeed it was the ordinary
defence in accusations of homicide.[756] The nobles of Champagne
demanded similar privileges, but Louis, by the right of his mother,
Jeanne de Champagne, was Count of Champagne, and his authority was
less open to dispute. He did not venture on a decided refusal, but an
evasive answer, which was tantamount to a denial of the request,[757]
showed that his previous concessions were extorted, and not willingly
granted. Not content with this, the Champenois repeated their demand,
and received the dry response, that the existing edicts on the subject
must be observed.[758]
The threatened disturbances were avoided, and during the succeeding
years the centralization of jurisdiction in the royal courts made rapid
progress. It is a striking evidence of the successful working of the
plans of St. Louis and Philippe le Bel that several ordonnances and
charters granted by Philippe le Long in 1318 and 1319, while promising
reforms in the procedures of the bailiffs and seneschals, and in the
manner of holding inquests, are wholly silent on the subject of the
duel, affording a fair inference that complaints on that score were
no longer made.[759] Philip of Valois was especially energetic in
maintaining the royal jurisdiction, and when in 1330 he was obliged
to restrict the abusive use of appeals from the local courts to
the Parlement,[760] it is evident that the question of granting or
withholding the wager of battle had become practically a prerogative of
the crown. That the challenging of witnesses must ere long have fallen
into desuetude is shown by an edict of Charles VI., issued in 1396,
by which he ordered that the testimony of women should be received in
evidence in all the courts throughout his kingdom.[761]
Though the duel was thus deprived, in France, of its importance as an
ordinary legal procedure, yet it was by no means extinguished, nor had
it lost its hold upon the confidence of the people. An instructive
illustration of this is afforded by the well-known story of the Dog
of Montargis. Though the learned Bullet[762] has demonstrated the
fabulous nature of this legend, and has traced its paternity up to
the Carlovingian romances, still, the fact is indubitable that it was
long believed to have occurred in 1371, under the reign of Charles le
Sage, and that authors nearly contemporary with that period recount the
combat of the dog and the knight as an unquestionable fact, admiring
greatly the sagacity of the animal, and regarding as a matter of course
both the extraordinary judicial proceedings and the righteous judgment
of God which gave the victory to the greyhound.
In 1371 there was battle gaged between Sir Thomas Felton, Seneschal of
Aquitaine, and Raymond de Caussade, Seigneur de Puycornet. Apparently
they felt that a fair field could not be had in either French or
English territory, and they applied to Pedro el Ceremonioso of
Aragon to provide the lists for them. Pedro acceded to the request
and promised to preside, provided there was due cause for a judicial
duel and that the arms were agreed upon in advance, and he sent the
combatants safe-conducts to come to Aragon. He assigned the city of
Valencia as the place of combat, and when there was an endeavor to
break off the affair on the ground that it concerned the kings of
France and England, he replied that it was now too late and that the
battle must take place.[763]
In 1386, the Parlement of Paris was occupied with a subtle discussion
as to whether the accused was obliged, in cases where battle was gaged,
to give the lie to the appellant, under pain of being considered to
confess the crime charged, and it was decided that the lie was not
essential.[764] The same year occurred the celebrated duel between
the Chevalier de Carrouges and Jacques le Gris, to witness which the
king shortened a campaign, and in which the appellant was seconded by
Waleran, Count of St. Pol, son-in-law of the Black Prince. Nothing can
well be more impressive than the scene so picturesquely described by
Froissart. The cruelly wronged Dame de Carrouges, clothed in black,
is mounted on a sable scaffold, watching the varying chances of the
unequal combat between her husband, weakened by disease, and his
vigorous antagonist, with the fearful certainty that, if strength alone
prevail, he must die a shameful death and she be consigned to the
stake. Hope grows faint and fainter; a grievous wound seems to place
Carrouges at the mercy of his adversary, until at the last moment,
when all appeared lost, she sees the avenger drive his sword through
the body of his prostrate enemy, vindicating at once his wife’s honor
and his own good cause.[765] Froissart, however, was rather an artist
than an historian; he would not risk the effect of his picture by too
rigid an adherence to facts, and he omits to mention, what is told by
the cooler Juvenal des Ursins, that Le Gris was subsequently proved
innocent by the death-bed confession of the real offender.[766] To make
the tragedy complete, the Anonyme de S. Denis adds that the miserable
Dame de Carrouges, overwhelmed with remorse at having unwittingly
caused the disgrace and death of an innocent man, ended her days in a
convent.[767] So striking a proof of the injustice of the battle ordeal
is said by some writers to have caused the abandonment of the practice;
but this, as will be seen, is an error, though no further trace of the
combat as a judicial procedure is to be found on the registers of the
Parlement of Paris.[768]
Still, it was popularly regarded as an unfailing resource. Thus, in
1390, two women were accused at the Châtelet of Paris of sorcery. After
repeated torture, a confession implicating both was extracted from
one of them, but the other persisted in her denial, and challenged
her companion to the duel by way of disproving her evidence. In the
record of the proceedings the challenge is duly entered, but no notice
whatever seems to have been taken of it by the court, showing that it
was no longer a legal mode of trial in such cases.[769]
In 1409, the battle trial was materially limited by an ordonnance of
Charles VI. prohibiting its employment except when specially granted
by the king or the Parlement;[770] and though the latter body may
never have exercised the privilege thus conferred upon it, the king
occasionally did, as we find him during the same year presiding at a
judicial duel between Guillaume Bariller, a Breton knight, and John
Carrington, an Englishman.[771] The English occupation of France, under
Henry V. and the Regent Bedford, revived the practice, and removed for
a time the obstacles to its employment. Nicholas Upton, writing in the
middle of the fifteenth century, repeatedly alludes to the numerous
cases in which he assisted as officer of the Earl of Salisbury,
Lieutenant of the King of England; and in his chapters devoted to
defining the different species of duel he betrays a singular confusion
between the modern ideas of reparation of honor and the original object
of judicial investigation, thus fairly illustrating the transitional
character of the period.[772]
It was about this time that Philippe le Bon, Duke of Burgundy, formally
abolished the wager of battle, as far as lay in his power, throughout
the extensive dominions of which he was sovereign, and in the Coutumier
of Burgundy, as revised by him in 1459, there is no trace of it to be
found. The code in force in Britanny until 1539 permitted it in cases
of contested estates, and of treason, theft, and perjury—the latter,
as usual, extending it over a considerable range of civil actions,
while the careful particularization of details by the code shows that
it was not merely a judicial antiquity.[773] In Normandy, the legal
existence of the judicial duel was even more prolonged, for it was not
until the revision of the coutumier in 1583, under Henry III., that
the privilege of deciding in this way numerous cases, both civil and
criminal, was formally abolished.[774] Still, it may be assumed that,
practically, the custom had long been obsolete, though the tardy
process of revising the local customs allowed it to remain upon the
statute book to so late a date. The fierce mountaineers of remote Béarn
clung to it more obstinately, and in the last revision of their code,
in 1552, which remained unaltered until 1789, it retains its place as a
legitimate means of proof, in default of other testimony, with a heavy
penalty on the party who did not appear upon the field at the appointed
time.[775]
During this long period, examples are to be found which show that
although the combat was falling into disuse, it was still a legal
procedure, which in certain cases could be claimed as a right, or which
could be decreed and enforced by competent judicial authority. Among
the privileges of the town of Valenciennes was one to the effect that
any homicide taking refuge there could swear that the act had been
committed in self-defence, when he could be appealed only in battle.
This gave occasion to a combat in 1455 between a certain Mahuot and
Jacotin Plouvier, the former of whom had killed a kinsman of the
latter. Neither party desired the battle, but the municipal government
insisted upon it, and furnished them with instructors to teach the
use of the club and buckler allowed as arms. The Comte de Charolois,
Charles le Téméraire, endeavored to prevent the useless cruelty, but
the city held any interference as an infringement of its chartered
rights; and, after long negotiations, Philippe le Bon, the suzerain,
authorized the combat and was present at it. The combatants, according
to custom, had the head shaved and the nails pared on both hands and
feet; they were dressed from head to foot in a tight-fitting suit of
hardened leather, and each was anointed with grease to prevent his
antagonist from clutching him. The combat was long and desperate,
but at length the appellant literally tore out the heart of his
antagonist.[776] Such incidents among roturiers, however, were rare.
More frequently some fiery gentleman claimed the right of vindicating
his quarrel at the risk of his life. Thus, in 1482, shortly after
the battle of Nancy had reinstated René, Duke of Lorraine, on the
ruins of the second house of Burgundy, two gentlemen of the victor’s
court, quarrelling over the spoils of the battle-field, demanded
the _champ-clos_; it was duly granted, and on the appointed day the
appellant was missing, to the great discomfiture and no little loss
of his bail.[777] When Charles d’Armagnac, in 1484, complained to the
States General of the inhuman destruction of his family, committed by
order of Louis XI., the Sieur de Castlenau, whom he accused of having
poisoned his mother, the Comtesse d’Armagnac, appeared before the
assembly, and, his advocate denying the charge, presented his offer
to prove his innocence by single combat.[778] In 1518, Henry II. of
Navarre ordered a judicial duel at Pau between two contestants, of whom
the appellant made default; the defendant was accordingly pronounced
innocent, and was empowered to drag through all cities, villages, and
other places through which he might pass, the escutcheon and effigy of
his adversary, who was further punished by the prohibition thenceforth
to wear arms or knightly bearings.[779] In 1538, Francis I. granted
the combat between Jean du Plessis and Gautier de Dinteville, which
would appear to have been essentially a judicial proceeding, since the
defendant, not appearing at the appointed time, was condemned to death
by sentence of the high council, Feb. 20, 1538.[780] The duel thus
was evidently still a matter of law, which vindicated its majesty by
punishing the unlucky contestant who shrank from the arbitrament of the
sword.
Allusion has already been made to the celebrated combat between
Chastaigneraye and Jarnac, in 1547, wherein the death of the former,
a favorite of Henry II., led the monarch to take a solemn oath never
to authorize another judicial duel. Two years later, two young nobles
of his court, Jacques de Fontaine, Sieur de Fendilles, and Claude des
Guerres, Baron de Vienne-le-Chatel, desired to settle in this manner
a disgusting accusation brought against the latter by the former.
The king, having debarred himself from granting the appeal, arranged
the matter by allowing Robert de la Marck, Marshal of France, and
sovereign Prince of Sedan, to permit it in the territory of which
he was suzerain. Fendilles was so sure of success that he refused
to enter the lists until a gallows was erected and a stake lighted,
where his adversary after defeat was to be gibbeted and burned. Their
only weapons were broad-swords, and at the first pass Fendilles
inflicted on his opponent a fearful gash in the thigh. Des Guerres,
seeing that loss of blood would soon reduce him to extremity, closed
with his antagonist, and being a skilful wrestler speedily threw him.
Reduced to his natural weapons, he could only inflict blows with the
fist, which failing strength rendered less and less effective, when a
scaffold crowded with ladies and gentlemen gave way, throwing down the
spectators in a shrieking mass. Taking advantage of the confusion, the
friends of Des Guerres violated the law which imposed absolute silence
and neutrality on all, and called to him to blind and suffocate his
adversary with sand. Des Guerres promptly took the hint, and Fendilles
succumbed to this unknightly weapon. Whether he formally yielded or
not was disputed. Des Guerres claimed that he should undergo the
punishment of the gallows and stake prepared for himself, but de la
Marck interfered, and the combatants were both suffered to retire in
peace.[781] This is the last recorded instance of the wager of battle
in France. The custom appears never to have been formally abolished,
and so little did it represent the thoughts and feelings of the age
which witnessed the Reformation, that when, in 1566, Charles IX. issued
an edict prohibiting duels, no allusion was made to the judicial
combat. The encounters which he sought to prevent were solely those
which arose from points of honor between gentlemen, and the offended
party was ordered not to appeal to the courts, but to lay his case
before the Marshals of France, or the governor of his province.[782]
The custom had died a natural death. No ordonnance was necessary to
abrogate it; and, seemingly, from forgetfulness, the crown and the
Parlement appear never to have been divested of the right to adjudge
the wager of battle.
* * * * *
In Italy many causes conspired to lead to the abrogation of the
judicial duel. On the one hand there were the prescriptions of the
popes, and on the other the spirit of scepticism fostered by the
example of Frederic II. The influence of the resuscitated Roman law was
early felt and its principles were diffused by the illustrious jurists
who rendered the Italian schools famous. Burgher life, moreover, was
precociously developed in the social and political organization,
and as the imperial influence diminished with the fall of the House
of Hohenstaufen, the cities assumed self-government and fashioned
their local legislation after their own ideals. The judgments of God
were not indigenous in Italy; they were not ancestral customs rooted
in the prehistoric past, but were foreign devices introduced by
conquerors—first by the Lombards and then by the Othos. There were
thus many reasons why the trial by combat should disappear early from
the Italian statute books. There is no trace of it in the elaborate
criminal code of Milan compiled in 1338, nor in that of Piacenza
somewhat later; in fact, it was no longer needed, for the inquisitional
process was in full operation and in doubtful cases the judge had all
the resources of torture at his disposal.[783]
Although by the middle of the fourteenth century it had thus
disappeared from the written law, the rulers retained the right to
grant it in special cases, and it thus continued in existence as a
lawful though extra-legal mode of settling disputed cases. Where
suzerains were so numerous there was thus ample opportunity for
belligerent pleaders to gratify their desires. Even as late as 1507
Giovanni Paolo Baglioni, lord of Spello (a village in the Duchy of
Spoleto, near Foligno), granted a licence for a month to Giovanni
Batta Gaddi and Raffaello Altoviti to settle their suits by fighting
within his domain with three comrades.[784] Two years after this,
Julius II., in issuing a constitution directed against duels of honor,
took occasion also to include in his prohibition all such _purgationes
vulgares_, even though permitted by the laws; the combatants were
ordered, in all the States of the Church, to be arrested and punished
for homicide or maiming according to the common law.[785] In 1519 Leo
X. reissued this bull with vastly sharper penalties on all concerned,
but in his additions to it he seems merely to have in mind the duel
of honor, which was habitually conducted in public, in lists prepared
for the purpose, and in presence of the prince or noble who had
granted licence for it.[786] The legal combat may be considered to
have virtually disappeared, but the duel of honor which succeeded it
inherited some of its sanctions, and in the learned treatises on the
subject which appeared during the first half of the sixteenth century
there are still faint traces to be found of the survival of the idea of
the judgment of God.[787]
In Hungary, it was not until 1486 that any attempt was made to restrict
the judicial duel. In that year Matthias Corvinus prohibited it in
cases where direct testimony was procurable: where such evidence
was unattainable, he still permitted it, both in civil and criminal
matters.[788] In 1492 Vladislas II. repeated this prohibition, alleging
as his reason for the restriction the almost universal employment of
champions who sometimes sold out their principals. The terms of the
decree show that previously its use was general, though it is declared
to be a custom unknown elsewhere.[789]
In Flanders, it is somewhat remarkable that the duel should have
lingered until late in the sixteenth century, although, as we have seen
above, the commercial spirit of that region had sought its abrogation
at a very early period, and had been seconded by the efforts of
Philippe le Bon in the fifteenth century. Damhouder, writing about
the middle of the sixteenth century, states that it was still legal
in matters of public concern, and even his severe training as a
civil lawyer cannot prevent his declaring it to be laudable in such
affairs.[790] Indeed, when the Council of Trent, in 1563, stigmatized
the duel as the work of the devil and prohibited all potentates from
granting it under pain of excommunication and forfeiture of all feudal
possessions,[791] the state Council of Flanders, in their report to the
Duchess of Parma on the reception of the Council, took exception to
this canon, and decided that the ruler ought not to be deprived of the
power of ordering the combat.[792] In this view, the Council of Namur
agreed.[793]
In Germany, in spite of the imperial legislation referred to above (p.
212), feudal influences were too strong to permit an early abrogation
of the custom. Throughout the fifteenth century the wager of battle
continued to flourish, and MSS. of the period give full directions as
to the details of the various procedures for patricians and plebeians.
The sixteenth century saw its wane, though it kept its place in the
statute books, and _Fechtbücher_ of 1543 and 1556 describe fully
the use of the club and the knife. Yet when in 1535 Friedrich von
Schwartzenberg demanded a judicial duel to settle a suit with Ludwig
von Hutten, the latter contemptuously replied that such things might
be permitted in the times of Goliath and Dietrich of Bern, but that
now they were not in accordance with law, right, or custom, and von
Schwartzenberg was obliged to settle the case in more peaceful fashion.
Still, occasional instances of its use are said to have occurred
until the close of the century,[794] and as late as 1607, Henry, Duke
of Lorraine, procured from the Emperor Rodolph II. the confirmation
of a privilege which he claimed as ancestral that all combats
occurring between the Rhine and the Meuse should be fought out in his
presence.[795]
In Russia, under the code known as the Ulogenié Zakonof, promulgated in
1498, any culprit, after his accuser’s testimony was in, could claim
the duel; and as both parties went to the field accompanied by all the
friends they could muster, the result was not infrequently a bloody
skirmish. These abuses were put an end to by the Sudebtnick, issued in
1550, and the duel was regulated after a more decent fashion, but it
continued to flourish legally until it was finally abrogated in 1649
by the Czar Alexis Mikhailovich, in the code known as the Sobornoié
Ulogenié. The more enlightened branch of the Slavonic race, however,
the Poles, abolished it in the fourteenth century; but Macieiowski
states that in Servia and Bulgaria the custom has been preserved to the
present day.[796]
In other countries, the custom likewise lingered to a comparatively
late period. Scotland, indeed, was somewhat more forward than her
neighbors; for in the year 1400, her Parliament showed the influence of
advancing civilization by limiting the practice in several important
particulars, which, if strictly observed, must have rendered it almost
obsolete. Four conditions were pronounced essential prerequisites: the
accusation must be for a capital crime; the offence must have been
committed secretly and by treachery; reasonable cause of suspicion must
be shown against the accused, and direct testimony both of witnesses
and documents must be wanting.[797]
Still the “perfervidum ingenium Scotorum” clung to the arbitrament of
the sword with great tenacity. In 1532 Sir James Douglass accused his
son-in-law Robert Charteris of treason, and the charge was settled
by a judicial duel in the presence of James V., who put an end to it
when Charteris’s sword broke.[798] Knox relates that in 1562, when
the Earl of Arran was consulting with him and others respecting a
proposed accusation against Bothwell for high treason, arising out
of a plan for seizing Queen Mary which Bothwell had suggested, the
earl remarked, “I know that he will offer the combate unto me, but
that would not be suffered in France, but I will do that which I have
proposed.” In 1567, also, when Bothwell underwent a mock trial for
the murder of Darnley, he offered to justify himself by the duel; and
when the Lords of the Congregation took up arms against him, alleging
as a reason the murder and his presumed designs against the infant
James VI., Queen Mary’s proclamation against the rebels recites his
challenge as a full disproval of the charges. When the armies were
drawn up at Carberry Hill, Bothwell again came forward and renewed
his challenge. James Murray, who had already offered to accept it,
took it up at once, but Bothwell refused to meet him on account of the
inequality in their rank. Murray’s brother, William of Tullibardin,
then offered himself, and Bothwell again declined, as the Laird of
Tullibardin was not a peer of the realm. Many nobles then eagerly
proposed to take his place, and Lord Lindsay especially insisted on
being allowed the privilege of proving the charge on Bothwell’s body,
but the latter delayed on various pretexts, until Queen Mary was able
to prohibit the combat.[799] The last judicial duels fought in Scotland
were two which occurred as the sixteenth century was closing. In 1595,
under a warrant from James VI. John Brown met George Hepburn and was
vanquished, though his life was spared at the request of the judges. In
1597 Adam Bruntfield charged James Carmichael with causing the death
of his brother, and under royal licence fought and slew him before a
crowd of five thousand spectators. Yet even this was not the end of
the legal custom, for in 1603 an accusation of treason against Francis
Mowbray was adjudged to be settled by the duel, though the combat was
prevented by Mowbray meeting his death in an attempt to escape from
prison, after which he was duly hanged and quartered.[800]
In England, the resolute conservatism, which resists innovation to the
last, prolonged the existence of the wager of battle until a period
unknown in other enlightened nations. No doubt a reason for this may
be found in the rise of the jury trial towards the end of the twelfth
century, which, as we have seen above (p. 144), furnished an effective
substitute for the combat in doubtful cases. As the jury system
developed itself in both civil and criminal matters the sphere of the
duel became more limited, in practice if not in theory, and its evils
being thus less felt the necessity for its formal abrogation was less
pressing.[801] It was thus enabled to hold its place as a recognized
form of procedure to a later period than in any other civilized land.
Already in the first quarter of the thirteenth century Mr. Maitland
tells us that in criminal cases it had become uncommon, but the
number of examples of it which he gives shows that this can only be
in comparison with its greater frequency in the preceding century and
that it was still in common use notwithstanding the tendency of the
judges to disallow it.[802] At the close of the fourteenth century,
when France was engaged in rendering it rapidly obsolete, Thomas, Duke
of Gloucester, dedicated to his nephew Richard II. a treatise detailing
elaborately the practice followed in the Marshal’s court with respect
to judicial duels.[803] Even a century later, legislation was obtained
to prevent its avoidance in certain cases. The “Statute of Gloucester”
(6 Ed. II. cap. 9), in 1333, had given to the appellant a year and a
day in which to bring his appeal of death—a privilege allowed the widow
or next of kin to put the accused on a second trial after an acquittal
on a public indictment—which, as a private suit, was usually determined
by the combat. In practice, this privilege was generally rendered
unavailing by postponing the public prosecution until the expiration
of the delay, so as to prevent the appeal. In 1486, however, a law was
passed to diminish the frequency of murder, which required the trial to
be finished before the expiration of the year and day, and ordered the
justices, in case of acquittal, to hold the defendant in prison or on
bail until the time had passed, so as to insure to the widow or next of
kin the opportunity of prosecuting the appeal of death.[804] Another
evidence of the prevalence of the custom is to be found in the rule
which, in the fifteenth century, permitted a priest to shrive a man who
was about to wage his battle, without regard to the fact as to whose
parishioner he might legally be—
And of mon that schal go fyghte
In a bateyl for hys ryghte,
Hys schryft also thou myghte here,
Thagh he thy pareschen neuer were.[805]
With the advance of civilization and refinement, the custom gradually
declined, but it was not abolished. The last duel fought out in
England is said to be one in 1492 between Sir James Parker and Hugh
Vaughan, arising from a grant of armorial bearings to Vaughan; it
was fought on horseback with lances, and at the first course Vaughan
slew his antagonist.[806] Still the old laws remained unaltered, and
an occasional appeal to them, while it offended men’s common sense,
was insufficient to cause their repeal. In 1571 a case occurred, as
Spelman says, “non sine magna jurisconsultorum perturbatione,” when,
to determine the title to an estate in Kent, Westminster Hall was
forced to adjourn to Tothill Fields, and all the preliminary forms of
a combat were literally enacted with the most punctilious exactness,
though an accommodation between the parties saved the skulls of their
champions.[807] In 1583, however, a judicial duel was actually fought
in Ireland between two O’Connors on an accusation of treason brought
by one against the other, which ended by the appellant cutting off
the defendant’s head and presenting it on his sword’s point to the
justices.[808]
A device, peculiar to the English jurisprudence, allowed a man indicted
for a capital offence to turn “approver,” by confessing the crime and
charging or appealing any one he choose as an accomplice, and this
appeal was usually settled by the single combat. Indeed, even when a
criminal had confessed he was sometimes pardoned on condition of his
being victorious in a specified number of duels, and thus compounding
for his own life by the service rendered to society in relieving it
of so many malefactors, as in a case in 1221 where a confessed thief
“became approver to fight five battles.”[809] The custom continued
to be a feature of criminal jurisprudence sufficiently important to
require legislation as late as the year 1599, when the Act 41 Eliz.
chap. 3 was passed to regulate the nice questions which attended
appeals of several persons against one, or of one person against
several. In the former case, the appellee, if victorious in the first
duel, was acquitted; in the latter, the appellor was obliged to fight
successively with all the appellees.[810] In civil suits the last case
on record, I believe, is that of Claxton _v._ Lilburn, which shows
curiously enough the indisposition to put an end to what was regarded
by common consent as a solecism. A valuable estate in Durham, said to
be worth more than £200 a year, was the subject in dispute. Claxton
had been unsuccessful in a suit for its recovery, and had brought a
new action, to which Lilburn responded, Aug. 6th, 1638, by producing
in court his champion, George Cheney, in array, armed with a sandbag
and battoon, who cast into the court his gauntlet with five small pence
in it, and demanded battle. Claxton rejoined by producing a champion
similarly armed, and gaged his battle. The court was nonplussed,
putting off the proceedings from day to day, and seeking some excuse
for refusing the combat. The champions were interrogated, and both
admitted that they were hired for money. King Charles demanded the
opinion of the Chief Justice and all his barons whether this was
sufficient to invalidate the proceedings, but they unanimously replied
that after battle was gaged and sureties given, such confession was
no bar to its being carried out. The King then ordered his judges if
possible to find some just way for its prevention, but they apparently
could do nothing save procrastinate the matter for years, for in 1641
Lilburn petitioned the Long Parliament, setting forth that he had
repeatedly claimed his right of battle and had produced his champion,
but was ever put off by the judges finding some error in the record.
Parliament thereupon ordered a bill to be brought in taking away the
judicial combat.[811] It was not enacted however, and Sir Matthew Hale,
writing towards the close of the century, feels obliged to describe
with considerable minuteness the various niceties of the law, though he
is able to speak of the combat as “an unusual trial at this day.”[812]
In 1774, the subject incidentally attracted attention in a manner not
very creditable to the enlightenment of English legislation. When, to
punish the rebellious Bostonians for destroying the obnoxious tea,
a “Bill for the improved administration of justice in the province
of Massachusetts Bay” was passed, it originally contained a clause
depriving the New Englanders of the appeal of death, by which, it will
be remembered, a man acquitted of a charge of murder could be again
prosecuted by the next of kin, and the question could be determined
by the wager of battle. The denial of this ancestral right aroused
the indignation of the liberal party in the House of Commons, and
the point was warmly contested. The learned and eloquent Dunning,
afterwards Lord Ashburton, one of the leaders of opposition, defended
the ancient custom in the strongest terms. “I rise,” said he, “to
support that great pillar of the constitution, the appeal for murder;
I fear there is a wish to establish a precedent for taking it away
in England as well as in the colonies. It is called a remnant of
barbarism and gothicism. The whole of our constitution, for aught I
know, is gothic.... I wish, sir, that gentlemen would be a little more
cautious, and consider that the yoke we are framing for the despised
colonists may be tied round our own necks!” Even Burke was heard to
lift a warning voice against the proposed innovation, and the obnoxious
clause had to be struck out before the ministerial majority could pass
the bill.[813] Something was said about reforming the law throughout
the empire, but it was not done, and the beauty of the “great pillar of
the constitution,” the appeal of death, was shown when the nineteenth
century was disgraced by the resurrection of all the barbaric elements
of criminal jurisprudence. In 1818, the case of Ashford _vs._ Thornton
created much excitement. Ashford was the brother of a murdered girl,
whose death, under circumstances of peculiar atrocity, was charged
upon Thornton, with much appearance of probability. Acquitted on a
jury trial, Thornton was appealed by Ashford, when he pleaded “Not
guilty, and I am ready to defend the same by my body.” After elaborate
argument, Lord Ellenborough, with the unanimous assent of his brother
justices, sustained the appellee’s right to this as “the usual and
constitutional mode of trial,” expounding the law in almost the same
terms as those which we read in Bracton and Beaumanoir.[814] The
curious crowd was sorely disappointed when the appellant withdrew, and
the chief justice was relieved from the necessity of presiding over a
gladiatorial exhibition. A similar case occurred almost simultaneously
in Ireland, and the next year the Act 59 Geo. III. chap. 46, at length
put an end to this remnant of Teutonic barbarism.[815]
* * * * *
America, inheriting the blessings of English law, inherited also its
defects. The colonies enjoyed the privilege of the appeal of death,
against the abrogation of which, in the province of Massachusetts
Bay, Dunning protested so vehemently. At least one instance of its
employment is to be found here, when in 1765, in Maryland, Sarah
Soaper appealed a negro slave named Tom for the murder of her husband.
The negro, however, was probably not aware of his privilege to demand
the wager of battle, so he submitted to be tried by a jury, and was
duly condemned and executed.[816] John C. Gray, Jr., Esq., of Boston,
to whom I am indebted for calling my attention to this and some other
sources of information on the subject, informs me of a tradition
that a disputed question of boundary between two townships in New
Hampshire was once settled by combat between champions; but the most
conservative State in this respect appears to be South Carolina. An act
of that colony, in 1712, enumerating the English laws to be held in
force, specifically includes those concerning appeal of death, and Dr.
Cooper, in his “Statutes at Large of South Carolina,” writing in 1837,
seems to think that both the wager of battle and appeal of death were
still legally in force there at that time.[817] So Chancellor Kilty,
in his Report on English Statutes applicable to Maryland, made in
1811, apparently considers that the appeal of death was still legally
existent, but regards it as unimportant in view of the pardoning power
and other considerations.[818]
III.
THE ORDEAL.
CHAPTER I.
UNIVERSAL INVOCATION OF THE JUDGMENT OF GOD.
Although the wager of battle and the other ordeals have much in common,
there is sufficient distinction between them to render convenient
their separate consideration, even at the risk of a little occasional
repetition. The development and career of these forms of the judgment
of God were not in all respects similar, nor was their employment
in all cases the same. The mere fact that the duel was necessarily
a bilateral ordeal, to which both sides had to submit, in itself
establishes a limit as to the cases fitted for its employment, nor
were all races of mankind adapted by character for its use. Moreover,
in its origin it was simply a device for regulating under conditions
of comparative fairness the primitive law of force, and the conception
of the intervention of a Divine Power, whereby victory would enure to
the right, probably was a belief subsequently engrafted on it. In the
other ordeals this is the fundamental idea on which they were based,
and we may perhaps assume that they represent a later development in
human progress, in which brute strength has declined somewhat from its
earliest savage supremacy, and a reliance upon the interposition of a
superhuman agency, whether the spirit of a fetish or an omnipotent and
just Godhead, single or multiform, has grown sufficiently strong to be
a controlling principle in the guidance of daily life.
Yet this, too, is only a step in the evolution of human thought, before
it can grasp the conception of an Omnipotence that shall work out its
destined ends, and yet allow its mortal creatures free scope to mould
their own fragmentary portions of the great whole—a Power so infinitely
great that its goodness, mercy, and justice are compatible with the
existence of evil in the world which it has formed, so that man has
full liberty to obey the dictates of his baser passions, without being
released from responsibility, and, at the same time, without disturbing
the preordained results of Divine wisdom and beneficence. Accordingly,
we find in the religious history of almost all races that 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 occurrence, 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 this tendency 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 from
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. In the Carlovingian Capitularies there occurs a passage,
dictated doubtless by the spirit of genuine trust in God, which well
expresses the pious sentiments presiding over acts of the grossest
practical impiety. “Let doubtful cases be determined by the judgment
of God. The judges may decide that which they clearly know, but that
which they cannot know shall be reserved for Divine judgment. Whom God
hath kept for his own judgment may not be condemned by human means.
‘Therefore judge nothing before the time, until the Lord come, who
both will bring to light the hidden things of darkness, and will make
manifest the counsels of the hearts’”[819] (_1 Cor._ iv. 5). That
Heaven would interpose to save the guiltless was taught in too many
ways to admit of doubt. An innocent man, we are told, was accused of a
murder and pursued till he took refuge in the cell of St. Macarius, who
at once proposed to determine the question of his guilt by an appeal to
God. Adjourning to the grave of the slain the saint addressed a prayer
to Christ and then called upon the dead man to declare whether the
accused had killed him. A voice from the tomb responded in the negative
and the fugitive was released; but when the saint was asked to pursue
the investigation and ascertain the name of the murderer, he replied
that this was none of his duty, for the sinner might already have
repented.[820]
The superstition which we here find dignified with the forms of
Christian faith manifests itself among so many races and under such
diverse stages of civilization that it may be regarded as an inevitable
incident in human evolution, only to be outgrown at the latest periods
of development. In this, however, as in so many other particulars,
China furnishes virtually an exception. Her arrested thought exhibits
itself, in the King or sacred books collected by Confucius five hundred
years before the Christian era, in nearly the same form as is found
in the orthodox opinion of to-day. In this, religious belief is but a
system of cold morality, which avoids the virtues as well as the errors
of more imaginative faiths. In the most revered and authoritative
of the Chinese Scriptures, the Shu-King, or Holy Book, we find a
theo-philosophy based on a Supreme Power, _Tai-Ki_, or Heaven, which
is pure reason, or the embodiment of the laws and forces of nature
acting under the pressure of blind destiny. It is true that some
forms of divination were practised, and even enjoined, but no fuller
expression of belief in direct interposition from above is to be found
than that contained in the saying attributed to Muh-Wang (about 1000
B. C.) in his instructions to his judges in criminal cases: “Say not
that Heaven is unjust; it is man who brings these evils on himself. If
it were not that Heaven inflicts these severe punishments the world
would be ungoverned.”[821] It is, therefore, in strict compliance with
this philosophy that in the modern jurisprudence of China there is
no allusion to any evidence save that of facts duly substantiated by
witnesses, and even oaths are neither required nor admitted in judicial
proceedings.[822]
These teachings, however, are too refined and sublimated for ordinary
human nature, and along-side of official Confucianism, Taoism and
Buddhism flourish with a wealth of legends and marvels that may fairly
rival the most exuberant fancies of Teutonic or Latin mediævalism. In
the popular mind, therefore, the divine interposition may perpetually
be expected to vindicate innocence and to punish crime, and moral
teaching to a great extent consists of histories illustrating this
belief in all its phases and in every possible contingency of
common-place life. Thus it is related that in A. D. 1626 the learned
Doctor Wang-i had two servants, one stupid and the other cunning. The
latter stole from his master a sum of money, and caused the blame to
fall upon his comrade, who was unable to justify himself. By way of
securing him, he was tied to a flagstaff, and his accuser was set to
watch him through the night. At midnight the flagstaff broke in twain
with a loud noise, the upper portion falling upon the guilty man and
killing him, while the innocent was left unhurt; and next morning,
when the effects of the dead man were examined, the stolen money was
found among them, thus completely establishing the innocence of his
intended victim.[823] Popular beliefs such as these naturally find
their expression in irregular judicial proceedings, in spite of the
strict materialism of the written law, and, at least in some parts of
China, a curious form of the ordeal of chance is employed in default
of testimony. If an injured husband surprises his wife _flagrante
delicto_ he is at liberty to slay the adulterous pair on the spot;
but he must then cut off their heads and carry them to the nearest
magistrate, before whom it is incumbent on him to prove his innocence
and demonstrate the truth of his story. As external evidence is not
often to be had in such cases, the usual mode of trial is to place the
heads in a large tub of water, which is violently stirred. The heads,
in revolving, naturally come together in the centre, when, if they meet
back to back, the victims are pronounced guiltless, and the husband is
punished as a murderer; but if they meet face to face, the truth of
his statement is accepted as demonstrated, he is gently bastinadoed to
teach him that wives should be more closely watched, and is presented
with a small sum of money wherewith to purchase another spouse.[824]
The cognate civilization of Japan yields even more readily to the
temptation of seeking from the Deity a solution of doubt. Anciently
there were in general use the judgments of God, so well known in
mediæval Europe, of the wager of battle and the ordeal of boiling
water, and the latter is still customarily employed among the Ainos, or
aborigines. Even yet two antagonists may be seen to plunge their hands
in scalding water, the one who suffers the most being convicted, while
the innocent is expected to escape with injuries so slight that they
will readily heal.[825]
* * * * *
Turning to the still savage races of the old world we everywhere find
these superstitions in full force. Africa furnishes an ample store of
them, varying from the crudest simplicity to the most deadly devices.
Among the Kalabarese the _afia-edet-ibom_ is administered with the
curved fang of a snake, which is dexterously inserted under the lid
and around the ball of the eye of the accused; if innocent, he is
expected to eject it by rolling the eye, while, if unable to do so, it
is removed with a leopard’s tooth, and he is condemned. Even ruder, and
more under the control of the operator, is the _afia-ibnot-idiok_, in
which a white and a black line are drawn on the skull of a chimpanzee:
this is held up before the defendant, when an apparent attraction
of the white line towards him demonstrates his innocence, or an
inclination of the black line in his direction pronounces his guilt.
More formidable than these is the ordeal-nut, containing a deadly
poison which causes frothing at the mouth, convulsions, paralysis, and
speedy death. In capital cases, or even when sickness is attributed
to hostile machinations, the _abiadiong_, or sorcerer, decides who
shall undergo the trial; and as the active principle of the nut can be
extracted by preliminary boiling, judicious liberality on the part of
the individual selected is supposed to render the ordeal comparatively
harmless.[826]
Throughout a wide region of Western Africa, one of the most popular
forms of ordeal is that of the red water, or “sassy-bark.” In the
neighborhood of Sierra-Leone, as described by Dr. Winterbottom, it
is administered by requiring the accused to fast for twelve hours,
and then to swallow a small quantity of rice. After this the infusion
of the bark is taken in large quantities, as much as a gallon being
sometimes employed; if it produces emesia, so as to eject all of the
rice, the proof of innocence is complete, but if it fails in this,
or if it acts as a purgative, the accused is pronounced guilty. It
has narcotic properties, also, a manifestation of which is likewise
decisive against the sufferer. Among some of the tribes this is
determined by placing on the ground small sticks about eighteen inches
apart, or by forming an archway of limbs of trees bent to the ground,
and requiring the patient to pick his way among them, a feat rendered
difficult by the vertiginous effects of the poison. Although death not
infrequently results from the ordeal itself, yet the faith reposed in
these trials is so absolute that, according to Dr. Livingston, they
are demanded with eagerness by those accused of witchcraft, confident
in their own innocence and believing that the guilty alone can suffer.
When the red water is administered for its emetic effects, the popular
explanation is that the fetish enters with the draught, examines the
heart of the accused, and, on finding him innocent, returns with the
rice as evidence.[827] A system directly the reverse of all this is
found in Ashantee, where sickness in the ordeal is a sign of innocence,
and the _lex talionis_ is strictly observed. When evidence is
insufficient to support a charge, the accuser is made to take an oath
as to the truth of his accusation, and the defendant is then required
to chew a piece of _odum_ wood and drink a pitcher of water. If no
ill effects ensue, he is deemed guilty, and is put to death; while
if he becomes sick, he is acquitted and the accuser suffers in his
stead.[828]
Further to the east in the African continent, the Niam-Niam and the
neighboring tribes illustrate the endless variety of form of which
the ordeal is susceptible. These savages resort to various kinds of
divination which are equally employed as a guidance for the future
in all important undertakings, and as means to discover the guilt or
the innocence of those accused of crime. The principal of these is
the _borru_, in which two polished pieces of damma wood are rubbed
together, after being moistened with a few drops of water. If they
glide easily on each other the sign is favorable; if they adhere
together it is unfavorable. Life and death are also brought in play,
but vicarious victims are made the subject of experiment. Thus a
cock is taken and its head is repeatedly immersed in water until the
creature is rigid and insensible; if it recovers, the indication is
favorable, if it dies, adverse. Or an oil extracted from the bengye
wood is administered to a hen, and the same conclusions are drawn from
its survival or death.[829]
The Somali of Ethiopia employ the ordeals of red-hot iron and boiling
water or oil in virtually the same form as we shall see them used in
India and Europe, examining the hand of the accused after twenty-four
hours to determine his guilt from its condition.[830]
In Madagascar the poison ordeal is customarily administered, with a
decoction of the deadly nut of the Tangena (_Tanghinia venenifera_).
One of the modes of its application is evidently based on the same
theory as the ordeal of red water and rice, to which it bears a notable
resemblance. A fowl is boiled, and three pieces of its skin are placed
in the broth. Then a cupful of the decoction of the Tangena nut is
given to the accused, followed by the same quantity of the broth, with
the pieces of skin. Unless the poison speedily causes vomiting, it
soon kills the patient, which is a satisfactory proof of his guilt.
If vomiting ensues, it is kept up by repeated doses of the broth
and warm water, and if the bits of skin are ejected the accused is
declared innocent; but if they are retained he is deemed convicted
and is summarily despatched with another bowl of the poison. In the
persecutions of 1836 and 1849 directed against the Malagasy Christians,
many of the converts were tried with the Tangena nut, and numbers of
them perished.[831] The ordeals of red-hot iron and boiling water are
also used.[832]
Springing from the same belief is the process used in Tahiti for
discovering the criminal in cases of theft. The priest, when applied
to, digs a hole in the clay floor of his hut, fills it with water, and
stands over it with a young plantain in his hand, while invoking his
god. The deity thereupon conducts the spirit of the thief over the
water, and his reflection is recognized by the priest.[833]
The races of the Indian archipelago are fully equipped with resources
of the same kind for settling doubtful cases. Among the Dyaks of Borneo
questions for which no other solution is apparent are settled by giving
to each litigant a lump of salt, which they drop simultaneously into
water, and he whose lump dissolves soonest is adjudged the loser; or
each takes a living shell and places it on a plate, when lime-juice
is squeezed over them, and the one whose shell first moves under this
gentle stimulant is declared the winner.[834]
In the Philippines there are various peculiar ordeals in use. A needle
is sometimes thrust into the scalp of two antagonists, and he from whom
the blood flows most profusely is adjudged the loser; or two chickens
are roasted to death and then opened, and the owner of the one which is
found to have the largest liver is defeated.[835]
The black Australioid Khonds of the hill districts of Orissa confirm
the universality of these practices by customs peculiar to themselves
which may be assumed as handed down by tradition from prehistoric
times. Not only do they constantly employ the ordeals of boiling water
and oil and red-hot iron, which they may have borrowed from their
Hindu neighbors, but they administer judicial oaths with imprecations
that are decidedly of the character of ordeals. Thus an oath is
taken on a tiger’s skin with an invocation of destruction from that
animal upon the perjured; or upon a lizard’s skin whose scaliness is
invited upon him who may forswear himself; or over an ant-hill with
an imprecation that he who swears falsely may be reduced to powder. A
more characteristic ordeal is that used in litigation concerning land,
when a portion of earth from the disputed possession is swallowed by
each claimant in the belief that it will destroy him whose pretensions
are false. On very solemn occasions a sheep is killed in the name of
Tari Pennu, the dreadful earth-goddess: rice is then moistened with its
blood, and this is administered, in the full conviction that she will
slay the rash litigant who insults her power by perjury.[836]
The hill-tribes of Rajmahal, who represent another of the pre-Aryan
Indian races, furnish us with further developments of the same
principle, in details bearing a marked analogy to those practised by
the most diverse families of mankind. Thus the process by which the
guilt of Achan was discovered (_Joshua_ vii. 16-18), and that by which,
as we shall see hereafter, Master Anselm proposed to identify the thief
of the sacred vessels of Laon, are not unlike the ceremony used when a
district is ravaged by tigers or by pestilence, which is regarded as a
retribution for sin committed by some inhabitant, whose identification
thus becomes all-important for the salvation of the rest. In the
process known as _Satane_ a person sits on the ground with a branch of
the bale tree planted opposite to him; rice is handed to him to eat in
the name of each village of the district, and when the one is named in
which the culprit lives, he is expected to throw up the rice. Having
thus determined the village, the same plan is adopted with respect to
each family in it, and when the family is identified, the individual
is discovered in the same manner. Another form, named _Cherreen_, is
not unlike the ordeal of the Bible and key, not as yet obsolete among
Christians. A stone is suspended by a string, and the names of the
villages, families, and individuals are repeated, when it indicates the
guilty by its vibrations. Thieves are also discovered and convicted by
these processes, and by another mode known as _Gobereen_, which is a
modification of the hot-water ordeal. A mixture of cow-dung, oil, and
water is made to boil briskly in a pot. A ring is thrown in, and each
suspected person, after invoking the Supreme Deity, is required to find
and bring out the ring with his hand—the belief being that the innocent
will not be burned, while the guilty will not be able to put his hand
into the pot, as the mixture will rise up to meet it.[837]
Among the ancient Aztecs the oath assumed the proportions of an ordeal;
the accused in taking it touched with his finger first the ground
and then his tongue, and a perjury thus committed was expected to be
followed with speedy misfortune. So among the Ostiaks and Samoiedes a
disculpatory oath with imprecations taken on the head of a bear is held
to have the same virtue.[838]
* * * * *
Reverting to the older races, we find no trace of formal ordeals in the
fragmentary remains out of which Egyptologists thus far have succeeded
in reconstructing the antique civilization of the Nile valley, but this
is not attributable to an intellectual development which had cast them
aside as worthless. The intimate dependence of man on the gods, and
the daily interposition of the latter in human affairs, were taught by
the prophets of the temples and reverently accepted by the people. It
was merely a question as to the manner in which the judgment of God
was to be obtained, and this apparently took the form of reference to
the oracles which abounded in every Egyptian nome. In this we are not
left to mere conjecture, for a story related by Herodotus shows that
such an interpellation of the divine power was habitual in prosecutions
when evidence of guilt was deficient. Aames II., before he gained
the crown, was noted for his reckless and dissolute life, and was
frequently accused of theft and carried to the nearest oracle, when
he was convicted or acquitted according to the response. On ascending
the throne, he paid great respect to the shrines where he had been
condemned, and neglected altogether those where he had been absolved,
saying that the former gave true and the latter lying responses.[839]
* * * * *
The Semitic races, while not giving to the ordeal the development
which it has received among the Aryans, still afford sufficient
manifestation of its existence among them. Chaldean and Assyrian
institutions have not as yet been sufficiently explored for us to state
with positiveness whether or not the judgment of God was a recognized
resource of the puzzled dispenser of justice; but the probabilities
are strongly in favor of some processes of the kind being discovered
when we are more fully acquainted with their judicial system. The
constant invocation of the gods, which forms so marked a feature of
the cuneiform inscriptions, indicates a belief in the divine guidance
of human affairs which could hardly fail to find expression in direct
appeals for light in the administration of justice. The nearest
approach however to the principle of the ordeal which has thus far
been deciphered is found in the imprecations commonly expressed in
contracts, donations, and deeds, by which the gods are invoked to shed
all the curses that can assail humanity on the heads of those who shall
evade the execution of their plighted faith, or seek to present false
claims. Akin to this, moreover, was the penalty frequently expressed
in contracts whereby their violation was to be punished by heavy
fines, the greater part of which was payable into the treasury of some
temple.[840]
Among the Hebrews, as a rule, the interposition of Yahveh was expected
directly, without the formulas which human ingenuity has invented to
invite and ascertain the decisions of the divine will. Still, the
combat of David and Goliath has been cited as a model and justification
of the judicial duel; and there are some practices described in
Scripture which are strictly ordeals, and which were duly put forth by
the local clergy throughout Europe when struggling to defend the system
against the prohibitions of the papacy. When the man who blasphemed
the Lord (_Levit._ xxiv. 11-16) was kept in ward “that the mind of
the Lord might be showed them,” and the Lord ordered Moses to have
him stoned by the whole congregation, we are not told the exact means
adopted to ascertain the will of Yahveh, but the appeal was identical
in principle with that which prompted the mediæval judgment of God.
The use of the lot, moreover, which was so constantly employed in the
most important and sacred matters, was not a mere appeal to chance,
but was a sacred ceremony performed “before the Lord at the door of
the tabernacle of the congregation” to learn what was the decision
of Yahveh.[841] The lot was also used, if not as a regular judicial
expedient, at all events in unusual cases as a mode of discovering
criminals, and its results were held to be the undoubted revelation of
Omniscience. It is more than probable that the Urim and Thummin were
lots, and that they were not infrequently used, as in the cases of
Achan and Jonathan.[842] And the popular belief in the efficacy of the
lot is manifested in the account of Jonah’s adventure (_Jonah_ i. 7)
when the sailors are described as casting lots to discover the sinner
whose presence brought the tempest upon them. The most formal and
absolute example of the ordeal, however, was the Bitter Water by which
conjugal infidelity was convicted and punished (_Numb._ v. 11-31). This
curious and elaborate ceremony, which bears so marked an analogy to the
poison ordeals, was abandoned by order of R. Johanan ben Saccai about
the time of the Christian era, and is too well known to require more
than a passing allusion to the wealth of Haggadistic legend and the
interminable controversies and speculations to which it has given rise.
I may add, however, that Aben Ezra and other Jewish commentators hold
that when Moses burnt the golden calf and made the Israelites drink the
water in which its ashes were cast (_Exod._ xxxii. 20), he administered
an ordeal, like that of the Bitter Water, which in some way revealed
those who had been guilty of idolatry, so that the Levites could slay
them; and Selden explains this by reference to a tradition, according
to which the gold of the calf reddened the beards of those who had
worshipped it, and thus rendered them conspicuous.[843]
* * * * *
The teachings of Mahomet were too directly derived from the later
Judaism for him to admit into his jurisprudence any formal system
depending on miracles to establish justice between man and man whenever
Allah might be invoked to manifest his power. Like the Jews, however,
he taught that the constant supervision of the divine power is
spontaneously exerted, and he carried this so far as to inculcate the
belief that a judge pure from self-seeking would be inspired constantly
from above. “He who asks to be made judge will not be assisted; and he
who is made judge by compulsion, God sends down to him an angel, who
causes his actions and sentences to be just.” To one who hesitated to
accept the office, the Prophet said, “God will direct your heart, and
show you judicial ways, and fix your tongue in truth and justice.” On
the other hand, when a judge is unjust, “he separates from himself
the assistance and favor of God, and the devil is always with him.”
It was hard on litigants when the tribunal might be presided over
by either Allah or Eblis, but they had no recourse, except in the
oath, which was the corner-stone of Mahomet’s judicial system. In the
absence of evidence, the oath of the defendant was final, and this
incitement to perjury could only be repressed by investing the oath
with the qualities of the ordeal. Accordingly he lost no opportunity
of insisting upon the punishment, here and hereafter, of those who
perjured themselves before the judgment-seat. Sometimes this failed
to deter an eager pleader, and then he consoled the defeated party
with the assurance that his successful adversary would suffer in the
end, as when the chief of the Cindah tribe urged that a Jew, against
whom he brought suit for land unjustly held, would swear falsely, and
the Prophet rejoined, “Swearing is lawful, but he who takes a false
oath will have no luck in futurity.” Tradition relates, however, that
frequently he succeeded thus in frightening those who were ready to
forswear themselves, as when a man of Hadramut claimed land occupied
by a Cindah, and, being without evidence, the defendant was ready to
take the oath, when Mahomet interposed, “No one takes the property
of another by oath but will meet God with his tongue cut off,” and
the Cindah feared God and said, “The land is his.” In another case,
when two men were quarrelling over an inheritance, and neither had a
witness, he warned them, “In whose favor soever I may order a thing
which is not his right, then I lay apart for him nothing less than a
piece of hell-fire,” whereupon each litigant exclaimed, “O messenger of
God, I give up my right to him.” Sometimes, however, even Mahomet had
recourse to a more direct invocation of the supreme power, as in a case
wherein two men disputed as to the ownership of an animal, and neither
had witnesses, when he directed them to cast lots upon oath.[844]
These cases do not bear out the tradition that, when the Prophet was
perplexed beyond his ability, he had the resource of appealing to the
angel Gabriel for enlightenment. There is one legend respecting him,
however, which manifests the popular belief that in doubtful cases God
may be relied on to interpose for the vindication of innocence. A youth
brought before Mahomet on an accusation of murder, protested that the
act was committed in self-defence. The Prophet ordered the corpse to be
entombed, and postponed the trial until the next day. The brethren of
the slain, still insisting on vengeance, were then told that they might
inflict upon the murderer precisely the same wounds as those which
they should find on the body. On opening the sepulchre for the purpose
of ascertaining the exact measure of the punishment conceded, they
returned affrighted to the judgment-seat, and reported that they had
found nothing but the smoke and stench of Gehenna; whereupon Mahomet
pronounced that Eblis had carried off the corpse of the guilty, and
that the accused was innocent.[845] The prevalence of superstitions
kindred to this, in spite of the principles laid down in the law,
is shown by the custom which exists among some tribes of Arabs, of
employing the ordeal of red-hot iron in the shape of a gigantic spoon,
to which, when duly heated, the accused applies his tongue, his
guilt or innocence being manifested by his suffering, or escaping
injury.[846] A species of vulgar divination, common among the Turks,
moreover, belongs to the same category of thought, as it is used in the
detection of thieves by observing the marks on wax slowly melted, while
certain magic formulas are recited over it.[847]
* * * * *
It is among the Aryan races that we are to look for the fullest and
most enduring evidences of the beliefs which developed into the ordeal,
and gave it currency from the rudest stages of nomadic existence to
periods of polished and enlightened civilization. In the perfect
dualism of Mazdeism, the Yazatas, or angels of the good creation, were
always prompt to help the pure and innocent against the machinations
of Ahriman and his Daevas, their power to do so depending only upon
the righteousness of him who needed assistance.[848] The man unjustly
accused, or seeking to obtain or defend his right, could therefore
safely trust that any trial to which he might be subjected would be
harmless, however much the ordinary course of nature would have to
be turned aside in order to save him. Thus Zoroaster could readily
explain and maintain the ancestral practices, the common use of which
by both the Zend and the Hindu branches of the Aryan family points
to their origin at a period anterior to the separation between the
kindred tribes. In the fragments of the Avesta, which embody what
remains to us of the prehistoric law of the ancient Persians, we find a
reference to the ordeal of boiling water, showing it to be an accepted
legal process, with a definite penalty affixed for him who failed to
exculpate himself in it:—
“Creator! he who knowingly approaches the hot, golden, boiling water,
as if speaking truth, but lying to Mithra;
“What is the punishment for it?
“Then answered Ahura-Mazda: Let them strike seven hundred blows with
the horse-goad, seven hundred with the craosho-charana!”[849]
The fire ordeal is also seen in the legend which relates how Sudabeh,
the favorite wife of Kai Kaoos, became enamored of his son Siawush, and
on his rejecting her advances accused him to his father of endeavoring
to seduce her. Kai Kaoos sent out a hundred caravans of dromedaries
to gather wood, of which two immense piles were built separated by a
passage barely admitting a horseman. These were soaked with naphtha and
fired in a hundred places, when Siawush mounted on a charger, after an
invocation to God, rode through the flames and emerged without even
a discoloration of his garments. Sudabeh was sentenced to death, but
pardoned on the intercession of Siawush.[850] Another reminiscence of
the same ordeal may be traced among the crowd of fantastic legends with
which the career of Zoroaster is embroidered. It is related that when
an infant he was seized by the magicians, who foresaw their future
destruction at his hands, and was thrown upon a huge pile composed of
wood, naphtha, and sulphur, which was forthwith kindled; but, through
the interposition of Hormazd, “the devouring flame became as water, in
the midst of which slumbered the pearl of Zardusht.”[851]
In Pehlvi the judicial ordeal was known as _var nirang_, and
thirty-three doubtful conjunctures are enumerated as requiring its
employment. The ordinary form was the pouring of molten metal on the
body of the patient, though sometimes the heated substance was applied
to the tongue or the feet.[852] Of the former, a celebrated instance,
curiously anticipating the story told, as we shall see hereafter, of
Bishop Poppo when he converted the Danes, is related as a leading
incident in the reformation of the Mazdiasni religion when the Persian
monarchy was reconstructed by the Sassanids. Eighty thousand heretics
remained obstinate until Sapor I. was so urgent with his Magi to
procure their conversion that the Dustoor Adurabad offered to prove the
truth of orthodoxy by suffering eighteen pounds of melted copper to be
poured over his naked shoulders if the dissenters would agree to yield
their convictions in case he escaped unhurt. The bargain was agreed to,
and carried out with the happiest results. Not a hair of the Dustoor’s
body was singed by the rivulets of fiery metal, and the recusants were
gathered into the fold.[853]
Among the Hindu Aryans so thoroughly was the divine interposition
expected in the affairs of daily life that, according to the Manava
Dharma Sastra, if a witness, within a week after giving testimony,
should suffer from sickness, or undergo loss by fire, or the death of
a relation, it was held to be a manifestation of the divine wrath,
drawn down upon him in punishment for perjured testimony.[854] There
was, therefore, no inducement to abandon the resource of the ordeal, of
which traces may be found as far back as the Vedic period, in the forms
both of fire and red-hot iron.[855] In the Ramayana, when Rama, the
incarnate Vishnu, distrusts the purity of his beloved Sita, whom he has
rescued from the Rakshasha Ravana, she vindicates herself by mounting a
blazing pyre, from which she is rescued unhurt by the fire-god, Agni,
himself.[856] Manu declares, in the most absolute fashion—
“Let the judge cause him who is under trial to take fire in his
hand, or to plunge in water, or to touch separately the heads of his
children and of his wife.
“Whom the flame burneth not, whom the water rejects not from its
depths, whom misfortune overtakes not speedily, his oath shall be
received as undoubted.
“When the Rishi Vatsa was accused by his young half-brother, who
stigmatized him as the son of a Sudra, he swore that it was false,
and, passing through fire, proved the truth of his oath; the fire,
which attests the guilt and the innocence of all men, harmed not a
hair of his head, for he spake the truth.”
And the practical application of the rule is seen in the injunction on
both plaintiff and defendant to undergo the ordeal, even in certain
civil cases.[857]
In the more developed code of Vishnu we find the ordeal system
exceedingly complicated, pervading every branch of jurisprudence and
only limited by the amount at stake or the character or caste of the
defendant.[858] Yet Hindu antiquity is so remote and there have been
so many schools of teachers that the custom apparently did not prevail
in all times and places. One of the most ancient books of law is the
Dharmasastra of Gautama, who says nothing of ordeals and relies for
proof wholly on the evidence of witnesses, adding the very relaxed rule
that “No guilt is incurred in giving false evidence in case the life of
a man depends thereon.”[859]
This, however, is exceptional, and the ordeal maintained its existence
from the most ancient periods to modern times. Under the name of
_purrikeh_, or _parikyah_, it is prescribed in the native Hindu law
in all cases, civil and criminal, which cannot be determined by
written or oral evidence, or by oath, and is sometimes incumbent upon
the plaintiff and sometimes upon the defendant. In its various forms
it bears so marked a resemblance to the judgments of God current in
mediæval Europe that the further consideration of its use in India may
be more conveniently deferred till we come to discuss its varieties in
detail, except to add that in Hindu, as in Christian courts, it has
always been a religious as well as a judicial ceremony, conducted in
the presence of Brahmans, and with the use of invocations to the higher
powers.[860]
* * * * *
Buddhism naturally followed the legal institutions which it found
established, and accepted the ordeal, though it could scarce form a
logical incident in the great system of transmigration whereby the good
and evil of the universe distributed itself automatically, without
supervision from the thirty-two heavens. We have seen the influence
which Buddhism exercised on Chinese materialism, and Tibetan Shamanism
could hardly expect to escape it. Thus in Tibet we find the hot water
ordeal assume a form which is literally even-handed, and which, if
generally enforced, must exert a happily repressive influence over
litigation. Both plaintiff and defendant thrust their arms into a
caldron of boiling water containing a black and a white stone, the
verdict being in favor of him who brings up the white.[861]
* * * * *
The Hellenic tribes had already, in prehistoric times, reached a point
of mental development superior to the grosser forms of the ordeal as a
recognized instrument of judicial investigation. These were replaced,
as we have seen in Egypt, by habitual resort to oracles, but that some
recollection of the ancestral practices was handed down to later ages
is shown by the allusions in the Antigone of Sophocles, when the guards
protest to Creon their innocence as to the burial of Polynices, and
offer to prove it by the ordeal:—
“Ready with hands to bear the red-hot iron,
To pass through fire, and by the gods to swear
That we nor did the deed, nor do we know
Who counselled it, or who performed it” (264-267).
And a remnant of the primæval customs was preserved in the solemnities
under which litigation was sometimes determined by one of the parties
taking an oath on the heads of his children, or with curses on himself
and his family, or passing through fire.[862] The poison ordeal, also,
was not wholly obsolete. The Gæum or temple of the broad-breasted
Earth, Gæa Eurysternus, at Ægæ in Achaia, was served by a priestess
who, though not necessarily a virgin, was yet required to preserve
strict celibacy when once invested with her sacred functions. If
any doubts arose as to her virtue, it was tested with a draught of
bull’s blood, which speedily wrought her punishment if she was guilty.
The same temple also furnished an illustration of ascertaining the
divine will by means of the lot, for when a vacancy occurred in the
priestship, and there were several applicants, the choice between them
was determined by a reference to chance.[863]
Even these traces of the ancient customs of the race disappear among
the Latins, though they preserved in full force the habits of thought
from which the ordeal took its rise. This is seen in the most solemn
form of imprecation known to the Romans as lending irrevocable force
to promissory oaths—the “Jovem lapidem jurare,”—whether we take the
ceremony mentioned by Festus, of casting a stone from the hand while
adjuring Jupiter to reject in like manner the swearer if he should
prove forsworn, or the form described by Livy as preceding the combat
between the Horatii and Curiatii, in which a victim was knocked on
the head with a stone under a somewhat similar invocation.[864] Even
without this ceremony, imprecatory oaths were used which were based
on the belief that the gods would take men at their word and punish
them, for forswearing themselves, with the evils which they thus
invoked. Thus, after the battle of Cannæ, P. Cornelius Scipio forced
the nobles who were plotting to leave Italy to abandon their design
and take an oath in which they adjured Jupiter to visit them and all
belonging to them with the worst of deaths if they proved false.[865]
In the legends of Rome, moreover, sporadic instances may be found of
special miraculous interposition to decide the question of innocence
or guilt, when the gods properly appealed to would intervene to save
their worshippers. These manifestations were principally vouchsafed in
favor of the Vestals, as when the pupil of Æmilia was accused of having
allowed the sacred fire to be extinguished, and was preserved by its
spontaneous ignition on her placing the skirt of her garment upon the
altar; or when Tucca, falsely arraigned for unchastity, vindicated her
purity by carrying water in a sieve; or when Claudia Quinta, under a
similar charge, made good her defence by dragging, with a slender cord,
a ship against the rapid current of the Tiber after it had run aground
and resisted all efforts to move it—and this with an invocation to the
goddess to absolve or condemn her, as she was innocent or guilty, which
gives to the affair a marked resemblance to an established form of
judicial ordeal.[866] Occasional instances such as these had, however,
no influence on the forms and principles of Roman jurisprudence, which
was based on reason and not on superstition. With the exception of the
use of torture, as we shall see hereafter, the accused was not required
to exculpate himself. He was presumed to be innocent, and the burden
of proof lay not on him but on the prosecutor. The maxim of the civil
law—“Accusatore non probante, reus absolvitur”—is entirely incompatible
with the whole theory upon which the system of ordeals is based.[867]
* * * * *
The barbarian Aryans who occupied Europe brought with them the
ancestral beliefs in a form more easily recognizable than the remnants
which survived through Hellenic and Italiote civilization. The Feini,
or Irish Celts, boasted that their ancient Brehons, or judges, were
warned by supernatural manifestations as to the equity of the judgments
which they rendered. Sometimes these took the shape of blotches on
their cheeks when they pronounced false judgments. Sen Mac Aige was
subject to these marks, but with him they disappeared when he decided
righteously, while Sencha Mac Aillila was less fortunate, for he
was visited with three permanent blotches for each mistake. Fachtna
received the surname of Tulbrethach because, whenever he delivered
a false judgment, “if in the time of fruit, all the fruit in the
territory in which it happened fell off in one night; if in time of
milk, the cows refused their calves; but if he passed a true judgment,
the fruit was perfect on the trees.” Morann never pronounced a judgment
without wearing around his neck a chain, which tightened upon him if
the judgment was false, but expanded down upon him if it were true.
These quaint legends have their interest as manifesting the importance
attached by the ancient Irish to the impartial administration of
absolute justice, and the belief entertained that a supernatural power
was ever on the watch over the tribunals, but these manifestations were
too late to arrest injustice, as they did not occur until after it was
committed. The Feini therefore did not abandon the ancient resource
of the ordeal, as is shown by a provision in the Senchus Mor, which
grants a delay of ten days to a man obliged to undergo the test of
boiling water.[868] The Celts of the Rhinelands also had a local custom
of determining the legitimacy of children by an ordeal of the purest
chance, which became a common-place of Roman rhetoric, and is thus
described in the Anthology:—
Θαρσαλέοι Κελτοὶ ποταμῷ ζηλήμονι Ρήνω χ. τ. λ.
Upon the waters of the jealous Rhine
The savage Celts their children cast, nor own
Themselves as fathers till the power divine
Of the chaste river shall the truth make known.
Scarce breathed its first faint cry, the husband tears
Away the new-born babe, and to the wave
Commits it on his shield, nor for it cares
Till the wife-judging stream the infant save,
And prove himself the sire. All trembling lies
The mother, racked with anguish, knowing well
The truth, but forced to risk her cherished prize
On the inconstant waters’ reckless swell.[869]
The Teutonic tribes, anterior to their conversion, likewise exhibit the
ordeal as a recognized resource in judicial proceedings. The Norræna
branch, as we have seen, cultivated the _holm-gang_, or duel, with
ardor, and they likewise employed the hot-water ordeal, besides a
milder form peculiar to themselves entitled the _skirsla_, in which one
of the parties to a suit could prove the truth of his oath by passing
under a strip of turf raised so that it formed an arch with each end
resting on the ground, the belief being that if he had forsworn himself
the turf would fall on him as he passed beneath it.[870] The Germanic
tribes, in their earliest jurisprudence, afford similar evidence of
adherence to the customs of their eastern brethren. The most ancient
extant recension of the Salic law may safely be assumed as coeval with
the conversion of Clovis, as it is free from all allusions to Christian
rules, such as appear in the later versions, and in this the trial
by boiling water finds its place as a judicial process in regular
use.[871] Among the Bavarians, the decree of Duke Tassilo in 772
condemns as a relic of pagan rites a custom named _stapfsaken_, used in
cases of disputed debt, which is evidently a kind of ordeal from the
formula employed, “Let us stretch forth our right hands to the just
judgment of God!”[872]
The Slavs equally bear witness to the ancestral practice of the ordeal
as a judicial process. The _prauda jeliezo_, or hot-iron ordeal, was in
use among them in early times.[873] In Bohemia, the laws of Brzetislas,
promulgated in 1039, make no allusion to any other form of evidence
in contested cases, while in Russia it was the final resort in all
prosecutions for murder, theft, and false accusation.[874]
As the Barbarians established themselves on the ruins of the Roman
Empire and embraced Christianity they, with one exception, cultivated
the institution of the ordeal with increased ardor. This exception
is found in the Gothic nations, and is ascribable, as we have seen
when treating of the judicial combat, to the influence of the Roman
customs and laws which they adopted. For nearly two centuries after
their settlement, there is no allusion in their body of laws to any
form of ordeal. It was not until 693, long after the destruction of
their supremacy in the south of France, and but little prior to their
overthrow in Spain by the Saracens, that King Egiza, with the sanction
of a Council of Toledo, issued an edict commanding the employment of
the _æneum_ or ordeal of boiling water.[875]
Various causes were at work among the other tribes to stimulate the
favor with which the ordeal was regarded. As respects the wager of
battle I have already traced its career as a peculiarly European form
of the Judgment of God, which was fostered by the advantage which it
gave, in the times of nascent feudalism, to the bold and reckless. With
regard to the other forms, one reason for their increased prevalence is
doubtless to be found in the universal principle of the Barbarians, in
their successive settlements, to allow all races to retain their own
jurisprudence, however much individuals might be intermingled, socially
and politically. The confusion to which this gave birth is well set
forth by St. Agobard, when he remarks that frequently five men shall be
found in close companionship, each one owning obedience to a different
law. He also states that under the Burgundian rules of procedure, no
one was allowed to bear witness against a man of different race.[876]
Under these circumstances, in a large proportion of cases there could
be no legal evidence attainable, and recourse was had of necessity to
the Judgment of God. Even when this rule was not in force, a man who
appealed to Heaven against the testimony of a witness of different
origin would be apt to find the court disposed to grant his request. If
the judge, moreover, was a compatriot of one of the pleaders, the other
would naturally distrust his impartiality, and would prefer to have
the case decided by the Omniscient whose direct interposition he was
taught to regard as undoubted. That the assumed fairness of the ordeal
was highly prized under such circumstances we have evidence in the
provisions of a treaty between the Welsh and the Saxons, about the year
1000, according to which all questions between individuals of the two
races were to be settled in this manner, in the absence of a special
agreement between the parties.[877]
The most efficient cause of the increased use of the ordeal was,
however, to be found in the Church. With her customary tact, in
converting the Barbarians, she adopted such of their customs as she
could adapt to Christian belief and practice; and she accepted the
ordeal as an undoubted appeal to God, whose response was regarded as
unquestionable, warrant being easily found for this in the Jewish
practices already described. The pagan ceremonies were moulded into
Christian rites, and the most solemn forms of religion were thrown
around the rude expedients invented thousands of years before by
the Bactrian nomads. Elaborate rituals were constructed, including
celebration of mass and impressive prayers, adjurations and exorcisms
of the person to undergo the trial and of the materials used in it,
and the most implicit faith was inculcated in the interposition of
God to defend the right and to punish guilt.[878] The administration
of the ordeal being thus reserved for priestly hands, the Church
acquired a vastly increased influence as the minister of justice, to
say nothing of the revenues thence arising, and the facility with which
ecclesiastics could thus defend themselves when legally assailed by
their turbulent flocks. We are not without evidence of the manner in
which the church thus favored the use of this Christianized paganism,
and introduced it along with Christianity among people to whom it
was previously unknown. Thus among the Turanian Majjars, the laws of
King Stephen, promulgated in 1216, soon after his conversion, contain
no allusion to the ordeal, but in those of Ladislas and Coloman,
issued towards the end of the century, it is found, in its various
forms, thoroughly established as a means of legal proof.[879] So,
when in the twelfth century Bishop Geroldus converted the Slavs of
Mecklenburg, they were at once forbidden to settle questions by oaths
taken on trees, fountains, and stones, as before, but were required to
bring their criminals before the priest to be tried by the hot iron
or ploughshares.[880] Under the Crusaders, the ordeal was carried
back towards the home of its birth, even contaminating the Byzantine
civilization, and various instances of its use are related by the
historians of the Lower Empire to a period as late as the middle of the
fourteenth century.
The ingenuity of the church and the superstition of the people
increased somewhat the varieties of the ordeal which we have seen
employed in the East. Besides the judicial combat, the modes by which
the will of Heaven was ascertained may be classed as the ordeal of
boiling water, of red-hot iron, of fire, of cold water, of the balance,
of the cross, of the _corsnœd_ or swallowing bread or cheese, of the
Eucharist, of the lot, bier-right, oaths on relics, and poison ordeals.
In some of these, it will be seen, a miraculous interposition was
required for an acquittal, in others for a condemnation; some depended
altogether on volition, others on the purest chance; while others,
again, derived their efficacy from the influence exerted over the mind
of the patient.
CHAPTER II.
THE ORDEAL OF BOILING WATER.
The ordeal of boiling water (_æneum, judicium aquæ ferventis, cacabus,
caldaria_) is the one usually referred to in the most ancient texts
of laws. It was a favorite both with the secular and ecclesiastical
authorities, and the manner in which the pagan usages of the ancient
Aryans were adopted and rendered orthodox by the Church is well
illustrated by the commendation bestowed on it by Hincmar, Archbishop
of Reims, in the ninth century. It combines, he says, the elements
of water and of fire; the one representing the deluge—the judgment
inflicted on the wicked of old; the other authorized by the fiery
doom of the future—the day of judgment, in both of which we see the
righteous escape and the wicked suffer.[881] There were several minor
variations in its administration, but none of them departed to any
notable extent from the original form as invented in the East. A
caldron of water was brought to the boiling-point, and the accused was
obliged with his naked hand to find a small stone or ring thrown into
it; sometimes the latter portion was omitted, and the hand was simply
inserted, in trivial cases to the wrist, in crimes of magnitude to
the elbow; the former being termed the single, the latter the triple
ordeal;[882] or, again, the stone was employed, suspended by a string,
and the severity of the trial was regulated by the length of the line,
a palm’s breadth being counted as single, and the distance to the elbow
as triple.[883] A good example of the process, in all its details,
is furnished us by Gregory of Tours, who relates that an Arian priest
and a Catholic deacon, disputing about their respective tenets, and
being unable to convince each other, the latter proposed to refer the
subject to the decision of the _æneum_, and the offer was accepted.
Next morning the deacon’s enthusiasm cooled, and he mingled his matins
with precautions of a less spiritual nature, by bathing his arm in
oil, and anointing it with protective unguents. The populace assembled
to witness the exhibition, the fire was lighted, the caldron boiled
furiously, and a little ring thrown into it was whirled around like a
straw in a tornado, when the deacon politely invited his adversary to
make the trial first. This was declined, on the ground that precedence
belonged to the challenger, and with no little misgiving the deacon
proceeded to roll up his sleeve, when the Arian, observing the
precautions that had been taken, exclaimed that he had been using magic
arts, and that the trial would amount to nothing. At this critical
juncture, when the honor of the orthodox faith was trembling in the
balance, a stranger stepped forward—a Catholic priest named Jacintus,
from Ravenna—and offered to undergo the experiment. Plunging his arm
into the bubbling caldron, he was two hours in capturing the ring,
which eluded his grasp in its fantastic gyrations; but finally, holding
it up in triumph to the admiring spectators, he declared that the water
felt cold at the bottom, with an agreeable warmth at the top. Fired
by the example, the unhappy Arian boldly thrust in his arm; but the
falseness of his cause belied the confidence of its rash supporter, and
in a moment the flesh was boiled off the bones up to the elbow.[884]
This was a volunteer experiment. As a means of judicial investigation,
the Church, in adopting it with the other ordeals, followed the policy
of surrounding it with all the solemnity which her most venerated rites
could impart, thus imitating, no doubt unconsciously, the customs
of the Hindus, who, from the earliest times, have made the ordeal
a religious ceremony, to be conducted by Brahmans, with invocations
to the divine powers, and to be performed by the patient at sunrise,
immediately after the prescribed ablutions, and while yet fasting.[885]
With the same object, in the European ordeal, fasting and prayer were
enjoined for three days previous, and the ceremony commenced with
special prayers and adjurations, introduced for the purpose into the
litany, and recited by the officiating priests; mass was celebrated,
and the accused was required to partake of the sacrament under the
fearful adjuration, “This body and blood of our Lord Jesus Christ be to
thee this day a manifestation!” This was followed by an exorcism of the
water, of which numerous formulas are on record, varying in detail, but
all manifesting the robust faith with which man assumed to control the
action of his Creator. A single specimen will suffice.
“O creature of water, I adjure thee by the living God, by the holy
God who in the beginning separated thee from the dry land; I adjure
thee by the living God who led thee from the fountain of Paradise,
and in four rivers commanded thee to encompass the world; I adjure
thee by Him who in Cana of Galilee by His will changed thee to wine,
who trod on thee with His holy feet, who gave thee the name Siloa; I
adjure thee by the God who in thee cleansed Naaman, the Syrian, of his
leprosy;—saying, O holy water, O blessed water, water which washest
the dust and sins of the world, I adjure thee by the living God that
thou shalt show thyself pure, nor retain any false image, but shalt be
exorcised water, to make manifest and reveal and bring to naught all
falsehood, and to make manifest and bring to light all truth; so that
he who shall place his hand in thee, if his cause be just and true,
shall receive no hurt; but if he be perjured, let his hand be burned
with fire, that all men may know the power of our Lord Jesus Christ,
who will come, with the Holy Ghost, to judge with fire the quick and
the dead, and the world! Amen!”[886]
After the hand had been plunged in the seething caldron, it was
carefully enveloped in a cloth, sealed with the signet of the judge,
and three days afterwards it was unwrapped, when the guilt or innocence
of the party was announced by the condition of the member.[887] By way
of extra precaution, in some rituals it is ordered that during this
interval holy water and blessed salt be mingled in all the food and
drink of the patient—presumably to avert diabolic interference with the
result.[888]
The judicial use of this ordeal is shown in a charter of the monastery
of Sobrada in Galicia, when, about 987, the Bishop of Lugo claimed of
it for his church the manor of Villarplano. After a vain effort to
decide the question by evidence, the representatives of the monastery
took a solemn oath as to its rights and offered to confirm it by the
_pæna caldaria_. In the church of San Juliano some fifty or sixty
notables from both sides assembled; a monk named Salamiro was conducted
to the boiling caldron by a person representing each claimant, and
there he drew forth ten stones from the bubbling water. His arm was
sealed up and three or four days later was exhibited uninjured to the
assembly. The proof was conclusive and the Bishop of Lugo abandoned his
claim.[889]
The justification of this mode of procedure by its most able defender,
Hincmar of Reims, is similar in spirit to the above form of adjuration.
King Lothair, great-grandson of Charlemagne, desiring to get rid of
his wife, Teutberga, accused her of the foulest incest, and forced her
to a confession, which she afterwards recanted, proving her innocence
by undergoing the ordeal of hot water by proxy. Lothair, nevertheless,
married his concubine Waldrada, and for ten years the whole of Europe
was occupied with the degrading details of the quarrel, council after
council assembling to consider the subject, and the thunders of Rome
being freely employed. Hincmar, the most conspicuous ecclesiastic of
his day, stood boldly forth in defence of the unhappy queen, and in
his treatise “De Divortio Lotharii et Teutbergæ,” although no one
at the time seriously thought of impugning the authority of ordeals
in general, it suited his purpose to insist upon their claims to
infallibility. His line of argument shows how thoroughly the pagan
custom had become Christianized, and how easily the churchman could
find reasons for attributing to God the interposition which his
ancestors had ascribed to Mithra, or to Agni, or to Thor. “Because
in boiling water the guilty are scalded and the innocent are unhurt,
because Lot escaped unharmed from the fire of Sodom, and the future
fire which will precede the terrible Judge will be harmless to the
Saints, and will burn the wicked as in the Babylonian furnace of
old.”[890]
In the Life of St. Ethelwold is recorded a miracle, which, though not
judicial, yet, from its description by a contemporary, affords an
insight into the credulous faith which rendered lawgivers ready to
intrust the most important interests to decisions of this nature. The
holy saint, while Abbot of Abingdon, to test the obedience of Elfstan
the cook of the monastery, ordered him to extract with his hand a piece
of meat from the bottom of a caldron in which the conventual dinner was
boiling. Without hesitation the monk plunged his hand into the seething
mass and unhurt presented the desired morsel to his wondering superior.
Faith such as this could not go unrewarded, and Elfstan, from his
humble station, rose to the episcopal seat of Winchester.[891]
This form of trial was in use among all the races in whose legislation
the _purgatio vulgaris_ found place. It is the only mode alluded to
in the Salic Law, from the primitive text to the amended code of
Charlemagne.[892] The same may be said of the Wisigoths, as we have
already seen; while the codes of the Frisians, the Anglo-Saxons, and
the Lombards, all refer cases to its decision.[893] In Iceland, it was
employed from the earliest times;[894] in the primitive jurisprudence
of Russia its use was enjoined in cases of minor importance,[895] and
it continued in vogue throughout Europe until the general discredit
attached to this mode of judgment led to the gradual abandonment of
the ordeal as a legal process. It is among the forms enumerated in the
sweeping condemnation of the whole system, in 1215, by Innocent III.
in the Fourth Council of Lateran; but even subsequently we find it
prescribed in certain cases by the municipal laws in force throughout
the whole of Northern and Southern Germany,[896] and as late as 1282 it
is specified in a charter of Gaston of Béarn, conferring on a church
the privilege of holding ordeals.[897] At a later date, indeed, it
was sometimes administered in a different and more serious form, the
accused being expected to swallow the boiling water. I have met with
no instances recorded of this, but repeated allusions to it by Rickius
show that it could not have been unusual.[898] Another variant is seen
in the case of a monk who had brought the body of St. Helena to his
convent and was forced to prove its genuineness by complete immersion
in boiling water—a trial which he endured successfully.[899]
The modern Hindoo variety of this ordeal consists in casting a piece of
gold or a metal ring into a vessel of boiling _ghee_, or sesame oil,
of a specified size and depth. Sacrifices are offered to the gods, a
mantra, or Vedic prayer, is uttered over the oil, which is heated until
it burns a fresh peepul leaf, and if the person on trial can extract
the ring between his finger and thumb, without scalding himself, he is
pronounced victorious.[900] In 1783 a case is recorded as occurring at
Benares, in which a Brahman accused a linen-painter of theft, and as
there was no other way of settling the dispute, both parties agreed
to abide by the result of the ordeal. At that time the East India
Company was endeavoring to discountenance this superstition, but could
not venture to abolish it forcibly, and as persuasion was unavailing
the accused was allowed to undergo the experiment, which resulted in
his conviction. Not much confidence, however, seems to have been felt
in the trial, as the fine incurred by him was not enforced.[901] Of
course, under the influence of English rule, this and all other ordeals
are legally obsolete, but the popular belief in them is not easily
eradicated. So lately as 1867 the Bombay _Gazette_ records a case
occurring at Jamnuggur, when a camel-driver named Chakee Soomar, under
whose charge a considerable sum of money was lost, was exposed by a
local official to the ordeal of boiling oil. The authorities, however,
took prompt measures to punish this act of cruelty. The _karb-haree_
who ordered it escaped chastisement by opportunely dying, but the
owner of the treasure, who had urged the trial, was condemned to pay
to the camel-driver a pension of 100 rupees during life. In 1868 the
Madras _Times_ chronicled an attempt to revive the practice among the
Brahmans of Travancore. About thirty years before it had been abolished
by the British authorities, but previous to that time it was performed
by placing a small silver ball in a brazen vessel eight inches deep,
filled with boiling ghee. After various religious ceremonies, the
accused plunged in his hand, and sometimes was obliged to repeat
the attempt several times before he could bring out the ball. The
hand was then wrapped up in tender palm leaves and examined after an
interval of three days. In 1866 some Brahmans in danger of losing caste
endeavored to regain their position by obtaining permission to undergo
a modification of this trial, substituting cold oil for boiling ghee.
The authorities made no objection to this, but the holy society refused
to consider it a valid purgation.
Christian faith improved on the simplicity of pagan devices, and
was able, through the intermediation of men of supreme sanctity, to
induce Heaven to render the ordeal still more miraculous. D’Achery
quotes from a contemporary MS. life of the holy Pons, Abbot of Andaone
near Avignon, a miracle which relates that one morning after mass,
as he was about to cross the Rhone, he met two men quarrelling over
a ploughshare, which, after being lost for several days, had been
found buried in the ground, and which each accused the other of having
purloined and hidden. As the question was impenetrable to human wisdom,
Pons intervened and told them to place the ploughshare in the water
of the river, within easy reach. Then, making over it the sign of the
cross, he ordered the disputant who was most suspected to lift it out
of the river. The man accordingly plunged his arm into the stream only
to withdraw it, exclaiming that the water was boiling, and showed his
hand fearfully scalded, thus affording the most satisfactory evidence
of his guilt.[902] St. Bertrand, Bishop of Comminges, adopted a similar
method in a case of disputed paternity. A poor woman came to him with
a starving infant, which the father refused to recognize or provide
for, lest such evidence of sin should render him ineligible for an
ecclesiastical benefice. The bishop summoned the offender, who stoutly
denied the allegation, until a vessel of cold water was brought and a
stone thrown in, when the bishop blessed the water, and ordered the
father to take out the stone, saying that the result would show the
truth or falsity of his asseverations. Full of confidence, the man
plunged in his hand and brought out the stone, with his hand scalded
as though the water had been boiling. He promptly admitted his guilt,
acknowledged the child, and thenceforth provided for it.[903] Similar
to this was the incident which drove the holy St. Gengulphus from the
world. While yet a warrior and favorite of King Pepin, during his
travels in Italy he was attracted by a way-side fountain, and bought
it from the owner, who imagined that it could not be removed from his
possessions. On his return to France, Gengulphus drove his staff into
the ground near his house, in a convenient place, and on its being
withdrawn next day, the obedient stream, which had followed him from
Italy, burst forth. He soon learned that during his absence his wife
had proved unfaithful to him with a priest, and desiring to test her
innocence, he took her to the fountain and told her that she could
disprove the reports against her by picking up a hair which lay at the
bottom of the pool. She boldly did this, but on withdrawing her hand it
was fearfully scalded, the skin and flesh hanging in strips from her
finger-ends. He pardoned her and retired from the world, but she was
implacable, and took her revenge by inciting her paramour to murder
him.[904]
CHAPTER III.
THE ORDEAL OF RED-HOT IRON.
In almost all ages there has existed the belief that under the
divine influence the human frame was able to resist the action of
fire. Even the sceptic Pliny seems to share the superstition as to
the families of the Hirpi, who at the annual sacrifice made to
Apollo, on Mount Soracte, walked without injury over piles of burning
coals, in recognition of which, by a perpetual senatus consultum,
they were relieved from all public burdens.[905] That fire applied
either directly or indirectly should be used in the appeal to God was
therefore natural, and the convenience with which it could be employed
by means of iron rendered that the most usual form of the ordeal. As
employed in Europe, under the name of _judicium ferri_ or _juise_ it
was administered in two essentially different forms. The one (_vomeres
igniti, examen pedale_) consisted in laying on the ground at certain
distances six, nine, or in some cases twelve, red-hot ploughshares,
among which the accused walked barefooted, sometimes blindfolded,
when it became an ordeal of pure chance, and sometimes compelled to
press each iron with his naked feet.[906] The other and more usual
form obliged the patient to carry in his hand for a certain distance,
usually nine feet, a piece of red-hot iron, the weight of which was
determined by law and varied with the importance of the question
at issue or the magnitude of the alleged crime. Thus, among the
Anglo-Saxons, in the “simple ordeal” the iron weighed one pound, in the
“triple ordeal” three pounds. The latter is prescribed for incendiaries
and “morth-slayers” (secret murderers), for false coining, and for
plotting against the king’s life; while at a later period, in the
collection known as the Laws of Henry I., we find it extended to cases
of theft, robbery, arson, and felonies in general.[907] In Sweden,
for theft, the form known as _trux iarn_ was employed, in which the
accused had to carry the red-hot iron and deposit it in a hole twelve
paces from the starting-point; in other cases the ordeal was called
_scuz iarn_, when he carried it nine paces and then cast it from him.
These ordeals were held on Wednesday, after fasting on bread and water
on Monday and Tuesday; the hand or foot was washed, after which it was
allowed to touch nothing till it came in contact with the iron; it
was then wrapped up and sealed until Saturday, when it was opened in
presence of the accuser and the judges.[908] In Spain, the iron had no
definite weight, but was a palm and two fingers in length, with four
feet, high enough to enable the criminal to lift it conveniently.[909]
The episcopal benediction was necessary to consecrate the iron to its
judicial use. A charter of 1082 shows that the Abbey of Fontanelle in
Normandy had one of approved sanctity, which, through the ignorance
of a monk, was applied to other purposes. The Abbot thereupon asked
the Archbishop of Rouen to consecrate another, and before the latter
would consent the institution had to prove its right to administer
the ordeal.[910] The wrapping up and sealing of the hand was a
general custom, derived from the East, and usually after three days
it was uncovered and the decision was rendered in accordance with its
condition.[911] These proceedings were accompanied by the same solemn
observances which have been already described, the iron itself was
duly exorcised, and the intervention of God was invoked in the name of
all the manifestations of Divine clemency or wrath by the agency of
fire—Shadrach, Meshach, and Abednego, the burning bush of Horeb, the
destruction of Sodom, and the day of judgment.[912] Occasionally, when
several criminals were examined together, the same piece of heated iron
was borne by them successively, giving a manifest advantage to the
last one, who had to endure a temperature considerably less than his
companions.[913]
In India this was one of the earliest forms of the ordeal, in use
even in the Vedic period, as it is referred to in the Khandogya
Upanishad of the Sama Veda, where the head of a hatchet is alluded to
as the implement employed for the trial—subsequently replaced by a
ploughshare.[914] In the seventh century, A. D., Hiouen Thsang reports
that the red-hot iron was applied to the tongue of the accused as well
as to the palms of his hands and the soles of his feet, his innocence
being designated by the amount of resultant injury.[915] This may have
been a local custom, for, according to Institutes of Vishnu, closely
followed by Yajnavalkya, the patient bathes and performs certain
religious ceremonies; then after rubbing his hands with rice bran,
seven green asvattha leaves are placed on the extended palms and bound
with a thread. A red-hot iron ball or spear-head, weighing about two
pounds and three-quarters, is then brought, and the judge adjures it—
“Thou, O fire, dwellest in the interior of all things like a witness.
O fire, thou knowest what mortals do not comprehend.
“This man being arraigned in a cause desires to be cleared from guilt.
Therefore mayest thou deliver him lawfully from this perplexity.”
The glowing ball is then placed on the hands of the accused, and with
it he has to walk across seven concentric circles of cow-dung, each
with a radius sixteen fingers’ breadth larger than the preceding, and
throw the ball into a ninth circle, where it must burn some grass
placed there for the purpose. If this be accomplished without burning
the hands, he gains his cause, but the slightest injury convicts him.
A minimum limit of a thousand pieces of silver was established at an
early period as requisite to justify the administration of this form of
ordeal in a suit.[916] But the robust faith in the power of innocence
characteristic of the earlier Hindus seems to have diminished, for
subsequent recensions of the code and later lawgivers increase the
protection afforded to the hand by adding to the asvattha leaves
additional strata of dharba grass and barley moistened with curds, the
whole bound around with seven turns of raw silk.[917] Ali Ibrahim Khan
relates a case which he witnessed at Benares in 1783 in which a man
named Sancar, accused of larceny, offered to be tried in this manner.
The court deliberated for four months, urging the parties to adopt some
other mode, but they were obstinate, and being both Hindus claimed
their right to the ancient forms of law, which was at last conceded.
The ordeal took place in presence of a large assemblage, when, to
the surprise of every one, Sancar carried the red-hot ball through
the seven circles, threw it duly into the ninth where it burnt the
grass, and exhibited his hands uninjured. By way of discouraging such
experiments for the future, the accuser was imprisoned for a week.[918]
Even in 1873, the Bombay _Gazette_ states that this ordeal is still
practised in Oodeypur, where a case had shortly before occurred wherein
a husbandman had been obliged to prove his innocence by holding a
red-hot ploughshare in his hands, duly guarded with peepul leaves,
turning his face towards the sun and invoking it: “Thou Sun-God, if
I am actually guilty of the crime, punish me; if not, let me escape
unscathed from the ordeal!”—and in this instance, also, the accused was
uninjured.
A peculiar modification of the hot-iron ordeal is employed by the
aboriginal hill-tribes of Rajmahal, in the north of Bengal, when a
person believes himself to be suffering from witchcraft. The _Satane_
and the _Cherreen_ are used to find out the witch, and then the
decision is confirmed by a person representing the sufferer, who, with
certain religious ceremonies, applies his tongue to a red-hot iron
nine times, unless sooner burnt. A burn is considered to render the
guilt of the accused indubitable, and his only appeal is to have the
trial repeated in public, when, if the same result follows, he is bound
either to cure the bewitched person or to suffer death if the latter
dies.[919]
In the earlier periods of European law, the burning iron was reserved
for cases of peculiar atrocity. Thus we find it prescribed by
Charlemagne in accusations of parricide;[920] the Council of Risbach in
799 directed its use in cases of sorcery and witchcraft;[921] and among
the Thuringians it was ordered for women suspected of poisoning or
otherwise murdering their husbands[922]—a crime visited with peculiar
severity in almost all codes. In 848 the Council of Mainz indicates
it specially for slaves,[923] while the Council of Tribur, in 895,
orders it for all cases of accusation against freemen.[924] Among
the Anglo-Saxons the accuser had the right to select the ordeal to
be employed,[925] while at a later period in Germany this privilege
was conferred on the accused.[926] In England it subsequently became
rather an aristocratic procedure as contradistinguished from the water
ordeals.[927] On the other hand, in the Assises de Jerusalem the
hot iron is the only form alluded to as employed in the _roturier_
courts;[928] in the laws of Nieuport, granted by Philip of Alsace in
1163, it is prescribed as a plebeian ordeal;[929] and about the same
period, in the military laws enacted by Frederic Barbarossa during his
second Italian expedition, it appears as a servile ordeal.[930] In the
Russian law of the eleventh century, it is ordered in all cases where
the matter at stake amounts to more than half a _grivna_ of gold, while
the water ordeal is reserved for suits of less importance.[931] In the
Icelandic code of the twelfth century it is prescribed for men, in
cases in which women are required to undergo the hot-water ordeal;[932]
while the reverse of this is seen in an English case occurring in
1201, where six men and a woman were accused of burglary; the men
were ordered to the water ordeal and the woman to red-hot iron.[933]
A specially severe form was provided for women in Ireland, who, when
accused, were obliged to lick with the tongue a bronze axe-head heated
to redness in a fire of black-thorn.[934]
Irrespective of these distinctions, we find it to have been the mode
usually selected by persons of rank when compelled to throw themselves
upon the judgment of God. The Empress Richardis, wife of Charles le
Gros, accused in 887 of adultery with Bishop Liutward, offered to prove
her innocence either by the judicial combat or the red-hot iron.[935]
So when the Emperor St. Henry II. indulged in unworthy doubts of the
purity of his virgin-wife St. Cunigunda, she eagerly appealed to the
judgment of God, and established her innocence by treading unharmed
the burning ploughshares.[936] The tragical tradition of Mary, wife of
the Third Otho, contains a similar example, with the somewhat unusual
variation of an accuser undergoing an ordeal to prove a charge. The
empress, hurried away by a sudden and unconquerable passion for Amula,
Count of Modena, in 996, repeated in all its details the story of
Potiphar’s wife. The unhappy count, unceremoniously condemned to lose
his head, asserted his innocence to his wife, and entreated her to
clear his reputation. He was executed, and the countess, seeking an
audience of the emperor, disproved the calumny by carrying unharmed the
red-hot iron, when Otho, convinced of his rashness by this triumphant
vindication, immediately repaired his injustice by consigning his
empress to the stake.[937] When Edward the Confessor, who entertained
a not unreasonable dislike for his mother Emma, listened eagerly to the
accusation of her criminal intimacy with Alwyn, Bishop of Winchester,
she was condemned to undergo the ordeal of the burning shares, and,
walking over them barefooted and unharmed, she established beyond
peradventure the falsehood of the charge.[938] So when in 943 Arnoul
of Flanders had procured the assassination of William Longsword,
Duke of Normandy, at Pecquigny, he offered to Louis d’Outremer to
clear himself of complicity in the murder by the ordeal of fire.[939]
Robert Curthose, son of William the Conqueror, while in exile during
his youthful rebellion against his father, formed an intimacy with
a pretty girl. Years afterwards, when he was Duke of Normandy, she
presented herself before him with two likely youths, whom she asserted
to be pledges of his former affection. Robert was incredulous; but
the mother, carrying unhurt the red-hot iron, forced him to forego
his doubts and to acknowledge the paternity of the boys, whom he
thenceforth adopted.[940] Indeed this was the legal form of proof in
cases of disputed paternity established by the Scandinavian legislation
at this period,[941] and in that of Spain a century later.[942] Remy,
Bishop of Dorchester, when accused of treason against William the
Conqueror, was cleared by the devotion of a follower, who underwent the
ordeal of hot iron.[943] When, in 1098, William Rufus desired to supply
his treasury by confiscations, he accused about fifty of his richest
Saxon subjects of having killed deer in his forests and hurried them
to the hot-iron ordeal, but he was stupefied when after the third day
their hands were found to be unhurt.[944] In 1143, Henry I., Archbishop
of Mainz, ordered its employment, and administered it himself, in a
controversy between the Abbey of Gerode and the Counts of Hirschberg.
In the special charter issued to the abbey attesting the decision of
the trial, it is recorded that the hand of the ecclesiastical champion
was not only uninjured by the fiery metal, but was positively benefited
by it.[945] About the same period, Centulla IV. of Béarn caused it to
be employed in a dispute with the Bishop of Lescar concerning the fine
paid for the murder of a priest, the ecclesiastic, as usual, being
victorious.[946] The reward of the church for its faith in adopting
these pagan customs was seen in the well-known case by which Bishop
Poppo of Slesvick, in 962, succeeded in convincing and converting the
Pagan Danes even as, three thousand years earlier, according to the
Persian historians, Zoroaster convinced King Gushtashp of the truth of
his revelation from Hormazd,[947] and, within seven centuries, Adurabad
converted the heretical Mazdeans. The worthy missionary, dining with
King Harold Blaatand, denounced, with more zeal than discretion, the
indigenous deities as lying devils. The king dared him to prove his
faith in his God, and, on his assenting, caused next morning an immense
piece of iron to be duly heated, which the undaunted Poppo grasped
and carried around to the satisfaction of the royal court, displaying
his hand unscathed by the glowing mass; or, as a variant of the legend
asserts, he drew on an iron gauntlet reaching to the elbow and heated
to redness. The miracle was sufficient, and Denmark thenceforth becomes
an integral portion of Christendom.[948] Somewhat similar, except in
its results, was a case in which a priest involved in a theological
dispute with a Jew, and unable to overcome him in argument, offered to
prove the divinity of Christ by carrying a burning brand in his naked
hand. Invoking the name of Jesus, the faithful ecclesiastic drew the
blazing wood from the fire and slowly carried it for a considerable
distance, but though he triumphantly exhibited his hand unhurt, his
obdurate antagonist refused to be converted, alleging that the miracle
was the result of magic.[949] In Norway, the sanctity of St. Olaf the
King was attested in the same way, when he thoughtlessly whittled a
twig on Sunday, and his attention was respectfully called by one of
his courtiers to this violation of the sabbatical rules. By way of
penance he collected the chips, placed them on the palm of one hand,
and set fire to them, but after they had been reduced to ashes, to the
surprise of the bystanders, his hand was found unharmed.[950]
In fact, there was scarcely a limit to the credulity which looked
for the constant interference of the divine power. About 1215 some
heretics at Cambrai were convicted by the hot iron and sentenced to the
stake. One of them was of noble birth, and on the way to the place of
execution the priest who had conducted the proceedings exhorted him to
repentance and conversion. The condemned man listened willingly, and
commenced to confess his errors. As he proceeded his hand commenced to
heal, and when he had received absolution there remained no trace of
the burn. When he was called in turn to take his place at the stake,
the priest interposed, saying that he was innocent, and, on examination
of the hand, he was released. About the same time a similar occurrence
is recorded at Strassburg, where ten heretics had been thus convicted
and condemned to be burnt, and one repenting at the last moment was
cured of his burn, and was discharged. In this case, however, on his
return to his house near the town, his wife upbraided him for his
weakness in betraying the eternal truth to avoid a momentary suffering,
and under her influence he relapsed. Immediately the burn on his hand
reappeared, and a similar one took possession of his wife’s hand,
scorching both to the bone and inflicting such excruciating agony
that being unable to repress their screams, and fearing to betray
themselves, they took to the woods, where they howled like wolves.
Concealment was impossible, however. They were discovered, carried
to the city, where the ashes of their accomplices were not yet cold,
and both promptly shared the same fate.[951] Somewhat similar is a
case recorded in York, where a woman accused of homicide was exposed
to the ordeal, resulting in a blister the size of a half walnut. She
was accordingly convicted by a jury of knights, but on her offering
a prayer at the tomb of St. William of York the blister disappeared.
Thereupon the royal justiciaries dismissed her as innocent, and
declared the jury to be at the king’s mercy for rendering a false
verdict.[952]
No form of ordeal was more thoroughly introduced throughout the whole
extent of Europe. From Spain to Constantinople, and from Scandinavia
to Naples, it was appealed to with confidence as an unfailing mode of
ascertaining the will of Heaven. The term _judicium_, indeed, was at
length understood to mean an ordeal, and generally that of hot iron,
and in its barbarized form, _juise_, may almost always be considered
to indicate this particular kind. In the Swedish law of the early 13th
century, the red-hot iron was used in a large number of crimes, and the
ferocity of its employment is exemplified in the formula prescribed for
homicide. A person accused of murder on suspicion was always obliged to
justify himself by carrying the hot iron for nine steps; and if he did
not appear to stand his trial when duly summoned, he might be forced
to undergo a preliminary ordeal to prove that he had been unavoidably
detained. If he failed in this, he was condemned as guilty, but if he
succeeded in enduring it he was forced to perform the second ordeal to
clear him of the crime itself; while the heir of the murdered man, so
long as no one succumbed in the trial, could successively accuse ten
men; for the last of whom, however, the nine burning ploughshares were
substituted.[953] In the code of the Frankish kingdoms of the East, it
is the only mode alluded to, except the duel, and it there retained
its legal authority long after it had become obsolete elsewhere. The
Assises de Jerusalem were in force in the Venetian colonies until the
sixteenth century, and the manuscript preserved officially in the
archives of Venice, described by Morelli as written in 1436, retains
the primitive directions for the employment of the _juise_.[954] Even
the Venetian translation, commenced in 1531, and finished in 1536, is
equally scrupulous, although an act of the Council of Ten, April 10,
1535, shows that these customs had fallen into desuetude and had been
formally abolished.[955] In Hungary, the judicial records of Waradin
from 1209 to 1235 contain 389 judgments, of which a large part were
determined by the hot-iron ordeal.[956]
This ordeal even became partially naturalized among the Greeks,
probably as a result of the Latin domination at Constantinople. In
the middle of the thirteenth century, the Emperor Theodore Lascaris
demanded that Michael Paleologus, who afterwards wore the imperial
crown, should clear himself of an accusation in this manner; but the
Archbishop of Philadelphia, on being appealed to, pronounced that it
was a custom of the barbarians, condemned by the canons, and not to be
employed except by the special order of the emperor.[957] Yet George
Pachymere speaks of the custom as one not uncommon in his youth,
and he describes at some length the ceremonies with which it was
performed.[958]
In Europe, even as late as 1310, in the proceedings against the Order
of the Templars, at Mainz, Count Frederic, the master preceptor of
the Rhenish provinces, offered to substantiate his denial of the
accusations by carrying the red-hot iron.[959] In Modena in 1329, in
a dispute between the German soldiers of Louis of Bavaria and the
citizens, the Germans offered to settle the question by carrying a
red-hot bar; but when the townsfolks themselves accomplished the feat,
and triumphantly showed that no burn had been inflicted, the Germans
denied the proof, and asserted that magic had been employed.[960]
Though about this time it may be considered to have disappeared from
the ordinary proceedings of the secular courts, there was one class
of cases in which its vitality still continued for a century and a
half. The mysterious crime of witchcraft was so difficult of proof
that judicial ingenuity was taxed to its utmost to secure conviction,
and the Devil was always ready to aid his followers and baffle the
ends of justice. The Inquisitor Sprenger, writing in 1487, therefore
recommends that, when a witch cannot be forced to confess her guilt
by either prayers or torture, she shall be asked whether she will
undergo the ordeal of red-hot iron; to this she will eagerly assent,
knowing that she can rely on the friendly assistance of Satan to carry
her through it unscathed, and this readiness will be good evidence
of her guilt. He warns inexperienced judges moreover not to allow
the trial to take place, and thus afford to Satan the opportunity
of triumph, and instances a case which occurred in 1484 before the
Count of Furstenberg. A well-known witch was arrested and tried, but
no confession could be extorted from her by all the refinements of
torture. Finally she offered to prove her innocence with the red-hot
iron, and the Count being young and unwary accepted the proposal,
sentencing her to carry it three paces. She carried it for six paces
and offered to hold it still longer, exhibiting her hand uninjured. The
Count was forced to acquit her, and at the time that Sprenger wrote she
was still living, to the scandal of the faithful.[961]
After the judicial use of the red-hot iron had at last died out, the
superstition on which it was based still lingered, and men believed
that God would reverse the laws of nature to accomplish a special
object. About 1670 Georg Frese, a merchant of Hamburg, distinguished
for piety and probity, published an account, the truth of which was
vouched for by many respectable eye-witnesses, stating that a friend
of his named Witzendorff, who had bound himself to a young woman by
terrible oaths, and then had proved false and caused her death, fell
into a despairing melancholy. He accused himself of the sin against the
Holy Ghost, declared that his salvation was impossible, and refused
to hope unless he could see a miracle wrought in his behalf. Frese at
length asked him what miracle he required, and on his replying that
he must see that fire would not burn, the intrepid consoler went to a
blazing fire, picked out the burning coals and also a red-hot ring,
which he brought to the sinner with uninjured hands and convinced him
that he could be saved by repentance. The moral drawn from the facts by
the narrator to whom we owe them, is that he who under Divine influence
undertakes such ordeals will be preserved unharmed.[962]
Even as we have seen that Heaven sometimes interposed to punish the
guilty by a reversal of the hot-water ordeal, so the industrious belief
of the Middle Ages found similar miracles in the hot-iron trial,
especially when Satan or some other mysterious influence nullified the
appeal to God. Early in the thirteenth century a case is related in
which a peasant to revenge himself on a neighbor employed a vagabond
monk to burn the house of the latter. The hot-iron ordeal was vainly
employed on all suspected of the crime; the house was rebuilt, the
monk again bribed, burnt it a second time, and again the ordeal
proved vain. The owner again rebuilt his house, and kept in it the
ordeal-iron, ready for use. The monk, tempted with fresh promises,
paid him another visit, and was hospitably received as before, when
seeing the piece of iron, his curiosity was aroused and he asked what
it was. The host handed it to him, explaining its use, but as soon as
the wretch took it, it burned him to the bone, when the other seeing
in him the incendiary, seized him; he was duly tried, confessed his
guilt, and was broken on the wheel.[963] A variant of this story
relates how a man accused of arson offered to prove his innocence
by the red-hot iron, which he carried for a long distance and then
showed his hand uninjured. The ordeal-iron mysteriously vanished and
could not be found, until a year afterwards, when a laborer who was
mending the highway came upon it under a layer of sand. It was still
glowing fiercely, and when he attempted to pick it up, it burnt him
severely. The bystanders at once suspected him of the crime, and on
the appropriate means being taken he was forced to confess his guilt,
which was duly punished by the wheel.[964] A less tragical example of
the same form of miracle was that wrought by the holy Suidger, Bishop
of Munster, who suspected his chamberlain of the theft of a cup. As the
man stoutly denied his guilt, Suidger ordered him to pick up a knife
from the table, after he had mentally exorcised it. The cold metal
burnt the culprit’s hand as though it had been red-hot, and he promptly
confessed his crime.[965]
CHAPTER IV.
THE ORDEAL OF FIRE.
The ordeal of fire, administered directly, without the intervention
either of water or of iron, is one of the most ancient forms, as is
shown by the allusions to it in both the Hindu Vedic writings, the
adventure of Siawush, and the passage in the Antigone of Sophocles (pp.
266, 267, 270). In this, its simplest form, it may be considered the
origin of the proverbial expression, “J’en mettrois la main au feu,”
as an affirmation of positive belief,[966] showing how thoroughly
the whole system engrained itself in the popular mind. In India, as
practised in modern times, its form approaches somewhat the ordeal
of the burning ploughshares. A trench is dug nine hands in length,
two spans in breadth, and one span in depth. This is filled with
peepul wood, which is then set on fire, and the accused walks into it
with bare feet.[967] A more humane modification is described in the
seventh century by Hiouen-Thsang as in use when the accused was too
tender to undergo the trial by red-hot iron. He simply cast into the
flames certain flower-buds, when, if they opened their leaves, he was
acquitted; if they were burnt up, he was condemned.[968]
An anticipation of the fire ordeal may be found in the Rabbinical
story of Abraham when he was cast into a fiery furnace by Nimrod, for
reproving the idolatry of the latter, and escaped unharmed from the
flames;[969] as well as the similar experience of Shadrach, Mesach, and
Abednego, when they were saved from the wrath of Nebuchadnezzar.[970]
Miraculous interposition of this kind was expected as a matter of
course by the early Christians. About the year 400 Rufinus, in his
account of his visit to the monks of the Nitrian desert, tells an
adventure of the hermit Copres as related to him by that holy man
himself. On visiting a neighboring city he engaged in a disputation
with a Manichæan who was perverting the people. Finding the heretic not
easily overcome by argument, he proposed that a fire should be built
in the public square, into which both should enter. The populace was
delighted with the idea and speedily had a roaring pyre ready, when
the Manichæan insisted that the Christian should enter first. Copres
assented and remained unhurt in the flames for half an hour; his
antagonist still held back, when the crowd seized him and tossed him
into the fire, where he was severely scorched, and was ejected with
disgrace from the city.[971] Almost identical is the story related in
597 A. D., under the Emperor Anastasius, of a Catholic bishop, who,
after being worsted in a theological dispute by the subtle logic of
an Arian, offered to test the soundness of their respective doctrines
by together entering a blazing fire. The prudent Arian declined the
proposition, when the enthusiastic Catholic jumped into the burning
pile, and thence continued the controversy without suffering the least
inconvenience.[972] In the less impressive form of filling the lap
with burning coals and carrying them uninjured till they grew cold
this ordeal seems to have been a favorite with holy men accused of
unchastity. It is related of St. Brice, the successor of St. Martin in
the see of Tours, of St. Simplicius of Autun, and of Montano bishop of
Toledo in the sixth century.[973]
The earliest legal allusion to this form of ordeal in Europe occurs
in the code of the Ripuarian Franks, where it is prescribed as
applicable to slaves and strangers, in some cases of doubt.[974]
From the phraseology of these passages, we may conclude that it was
then administered by placing the hand of the accused in a fire. As
a legal ordeal this is perhaps the only allusion to it in European
jurisprudence, but it was repeatedly resorted to by enthusiasts
as a voluntary trial for the purpose of establishing the truth of
accusations or of substantiating their position. In these cases it
was conducted on a larger and more impressive scale; huge pyres were
built, and the individual undergoing the trial literally walked through
the flames, as Siawush did. The celebrated Petrus Igneus gained his
surname and reputation by an exploit of this kind, which was renowned
in its day. Pietro di Pavia, Bishop of Florence, unpopular with the
citizens, but protected by Godfrey, Duke of Tuscany, was accused of
simony and heresy. Being acquitted by the Council of Rome, in 1063,
and the offer of his accusers to prove his guilt by the ordeal of
fire being refused, he endeavored to put down his adversaries by
tyranny and oppression. Great disturbances resulted, and at length,
in 1067, the monks of Vallombrosa, who had borne a leading part in
denouncing the bishop, and who had suffered severely in consequence
(the episcopal troops having burned the monastery of St. Salvio and
slaughtered the cenobites), resolved to decide the question by the
ordeal, incited thereto by no less than three thousand enthusiastic
Florentines who assembled there for the purpose. Pietro Aldobrandini,
a monk of Vallombrosa, urged by his superior, the holy S. Giovanni
Gualberto, offered himself to undergo the trial. After imposing
religious ceremonies, he walked slowly between two piles of blazing
wood, ten feet long, five feet wide, and four and a half feet high,
the passage between them being six feet wide and covered with an inch
or two of glowing coals. The violence of the flames agitated his dress
and hair, but he emerged without hurt, even the hair on his legs being
unsinged, barelegged and barefooted though he was. Desiring to return
through the pyre, he was prevented by the admiring crowd, who rushed
around him in triumph, kissing his feet and garments, and endangering
his life in their transports, until he was rescued by his fellow monks.
A formal statement of the facts was sent to Rome by the Florentines,
the papal court gave way, and the bishop was deposed; while the monk
who had given so striking a proof of his steadfast faith was marked for
promotion, and eventually died Cardinal of Albano.[975]
An example of a similar nature occurred in Milan in 1103, when
the Archbishop Grossolano was accused of simony by a priest named
Liutprand, who, having no proof to sustain his charge, offered the
ordeal of fire. All the money he could raise he expended in procuring
fuel, and when all was ready the partisans of the archbishop attacked
the preparations and carried off the wood. The populace, deprived of
the promised exhibition, grew turbulent, and Grossolano was obliged
not only to assent to the trial, but to join the authorities in
providing the necessary materials. In the Piazza di S. Ambrogio two
piles were accordingly built, each ten cubits long, by four cubits in
height and width, with a gangway between them of a cubit and a half.
As the undaunted priest entered the blazing mass, the flames divided
before him and closed as he passed, allowing him to emerge in safety,
although with two slight injuries, one a burn on the hand, received
while sprinkling the fire before entering, the other on the foot,
which he attributed to a kick from a horse in the crowd that awaited
his exit. The evidence was accepted as conclusive by the people, and
Grossolano was obliged to retire to Rome. Pascal II., however, received
him graciously, and the Milanese suffragans disapproved of the summary
conviction of their metropolitan, to which they were probably all
equally liable. The injuries received by Liutprand were exaggerated, a
tumult was excited in Milan, the priest was obliged to seek safety in
flight, and Grossolano was restored for a time, but the adverse party
prevailed and in spite of papal support he was forced to exile.[976]
A volunteer miracle of somewhat the same character, which is recorded
as occurring in Paris early in the thirteenth century, may be alluded
to as illustrating the belief of the period. A loose woman in the
household of a great noble was luring the youthful retainers to sin,
when the chaplain remonstrated with his master, and threatened to
depart unless she was removed. When she was taxed with her guilt she
defended herself by saying that the priest had accused her because she
had refused his importunities, and offered to prove it. Approaching him
as a penitent, she sought to seduce his virtue, finally threatening to
kill herself unless he would gratify her despairing love, until, to
prevent her suicide, he finally made an appointment with her. Secretly
announcing her triumph to the noble, she went to the place of meeting,
where she found the chaplain mounted on a bed of plank, surrounded by
straw and dry wood, to which he set fire on her appearance, and invited
her to join him. Covered by the flames, the sinless man felt nothing
but a cool, refreshing breeze, and when the pile had burnt out, he
emerged unhurt, even his garments and hair being untouched.[977]
But the experiment was not always so successful for the rash
enthusiast. In 1098, during the first crusade, after the capture of
Antioch, when the Christians were in turn besieged in that city, and,
sorely pressed and famine-struck, were well-nigh reduced to despair,
an ignorant peasant named Peter Bartholomew, a follower of Raymond of
Toulouse, announced a series of visions in which St. Andrew and the
Saviour had revealed to him that the lance which pierced the side of
Christ lay hidden in the church of St. Peter. After several men had
dug in the spot indicated, from morning until night, without success,
Peter leaped into the trench, and by a few well-directed strokes of
his mattock exhumed the priceless relic, which he presented to Count
Raymond. Cheered by this, and by various other manifestations of Divine
assistance, the Christians gained heart, and defeated the Infidels with
immense slaughter. Peter became a man of mark, and had fresh visions
on all important conjunctures. Amid the jealousies and dissensions
which raged among the Frankish chiefs, the possession of the holy
lance vastly increased Raymond’s importance, and rival princes were
found to assert that it was merely a rusty Arab weapon, hidden for the
occasion, and wholly undeserving the veneration of which it was the
object. At length, after some months, during the leisure of the siege
of Archas, the principal ecclesiastics in the camp investigated the
matter, and Peter, to silence the doubts expressed as to his veracity,
offered to vindicate the identity of the relic by the fiery ordeal. He
was taken at his word, and after three days allowed for fasting and
prayer, a pile of dry olive-branches was made, fourteen feet long and
four feet high, with a passage-way one foot wide. In the presence of
forty thousand men all eagerly awaiting the result, Peter, bearing the
object in dispute, and clothed only in a tunic, boldly rushed through
the flames, amid the anxious prayers and adjurations of the multitude.
As the chroniclers lean to the side of the Neapolitan Princes or of the
Count of Toulouse, so do their accounts of the event differ; the former
asserting that Peter sustained mortal injury in the fire; the latter
assuring us that he emerged safely, with but one or two slight burns,
and that the crowd enthusiastically pressing around him in triumph,
he was thrown down, trampled on, and injured so severely that he died
in a few days, asseverating with his latest breath the truth of his
revelations. Raymond persisted in upholding the sanctity of his relic,
but it was subsequently lost.[978]
Even after the efforts of Innocent III. to abolish the ordeal, and
while the canons of the Council of Lateran were still fresh, St.
Francis of Assisi, in 1219, offered himself to the flames for the
propagation of the faith. In his missionary trip to the East, finding
the Soldan deaf to his proselyting eloquence, he proposed to test
the truth of their respective religions by entering a blazing pile
in company with some imams, who naturally declined the perilous
experiment. Nothing daunted, the enthusiastic saint then said that he
would traverse the flames alone if the Soldan would bind himself, in
the event of a triumphant result, to embrace the Christian religion
and to force his subjects to follow the example. The Turk, more wary
than the Dane whom Poppo converted, declined the proposition, and St.
Francis returned from his useless voyage unharmed.[979]
In this St. Francis endeavored unsuccessfully to emulate the glorious
achievement of Boniface, the Apostle of Russia, who, according to the
current martyrologies, converted the King of Russia to the true faith
by means of such a bargain and ordeal.[980] It is a little curious that
Peter Cantor, in his diatribe against the judgment of God, presents
the supposition of a trial such as this as an unanswerable argument
against the system—the Church, he says, could not assent to such an
experiment, and therefore it ought not to be trusted in affairs of less
magnitude.[981]
Somewhat irregular as a judicial proceeding, but yet illustrating
the general belief in the principles of the ordeal of fire, was an
occurrence related about the year 1220 by Cæsarius of Heisterbach as
having taken place a few years before in Arras. An ecclesiastic of good
repute decoyed a goldsmith into his house, and murdered him to obtain
possession of some valuables, cutting up the body, with the assistance
of a younger sister, and hiding the members in a drain. The crime was
proved upon them, and both were condemned to the stake. On the way to
the place of punishment, the girl demanded a confessor, and confessed
her sins with full contrition, but the brother was obdurate and
impenitent. Both were tied to the same stake; the brother was promptly
reduced to ashes, while the flames were deliciously cool to the sister,
and only burnt the rope with which she was tied, so that she quietly
walked down from the pile. The judges, thus convinced of her innocence,
dismissed her without further trouble.[982]
From every point of view, however, both as to date and as to
consequences, the most remarkable recourse to the fire ordeal was
that which proved to be the proximate cause of the downfall of
Savonarola. Long after the ordeal system had been superseded in
European jurisprudence, and occurring in the centre of the New
Learning, it was a most noteworthy illustration of the superstition
which formed a common bond between sceptics and religious enthusiasts.
In 1498 Savonarola had been silenced by command of Alexander III.,
his influence with the people was waning, and his faithful follower
Fra Domenico da Pescia was desperately struggling in the pulpit to
maintain the cause against the assaults of the Franciscans led by the
eloquent Fra Francesco della Puglia. Domenico in a sermon offered to
prove the truth of his leader’s utterances by throwing himself from
the roof of the Palazzo de’ Signori, by casting himself in the river,
or by entering fire. This burst of rhetoric might have passed unheeded
had not Fra Francesco taken it up and offered to share the ordeal
with Savonarola himself. Savonarola declined, except under impossible
conditions, but Domenico accepted the challenge and affixed to the
portal of Santa Croce a paper in which he offered to prove by argument
or miracle the truth of sundry propositions bearing upon his teacher’s
mission. To this Fra Francesco replied that he would enter fire with
Fra Domenico; that he fully expected to be burnt, but that he would
willingly suffer if he could disabuse the people of their false idol.
Popular excitement rose to such a height that the Signoria sent for
both disputants, and made them sign a written agreement to undergo
the ordeal. In this Fra Francesco wisely provided that, although he
was willing to enter fire with Savonarola himself, if Domenico was to
act he would only produce a champion, who was readily found in the
person of Fra Giuliano Rondinelli. On the side of the Dominicans the
enthusiasm was so great that all the friars of Savonarola’s convent of
San Marco, nearly three hundred in number, eagerly signed a pledge to
submit to the ordeal, and he assured them that in such a cause they
could do so without danger. In fact, when, on the day before the trial,
he preached on the subject in San Marco, the whole audience rose as
one man and offered to take Domenico’s place.
April 7th was the day fixed for the _Sperimento del Fuoco_. In the
Piazza de’ Signori a huge pile of wood, plentifully reinforced with
gunpowder, sulphur, oil, and spirits, was built with a gangway through
which the champions were to pass; it was to be lighted at one end,
and after they entered fire was to be set at the other to preclude
retreat. All Florence assembled to witness the spectacle, and patiently
endured the peltings of a terrible storm. The day was spent, however,
in wrangling over questions skilfully raised by the Franciscans,
the chief one being whether Fra Domenico should carry in his hand a
consecrated host. It had been revealed to one of his brethren that this
was indispensable, and Savonarola adhered to it firmly. When evening
came the Signoria announced that the ordeal was abandoned. The crowd
was enraged at the loss of the promised exhibition; the Dominicans had
so confidently promised a miracle that the drawn battle was universally
regarded as their defeat, an armed guard was required to protect their
return to their convent, and Savonarola’s power over the Florentine
populace was gone. His enemies lost no time in pushing their advantage.
The next evening the mob assailed San Marco; he was seized and conveyed
to prison, and after prolonged and repeated tortures he was hanged and
burnt on May 23d.[983]
It will be observed that the ordeal of fire was principally affected
by ecclesiastics in church affairs, perhaps because it was of a nature
to produce a powerful impression on the spectators, while at the same
time it could no doubt in many instances be so managed as to secure
the desired results by those who controlled the details. In like
manner, it was occasionally employed on inanimate matter to decide
points of faith or polity. Thus, in the question which excited great
commotion in Spain, in 1077, as to the substitution of the Roman for
the Gothic or Mozarabic rite, after a judicial combat had been fought
and determined in favor of the national ritual, the partisans of the
Roman offices continued to urge their cause, and the ordeal of fire
was appealed to. A missal of each kind was committed to the flames,
and, to the great joy of all patriotic Castilians, the Gothic offices
were unconsumed.[984] More satisfactory to the orthodox was the result
of a similar ordeal during the efforts of St. Dominic to convert the
Albigenses. In a dispute with some heretics he wrote out his argument
on the points of faith, and gave it to them for examination and
reply. That night, as they were seated around the hearth, the paper
was produced and read, when one of them proposed that it should be
cast into the flames, when, if it remained unconsumed, they would see
that its contents were true. This was promptly done, when the saintly
document was unharmed. One, more obstinate than the rest, asked for a
second and then for a third trial, with the same result. The perverse
heretics, however, closed their hearts against the truth, and bound
themselves by oath to keep the affair secret; and so glorious a
victory for the true faith would have remained unknown but for the
indiscretion of one of them, a knight, who had a covert inclination
towards orthodoxy.[985] A somewhat similar instance occurred in
Constantinople as late as the close of the thirteenth century, when
Andronicus II., on his accession, found the city torn into factions
relative to the patriarchate, arising from the expulsion of Arsenius,
a former patriarch. All attempts to soothe the dissensions proving
vain, at length both parties agreed to write out their respective
statements and arguments, and, committing both books to the flames,
to abide by the result, each side hoping that its manuscript would be
preserved by the special interposition of Heaven. The ceremony was
conducted with imposing state, and, to the general surprise, both books
were reduced to ashes. Singularly enough, all parties united in the
sensible conclusion that God had thereby commanded them to forget their
differences and to live in peace.[986]
About the same period as this last example, Samaritan tradition related
that the comparative claims of Mt. Gerizim and Al-Qods (Jerusalem) as
the sole seats of Yahveh-worship were settled before Nebuchadnezzar,
by the ordeal of fire, applied respectively to the Pentateuch and to
the later books of the Jewish canon, Sanballat appearing for Ephraim,
and Zerubbabel for Judah. The later books were promptly consumed, but
the law of Moses emerged twice from the flames unhurt. Zerubbabel, in
despair, then spat upon some pages of the index, and cast the Law a
third time into the fire, when the leaves thus polluted were burnt,
but the book itself leaped unscathed into the bosom of the king, who
promptly slew the representatives of Judah, and gave an unhesitating
verdict in favor of the Samaritans.[987]
The genuineness of relics was often tested in this manner by exposing
them to the action of fire. This custom, like the ordeal itself as
a judicial process, finds its original home in the East. When, for
instance, the sacred tooth-relic of Buddha was carried to the court
of King Pandu at Patali-putta, and its holiness was questioned by the
Niganthas, or worshippers of Siva, they tested it by casting it into
a pit filled with glowing charcoal “bright and horrid as the hell
Roruva”—when the tooth, in place of being consumed to ashes, rose out
of the fiery mass resting on a lotus the size of a chariot-wheel.[988]
Even Roman unbelief accepted a similar faith respecting the superfluous
thumb which ornamented the right foot of King Pyrrhus, the touch of
which cured diseases of the spleen, and which remained unharmed
on the funeral pyre which consumed the rest of his body to ashes.
The indestructible supplementary member was thereupon inclosed in a
casket, and reverently placed in a temple—the first relic, probably,
on record in the western world.[989] At how early an age Christianity
adopted the belief which led to this is manifested by the story of the
swaddling-cloth of Christ in one of the apocryphal Gospels. The Virgin,
being unable, on account of poverty, to make a return for the offerings
of the Magi who came to worship the infant Saviour, presented them
with one of his swaddling-bands. On their return they placed it in the
sacred fire of their altar, and though the flames eagerly embraced it,
they left it unharmed and unaltered, whereupon the Magi venerated it,
and laid it away among their treasures.[990] On the conversion of the
Spanish Arians the experiment was tried on a larger scale. It seems
that doubts were felt by the orthodox as to the relics preserved in
their churches, and a general regulation was adopted by the Council of
Saragossa in 592 that they should be all brought before the bishops and
tested by fire—with what result is not recorded.[991]
In such cases the ceremony of the ordeal was conducted with appropriate
religious services, including the following prayer, which would seem
to show that in its regular form it was not the relic itself, but the
cloth in which it was wrapped that was exposed to the test—
Lord Jesus Christ, who art king of kings and lord of lords, and lover
of all believers in thee, who art a just judge, strong and powerful,
who hast revealed thy holy mysteries to thy priests, and who didst
mitigate the flames to the Three Children; concede to us thy unworthy
servants and grant our prayers that this cloth or this thread in which
are wrapped those bodies of saints, if they are not genuine let them
be burned by this fire, and if they are genuine let them escape, so
that iniquity shall not prevail over injustice but falsehood shall
succumb to truth, so that thy truth shall be declared to thee and be
manifested to us, believers in thee, that we may know thee to be the
blessed God in ages everlasting. Amen.[992]
Numerous instances of this superiority of relics to fire are narrated
by the pious chroniclers of the middle ages. In 1015 some monastic
pilgrims, hospitably received at Monte Cassino on their return from
Jerusalem, offered at the shrine of St. Benedict a fragment of the
towel with which the Saviour had washed the feet of his disciples.
Some of the monks, being incredulous, placed it on burning coals, when
it turned fiery red, but, on being removed, returned to its original
color, and all doubts as to its authenticity were dispelled.[993]
When, in 1065, the pious Egelwin, Bishop of Durham, miraculously
discovered the relics of the holy martyr King Oswyn, he gave the hair
to Judith, wife of Tosti, Earl of Northumberland, and she with all
reverence placed it on a raging fire, whence it was withdrawn, not
only uninjured, but marvellously increased in lustre, to the great
edification of all beholders.[994] A similar miracle attested the
sanctity of King Olaf the Saint, of Norway, when his hair was laid on
a pan of live coals, consecrated by Bishop Grimkel, to satisfy the
incredulity of Queen Alfifa.[995] Guibert de Nogent likewise relates
that, when his native town became honored with the possession of an
arm of St. Arnoul, the inhabitants, at first doubting the genuineness
of the precious relic, cast it into the flames; when it vindicated its
sanctity, not only by being fireproof, but also by leaping briskly away
from the coals, testimony which was held to be incontrovertible.[996]
The historian of the monastery of Andres informs us that when in 1084
the long-lost remains of the holy virgin Rotruda were miraculously
found, and Baldwin I., Count of Guisnes, desired to take the sacred
treasure to his town of Guisnes, it refused to be removed until
he proposed to place it on a wagon and allow a team of oxen to be
divinely guided to the spot where the saint desired to rest. This was
accordingly done, and the oxen carried the relics to a little chapel
dedicated to St. Medard, where steps were immediately taken to found
an abbey. The Seigneur of Andres, however, Baldwin Bochard, on whose
lands the chapel lay, foreseeing that a powerful monastery would be
a troublesome neighbor, and being an irreligious man, circulated
defamatory libels impugning the authenticity of the relics, and finally
persuaded Count Baldwin to have them tested by the ordeal of fire.
This was accordingly done, and the genuineness of the holy remains
was proved to the satisfaction of all. Bochard and his descendants
continued inveterately hostile to St. Rotruda and her monks, but all,
without exception, were compelled, upon their death-beds, to contribute
a portion of their substance to her honor.[997] The custom continued
even until the sixteenth century was well advanced. In the Jeronymite
monastery of Valdebran in Catalonia, a piece of the true cross bears
inscription that its genuineness was tested with fire by Archbishop
Miralles on October 2, 1530.[998]
The persistency of popular belief in this method of ascertaining guilt
or innocence is seen as recently as 1811, when a Neapolitan noble,
suspecting the chastity of his daughter, exposed her to the ordeal of
fire, from which she barely escaped with her life.[999]
CHAPTER V.
THE ORDEAL OF COLD WATER.
The cold-water ordeal (_judicium aquæ frigidæ_) differed from most of
its congeners in requiring a miracle to convict the accused, as in
the natural order of things he escaped. The preliminary solemnities,
fasting, prayer, and religious rites, were similar to those already
described; holy water sometimes was given to the accused to drink;
the reservoir of water, or pond, was then exorcised with formulas
exhibiting the same combination of faith and impiety, and the accused,
bound with cords, was slowly lowered into it with a rope, to prevent
fraud if guilty, and to save him from drowning if innocent.[1000]
According to Anglo-Saxon rule, the length of rope allowed under water
was an ell and a half;[1001] in one ritual it is directed that a
knot be made in the rope at a distance of a long hair from the body
of the accused, and if he sinks so as to bring the knot down to the
surface of the water, he is cleared;[1002] but in process of time nice
questions arose as to the precise amount of submergence requisite
for acquittal. Towards the close of the twelfth century we find that
some learned doctors insisted that sinking to the very bottom of the
water was indispensable; others decided that if the whole person were
submerged it was sufficient; while others again reasoned that as the
hair was an accident or excrement of the body, it had the privilege
of floating without convicting its owner, if the rest of the body was
satisfactorily covered.[1003]
The basis of this ordeal was the belief, handed down from the primitive
Aryans, that the pure element would not receive into its bosom any one
stained with the crime of a false oath, another form of which is seen
in the ancient superstition that the earth would eject the corpse of a
criminal, and not allow it to remain quietly interred. The manner in
which the church reconciled it to orthodoxy is clearly set forth by
Hincmar: “He who seeks to conceal the truth by a lie will not sink in
the waters over which the voice of the Lord hath thundered; for the
pure nature of water recognizes as impure, and rejects as incompatible,
human nature which, released from falsehood by the waters of baptism,
becomes again infected with untruth.”[1004] The baptism in the Jordan,
the passage of the Red Sea, and the crowning judgment of the Deluge,
were freely adduced in support of this theory, though these latter
were in direct contradiction to it; and the most figurative language
was boldly employed to give some show of probability to the results
expected. Thus, in the elaborate formula which passes under the name
of St. Dunstan, the prayer offered over the water metaphorically
adjures the Supreme Being—“Let not the water receive the body of him
who, released from the weight of goodness, is upborne by the wind of
iniquity!”[1005]
In India the ordeal of cold water became simply one of endurance. The
stream or pond was exorcised with the customary Mantras:—
“Thou O water dwellest in the interior of all things like a witness. O
water thou knowest what mortals do not comprehend.
“This man being arraigned in a cause desires to be cleared from guilt.
Therefore mayest thou deliver him lawfully from this perplexity.”
The patient stood in water up to his middle, facing the East, caught
hold of the thighs of a man “free from friendship or hatred” and dived
under, while simultaneously an arrow of reed without a head was shot
from a bow, 106 fingers’ breadth in length, and if he could remain
under water until the arrow was picked up and brought back, he gained
his cause, but if any portion of him could be seen above the surface
he was condemned. Yajnavalkya says this form of ordeal was only used
on the Sudras, or lowest caste, while the Ayeen Akbery speaks of it
as confined to the Vaisyas, or caste of husbandmen and merchants.
According to the Institutes of Vishnu, it was not to be administered to
the timid or those affected with lung diseases, nor to those who gained
their living by the water, such as fishermen or boatmen, nor was it
allowed during the winter.[1006]
Although, as we have seen (p. 268), the original cold-water ordeal in
India, as described by Manu, was precisely similar to the European
form, inasmuch as the guilty were expected to float and the innocent
to sink, and although in this shape it prevailed everywhere throughout
Europe, and its tenacity of existence rendered it the last to disappear
in the progress of civilization, yet it does not make its appearance in
any of the earlier codes of the Barbarians. The first allusions to it
occur in the ninth century, and it was then so generally regarded as
a novelty that documents almost contemporaneous ascribe its invention
to the popes of that period. One story is that when Leo III. fled in
799 from his rebellious subjects to Charlemagne, and returned to Rome
under the latter’s protection, the cold-water ordeal was introduced
for the purpose of trying the rebels or recovering a treasure which
they had stolen.[1007] Another version asserts that Eugenius II., who
occupied the pontifical throne from 824 to 827, invented it at the
request of Louis le Débonnaire, for the purpose of repressing the
prevalent sin of perjury.[1008] It is further worthy of note that St.
Agobard, Archbishop of Lyons, in his treatises against the judgments
of God, written a few years before the accession of Eugenius, while
enumerating and describing the various methods in use at that time,
says nothing about that of cold water.[1009] But for the evidence of
its pre-existence in the East, we therefore should be justified in
assuming that it was an innovation invented by the Church of the ninth
century. That it was a novelty is proved by the necessity felt to
adduce authority for its use.[1010]
At first, its revival promised to be but temporary. Only a few years
after its introduction it was condemned by Louis le Débonnaire at the
Council of Worms, in 829; its use was strictly prohibited, and the
_missi dominici_ were instructed to see that the order was carried into
effect, regulations which were repeated by the Emperor Lothair, son of
Louis.[1011] These interdictions were of little avail. The ordeal found
favor with popular superstition, and Hincmar contents himself with
remarking that the imperial prohibition was not confirmed by the canons
of authoritative councils.[1012] The trial by cold water spread rapidly
throughout Europe, and by all the continental races it was placed on an
equal footing with the other forms of ordeal. Among the Anglo-Saxons,
indeed, its employment has been called in question by some modern
writers; but the Dooms of Ethelstan sufficiently manifest its existence
in England before the Conquest, while as late as the close of the
twelfth century its use would seem to have been almost universal. The
assizes of Clarendon in 1166, confirmed at Northampton in 1176, direct
an inquest to be held in each shire, and all who are indicted for
murder, robbery, harboring of malefactors, and other felonies are to
be at once, without further trial, passed through the water ordeal to
determine their guilt or innocence.[1013]
As we have seen in the case of the iron ordeal, those of water, both
cold and hot, were variously described as patrician or plebeian in
different times and places. Thus Hincmar, in the ninth century,
alludes to the water ordeals as applicable to persons of servile
condition;[1014] a constitution of the Emperor St. Henry II., about
A. D. 1000, in the Lombard law, has a similar bearing;[1015] in the
eleventh century an Alsatian document,[1016] in the twelfth Glanville’s
treatise on the laws of England,[1017] and in the thirteenth the laws
of Scotland[1018] all assume the same position. This, however, was an
innovation; for in the earliest codes there was no such distinction,
a provision in the Salic law prescribing the _æneum_, or hot-water
ordeal, even for the Antrustions, who constituted the most favored
class in the state.[1019] Nor even in later times was the rule by any
means absolute. In the tenth century, Sanche, Duke of Gascony, desirous
of founding the monastery of Saint Sever, claimed some land which
was necessary for the purpose, and being resisted by the possessor,
the title was decided by reference to the cold-water ordeal.[1020]
In 1027, Welf II., Count of Altorf, ancestor of the great houses of
Guelf in Italy and England, having taken part in the revolt of Conrad
the Younger and Ernest of Suabia, was forced by the Emperor Conrad
the Salic to prove his innocence in this manner.[1021] About the same
period Othlonus relates an incident in which a man of noble birth
accused of theft submitted himself to the cold-water ordeal as a matter
of course;[1022] while in 1068, at the Council of Vich, in Catalonia,
held for the purpose of enforcing the Truce of God, all persons
accused of being directly concerned in its violation are directed to
be tried by the cold-water ordeal in the Church of San Pedro, without
distinction of rank.[1023] Nearly two centuries later, indeed, when
all the vulgar ordeals were falling into disuse, the water ordeal
was established among the nobles of Southern Germany, as the mode of
deciding doubtful claims on fiefs, and in Northern Germany, for the
settlement of conflicting titles to land.[1024]
In 1083, during the deadly struggle between the Empire and the Papacy,
as personified in Henry IV. and Hildebrand, the imperialists related
with great delight that some of the leading prelates of the papal court
submitted the cause of their chief to this ordeal. After a three days’
fast, and proper benediction of the water, they placed in it a boy to
represent the emperor, when to their horror he sank like a stone. On
referring the result to Hildebrand, he ordered a repetition of the
experiment, which was attended with the same result. Then, throwing him
in as a representative of the pope, he obstinately floated during two
trials, in spite of all efforts to force him under the surface, and an
oath was exacted from all concerned to maintain inviolable secrecy as
to the unexpected result.[1025]
Perhaps the most extensive instance of the application of this form of
ordeal was that proposed when the sacred vessels were stolen from the
cathedral church of Laon, as related by a contemporary. At a council
convened on the subject, Master Anselm, the most learned doctor of the
diocese, suggested that, in imitation of the plan adopted by Joshua
at Jericho, a young child should be taken from each parish of the
town and be tried by immersion in consecrated water. From each house
of the parish which should be found guilty, another child should be
chosen to undergo the same process. When the house of the criminal
should thus be discovered, all its inmates should be submitted to the
ordeal, and the author of the sacrilege would thus be revealed. This
plan would have been adopted had not the frightened inhabitants rushed
to the bishop and insisted that the experiment should commence with
those whose access to the church gave them the best opportunity to
perpetrate the theft. Six of these latter were accordingly selected,
among whom was Anselm himself. While in prison awaiting his trial,
he caused himself to be bound hand and foot and placed in a tub full
of water, in which he sank satisfactorily to the bottom, and assured
himself that he should escape. On the day of trial, in the presence of
an immense crowd, in the cathedral which was chosen as the place of
judgment, the first prisoner sank, the second floated, the third sank,
the fourth floated, the fifth sank, and Anselm, who was the sixth,
notwithstanding his previous experiment, obstinately floated, and was
condemned with his accomplices, in spite of his earnest protestations
of innocence.[1026]
Although the cold-water ordeal disappears from the statute-book in
civil and in ordinary criminal actions together with its kindred modes
of purgation, there was one class of cases in which it maintained
its hold upon the popular faith to a much later period. These were
the accusations of sorcery and witchcraft which form so strange a
feature of mediæval and modern society; and its use for this purpose
may apparently be traced to various causes. For such crimes, drowning
was the punishment inflicted by the customs of the Franks, as soon
as they had lost the respect for individual liberty of action which
excluded personal punishments from their original code;[1027] and
in addition to the general belief that the pure element refused to
receive those who were tainted with crime, there was in this special
class of cases a widely spread superstition that adepts in sorcery
and magic lost their specific gravity. Pliny mentions a race of
enchanters on the Euxine who were lighter than water—“eosdem præterea
non posse mergi ne veste quidam degravatos;”[1028] and Stephanus
Byzantinus describes the inhabitants of Thebe as magicians who could
kill with their breath, and floated when thrown into the sea.[1029] To
the concurrence of these notions we may attribute the fact that when
the cold-water ordeal was abandoned, in the thirteenth century, as a
judicial practice in ordinary cases, it still maintained its place as a
special mode of trying those unfortunate persons whom their own folly,
or the malice and fears of their neighbors, pointed out as witches
and sorcerers.[1030] No less than a hundred years after the efforts
of Innocent III. had virtually put an end to all the other forms of
vulgar ordeals, we find Louis Hutin ordering its employment in these
cases.[1031] At length, however, it fell into desuetude, until the
superstitious panic of witchcraft which took possession of the popular
mind caused its revival in the second half of the sixteenth century.
In 1487, Sprenger, while treating of every possible detail concerning
witchcraft and its prosecution, and alluding to the red-hot iron
ordeal, makes no reference whatever to cold water or to the faculty
of floating possessed by witches, thus showing that it had passed
completely out of remembrance as a test in these cases, both popularly
and judicially.[1032] In 1564, Wier discusses it as though it were in
ordinary use in Western Germany, and mentions a recent case wherein
a young girl falsely accused was tested in this manner and floated,
after which she was tortured until the executioner himself wondered at
her power of endurance. As no confession could be extracted, she was
discharged, which shows how little real confidence was reposed in the
ordeal.[1033] Twenty years later, Scribonius, writing in 1583, speaks
of it as a novelty, but Neuwald assures us that for eighteen years
previous it had been generally employed throughout Westphalia,[1034]
and in 1579 Bodin alludes to it as a German fashion which, though he
believes in its efficacy, he yet condemns as savoring of magic.[1035]
The crime was one so difficult to prove judicially, and the ordeal
offered so ready and so satisfactory a solution to the doubts of timid
and conscientious judges, that its resuscitation is not to be wondered
at. The professed demonographers, Bodin, Binsfeld, Godelmann, and
others, opposed its revival for various reasons, but still it did not
lack defenders. In 1583, Scribonius, on a visit to Lemgow, saw three
unfortunates burnt as witches, and three other women, the same day,
exposed to the ordeal on the accusation of those executed. He describes
them as stripped naked, hands and feet bound together, right to left,
and then cast upon the river, where they floated like logs of wood.
Profoundly impressed with the miracle, in a letter to the magistrates
of Lemgow he expresses his warm approbation of the proceeding,
and endeavors to explain its rationale, and to defend it against
unbelievers. Sorcerers, from their intercourse with Satan, partake of
his nature; he resides within them, and their human attributes become
altered to his; he is an imponderable spirit of air, and therefore they
likewise become lighter than water. Two years later, Hermann Neuwald
published a tract in answer to this, gravely confuting the arguments
advanced by Scribonius, who, in 1588, returned to the attack with a
larger and more elaborate treatise in favor of the ordeal. Shortly
after this, Bishop Binsfeld, in his exhaustive work on witchcraft,
states that the process was one in common use throughout Westphalia,
and occasionally employed in the Rhinelands. He condemns it, however,
on the score of superstition, and the prohibition of all ordeals by
the popes, and concludes that any judge making use of it, or any one
believing in it, is guilty of mortal sin. Rejecting the explanation
of Scribonius, he argues that the floating of the witch is caused
by the direct interposition of the Devil himself, who is willing to
sacrifice a follower occasionally in order to damn the souls of those
who participate in a practice condemned by the Church.[1036] Wier,
who denied witchcraft, while believing in the active interposition
of the Devil, argues likewise that those who float are borne up by
demons, but he attributes it to their desire to confirm the popular
illusions concerning witchcraft.[1037] Another demonographer of the
period, Godelmann, does not hesitate to say that any judge resorting
to this mode of proof rendered himself liable to a retaliatory action;
and he substantiates his opinion as to the worthlessness of the trial
by a case within his own experience. In 1588 he was travelling from
Prussia to Livonia, when at the castle of a great potentate his host
happened to mention that he had condemned a most wicked witch to be
burnt the next day. Godelmann, desirous to know whether the proof
could be relied on, asked whether the water ordeal had been tried,
and on being answered in the negative, urged the experiment. His
request was granted, and the witch sank like a stone. Subsequently the
noble wrote to him that he had tried it with six other indubitable
witches, and that it had failed with all, showing that it was a false
indication, which might deceive incautious judges.[1038] Oldenkop, on
the other hand, relates that he was present when some suspected women
were tried in this manner, who all floated, after which one of the
spectators, wholly innocent of the crime, to satisfy the curiosity of
some nobles who were present, allowed himself for hire to be tied and
thrown in, when he likewise floated and could not be made to sink by
all the efforts of the officiating executioner.[1039] In 1594, a more
authoritative combatant entered the arena—Jacob Rickius, a learned
jurisconsult of Cologne, who, as judge in the court of Bonn, had ample
opportunity of considering the question and of putting his convictions
into practice. He describes vividly the perplexities of the judges
hesitating between the enormity of the crime and the worthlessness of
the evidence, and his elaborate discussions of all the arguments in
favor of the ordeal may be condensed into this: that the offence is
so difficult of proof that there is no other certain evidence than
the ordeal; that without it we should be destitute of absolute proof,
which would be an admission of the superiority of the Devil over
God, and that anything would be preferable to such a conclusion. He
states that he never administered it when the evidence without it was
sufficient for conviction, nor when there was not enough other proof to
justify the use of torture; and that in all cases it was employed as a
prelude to torture—“præparandum et muniendum torturæ viam”—the latter
being frequently powerless in consequence of diabolical influences.
The deplorable examples which he details with much complacency as
irrefragable proofs of his positions show how frequent and how
murderous were the cases of its employment, but would occupy too much
space for recapitulation here; while the learning displayed in his
constant citations from the Scriptures, the Fathers, the Roman and the
Canon Law, is in curious contrast with the fatuous cruelty of his acts
and doctrines.
In France, the central power had to be invoked to put an end to the
atrocity of such proceedings. In 1588, an appeal was taken to the
supreme tribunal from a sentence pronounced by a Champenois court,
ordering a prisoner to undergo the experiment, and the Parlement, in
December, 1601, registered a formal decree against the practice; an
order which it found necessary to repeat, August 10, 1641.[1040] That
this latter was not uncalled for, we may assume from the testimony of
Jerôme Bignon, who, writing nearly at the same time, says that, to
his own knowledge, within a few years, judges were in the habit of
elucidating doubtful cases in this manner.[1041] In England, James I.
gratified at once his conceit and his superstition by eulogizing the
ordeal as an infallible proof in such cases. His argument was the old
one, which pronounced that the pure element would not receive those who
had renounced the privileges of the water of baptism,[1042] and his
authority no doubt gave encouragement to innumerable judicial murders.
In Scotland, indeed, the indecency of stripping women naked for the
immersion was avoided by wrapping them up in a sheet before binding
the thumbs and toes together, but a portion of the Bay of St. Andrews
is still called the “Witch Pool,” from its use in the trial of these
unfortunates.[1043]
How slowly the belief was eradicated from the minds of even the
educated and enlightened may be seen in a learned inaugural thesis
presented by J. P. Lang, in 1661, for the Licentiate of Laws in the
University of Bâle, in which, discussing incidentally the question
of the cold-water ordeal for witches, he concludes that perhaps
it is better to abstain from it, though he cannot question its
efficaciousness as a means of investigation.[1044] In 1662, N. Brant,
in a similar thesis, offered at Giessen, speaks of it as used in some
places, chiefly in Westphalia, and argues against it on the ground
of its uncertainty.[1045] P. Burgmeister, in a thesis presented at
Ulm in 1680, speaks of the practice as still continued in Westphalia,
and that it was defended by many learned men, from whose opinions he
dissents; among them was Hermann Conring, one of the most distinguished
scholars of the time, who argued that if prayers and oaths could obtain
the divine interposition, it could reasonably be expected in judicial
cases of importance.[1046] Towards the close of the century it was
frequently practised in Burgundy, not as a judicial process, but when
persons popularly reputed as sorcerers desired to free themselves from
the damaging imputation. In these cases they are frequently reported
as floating in spite of repeated efforts to submerge them, and though
this evidence of guilt did not lead to a formal trial they would have
to abandon the neighborhood. A notarial act of June 5, 1696, records
such a trial at Montigny-le-Roi, when six persons offered themselves
to the ordeal in the River Senin; two sank and four floated for
about half an hour, with hands and feet tied.[1047] F. M. Brahm, in
1701, alludes to the ordeal as no longer in use;[1048] but in 1714,
J. C. Nehring describes it as nearly, though not quite obsolete, and
considers it worthy of an elaborate discussion. He disapproves of it,
though he records a case which occurred a few years previously, in
which a woman accused of witchcraft managed to escape from her chains,
and went into the water to try herself, and could not be submerged.
Notwithstanding this he declares that even when a prisoner demands the
ordeal, the judge who grants it is guilty of mortal sin, for the Devil
often promises witches to save them in this manner, and, though he very
rarely keeps his promise, still he thus succeeds in retaining men in
superstitious observances. The success of the ordeal thus is uncertain,
and his conclusion is that laws must be made for the generality of
cases, and not for exceptional ones.[1049] In 1730 thirteen persons
were exposed to the cold-water ordeal at Szegedin, in Hungary, and
though their guilt was proved by it, any remaining doubts were settled
by submitting them to the balance;[1050] and five years later Ephraim
Gerhardt alludes to it as everywhere in daily use in such cases.[1051]
Even in the middle of the century, the learned and pious Muratori
affirms his reverent belief in the miraculous convictions recorded by
the mediæval writers as wrought in this manner by the judgment of God;
and he further informs us that it was common in his time throughout
Transylvania, where witches were very numerous;[1052] while in West
Prussia, as late as 1745, the Synod of Culm describes it as a popular
abuse in frequent use, and stringently forbids it for the future.[1053]
Although, within the last hundred years, the cold-water ordeal has
disappeared from the authorized legal procedures of Europe, still the
popular mind has not as yet altogether overcome the superstitions and
prejudices of so many ages, and occasionally in some benighted spot
a case occurs to show us that mediæval ignorance and brutality still
linger amid the triumphs of modern civilization. In 1815 and 1816,
Belgium was disgraced by trials of the kind performed on unfortunates
suspected of witchcraft;[1054] and in 1836, the populace of Hela,
near Dantzic, twice plunged into the sea an old woman reputed to be a
sorceress, and as the miserable creature persisted in rising to the
surface, she was pronounced guilty, and was beaten to death.[1055] Even
in England it is not many years since a party of credulous people were
prosecuted for employing the water ordeal in the trial of a woman whom
they believed to be a witch.[1056]
In Montenegro and Herzegovina the practice continued till the middle of
the present century. Any unusual mortality of children was attributed
to sorcery by women: in such cases the head of a village assembled
all the men and exhorted them to bring next morning their wives and
mothers to the nearest water—a lake or a river, or if necessary a well.
The women were then examined one by one, by passing a rope under the
arms and tossing them in, without divesting them of their clothes.
Those who were so ill-advised as not to sink were pronounced guilty,
and were liable to lapidation if they would not swear to abandon their
evil practices. The belief even extended to the dominant Turks who, in
1857 at Trebinje, compelled the Christians to bring all their women to
the river and cast them in. Buoyed up by their garments seven floated,
and these were only saved from stoning by the archimandrite Eustache,
who administered to them a solemn oath of abstinence from witchcraft.
Austrian domination has rendered all such proceedings unlawful of
late years, but in the remoter districts they are said to be still
occasionally practised.[1057]
Perhaps we may class as a remnant of this superstition a custom
described by a modern traveller as universal in Southern Russia. When
a theft is committed in a household, the servants are assembled, and
a sorceress, or _vorogeia_, is sent for. Dread of what is to follow
generally extorts a confession from the guilty party without further
proceedings, but if not, the _vorogeia_ places on the table a vase of
water and rolls up as many little balls of bread as there are suspected
persons present. Then, taking one of the balls, she addresses the
nearest servant—“If you have committed the theft, this ball will sink
to the bottom of the vase, as will your soul in Hell; but if you are
innocent, it will float on the water.” The truth or falsehood of this
assertion is never tested, for the criminal invariably confesses before
his turn arrives to undergo the ordeal.[1058]
CHAPTER VI.
THE ORDEAL OF THE BALANCE.
We have seen above that a belief existed that persons guilty of sorcery
lost their specific gravity, and this superstition naturally led to the
use of the balance in the effort to discover and punish the crime of
witchcraft, which all experts assure us was the most difficult of all
offences on which to obtain evidence. The trial by balance, however,
was not a European invention. Like nearly all the other ordeals, it
can be traced back to India, where, at least as early as the time of
the Institutes of Vishnu, it was in common use. It is described there
as reserved for women, children, old men, invalids, the blind, the
lame, and the privileged Brahman caste, and not to be undertaken when
a wind was blowing. After proper ceremonies the patient was placed in
one scale, with an equivalent weight to counterbalance him in the
other, and the nicety of the operation is shown by the prescription
that the beam must have a groove with water in it, evidently for the
purpose of detecting the slightest deflection either way. The accused
then descended and the judge addressed the customary adjuration to the
balance:—
“Thou, O balance, art called by the same name as holy law (dharma);
thou, O balance, knowest what mortals do not comprehend.
“This man, arraigned in a cause, is weighed upon thee. Therefore
mayest thou deliver him lawfully from this perplexity.”
Then the accused was replaced in the scale, and if he were found to be
lighter than before he was acquitted. If the scale broke, the trial was
to be repeated.[1059]
It will be seen here that lightness was an evidence of innocence, but
in Europe the ordeal was reversed in consequence of the belief that
sorcerers became lighter than water. Rickius, writing in 1594, speaks
of this mode of trial being commonly used in many places in witchcraft
cases, and gravely assures us that very large and fat women had been
found to weigh only thirteen or fifteen pounds;[1060] but even this
will scarcely explain the modification of the process as employed in
some places, which consisted in putting the accused in one scale and
a Bible in the other.[1061] Kœnigswarter assures us that the scales
formerly used on these occasions are still to be seen at Oudewater
in Holland.[1062] In the case already referred to as occurring July
30, 1728, at Szegedin in Hungary, thirteen persons, six men and seven
women, were burnt alive for witchcraft, whose guilt had been proved,
first by the cold-water ordeal and then by that of the balance. We are
told that a large and fat woman weighed only one and a half drachms
and her husband five drachms and the rest varied from a pennyweight to
three drachms and under. One of the victims was a man of 82, a local
judge, who had previously borne an unblemished character.[1063] The use
of the Bible as a counterpoise is on record even as lately as the year
1759, at Aylesbury in England, where one Susannah Haynokes, accused
of witchcraft, was formally weighed against the Bible in the parish
church.[1064]
CHAPTER VII.
THE ORDEAL OF THE CROSS.
The ordeal of the cross (_judicium crucis, stare ad crucem_) was
one of simple endurance and differed from all its congeners, except
the duel, in being bilateral. The plaintiff and defendant, after
appropriate religious ceremonies and preparation, stood with uplifted
arms before a cross, while divine service was performed, victory being
adjudged to the one who was able longest to maintain his position.
An ancient formula for judgments obtained in this manner in cases of
disputed titles to land prescribes the term of forty-two nights for
the trial.[1065] It doubtless originated in the use of this exercise
by the Church both as a punishment and as a penance.[1066] Of its use
as an ordeal the earliest instance which I have observed occurs in a
Capitulary of Pepin le Bref, in 752, where it is prescribed in cases of
application by a wife for dissolution of marriage.[1067] Charlemagne
appears to have regarded it with much favor, for he not only frequently
refers to it in his edicts, but, when dividing his mighty empire, in
806, he directs that all territorial disputes which may arise in the
future between his sons shall be settled in this manner.[1068] An
example occurring during his reign shows the details of the process. A
controversy between the bishop and citizens of Verona, relative to the
building of certain walls, was referred to the decision of the cross.
Two young ecclesiastics, selected as champions, stood before the sacred
emblem from the commencement of mass; at the middle of the Passion,
Aregaus, who represented the citizens, fell lifeless to the ground,
while his antagonist, Pacificus, held out triumphantly to the end, and
the bishop gained his cause, as ecclesiastics were wont to do.[1069]
When a defeated pleader desired to discredit his own compurgators, he
had the right to accuse them of perjury, and the question was then
decided by this process.[1070] In a similar spirit, witnesses too
infirm to undergo the battle-trial, by which in the regular process of
law they were bound to substantiate their testimony, were allowed, by a
Capitulary of 816, to select the ordeal of the cross, with the further
privilege, in cases of extreme debility, of substituting a relative or
other champion, whose robustness promised an easier task for the Divine
interference.[1071]
A slight variation of this form of ordeal consisted in standing with
the arms extended in the form of a cross, while certain portions
of the service were recited. In this manner St. Lioba, Abbess of
Bischoffsheim, triumphantly vindicated the purity of her flock,
and traced out the offender, when the reputation of her convent
was imperilled by the discovery of a new-born child drowned in a
neighboring pond.[1072]
The sensitive piety of Louis le Débonnaire was shocked at this use of
the cross, as tending to bring the Christian symbol into contempt,
and in 816, soon after the death of Charlemagne, he prohibited its
continuance, at the Council of Aix-la-Chapelle;[1073] an order which
was repeated by his son, the Emperor Lothair.[1074] Baluze, however,
considers, with apparent reason, that this command was respected
only in the Rhenish provinces and in Italy, from the fact that the
manuscripts of the Capitularies belonging to those regions omit the
references to the ordeal of the cross, which are retained in the
copies used in the other territories of the Frankish empire.[1075]
Louis himself would seem at length to have changed his opinion;
for, in the final division of his succession between his sons, he
repeats the direction of Charlemagne as regards the settlement of
disputed boundaries.[1076] The procedure, however, appears to have
soon lost its popularity, and indeed never to have obtained the wide
and deeply-seated hold on the veneration of the people enjoyed by the
other forms of ordeal, though there is extant a formula for confirming
disputed titles to real estate decided in this manner.[1077] We see
little of it at later periods, except the trace it has left in the
proverbial allusion to an _experimentum crucis_.
In India a cognate mode is adopted by the people of Ramgur to settle
questions of disputed boundaries between villages. When agreement by
argument or referees is found impossible, each community chooses a
champion, and the two stand with one leg buried in the earth until
weariness or the bites of insects cause one of them to yield, when the
territory in litigation is adjudged to the village of the victor.[1078]
CHAPTER VIII.
THE CORSNÆD.
The ordeal of consecrated bread or cheese (_judicium offæ, panis
conjuratio, pabulum probationis_, the _corsnæd_ of the Anglo-Saxons)
was administered by presenting to the accused a piece of bread
(generally of barley) or of cheese, about an ounce in weight,[1079]
over which prayers and adjurations had been pronounced. After
appropriate religious ceremonies, including the communion, the morsel
was eaten, the event being determined by the ability of the accused
to swallow it. This depended of course on the imagination, and we
can readily understand how, in those times of faith, the impressive
observances which accompanied the ordeal would affect the criminal,
who, conscious of guilt, stood up at the altar, took the sacrament, and
pledged his salvation on the truth of his oath. The mode by which a
conviction was expected may be gathered from the forms of the exorcism
employed, of which a number have been preserved.
“O Lord Jesus Christ, ... grant, we pray thee, by thy holy name,
that he who is guilty of this crime in thought or in deed, when this
creature of sanctified bread is presented to him for the proving of
the truth, let his throat be narrowed, and in thy name let it be
rejected rather than devoured. And let not the spirit of the Devil
prevail in this to subvert the judgment by false appearances. But
he who is guilty of this crime, let him, chiefly by virtue of the
body and blood of our Lord which he has received in communion, when
he takes the consecrated bread or cheese tremble, and grow pale in
trembling, and shake in all his limbs; and let the innocent quietly
and healthfully, with all ease, chew and swallow this morsel of bread
or cheese, crossed in thy holy name, that all may know that thou art
the just Judge,” etc.[1080]
And even more forcible in its devout impiety is the following:—
“O God Most High, who dwellest in Heaven, who through thy Trinity
and Majesty hast thy just angels, send, O Lord, thy Angel Gabriel to
stick in the throat of those who have committed this theft, that they
may neither chew nor swallow this bread and cheese created by Thee. I
invoke the patriarchs, Abraham, Isaac, and Jacob, with twelve thousand
Angels and Archangels. I invoke the four evangelists, Matthew, Mark,
Luke, and John. I invoke Moses and Aaron, who divided the sea. That
they may bind to their throats the tongues of the men who have
committed this theft, or consented thereto. If they taste this bread
and cheese created by Thee, may they tremble like a trembling tree,
and have no rest, nor keep the bread and cheese in their mouths;
that all may know Thou art the Lord, and there is none other but
Thee!”[1081]
As the efficiency of the ordeal depended upon the effect produced on
the imagination of the patient clerical ingenuity exhausted itself
in devising tremendous and awe-inspiring exorcisms. One like the
following, for instance, could hardly fail to constrict the throat of
the most hardened sinner:—
“I exorcise thee, accursed and most filthy dragon, basilisk, evil
serpent, by the Word of truth, by almighty God, by the spotless Lamb
begotten of the Highest, conceived of the Holy Ghost, born of the
Virgin Mary, whose coming Gabriel announced, whom when John saw he
cried aloud This is the Son of the living God, that thou may’st have
no power over this bread or cheese, but that he who committed this
theft may eat in trembling and vomit forth by Thy command, Holy Father
and Lord, almighty and eternal God.... May he who has stolen these
things or is an accomplice in this, may his throat and his tongue
and his jaws be narrowed and constricted so that he cannot chew this
bread or cheese, by the Father and the Son and the Holy Ghost, by
the tremendous Day of Judgment, by the four Evangels, by the twelve
Apostles, by the four and twenty elders who daily praise and worship
Thee, by that Redeemer who deigned for our sins to stretch his hands
upon the cross, that he who stole these things cannot chew this bread
or cheese save with a swelled mouth and froth and tears, by the aid
of our Lord Jesus Christ, to whom is honor and glory forever and
forever.”[1082]
Yet Boccaccio’s story of Calendrino, which turns upon the mixing of
aloes with the bread administered in the _corsnæd_, perhaps affords a
more rationalistic explanation of the expected miracle.[1083]
A striking illustration of the superstitions connected with this usage
is found in the story related by most of the English chroniclers
concerning the death of Godwin, Duke of Kent, father of King Harold,
and in his day the king-maker of England. As he was dining with his
royal son-in-law, Edward the Confessor, some trivial circumstance
caused the king to repeat an old accusation that his brother Alfred
had met his death at Godwin’s hands. The old but fiery duke, seizing
a piece of bread, exclaimed: “May God cause this morsel to choke me if
I am guilty in thought or in deed of this crime!” Then the king took
the bread and blessed it, and Godwin, putting it in his mouth, was
suffocated by it, and fell dead.[1084] A poetical life of Edward the
Confessor, written in the thirteenth century, gives a graphic picture
of the death of the duke and the vengeful triumph of the king:—
“L’aleine e parole pert
Par le morsel ki ferm s’ahert.
Morz est li senglant felun;
Mut out force la benaicun,
Ke duna a mors vertu,
Par unc la mort provée fu.
‘Atant’ se escrie li rois,
‘Treiez hors ceu chen punois.’”[1085]
This form of ordeal never obtained the extended influence which
characterized some of the other modes, and it seems to have been
chiefly confined to the populations allied to the Saxon race. In
England, before the Conquest, it was enjoined on the lower orders of
the clergy who were unable to procure conjurators,[1086] and it may be
considered as a plebeian mode of trial, rarely rising into historical
importance. Its vitality, however, is demonstrated by the fact that
Lindenbruck, writing in 1613, states that it was then still in frequent
use.[1087]
Aimoin relates a story which, though in no sense judicial, presents us
with a development of the same superstition. A certain renowned knight
named Arnustus unjustly occupied lands belonging to the Benedictine
Abbey of Fleury. Dining at the usurped property one day, and boasting
of his contempt for the complaints of the holy monks, he took a pear
and exclaimed—“I call this pear to witness that before the year is
out I will give them ample cause for grumbling.” Choking with the
first morsel, he was carried speechless to bed, and miserably perished
unhouselled, a warning to evildoers not to tempt too far the patience
of St. Benedict.[1088] Stories such as this are by no means uncommon,
and are not without interest as a portion of the armory by which the
clergy defended themselves against their unquiet neighbors. Of kindred
nature is an occurrence related about the year 1090, when Duke Henry of
Limburg was involved in a quarrel with Engilbert, Archbishop of Trèves,
and treated with contempt the excommunication and anathema inflicted
upon him. Joking upon the subject with his followers one day at dinner,
he tossed a fragment of food to his dog, remarking that if the animal
ate it, they need not feel apprehensive of the episcopal curse. The
dog refused the tempting morsel, though he manifested his hunger by
eagerly devouring food given him by another hand, and the duke, by the
advice of his counsellors, lost no time in reconciling himself with his
ghostly adversary. This is the more remarkable, as Engilbert himself
was under excommunication by Gregory VII., being a stanch imperialist,
who had received his see from Henry IV., and his pallium from the
antipope Guiberto.[1089]
In India, this ordeal is performed with a kind of rice called _sathee_,
prepared with various incantations. The person on trial eats it, with
his face to the East, and then spits upon a peepul leaf. “If the saliva
is mixed with blood, or the corners of his mouth swell, or he trembles,
he is declared to be a liar.”[1090] A slightly different form is
described for cases in which several persons are suspected of theft.
The consecrated rice is administered to them all, is chewed lightly,
and then spit out upon a peepul leaf. If any one ejects it either dry
or tinged with blood, he is adjudged guilty.[1091]
Based on the same theory is a ceremony performed by the pre-Aryan
hill-tribes of Rajmahal, when swearing judges into office preparatory
to the trial of a case. In this a pinch of salt is placed upon a
_tulwar_ or scimitar, and held over the mouth of the judge, to whom is
addressed the adjuration, “If thou decidest contrary to thy judgment
and falsely, may this salt be thy death!” The judge repeats the
formula, and the salt is washed with water into his mouth.[1092]
CHAPTER IX.
THE EUCHARIST AS AN ORDEAL.
From ancient times in India there has been in common use an ordeal
known as _cosha_, consisting of water in which an idol has been
washed. The priest celebrates solemn rites “to some tremendous deity,”
such as Durga or the Adityas, whose image is then bathed in water.
Three handfuls of this water are then drunk by the accused, and if
within fourteen days he is not visited with some dreadful calamity
from the act of the deity or of the king, “he must indubitably be
acquitted.”[1093]
In adapting the ordeal system to Christianity the natural substitute
for this pagan ceremony was the administration of the Eucharist. This,
indeed, formed a portion of the preparatory rites in all the judgments
of God, the Host being given with the awful adjuration, “May this body
and blood of our Lord Jesus Christ be a judgment to thee this day!”
The apostle had said that “he that eateth and drinketh unworthily
eateth and drinketh damnation to himself” (I. _Corinth._ xi. 28, 29),
and the pious veneration of the age accepted the admonition literally.
Mediæval literature is full of legends showing the miraculous power
of the Eucharist in bringing sinners to repentance and exposure,
even without any special invocation; and the absolute belief in this
fetishism, even by the irreligious, is fairly illustrated by the
case of a dissolute priest of Zurich, in the fourteenth century. An
habitual drunkard, gambler, and fornicator, he yet celebrated mass
daily with exemplary regularity. On being warned of the dangers to
which he was thus exposing himself in partaking of the Eucharist, he
at length confessed that he never consecrated the host, but that he
carried about him a small round piece of wood, resembling the holy
wafer, which he exhibited to the people and passed it off for the body
of Christ. The honest chronicler fairly explodes with indignation
in relating the subterfuge, and assures us that while the priest
succeeded in escaping one danger he fell into a much greater, as
he was the cause of leading his flock into the unpardonable sin of
idolatry. Apparently his parishioners thought so too, for though they
had patiently endured the scandals of his daily life, as soon as this
trick became known they drove him away unceremoniously.[1094] What this
pastor, but for his ingenious device, might have reasonably dreaded
is to be learned from the story of a volunteer miracle vouchsafed to
an unchaste priest at Lindisfarne, who being suddenly summoned to
celebrate mass without having had time to purify himself, when he came
to partake of the sacramental cup, saw the wine change to an exceeding
blackness. After some hesitation he took it, and found it bitter to the
last degree. Hurrying to his bishop, he confessed his sin, underwent
penance, and reformed his life.[1095] Even more edifying was a case
related as happening in France about the year 1200. A priest yielded
to the temptation of the flesh immediately before celebrating mass on
Christmas eve, when, after consecrating the body and blood, and before
he could touch them with his polluted lips, a white dove appeared which
drank the wine and carried off the wafer. It happened that he could
find no one to replace him during the ceremonies of the festival,
and, though appalled by the miracle, he could not refuse to perform
his functions without exposure, so that a second and a third time he
went through the canon with the same result. Finally he applied to an
abbot, and confessed his sin with due contrition. The abbot postponed
inflicting penance until the priest should officiate again, when the
dove reappeared, bearing in its beak the three wafers, and returning
to the chalice all the wine it had taken. Filled with rejoicing at
this evidence that his contrition was accepted, the priest cheerfully
undertook three years’ pilgrimage in the Holy Land, prescribed for him
by the abbot, and on his return entered a convent.[1096]
A still more striking manifestation of the interposition of God by
means of the Eucharist to vindicate innocence is to be found in the
case of Erkenbald de Burban, a noble of Flanders, who was renowned for
his inflexible administration of justice. While lying on his death-bed,
his favorite nephew and heir endeavored to violate one of the maidens
of the castle. Erkenbald ordered him to be hanged, but his followers
were afraid to execute the sentence; so, when after an interval, the
youth approached his uncle for a reconciliation, the latter put his
arm affectionately round his neck, and drove a dagger up to the hilt
in his throat. When Erkenbald made his final confession preparatory
to the last sacrament, he refused to include this deed among his
sins, claiming that it was an act of righteousness, and his bishop
consequently refused to administer the Host. The dying man obdurately
allowed him to depart; then ordering him recalled, asked him to see
whether he had the wafer in his pyx. On the latter being opened it
was found empty, and Erkenbald exhibited it to him in his mouth. The
Eucharist which man had refused, God had ministered to the righteous
judge.[1097]
It is, therefore, easy to understand the superstition of the ages of
faith which believed that, when the consecrated wafer was offered
under appropriate adjurations, the guilty could not receive it; or
that, if it were taken, immediate convulsions and speedy death, or
some other miraculous manifestation would ensue, thus constituting
its administration for such purposes a regular and recognized form of
ordeal. This is well illustrated by a form of exorcism preserved by
Mansi: “We humbly pray thy Infinite Majesty that this priest, if guilty
of the accusation, shall not be able to receive this venerated body of
thy Son, crucified for the salvation of all, and that what should be
the remedy of all evil shall prove to him hurtful, full of grief and
suffering, bearing with it all sorrow and bitterness.”[1098] What might
be expected under such circumstances is elucidated by a case which
occurred in the early part of the eleventh century, as reported by the
contemporary Rodolphus Glaber, in which a monk, condemned to undergo
the trial, boldly received the sacrament, when the Host, indignant
at its lodgment in the body of so perjured a criminal, immediately
slipped out at the navel, white and pure as before, to the immense
consternation of the accused, who forthwith confessed his crime.[1099]
The antiquity of this mode of trial is shown in its employment by
Cautinus, Bishop of Auvergne, towards the close of the sixth century.
A certain Count Eulalius was popularly accused of parricide, whereupon
he was suspended from communion. On his complaining of thus being
punished without a trial, the bishop administered the sacrament under
the customary adjuration, and Eulalius, taking it without harm,
was relieved from the imputation.[1100] It was usually, however,
a sacerdotal form of purgation, as is shown by the Anglo-Saxon
laws,[1101] and by the canons of the council of Worms in 868, embodied
in the _Decretum_ of Gratian.[1102] Thus, in 941, Frederic, Archbishop
of Mainz, publicly submitted to an ordeal of this kind, to clear
himself of the suspicion of having taken part in an unsuccessful
rebellion of Henry, Duke of Bavaria, against his brother, Otho the
Great.[1103] After the death of Henry, slander assailed the fame of
his widow, Juthita, on account of an alleged intimacy between her
and Abraham, Bishop of Freisingen. When she, too, died, the bishop
performed her funeral rites, and, pausing in the mass, he addressed
the congregation: “If she was guilty of that whereof she was accused,
may the Omnipotent Father cause the body and blood of the Son to be
my condemnation to just perdition, and perpetual salvation to her
soul!”—after which he took the sacrament unharmed, and the people
acknowledged the falsity of their belief.[1104] In 1050, Subico, Bishop
of Speyer, sought to clear himself of a similar accusation at the
council of Mainz, in the same manner, when according to one version he
succeeded, while another less friendly account assures us that his jaw
became paralyzed in the very act, and remained so till the day of his
death.[1105]
Perhaps the most striking instance recorded of its administration
was, however, in a secular matter, when in 869 it closed the unhappy
controversy between King Lothair and his wives, to which reference has
been already made. To reconcile himself to the Church, Lothair took a
solemn oath before Adrian II. that he had obeyed the ecclesiastical
mandates in maintaining a complete separation from his pseudo-wife
Waldrada, after which the pontiff admitted him to communion, under an
adjuration that it should prove the test of his truthfulness. Lothair
did not shrink from the ordeal, nor did his nobles, to whom it was
given on their declaring that they had not abetted the designs of the
concubine; but leaving Rome immediately afterwards, the royal _cortége_
was stopped at Piacenza by a sudden epidemic which broke out among the
courtiers, and there Lothair died, August 8th, with nearly all of his
followers—an awful example held out by the worthy chroniclers as a
warning to future generations.[1106]
In this degradation of the Host to the level of daily life there was
a profanity repugnant to a reverential mind, and we are therefore not
surprised to find King Robert the Pious, in the early part of the
eleventh century, raising his voice against its judicial use, and
threatening to degrade the Archbishop of Sens for employing it in this
manner, especially as his biographer informs us that the custom was
daily growing in favor.[1107] Robert’s example was soon afterwards
imitated by Alexander II., whose pontificate lasted from 1061 to
1073.[1108] The next pope, however, the impetuous Hildebrand, made use
of it on a memorable occasion. When, in 1077, the Emperor Henry IV. had
endured the depths of humiliation before the castle gate of Canossa,
and had at length purchased peace by submitting to the exactions
demanded of him, the excommunication under which he had lain was
removed in the chapel. Then Gregory, referring to the crimes imputed to
himself by the emperor’s partisans, said that he could easily refute
them by abundant witnesses; “but lest I should seem to rely rather on
human than on divine testimony, and that I may remove from the minds of
all, by immediate satisfaction, every scruple, behold this body of our
Lord which I am about to take. Let it be to me this day a test of my
innocence, and may the Omnipotent God this day by his judgment absolve
me of the accusations if I am innocent, or let me perish by sudden
death if guilty!” Swallowing the wafer, he turned to the emperor, and
demanded of him the same refutation of the charges urged against him
by the German princes. Appalled by this unexpected trial, Henry in an
agony of fear evaded it, and consulted hurriedly with his councillors
how to escape the awful test, which he finally declined on the ground
of the absence of both his friends and his enemies, without whose
presence the result would establish nothing.[1109] In estimating the
mingled power of imagination and conscience which rendered the proposal
insupportable to the emperor, we must allow for the influence which
a man like Hildebrand with voice and eye can exert over those whom
he wishes to impress. At an earlier stage of his career, in 1055, he
improvised a very effective species of ordeal, when presiding as papal
legate at the Council of Lyons, assembled for the repression of simony.
A guilty bishop had bribed the opposing witnesses, and no testimony was
obtainable for his conviction. Hildebrand addressed him: “The episcopal
grace is a gift of the Holy Ghost. If, therefore, you are innocent,
repeat, ‘Glory to the Father, and to the Son, and to the Holy Ghost!’”
The bishop boldly commenced, “Glory to the Father, and to the Son, and
to—” here his voice failed him, he was unable to finish the sentence;
and, confessing the sin, he was deposed.[1110]
Henry’s prudence in declining the Eucharistic ordeal was proved by the
fate of the unfortunate Imbrico, Bishop of Augsburg, who, in the same
year, 1077, after swearing fealty to Rodolph of Suabia, abandoned him
and joined the emperor. Soon after, while saying mass before Henry,
to prove the force of his loyal convictions, he declared that the
sacrament he was about to take should attest the righteousness of his
master’s cause; and the anti-imperialist chronicler duly records that a
sudden disease overtook him, to be followed by speedy death.[1111] In
the case of William, Bishop of Utrecht, as related by Hugh of Flavigny,
the Eucharist was less an ordeal than a punishment. He dared, at the
Assembly of Utrecht, in 1076, to excommunicate Gregory, at the command
of Henry IV.; but when, at the conclusion of the impious ceremony, he
audaciously took the Host, it turned to fire within him, and, shrieking
“I burn! I burn!” he fell down and miserably died.[1112]
According to a Spanish theologian in the sixteenth century, when the
Eucharist was administered as an ordeal it was to be taken without
previous sacramental confession—presumably in order that the accused
might not escape in consequence of absolution.[1113] After the
Reformation, the Protestants who denied the real presence naturally
rejected this form of ordeal, but Del Rio, writing in 1599, compares
them to frogs swelling themselves against an elephant; and Peter
Kluntz, in 1677, assures us that it was still commonly used in his
day.[1114]
CHAPTER X.
THE ORDEAL OF THE LOT.
The appeal to chance, as practised in India, bears several forms,
substantially identical in principle. One mode consists in writing
the words _dherem_ (consciousness of innocence) and _adherem_ (its
opposite) on plates of silver and lead respectively, or on pieces of
white and black linen, which are placed in a vessel that has never held
water. The person whose cause is at stake inserts his hand and draws
forth one of the pieces, when if it happens to be _dherem_ it proves
his truth.[1115] Another method is to place in a vessel a silver image
of Dharma, the genius of justice, and one in iron or clay of Adharma;
or else a figure of Dharma is painted on white cloth and another on
black cloth, and the two are rolled together in cow-dung and thrown
into a jar, when the accused is acquitted or convicted according to his
fortune in drawing Dharma.[1116]
In adapting to Christian usage the ordeal of the lot, attempts were
made to invest it with similar sacred symbolism, but it was not well
adapted to display the awful solemnity which rendered the other forms
so impressive. Notwithstanding the ample warrant for it in Scripture,
and its approval by St. Augustin,[1117] it was therefore in less favor
with the Church, and it seems not to have retained among the people,
after their conversion, the widespread popularity and confidence
enjoyed by the other ordeals. Indeed, as a judicial process, it is only
to be found prescribed in the earlier remains of the Barbarian laws and
customs, and no trace of it is to be met with in the latter legislation
of any race. Thus mention of it is made in the Ripuarian code,[1118]
and in some of the earlier Merovingian documents its use is prescribed
in the same brief manner.[1119] As late as the middle of the eighth
century, Ecgberht, Archbishop of York, quotes from the canons of an
Irish Council a direction for its employment in cases of sacrilegious
theft, as a means of determining the punishment to be inflicted;[1120]
but not long after, the Council of Calchuth condemned the practice
between litigants as a sacrilege and a remnant of paganism.[1121] This
was ineffectual, for about 850 Leo IV. describes it as in universal use
in England, and forbids it as mere divination.[1122]
No explanation is given of the details of the process by which this
appeal to fortune was made, and I know of no contemporary applications
by which its formula can be investigated; but in the primitive Frisian
laws there is described an ordeal of the lot, which may reasonably be
assumed to show us one of the methods in use. When a man was killed in
a chance-medley and the murderer remained unknown, the friends had a
right to accuse seven of the participants in the brawl. Each of these
defendants had then to take the oath of denial with twelve conjurators,
after which they were admitted to the ordeal. Two pieces of twig,
precisely similar, were taken, one of which was marked with a cross;
they were then wrapped up separately in white wool and laid on the
altar; prayers were recited, invoking God to reveal the innocence or
guilt of the party, and the priest, or a sinless youth, took up one of
the bundles. If it contained the marked fragment, the defendants were
absolved; if the unmarked one, the guilty man was among them. Each
one then took a similar piece of stick and made a private mark upon
it; these were rolled up as before, placed on the altar, taken up one
by one, and unwrapped, each man claiming his own. The one whose piece
was left to the last was pronounced guilty, and was obliged to pay
the wer-gild of the murder.[1123] Among the ancient Irish the lot or
_crannchur_ was employed by mingling white and black stones, when if
the accused drew a black one he was adjudged guilty.[1124]
The various modes of ecclesiastical divination, so frequently used in
the Middle Ages to obtain an insight into the future, sometimes assumed
the shape of an appeal to Heaven to decide questions of the present or
of the past.[1125] Thus, when three bishops, of Poitiers, Arras, and
Autun, each claimed the holy relics of St. Liguaire, and human means
were unavailing to reconcile their pretensions, the decision of the
Supreme Power was resorted to, by placing under the altar-cloth three
slips with their respective names inscribed, and after a becoming
amount of prayer, on withdrawing one of them, the see of Poitiers was
enriched with the precious remains by Divine favor.[1126]
That such appeals to chance were regarded by the Church with disfavor
is shown by Gratian, who argues that the Hebrew examples were not
precedents to be observed under the New Law.[1127] Yet the second
council of Barcelona in 599 had decreed that when an episcopal vacancy
was to be filled two or three candidates should be chosen by the clergy
and people, and from among these the metropolitan and his suffragans
should select one by lot, after due fasting and prayer.[1128]
One of the most interesting applications of the lot on record was
that by which the founders of the Bohemian Brethren determined upon
the future existence of the sect. At an assembly of deputies held
at Lhotka, in 1467, the lot was resorted to to ascertain whether it
was the will of God that they should separate themselves from the
Roman presbyterate and seek consecration from the Waldenses, when the
response was in the affirmative. Then nine men were chosen, from among
whom three or two, or one, or none should be drawn as candidates for
the episcopate. Twelve cards were taken, three inscribed “is” and nine
“is not,” and nine of them were distributed among the men selected.
Three were found to be drawn; one of them was sent to an Austrian
community of Waldenses for episcopal consecration, and the “Unitas
Fratrum” was then organized.[1129] This same pious dependence on the
will of God is still preserved by the Mennonites in the choice of
pastors. As described in the journals of 1884 an election of this kind
in Lancaster County, Pennsylvania, where there were twenty candidates,
was conducted by three bishops. After divine service twenty books
with clasps were taken in one of which was inserted a slip of paper
inscribed _Ein Diener des Wort_; the books were placed in a row on a
table and each applicant selected one. Bishop Shenk proceeded to open
the books, and in the eleventh, held by Menno Zimmerman, the paper was
found, entitling him to the position.
* * * * *
Closely related to the lot are the appeals to chance, to settle
doubtful questions or ascertain guilt. Such was that made by the
pious monks of Abingdon, about the middle of the tenth century, to
determine their right to the meadows of Beri against the claims of some
inhabitants of Oxfordshire. For three days, with fasting and prayer,
they implored the Divine Omnipotence to make manifest their right; and
then, by mutual assent, they floated on the Thames a round buckler,
bearing a handful of wheat, in which was stuck a lighted taper. The
sturdy Oxonians gaped at the spectacle from the distant bank, while a
deputation of the more prudent monks followed close upon the floating
beacon. Down the river it sailed, veering from bank to bank, and
pointing out, as with a finger, the various possessions of the Abbey,
till at last, on reaching the disputed lands, it miraculously left the
current of the stream, and forced itself into a narrow and shallow
channel, which in high water made an arm of the river around the
meadows in question. At this unanswerable decision, the people with one
accord shouted “Jus Abbendoniæ, jus Abbendoniæ!” and so powerful was
the impression produced, that the worthy chronicler assures us that
thenceforth neither king, nor duke, nor prince dared to lay claim to
the lands of Beri, showing conclusively the wisdom of the abbot who
preferred thus to rely upon his right rather than on mouldy charters or
dilatory pleadings.[1130]
A more prosaic form of the ordeal of chance is the trial by Bible
and key which is of old Teutonic origin.[1131] It is still in common
use in England, where it may even yet “be met with in many an
out-of-the-way-farm-house.” In cases of theft a key is secured at
Psalm 50, 18: “When thou sawest a thief, then thou consentedst with
him, and hast been partaker with adulterers;”[1132] and the mode in
which it is expected to reveal guilt is manifested in a case recorded
in the London _Times_ as occurring at Southampton in 1867, where a
sailor boy on board a collier was brought before court on a charge of
theft, the only evidence against him being that afforded by securing
a key in a Bible opposite the first chapter of Ruth. The Bible was
then swung round while the names of several suspected persons were
repeated, and on the mention of the prisoner’s name the book fell on
the floor. A somewhat different method is recounted in a case reported
by the journals in 1879, where a woman in Ludlow, who had lost a
sheet, perambulated the streets of the town with a Bible and key,
and brought a prosecution against a person whose guilt she had thus
discovered. It was explained in court that the key was placed at Ruth
I. 16, the investigator holding his fingers crossed, and when
the thief was named the key would spontaneously move. In this case the
prosecutrix declared that when she came to the defendant’s house “the
Bible turned completely round and fell out of her hands.” A variant
of this, described in two MSS. of the twelfth century, consisted in
placing a piece of wood over the verse of the Psalm, “Thou art just,
O Lord, and thy judgment is true;” the book was then securely bound
so that the head of the wood protruded, and it was suspended, while a
priest uttered an adjuration and the accused was questioned, the result
being apparently determined by the motion or rest of the book. Still
another form consisted of suspending a small loaf of bread which had
been placed behind the altar during mass and at its conclusion blessed
and marked with a cross by the priest. At the trial he uttered a
conjuration, when if the bread turned the accused was held guilty.[1133]
Closely akin to the Bible and key is the sieve-driving or sieve-turning
by which criminals were detected by the tilting or falling of a sieve
when, in repeating the names of those suspected, that of the culprit
was mentioned. The sieve required to be an heirloom in the family;
it was balanced on the point of a pair of scissors, or was laid
upon a pair of tongs, or the point of a pair of scissors was driven
into the rim and it was suspended by the ring to the middle finger
of the right hand. This was of ancient origin and was extensively
practised in France and Germany even in the sixteenth and seventeenth
centuries.[1134] The existence of the same belief in England is
shown in 1554, when William Haselwood, on being cited before the
ecclesiastical court of the diocese of London, said that having lost
his purse “remembering that he being a chylde dyd hear his mother
declare that when any man had lost anything, then they wolde use a syve
and a payre of sheers to bring to knowledge who hadd the thing lost;
and so he did take a seve and a payre of sheeres and hanged the seve
by the pointe of the sheeres and sayd these words: By Peter and Paule
he hath yt, namying the party whom he in that behalf suspected.”[1135]
Evidently at this time the Church regarded the process as sorcery.
CHAPTER XI.
BIER-RIGHT.
The belief that at the approach of the murderer the corpse of the
slain would bleed or give some other sign has, under the names of _jus
feretri_, _jus cruentationis_, _bahr-recht_, and “bier-right,” been a
resource eagerly seized by puzzled jurists. Its source is not easily
traced. There is no evidence of its existence among the Eastern Aryans,
nor is it alluded to in any of the primitive “Leges Barbarorum,” though
Russian legends render probable that it was current among the Slavs
at an early day.[1136] Enthusiastic explorers into antiquity quote
Aristotle for it,[1137] while others find in Lucretius evidence that
it was shared by cultured Romans.[1138] Possibly its origin may be
derived from a Jewish custom under which pardon was asked of a corpse
for any offences committed against the living man, the offender laying
hold of the great toe of the body as prepared for sepulture, and it is
said to be not uncommon, where the injury has been grievous, for the
latter to respond to the touch by a copious nasal hemorrhage.[1139]
The earliest allusion I have met with to this belief occurs in 1189,
and shows that already it was rooted in popular credulity. It is the
well-known story that when Richard Cœur de Lion hastened to the funeral
of his father, Henry II., and met the procession at Fontevraud, the
blood poured from the nostrils of the dead king, whose end he had
hastened by his rebellion and disobedience.[1140] Although it never
seems to have formed part of English jurisprudence, its vitality in
the popular mind is shown in Shakespeare’s Richard III., where Gloster
interrupts the obsequies of Henry VI. and Lady Anne exclaims:—
“O gentlemen,see, see! dead Henry’s wounds
Open their congealed mouths and bleed afresh!”
And in the ballad of “Earl Richard”—
“Put na the wite on me, she said,
It was my may Catherine.
Then they hae cut baith fern and thorn,
To burn that maiden in.
“It wadna take upon her cheik,
Nor yet upon her chin,
Nor yet upon her yellow hair
To cleanse that deadly sin.
“The maiden touched that clay-cauld corpse,
A drap it never bled.
The ladye laid her hand on him,
And soon the ground was red.”[1141]
This indicates that the belief was equally prevalent in Scotland.
Indeed King James VI. gave it the stamp of his royal authority,[1142]
and cases on record there show that it was occasionally received as
judicial evidence, and even sometimes prescribed as an ordeal for
detection. Thus in 1611, doubts arising as to the mode by which a
person had met his death, the vicinage was summoned, as we are told
according to custom, to touch the body which had been exhumed for the
purpose. The murderer, whose rank relieved him of suspicion, kept
away, but his little daughter, attracted by curiosity, approached the
corpse, when it began to bleed and the crime was proved.[1143] One
of the most noted cases in which crime was detected in this manner
was that of Philip Standsfield, tried in 1688 for the murder of his
father, Sir James Standsfield of New Milne. In this the indictment
sets forth that after the body had been found in a pond and an autopsy
had been performed by a surgeon, “James Row, merchant, having lifted
the left side of Sir James, his head and shoulder, and the said Philip
the right side, his father’s body, though carefully cleaned, as said
is, did (according to God’s usual mode of discovering murders), blood
afresh upon him and defiled all his hands, which struck him with such
a terror that he immediately let his father’s head and body fall with
violence and fled from the body and in consternation and confusion
cryed Lord have mercy upon me! and bowed himself down over a seat
in the church (where the corp were inspected), wiping his father’s
innocent blood off his own murdering hands upon his cloaths.” When such
was the spirit of the prosecution it need not surprise us that though
the defence showed that in the autopsy an incision had been made in the
neck, where there was a large accumulation of extravasated blood, and
though high authorities were quoted to prove that such bleeding was not
evidence sufficient even to justify torture, Philip Standsfield was
condemned and executed in spite of the insufficiency of circumstantial
evidence.[1144] A similar incident is recorded in the indictment of
Christian Wilson, tried for witchcraft at Edinburgh in 1661.[1145]
These cases are typical, inasmuch as they illustrate the two forms, the
existence of which differentiates this from other ordeals. Sometimes,
as in others, suspects were brought, under judicial order, to view or
touch the body. Frequently, however, the occurrence is spontaneous, and
serves to excite or direct suspicion where none existed before.
The belief extended throughout all the nationalities of Europe.
Although there is no reference to it in the German municipal codes
of the thirteenth century, there is ample store of cases both of
its spontaneous occurrence and of its judicial employment. In 1261,
at Forchheim, a manifestation of this kind brought home to the Jews
the lingering death of a young girl slain by them according to their
hellish custom, and the guilty were promptly broken on the wheel.[1146]
More serious was an affair at Ueberlingen in 1331. The body of a
child was found in a pond and from the character of the wounds it was
recognized that Jewish fanaticism had caused the murder. The corpse was
therefore carried in front of the houses of the principal Jews and when
it began to bleed the evidence was deemed sufficient. The burgomaster
endeavored to calm the populace, but his efforts were ascribed to
Hebrew gold, and condign punishment was resolved upon. All the Jews of
the town were skilfully decoyed into a large stone house and when they
had been securely locked in the upper stories it was set on fire. Those
that succeeded in throwing themselves from the roof were dispatched by
the mob, and the rest, to the number of three hundred, were consumed
by the avenging flames. Though sundry miracles ratified the justice of
the act, yet the godless Emperor, Louis of Bavaria, punished the pious
townsfolk by dismantling their walls and levying a heavy fine upon
them.[1147] The judicial employment of the ordeal is seen in a case
in 1324, when Reinward, a canon of Minden, was murdered by a drunken
soldier and the crime was proved by a trial of this kind.[1148] More
satisfactory, as showing how through the influence of imagination the
ordeal sometimes resulted in substantial justice, was a case in Lucerne
in 1503, when Hans Speiss of Etiswiler murdered his wife. She was duly
buried, but suspicion arose, and after three weeks the body was exhumed
and he was brought before it. As he approached, it flushed with color
and immediately began to bleed. He had hitherto defiantly asserted
his innocence, but at this sight he fell on his knees, confessed the
crime, and begged for mercy. He was broken on the wheel and died most
penitently.[1149] Numerous cases are on record of its use throughout
Germany in the seventeenth century, of which it will suffice to refer
to one in which the corpse manifested a discrimination greatly
impressing the authorities. It had been dead for thirty-six hours and
refused to bleed on the approach of two persons suspected. Then three
others were brought, one of whom, George, had planned the murder and
been present, but had not taken personal part in it: for him the corpse
bled at the mouth. Then came Lorenz, who had held the victim when the
blow was struck: for him the mouth frothed and the wound bled. Finally
Claus, who had inflicted the blow, came, and for him the blood gushed
forth from the wound.[1150]
The extent to which popular credulity was prepared to accept this
miraculous manifestation is shown in a story which obtained wide
currency. An Austrian noble journeying to Vienna passed through a wood
in which his dogs scratched up some bones. Their whiteness struck his
fancy; he carried them to the city and sent them to a cutler to be
worked up into some ornament, when as soon as they were brought into
the presence of the artificer they became covered with blood. The noble
reported the fact to the magistrates, the cutler was arrested and
confessed that twenty years before he had slain a comrade and buried
the body where the bones were found.[1151] We may trace a more poetic
form of this sympathy in the legend which relates the welcome given by
the bones of Abelard to Heloise when, twenty years after his death, her
body was consigned to his tomb.
In Denmark, though this form of trial finds no place in the codes of
law, we are told that it was generally used during the seventeenth
century in all appropriate cases.[1152] In Holstein there was a
custom known as _Scheingehen_, in which, when a murderer remained
undiscovered, a hand was severed from the corpse with provident care
and preserved as a touchstone for the future. A celebrated case is
related in the books in which a dead body was found and buried, and the
hand was hung up in the prison of Itzehoe. Ten years later a thief was
arrested and brought there, when the hand immediately began to bleed
freely, and the thief confessed the murder.[1153]
Italy shared fully in the belief. The most distinguished exponent
of the New Learning in the fifteenth century, Marsiglio Ficino, the
Platonist, does not hesitate to adduce it as a fact well known to
judges, in his argument to prove the immortality of the soul against
the Averrhoism fashionable in his day.[1154] Equally distinguished
as a jurist was Hippolito de’ Marsigli (died in 1528), who relates
that in his youth he was governor of Alberga, near Genoa, when a
murder occurred without affording evidence as to the perpetrator. By
the advice of an old citizen he had the body brought before him and
summoned all liable to suspicion to pass near it one by one. When the
homicide approached, to the surprise of Marsigli, the wounds burst out
afresh, but his incredulity was such that he did not consider this to
warrant even an arrest until he had collected sufficient collateral
evidence, when the culprit confessed without torture.[1155] In Venice
this ordeal was sometimes used and likewise in Piedmont, though in the
latter region some magistrates regarded it as fallacious, for their
experience showed that blood had not flowed in the presence of those
subsequently proved to be guilty.[1156] In Corsica the belief, if not
still existent, has been widely diffused until within a few years.[1157]
France seems to have been even more addicted to this superstition.
About 1580 President Bertrand d’Argentré, in his Commentaries on
the Customs of Brittany, treats it as an indisputable fact and one
affording good evidence.[1158] In Picardy we are told it was constantly
used by magistrates, it was approved by the courts in Bordeaux, and
Chassanée, whose authority in Burgundy was great, argues that its
occurrence justifies the torture of the accused without further
evidence.[1159] Spain likewise was not exempt from it. A celebrated
case is cited in the books as occurring in Aragon, where the accused
was brought before the corpse of the victim in the public square and
appealed to God to perform a miracle if he were guilty, whereupon the
body raised its right arm, pointed with its fingers to the several
wounds and then to the accused; this was regarded as sufficient proof,
and under sentence of the Council of Aragon the culprit was executed.
Another case which occurred at Ledesma, near Salamanca, shows the
existence of the belief in Castile.[1160]
English colonists brought the superstition across the Atlantic, where
it has never been fairly eradicated from the popular mind. In January,
1680, in Accomac County, Virginia, a new-born illegitimate child of
“Mary, daughter of Sarah, wife of Paul Carter” died and was buried. It
was nearly six weeks before suspicion was aroused, when the coroner
impanelled a jury of twelve matrons, whose verdict recorded that
Sarah Carter was brought to touch the corpse without result, but when
Paul Carter touched it “immediately whilst he was stroaking ye childe
ye black and settled places above ye body of ye childe grew fresh and
red so that blud was ready to come through ye skin of ye childe.” On
the strength of this verdict an indictment was found against Paul
Carter, but with what result the records do not show.[1161] Nearly a
century later, in 1767, the coroner’s jury of Bergen County, N. J., was
summoned to view the body of one Nicholas Tuers, whose death had led to
suspicion of murder. Johannes Demarest, the coroner, attests that he
had no belief in bier-right and paid no attention to the experiment,
when one of the jury touched the body without result. At length a slave
named Harry, who had been suspected without proof, was brought forward
for the trial when he heard an exclamation “He is the man,” and was
told that the body had bled when touched by Harry. He then ordered the
slave to place his hand on its face, when about a tablespoonful of
blood flowed from each nostril, and Harry confessed the murder.[1162]
So recently as 1833 a man named Getter was hanged in Pennsylvania for
the murder of his wife, and among the evidence which was allowed to go
to the jury on the trial was that of a female witness, who swore “If
my throat was to be cut I could tell, before God Almighty, that the
deceased smiled when he (the murderer) touched her. I swore this before
the justice, and also that she bled considerably. I was sent for to
dress her and lay her out. He touched her twice. He made no hesitation
about doing it. I also swore before the justice that it was observed by
other people in the house.”[1163] This is perhaps the latest instance
in which bier-right has figured in regular judicial proceedings, but
the popular belief in it is by no means eradicated. In 1860 the
Philadelphia journals mention a case in which the relatives of a
deceased person, suspecting foul play, vainly importuned the coroner,
six weeks after the interment, to have the body exhumed in order that
it might be touched by a person whom they regarded as concerned in his
death. In 1868 at Verdiersville, Virginia, a suspected murderer was
compelled to touch the body of a woman found murdered in a wood; and
in 1869, at Lebanon, Illinois, the bodies of two murdered persons were
exhumed and two hundred of the neighbors were marched past and made to
touch them in the hope of identifying the criminals.[1164]
In Germany, in the seventeenth century, there was a recognized formula
for the administration of the ordeal. The corpse was exposed to the
open air for some hours, with breast and stomach bare to insure the
thorough coagulation of the blood. The person suspected was then
brought forward and required to repeat certain adjurations read to him,
and then he was made to touch with two fingers the mouth, the navel,
and the wounds, if there were any. If the corpse manifested any signs
of sensation, if there was frothing at the mouth, or bleeding from any
orifices or wounds it was considered an evidence of guilt.[1165] The
trial was not a mere popular experiment, but was a judicial proceeding,
under the order of a magistrate.
Although bier-right, in comparison with other ordeals, plays so
inconspicuous a part in the history of jurisprudence, it is especially
interesting in one respect. As a judicial expedient, it did not spring
into notice until after the other vulgar ordeals had been discredited
and banished from the courts. It escaped the censure of the Church and
was a survival of the Judgment of God, reaching its fullest development
in the seventeenth century. It thus became the subject of investigation
and debate in an age of critical tendencies and comparative
intelligence. Among those who had faith in it there was much fruitless
speculation to account for the result, and there was by no means a
consensus of opinion as to the causes at work. In 1487 the inquisitor
Sprenger takes a materialistic view and uses it as the basis of an
argument on the wonderful properties of inanimate matter. He explains
that air is introduced into the wound when it is inflicted, and that it
rushes out when agitated by the presence of the slayer, bringing blood
with it, but he adds that others believe it to be the cry of blood
from the earth against the murderer, as related of the first homicide,
Cain.[1166] About a century later Del Rio tells us that some looked
upon it as a miracle, others as an accident, while he himself can see
no better reason than the violent antipathy conceived by the slain for
the slayer.[1167] Carena holds it to be the mysterious Judgment of God,
unless it happens to be the work of the demon, and in this uncertainty
concludes that if there are no other proofs it only justifies further
investigation and not torture.[1168] Oelsner informs us that learned
men disputed whether it was occasioned by antipathy or sympathy, by the
remains of the soul in the body, by wandering spirits of the dead, or
by the spirit of enmity, and he concludes that the causes are sometimes
natural and sometimes supernatural.[1169] It is significant that, among
so many theories framed by believers in the fact, there were so few who
assented to the direct interposition of God.
Among jurists there was lively debate as to the exact weight of the
evidence when the experiment was successful. Criminal lawyers were
naturally loath to admit that it was decisive, for the corollary
followed that if no bleeding occurred the suspect must be innocent,
which was contradicted by the numerous cases in which an accused
successfully passed through the ordeal and was subsequently proved to
be guilty. This decisiveness was the essence of the older ordeals,
and was wholly opposed to the current inquisitorial system in which
certainty was aimed at by the habitual use of torture. Almost with
unanimity, therefore, the legists held that it was only one of the
indications pointing to guilt, and that its failure could not be
alleged as a proof of innocence. They differed, however, as to the
weight of the indication which it afforded. Authoritative names were
cited in favor of the opinion that it sufficed by itself to justify
the subjection of the accused to torture, as in a case at Marburg in
1608, where on this ground alone several suspects were tortured, when
they confessed and were executed. Others took the position that it did
not of itself warrant the use of torture, and that it required to be
supported by other proof. Among these was the great criminal jurist
Carpzov, who states that in cases submitted to him and his colleagues
he had seen many in which no bleeding occurred when the murderers
touched the corpse, while in others it did occur when innocents were
exposed to the trial.[1170] When the discussion had reached this stage
the ordeal became a superfluity which was bound to disappear from the
courts in spite of the persistence of popular credulity, and a school
of jurists arose who denied that it deserved the name of evidence, and
declared that it must be wholly disregarded. It was only a question
of time when this opinion should triumph, and the first quarter of
the eighteenth century probably witnessed the disappearance of this
survival of mediævalism from recognized judicial procedure.[1171]
CHAPTER XII.
OATHS AS ORDEALS.
The oath naturally formed an integral portion of the ordeal. Even
as in the battle trial both parties, on entering the lists, were
compelled to swear to the truth of their assertions, so in the other
ordeals the accuser and accused took an oath immediately prior to the
administration of the test.[1172] Sometimes, however, the oath of
the accused was regarded as a sufficient ordeal in itself. We have
seen above how, among many and diverse races, disculpatory oaths are
administered with ceremonies which render them practically ordeals
in view of the popular belief that misfortune will follow perjury.
The anthropomorphic mythology of Hellas presents this idea in its
most concrete form by the most solemn oath of the gods, taken on the
water of Styx brought in a vase for the purpose, perjury on which was
followed by a year of stupor and nine years of segregation from all
fellowship with the brother immortals.[1173] We have also seen (pp.
29 sqq.) that in Christendom the Church set little store by simple
oaths, but reckoned their obligation by the holiness of the material
objects on which they were taken; and when these were relics of
peculiar sanctity they were held to have the power of punishing the
perjurer, thus rendering the oath administered upon them an absolute
ordeal. This belief developed itself at an early period in the history
of the Church. St. Augustin relates that at Milan a thief, who swore
upon some holy relics with the intention of bearing false witness, was
forced irresistibly to confess himself guilty of the offence which he
designed to fasten upon another; and Augustin himself, when unable
to decide between two of his ecclesiastics who accused each other of
revolting crime, sent them both to the shrine of St. Felix of Nola, in
the full expectation that the judgment of God would bring to light the
truth as between them.[1174] Gregory the Great shows the same belief
when he alludes to a simple purgatorial oath taken by a bishop on the
relics of St. Peter in terms which expressly convey the idea that the
accused, if guilty, had exposed himself to no little danger, and that
his performance of the ceremony unharmed had sufficiently proved his
innocence. Gregory, moreover, in one of his Homilies, assumes that
perjury committed on the relics of the saints is punished by demoniacal
possession.[1175]
This was not a belief likely to be allowed to die out for lack
of nourishment. When, in the tenth century, Adaulfus, Bishop of
Compostella, was accused of a nameless crime, and was sentenced by the
hasty judgment of the king to be gored to death by a wild bull, he
had taken the precaution, before appearing at the trial, to devoutly
celebrate mass in his full pontificals. The bull, maddened with dogs
and trumpets, rushed furiously at the holy man; then, suddenly pausing,
advanced gently towards him and placed its horns in his hands, nor
could any efforts of the assistants provoke it to attack him. The
king and his courtiers, awed by this divine interposition in favor of
innocence, threw themselves at the feet of the saint, who pardoned them
and retired to the wildest region of the Asturias, where he passed
the rest of his days as an anchorite. He left his chasuble behind him,
however, and this garment thenceforth possessed the miraculous power
that, when worn by any one taking an oath, it could not be removed if
he committed perjury.[1176]
In other cases the shrines of saints convicted the perjurer by
throwing him down in an epileptic fit, or by fixing him rigid and
motionless at the moment of his invoking them to witness his false
oath.[1177] The monks of Abingdon boasted a black cross made from the
nails of the crucifixion, said to have been given them by the Emperor
Constantine, a false oath on which was sure to cost the malefactor
his life; and the worthy chronicler assures us that the instances in
which its miraculous power had been triumphantly exhibited were too
numerous to be specified.[1178] At the priory of Die, dependent on the
great Benedictine abbey of Fleury, there was preserved an arm-bone
of St. Maur, which was possessed of somewhat similar properties. On
one occasion a steward of the priory named Joscelin was accused of
embezzlement, and offered to rebut the evidence against him by an oath
taken on the arm of St. Maur. Rejoiced at passing through the test
triumphantly, he removed his hand from the relic, and stroking his long
beard with it he exclaimed, “By this beard, the oath I swore was true!”
when suddenly the beard came off in his hand, and his chin, thenceforth
hairless, was the evidence alike of his guilt and his perjury, so
that he and his descendants were at once proclaimed ineligible to the
stewardship.[1179] Less serious in its consequences was a false oath
taken by a peasant on the altar of St. Martial of Limoges. The offender
was deprived of speech, and could only bellow like an ox until he had
prayed over the tomb of the saint, and his throat had received the sign
of the cross from a priest.[1180] Even at the present day the jaw-bone
of St. Patrick is preserved near Belfast, and is used extra-judicially
as an ordeal, in the full conviction that the slightest variation from
the truth will bring instantaneous punishment on the perjurer,[1181]
and in Sardinia a similar oath on relics is believed when false to
flay the hand of the accused.[1182] In the Middle Ages these dangerous
relics were common, and however we may smile at the simplicity of the
faith reposed in them, we may rest assured that on many occasions they
were the means of eliciting confessions which could have been obtained
by no devices of legal subtlety according to modern procedures.
Nor did it always require death to confer the sanctity requisite to
perform these miracles, as was attested during the life of St. Bertrand
of Comminges. A woman accused of adultery went to the saint and laying
her hand on him swore to her innocence, when the hand immediately
withered and remained a permanent witness of her guilt and her
perjury.[1183]
Even without any special sanctity in the administration of the oath,
Heaven sometimes interposed to protect the rights of the Church. About
the year 1200 Cæsarius of Königswinter, a knight, who had borrowed
twenty marcs of his brother, Hirminold Dean of the Chapter of Bonn,
denied the loan after his brother’s death. As the money belonged to
the Church, the chapter summoned the knight, and having no proof, were
obliged to content themselves with his oath. Having accomplished his
perjury, Cæsarius mounted his horse and returned homewards, but when he
had accomplished the half of his journey his horse was suddenly fixed
immovable to the earth, and he found himself deprived of the use of the
tongue which he had thus abused. Recognizing the source of the trouble,
he prayed to Abraham, promising to retrace his steps and confess his
sin. He was immediately released, returned to Bonn, made restitution,
and accepted penance. He subsequently entered the monastery of
Heisterbach as a novice, and related the story of himself.[1184]
CHAPTER XIII.
POISON ORDEALS.
The poison ordeal, which forms the basis of judicial proceedings
among so many of the African tribes, seems not to have been brought
into Europe by the Aryan invaders, although it was in use among their
kindred who remained in the East. Possibly this may have arisen from
the fact that in their migrations they could no longer obtain the
substances which they had been accustomed to use, and before they had
familiarized themselves with the resources of their new homes the
custom may have fallen into desuetude amid the abundance of other
methods. A lingering remnant of it may perhaps be detected in the
trial of the priestess of the Gæum in Achaia, already alluded to, but
substantially the poison ordeal may be regarded as obsolete in the West.
In the East, however, it has continued in use. The poison prescribed
is that known as _sringa_, produced by a tree which grows in the
Himalayas, and the judge invokes it—
“On account of thy venomous and dangerous nature thou art destruction
to all living creatures; thou, O poison, knowest what mortals do not
comprehend.
“This man being arraigned in a cause desires to be cleared from guilt.
Therefore mayest thou deliver him lawfully from this perplexity.”
Seven grains of the substance, mixed with clarified butter, are then
administered; if no evil symptoms follow during the day, at evening
the accused is dismissed as innocent.[1185] A more recent authority
describes a somewhat different form. A specified quantity of some
deadly article, varying in amount with its activity, is mixed with
thirty times its weight of _ghee_, or clarified butter. The patient
takes this, standing with his face to the north, and if it produces no
effect upon him while the bystanders can clap their hands five hundred
times, he is pronounced innocent and antidotes are at once administered
to him.[1186] A slight variation of this is recorded by a writer
of the last century. After appropriate religious ceremonies, seven
barleycorns of the deadly root _vishanaga_, or of arsenic, are mingled
with thirty-two times its bulk of _ghee_, and eaten by the accused from
the hand of a Brahman. If it produces no effect, he is acquitted.[1187]
Much more humane was the custom described by Hiouen Thsang in the
seventh century, when the experiment was performed vicariously on
a bullock, even as a hen is used among the Niam-Niam of equatorial
Africa. The animal was fed with poisoned food, and poison was likewise
inserted in a wound made for the purpose in the right leg, while the
fate of the accused was determined by the death or survival of the
unlucky beast.[1188]
Still another form in modern times seems to have been invented as a
combination of the hot-water and poison ordeals. A _naga_ or cobra
is dropped into a deep earthen pot along with a coin or ring, which
the person on trial must remove with his hand. If he is bitten, he is
condemned; if he escapes scathless, he is acquitted.[1189]
CHAPTER XIV.
IRREGULAR ORDEALS.
The devout dependence upon Heaven, exhibited in the ordeal, did
not exhaust itself on the forms of trial described above, but was
manifested in various other expedients, sometimes adopted as legal
processes, and sometimes merely the outcome of individual credulous
piety. While therefore they cannot be regarded as forming part of the
recognized institutions of Europe, still they illustrate too clearly
the tendency of thought and belief to be entirely passed over.
Among these may be classed a practice which was substantially an
appeal to God to regulate the amount of punishment requisite for the
expiation of a crime. One or more bands of iron were not infrequently
fastened around the neck or arm of a murderer, who was banished until
by pilgrimage and prayer his reconciliation and pardon should be
manifested by the miraculous loosening of the fetter, showing that
soul and body were both released from their bonds.[1190] A case is
related of a Pole thus wandering with a circlet tightly clasped to each
arm. One fell before the intercession of St. Adalbert, the apostle
of Prussia, but the other retained its hold until the sinner came to
the shrine of St. Hidulf near Toul. There, joining in the worship
of the holy monks, the remaining band flew off with such force that
it bounded against the opposite wall, while the pardoned criminal
fell fainting to the ground, the blood pouring from his liberated
arm: a miracle gratefully recorded by the spiritual children of the
saint.[1191] Equally melodramatic in its details is a similar instance
of an inhabitant of Prunay near Orléans, laden with three iron bands
for fratricide. His weary pilgrimage was lightened of two by the
intercession of St. Peter at Rome, and the third released itself in
the most demonstrative manner through the merits of St. Bertin and St.
Omer.[1192] If the legend of St. Emeric of Hungary be true, the pope
himself did not disdain to prescribe this ordeal to the criminal whose
miraculous release caused the immediate canonization of the saint by
a synod in 1073.[1193] In France at one time we are told that this
penance or punishment was habitual in cases of parricide or fratricide,
when the rings or chains were wrought from the sword with which the
crime had been committed.[1194] Repentant sinners also frequently
bound themselves with iron rings and chains by way of penance, and the
spontaneous disruption of these, which sometimes occurred, was regarded
as a sign that God had pardoned the penitent.[1195] The shrine of St.
Nicetius at Lyons had a special reputation in these cases, and the
pile of broken rings and chains exhibited there in the sixth century
testified to the power of the saint’s intercession.[1196]
The spirit of the age is likewise manifested in an appeal to Heaven
which terminated a quarrel in the early part of the twelfth century
between St. Gerald, Archbishop of Braga, and a magnate of his diocese,
concerning the patronage of a church. Neither being inclined to yield,
at length the noble prayed that God would decide the cause by not
permitting the one who was in the wrong to live beyond the year, to
which St. Gerald assented; and in six months the death of the unhappy
noble showed how dangerous it was to undertake such experiments with
a saint.[1197] This, indeed, may be held to have warrant of high
authority, for when, in 336, Alexander Bishop of Constantinople
was about to engage in disputation with the arch-heretic Arius, he
underwent a long fast, and shut himself up for many days and nights
alone in his church praying to God, and finally supplicating that if
his faith were wrong he might not live to see the day of contest, while
if Arius were in error he likewise might be taken off in advance; and
the orthodoxy of the Nicene creed was confirmed miraculously by the
sudden and terrible death of Arius within a few days.[1198]
The error of the Arian doctrine of the Trinity was demonstrated by
another volunteer miracle about the year 510, when Deuterius the Arian
Bishop of Constantinople undertook to baptize a convert in the name of
the Father through the Son in the Holy Ghost, and was rebuked for using
this heretical formula by the sudden disappearance of all the water in
the font.[1199]
With these examples may be classed a trial of faith proposed by
Herigarius, one of the earliest Christian converts of Sweden, as
conclusive, though not so dangerous as that of Bishop Poppo. After
frequent disputes with his Pagan neighbors, he one day suggested, when
a storm was approaching, that they should stand on one side and he
on the other, and see which of them would get wet. The rain came down
in torrents and nearly drowned the heathen scoffers, while Herigarius
and a boy in his company serenely looked on, untouched by a single
drop.[1200]
When, at the end of the ninth century, the attacks of Rollo and his
Normans drove the monks of St. Martin of Tours to seek safety for
themselves and the priceless relics of their saint at Auxerre, the body
of St. Martin was deposited in the church of St. Germain near the tomb
of the latter. The miracles wrought by the newcomer speedily caused
a large influx of oblations which the strangers took to themselves.
The monks of St. Germain claimed an equal share on the ground that
the miracles were wrought by the combined merits of both saints. The
Touraingeois resisted the demand, and finally offered to decide the
question by taking a leper and placing him for a night between the
rival reliquaries. If he should in the morning be entirely cured, they
agreed to admit that both saints were concerned in the miracles, and
that the receipts should be shared; but if only one side of him was
restored to health then the saint on whose side he was cured should
have the credit and his monks the money. This was agreed to; the leper
was placed between the tombs, and both parties spent the night in
prayer. In the morning he was found with the half of him towards St.
Martin sound and well, while the side towards St. Germain had not been
in the least benefited. To remove any lingering doubts, he was then
turned around, and the other side was cured. The result was beyond
further question, and the monks of St. Martin were permitted to enjoy
in peace thenceforth the offerings of the faithful.[1201]
It occasionally happened that the direct interference of Heaven,
without the use of formulas, was volunteered to stay the blundering
hand of human justice. In 1219, near Cologne, a man was condemned
for theft and promptly hanged, but when the spectators supposed him
comfortably dead, he suddenly exclaimed, “Your labor is vain; you
cannot strangle me, for my lord bishop St. Nicholas is aiding me. I see
him.” Taking this for a convincing proof of his innocence, the crowd
at once cut him down, and he hastened to the church of Bruweiler to
give thanks for his miraculous escape.[1202] It is curious to observe,
however, that the pious contemporary narrator of this instance of the
power of St. Nicholas is careful to let us understand that the man may
have been guilty after all. St. Olaf of Norway once interfered in the
same way to support, during nine hours of suspension, a man unjustly
hanged on a false accusation of theft.[1203]
Heaven could also be directly appealed to without the intervention
of the hot iron or boiling water. A question of much importance to
northern Italy was thus settled in the tenth century, when Uberto of
Tuscany, driven into exile by Otho the Great, returned after a long
absence, and found his wife Willa with a likely boy whose paternity he
refused to acknowledge. After much parleying, the delicate question
was thus settled. A large assembly, consisting principally of
ecclesiastics, was convened, in which Uberto sat without anything to
distinguish him. The boy, who had never seen him, was placed in the
centre, and prayers were offered by all present that he should be led
by divine instinct to his father. The prayers were promptly answered,
for he rushed without hesitation to the arms of Uberto, who could no
longer indulge in unworthy doubts, and in time Ugo became the most
powerful prince of Italy.[1204]
There would appear to have been a form of ordeal known as the judgment
of the Holy Ghost, but its details are unknown. Pope Stephen VII.
employed it for the condemnation of the body of his predecessor Pope
Formosus, in 896. The corpse was dug up for the purpose, clad in papal
vestments, and brought before a synod of bishops; after condemnation,
the three fingers used in benediction were cut off, and it was cast
into the Tiber. After the murder of Stephen in 898, John IX. assembled
another council which annulled the condemnation and forbade such
proceedings in the future, for the unanswerable reason that a dead body
cannot vindicate itself, and the judgment was still further discredited
when the corpse was fished out of the river, and on being brought into
St. Peter’s all the sacred images there bowed to it. Whatever may have
been the judgment of the Holy Ghost it naturally became obsolete.[1205]
Perhaps the simplest and at the same time one of the most barbarous
of ordeals is prescribed in a MS. of the eleventh century for Jews
unlucky enough to be involved in controversies with Christians. The
Jew was made to stand up and his knees were closely bound together; a
collar made of brambles was placed around his neck, and a switch of
brambles, five cubits long and well furnished with thorns, was smartly
dragged between his thighs. If he escaped without a scratch he was
acquitted.[1206]
In the crazied effort to detect the all-pervading and secret crime
of witchcraft, a number of superstitious observances found currency
among the people which practically assumed the position of ordeals.
Thus in the latter half of the sixteenth century it was believed that
a fragment of earth from a grave, when sanctified in the Mass and
placed on the threshold of a church door, would prevent the egress of
any witch who might be within; and a similar power was attributed to a
splinter of oak from a gallows, sprinkled with holy water and hung up
in the church porch.[1207]
CHAPTER XV.
CONDITIONS OF THE ORDEAL.
The ordeal was thoroughly and completely a judicial process, ordained
by the law for certain cases, and carried out by the tribunals as
a regular form of ordinary procedure. From the earliest times, the
accused who was ordered to undergo the trial was compelled to submit to
it, as to any other decree of court. Thus, by the Salic law, a recusant
was summoned to the royal court; and if still contumacious, he was
outlawed and his property confiscated, as was customary in all cases
of contempt.[1208] The directions of the codes, as we have seen, are
generally precise, and admit of no alternative.[1209] Occasionally,
however, a privilege of selection was afforded between this and
other modes of compurgation, and also between the various forms of
ordeal.[1210]
There was, however, a remarkable exception to this enforcement of the
ordeal in a provision existing in some codes by which a man condemned
to it could buy himself off by compounding with his adversary. This
mode of adjustment was not extensively introduced, but it nevertheless
existed among the Anglo-Saxons,[1211] while among the Franks it was a
settled custom, permitted by all the texts of the Salic law, from the
earliest to the latest.[1212] By this a person condemned by the court
to undergo the ordeal could, by a transaction with the aggrieved party,
purchase the privilege of clearing himself by canonical purgation,
and thus escape the severer trial. He was bound to pay his accuser
only a portion of the fine which he would incur if proved guilty—a
portion varying with different offences from one-fourth to one-sixth
of the _wer-gild_. The interests of the tribunal were guarded by a
clause which compelled him to pay to the _grafio_, or judge, the full
_fredum_, or public fine, if his conscience impelled him to submit
to an arrangement for more than the legal percentage. Even as late
as 1229, by the Bohemian laws of Ottokar Premislas the accused could
escape the ordeal by paying seven deniers to the seigneur.[1213]
The circumstances under which its employment was ordered varied
considerably with the varying legislations of races and epochs; and to
enter minutely into the question of the power of the court to decree
it, or the right to demand it by the appellant or the defendant, would
require too much space, especially as this has already been discussed
at some length with regard to one of its forms, the wager of battle.
In India, the accused was required to undergo the risk of a fine if
he desired to force his adversary to the ordeal; but either party
could voluntarily undertake it, in which case the other was subject to
a mulct if defeated.[1214] The character of the defendant, however,
had an important bearing upon its employment. If he had already been
convicted of a crime or of perjury he was subject to it in all cases,
however trifling; if, on the other hand, he was a man of unblemished
reputation, he was not to be exposed to it, however important was the
case.[1215] In civil cases, however, it apparently was only employed
to supplement deficient evidence.—“Evidence consists of writings,
possession, and witnesses. If one of these is wanting, then one of the
ordeals is valid.”[1216]
In Europe there appears at times to have been a custom under which,
when the accused had escaped in the ordeal, the accuser was obliged to
undergo it. Thus in the Frisian law, when a man accused of theft proved
his innocence by the ordeal, the accuser was then obliged to clear
himself of the charge of perjury by a similar trial,[1217] but the
law fails to define what are their respective positions if the second
ordeal proves likewise innocuous. In the case of bier-right quoted
above from Scott’s Border Minstrelsy, this secondary ordeal seems to
have been to prove whether the accuser herself was not the guilty
person. In the heroic poems of the Elder Edda a similar trial appears
to be resorted to, as in the Frisian laws, only for the purpose of
showing the false witness borne by the accuser. When Gudrun the wife of
Atli is defamed as an adulteress by the concubine Herkia, and is forced
to the ordeal—
She to the bottom plunged
Her snow-white hand,
And up she drew
The precious stones.
“See now, ye men,
I am proved guiltless
In holy wise,
Boil the vessel as it may.”
Laughed then Atli’s
Heart within his breast
When he unscathed beheld
The hand of Gudrun.
“Now must Herkia
To the cauldron go,
She who Gudrun
Had hoped to injure.”
No one has misery seen
Who saw not that,
How the hand there
Of Herkia was hurt.
They then the woman led
To a foul slough.
So were Gudrun’s
Wrongs avenged.[1218]
Churchmen held that if the accused escaped in the ordeal the accuser
was guilty of perjury and homicide and must atone for it by public
penitence.[1219]
The absence of satisfactory testimony, rendering the case one not to
be solved by human means alone is frequently, as in India, alluded to
as a necessary element;[1220] and indeed we may almost assert that
this was so, even when not specifically mentioned, as far as regards
the discretion of the tribunal to order an appeal to the judgment of
God. Yet there were some exceptions to this, as in the early Russian
legislation, where the ordeal is prescribed for the accused in all
cases in which the accusation is substantiated by testimony;[1221]
and a law of King Ethelred seems to indicate that the plaintiff might
require his adversary to submit to it,[1222] while numerous examples
among those cited above authorize the conclusion that an offer on
the part of the accused was rarely refused, even when there was
strong evidence against him,[1223] though this laxity of practice was
occasionally objected to stoutly.[1224] When the custom was declining,
indeed, a disposition existed to require the assent of both parties
before the tribunal would allow a case to be thus decided.[1225] In
civil cases, we may assume that absence of testimony, or the consent of
both parties, was requisite to its employment.[1226]
The comfort which the system must have afforded to indolent judges
in doubtful cases is well exhibited by a rule in various ancient
codes, by which a man suspected of crime, even though no accuser came
forward, was thrown into prison and kept there until he could prove
his innocence by the ordeal of water.[1227] No testimony was required
save that of evil repute. Thus in Hungary, in the eleventh century, a
man who was regarded as a thief by the whole village was subjected to
the ordeal: if he was cleared, he paid the fee to the priest; if he
was convicted, all his property was confiscated.[1228] This, in fact,
was virtually the process adopted and systematized in England by the
Assizes of Clarendon in 1166. The grand jury was directed to present
all persons suspected of robbery, murder, theft, etc., when they were
promptly sent to the water ordeal to prove their innocence.[1229] Thus
it afforded an unfailing solution to all doubts and simplified greatly
the administration of criminal law, for it was equally applicable
to cases of individual prosecutions. In 1201, for instance, a widow
accuses a man of the murder of her husband and the court rejects her
appeal because it does not state that she saw the deed, but as the
jurors when interrogated say that the accused is suspected of the
crime, he is ordered at once to the ordeal.[1230]
We have seen above occasional instances in which the accuser or
plaintiff offered to substantiate his veracity by an appeal to the
ordeal. This was an established rule with regard to the wager of
battle, but not as respects the other forms of the judgment of God,
which were regarded rather as means of defence than of attack. Still
there are occasional instances of instructions for their employment by
the accusing party. In the primitive laws of Russia, an accuser who
could not substantiate his case with witnesses was obliged to undergo
the ordeal of red-hot iron.[1231] In England it seems to have been
within the discretion of the court to order it for either the accuser
or the accused. A very singular case is recorded in 1202, in which
Astin of Wispington accused Simon of Edlington of assaulting him and
putting out an eye, when the court adjudged the red-hot iron ordeal and
gave to the defendant the option whether he or the prosecutor should
undergo it; Simon naturally preferred that his antagonist should try
the dangerous experiment, and the result was that the case was settled
without it.[1232] We have already seen (p. 385) that in some places
where the accused succeeded in clearing himself by the ordeal the
accuser was obliged to undergo it in order to determine the question of
his perjury.
Sometimes the ordeal was employed in connection with compurgation,
both for prosecution and defence, to supplement the notorious
imperfections of that procedure. Thus Archbishop Hincmar directs
that cases of complaint against priests for dissolute life shall be
supported by seven witnesses, of whom one must submit to the ordeal
to prove the truth of his companions’ oaths, as a wholesome check
upon perjury and subornation.[1233] With a similar object, the same
prelate likewise enjoins it on compurgators chosen by the accused, on
his failing to obtain the support of those who had been selected for
him by his judge.[1234] Allied to this was a rule for its employment
which was extensively adopted, allowing the accused the privilege
of compurgation with conjurators in certain cases, only requiring
him to submit to the ordeal on his failing to procure the requisite
number of sponsors. Thus, in 794, a certain Bishop Peter, who was
condemned by the Synod of Frankfort to clear himself, with two or
three conjurators, of the suspicion of complicity in a conspiracy
against Charlemagne, being unable to obtain them, one of his vassals
offered to pass through the ordeal in his behalf, and on his success
the bishop was reinstated.[1235] That this was strictly in accordance
with usage is shown by a very early text of the Salic Law,[1236] as
well as by a similar provision in the Ripuarian code.[1237] Among
the Anglo-Saxons it likewise obtained, from the time of the earliest
allusion to the ordeal occurring in their jurisprudence, down to
the period of the Conquest.[1238] Somewhat similar in tendency was
a regulation of Frederic Barbarossa, by which a slave suspected of
theft was exposed to the red-hot iron unless his master would release
him by an oath.[1239] Occasionally it was also resorted to when the
accused was outsworn after having endeavored to defend himself by his
oath or by conjurators. Thus a canon of the Council of Tribur in 895
declares that if a man is so generally suspected that he is outsworn
in compurgation, he must either confess or submit to the hot-iron
ordeal.[1240] Popular belief evidently might give to the accuser a
larger number of men willing to associate themselves in the oath of
accusation than the defendant could find to join him in rebutting it,
and yet his guilt might not as yet be clear. In such cases, the ordeal
was a most convenient resort.
These regulations give to the ordeal decidedly the aspect of
punishment, as it was thus inflicted on those whose guilt was so
generally credited that they could not find comrades to stand up with
them at the altar as partakers in their oath of denial; and this is not
the only circumstance which leads us to believe that it was frequently
so regarded. This notion is visible in the ancient Indian law, where,
as we have seen, certain of the ordeals—those of red-hot iron, poison,
and the balance—could not be employed unless the matter at stake were
equivalent to the value of a thousand pieces of silver, or involved
an offence against the king;[1241] and it reappears in Europe in the
graduated scale of single and triple ordeals for offences of different
magnitudes. Such a scheme is so totally at variance with the theory of
miraculous interposition to protect innocence and punish guilt, that
we can only look upon it as a mode of inflicting graduated punishments
in doubtful cases, thus holding up a certain penalty _in terrorem_
over those who would otherwise hope to escape by the secrecy of their
crime—no doubt with a comforting conviction, like that of Legate
Arnaud at the sack of Béziers, that God would know his own. This same
principle is visible in a provision of the charter of Loudun, granted
by Louis le Gros in 1128, by which an assault committed outside of the
liberties of the commune could be disproved by a simple sacramental
oath; but if within the limits of the commune, the accused was obliged
to undergo the ordeal.[1242] In another shape we see it in the customs
of Tournay, granted by Philip Augustus in 1187, where a person accused
of assault with sharpened weapons, if there were no witnesses, was
allowed to purge himself with six conjurators if the affair occurred
in the daytime, but if at night, was obliged to undergo the water
ordeal.[1243] Further illustration is afforded by the principle,
interwoven in various codes, by which a first crime was defensible by
conjurators, or other means, while the _tiht-bysig_ man, the _homo
infamatus_, one of evil repute, whose character had been previously
compromised, was denied this privilege, and was forced at once to the
hot iron or the water. Thus, among the Anglo-Saxons, in the earliest
allusion to the ordeal, by Edward the Elder, it is provided that
perjured persons, or those who had once been convicted, should not be
deemed thereafter oath-worthy, but should be hurried to the ordeal; a
regulation repeated with some variations in the laws of Ethelred, Cnut,
and Henry I.[1244] The Carlovingian legislation establishes a similar
principle,[1245] while the canons of Burckhardt show it to be still in
force in the eleventh century.[1246] A hundred and fifty years later,
the legislation of Flanders manifests the same tendency, the code
granted to Bruges in 1190 providing that a first accusation of theft
should be decided by witnesses, while a second was to be met by the
cold-water ordeal.[1247] In the German municipal law of the thirteenth
century, the same principle is observable. A man who had forfeited
his legal privileges by conviction for theft or similar crimes was
no longer admitted to the oath, but on subsequent accusations was
compelled to choose between the hot iron, the cauldron, and a combat
with a champion; and similarly an officer of the mint issuing false
money was permitted the first time to swear to his ignorance, but on a
second offence he had to submit to the ordeal. In the codes in force
throughout Germany, indeed, previous suspicion was sufficient to send
the accused to the ordeal in place of the oath.[1248] The contemporary
jurisprudence of Spain has a somewhat similar provision, by which a
woman accused of homicide could not be exposed to the ordeal unless
she could be proved utterly abandoned, for which a curious standard
was requisite;[1249] while for more serious crimes, such as sorcery
or killing her husband, she was forced at once to the red-hot iron to
prove her innocence. In the legislation of Charlemagne there is an
elaborate provision, by which a man convicted seven times of theft was
no longer allowed to escape on payment of a fine, but was required to
undergo the ordeal of fire. If he succumbed, he was put to death; if
he escaped unhurt, he was not discharged as innocent, but his lord was
allowed to enter bail for his future good behavior[1250]—a mode at once
of administering punishment and of ascertaining whether his death would
be agreeable to Heaven. When we thus regard it as a penalty on those
who by misconduct had forfeited the confidence of their fellow-men, the
system loses part of its absurdity, in proportion as it departs from
the principle under which it was established.
There is also another aspect in which it is probable that the ordeal
was viewed by those whose common sense must have shrunk from it as a
simple appeal to the judgment of God. There can be little doubt that
it was frequently found of material use in extorting confession or
unwilling testimony. By the early codes, as in the primitive Greek and
Roman law, torture could be applied only to slaves, and the ordeal was
a legalized torture, applied under circumstances peculiarly provocative
of truth, and as such we occasionally find regulations which enable
the freeman to escape by compurgation, while the slave is required to
undergo the ordeal.[1251] The elaborate nature of the ritual employed,
with its impressive adjurations and exorcisms, was well fitted to
excite the imagination and alarm the conscience; sometimes, indeed,
to render it more effective, the mass celebrated was a mortuary one,
which when sung for a living man was popularly believed to possess
deadly powers of peculiar efficacy.[1252] In those ages of faith,
the professing Christian, conscious of guilt, must indeed have been
hardened who could undergo these awful rites, pledging his salvation
on his innocence, and knowing under such circumstances that the direct
intervention of Heaven could alone save him from having his hand boiled
to rags,[1253] after which he was to meet the full punishment of his
crime, and perhaps in addition lose a member for the perjury committed.
With such a prospect, all motives would conspire to lead him to a
prompt and frank acknowledgment in the early stages of the proceedings
against him. These views are strengthened by the fact that when, in
the thirteenth century, the judicial use of torture, as a means of
obtaining testimony and confession, was becoming systematized and
generally employed, the ordeal was falling into desuetude and rapidly
disappearing. The latter had fulfilled its mission, and the former was
a substitute better fitted for an age which reasoned more, believed
less, and at the same time was quite as arbitrary and cruel as its
predecessor. A further confirmation of this supposition is afforded by
the coincidence that the only primitive jurisprudence which excluded
the ordeal—that of the Wisigoths—was likewise the only one which
habitually permitted the use of torture,[1254] the only reference to
the ordeal in their code being a provision which directs its employment
as a preliminary to the more regular forms of torture.
In fact, the ordeal was practically looked upon as a torture by those
whose enlightenment led them to regard as a superstition the faith
popularly reposed in it. An epistle which is attributed both to Stephen
V. and Sylvester II. condemns the whole system on the ground that the
canons forbid the extortion of confessions by heated irons and boiling
water; and that a credulous belief could not be allowed to sanction
that which was not permitted by the fathers.[1255] When, therefore,
at the Council of St. Baseul, a priest named Adalger, in confessing
the assistance he had rendered to Arnoul of Reims during Charles of
Lorraine’s resistance to the usurpation of Hugh Capet, offered to
substantiate his testimony by undergoing the ordeal, he did it in terms
which show that he expected it to be regarded as a torture giving
additional weight to evidence—“If any of you doubt this and deem me
unworthy of belief, let him believe the fire, the boiling water, the
glowing iron. Let these tortures convince those who disbelieve my
words.”[1256] It is observable that he omits the cold-water as not
being a torture, just as in the ancient Indian law the limitation
referred to above as applicable to the red-hot iron, the poison, and
the balance, did not apply to the cold-water ordeal, or to that in
which was administered the water in which an idol had been dipped.[1257]
In the same way, some among the European ordeals, such as that of the
Eucharist, of bread and cheese, and bier-right, do not come within the
class of tortures, but they addressed themselves powerfully to the
conscience and imagination of the accused, whose callous fortitude no
doubt often gave way under the trial. In our own country, and almost
within our own time, the latter ordeal was revived in one instance
with this object, and the result did not disappoint the expectations
of those who undertook it. In the case of People _vs._ Johnson, tried
in New York in 1824, the suspected murderer was led from his cell to
the hospital where lay the body of the victim, which he was required
to touch. Dissimulation which had been before unshaken failed him at
the awful moment; his overstrung nerves gave way, and a confession was
faltered forth. The proceeding was sustained by court, and a subsequent
attempt at retraction was overruled.[1258] The powerful influence of
such feelings is shown in a custom which, as recently as 1815, was
still employed at Mandeure, near Mont-belliard, and which is said to
be even yet in use in some of the remoter districts of the Ardennes.
When a theft has been committed, the inhabitants are summoned to
assemble after vespers on Sunday at the place of judgment. There the
mayor calls upon the guilty person to make restitution and live in
isolation for six months. If this appeal prove fruitless, recourse is
had to the trial of the staff, in which two magistrates hold aloft a
piece of wood, under which every one is bound to pass. No instance, it
is said, is on record in which the culprit dares to do this, and he is
always left alone.[1259] Very similar to this is the use made of the
Clog Oir or golden bell of St. Senan, the founder of the monastery of
Inniscattery, at the mouth of the river Shannon, which was supposed
to have peculiar virtue in revealing culprits. A case occurred as
late as 1834, when a farmer, who had lost a sum of twenty pounds by a
burglary, had the bell brought to his house with much ceremony, and
the following Sunday was appointed for the whole parish to appear and
clear themselves upon it. On Saturday night, however, the stolen bank
notes were thrown through a window of his house.[1260] The method
described above (p. 334), as practised in Southern Russia to detect
household thieves, affords another example of the power exercised
over a guilty conscience. It is easy thus to imagine how the other
forms of ordeal may have conduced to the discovery of crime in ages
of lively superstition. A case occurring about the commencement of
the twelfth century is a fair illustration of the manner in which it
frequently worked on the imagination of those whose lives or fortunes
were at stake. André de Trahent, a vassal of the convent of St. Mary
of Saintes, claimed certain property belonging to the convent. On the
final hearing it was decreed that he must abandon his claim unless
he could prove it by oath and ordeal. This he agreed to do, and on
the appointed day he appeared with his men ready to undergo the
trial. As there were two pieces of property in question, two ordeals
were required. The caldrons of water were duly heated and André’s
men were prepared for the attempt, when his courage gave way; he
abruptly abandoned his claim and submitted himself to the mercy of the
abbess.[1261]
This case illustrates the fact that in the vulgar ordeals as well as in
the duel champions were sometimes allowed. To how great an extent this
was permitted it would now be difficult to assert. It is not specially
alluded to in any body of laws, but numerous examples of it have been
incidentally given above, and in some of the _ordines_ it is assumed as
a matter of course. In one for the cold-water ordeal the substitutes
are described as children who are made to fast for forty days in
advance, and carefully watched and washed to prevent any illusions
of the devil.[1262] In the ordeal of the cross, however, it was a
recognized privilege of the old or infirm to put forward a substitute,
and when communities or churches were pleaders a champion was of course
a necessity. A still greater relaxation, occasionally permitted but
not approved by the Church, was the practice of writing the name of
the accused on paper or some other substance and submitting this to
the ordeal in place of the individual himself.[1263] Perhaps the most
illogical use of a champion in an ordeal is one suggested by Hincmar of
Reims in 860, that a satisfactory person should undergo it in order to
determine whether the secret motive alleged by another person for not
living with his wife were true or not.[1264]
CHAPTER XVI.
CONFIDENCE REPOSED IN THE ORDEAL.
The degree of confidence really inspired by the results of the ordeal
is a somewhat curious subject of speculation on which definite opinions
are not easily reached. Judicially, the trial was, for the most part,
conclusive; he who had duly sunk under water, walked unharmed among
the burning shares, or withdrawn an unblistered hand from a caldron of
legal temperature, stood forth among his fellows as innocent. So, even
now, the verdict of a few fools or knaves in a jury-box may discharge a
criminal, against the plainest dictates of common sense, but in neither
case would the sentiments of the community be probably changed by the
result. The reverential feelings which alone could impart faith in
the system seem scarcely compatible with the practice of compounding
for ordeals, which, as we have seen above (p. 384), was occasionally
permitted.
Charlemagne, at the commencement of his reign, does not seem to have
entertained much respect for the judgment of God when he prescribed
the administration of the ordeal for trifling affairs only, cases
of magnitude being reserved for the regular investigation of the
law.[1265] Thirty years later, the public mind appears afflicted with
the same doubts, for we find the monarch endeavoring to enforce
confidence in the system by his commands.[1266] The repeated use of
the ordeal in the affair of the divorce of Teutberga shows that it was
expected to have no little effect on public opinion, and the same is
seen when in 876 Charlemagne’s grandson, Louis of Saxony, forced to
defend his dominions against his uncle Charles le Chauve, commenced
by proving the justness of his title by the judgment of God. After
fasting and prayer ten of his followers were exposed to the ordeal
of red-hot iron and ten each to those of cold and boiling water; all
escaped without injury, and the righteousness of the verdict was shown
soon after by the victory of Andernach, which sent the invader flying
back to France.[1267] Yet a rule of English law, nearly four hundred
years later, during the expiring struggles of the practice, would show
that the result was regarded as by no means conclusive. By the assizes
of Clarendon in 1166, which directed that all malefactors defamed for
murder, robbery, and other felonies should be at once tried by the
water ordeal, it was provided that those who had confessed or who had
been found in possession of stolen property should not be allowed the
privilege of clearing themselves in this manner; and a still more
irreverential rule decreed that those who were pronounced innocent by
the judgment of God, if regarded as guilty by common report, should
have eight days to quit the kingdom, under pain of outlawry.[1268] In
the revision of these laws, made at Northampton ten years later, it was
provided that in all cases those who passed safely through the ordeal
should give bail for their future good conduct, except in charges of
murder or aggravated felony, when they were banished within forty
days, under penalty of outlawry as before.[1269]
St. Ivo of Chartres, though he had no scruple in recommending and
enjoining the ordeal for laymen, and, on one occasion at least,
pronounced its decisions as beyond appeal, yet has placed on record his
conviction of its insufficiency, and his experience that the mysterious
judgment of God not infrequently allowed in this manner the guilty to
escape and the innocent to be punished.[1270] A case related by Peter
Cantor in the twelfth century shows how recklessly it often was abused
as a relief to careless judges in doubtful cases. Two Englishmen were
returning in company from a pilgrimage to the Holy Land, when one of
them wandered off to the shrine of St. Jago de Compostella, and the
other went directly home. The kindred of the absent one accused the
latter of murdering his companion; as no evidence was procurable on
either side, he was hurried to the ordeal, convicted, and executed,
shortly after which the missing man came back in safety.[1271]
The manifest injustice of the decisions thus rendered by the ordeal put
a severe strain on the faith of believers, and led them to the most
ingenious sophistry for an explanation. When, in 1127, the sacrilegious
murder of Charles the Good, Count of Flanders, sent a thrill of
horror throughout Europe, Lambert of Redenberg, whose participation
in the crime was notorious, succeeded in clearing himself by the hot
iron. Shortly afterwards he undertook the siege of Ostbourg, which
he prosecuted with great cruelty, when he was killed in a sally of
the besieged. The pious Galbert assumes that Lambert, notwithstanding
his guilt, escaped at the ordeal in consequence of his humility and
repentance, and philosophically adds: “Thus it is that in battle the
unjust man is killed, although in the ordeal of water or of fire he may
escape, if truly repentant.”[1272] The same doctrine was enunciated
under John Cantacuzenes, in the middle of the fourteenth century, by
a bishop of Didymoteichos in Thrace. A frail fair one being violently
suspected by her husband, the ordeal of hot iron was demanded by him.
In this strait she applied to the good bishop, and he, being convinced
of her repentance and intention to sin no more, assured her that in
such a frame of mind she might safely venture on the trial, and she
accordingly carried the glowing bar triumphantly twice around the
bishop’s chair, to the entire satisfaction of her lord and master.[1273]
In fact it was a recognized doctrine of the Church that confession,
contrition, and absolution so thoroughly washed away a sin that
a culprit thus prepared could safely tempt the justice of God. A
case related by Cæsarius of Heisterbach as a most edifying example
illustrates the curious nature of the superstition thus inculcated
by the religious teachers of the period. In the diocese of Utrecht a
fisherman notoriously maintained illicit relations with a woman, and
fearing to be called to account for it by an approaching synod, where
he would be convicted by the red-hot iron, and be forced to marry her,
he consulted a priest. This ghostly counsellor advised him that, if he
was firmly resolved to sin no more, he could safely deny the fact and
endure the ordeal, after receiving absolution. The event verified the
prediction; he carried the burning iron unhurt, and to the surprise
of all the country round he was acquitted. Shortly afterwards, while
in his boat, a companion expressed his wonder, when the fisherman,
whose short-lived repentance was already over, boastingly struck his
hand on the water, exclaiming, “It hurt me no more than that!” By the
marvellous justice of God, the water was to him as red-hot iron, and
as he hastily withdrew his hand the skin peeled off in strips.[1274]
Even as late as 1539, the learned Ciruelo reproves the use of ordeals
because the accused, though innocent of the special crime at issue, may
succumb in consequence of other offences; or though guilty may escape
because he has confessed and received absolution; and he states that he
had personally known more than one case in which women, rightly accused
of adultery by their husbands and forced to undergo the ordeal, had
thus succeeded in being acquitted.[1275]
This doctrine of Ciruelo’s that the innocent were sometimes liable to
conviction on account of previous misdeeds was likewise a belief of old
standing. We have already seen (p. 137) that there was papal authority
for it in the wager of battle. A striking instance of the vague notions
current is afforded in the middle of the eleventh century by a case
related by Othlonus, in which a man accused of horse-stealing was tried
by the cold-water ordeal and found guilty. Knowing his own innocence,
he appealed to the surrounding monks, and was told that it must be in
consequence of some other sin not properly redeemed by penance. As he
had confessed and received absolution before the trial, he denied this,
till one of them pointed out that in place of allowing his beard to
grow, as was meet for a layman, he had impiously carried the smooth
chin reserved for ecclesiastics. Confessing his guilt, promising due
penance, and vowing never to touch his beard with a razor again, he
was conducted a second time to the water, and being now free from all
unrepented sin, he was triumphantly acquitted. It is added that, taking
advantage of a quibble as to the kind of instrument employed, he lapsed
again into the sin of shaving, when the anger of Heaven manifested
itself by allowing him to fall into the hands of an enemy, who put out
his eyes.[1276]
Yet, on the other hand, the ordeal sometimes was regarded as the most
satisfactory kind of proof, entitled to respect beyond any other
species of evidence. The age was not logical, men acted more from
impulse than from reason, and the forms of jurisprudence were still
in a state too chaotic for regular and invariable rules to be laid
down. The confusion existing in the popular mind is well illustrated
by a case occurring in the twelfth century. A serf of the Abbey of
Marmoutiers married a serf who had been given by the Viscount of
Blois to one of his retainers named Erbald. The husband purchased
his wife’s liberty, and by paying an additional sum had the deed of
manumission confirmed by the viscount and viscountess. Years passed
away, the serf and wife died, and then also their son, when their
property fell to the abbey, which enjoyed it until the heirs of
Erbald and the viscount claimed it. The monks produced the deeds of
manumission, and the viscountess, then the only surviving witness to
the transaction, testified to its authenticity, but to no purpose. The
claimants demanded the wager of battle, and the monks, in refusing
this as unsuited to their calling, were obliged to produce a man who
offered to undergo the ordeal of red-hot iron to prove the validity of
the deed. Then the claimants at last desisted, but still succeeded in
extorting sixteen livres from the abbey as the price of appending their
signatures to the controverted deed.[1277]
In general, however, as the result depended mostly upon those who
administered the ordeal, it conferred an irresponsible power to release
or to condemn, and it would be expecting too much of human nature
to suppose that men did not yield frequently to the temptation to
abuse that power. When Sigurd Thorlaksson was accused by Saint Olaf
the King of the murder of his foster-brother Thoralf, and offered to
clear himself by the red-hot iron, King Olaf accepted his offer, and
appointed the next day for the trial at Lygra, where the bishop was
to preside over it. When Sigurd went back at night to his ship, he
said to his comrades that their prospects were gloomy, for the king
had probably caused himself the death of Thoralf, and then brought
the accusation against them, adding, “For him, it is an easy matter
to manage the iron ordeal so that I doubt he will come ill off who
tries it against him;” whereupon they hoisted sail in the darkness and
escaped to their home in the Faroe Islands.[1278] The collusion thus
hinted at must often have been practised, and must have shaken the most
robust faith, and this cause of disbelief would receive additional
strength from the fact that the result itself was not seldom in doubt,
victory being equally claimed by both parties. Of this we have already
seen examples in the affairs of the lance of St. Andrew and of the
Archbishop of Milan, and somewhat similar is an incident recorded by
the Bollandists in the life of St. Swithin, in which, by miraculous
interposition, the opposing parties beheld entirely different results
from an appeal to the red-hot iron.[1279]
Efforts of course were made from time to time to preserve the purity
of the appeal, and to secure impartiality in its application. Clotair
II., in 595, directs that three chosen persons shall attend on each
side to prevent collusion;[1280] and among the Anglo-Saxons, some four
hundred years later, Ethelred enjoins the presence of the prosecutor
under penalty of loss of suit and fine of twenty _ores_, apparently for
the same object, as well as to give authenticity to the decision.[1281]
So in Hungary, the laws of St. Ladislas, in 1092, direct that three
sworn witnesses shall be present to attest the innocence or guilt of
the accused as demonstrated by the result.[1282] A rule announced by
the Council of Grateley in 928, that if the accused is accompanied by
more than twelve comrades he shall be adjudged as though he had failed
in the ordeal, points to an obvious source of miscarriage of justice
by which a crowd of partisans could interfere with the proceedings and
then proclaim that the result had been successful.[1283] A law adopted
by the Scottish Parliament under William the Lion, in the second
half of the twelfth century, shows that corruption was not uncommon,
by forbidding those concerned in the administration of ordeals from
receiving bribes to divert the course of justice,[1284] and a further
precaution was taken by prohibiting the Barons from adjudging the
ordeal without the intervention of the sheriff to see that law and
justice were observed.[1285]
In spite of all that we have seen, the ordeal, with its undoubted
cruelty, was not as cruel as it appears to us, and in its practical
results it probably acquitted the guilty far more often than it
convicted the innocent. Mr. Maitland tells us that in his researches
in the English records from 1201 till the abolition of the ordeal in
1219—a period in which, as stated above (p. 387), it was in constant
use—he has found but one instance in which it failed to clear the
accused.[1286] It is true that the cold-water ordeal was the one most
freely resorted to, but the red-hot iron was also freely employed, and
the one case of failure occurred in the water ordeal. At this distance
of time it would be useless to frame a positive explanation of this,
although bribery and collusion of course naturally suggest themselves
in the notorious and almost universal corruption of the period.
Contemporaries reconciled themselves to this as best they could, but
while relying comfortably upon the inscrutable judgment of God, and the
preservative power of contrition and confession, they were not without
other solutions of the problem.
We have seen that in the judicial duel magic arts were popularly
supposed to have power to control the interposition of God. This was
likewise the case with the vulgar ordeals, and in addition a special
power was attributed to the use or abuse of the holy chrism. The
Council of Tours, in 813, informs us that it was generally believed
that a criminal who drank the chrism or anointed himself with it could
not be convicted by any ordeal.[1287] So serious indeed was this
considered that Charlemagne in 809 decreed that a priest giving out the
chrism for this purpose should not only be degraded but should lose a
hand—a law which long continued in force, nominally at least.[1288]
The belief was not ephemeral, for until the early part of the twelfth
century a canon was carried through all the collections which speaks
of the matter as a fact proved by experience.[1289] The superstition
probably died out towards the middle of the century when the number
of sacraments was increased from three to seven, and the comparative
importance of the chrism was thus diminished in the popular eyes. The
belief that the judgment of God could be perverted or eluded by magic
arts still continued, however, and precautions were commonly taken to
prevent their use.[1290] Holy water, moreover, was lavishly sprinkled
on the materials employed in the ordeal and on the patient, and was
given to him to drink to prevent diabolic illusions by which it was
imagined that the purposes of God could be defeated.[1291]
Precautions also were taken to guard against processes by which, in the
fire ordeals, it was believed that the human frame could be rendered
incombustible, and for this object a widely prevailing custom required
that for three days previous the hand should be wrapped up to guard
against its being thus fortified.[1292] The nature of these unguents
may be guessed from a prescription given by Albertus Magnus, consisting
of mallow and radish juice, white of egg, lime, and “psillus” seeds,
the use of which he assures us will enable a man with impunity to enter
the flames or to carry red-hot iron.[1293] Doubtless reliance on some
such expedients may partially explain the readiness with which the
ordeal was undertaken.
CHAPTER XVII.
THE CHURCH AND THE ORDEAL.
The relation of the Church to the vulgar ordeals presents even a more
complex question than that which has already been discussed of its
connection with the judicial combat. The ordeals were less repugnant to
its teachings and more completely dependent upon its ministrations, for
while a duel might be fought without the aid of a priest the efficacy
of an ordeal depended wholly upon the religious rites which gave it
the sanction of a direct invocation of the Almighty.
We have seen above that the Church readily accepted the pagan practices
of its Barbarian converts, and gave them fresh claim to confidence by
surrounding them with the most impressive solemnities of the faith.
Notwithstanding the worldly advantage derivable from this policy,
there were some minds superior to the superstition or the cunning of
their fellows. Even as early as the commencement of the sixth century,
Avitus, Bishop of Vienne, remonstrated freely with Gundobald on account
of the prominence given to the battle ordeal in the Burgundian code;
and some three centuries later, St. Agobard, Archbishop of Lyons,
attacked the whole system in two powerful treatises, which in many
points display a breadth of view and clearness of reasoning far in
advance of his age.[1294] Shortly after this we find an echo of these
arguments in some utterances of the papacy, such as the disapproval
of the lot by Leo IV. (p. 353), of the duel by Nicholas I. (p. 207),
and the more general condemnation by Stephen V. (p. 395), while on the
other hand we have seen (p. 382) the ordeal adopted by Stephen VII. in
the trial of his predecessor Formosus.
Whether the Holy See condemned or approved the judgment of God was a
matter of the utmost indifference to the Church at large. The universal
use of the ordeal, involving as it did the indispensable employment
of priestly ministrations, shows sufficiently that no ecclesiastic
hesitated to sanction it, and that practically it had the universal
sympathy and support of the Church. Nor was this left to be merely
a matter of inference, for the local churches had no scruple in
advocating and prescribing it in the most authoritative manner. In
799 the Council of Salzburg ordered the red-hot iron for the trial of
witches and necromancers.[1295] In 810, Ahyto, Bishop of Basle, could
suggest no other mode of determining doubtful cases of consanguinity
between husband and wife.[1296] In 853, the Synod of Soissons ordered
Burchard, Bishop of Chartres, to prove his fitness for the episcopal
office by undergoing the ordeal.[1297] Hincmar, Archbishop of Reims,
lent to it all the influence of his commanding talents and position;
the Council of Mainz in 888, and that of Tribur near Mainz in 895,
recommended it; that of Tours in 925 ordered it for the decision of a
quarrel between two priests respecting certain tithes;[1298] the synod
of the province of Mainz in 1028 authorized the hot iron in a case of
murder;[1299] that of Elne in 1065 recognized it; that of Auch in 1068
confirmed its use; a penitential of the same period in Bohemia ordered
the ordeal for those who pleaded ignorance when accused of marrying
within the prohibited degrees;[1300] Burckhardt, Bishop of Worms, whose
collection of canons enjoyed high authority, in 1023 assisted at the
Council of Selingenstadt, which directed its employment, and in his
penitential he prescribes five years’ penance for endeavoring by magic
arts to escape conviction by it—a practice which, as we have seen,
was not uncommon.[1301] The synod of Gran, in 1099, decided that the
ordeal of hot iron might be administered during Lent, except in cases
involving the shedding of blood.[1302] Moreover, we find St. Bernard
alluding approvingly to the conviction and martyrdom of heretics by
the cold-water process,[1303] of which Guibert de Nogent gives us an
instance wherein he aided the Bishop of Soissons in administering it
to two backsliders with complete success.[1304] In 1157 the red-hot
iron ordeal was prescribed by the Council of Reims for all persons
accused of belonging to the fast-growing sect of the Cathari or
Manichæans, whose progress was alarming the Church;[1305] and in 1167
two heretics at Vezelai were tried by cold water in the presence of
the Archbishop of Lyons and two bishops, when, singularly enough, they
escaped.[1306] In 1172 a learned clerk named Robert was involved in a
debate with a knight on the delicate question whether the Eucharist
became corrupted when voided from the body: he was accused as a heretic
to the Bishop of Arras, who called in the Archbishop of Reims and
numerous clerks to try him. Robert was so confident of his innocence
that he offered to undergo the hot-iron ordeal, but his guilt was
miraculously shown when burns appeared not only on the right hand that
carried the iron, but also on the left hand, on both feet, both sides
and on his chest and belly, wherefore he was promptly burned alive as
a heretic.[1307] Other cases, moreover, are related by Peter Cantor,
in which good Catholics were successfully convicted of heresy in this
manner, and one instance presents a curious view of the singular
confusion which existed in judicial logic at the time. A poor fellow
who professed the most entire orthodoxy, and against whom there was no
proof, was ordered to carry the red-hot iron. This he refused unless
the assembled bishops would prove that he could do so without incurring
mortal sin by tempting God. This they were unable to accomplish, so all
unpleasant doubts were settled by promptly having him burnt.[1308] Even
after the Lateran Council of 1215, some miracles related by Cæsarius of
Heisterbach show that the conviction of heretics by the hot iron was
regarded as a matter of course,[1309] and a penitential of a somewhat
later period complains that suspected heretics on trial had no other
means of proving their orthodoxy or their conversion to the true faith.
It also mentions a curious custom prevalent in some places that where
there was doubt as to a man having died in grace, his friends had to
prove his penitence by undergoing the cold-water ordeal before he was
admitted to Christian sepulture.[1310]
Prelates, moreover, were everywhere found granting charters containing
the privilege of conducting trials in this manner. It was sometimes
specially appropriated to members of the Church, who claimed it, under
the name of _Lex Monachorum_, as a class privilege exempting them
from being parties to the more barbarous and uncanonical wager of
battle,[1311] and in 1061 a charter of John, Bishop of Avranches, to
the Abbot of Mont S. Michel, alludes to hot water and iron as the only
mode of trying priests charged with offences of magnitude.[1312] St.
Ivo of Chartres, who denied the liability of churchmen to the ordeal,
admitted that it could be properly used on laymen, and even pronounces
its result to be beyond appeal.[1313] Pope Calixtus II. in 1119 gave
his sanction to it at the Council of Reims, and soon afterwards at
the Council of Chartres he admitted the red-hot iron to decide a
case of alleged violation of the right of asylum in a church.[1314]
About the same time the learned priest, Honorius of Autun, specifies
the benediction of the iron and water of the ordeal as part of the
legitimate functions of his order;[1315] and even Gratian, in 1151,
hesitates to condemn the whole system, preferring to consider the
canon of Stephen V. as prohibiting only the ordeals of hot water and
iron.[1316]
The Church, in fact, lent its most impressive ceremonies to enhance
the effect on the popular mind of these trials. An _Ordo_ or Ritual,
of about the year 1100, informs us that when any one accused of theft
or adultery or other crime refused to confess, the priest was to go to
the church, put on his sacred vestments, except the chasuble, and then,
holding the gospels and chrismatory, the chalice and paten and relics
of saints, he from the vestibule summoned the people, while forbidding
the accused, if guilty, and any of his accomplices to enter. At the
same time he designated the spot in the vestibule where the fire was
to be built to heat the caldron or the ploughshares, and sprinkled
them all with holy water to prevent diabolical illusions. Then the
accused entered. He was first required to forgive all offences as he
hoped for pardon; he made confession of his sins and accepted penance,
while the penitential psalms were sung customary for penitents on Ash
Wednesday; if there was suspicion as to his faith he was made to swear
on the altar his reliance on God rather than on the devil to manifest
his innocence in the ordeal. Mass was then celebrated and communion
was administered to him under the tremendous adjuration, “May the body
and blood of our Lord Jesus Christ be unto thee a proof!” After this
the priest led the people to the spot where the trial was to take
place. Prayers were uttered to God to render judgment, litanies and
psalms were sung, the material of the ordeal, whether iron or hot or
cold water, was blessed with an adjuration that it would be the means
of rendering a just verdict, and the accused was exorcised with an
adjuration to abandon the trial if he was conscious of guilt. Then the
oath was administered to him, and he took hold of the glowing iron, or
plunged his hand into the seething caldron, or was bound and cast into
the water. Nothing was omitted that would add to the effectiveness of
the prolonged ritual, and throughout it was in the hands of the priest;
the secular tribunal effaced itself and abandoned the whole conduct of
the affair to the Church.[1317]
Gradually, however, the papacy ranged itself in opposition to the
ordeal. After a silence of nearly two centuries, Alexander II., about
1070, denounced it as a popular invention, destitute of canonical
authority, and forbade its use for ecclesiastics.[1318] This was a
claim which had already in the eighth century been advanced in England
by Ecgbehrt, Archbishop of York, who piously declared that their oath
on the cross was sufficient for acquittal, and that if guilty their
punishment must be left to God.[1319] About the year 1000, St. Abbo
of Fleury revived this assertion of exemption,[1320] and a century
later St. Ivo of Chartres insisted on it.[1321] As we have seen, these
demands for clerical immunity were wholly disregarded, but they serve
as a key to the motive of the papal opposition to the ordeal which
developed itself so rapidly in the second half of the twelfth century.
The Church had long sought, with little practical result, to emancipate
the clergy from subjection to the secular law. This was one of the
leading objects of the forgers of the Pseudo-Isidorian decretals; it
had met with promising success at the time;[1322] in the confusion
of the tenth and eleventh centuries it had well-nigh been forgotten,
but now it was revived and insisted on with a persistent energy which
won the victory in the thirteenth century. When this point was gained
and ecclesiastics were relieved from ordeals and duels, the next step
was inevitably to extend the prohibition to the laity. The papal
battle was really fought for the advantage of the clergy, but the
clergy was ranged in opposition because the prospective benefit seemed
inadequate to compensate for present loss. The local churches found in
the administration of the ordeal a source of power and profit which
naturally rendered them unwilling to abandon it at the papal mandate.
Chartered privileges had accumulated around it, such as we have already
seen in the case of the judicial duel, and these privileges were shared
or held by prelates and churches and monasteries. Thus in 1148 we find
Thibaut the Great of Champagne making over to the church of St. Mary
Magdalen the exclusive right of administering the oaths required on
such occasions in the town of Chateaudun;[1323] and in 1182 the Vicomte
de Béarn conferred on the Abbey de la Seauve the revenue arising from
the marble basin used for the trial by boiling water at Gavarret.[1324]
In the statutes of King Coloman of Hungary, collected in 1099, there is
a provision prohibiting the administration of the ordeal in the smaller
churches, and reserving the privilege to the cathedral seats and other
important establishments.[1325]
According to a grant from Péregrin de Lavedan to the monastery of
Saint-Pé, in Bigorre, the fee for administering the hot-water ordeal
was five crowns, of which two were paid to the monastery, two to the
cathedral at Tarbes, and one to the priest who blessed the water and
stone.[1326] By the laws of St. Ladislas of Hungary, in 1092, the
stipend of the officiating priest for the red-hot iron was double that
which he received for the water ordeal;[1327] in Bohemia the laws of
Otto Premizlas in 1229 give the priest a fee of fourteen deniers for
the latter.[1328] How rigidly these rights were enforced is shown in
a case related by Peter Cantor in the twelfth century. A man accused
of crime was sentenced to undergo the ordeal of cold water. When
stripped and bound and seated on the edge of the tank, the prosecutor
withdrew the suit, but the official of the court refused to release the
accused until he should pay fees amounting to nine livres and a half.
A long wrangle ensued, until the defendant declared that he would pay
nothing, but would rather undergo the ordeal, and, after establishing
his innocence, would give fifty sols to the poor. He was accordingly
thrown in and sank satisfactorily, but on being drawn out was met with
a fresh claim from the officiating priest, of five sols, for blessing
the water.[1329]
As these fees were paid, sometimes on conviction and sometimes on
acquittal, there was danger that, even without direct bribery,
self-interest might affect the result. Thus by the acts of the Synod
of Lillebonne, in 1080, a conviction by the hot-iron ordeal entailed
a fine for the benefit of the bishop;[1330] and it was apparently to
prevent such influences that the Swedish code, compiled by Andreas
Archbishop of Lunden early in the thirteenth century, made the
successful party, whether the prosecutor or defendant, pay the fee
to the officiating priest—a regulation sufficiently degrading to the
sacerdotal character.[1331] But besides these pecuniary advantages,
the ordeal had a natural attraction to the clergy, as it afforded the
means of awing the laity, by rendering the priest a special instrument
of Divine justice, into whose hands every man felt that he was at any
moment liable to fall; while, to the unworthy, its attractions were
enhanced by the opportunities which it gave for the worst abuses. From
the decretals of Alexander III. we learn authoritatively that the
extortion of money from innocent persons by its instrumentality was a
notorious fact[1332]—a testimony confirmed by Ekkehardus Junior, who,
a century earlier, makes the same accusation, and moreover inveighs
bitterly against the priests who were wont to gratify the vilest
instincts in stripping women for the purpose of exposing them to the
ordeal of cold water.[1333]
With all these influences, moral and material, to give to the local
clergy a direct interest in the maintenance of the ordeal, it is no
wonder that they battled resolutely for its preservation. In this,
however, as in so many other details of ecclesiastical policy,
centralization triumphed. When the papal authority reached its
culminating point, a vigorous and sustained effort to abolish the
whole system was made by the popes who occupied the pontifical throne
from 1159 to 1227. Nothing can be more peremptory than the prohibition
uttered by Alexander III.,[1334] who sought moreover to enlist on his
side the local churches by stigmatizing as an intolerable abuse the
liability which in Sweden forced the highest prelates to submit to the
red-hot iron ordeal.[1335] About the same time we find the celebrated
Peter Cantor earnestly urging that it was a sinful tempting of God and
a most uncertain means of administering justice, which he enforces by
numerous instances of innocent persons who, within his own knowledge,
had been condemned by its means and put to death; and he declares
that any priest exorcising the iron or water, or administering the
oaths preliminary to the judicial duel, is guilty of mortal sin.[1336]
Somewhat earlier than this, Ekkehard Bishop of Munster took the same
ground when he refused to his steward Richmar permission to undergo the
red-hot iron ordeal in order to convert the Jew, Hermann of Cologne;
it would be, he said, a tempting of God.[1337] A different reason was
given when Albero, a priest of Mercke near Cologne, offered to pass
through fire to prove the orthodoxy of his teaching that the sacraments
were vitiated in the hands of sinful priests, and his request was
refused on the ground that skilful sorcery might thus lead to the
success of a flagrant heresy.[1338] In 1181, Lucius III. pronounced
null and void the acquittal of a priest charged with homicide, who had
undergone the water ordeal, and ordered him to prove his innocence with
compurgators, giving as a reason that all such “peregrina judicia”
were prohibited.[1339] Even more severe was the blow administered by
Innocent III. early in the thirteenth century. At Albenga, near Genoa,
a man suspected of theft offered to prove his innocence by the red-hot
iron, and agreed to be hanged if he should fail. The ordeal took place
in the presence of the bishop and judge; the man’s hand was burnt and
after some consultation the bishop ordered him to be hanged. When
Innocent heard of this he promptly had the bishop deprived of his see
and a successor elected; his decision in this case was carried into
the canon law as a precedent to be followed.[1340] In 1210, moreover,
when Bishop Henry of Strassburg was vigorously persecuting heresy and
convicting heretics by the ordeal, one of them named Reinhold hurried
to Rome and returned with a letter from Innocent forbidding it for the
future; ordeals might be adjudged, he said, by the secular tribunals,
but they were not admissible in ecclesiastical judgments.[1341] Still
more effective was his action when, under his impulsion, the Fourth
Council of Lateran, in 1215, formally forbade the employment of any
ecclesiastical ceremonies in such trials.[1342] As the moral influence
of the ordeal depended entirely upon its religious associations, a
strict observance of this canon must speedily have swept the whole
system into oblivion. Yet shortly after this we find the inquisitor
Conrad of Marburg employing in Germany the red-hot iron as a means of
condemning his unfortunate victims by wholesale, and the chronicler
relates that, whether innocent or guilty, few escaped the test.[1343]
The canon of Lateran, however, was actively followed up by the papal
legates, and the system may consequently be considered to have fairly
entered on its decline.
So far as the Church was concerned its condemnation was irrevocable.
By this time the papacy had become the supreme and unquestioned
legislator. The compilation of papal decrees known as the Decretals
of Gregory IX., issued in 1234, was everywhere accepted as the “new
law” of binding force, and in it the compiler, St. Ramon de Peñafort,
had sedulously inserted the prohibitions so repeatedly issued during
the preceding three-quarters of a century. These prohibitions were no
longer construed as limited to ecclesiastics; the whole system was
condemned. St. Ramon himself in his _Summa_, which had immense and
lasting authority, had no hesitation in denouncing all ordeals as an
accursed invention of the devil.[1344] His contemporary, Alexander
Hales, whose reputation as a theologian stood unrivalled, after
presenting the arguments on both sides, concludes that they are wholly
to be rejected.[1345] Soon afterwards Cardinal Henry of Susa, the
leading canonist of his day, gave a severer blow by proving that as
ordeals are illegal all sentences rendered by their means are null and
void.[1346] Still the practice was hard to suppress, for at the end of
the century we find John of Freiburg denouncing it as forbidden and
accursed; bishops and abbots permitting ordeals in their courts are
guilty of mortal sin, and preachers should denounce them from their
pulpits with all due modesty.[1347] This shows that the spiritual
lords were still deaf to the voice of the papacy, but the principle
was settled and in 1317 Astesanus, whose authority was of the highest,
treats the whole system of duels and ordeals as mere appeals to chance,
having no warrant in divine law and forbidden by the Church.[1348] This
attitude was consistently preserved, and Gregory XI. in 1374, when
condemning the Sachsenspiegel, enumerated, among other objectionable
features, its provisions of this nature as contrary to the canon law
and a tempting of God.[1349]
CHAPTER XVIII.
REPRESSIVE SECULAR LEGISLATION.
Enlightened legislators were not slow in seconding the efforts of the
papacy. Perhaps the earliest instance of secular legislation directed
against the ordeal, except some charters granted to communes, is an
edict of Philip Augustus in 1200, bestowing certain privileges on the
scholars of the University of Paris, by which he ordered that a citizen
accused of assaulting a student shall not be allowed to defend himself
either by the duel or the water ordeal.[1350] In England, a rescript of
Henry III., dated January 27, 1219, directs the judges then starting on
their circuits to employ other modes of proof—“seeing that the judgment
of fire and water is forbidden by the Church of Rome.”[1351] A few
charters and confirmations, dated some years subsequently, allude to
the privilege of administering it; but Matthew of Westminster, when
enumerating, under date of 1250, the remarkable events of the half
century, specifies its abrogation as one of the occurrences to be
noted,[1352] and we may conclude that thenceforth it was practically
abandoned throughout the kingdom. This is confirmed by the fact that
Bracton, whose treatise was written a few years later, refers only to
the wager of battle as a legal procedure, and, when alluding to other
forms, speaks of them as things of the past. About the same time,
Alexander II. of Scotland forbade its use in cases of theft.[1353]
Nearly contemporary was the Neapolitan Code, promulgated in 1231, by
authority of the Emperor Frederic II., in which he not only prohibits
the use of the ordeal in all cases, but ridicules, in a very curious
passage, the folly of those who could place confidence in it.[1354]
We may conclude, however, that this was not effectual in eradicating
it, for, fifty years later, Charles of Anjou found it necessary to
repeat the injunction.[1355] About the same time, Waldemar II. of
Denmark, Hako Hakonsen of Iceland and Norway; and soon afterwards
Birger Jarl of Sweden, followed the example.[1356] In Frisia we learn
that the inhabitants still refused to obey the papal mandates, and
insisted on retaining the red-hot iron, a contumacy which Emo, the
contemporary Abbot of Wittewerum, cites as one of the causes of the
terrible inundation of 1219;[1357] though a century later the Laws
of Upstallesboom show that ordeals of all kinds had fallen into
desuetude.[1358] In France, we find no formal abrogation promulgated;
but the contempt into which the system had fallen is abundantly proved
by the fact that in the ordinances and books of practice issued
during the latter half of the century, such as the _Établissements_
of St. Louis, the _Conseil_ of Pierre de Fontaines, the _Coutumes du
Beauvoisis_ of Beaumanoir, and the _Livres de Jostice et de Plet_,
its existence is not recognized even by a prohibitory allusion, the
judicial duel thenceforward monopolizing the province of irregular
evidence. Indeed, a Latin version of the Coutumier of Normandy, dating
about the middle of the thirteenth century, or a little earlier, speaks
of it as a mode of proof formerly employed in cases where one of the
parties was a woman who could find no champion to undergo the wager of
battle, adding that it had been forbidden by the Church, and that such
cases were then determined by inquests.[1359]
Germany was more tardy in yielding to the mandates of the Church. The
Teutonic knights who wielded their proselyting swords in the Marches of
Prussia introduced the ordeal among other Christian observances, and in
1222 Honorius III., at the prayer of the Livonian converts, promulgated
a decree by which he strictly interdicted its use for the future.[1360]
Even in 1279 we find the Council of Buda, and in 1298 that of Wurzburg,
obliged to repeat the prohibition uttered by that of Lateran.[1361]
These commands enjoyed little respect, and the independent spirit of
the Empire still refused obedience to the commands of the Church. It
may probably be to Germany that Roger Bacon refers, about this time,
when he speaks of the ordeals of red-hot iron and cold water being
still in use by authority of the Church, and admits that the exorcisms
employed in them by the priests may have virtue in the detection of
guilt and acquittal of innocence.[1362] Even in the fourteenth century
the ancestral customs were preserved in full vigor as regular modes of
procedure in a manual of legal practice still extant. An accusation
of homicide could be disproved only by the judicial combat, while in
other felonies a man of bad repute had no other means of escape than by
undergoing the trial by hot water or iron.[1363]
In Aragon, Don Jayme I. included the ordeal in his prohibition of the
duel when framing laws for his Minorcan conquest in 1230, and that
this was his settled policy is seen by a similar clause of the fuero
of Huesca in 1247.[1364] In Castile and Leon, the charter of Medina de
Pomar, granted in 1219 by Fernando III., provides that there shall be
no trial by the hot-water ordeal,[1365] and that of Treviño in 1254, by
Alfonso X., forbids all ordeals.[1366] Still the Council of Palencia,
in 1322, was obliged to threaten with excommunication all concerned in
administering the ordeal of fire or of water,[1367] which proves how
little had been accomplished by the enlightened code of the “Partidas,”
issued about 1260 by Alfonso the Wise. In this the burden of proof is
expressly thrown upon the complainant, and no negative evidence is
demanded of the defendant, who is specially exempted from the necessity
of producing it;[1368] and although in obedience to the chivalrous
spirit of the age, the battle ordeal is not abolished, yet it is so
limited as to be practically a dead letter, while no other form of
negative proof is even alluded to.
In Italy, even in the middle of the fifteenth century St. Antonino of
Florence considers it necessary, in his instructions to confessors, to
tell them that a judge who prescribes the combat or the red-hot iron
commits mortal sin;[1369] and Angelo da Chiavasco, who died in 1485,
requires confessors to inquire of penitents whether they have ordered
or accepted the hot-iron ordeal.[1370] Even as late as 1599 G. Ferretti
tells us that in some districts of Naples, inhabited by Epirotes,
husbands who suspect their wives of adultery force them to prove their
innocence by the ordeal of red-hot iron or boiling water.[1371]
Although the ordeal was thus removed from the admitted jurisprudence
of Europe, the principles of faith which had given it vitality were
too deeply implanted in the popular mind to be at once eradicated,
and accordingly, as we have seen above, instances of its employment
continued occasionally for several centuries to disgrace the tribunals.
The ordeal of battle, indeed, as shown in the preceding essay, was
not legally abrogated until long afterward; and the longevity of
the popular belief, upon which the whole system was founded, may be
gathered from a remark of Sir William Staundford, a learned judge and
respectable legal authority, who, in 1557, expresses the same confident
expectation of Divine interference which had animated Hincmar or
Poppo. After stating that in an accusation of felony, unsupported by
evidence, the defendant had a right to wager his battle, he proceeds:
“Because in that the appellant demands judgment of death against the
appellee, it is more reasonable that he should hazard his life with the
defendant for the trial of it, than to put it on the country ... and to
leave it to God, to whom all things are open, to give the verdict in
such case, _scilicet_, by attributing the victory or vanquishment to
the one party or the other, as it pleaseth Him.”[1372] Nearly about the
same time, Ciruelo, who for thirty years was Inquisitor at Saragossa,
alludes to cases in which he had personally known of its employment,
thus showing that it was in popular use, even though not prescribed by
the law, in Spain during the middle of the sixteenth century.[1373] In
Germany not long before the learned Aventinus showed plainly that the
existing incredulity which treated all such reliance on God as insanity
was much less to his taste than the pious trust which through ages
of faith had led princes and prelates to place their hope in God and
invoke him with all the solemnities of religion to decide where human
wisdom was at fault.[1374]
* * * * *
While the prohibitions uttered by the papacy had undoubtedly much to
do in influencing monarchs to abolish the ordeal, there were other
causes of scarcely less weight working to the same end. The revival
of the Roman law in the twelfth and thirteenth centuries and the
introduction of torture as an unfailing expedient in doubtful cases did
much to influence the secular tribunals against all ordeals. So, also,
a powerful assistant must be recognized in the rise of the communes,
whose sturdy common sense not infrequently rejected its absurdity.
These influences, however, have been discussed at some length in the
previous essay, and it is scarce worth while to repeat what has there
been said, except to add that, as a recognized legal procedure, the
ordeal succumbed with a less prolonged struggle than the single combat.
Yet no definite period can be assigned to the disappearance in any
country of the appeals to Heaven handed down from our ancestors in
the illimitable past. We have seen above how certain forms of the
ordeal, such as bier-right and the trial by cold water, have lingered
virtually to our own times, though long since displaced from the
statute-book; and we should err if we deemed the prohibition of the
system by lawgivers to be either the effect or the cause of a change in
the constitution of the human mind. The mysterious attraction of the
unknown, the striving for the unattainable, the yearning to connect our
mortal nature with some supernal power—all these mixed motives assist
in maintaining the superstitions which we have thus passed in review.
Even though the external manifestations may have been swept away, the
potent agencies which vivified them have remained, not perhaps less
active because they work more secretly. One generation of follies after
another, strangely affiliated, waits on the successive descendants of
man, and perpetuates in another shape the superstition which seemed
to be eradicated. In its most vulgar and abhorrent form, we recognize
it in the fearful epidemic of sorcery and witchcraft which afflicted
the sixteenth and seventeenth centuries; sublimed to the verge of
heaven, we see it reappear in the seraphic theories of Quietism;
descending again towards earth, it stimulates the mad vagaries of the
Convulsionnaires. In a different guise, it leads the refined scepticism
of the eighteenth century to a belief in the supernatural powers of
the divining rod, which could not only trace out hidden springs and
deep-buried mines, but could also discover crime, and follow the
malefactor through all the doublings of his cunning flight.[1375] Even
at the present day, as various references in the preceding pages
sufficiently attest, there is a lurking undercurrent of superstition
which occasionally rises into view and shows that we are not yet exempt
from the weakness of the past. Each age has its own sins and follies
to answer for—happiest that which best succeeds in hiding them, for
it can scarce do more. Here, at the close of the nineteenth century,
when the triumph of human intelligence over the forces of nature,
stimulating the progress of material prosperity, has deluded us into
sacrificing our psychical to our intellectual being—even here the
duality of our nature reasserts itself, and in the crudity of Mormonism
and in the fantastic mysteries of spiritism we see a protest against
the despotism of mere reason. If we wonder at these perversions of our
noblest attributes, we must remember that the intensity of the reaction
measures the original strain, and in the insanities of the day we thus
may learn how utterly we have forgotten the Divine warning, “Man shall
not live by bread alone!”
IV.
TORTURE.
CHAPTER I.
TORTURE IN EGYPT AND ASIA.
The preceding essays have traced the development of sacramental
purgation and of the ordeal as resources devised by human ingenuity and
credulity when called upon to decide questions too intricate for the
impatient intellect of a rude and semi-barbarous age. There was another
mode, however, of attaining the same object which has received the
sanction of the wisest lawgivers during the greater part of the world’s
history, and our survey of man’s devious wanderings in the search
of truth would be incomplete without glancing at the subject of the
judicial use of torture. The ordeal and torture, in fact, are virtually
substitutes for each other. It will be seen that they have rarely
coexisted, and that, as a general rule, the legislation which depended
on the one rejected the other.
In the early stages of society, the judge or the pleader whose faith
does not lead him to rely upon an appeal to God naturally seeks to
extort from the reluctant witness a statement of what he might desire
to conceal, or from the presumed criminal a confession of his guilt. To
accomplish this, the readiest means would seem to be the infliction of
pain, to escape from which the witness would sacrifice his friends,
and the accused would submit to the penalty of his crime. The means
of administering graduated and effectual torment would thus be sought
for, and the rules for its application would in time be developed
into a regular system, forming part of the recognized principles of
jurisprudence.
In the earliest civilization, that of Egypt, it would seem as though
torture was too opposed to the whole theory of judicial proceedings
to be employed, if we are to believe the description which Diodorus
Siculus gives of the solemn and mysterious tribunals, where written
pleadings alone were allowed, lest the judges should be swayed by the
eloquence of the human voice, and where the verdict was announced, in
the unbroken silence, by the presiding judge touching the successful
suitor with an image of the Goddess of Truth.[1376] Yet a papyrus
recently interpreted gives us a judicial record of a trial, in the
reign of Rameses IX. of the XXth Dynasty (circa 1200 B. C.), of
the robbers of the tomb of the Pharaoh Sebakemsauf, and this shows
how the accused, after confession, were tortured for confirmation,
first by scourging and then by squeezing the hands and feet, showing
that, sometimes at least, this mode of ascertaining the truth was
employed.[1377]
Among the Semitic races we find torture used as a regular judicial
process by the Assyrians,[1378] though the Mosaic jurisprudence is
free from any indication that the Hebrew law-dispensers regarded it
as a legitimate expedient. Earnest advocates of the torture system,
in the eighteenth century, however, did not hesitate to adduce the
ordeal of the bitter water of jealousy as a torture which justified the
employment in modern times of the rack and strappado.
In the earliest Aryan records, so far as we can judge from the
fragments remaining of the Zoroastrian law, torture had no recognized
place. Astyages was rather a Mede than a Persian, and therefore no
conclusion can be drawn from his readiness to employ it when he
sought to extort the truth from unwilling witnesses, as related by
Herodotus;[1379] but the savage punishments which Darius boasts of
inflicting upon the rival pretenders to his throne[1380] presuppose a
readiness to resort to the most violent means of intimidation, which
could scarcely fail to include torture as an extra-judicial means of
investigation when milder methods failed.
To the other great branch of the Aryan stock which founded the Indian
civilization, torture would likewise seem to have been unknown as a
legitimate resource; at least it has left no trace of its existence
in the elaborate provisions of the Hindu law as handed down to us for
nearly three thousand years. In the Institutes of Manu there are very
minute directions as to evidence, the testimony preferred being that of
witnesses, whose comparative credibility is very carefully discussed,
and when such evidence is not attainable, the parties, as we have seen
above, are ordered to be sworn or tried by the ordeal. These principles
have been transmitted unchanged to the present day.[1381]
In China the juristic principles in force would seem to allow no place
for the use of torture (_ante_, p. 251), though doubtless it may be
occasionally resorted to as an extra-judicial expedient. In Japan it
still retains its place in the criminal codes, though we may well
believe the assertion that practically its use has been discarded in
the progress of modern enlightenment. As to its former employment,
however, the directions are very explicit. In the milder form of
scourging it might be used in all preliminary examinations. Where
reasonable moral certainty existed of guilt in serious and capital
crimes, the severer inflictions, by fire, by various mechanical
devices, by deprivation of food and sleep or by exposure to venomous
reptiles, could be invoked to extort confession, the accused being
notified in advance that it would be used if he persisted in asserting
his innocence, and the official ordering it being held personally
responsible for its undue or improper employment.[1382]
CHAPTER II.
GREECE AND ROME.
The absence of torture from the codes of the elder Aryan races is not
to be attributed to any inherent objection to its use, but rather to
the employment of the ordeal, which in all ages formed part of their
jurisprudence, and served as an unfailing resort in all doubtful
cases. When we turn to the Aryans who established themselves in
Europe and abandoned the ancestral custom of the ordeal, we find it
at once replaced by the use of torture. Thus in Greece torture was
thoroughly understood and permanently established. The oligarchical and
aristocratic tendencies, however, which were so strongly developed in
the Hellenic commonwealths, imposed upon it a limitation characteristic
of the pride and self-respect of the governing order. As a general
rule, no freeman could be tortured. Even freedmen enjoyed an
exemption, and it was reserved for the unfortunate class of slaves, and
for strangers who formed no part of the body politic. Yet there were
exceptions, as among the Rhodians, whose laws authorized the torture of
free citizens; and in other states it was occasionally resorted to, in
the case of flagrant political offences; while the people, acting in
their supreme and irresponsible authority, could at any time decree its
application to any one irrespective of privilege. Thus, when Hipparchus
was assassinated by Harmodius, Aristogiton was tortured to obtain a
revelation of the plot, and several similar proceedings are related by
Valerius Maximus as occurring among the Hellenic nations.[1383] The
inhuman torments inflicted on Philotas, son of Parmenio, when accused
of conspiracy against Alexander, show how little real protection
existed when the safety of a despot was in question; and illustrations
of torture decreed by the people are to be seen in the proceedings
relative to the mutilation of the statues of Hermes, and in the
proposition, on the trial of Phocion, to put him, the most eminent
citizen of Athens, on the rack.
In a population consisting largely of slaves, who were generally of the
same race as their masters, often men of education and intelligence and
employed in positions of confidence, legal proceedings must frequently
have turned upon their evidence, in both civil and criminal cases.
Their evidence, however, was inadmissible, except when given under
torture, and then, by a singular confusion of logic, it was estimated
as the most convincing kind of testimony. Consequently, the torturing
of slaves formed an important portion of the administration of Athenian
justice. Either party to a suit might offer his slaves to the torturer
or demand those of his opponent, and a refusal to produce them was
regarded as seriously compromising. When both parties tendered their
slaves, the judge decided as to which of them should be received. Even
without bringing a suit into court, disputants could have their slaves
tortured for evidence with which to effect an amicable settlement.
In formal litigation, the defeated suitor paid whatever damages
his adversary’s slaves might have undergone at the hands of the
professional torturer, who, as an expert in such matters, was empowered
to assess the amount of depreciation that they had sustained. It
affords a curious commentary on the high estimation in which such
testimony was held to observe that, when a man’s slaves had testified
against him on the rack, they were not protected from his subsequent
vengeance, which might be exercised upon them without restriction.
As the laws of Greece passed away, leaving few traces on the
institutions of other races, save on those of Rome, it will suffice to
add that the principal modes in which torture was sanctioned by them
were the wheel, the ladder or rack, the comb with sharp teeth, the low
vault, in which the unfortunate patient was thrust and bent double, the
burning tiles, the heavy hogskin whip, and the injection of vinegar
into the nostrils.[1384]
In the earlier days of Rome, the general principles governing the
administration of torture were the same as in Greece. Under the
Republic, the free citizen was not liable to it, and the evidence of
slaves was not received without it. With the progress of despotism,
however, the safeguards which surrounded the freeman were broken down,
and autocratic emperors had little scruple in sending their subjects to
the rack.
Even as early as the second Triumvirate, a prætor named Q. Gallius, in
saluting Octavius, chanced to have a double tablet under his toga. To
the timid imagination of the future emperor, the angles of the tablet,
outlined under the garment, presented the semblance of a sword, and
he fancied Gallius to be the instrument of a conspiracy against his
life. Dissembling his fears for the moment, he soon caused the unlucky
prætor to be seized while presiding at his own tribunal, and, after
torturing him like a slave without extracting a confession, put him to
death.[1385]
The incident was ominous of the future, when all the powers of the
state were concentrated in the august person of the emperor. He was
the representative and embodiment of the limitless sovereignty of the
people, whose irresponsible authority was transferred to him. The rules
and formularies which had regulated the exercise of power, so long as
it belonged to the people, were feeble barriers to the passions and
fears of Cæsarism. Accordingly, a principle soon became engrafted in
Roman jurisprudence that, in all cases of _crimen majestatis_, or high
treason, the free citizen could be tortured. In striking at the ruler
he had forfeited all rights, and the safety of the state, as embodied
in the emperor, was to be preserved at every sacrifice.
The emperors were not long in discovering and exercising their power.
When the plot of Sejanus was discovered, the historian relates that
Tiberius abandoned himself so entirely to the task of examining by
torture the suspected accomplices of the conspiracy, that when an old
Rhodian friend, who had come to visit him on a special invitation, was
announced to him, the preoccupied tyrant absently ordered him to be
placed on the rack, and on discovering the blunder had him quietly put
to death, to silence all complaints. The shuddering inhabitants pointed
out a spot in Capri where he indulged in these terrible pursuits,
and where the miserable victims of his wrath were cast into the sea
before his eyes, after having exhausted his ingenuity in exquisite
torments.[1386] When the master of the world took this fearful delight
in human agony, it may readily be imagined that law and custom offered
little protection to the defenceless subject, and Tiberius was not the
only one who relished these inhuman pleasures. The half-insane Caligula
found that the torture of criminals by the side of his dinner-table
lent a keener zest to his revels, and even the timid and the beastly
Claudius made it a point to be present on such occasions.[1387]
Under the stimulus of such hideous appetites, capricious and
irresponsible cruelty was able to give a wide extension to the law of
treason. If victims were wanted to gratify the whims of the monarch or
the hate of his creatures, it was easy to find an offender or to make
a crime. Under Tiberius, a citizen removed the head from a statue of
Augustus, intending to replace it with another. Interrogated before
the Senate, he prevaricated, and was promptly put to the torture.
Encouraged by this, the most fanciful interpretation was given to
violations of the respect assumed to be due to the late emperor. To
undress one’s self or to beat a slave near his image; to carry into
a latrine or a house of ill fame a coin or a ring impressed with
his sacred features; to criticize any act or word of his became a
treasonable offence; and finally an unlucky wight was actually put to
death for allowing the slaves on his farm to pay him honors on the
anniversary which had been sacred to Augustus.[1388]
So, when it suited the waning strength of paganism to wreak
its vengeance for anticipated defeat upon the rising energy of
Christianity, it was easy to include the new religion in the convenient
charge of treason, and to expose its votaries to all the horrors of
ingenious cruelty. If Nero desired to divert from himself the odium of
the conflagration of Rome, he could turn upon the Christians, and by
well-directed tortures obtain confessions involving the whole sect,
thus giving to the populace the diversion of a persecution on a scale
until then unknown, besides providing for himself the new sensation of
the human torches whose frightful agonies illuminated his unearthly
orgies.[1389] Diocletian even formally promulgated in an edict the rule
that all professors of the hated religion should be deprived of the
privileges of birth and station, and be subject to the application of
torture.[1390] The indiscriminate cruelty to which the Christians were
thus exposed without defence, at the hands of those inflamed against
them by all evil passions, may, perhaps, have been exaggerated by the
ecclesiastical historians, but that frightful excesses were perpetrated
under sanction of law cannot be doubted by any one who has traced, even
in comparatively recent times and among Christian nations, the progress
of political and religious persecution.[1391]
The torture of freemen accused of crimes against the state or the
sacred person of the emperor thus became an admitted principle of Roman
law. In his account of the conspiracy of Piso, under Nero, Tacitus
alludes to it as a matter of course, and in describing the unexampled
endurance of Epicharis, a freedwoman, who underwent the most fearful
torments without compromising those who possessed little claim upon her
forbearance, the annalist indignantly compares her fortitude with the
cowardice of noble Romans, who betrayed their nearest relatives and
dearest friends at the mere sight of the torture chamber.[1392]
Under these limits, the freeman’s privilege of exemption was carefully
guarded, at least in theory. A slave while claiming freedom, or a
man claimed as a slave, could not be exposed to torture;[1393] and
even if a slave, when about to be tortured, endeavored to escape by
asserting his freedom, it was necessary to prove his servile condition
before proceeding with the legal torments.[1394] In practice, however,
these privileges were continually infringed, and numerous edicts of
the emperors were directed to repressing the abuses which constantly
occurred. Thus we find Diocletian forbidding the application of
torture to soldiers or their children under accusation, unless they
had been dismissed the service ignominiously.[1395] The same emperor
published anew a rescript of Marcus Aurelius declaring the exemption of
patricians and of the higher imperial officers, with their legitimate
descendants to the fourth generation;[1396] and also a dictum of Ulpian
asserting the same privilege in favor of decurions, or local town
councillors, and their children.[1397] In 376, Valentinian was obliged
to renew the declaration that decurions were only liable in cases of
_majestas_, and in 399 Arcadius and Honorius found it necessary to
declare explicitly that the privilege was personal and not official,
and that it remained to them after laying down the decurionate.[1398]
Theodosius the Great, in 385, especially directed that priests should
not be subjected to torture in giving testimony,[1399] the significance
of which is shown by the fact that no slave could be admitted to holy
orders.
The necessity of this constant repetition of the law is indicated by
a rescript of Valentinian, in 369, which shows that freemen were
not infrequently tortured in contravention of law; but that torture
could legally be indiscriminately inflicted by any tribunal in cases
of treason, and that in other accusations it could be authorized
by the order of the emperor.[1400] This power was early assumed
and frequently exercised. Though Claudius at the commencement of
his reign had sworn that he would never subject a freeman to the
question, yet he allowed Messalina and Narcissus to administer torture
indiscriminately, not only to free citizens, but even to knights and
patricians.[1401] So Domitian tortured a man of prætorian rank on a
doubtful charge of intrigue with a vestal virgin,[1402] and various
laws were promulgated by several emperors directing the employment
of torture irrespective of rank, in some classes of accusations.
Thus, in 217, Caracalla authorized it in cases of suspected poisoning
by women.[1403] Constantine decreed that unnatural lusts should be
punished by the severest torments, without regard to the station of
the offender.[1404] Constantius persecuted in like manner soothsayers,
sorcerers, magicians, diviners, and augurs, who were to be tortured
for confession, and then to be put to death with every refinement of
suffering.[1405] So, Justinian, under certain circumstances, ordered
torture to be used on parties accused of adultery[1406]—a practice,
however, which was already common in the fourth century, if we are to
believe the story related by St. Jerome of a miracle occurring in a
case of this nature.[1407] The power thus assumed by the monarch could
evidently be limited only by his discretion in its exercise.
One important safeguard, however, existed, which, if properly
maintained, must have greatly lessened the frequency of torture as
applied to freemen. 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.[1408] A rescript
of Constantine, in 314, decrees that in cases of _majestas_, as the
accused was liable to the severity of torture without limitation of
rank, so the accuser and his informers were to be tortured when they
were unable to make good their accusation.[1409] This enlightened
legislation was preserved by Justinian, and must have greatly cooled
the ardor of the pack of calumniators and informers, who, from the days
of Sylla, had been encouraged and petted until they held in their hands
the life of almost every citizen.
In all this it must be borne in mind that the freeman of the Roman law
was a Roman citizen, and that, prior to the extension of citizenship
generally to the subjects of the Empire, there was an enormous class
deprived of the protection, such as it was, of the traditional
exemption. Thus when, in Jerusalem, the Jews raised a tumult and
accused St. Paul, without specifying his offence, the tribune forthwith
ordered “that he should be examined by scourging, that he might know
wherefore they cried so against him;” and when St. Paul proclaimed
himself a Roman, the preparations for his torture were stopped
forthwith, and he was examined by regular judicial process.[1410] The
value of this privilege is fairly exemplified by the envying remark of
the tribune, “With a great sum obtained I this freedom.”
All these laws relate to the extortion of confessions from the accused.
In turning to the treatment of witnesses, we find that even with
them torture was not confined to the servile condition. With slaves
it was not simply a consequence of slavery, but a mode of confirming
and rendering admissible the testimony of those whose character was
not sufficiently known to give their evidence credibility without it.
Thus a legist under Constantine states that gladiators and others
of similar occupation cannot be allowed to bear witness without
torture;[1411] and, in the same spirit, a novel of Justinian, in
539, directs that the rod shall be used to extract the truth from
unknown persons who are suspected of bearing false witness or of being
suborned.[1412]
It may, therefore, readily be imagined that when the evidence of slaves
was required, it was necessarily accompanied by the application of
torture. Indeed, Augustus declared that while it is not to be expressly
desired in trifling matters, yet in weighty and capital cases the
torture of slaves is the most efficacious mode of ascertaining the
truth.[1413] When we consider the position occupied by slavery in the
Roman world, the immense proportion of bondmen who carried on all
manner of mechanical and industrial occupations for the benefit of
their owners, and who, as scribes, teachers, stewards, and in other
confidential positions, were privy to almost every transaction of their
masters, we can readily see that scarce any suit could be decided
without involving the testimony of slaves, and thus requiring the
application of torture. It was not even, as among most modern nations,
restricted to criminal cases. Some doubt, indeed, seems at one time
to have existed as to its propriety in civil actions, but Antoninus
Pius decided the question authoritatively in the affirmative, and this
became a settled principle of Roman jurisprudence, even when the slaves
belonged to masters who were not party to the case at issue.[1414]
There was but one limitation to the universal liability of slaves. They
could not be tortured to extract testimony against their masters,
whether in civil or criminal cases;[1415] though, if a slave had been
purchased by a litigant to get his testimony out of court, the sale
was pronounced void, the price was refunded, and the slave could then
be tortured.[1416] This limitation arose from a careful regard for the
safety of the master, and not from any feeling of humanity towards
the slave. So great a respect, indeed, was paid to the relationship
between the master and his slave that the principle was pushed to its
fullest extent. Thus even an employer, who was not the owner of a
slave, was protected against the testimony of the latter.[1417] When a
slave was held in common by several owners, he could not be tortured
in opposition to any of them, unless one were accused of murdering his
partner.[1418] A slave could not be tortured in a prosecution against
the father or mother of the owner, or even against the guardian, except
in cases concerning the guardianship;[1419] though the slave of a
husband could be tortured against the wife.[1420] Even the tie which
bound the freedman to his patron was sufficient to preserve the former
from being tortured against the latter;[1421] whence we may assume
that, in other cases, manumission afforded no protection from the rack
and scourge. This question, however, appears doubtful. The exemption of
freedmen would seem to be proved by the rescript which provides that
inconvenient testimony should not be got rid of by manumitting slaves
so as to prevent their being subjected to torture;[1422] while, on the
other hand, a decision of Diocletian directs that, in cases of alleged
fraudulent wills, the slaves and even the freedmen of the heir could be
tortured to ascertain the truth.[1423]
This policy of the law in protecting masters from the evidence of
their tortured slaves varied at different periods. From an expression
of Tacitus, it would seem not to have been part of the original
jurisprudence of the Republic, but to have arisen from a special
decree of the Senate. In the early days of the Empire, while the
monarch still endeavored to veil his irresponsible power under the
forms of law, and showed his reverence for ancient rights by evading
them rather than by boldly subverting them, Tiberius, in prosecuting
Libo and Silanus, caused their slaves to be transferred to the public
prosecutor, and was thus able to gratify his vengeance legally by
extorting the required evidence.[1424] Subsequent emperors were not
reduced to these subterfuges, for the principle became established that
in cases of _majestas_, even as the freeman was liable to torture,
so his slaves could be tortured to convict him;[1425] and as if to
show how utterly superfluous was the cunning of Tiberius, the respect
towards the master in ordinary affairs was carried to that point that
no slave could be tortured against a former owner with regard to
matters which had occurred during his ownership.[1426] On the other
hand, according to Ulpian, Trajan decided that when the confession of
a guilty slave under torture implicated his master, the evidence could
be used against the master, and this, again, was revoked by subsequent
constitutions.[1427] Indeed, it became a settled principle of law to
reject all incriminations of accomplices.
Having thus broken down the protection of the citizen against the
evidence of his slaves in accusations of treason, it was not difficult
to extend the liability to other special crimes. Accordingly we
find that, in 197, Septimius Severus specified adultery, fraudulent
assessment, and crimes against the state as cases in which the evidence
of slaves against their masters was admissible.[1428] The provision
respecting adultery was repeated by Caracalla in 214, and afterwards
by Maximus,[1429] and the same rule was also held to be good in cases
of incest.[1430] It is probable that this increasing tendency alarmed
the citizens of Rome, and that they clamored for a restitution of
their immunities, for, when Tacitus was elected emperor, in 275, he
endeavored to propitiate public favor by proposing a law to forbid
the testimony of slaves against their masters except in cases of
_majestas_.[1431] No trace of such a law, however, is found in the
imperial jurisprudence, and the collections of Justinian show that the
previous regulations were in full force in the sixth century.
Yet it is probable that the progress of Christianity produced some
effect in mitigating the severity of legal procedure and in shielding
the unfortunate slave from the cruelties to which he was exposed.
Under the Republic, while the authority of the _paterfamilias_ was
still unabridged, any one could offer his slaves to the torture when
he desired to produce their evidence. In the earlier times, this was
done by the owner himself in the presence of the family, and the
testimony thus extorted was carefully taken down to be duly produced
in court; but subsequently the proceeding was conducted by public
officers—the quæstors and triumviri capitales.[1432] How great was
the change effected is seen by the declaration of Diocletian, in 286,
that masters were not permitted to bring forward their own slaves
to be tortured for evidence in cases wherein they were personally
interested.[1433] This would necessarily reduce the production of
slave testimony, save in accusations of _majestas_ and other excepted
crimes, to cases in which the slaves of third parties were desired as
witnesses; and even in these, the frequency of its employment must have
been greatly reduced by the rule which bound the party calling for
it to deposit in advance the price of the slave, as estimated by the
owner, to remunerate the latter for his death, or for his diminished
value if he were maimed or crippled for life.[1434] When the slave
himself was arraigned upon a false accusation and tortured, an old
law provided that the master should receive double the loss or damage
sustained;[1435] and in 383, Valentinian the Younger went so far as to
decree that those who accused slaves of capital crimes should inscribe
themselves, as in the case of freemen, and should be subjected to the
_lex talionis_ if they failed to sustain the charge.[1436] This was an
immense step towards equalizing the legal condition of the bondman and
his master. It was apparently in advance of public opinion, for the law
is not reproduced in the compilations of Justinian, and probably soon
was disregarded.
* * * * *
There were some general limitations imposed on the application of
torture, but they were hardly such as to prevent its abuse at the
hands of cruel or unscrupulous judges. Antoninus Pius set an example,
which modern jurists might well have imitated, when he directed that
no one should be tortured after confession to implicate others;[1437]
and a rescript of the same enlightened emperor fixes at fourteen
the minimum limit of age liable to torture, except in cases of
_majestas_, when, as we have seen, the law spared no one, for in the
imperial jurisprudence the safety of the monarch overrode all other
considerations.[1438] Women were spared during pregnancy.[1439]
Moderation was enjoined upon the judges, who were to inflict only such
torture as the occasion rendered necessary, and were not to proceed
further at the will of the accuser.[1440] No one was to be tortured
without the inscription of a formal accuser, who rendered himself
liable to the _lex talionis_, unless there were violent suspicions to
justify it;[1441] and Adrian reminded his magistrates that it should
be used for the investigation of truth, and not for the infliction of
punishment.[1442] Adrian further directed, in the same spirit, that
the torture of slave witnesses should only be resorted to when the
accused was so nearly convicted that it alone was required to confirm
his guilt.[1443] Diocletian ordered that proceedings should never be
commenced with torture, but that it might be employed when requisite to
complete the proof, if other evidence afforded rational belief in the
guilt of the accused.[1444]
What was the exact value set upon evidence procured by torture it
would be difficult at this day to determine. We have seen above that
Augustus pronounced it the best form of proof, but other legislators
and jurists thought differently. Modestinus affirms that it is only
to be believed when there is no other mode of ascertaining the
truth.[1445] Adrian cautions his judges not to trust to the torture
of a single slave, but to examine all cases by the light of reason
and argument.[1446] According to Ulpian, the imperial constitutions
provided that it was not always to be received nor always rejected;
in his own opinion it was unsafe, dangerous, and deceptive, for some
men were so resolute that they would bear the extremity of torment
without yielding, while others were so timid that through fear they
would at once inculpate the innocent.[1447] From the manner in which
Cicero alternately praises and discredits it, we can safely assume that
lawyers were in the habit of treating it, not on any general principle,
but according as it might affect their client in any particular case;
and Quintilian remarks that it was frequently objected to on the ground
that under it one man’s constancy makes falsehood easy to him, while
another’s weakness renders falsehood necessary.[1448] That these views
were shared by the public would appear from the often quoted maxim of
Publius Syrus—“Etiam innocentes cogit mentiri dolor”—and from Valerius
Maximus, who devotes his chapter _De Quæstionibus_ to three cases in
which it was erroneously either trusted or distrusted. A slave of M.
Agrius was accused of the murder of Alexander, a slave of C. Fannius.
Agrius tortured him, and, on his confessing the crime, handed him over
to Fannius, who put him to death. Shortly afterwards, the missing
slave returned home. This same Alexander was made of sterner stuff,
for when he was subsequently suspected of being privy to the murder of
C. Flavius, a Roman knight, he was tortured six times and persistently
denied his guilt, though he subsequently confessed it and was duly
crucified.[1449] A somewhat similar case gave Apollonius of Tyana an
opportunity of displaying his supernatural power. Meeting in Alexandria
twelve convicts on their way to execution as robbers, he pronounced
one of them to be innocent, and asked the executioners to reserve him
to the last, and, moreover, delayed them by his conversation. After
eight had been beheaded, a messenger came in hot haste to announce
that Phanion, the one selected by Apollonius, was innocent, though he
had accused himself to avoid the torture.[1450] A curious instance,
moreover, of the little real weight attached to such evidence is
furnished by the case of Fulvius Flaccus, in which the whole question
turned upon the evidence of his slave Philip. This man was actually
tortured eight times, and refused through it all to criminate his
master, who was nevertheless condemned.[1451] The same conclusion is
to be drawn from the story told by St. Jerome of a woman of Vercelli
repeatedly tortured on an accusation of adultery, and finally condemned
to death in spite of her constancy in asserting her innocence, the only
evidence against her being that of her presumed accomplice, extorted
under torment.[1452] Quintus Curtius probably reflects the popular
feeling on the subject, in his pathetic narrative of the torture of
Philotas on a charge of conspiracy against Alexander. After enduring
in silence the extremity of hideous torment, he promised to confess if
it were stopped, and when the torturers were removed he addressed his
brother-in-law Craterus, who was conducting the investigation: “Tell me
what you wish me to say.” Curtius adds that no one knew whether or not
to believe his final confession, for torture is as apt to bring forth
lies as truth.[1453]
From the instances given by Valerius Maximus, it may be inferred that
there was no limit set upon the application of torture. The extent to
which it might be carried appears to have rested with the discretion
of the tribunals, for, with the exception of the general injunctions
of moderation alluded to above, no instructions for its administration
are to be found in the Roman laws which have been preserved to us,
unless it be the rule that when several persons were accused as
accomplices, the judges were directed to commence with the youngest and
weakest.[1454]
Since the time of Sigonius, much antiquarian research has been
directed to investigating the various forms of torture employed by the
Romans. They illustrate no principles, however, and it is sufficient
to enumerate the rack, the scourge, fire in its various forms, and
hooks for tearing the flesh, as the modes generally authorized by law.
The Christian historians, in their narratives of the persecutions to
which their religion was exposed, give us a more extended idea of
the resources of the Roman torture chamber. Thus Prudentius, in his
description of the martyrdom of St. Vincent, alludes to a number of
varieties, among which we recognize some that became widely used in
after times, showing that little was left for modern ingenuity to
invent.[1455]
I have dealt thus at length on the details of the Roman law of torture
because, as will be seen hereafter, it was the basis of all modern
legislation on the subject, and has left its impress on the far less
humane administration of criminal justice in Europe almost to our own
day. Yet at first it seemed destined to disappear with the downfall of
the Roman power.
CHAPTER III.
THE BARBARIANS.
In turning from the nicely poised and elaborate provisions of the
Imperial laws to the crude jurisprudence of the Barbarian hordes who
gradually inherited the crumbling remains of the Empire of the West,
we enter into social and political conditions so different that we
are naturally led to expect a corresponding contrast in every detail
of legislation. For the cringing suppliant of the audience chamber,
abjectly prostrating himself before a monarch who combines in his own
person every legislative and executive function, we have the freeman
of the German forests, who sits in council with his chief, who frames
the laws which both are bound to respect, and who pays to that chief
only the amount of obedience which superior vigor and intellect may be
able to enforce. The structure of such a society is fairly illustrated
by the incident which Gregory of Tours selects to prove the kingly
qualities of Clovis. During his conquest of Gaul, and before his
conversion, his wild followers pillaged the churches with little
ceremony. A bishop, whose cathedral had suffered largely, sent to the
king to request that a certain vase of unusual size and beauty might be
restored to him. Clovis could only promise that if the messenger would
accompany him to Soissons, where the spoils were to be divided, and if
the vase should chance to fall to his share, it should be restored.
When the time came for allotting the plunder, he addressed his men,
requesting as a special favor that the vase might be given to him
before the division, but a sturdy soldier, brandishing his axe, dashed
it against the coveted article, exclaiming, “Thou shalt take nothing
but what the lot assigns to thee.” For a year, Clovis dissembled his
resentment at this rebuff, but at length, when opportunity offered, he
was prompt to gratify it. While reviewing and inspecting his troops,
he took occasion to reproach bitterly the uncourtly Frank with the
condition of his weapons, which he pronounced unserviceable. The
battle-axe excited his especial displeasure. He threw it angrily to the
ground, and as the owner stooped to pick it up, Clovis drove his own
into the soldier’s head, with the remark, “It was thus you served the
vase at Soissons.”[1456]
This personal independence of the freeman is one of the distinguishing
characteristics of all the primitive Teutonic institutions. Corporal
punishments for him were unknown to the laws. The principal resource
for the repression of crime was by giving free scope to the vengeance
of the injured party, and by providing fixed rates of composition by
which he could be bought off. As the criminal could defend himself
with the sword against the _faida_ or feud of his adversary, or could
compound for his guilt with money, the suggestion of torturing him to
extort a confession would seem an absurd violation of all his rights.
Crimes were regarded solely as injuries to individuals, and the idea
that society at large was interested in their discovery, punishment,
and prevention, was entirely too abstract to have any influence on the
legislation of so barbarous an age.
Accordingly, the codes of the Feini, the Ripuarians, the Alamanni, the
Angli and Werini, the Frisians, the Saxons, and the Lombards contain no
allusion to the employment of torture under any circumstances; and such
few directions for its use as occur in the laws of the Salien Franks,
of the Burgundians, and of the Baioarians, do not conflict with the
general principle.
The personal inviolability which shielded the freeman cast no
protection over the slave. He was merely a piece of property, and
if he were suspected of a crime, the readiest and speediest way to
convict him was naturally adopted. His denial could not be received
as satisfactory, and the machinery of sacramental purgation or the
judicial duel was not for him. If he were charged with a theft at
home, his master would undoubtedly tie him up and flog him until he
confessed, and if the offence were committed against a third party, the
same process would necessarily be adopted by the court. Barbarian logic
could arrive at no other mode of discovering and repressing crime among
the friendless and unprotected, whose position seemed to absolve them
from all moral responsibility.
The little that we know of the institutions of the ancient Gauls
presents us with an illustration of the same principle developed in a
somewhat different direction. Cæsar states that, when a man of rank
died, his relatives assembled and investigated the circumstances of his
death. If suspicion alighted upon his wives, they were tortured like
slaves, and if found guilty they were executed with all the refinements
of torment.[1457]
In accordance with this tendency of legislation, therefore, we find
that among the Barbarians the legal regulations for the torture of
slaves are intended to protect the interests of the owner alone. When
a slave was accused of crime the master, indeed, could not refuse to
hand him over to the torturer, unless he were willing to pay for him
the full _wer-gild_ of a freeman, and if the slave confessed under the
torture, the master had no claim for compensation arising either from
the punishment or crippling of his bondman.[1458] When, however, the
slave could not be forced to confess and was acquitted, the owner had a
claim for damages, though no compensation was made to the unfortunate
sufferer himself. The original law of the Burgundians, promulgated
in 471, is the earliest of the Teutonic codes extant, and in that we
find that the accuser who failed to extract a confession was obliged
to give to the owner another slave, or to pay his value.[1459] The
Baioarian law is equally careful of the rights of ownership, but seems
in addition to attach some criminality to the excess of torture by the
further provision that, if the slave die under the torment without
confession, the prosecutor shall pay to the owner two slaves of like
value, and if unable to do so, that he shall himself be delivered up
as a slave.[1460] The Salic law, on the other hand, only guards the
interests of the owner by limiting the torture to 120 blows with a
rod of the thickness of the little finger. If this does not extort a
confession, and the accuser is still unsatisfied, he can deposit with
the owner the value of the slave, and then proceed to torture him at
his own risk and pleasure.[1461]
It will be observed that all these regulations provide merely for
extracting confessions from accused slaves, and not testimony from
witnesses. Indeed, the system of evidence adopted by all the Barbarian
laws for freemen was of so different a character, that no thought
seems to have been entertained of procuring proof by the torture of
witnesses. The only allusion, indeed, to such a possibility shows how
utterly repugnant it was to the Barbarian modes of thought. In some
MSS. of the Salic law there occurs the incidental remark that when a
slave accused is under the torture, if his confession implicates his
master, the charge is not to be believed.[1462]
Such was the primitive legislation of the Barbarians, but though in
principle it was long retained, in practice it was speedily disregarded
by those whom irresponsible power elevated above the law. The Roman
populations of the conquered territories were universally allowed to
live under their old institutions; in fact, law everywhere was personal
and not territorial, every race and tribe, however intermingled on the
same soil, being subjected to its own system of jurisprudence. The
summary process of extracting confessions and testimony which the Roman
practice thus daily brought under the notice of the Barbarians could
not but be attractive to their violent and untutored passions. Their
political system was too loose and undefined to maintain the freedom of
the Sicambrian forests in the wealthy plains of Gaul, and the monarch,
who, beyond the Rhine, had scarce been more than a military chief,
speedily became a despot, whose power over those immediately around
him was limited only by the fear of assassination, and over his more
distant subjects by the facility of revolution.
When all thus was violence, and the law of the strongest was scarcely
tempered by written codes, it is easy to imagine that the personal
inviolability of the freeman speedily ceased to guarantee protection.
Even amid the wild tribes which remained free from the corruptions of
civilization the idea of torturing for confession the friendless and
unprotected was not unfamiliar, and in the Elder Edda we find King
Geirröd using the torment of fire for eight days on Odin, who visits
him in disguise for the purpose of testing his hospitality.[1463]
Among the Gallic Franks, therefore, it need not surprise us to see
irresponsible power readily grasping at such means to gratify hate
or ambition. In the long and deadly struggle between Fredegonda and
Brunhilda, for example, the fierce passions of the adversaries led them
to employ without scruple the most cruel tortures in the endeavor to
fathom each other’s plots.[1464] A single case may be worth recounting
to show how completely torture had become a matter of course as the
first resource in the investigation of doubtful questions. When
Leudastes, about the year 580, desired to ruin the pious Bishop Gregory
of Tours, he accused him to Chilperic I. of slandering the fair fame
of Queen Fredegonda, and suggested that full proof for condemnation
could be had by torturing Plato and Gallienus, friends of the bishop.
He evidently felt that nothing further was required to substantiate
the charge, nor does Gregory himself, in narrating the affair, seem to
think that there was anything irregular in the proposition. Gallienus
and Plato were seized, but from some cause were discharged unhurt. Then
a certain Riculfus, an accomplice of Leudastes, was reproached for
his wickedness by a man named Modestus, whereupon he accused Modestus
to Fredegonda, who promptly caused the unhappy wretch to be severely
tortured without extracting any information from him, and he was
imprisoned until released by the miraculous aid of St. Medard. Finally,
Gregory cleared himself canonically of the imputation, and the tables
were turned. Leudastes sought safety in flight. Riculfus was not so
fortunate. Gregory begged his life, but could not save him from being
tortured for confession. For six hours the wretched man was hung up
with his hands tied behind his back, after which, stretched upon the
rack, he was beaten with clubs, rods, and thongs, by as many as could
get at him, until, as Gregory naïvely remarks, no piece of iron could
have borne it. At last, when nearly dead, his resolution gave way, and
he confessed the whole plot by which it had been proposed to get rid of
Chilperic and Fredegonda, and to place Clovis on the throne.[1465] Now,
Plato, Gallienus, and Modestus were probably of Gallo-Roman origin, but
Riculfus was evidently of Teutonic stock; moreover, he was a priest,
and Plato an archdeacon, and the whole transaction shows that Roman law
and Frankish law were of little avail against the unbridled passions of
the Merovingian.
CHAPTER IV.
THE GOTHS AND SPAIN.
Of all the Barbarian tribes, none showed themselves so amenable to the
influences of Roman civilization as the Goths. Their comparatively
settled habits, their early conversion to Christianity, and their
position as allies of the empire long before they became its
conquerors, rendered them far less savage under Alaric than were the
Franks in the time of Clovis. The permanent occupation of Septimania
and Catalonia by the Wisigoths, also, took place at a period when
Rome was not as yet utterly sunk, and when the power of her name
still possessed something of its ancient influence, which could not
but modify the institutions of the new-comers as they strove to adapt
their primitive customs to the altered circumstances under which they
found themselves. It is not to be wondered at, therefore, if their
laws reflect a condition of higher civilization than those of kindred
races, and if the Roman jurisprudence has left in them traces of the
appreciation of that wonderful work of the human intellect which the
Goths were sufficiently enlightened to entertain.
The Ostrogoths, allowing for the short duration of their nationality,
were even more exposed to the influences of Rome. Their leader,
Theodoric, had been educated in Constantinople, and was fully as much a
Roman as many of the Barbarian soldiers who had risen to high station
under the emperors, or even to the throne itself. All his efforts were
directed to harmonizing the institutions of his different subjects, and
he was too sagacious not to see the manifest superiority of the Roman
polity.
His kingdom was too evanescent to consolidate and perfect its
institutions or to accumulate any extended body of jurisprudence. What
little exists, however, manifests a compromise between the spirit of
the Barbarian tribes of the period and that of the conquered mistress
of the world. The Edict of Theodoric does not allude to the torture of
freemen, and it is probable that the free Ostrogoth could not legally
be subjected to it. With respect to slaves, its provisions seem mainly
borrowed from the Roman law. No slave could be tortured against a third
party for evidence unless the informer or accuser was prepared to
indemnify the owner at his own valuation of the slave. No slave could
be tortured against his master, but the purchase of a slave to render
his testimony illegal was pronounced null and void; the purchase money
was returned, and the slave was tortured. The immunity of freedmen is
likewise shown by the cancelling of any manumission conferred for the
purpose of preventing torture for evidence.[1466] Theodoric, however,
allowed his Roman subjects to be governed by their ancient laws, and
he apparently had no repugnance to the use of torture when it could
legally be inflicted. Thus he seems particularly anxious to ferret
out and punish sorcerers, and in writing to the Prefect and Count of
Rome he urges them to apprehend certain suspected parties, and try
them by the regular legal process, which, as we have seen, by the
edicts of Constantius and his successors, was particularly severe in
enjoining torture in such cases, both as a means of investigation and
of punishment.[1467]
On the other hand, the Wisigoths founded a permanent state, and as they
were the only race whose use of torture was uninterrupted from the
period of their settlement until modern times, and as their legislation
on the subject was to a great extent a model for that of other nations,
it may be worth while to examine it somewhat closely.
The earliest code of the Wisigoths is supposed to have been compiled
by Eurik, in the middle of the fifth century, but it was subsequently
much modified by recensions and additions. It was remoulded by
Chindaswind and Recaswind about the middle of the seventh century,
and it has reached us only in this latest condition, while the MSS.
vary so much in assigning the authorship of the various laws that but
little reliance can be placed upon the assumed dates of most of them.
Chindaswind, moreover, in issuing his revised code, prohibited for the
future the use of the Roman law, which had previously been in force
among the subject populations, under codes specially prepared for them
by order of Alaric II. Thus the Wisigothic laws, as we have them, are
not laws of race, like the other Barbarian codes, but territorial laws
carefully digested for a whole nation by men conversant alike with the
Roman and with their own ancestral jurisprudence.
It is therefore not surprising to find in them the use of torture
legalized somewhat after the fashion of the imperial constitutions,
and yet with some humane modifications and restrictions. Slaves were
liable to torture under accusation, but the accuser had first to make
oath that he was actuated by neither fraud nor malice in preferring
the charge; and he was further obliged to give security that he would
deliver to the owner another slave of equal value if the accused were
acquitted. If an innocent slave were crippled in the torture, the
accuser was bound to give two of like value to the owner, and the
sufferer received his freedom. If the accused died under the torture,
the judge who had manifested so little feeling and discretion in
permitting it was also fined in a slave of like value, making three
enuring to the owner, and careful measures were prescribed to insure
that a proper valuation was made. If the accuser was unable to meet
the responsibility thus incurred, he was himself forfeited as a slave.
Moreover, the owner was always at liberty to save his slave from the
torture by proving his innocence otherwise if possible; and if he
succeeded, the accuser forfeited to him a slave of equal value, and
was obliged to pay all the costs of the proceedings.[1468]
Freedmen were even better protected. They could only be tortured for
crimes of which the penalties exceeded a certain amount, varying with
the nature of the freedom enjoyed by the accused. If no confession were
extorted, and the accused were crippled in the torture, the judge and
the accuser were both heavily fined for his benefit, and if he died,
the fines were paid to his family.[1469]
There could have been little torturing of slaves as witnesses, for in
general their evidence was not admissible, even under torture, against
any freeman, including their masters. The slaves of the royal palace,
however, could give testimony as though they were freemen,[1470] and,
as in the Roman law, there were certain excepted crimes, such as
treason, adultery, homicide, sorcery, and coining, in accusations of
which slaves could be tortured against their masters, nor could they be
preserved by manumission against this liability.[1471]
As regards freemen, the provisions of different portions of the code
do not seem precisely in harmony, but all of them throw considerable
difficulties in the way of procedures by torture. An early law directs
that, in cases of theft or fraud, no one shall be subjected to torture
unless the accuser bring forward the informer, or inscribe himself with
three sureties to undergo the _lex talionis_ in case the accused prove
innocent. Moreover, if no confession were extorted, the informer was
to be produced. If the accuser could not do this, he was bound to name
him to the judge, who was then to seize him, unless he were protected
by some one too powerful for the judicial authority to control. In
this event it was the duty of the judge to summon the authorities to
his aid, and in default of so doing he was liable for all the damages
arising from the case. The informer, when thus brought within control
of the court, was, if a freeman, declared infamous, and obliged to
pay ninefold the value of the matter in dispute; if a slave, sixfold,
and to receive a hundred lashes. If the freeman were too poor to pay
the fine, he was adjudged as a slave in common to the accuser and the
accused.[1472]
A later law, issued by Chindaswind, is even more careful in its very
curious provisions. No accuser could force to the torture a man higher
in station or rank than himself. The only cases in which it could be
inflicted on nobles were those of treason, homicide, and adultery,
while for freemen of humbler position the crime must be rated at a
fine of 500 solidi at least. In these cases, an open trial was first
prescribed. If this were fruitless, the accuser who desired to push
the matter bound himself in case of failure to deliver himself up as
a slave to the accused, who could maltreat him at pleasure, short of
taking his life, or compound with him at his own valuation of his
sufferings. The torture then might last for three days; the accuser
himself was the torturer, subject to the supervision of the judge, and
might inflict torment to any extent that his ingenuity could suggest,
short of producing permanent injury or death. If death resulted, the
accuser was delivered to the relatives of the deceased to be likewise
put to death; the judge who had permitted it through collusion or
corruption was exposed to the same fate, but if he could swear that
he had not been bribed by the accuser, he was allowed to escape
with a fine of 500 solidi. A very remarkable regulation, moreover,
provided against false confessions extorted by torment. The accuser
was obliged to draw up his accusation in all its details, and submit
it secretly to the judge. Any confession under torture which did not
agree substantially with this was set aside, and neither convicted the
accused nor released the accuser from the penalties to which he was
liable.[1473]
Under such a system, strictly enforced, few persons would be found
hardy enough to incur the dangers of subjecting an adversary to
the rack. As with the Franks, however, so among the Wisigoths, the
laws were not powerful enough to secure their own observance. The
authority of the kings grew gradually weaker and less able to repress
the assumptions of ambitious prelates and unruly grandees, and it is
easy to imagine that in the continual struggle all parties sought to
maintain and strengthen their position by an habitual disregard of law.
At the Thirteenth Council of Toledo, in 683, King Erwig, in his opening
address, alludes to the frequent abuse of torture in contravention
of the law, and promises a reform. The council, in turn, deplores
the constantly recurring cases of wrong and suffering wrought “regiæ
subtilitatis astu vel profanæ potestatis instinctu,” and proceeds to
decree that in future no freeman, noble, or priest shall be tortured
unless regularly accused or indicted, and properly tried in public; and
this decree duly received the royal confirmation.[1474]
As the Goths emerge again into the light of history after the
Saracenic conquest, we find these ancient laws still in force among
the descendants of the refugees who had gathered around Don Pelayo.
The use of the Latin tongue gradually faded out among them, and about
the twelfth or thirteenth century the Wisigothic code was translated
into the popular language, and this Romance version, known as the
_Fuero Juzgo_, long continued the source of law in the Peninsula.
In this, the provisions of the early Gothic monarchs respecting
torture are textually preserved, with two trifling exceptions, which
may reasonably be regarded as scarcely more than mere errors of
copyists.[1475] Torture was thus maintained in Spain as an unbroken
ancestral custom, and the earliest reference which I have met with
of it in mediæval jurisprudence occurs in 1228, when Don Jayme el
Conquistador of Aragon forbade his representatives from commencing
proceedings by its employment without special orders.[1476] When
Alfonso the Wise, about the middle of the thirteenth century, attempted
to revise the jurisprudence of his dominions, in the code known as
_Las Siete Partidas_, which he promulgated, he only simplified and
modified the proceedings, and did not remove the practice. Although he
proclaimed that the person of man is the noblest thing of earth—“La
persona del home es la mas noble cosa del mundo”[1477]—he held that
stripes and other torture inflicted judicially were no dishonor even
to Spanish sensitiveness.[1478] Asserting that torture was frequently
requisite for the discovery of hidden crimes,[1479] he found himself
confronted by the Church, which taught, as we shall see hereafter, that
confessions extorted under torture were invalid. To this doctrine he
gave his full assent,[1480] and then, to reconcile these apparently
incompatible necessities, he adopted an expedient partially suggested
not long before by Frederic II., which subsequently became almost
universal throughout Europe, whereby the prohibition of conviction on
extorted confessions was eluded. After confession under torture, the
prisoner was remanded to his prison. On being subsequently brought
before the judge he was again interrogated, when, if he persisted
in his confession, he was condemned. If he recanted, he was again
tortured; and, if the crime was grave, the process could be repeated a
third time; but, throughout all, he could not be convicted unless he
made a free confession apart from the torture. Even after conviction,
moreover, if the judge found reason to believe that the confession
was the result of fear of the torture, or of rage at being tortured,
or of insanity, the prisoner was entitled to an acquittal.[1481] The
humane interference of the Church thus resulted only in a redoublement
of cruelty; and the system once introduced, speedily tended to break
down the limits imposed on it. In a little more than half a century
after the death of Alfonso, judges were in the habit of not contenting
themselves with three inflictions, but continued the torture as long
as the prisoner confessed on the rack and retracted his confession
subsequently.[1482]
Alfonso’s admiration of the Roman law led him to borrow much from
it rather than from the Gothic code, though both are represented in
the provisions which he established. Thus, except in accusations of
treason, no one of noble blood could be tortured, nor a doctor of
laws or other learning, nor a member of the king’s council, or that
of any city or town, except for official forgery, nor a pregnant
woman, nor a child under fourteen years of age.[1483] So, when several
accomplices were on trial, the torturer was directed to commence with
the youngest and worst trained, as the truth might probably be more
readily extracted from him.[1484] The provision, also, that when
a master, or mistress, or one of their children was found dead at
home, all the household slaves were liable to torture in the search
for the murderer, bears a strong resemblance to the cruel law of the
Romans, which condemned them to death in case the murderer remained
undiscovered.[1485]
The regulations concerning the torture of slaves are founded, with
little variation, on the Roman laws. Thus, the evidence of a slave
was only admissible under torture, and no slave could be tortured to
prove the guilt of a present or former owner, nor could a freedman,
in a case concerning his patron, subject to the usual exceptions
which we have already seen. The excepted crimes enumerated by Alfonso
are seven, viz.: adultery, embezzlement of the royal revenues by tax
collectors, high treason, murder of a husband or wife by the other,
murder of a joint owner of a slave by his partner, murder of a testator
by a legatee, and coining. With the slave, as with the freeman, all
testimony under torture required subsequent confirmation.[1486]
There is one noteworthy innovation, however, in the Partidas which was
subsequently introduced widely into the torture codes of Europe, and
which, in theory at least, greatly extended their sphere of action.
This was the liability of freemen as witnesses. When a man’s evidence
was vacillating and contradictory, so as to afford reasonable suspicion
that he was committing perjury, all criminal judges were empowered to
subject him to torture, so as to ascertain the truth, provided always
that he was of low condition, and did not belong to the excepted
classes.[1487]
With all this, there are indications that Alfonso designed rather
to restrict than to extend the use of torture, and, if his general
instructions could have been enforced, there must have been little
occasion for its employment under his code. In one passage he directs
that when the evidence is insufficient to prove a charge, the accused,
if of good character, must be acquitted; and in another he orders its
application only when common report is adverse to a prisoner, and he is
shown to be a man of bad repute.[1488] Besides, an accuser who failed
to prove his charge was always liable to the _lex talionis_, unless he
were prosecuting for an offence committed on his own person, or for
the murder of a relative not more distant than a brother or sister’s
child.[1489] The judge, moreover, was strictly enjoined not to exceed
the strict rules of the law, nor to carry the torture to a point
imperilling life or limb. If he deviated from these limits, or acted
through malice or favoritism, he was liable to a similar infliction
on his own person, or to a penalty greater than if he were a private
individual.[1490] The liability of witnesses was further circumscribed
by the fact that in cases involving corporal punishment, no one could
be forced to bear testimony who was related to either of the parties
as far as the fourth degree of consanguinity, in either the direct
or collateral lines, nor even when nearly connected by marriage, as
in the case of fathers-in-law, step-children, etc.[1491] Orders to
inflict torture, moreover, were one of the few procedures which could
be appealed from in advance.[1492] Several of these limitations became
generally adopted through Europe. We shall see, however, that they
afforded little real protection to the accused, and it is more than
probable that they received as little respect in Spain as elsewhere.
There were many varieties of torture in use at the period, but Alfonso
informs us that only two were commonly employed, the scourge and the
strappado, which consisted in hanging the prisoner by the arms while
his back and legs were loaded with heavy weights.[1493] The former of
these, however, seems to be the only one alluded to throughout the code.
As a whole, the Partidas were too elaborate and too much in advance
of the wants of the age to be immediately successful as a work of
legislation, and they were not confirmed by the Córtes until 1348. In
the Ordenamiento de Alcalà of Alfonso XI., issued in-that year, they
are referred to as supplying all omissions in subsequent codes.[1494]
It is probable that in his system of torture Alfonso the Wise merely
regulated and put into shape the customs prevalent in his territories,
for the changes in it which occurred during the succeeding three or
four centuries are merely such as can be readily explained by the
increasing influence of the revived Roman jurisprudence, and the
introduction of the doctrines of the Inquisition with respect to
criminal procedures. In the final shape which the administration of
torture assumed in Castile, as described by Villadiego, an eminent
legist writing about the year 1600, it was only employed when the proof
was strong, and yet not sufficient for conviction. No allusion is made
to the torture of witnesses, and Villadiego condemns the cruelty of
some judges who divide the torture into three days in order to render
it more effective, since, after a certain prolongation of torment, the
limbs begin to lose their sensibility, which is recovered after an
interval, and on the second and third days they are more sensitive than
at first. This he pronounces rather a repetition than a continuation
of torture, and repetition was illegal unless rendered necessary by
the introduction of new testimony.[1495] As in the thirteenth century,
nobles, doctors of law, pregnant women, and children under fourteen
were not liable, except in cases of high treason and some other
heinous offences. The clergy also were now exempted, unless previously
condemned as infamous, and advocates engaged in pleading enjoyed a
similar privilege. With the growth of the Inquisition, however, heresy
had now advanced to the dignity of a crime which extinguished all
prerogatives, for it was held to be a far more serious offence to be
false to Divine than to human majesty.[1496] The Partidas allow torture
in the investigation of comparatively trivial offences, but Villadiego
states that it should be employed only in the case of serious crimes,
entailing bodily punishment more severe than the torture itself,
and torture was worse than the loss of the hands. Thus, when only
banishment, fines, or imprisonment were involved, it could not be
used. The penalties incurred by judges for its excessive or improper
application were almost identical with those prescribed by Alfonso,
and the limitation that it should not be allowed to endanger life or
limb was only to be exceeded in the case of treason, when the utmost
severity was permissible.[1497] In 1489 Ferdinand and Isabella had
directed that no criminal case should be heard by less than three
alcaldes or judges sitting together, and torture could not be employed
without a formal decision signed unanimously by all three. In 1534
Charles V. called attention to the neglect of this rule, whereby the
accused was deprived of the right of appeal, and he ordered that it
should be strictly observed in future—regulations which duly maintained
their place on the statute book as long as the use of torture was
continued.[1498]
Many varieties were in use, but the most common were the strappado and
pouring water down the throat; but when the accused was so weak as to
render these dangerous, fire was applied to the soles of the feet;
and the use of the scourge was not unusual. As in the ancient laws,
the owner of slaves was entitled to compensation when his bondmen
were unjustly tortured. If there was no justification for it, he was
reimbursed in double the estimated value; if the judge exceeded the
proper measure of torment, he made it good to the owner with another
slave.[1499]
Whatever limitations may theoretically have been assigned to the
application of torture, however, it is probable that they received
little respect in practice. Simancas, Bishop of Badajos, who was a
little anterior to Villadiego, speaks of it as a generally received
axiom that scarcely any criminal accusation could be satisfactorily
tried without torture.[1500] This is confirmed by the account recently
discovered by Bergenroth of the secret history of the execution of Don
Carlos, for, whether it be authentic or not, it shows how thoroughly
the use of torture had interpenetrated the judicial system of Spain. It
states that when Philip II. determined to try his wretched son for the
crime of encouraging the rebellious movements in the Netherlands, and
the prince denied the offence, torture was applied until he fainted,
and, on recovering his senses, consented to confess in order to escape
the repetition which was about to be applied. It is hardly to be
believed that even a Spanish imagination could invent the dark and
terrible details of this dismal story; and even if it be not true, its
author must have felt that such an incident was too probable to destroy
its vraisemblance.
At the same time, Castilian justice kept itself free from one of the
worst abuses which, as we shall see hereafter, grew out of the use of
torture, in the secret inquisitorial process which established itself
almost everywhere. A law of Alfonso XI. issued in 1325 peremptorily
ordered that the accused should not be denied the right to know the
contents of the inquest made with respect to him, and that the names of
the witnesses should be communicated to him so that he could defend
himself freely and have all the means to which he was entitled of
establishing his innocence. Ferdinand and Isabella, moreover, in 1480,
decreed that all who desired counsel should be allowed the privilege,
those who were poor being furnished at the public expense, and no
torture could be inflicted before this was complied with. These laws,
which offer so creditable a contrast to the legislation of other lands,
remained in force and were embodied in the Recopilacion.[1501]
CHAPTER V.
CARLOVINGIAN AND FEUDAL LAW.
In turning to the other barbarian races which inherited the fragments
of the Roman empire, we find that the introduction of torture as
a recognized and legal mode of investigation was long delayed.
Under the Merovingians, as we have seen, its employment, though not
infrequent, was exceptional and without warrant of law. When the slow
reconstruction of society at length began, the first faint trace
of torture is to be found in a provision respecting the crimes of
sorcery and magic. These were looked upon with peculiar detestation,
as offences against both God and man. It is no wonder then if the
safeguards which the freeman enjoyed under the ordinary modes of
judicial procedure were disregarded in the cases of those who violated
every law, human and divine. The legislation of Charlemagne, indeed,
was by no means merciful in its general character. His mission was to
civilize, if possible, the savage and turbulent races composing his
empire, and he was not overnice in the methods selected to accomplish
the task. Still, he did not venture, even if he desired, to prescribe
torture as a means of investigation, except in the case of suspected
sorcerers, for whom, moreover, it is ordered indirectly rather than
openly.[1502] Yet, by this time, the personal inviolability of the
freeman was gone. The infliction of stripes and of hideous mutilations
is frequently directed in the Capitularies, and even torture and
banishment for life are prescribed as a punishment for insulting
bishops and priests in church.[1503]
This apparent inconsistency is only a repetition of what we have
seen in the Persian and Indian institutions, where torture was
superfluous in the presence of other forms of proof, and in Greece
and Rome where it makes its appearance in the absence of those forms.
Though there was no theoretical objection to torture as a process of
investigation, yet there was no necessity for its employment as a means
of evidence. That the idea of thus using it in matters of great moment
was not unfamiliar to the men of that age is evident when we find it
officially stated that the accomplices of Bernard, King of Italy, in
his rebellion against Louis le Débonnaire, in 817, on their capture
confessed the whole plot without being put to the torture.[1504] Such
instances, however, were purely exceptional. In ordinary matters, there
was a complete system of attack and defence which supplemented all
deficiencies of testimony in doubtful cases. Sacramental purgation,
the wager of battle, and the various forms of vulgar ordeals were not
only primæval customs suited to the feelings and modes of thought of
the race, but they were also much more in harmony with the credulous
faith inculcated by the Church, and the Church had by this time entered
on the career of temporal supremacy which gave it so potent a voice
in fashioning the institutions of European society. For all these,
the ministrations of the ecclesiastic were requisite, and in many of
them his unseen agency might prove decisive. On the other hand, the
humane precepts which forbade the churchman from intervening in any
manner in judgments involving blood precluded his interference with the
torture chamber; and in fact, while torture was yet frequent under the
Merovingians, the canons of various councils prohibited the presence
of any ecclesiastic in places where it was administered.[1505] Every
consideration, therefore, would lead the Church in the ninth century to
prefer the milder forms of investigation, and to use its all-powerful
influence in maintaining the popular belief in them. The time had not
yet come when, as we shall see hereafter, the Church, as the spiritual
head of feudal Christendom, would find the ordeal unnecessary and
torture the most practicable instrumentality to preserve the purity of
faith and the steadfastness of implicit obedience.
In the ninth century, moreover, torture was incompatible with the forms
of judicial procedure handed down as relics of the time when every
freeman bore his share in the public business of his sept. Criminal
proceedings as yet were open and public. The secret inquisitions
which afterwards became so favorite a system with lawyers did not
then exist. The _mallum_, or court, was perhaps no longer held in the
open air,[1506] nor were the freemen of the district constrained as
of old to be present,[1507] but it was still free to every one. The
accuser and his witnesses were confronted with the accused, and the
criminal must be present when his sentence was pronounced.[1508] The
purgatorial oath was administered at the altar of the parish church;
the ordeal was a public spectacle; and the judicial duel drew thousands
of witnesses as eager for the sight of blood as the Roman plebs. These
were all ancestral customs, inspiring implicit reverence, and forming
part of the public life of the community. To substitute for them the
gloomy dungeon through whose walls no echo of the victim’s screams
could filter, where impassible judges coldly compared the incoherent
confession wrung out by insufferable torment with the anonymous
accusation or the depositions of secret witnesses, required a total
change in the constitution of society.
The change was long in coming. Feudalism arose and consolidated its
forces on the ruins of the Carlovingian empire without altering the
principles upon which the earlier procedures of criminal jurisdiction
had been based. As the local dignitaries seized upon their fiefs and
made them hereditary, so they arrogated to themselves the dispensation
of justice which had formerly belonged to the central power, but their
courts were still open to all. Trials were conducted in public upon
well-known rules of local law and custom; the fullest opportunities
were given for the defence; and a denial of justice authorized the
vassal to renounce the jurisdiction of his feudal lord and seek a
superior court.[1509]
Still, as under the Merovingians, torture, though unrecognized
by law, was occasionally employed as an extraordinary element of
judicial investigation, as well as a means of punishment to gratify
the vengeance of the irresponsible and cruel tyrants who ruled with
absolute sway over their petty lordships. A few such instances occur in
the documents and chronicles of the period, but the terms in which they
are alluded to show that they were regarded as irregular.
Thus, it is related of Wenceslas, Duke of Bohemia, in the early part
of the tenth century, that he destroyed the gibbets and fearful
instruments of torture wherewith the cruelty of his judges had been
exercised, and that he never allowed them to be restored.[1510] An
individual case of torture which occurred in 1017 has chanced to be
preserved to us by its ending in a miracle, and being the occasion of
the canonization of a saint. A pious pilgrim, reputed to belong to
the royal blood of Scotland, while wandering on the marches between
the Bavarians and the Moravians, was seized by the inhabitants on
suspicion of being a spy, and, to extort a confession, was exposed to
a succession of torments which ended in hanging him on a withered
tree until he died. The falsity of the accusation and the sanctity of
the victim were manifested by the uninterrupted growth of his hair and
nails and the constant flowing of blood from a wound, while the dead
tree suddenly put forth leaves and flowers. Margrave Henry of Bavaria
had him reverently buried, and he was duly enrolled in the catalogue of
saints.[1511] A letter of Gerard, Bishop of Cambrai, in 1025, relating
how certain suspected heretics could not be forced by torment to
confession, shows that ecclesiastics already were prepared, in spite
of the received dogmas of the Church, to have recourse to such means
when no others could be found to protect the purity of the faith.[1512]
In the celebrated case, also, of the robbery of the church of Laon,
about the year 1100, the suspected thief, after conviction by the cold
water ordeal, was tortured by command of the bishop in order to make
him surrender the sacred vessels which he had concealed. Basting with
hot lard was tried unsuccessfully; he was then hanged by the neck
and let down at intervals for nearly a whole day, and when life was
almost extinct his resolution gave way and he agreed to discover the
place where the valuables were hidden.[1513] When Charles the Good of
Flanders was murdered in 1127, one of the assassins fled to Terouane,
where he was discovered and forced by scourging to disclose the names
of his accomplices.[1514] About 1130 at Petersberg, in Saxony, we are
told of a shepherd tortured by his lord to extract money, and saved
from suffering by an earnest prayer to St. Peter.[1515] When Richard I.
of England was endeavoring to return through Germany from the crusade,
it was by the torture of his page that the identity of the royal
traveller was discovered, and he was delivered to his enemy the Duke of
Austria.[1516]
These are evidently rather sporadic and exceptional cases than
indications of any systematic introduction of the practice. A more
significant allusion, however, is found in the reproof administered,
about 1125, by Hildebert, Bishop of le Mans, to one of his priests, who
had been concerned in the torture of a suspected thief, for the purpose
of extracting a confession. Hildebert argues that the infliction of
torture for confession is a matter for judicial decision and not of
Church discipline, and therefore not fit for a clerk to be engaged
in.[1517] This would seem to show that it occasionally was a recognized
means of proof in the lay tribunals of the period, though as yet not
favored by the Church. If so, no record of its introduction or evidence
of its customary use has been preserved to us, though there is abundant
evidence of its employment as a punishment and for the extortion of
money.
As a punishment legally inflicted, we find it prescribed, in 1168, by
Frederic Barbarossa in cases of petty thefts,[1518] and in the next
century by Frederic II. as a penalty for high treason.[1519] Special
cases, too, may be instanced, where its infliction on a large scale
shows that the minds of men were not unfamiliar with its use. Thus
when, in 1125, the inhabitants of Erfurt were guilty of some outrages
on the imperial authority, and the town was besieged and captured by
the Emperor Lothair, the chronicler relates that large numbers of the
citizens were either killed, blinded, or tortured in various ways by
the vindictive conqueror,[1520] and in 1129 he treated the citizens of
Halle in the same manner.[1521]
Even towards the close of the thirteenth century, we find Rodolph of
Hapsburg interfering in favor of a prisoner whom one of his nobles was
afflicting with cruel torments. The Emperor, however, does not venture
to command, but merely entreats that the tortures be suspended until he
shall have an interview with the aggressor.[1522]
So summary and effective a mode of forcing the weak and unprotected
to ransom themselves was not likely to be overlooked in those ages
of violence, and though the extra-judicial use of torture is foreign
to our purpose, yet, as showing how men educated themselves in its
employment, it may be worth while to allude briefly to this aspect
of the subject. Thus, Duke Swantopluck of Bohemia, in a marauding
expedition into Hungary in 1108, caused to be racked or put to death
all prisoners who could not purchase escape by heavy ransoms.[1523]
At the same period, Germany is described to us by an eye-witness as
covered with feudal chieftains who lived a life of luxury by torturing
the miserable wretches that could scarce obtain bread and water for
their own existence.[1524] In Spain, the same means were understood
and employed by the savage nobles of that barbarous period.[1525]
In England, the fearful anarchy which prevailed under King Stephen
encouraged a similar condition of affairs. The baronial castles which
then multiplied so rapidly became mere dens of robbers who ransacked
the country for all who had the unfortunate reputation of wealth. From
these they extracted the last penny by tortures; and the chronicler
expatiates on the multiplicity and horrid ingenuity of the torments
devised—suspension by the feet over slow fires; hanging by the thumbs;
knotted ropes twisted around the head; crucet-houses, or chests filled
with sharp stones, in which the victim was crushed; sachentages, or
frames with a sharp iron collar preventing the wearer from sitting,
lying, or sleeping; dungeons filled with toads and adders; slow
starvation, &c. &c.[1526] Even in the more settled times of the close
of the reign of Henry II. a case is recorded of a heavy fine inflicted
on a man for illegally capturing and torturing a woman;[1527] under
Richard I. an epistle of Clement III. refers to a knight who had
confessed that he had tortured a priest and forced him to redeem
himself with a large sum of money;[1528] and in 1210 King John
seized all the Jews in England and tortured them until they ransomed
themselves heavily.[1529]
In all this, however, there is no evidence of the revival of torture
as a means of legal investigation. The community was satisfied with
the old barbaric forms of trial, and the Church, still true to its
humanizing instincts, lost no opportunity of placing the seal of its
disapprobation on the whole theory of extorting confessions. At an
early period, it had even been a matter of dispute whether a Christian
magistrate, after baptism, was at liberty to inflict torment and
pronounce sentence of death. The Synod of Rome in 384 had declared
that no Christian could exercise secular power without sin, because he
was obliged to contravene the teachings of the Church by ordering the
application of torture in judicial pleadings;[1530] and if Innocent I.,
in 405, had decided that such proceedings were lawful, it was only on
the ground that the Church had no right to resist the laws or to oppose
the powers ordained of God.[1531] About the same time St. Augustin
had exposed the cruel absurdity of torture with a cogent terseness
that has rarely been excelled, and had stamped it with the infamy
which it deserved.[1532] The great name of Gregory I. was on record in
the sixth century, denouncing as worthless a confession extorted by
incarceration and hunger.[1533] When Nicholas I., who did so much to
build up ecclesiastical power and influence, addressed, in 866, his
well-known epistle to the Bulgarians to aid and direct them in their
conversion to orthodoxy, he recites that he is told that, in cases of
suspected theft, their courts endeavor to extort confession by stripes,
and by pricking with a pointed iron. This he pronounces to be contrary
to all law, human and divine, for confessions to be valid should be
spontaneous; and he argues at some length on the uncertainty of the
system of torture, and the injustice to which it leads, concluding with
a peremptory prohibition of its continuance.[1534]
In the first half of the same century, the manufacturers of the False
Decretals had attributed to Alexander I. an epistle designed to
protect the Church from pillage and oppression, in which that pontiff
is made to threaten with infamy and excommunication those who extort
confessions or other writings from ecclesiastics by force or fear, and
to lay down the general rule that confessions must be voluntary and not
compulsory.[1535] On the authority of this, Ivo of Chartres, at the
commencement of the twelfth century, declares that men in holy orders
cannot be forced to confess;[1536] and half a century later, Gratian
lays down the more general as well as more explicit rule that no
confession is to be extorted by the instrumentality of torture.[1537]
This position was consistently maintained until the revival of the
Roman law familiarized the minds of men with the procedures of the
imperial jurisprudence, when the policy of the Church altered, and it
yielded to the temptation of obtaining so useful a means of reaching
and proving the otherwise impalpable crime of heresy.
CHAPTER VI.
REAPPEARANCE OF TORTURE.
The latter half of the twelfth century saw the study of the civil law
prosecuted with intense ardor, and, in the beginning of the thirteenth,
Innocent III. struck a fatal blow at the barbaric systems of the ordeal
and sacramental compurgation by forbidding the rites of the Church
to the one and altering the form of oath customary to the other. The
unreasoning faith which had reposed confidence in the boiling caldron,
or the burning ploughshare, or the trained champion as the special
vehicle of Divine judgment, was fading before the Aristotelian logic
of the schools, and dialectical skill could not but note the absurdity
of acquitting a culprit because he could beg or buy two, or five, or
eleven men to swear to their belief in his oath or denial.
Yet with all these influences at work, the ancestral customs maintained
their ground long and stubbornly. It is not until the latter half of
the thirteenth century that the first faint traces of legalized torture
are to be found in France, at whose University of Paris for more than
a hundred years the study of the Pandects had become the absorbing
topic, and where the constantly increasing power of the crown found
its most valuable instruments in the civil lawyers, and its surest
weapon against feudalism in the extension of the royal jurisdiction.
In Germany, the progress was even slower. The decline of the central
authority, after the death of Frederic Barbarossa, rendered any
general change impossible, and made the absolutist principles of the
imperial jurisprudence especially distasteful to the crowd of feudal
sovereigns, whose privileges were best supported by perpetuating
organized anarchy. The early codes, therefore, the Sachsenspiegel, the
Schwabenspiegel, the Kayser-Recht, and the Richstich Landrecht, which
embodied the judicial proceedings of the Teutonic nations from the
thirteenth to the fifteenth centuries, seem to know no other mode of
deciding doubtful questions than sacramental purgation and the various
forms of ordeal. During the latter portion of this period, it is true,
torture begins to appear, but it is an innovation.[1538]
The first indications of the modern use of torture show distinctly
that its origin is derived from the civil law. In the Latin Kingdoms
of the East, the Teutonic races were brought into contact with the
remains of the old civilization, impressive even in its decrepitude.
It was natural that, in governing the motley collection of Greeks,
Syrians, and Franks, for whom they had to legislate, they should adopt
some of the institutions which they found in force amid their new
possessions, and it is only surprising that torture did not form a
more prominent feature in their code. The earliest extant text of the
_Assises de Jerusalem_ is not older than the thirteenth century, and
the blundering and hesitating way in which it recognizes, in a single
instance, the use of torture shows how novel was the idea of such
procedure to the feudal barons, and how little they understood the
principles governing its application. When a murderer was caught in the
act by two witnesses, he could be promptly hanged on their testimony,
if they were strangers to the victim. If, however, they were relatives,
their testimony was held suspect, and the confession of the accused
was requisite to his conviction. To obtain this, he was subjected to
torture for three days; if he confessed, he was hanged; if obdurate,
he was imprisoned for a year and a day, with the privilege of clearing
himself during that period by the ordeal of the red-hot iron. If he
declined this, and if during his confinement no additional evidence was
procured, he was acquitted, and could not be again appealed for the
murder.[1539]
This show’s the transition state of the question. The criminal is
caught with the red hand and the evidence of guilt is complete,
save that the witnesses may be interested; confession thus becomes
requisite, yet the failure to extort it by prolonged torment does not
clear the accused; the ordeal is resorted to in order to supplement
the torture, and solve the doubts which the latter could not remove;
and finally, the criminal is absolved, though he dare not trust the
judgment of God, and though the uncertainties in which torture had left
the case are not removed.
Italy was the centre from which radiated the influences of the Roman
law throughout Western Europe, and, as might be expected, it is to
Italy that we must look for the earliest incorporation of torture in
the procedures of modern criminal jurisprudence. The Veronese laws
in force in 1228 already show a mixture of proceedings suggestive,
like the Assises de Jerusalem, of the impending change. In doubtful
cases, the podestà was empowered to ascertain the truth of testimony
by either inquest, torture, or the duel.[1540] This shows that the
employment of torture was by this time recognized to some extent,
though as the code is a very full one and this is the only allusion
to it, it evidently had not yet grown into one of the regular legal
processes. So in the legislation of Frederic II. for his Neapolitan
provinces, promulgated in 1231, the mode in which it is prescribed
shows that it was as yet but sparingly employed. As Frederic was one of
the earliest secular legislators who discountenanced and restricted the
various forms of the ordeal, it was natural that, with his education
and temperament, he should seek to replace them with the system of the
Roman codes which he so much admired.
When a secret murder or other heinous crime was committed, and the
most stringent investigation could not convict the perpetrators, if
the weight of suspicion fell on persons of humble station and little
consequence, they could be tortured for confession. If no torment could
wring from them an acknowledgment of guilt, or if, as often happened
(“prout accidere novimus in plerisque”), their resolution gave way
under insufferable torment and they subsequently recanted, then the
punishment, in the shape of a fine, was inflicted on the district where
the crime had occurred.[1541] From this it is evident that torture was
not exactly a novelty, but that as yet it was only ventured upon with
the lowest and most unprotected class of society, and that confession
during its infliction was not regarded as sufficient for conviction,
unless subsequently ratified.
During the remainder of the century, the statutes of many of the
Italian cities show the gradual introduction of torture to replace
the barbarian processes which were not indigenous,[1542] and which
the traditional hate of the Italian States for the Tedeschi was not
likely to render popular. That by the middle of the century, indeed,
the practical applications of torture had been profoundly studied and
were thoroughly understood in all their most inhuman ramifications is
sufficiently evident from the accounts which we possess of the fearful
cruelties habitually practised by petty despots such as Eccelino da
Romano.[1543]
The manner in which the use of torture thus in time was superimposed
upon the existing customs of Europe is clearly shown in the law of
Lubeck. The mercantile law of the Middle Ages disregarded, as we have
seen, all the irregular forms of evidence, such as the ordeal, the
judicial duel, &c., and it naturally was not favorable to torture. As
the chief of the Hanse-towns Lubeck, therefore, in its legislation
preserved the principles of the mercantile law, but in time these came
to be expounded by a race of lawyers imbued with the ideas of the
imperial jurisprudence, and little was left of the primitive simplicity
of the original code. Thus the latter, when treating of adultery,
simply provides that the accused must clear himself by oath, or be held
guilty of the charge; but a commentary on it, written in 1664, assumes
that as the crime is a peculiarly secret one recourse must be at once
had to torture where there is colorable ground for suspicion.[1544]
About this time we also find, in the increasing rigor and gradual
systematizing of the Inquisition, an evidence of the growing
disposition to resort to torture, and a powerful element in extending
and facilitating its introduction. The Church had been actively
engaged in discountenancing and extirpating the ordeal, and it now
threw the immense weight of its authority in favor of the new process
of extorting confessions. When Frederic II., from 1220 to 1239,
published his three constitutions directed against heresy, cruel and
unsparing as they were, they contained no indication that torture
was even contemplated as a mode of investigation. In conformity with
the provisions of the Lateran Council of 1215, parties suspected on
insufficient evidence were directed to prove their innocence by some
fitting mode of purgation, and the same instructions were given by
Gregory IX. in 1235.[1545] In 1252, however, when Innocent IV. issued
his elaborate directions for the guidance of the Inquisition in Tuscany
and Lombardy, he ordered the civil magistrates to extort from all
heretics by torture not merely a confession of their own guilt, but
an accusation of all who might be their accomplices; and this derives
additional significance from his reference to similar proceedings as
customary in trials of thieves and robbers.[1546] It shows the progress
made during the quarter of the century and the high appreciation
entertained by the Church for the convenience of the new system.
At first the canons of the Church, which prohibited ecclesiastics from
being concerned in such matters, or even from being present, under pain
of “irregularity,” rendered it necessary for inquisitors to call in the
secular executioners; but this interfered with promptness and secrecy,
and the difficulty was removed with characteristic indirection. A
series of papal bulls from 1256 to 1266 authorized inquisitors and
their assistants to grant mutual absolution and dispensation for
irregularities,[1547] and thus they were able to take the business of
inflicting torture into their own hands—an opportunity of which they
availed themselves fully.
As yet, however, this did not extend beyond Italy. There is extant
a tract, written not long after this time, containing very minute
instructions as to the established mode of dealing with the Waldensian
sectaries known as the “Poor Men of Lyons.” It gives directions to
break down their strength and overcome their fortitude by solitary
confinement, starvation, and terror, but it abstains from recommending
the infliction of absolute and direct torture, while its details are
so full that the omission is fair negative evidence that such measures
were not then customary.[1548]
The whole system of the Inquisition, however, was such as to render
the resort to torture inevitable. Its proceedings were secret; the
prisoner was carefully kept in ignorance of the exact charges against
him, and of the evidence upon which they were based. He was presumed
to be guilty, and his judges bent all their energies to force him to
confess. To accomplish this, no means were too base or too cruel.
According to the tract just quoted, pretended sympathizers were to be
let into his dungeon, whose affected friendship might entrap him into
an unwary admission; officials armed with fictitious evidence were
directed to frighten him with assertions of the testimony obtained
against him from supposititious witnesses; and no resources of fraud or
guile were to be spared in overcoming the caution and resolution of the
poor wretch whose mind, as we have seen, had been carefully weakened
by solitude, suffering, hunger, and terror. From this to the rack and
estrapade the step was easily taken, and was not long delayed. In
1301, we find even Philippe le Bel protesting against the cruelty of
Fulk, the Dominican Inquisitor, and interfering to protect his subjects
from the refinements of torture to which, on simple suspicion of
heresy, unfortunate victims were habitually exposed.[1549] Yet when,
a few years later, the same monarch resolved upon the destruction of
the Templars, he made the Inquisition the facile instrument to which
he resorted, as a matter of course, to extort from De Molay and his
knights, with endless repetition of torments, the confessions from
which he hoped to recruit his exhausted treasury with their broad lands
and accumulated riches.[1550]
The history of the Inquisition, however, is too large a subject to
be treated here in detail, and it can only be alluded to for the
purpose of indicating its influence upon secular law. That influence
was immense. The legists who were endeavoring to eradicate the feudal
customs could not expect the community to share their admiration of
the Roman law, and naturally grasped with eagerness the advantage
offered them in adducing the example of ecclesiastical institutions.
In founding their new system they could thus hardly avoid copying that
which presented itself under all the authority of an infallible Church,
and which had been found to work so successfully in unveiling the
most secret of hidden crimes, those of faith and belief.[1551] When,
therefore, men were taught that in these cases the ordinary forms and
safeguards of the law were not to stand in the way of the public good,
a principle was enunciated capable of illimitable development.
About the time when Innocent IV. was prescribing torture in Italy,
we find the first evidence of its authoritative use in France as an
ordinary legal procedure. In December, 1254, an assembly of the nobles
of the realm at Paris adopted an ordonnance regulating many points
in the administration of justice. Among these occurs an order that
persons of good reputation, even though poor, shall not be put to the
torture on the evidence of one witness, lest, on the one hand, they
may be forced to convict themselves falsely, or, on the other, to buy
themselves off from the infliction.[1552]
This would seem to indicate that the system of judicial torture was so
completely established that its evils and abuses had begun to render
themselves apparent and to require restrictive legislation. Yet the
contemporaneous remains of jurisprudence show no trace of the custom,
and some of them are of a nature to render their silence a negative
proof of no little weight. To this period, for instance, belongs the
earliest extant coutumier of Normandy, published by Ludewig, and it
contains no allusion to torture. The same may be said of the _For
de Béarn_, granted in 1288, and recently printed by MM. Mazure and
Hatoulet, which is very full in its details of judicial procedure. The
collection of the laws of St. Louis, known as the _Établissements_,
is likewise free from any instructions or directions as to its
application, though it could scarcely have been omitted had it formed
part of the admitted jurisprudence of the age. It may be argued,
indeed, that these codes and laws assume the existence of torture, and
therefore make no reference to it, but such an argument would not hold
good with respect to the books of practice which shrewd and experienced
lawyers commenced at that time to draw up for the guidance of courts
in the unsettled period of conflict between the ancient feudal customs
and the invading civil law. For instance, no text-book can well be more
minute than the _Livres de Jostice et de Plet_, written about the year
1260, by a lawyer of the school of Orleans, then celebrated as the
headquarters of the study of the imperial jurisprudence. He manifests
upon almost every page his familiar acquaintance with the civil and
canon law, and he could not possibly have avoided some reference to
torture if it had been even an occasional resource in the tribunals in
which he pleaded, and yet he does not in any way allude to it.
The same conclusion is derivable from the _Coutumes du Beauvoisis_,
written about 1270 by Philippe de Beaumanoir. In his position as royal
bailli, Beaumanoir had obtained the fullest possible familiarity with
all the practical secular jurisprudence of his day, and his tendencies
were naturally in favor of the new system with which St. Louis was
endeavoring to break down the feudal customs. Yet, while he details
at much length every step in all the cases, civil and criminal, that
could be brought into Court, he makes no allusion to torture as a
means of obtaining evidence. In one passage, it is true, he seems
to indicate that a prisoner could be forced, while in prison, to
criminate himself, but the terms employed prove clearly that this
was not intended to include the administration of torment.[1553] In
another place, moreover, when treating of robberies, he directs that
all suspected parties should be long and closely confined, but that,
if they cannot be convicted by external evidence, they must at last be
discharged.[1554] All this is clearly incompatible with the theory of
torture.
The _Conseil_ of Pierre de Fontaines, which was probably written
about the year 1260, affords the same negative evidence in its full
instructions for all the legal proceedings then in use. In these three
works, notwithstanding the reforms attempted by St. Louis, the legist
seems to imagine no other solution than the wager of battle for the
settlement of doubtful cases, wherein testimony is insufficient. The
form of trial is still public, in the feudal or royal courts, and
every opportunity is given both for the attack and the defence. The
work of de Fontaines, moreover, happens to furnish another proof that
he wrote at the commencement of a transition period, during which
the use of torture was introduced. In the oldest MSS. of his work,
which are considered to date from 1260 to 1280, there is a passage to
the effect that a man convicted of crime may appeal, if he has not
confessed, or, when he has confessed, if it has been in consequence
of some understanding (_covent_). In later MSS., transcribed in the
early part of the fourteenth century, the word “covent” is replaced
by “tourmenz,”[1555] thus showing not only the introduction of torture
during the interval, but also that a conviction obtained by it was not
final.
The Ordonnance of 1254, indeed, as far as it relates to torture,
is asserted by modern criticism to have been applicable only to
Languedoc.[1556] If so, its importance is reduced to a minimum, for
in the document as registered in the council of Béziers in 1255, the
section respecting torture is omitted,[1557] and this would seem to
show that even in the south, where the traditions of the Roman law
were continuous, torture was still regarded as an innovation not to
be legally sanctioned. Still it was gradually winning its way against
popular repugnance, for we have in 1260 a charter from Alphonse de
Poitiers to the town of Auzon (Auvergne), in which he grants exemption
from torture in all trials irrespective of the gravity of the
crime.[1558]
While giving due weight, however, to all this, we must not lose
sight of the fact that the laws and regulations prescribed in royal
ordonnances and legal text-books were practically applicable only to
a portion of the population. All non-nobles, who had not succeeded in
extorting special privileges by charter from their feudal superiors,
were exposed to the caprices of barbarous and irresponsible power.
It was a maxim of feudal law that God alone could intervene between
the lord and his villein—“Mès par notre usage n’a-il, entre toi et
ton vilein, juge fors Deu”[1559]—the villein being by no means
necessarily a serf; and another rule prohibited absolutely the villein
from appealing from the judgment of his lord.[1560] Outside of law,
and unauthorized by coutumiers and ordonnances, there must, under such
institutions, have been habitually vast numbers of cases in which the
impatient temper of the lord would seek a solution of doubtful matters,
in the potent cogency of the rack or scourge, rather than waste
time or dignity in endeavoring to cross-question the truth out of a
quick-witted criminal.
Still, as an admitted legal procedure, the introduction of torture was
very gradual. The _Olim_, or register of cases decided by the Parlement
of Paris, extends, with some intervals, from 1255 to 1318, and the
paucity of affairs recorded in which torture was used shows that it
could not have been habitually resorted to during this period. The
first instance, indeed, only occurs in 1283, when the Bishop of Amiens
complains of the bailli of that town for having tried and tortured
three clerks in defiance of the benefit of clergy which entitled them
to exemption from secular jurisdiction. The bailli pleaded ignorance
of their ecclesiastical character, and his plea was admitted as
sufficient.[1561] The next instance of the use of torture is found in
1299, when the royal bailli of Senlis cites the mayor and jurats of
that town before the Parlement, because in a case of theft they had
applied the question to a suspected criminal; and although theft was
within their competence, the bailli argued that torture was an incident
of “haute justice” which the town did not possess. The decision was in
favor of the municipality.[1562] The next year (1300) we find a clerk,
wearing habit and tonsure, complaining that the royal officials of
the town of Villeneuve in Rouergue had tortured him in divers ways,
with ropes and heavy weights, heated eggs and fire, so that he was
crippled, and had been forced to expend three hundred livres Tournois
in medicines and physicians. This, with other proper damages, he prays
may be made good to him by the perpetrators, and the arrêt of the
Parlement orders their persons and property to be seized, and their
possessions valued, in order that the amount may be properly assessed
among them.[1563] Philippe le Bel, notwithstanding his mortal quarrel
with the papacy—or perhaps in consequence of it—was ever careful of
the rights and privileges of the clergy, among which the immunity from
secular jurisdiction and consequently from torture was prominent. The
case evidently turned upon that point.
The fourth case does not present itself until 1306. Two Jews, under
accusation of larceny by their brethren, complain that they had been
illegally tortured by the bailli of Bourges, and though one of them
under the infliction had confessed to complicity, the confession is
retracted and damages of three thousand livres Tournois are demanded.
On the other hand, the bailli maintains that his proceedings are
legal, and asks to have the complainants punished in accordance with
the confession. The Parlement adopts a middle course; it acquits the
Jews and awards no damages, showing that the torture was legal and a
retracted confession valueless.[1564]
The fifth case, which occurs in 1307, is interesting as having for its
reporter no less a personage than Guillaume de Nogaret, the captor of
Boniface VIII. A certain Guillot de Ferrières, on a charge of robbery,
had been tried by the judge of Villelongue and Nicolas Bourges, royal
chatelain of Mont-Ogier. The latter had tortured him repeatedly and
cruelly, so that he was permanently crippled, and his uncle, Étienne
de Ferrières, Chatelain of Montauban, claims damages. The decision
condemns Nicolas Bourges in a mulct of one thousand livres Tournois,
half to Guillot for his sufferings and half to Étienne for his
expenses, besides a fine to the crown.[1565] It is evident that judges
were not allowed to inflict unlimited torment at their pleasure.
The sixth case, occurring in 1310, may be passed over, as the torture
was not judicial, but merely a brutal outrage by a knight on a noble
damsel who resisted his importunities: though it may be mentioned that
of the fine inflicted on him, fifteen hundred livres Tournois enured to
the crown and only one hundred to the victim.[1566]
The seventh case took place in 1312, when Michael de Poolay, accused of
stealing a sum of money from Nicolas Loquetier, of Rouen, was subjected
to a long imprisonment and torture at Château-Neuf de Lincourt, and
was then brought to the Châtelet at Paris, where he was again examined
without confession or conviction. Meanwhile, the real criminal
confessed the theft, and Nicolas applies to the Parlement for the
liberation of Michael, which is duly granted.[1567]
A long interval then occurs, and we do not hear of torture again until
1318, when Guillaume Nivard, a money-changer of Paris, was accused of
coining, and was tortured by the Prevôt of the Châtelet. He contends
that it was illegal, while the Prevôt asserts that his jurisdiction
empowered him to administer it. The Parlement investigates the case,
and acquits the prisoner, but awards him no damages.[1568]
The essentially common-place and trivial character of these cases has
its interest in showing that the practice of appealing to the Parlement
was not confined to weighty matters, and therefore that the few
instances in which torture was involved in such appeals afford a fair
index of the rarity of its use during this period. These cases, too,
have seemed to me worth reciting, as they illustrate the principles
upon which its application was based in the new jurisprudence, and
the tentative and uncertain character of the progress by which the
primitive customs of the European races were gradually becoming
supplanted by the resuscitated Roman law.
A few instances, moreover, are on record in which torture was used in
affairs of state. Thus in 1304 we find Charles of Valois torturing a
Flemish beguine who was accused of an attempt to poison him. The mode
adopted was the application of fire to the soles of the victim’s feet,
and though she was said to have confessed, still he liberated her after
a short imprisonment.[1569] In the frightful scandal, also, of the
daughters-in-law of Philippe le Bel, which occurred in 1314, though
torture does not seem to have been used in examining the principals,
either the princesses or their paramours, it was freely employed upon
the numerous persons who were accused as accessories.[1570] In 1315,
during the long trial of Enguerrand de Marigny, sacrificed after the
death of Philippe le Bel to the hatred of Charles of Valois, torture
was freely used to obtain evidence from his dependents;[1571] and in
the same year Raoul de Presles, accused of the death of the late king,
was exposed to torture without obtaining a confession, and was finally
liberated.[1572]
This undermining of the ancient customs had not been allowed to
continue uninterrupted by protest and resistance. In the closing days
of the reign of Philippe le Bel the feudal powers of France awoke to
the danger with which they were menaced by the extension of the royal
prerogative during the preceding half-century. A league was formed
which seemed to threaten the existence of the institutions so carefully
nurtured by St. Louis and his successors. It was too late, however, and
though the storm broke on the new and untried royalty of Louis Hutin,
the crown lawyers were already too powerful for the united seigneurie
of the kingdom. When the various provinces presented their complaints
and their demands for the restoration of the old order of things, they
were met with a little skilful evasion, a few artful promises, some
concessions which were readily withdrawn, and negatives carefully
couched in language which seemed to imply assent.
Among the complaints we find the introduction of torture enumerated
as an innovation upon the established rights of the subject, but the
lawyers who drew up the replies of the king took care to infringe as
little as they could upon a system which their legal training led
them to regard as an immense improvement in procedure, especially as
it enabled them to supersede the wager of battle, which they justly
regarded as the most significant emblem of feudal independence.
The movement of the nobles resulted in obtaining from the king a series
of charters for the several provinces, by which he defined, as vaguely,
indeed, as he could, the extent of royal jurisdiction claimed, and in
which he promised to relieve them from certain grievances. In some of
these charters, as in those granted to Britanny, to Burgundy, and to
Amiens and Vermandois, there is no allusion made to torture.[1573]
In the two latter, the right to the wager of battle is conceded,
which may explain why the nobles of those provinces were careless to
protect themselves from a process which they could so easily avoid by
an appeal to the sword. In the charter of Languedoc, all that Louis
would consent to grant was a special exemption to those who had enjoyed
the dignity of capitoul, consul, or decurion of Toulouse and to their
children, and even this trifling concession did not hold good in cases
of _lèse-majesté_ or other matters particularly provided for by law;
the whole clause, indeed, is borrowed from the Roman law, which may
have reconciled Louis’s legal advisers to it, more especially as, for
the first time in French jurisprudence, it recognized the crime of
_lèse-majesté_, which marked the triumph of the civil over the feudal
law.[1574] Normandy only obtained a vague promise that no freeman
should be subjected to torture unless he were the object of violent
presumptions in a capital offence, and that the torture should be so
regulated as not to imperil life or limb; and though the Normans were
dissatisfied with this charter, and succeeded in getting a second one
some months later, they gained nothing on this point.[1575]
The official documents concerning Champagne have been preserved to
us more in detail. The nobles of that province complained that the
royal prevôts and serjeants entered upon their lands to arrest their
men and private persons, whom they then tortured in defiance of their
customs and privileges (“contre leurs coustumes et libertez”). To this
Louis promised to put an end. The nobles further alleged that, in
contravention of the ancient usages and customs of Champagne (“contre
les us et coustumes enciens de Champagne”), the royal officers presumed
to torture nobles on suspicion of crime, even though not caught in the
act, and without confession. To this Louis vaguely replied that for the
future no nobles should be tortured, except under such presumptions
as might render it proper, in law and reason, to prevent crime from
remaining unpunished; and that no one should be convicted unless
confession was persevered in for a sufficient time after torture.[1576]
This, of course, was anything but satisfactory, and the Champenois were
not disposed to accept it; but all that they could obtain after another
remonstrance was a simple repetition of the promise that no nobles
should be tortured except under capital accusations.[1577] The struggle
apparently continued, for, in 1319, we find Philippe le Long, in a
charter granted to Périgord and Quercy, promising that the proceedings
preliminary to torture should be had in the presence of both parties,
doubtless to silence complaints as to the secret character which
criminal investigations were assuming.[1578]
The use of torture was thus permanently established in the judicial
machinery of France as one of the incidents in the great revolution
which destroyed the feudal power. Even yet, however, it was not
universal, especially where communes had the ability to preserve their
franchises. Count Beugnot has published, as an appendix to the _Olim_,
a collection known as the _Tout Lieu de St. Disier_, consisting of
314 decisions of doubtful cases referred by the magistrates of St.
Dizier to the city of Ypres for solution, as they were bound to do by
their charter. This especially directed that all cases not therein
provided for should be decided according to the customs of Ypres, and
consequently, for two hundred and fifty years, whenever the eschevins
of the little town in Champagne felt in doubt they referred the matter
to the lordly burghers of Flanders as to a court of last resort. In
the _Tout Lieu_ the cases date mostly from the middle third of the
fourteenth century, and were selected as a series of established
precedents. The fact that, throughout the whole series, torture is not
alluded to in a single instance shows that it was a form of procedure
unknown to the court of the eschevins of St. Dizier, and even to the
superior jurisdiction of the bailli of their suzerain, the Seigneur
of Dampierre. Many of these cases seem peculiarly adapted to the new
inquisitorial system. Thus, in 1335, a man was attacked and wounded in
the street at night. A crowd collected at his cries, and he named the
assailant. No rule was more firmly established than the necessity of
two impartial witnesses to justify condemnation, and the authorities
of St. Dizier, not knowing what course to take, applied as usual for
instructions to the magistrates of Ypres. The latter defined the law
to be that the court should visit the wounded man on his sick-bed and
adjure him by his salvation to tell the truth. If on this he named any
one and subsequently died, the accused should be pronounced guilty; if,
on the other hand, he recovered, then the accused should be treated
according to his reputation: that is, if of good fame, he should be
acquitted; if of evil repute, he should be banished.[1579] No case more
inviting under the theory of torture could well be imagined, and yet
neither the honest burghers of St. Dizier nor the powerful magnates of
Ypres seem to have entertained the idea of its application. So, again,
when the former inquire what proof is sufficient when a man accuses
another of stealing, the answer is that no evidence will convict,
unless the goods alleged to be stolen are found in the possession of
the accused.[1580] The wealthy city of Lille equally rejected the
process of torture. The laws in force there, about the year 1350,
prescribe that in cases of homicide conviction ought to be based upon
absolute evidence, but where this is unattainable then the judges are
allowed to decide on mere opinion and belief, for uncertain matters
cannot be rendered certain.[1581] In such a scheme of legislation, the
extortion of a confession as a condition precedent to condemnation can
evidently find no place.
Attempts to introduce torture in Aquitaine were apparently made,
but they seem to have been resisted. In the Coutumier of Bordeaux,
during the fourteenth century there is a significant declaration that
the sages of old did not wish to deprive men of their liberties and
privileges. Torture, therefore, was prohibited in the case of all
citizens except those of evil repute and declared to be infamous.
The nearest approach to it that was permitted was tying the hands
behind the back, without using pulleys to lift the accused from the
ground.[1582]
By this time, however, places where torture was not used were
exceptional. An allusion to it in 1335 in the register of the court
of the Priory of St. Martin-des-Champs shows that already it was not
confined to the royal jurisdiction, but that it was recognized as an
incident to the possession of haute justice.[1583] By a document of
1359, it appears that it was the custom to torture all malefactors
brought to the Châtelet of Paris,[1584] and though privileged persons
constantly endeavored to exempt themselves from it, as the consuls of
Villeneuve in 1371,[1585] and the Seigneur d’Argenton in 1385,[1586]
other privileged persons as constantly sought to obtain the power of
inflicting it, as shown in the charter of Milhaud, granted in 1369,
wherein the consuls of that town are honored with the special grace
that no torture shall be administered except in their presence, if they
desire to attend.[1587] At the end of the century, indeed, the right to
administer torture in cases wherein the accused denied the charge was
regularly established among the privileges of haute justiciers.[1588]
By this time criminal procedures were fully recognized as
divisible into two classes—the _procès ordinaire_ and the _procès
extraordinaire_. The former of these was carried on by the form of
inquest, the latter by inquisition, in which torture was habitually
employed. There were no definite rules to determine the class to which
any given case might be referred, and though at the beginning of the
fourteenth century the _procès ordinaire_, as its name infers, was the
usual mode of trying criminals, gradually the choice between the two
was left to the discretion of the judge, and this discretion leaned so
constantly in favor of the _procès extraordinaire_ that by the close of
the century it had become the rule rather than the exception.[1589]
This is very clearly shown by the records of the Châtelet of Paris
from 1389 to 1392,[1590] which enable us to form a tolerably distinct
idea of the part assigned to torture in the criminal procedure of this
period. It had virtually become the main reliance of the tribunal, for
the cases in which it was not employed appear to be simply exceptional.
Noble blood afforded no exemption, for gentlemen were placed on the
rack for petty crimes as freely as roturiers.[1591] No avenue of escape
was open to the miserable culprit. If he denied the alleged offence,
he was tortured at once for a confession, and no settled rules seem
to have existed as to the amount of evidence requisite to justify it.
Thus, in one case, a man on the _tresteau_ relating the misdeeds of
his evil life chanced to mention the name of another as a professional
thief. The latter was immediately arrested, and though there was
no specific crime charged against him, he was tortured repeatedly
until sufficient confession was extracted from him to justify his
execution.[1592] If, on the other hand, the prisoner persistently
denied his guilt there was no limit to the repetition of the torture,
and yet, even when no confession could be thus extracted, the failure
did not always serve to exempt him from punishment.[1593] If he
retracted the confession extorted from him, he was tortured again and
again until he ceased to assert his innocence, for it was a positive
necessity for conviction that the confession under torture should be
confirmed by the prisoner without constraint—“sans aucune force, paour
ou contrainte de gehayne”—when sentence came to be passed upon him
outside of the torture-chamber.
If, again, the luckless prisoner confessed the crime of which he stood
accused, he was further promptly tortured to find out what other
offences he might at some previous time have committed. This, which we
will see hereafter, continued to be to the end one of the worst abuses
of the torture system, was already a practice at least half a century
old,[1594] and it had become so habitual that it is scarcely worth
while to cite particular examples, though the case of Gervaise Caussois
may be briefly referred to on account of its quaintness. Arrested for
stealing some iron tools, he promptly confessed the crime. Among the
reasons on record for proceeding to torture him in order to elicit an
account of his other presumed misdemeanors, is included the excellent
one, “attendu qu’il est scabieux.” Under the torment the poor wretch
accused himself of some other petty thefts, but even this did not
satisfy his examiners, for the next day he was again brought before
them and bound to the _tresteau_, when he confessed a few more trifling
larcenies. Having apparently thus obtained enough evidence to satisfy
their consciences, his judges mercifully hanged him without further
infliction.[1595] In fact, the whole matter apparently was left very
much to the discretion of the court, which seems to have been bound by
no troublesome limitations to its curiosity in investigating the past
career of the miserable beings brought before it.
How that discretion was habitually exercised may be judged from the
case of a certain Fleurant de Saint-Leu, who was brought up for
examination Jan. 4, 1390, on the charge of stealing a silver buckle.
Denying the accusation, he was twice tortured with increasing severity,
until he confessed the alleged crime, but asserted it to be a first
offence. On Jan. 8th the court decided that as the petty theft was
insufficient to merit death, he should be tortured repeatedly to
ascertain whether he had not been guilty of something else worthy of
capital punishment. On that day he was therefore thrice exposed to
the question, in an ascending scale of severity, but without success.
On the 13th he was again twice tortured, when the only admission that
rewarded the examiners was that three years before he had married a
prostitute at Senlis. This uncommon obduracy seems to have staggered
the court, for he was then kept in his dungeon until April 9th, when
his case was carefully considered, and though nothing had been extorted
from him since his first confession, he was condemned, and was hanged
the same day—thus proving how purely gratuitous were the fearful
sufferings to which he had been exposed in order to gratify the
curiosity or satisfy the consciences of his remorseless judges.[1596]
Few criminals, however, gave so much trouble as Fleurant. The “petit et
grand tresteaux,” on which the torture was customarily administered,
were a sword which cut many a Gordian knot, and, by rendering the
justice of the Châtelet sharp and speedy, saved the court a world of
trouble. It was by no means unusual for the accused to be arraigned,
tortured, condemned, and executed all on the same day,[1597] and not a
few of the confessions read as though they were fictions composed by
the accused in order to escape by death from the interminable suffering
to which they were exposed. The sameness frequently visible in a long
catalogue of crimes seems to indicate this, but it is especially
notable in some singular cases of parties accused of poisoning wells
throughout the north of France, when there was an evident necessity
for the authorities to satisfy the excited populace by procuring
them some victims, and the unfortunate wretches who were arrested on
suspicion were tortured until they were ready to accuse themselves of
anything.[1598] In one case, indeed, the prisoner stated that he had
known a person tortured at the Châtelet with such severity that he
died in the hands of his torturers, and for himself he declared, after
one or two inflictions, that he would confess whatever would relieve
him from a repetition of what he had endured.[1599]
Yet, with all this reckless disregard of the plainest principles of
justice, the torture process had not yet entirely obliterated the
memory of the old customary law. The prisoner was not, as we shall see
practised hereafter, kept in ignorance of the charges against him and
of the adverse testimony. The accusation was always made known to him,
and when witnesses were examined, the record is careful to specify that
it was done in his presence.[1600] The court deliberated in private,
but the prisoner was brought before it to receive condemnation either
to torture or to death. Facilities were likewise afforded him to
procure evidence in his favor, when the swift justice of the Châtelet
might allow him leisure for such defence, for his friends were allowed
to see him in prison during the intervals of his trial.[1601]
Thus, in the capital, the royal power, aided by the civil lawyers, was
fast encroaching upon all the liberties of the subject, but in the
provinces a more stubborn resistance was maintained. It was some little
time after the period under consideration that the ancient Coutumier
of Britanny was compiled, and in it we find the use of torture,
though fully established as a judicial expedient, yet subjected to
much greater restrictions. A prisoner, accused of a capital crime and
denying the charge, was liable to torture only if positive evidence
was unattainable, and then only if he had been under accusation within
the previous five years. Moreover, if he endured its application
three times without confession, he was discharged acquitted as one in
whose favor God would work a miracle[1602]—thus showing how torture
was assimilated in the popular mind to the ordeal which it had
supplanted. Such escape indeed might well be regarded as a miracle, for
the reckless barbarity of the age had little scruple in pushing the
administration of the question to the utmost rigor. About this same
time, the Council of Reims, in 1408, drew up a series of instructions
for the bishops of the province in visiting their dioceses; and among
the abuses enumerated for investigation was whether the judges were in
the habit of torturing prisoners to death on feast days.[1603] It was
not the cruelty, but the sacrilege to which the Church took exception.
* * * * *
Even in Germany, the citadel of feudalism, the progress of the new
ideas and the influence of the Roman law had spread to such an extent
that in the Golden Bull of Charles IV., in 1356, there is a provision
allowing the torture of slaves to incriminate their masters in cases
of sedition against any prince of the empire;[1604] and the form of
expression employed shows that this was an innovation. Liége, which
at that period formed part of the empire, furnishes us with a case in
1376 which shows not only that torture then was an habitual resource in
procedure, but also that it was applied as illogically there as we have
seen it in Paris. The young wife of a burgher named Gilles Surlet was
found one morning strangled in bed. The husband, as though conscious
of innocence, at once presented himself to the authorities asserting
with fearful oaths his ignorance of the crime. A servant girl of the
household was then arrested, and she, without torture, immediately
confessed that she had committed the murder; but the judges, not
satisfied with this, submitted her to the question, when she denied her
guilt with the most provoking constancy. Suspicion then grew against
the husband, and he was duly tortured without extorting a confession,
though at the same time he declared that the girl was innocent; and on
being taken back to his cell he strangled himself during the night.
The chronicler does not record what was the fate of the girl, but the
body of Gilles was treated as that of a murderer—it was dragged to the
place of execution and broken on the wheel, while the superstitious
did not fail to note that on this dreary transit it was accompanied
by a black hog, which refused to be driven away until the gallows was
reached.[1605]
In Corsica, at the same period, we find the use of torture fully
established, though subject to careful restrictions. In ordinary
cases, it could only be employed by authority of the governor, to
whom the judge desiring to use it transmitted all the facts of the
case; the governor then issued an order, at his pleasure, prescribing
the mode and degree to which it might be applied.[1606] In cases of
treason, however, these limitations were not observed, and the accused
was liable to its infliction as far and as often as might be found
requisite to effect a purpose.[1607]
The Italian communities seem to have still at this period preserved
some limitations on the application of torture. In Milan, in 1338,
it could be only employed in capital cases where there was evidence
or public repute; it could only be ordered by the lord of the city,
his vicar, the podestà, and the criminal judges, and even these were
heavily fined if they used it illegally or elsewhere than in the
accustomed torture-chamber; the abuse of torturing witnesses had
already been introduced, but the judge was warned that this could be
done only when the witness swore to having been personally present and
then varied in his testimony or gave false evidence. Torture, moreover,
could only be inflicted once unless new evidence supervened.[1608] In
the statutes of Mirandola, revised in 1386, it could not be employed in
cases which did not involve corporal punishment or a fine of at least
twenty-five lire; nor even then unless the podestà submitted all the
evidence to the accused and gave him a sufficient and definite term
in which to purge himself.[1609] In Piacenza, about the same period,
torture was guarded with even more careful restrictions. There is no
indication that witnesses were exposed to it. Every effort to obtain
testimony was to be exhausted, and the accused was to be afforded full
opportunities for defence before he could be subjected to it, and
then there must be sufficient indications of guilt, mere rumor being
inadequate to justify it. Moreover, except in cases of high treason,
theft, highway robbery, assassination, and arson, a single judge could
not order it, but the case had to be submitted to all the judges and
the podestà, who determined by a majority in secret ballot whether
it should be employed. If any of these formalities were omitted, the
confession extorted was invalid, and the judge was mulcted in a fine of
a hundred lire.[1610]
The peculiar character of Venetian civilization made torture almost a
necessity. The atmosphere of suspicion and secrecy which surrounded
every movement of that republican despotism, the mystery in which it
delighted to shroud itself, and the pitiless nature of its legislation
conspired to render torture an indispensable resource. How freely it
was administered, especially in political affairs, is well illustrated
in the statutes of the State Inquisition, where the merest suspicion
is sufficient to authorize its application. Thus, if a senatorial
secretary were observed to be more lavish in his expenditures than his
salary would appear to justify, he was at once suspected of being in
the pay of some foreign minister, and spies were ordered on his track.
If he were then simply found to be absent from his house at undue
hours, he was immediately to be seized and put to the torture. So, if
any one of the innumerable secret spies employed by the inquisitors
were insulted by being called a spy, the offender was arrested
and tortured to ascertain how he had guessed the character of the
emissary.[1611] Human life and human suffering were of little account
in the eyes of the cold and subtle spirits who moulded the policy of
the mistress of the Adriatic.
The rude mountaineers of the Valtelline preserved to a later date
their respect for the ancient guarantees of the law. In their statutes
as revised in 1548 torture is indeed permitted, but only in case
of persons accused of crimes involving the penalty of blood. In
accusations of less heinous offences and in matters concerning money,
it was strictly forbidden; and even in cases where it was allowed it
could not be employed without the assent of the central authority of
the territory. When proceedings were had by inquisition, moreover, all
the evidence was submitted to the accused, and a sufficient delay was
accorded to him in which to frame a defence before he could be ordered
to the torture. Thus were avoided the worst abuses to which the system
had been made subservient long before that time in all the surrounding
regions.[1612]
Other races adopted the new system with almost equal hesitation. Thus
in Hungary the first formal embodiment of torture in the law occurs in
1514, and though the terms employed show that it had been previously
used to some extent, yet the restrictions laid down manifest an extreme
jealousy of its abuse. Mere suspicion was not sufficient. To justify
its application, a degree of proof was requisite which was almost
competent for condemnation, and the nature of this evidence is well
exemplified in the direction that if a judge himself witnessed a
murder, he could not order the homicide to be tortured unless there was
other testimony sufficient, for he could not be both witness and judge,
and his knowledge of the crime belonged to his private and not to his
judicial capacity.[1613] With such refinements, there would seem to be
little danger of the extension of the custom.
In Poland, torture does not make its appearance until the fifteenth
century, and then it was introduced gradually, with strict
instructions to the tribunals to use the most careful discretion in
its administration.[1614] Until, at least, the seventeenth century,
there remained in force laws of Casimir the Great promulgated in
the fourteenth, prohibiting any prosecution not brought by a proper
accuser, in whose presence alone could the matter be heard, thus
showing that the inquisitorial process found no foothold in the Polish
courts.[1615] In Russia, the first formal allusion to it is to be found
in the Ulagenié Zakonof, a code promulgated in 1497, by Ivan III.,
which merely orders that persons accused of robbery, if of evil repute,
may be tortured to supply deficiencies of evidence; but as the duel
was still freely allowed to the accused, the use of torture must have
been merely incidental.[1616] From another source, dating about 1530,
we learn that it was customary to extort confessions from witches by
pouring upon them from a height a small stream of cold water; and in
cases of contumacious and stubborn criminals, the finger-nails were
wrenched off with little wooden wedges.[1617] Still, torture makes but
little show in the subsequent codes, such as the Sudebtnick, issued in
1550, and the Sobornoié Ulagenié, promulgated in 1648.[1618] In fact,
these regions were still too barbarous for so civilized a process.
In addition to these national jurisdictions there was a wide field
open to the use of torture in the spiritual courts established
everywhere, for it was not confined to the secular tribunals and to
the Inquisition. The latter had so fully familiarized the minds
of churchmen with it that it came to be employed generally in the
episcopal tribunals which, through their exclusive jurisdiction over
clerks and over all matters that could be connected with spiritual
offences, had considerable criminal business. We may assume, however,
that in this respect they were limited by the laws of the land and were
debarred from its use in countries where it was not allowed in secular
matters. In 1310 it required the most urgent pressure from Clement V.
to induce Edward II. to violate the common law by permitting the papal
emissaries to torture the English Templars, and the King sought to
conceal the illegality of the act by an order to the gaolers which bore
that the inquisitors and episcopal ordinaries should be allowed to deal
with the bodies of the prisoners “in accordance with ecclesiastical
law,”[1619] showing how completely in the minds of men torture was
identified with the spiritual courts. When the canons of the council
of Vienne were promulgated in 1317 and the inquisitor Bernard Gui
remonstrated with John XXII. against a clause intended to diminish the
abuse of torture by inquisitors, he argued that it was a reflection on
the Inquisition, because the episcopal courts were subject to no such
restrictions on its use.[1620] The Church carried this blessing with
it wherever it went. When in 1593 St. Toribio, Archbishop of Lima,
sought to reform the abuses of the episcopal courts throughout his
vast province, he issued an _arancel_ or tariff of fees for all their
officials. In this we find that the executioner was not to charge more
than a peso for torturing a prisoner, while the notary was entitled to
two reales for drawing up a sentence of torture, and one real for each
folio of his record of its administration and the confession of the
accused.[1621]
CHAPTER VII.
THE INQUISITORIAL PROCESS.
During this period, while Central and Western Europe had advanced with
such rapid strides of enlightenment, the inquisitorial process, based
upon torture, had become the groundwork of all criminal procedure,
and every detail was gradually elaborated with the most painstaking
perverseness.
Allusion has already been made to the influence of the Inquisition in
introducing the use of torture. Its influence did not cease there,
for with torture there gradually arose the denial to the accused
of all fair opportunity of defending himself, accompanied by the
system of secret procedure which formed so important a portion of the
inquisitorial practice. In the old feudal courts, the prosecutor and
the defendant appeared in person. Each produced his witnesses; the
case was argued on both sides, and unless the wager of battle or the
ordeal intervened, a verdict was given in accordance with the law
after duly weighing the evidence, while both parties were at liberty
to employ counsel and to appeal to the suzerain. When St. Louis
endeavored to abolish the duel and to substitute a system of inquests,
which were necessarily to some extent _ex parte_, he did not desire to
withdraw from the accused the legitimate means of defence, and in the
Ordonnance of 1254 he expressly instructs his officers not to imprison
the defendant without absolute necessity, while all the proceedings
of the inquest are to be communicated freely to him.[1622] All this
changed with time and the authoritative adoption of torture. The theory
of the Inquisition, that the suspected man was to be hunted down
and entrapped like a wild beast, that his guilt was to be assumed,
and that the efforts of his judges were to be directed solely to
obtaining against him sufficient evidence to warrant the extortion of a
confession without allowing him the means of defence—this theory became
the admitted basis of criminal jurisprudence. The secrecy of these
inquisitorial proceedings, moreover, deprived the accused of one of the
greatest safeguards accorded to him under the Roman law of torture.
That law, as we have seen, required the formality of inscription,
by which the accuser who failed to prove his charge was liable to
the _lex talionis_, and in crimes which involved torture in the
investigation he was duly tortured. This was imitated by the Wisigoths,
and its principle was admitted and enforced by the Church before the
introduction of the Inquisition had changed its policy;[1623] but
modern Europe, in borrowing from Rome the use of torture, combined it
with the inquisitorial process, and thus in civilized Christendom it
speedily came to be used more recklessly and cruelly than ever it had
been in pagan antiquity.
In 1498, an assembly of notables at Blois drew up an elaborate
ordonnance for the reformation of justice in France. In this, the
secrecy of the inquisitorial process is dwelt upon with peculiar
insistence as of the first importance in all criminal cases. The
whole investigation was in the hands of the government official, who
examined every witness by himself, and secretly, the prisoner having no
knowledge of what was done, and no opportunity of arranging a defence.
After all the testimony procurable in this one-sided manner had been
obtained, it was discussed by the judges, in council with other
persons named for the purpose, who decided whether the accused should
be tortured. He could be tortured but once, unless fresh evidence
subsequently was collected against him, and his confession was read
over to him the next day, in order that he might affirm or deny it. A
secret deliberation was then held by the same council, which decided as
to his fate.[1624]
This cruel system was still further perfected by Francis I., who,
in an ordonnance of 1539, expressly abolished the inconvenient
privilege assured to the accused by St. Louis, which was apparently
still occasionally claimed, and directed that in no case should he
be informed of the accusation against him, or of the facts on which
it was based, nor be heard in his defence. Upon examination of the
_ex parte_ testimony, without listening to the prisoner, the judges
ordered torture proportioned to the gravity of the accusation, and
it was applied at once, unless the prisoner appealed, in which case
his appeal was forthwith to be decided by the superior court of the
locality.[1625] The whole process was apparently based upon the
conviction that it was better that a hundred innocent persons should
suffer than that one culprit should escape, and it would not be easy
to devise a course of procedure better fitted to render the use of
torture universal. There was some protection indeed, theoretically
at least, in the provision which held the judge responsible when an
innocent prisoner was tortured without sufficient preliminary proof
to justify it; but this salutary regulation, from the very nature
of things, could not often be enforced, and it was so contrary to
the general spirit of the age that it soon became obsolete. Thus, in
Brittany, perhaps the most independent of the French provinces, the
Coutumier, as revised in 1539, retains such a provision,[1626] but it
disappears in the revision of 1580.
But even this was not all. Torture, as thus employed to convict
the accused, became known as the _question préparatoire_; and, in
defiance of the old rule that it could be applied but once, a second
application, known as the _question définitive_ or _préalable_, became
customary, by which, after condemnation, the prisoner was again
subjected to the extremity of torment in order to discover whether he
had any accomplices, and, if so, to identify them. In this detestable
practice we find another instance of the unfortunate influence of
the Inquisition in modifying the Roman law. The latter expressly and
wisely provided that no one who had confessed should be examined as
to the guilt of another;[1627] and in the ninth century the authors
of the False Decretals had emphatically adopted the principle, which
thus became embodied in ecclesiastical law,[1628] until the ardor of
the Inquisition in hunting down heretics caused it to regard the
conviction of the accused as a barren triumph unless he could be forced
to incriminate his possible associates. It thus finally became a rule
of the Inquisition, promulgated by papal authority, that all who
confessed or were convicted should be tortured at the discretion of the
inquisitor to reveal the names of their accomplices.[1629]
Torture was also generically divided into the _question ordinaire_ and
_extraordinaire_—a rough classification to proportion the severity of
the infliction to the gravity of the crime or the urgency of the case.
Thus, in the most usual kind of torment, the strappado, popularly known
as the _Moine de Caen_, the ordinary form was to tie the prisoner’s
hands behind his back with a piece of iron between them; a cord was
then fastened to his wrists by which, with the aid of a pulley, he was
hoisted from the ground with a weight of one hundred and twenty-five
pounds attached to his feet. In the extraordinary torture, the weight
was increased to two hundred and fifty pounds, and when the victim was
raised to a sufficient height he was dropped and arrested with a jerk
that dislocated his joints, the operation being thrice repeated.[1630]
Thus, in 1549, we see the system in full operation in the case of
Jacques de Coucy, who, in 1544, had surrendered Boulogne to the
English. This was deemed an act of treachery, but he was pardoned in
1547; yet, notwithstanding his pardon, he was subsequently tried,
convicted, condemned to decapitation and quartering, and also to
the _question extraordinaire_ to obtain a denunciation of his
accomplices.[1631]
When Louis XIV., under the inspiration of Colbert, remoulded the
jurisprudence of France, various reforms were introduced into the
criminal law, and changes both for better and worse were made in the
administration of torture. The Ordonnance of 1670 was drawn up by a
committee of the ablest and most enlightened jurists of the day, and
it is a melancholy exhibition of human wisdom when regarded as the
production of such men as Lamoignon, Talon, and Pussort. The cruel
mockery of the _question préalable_ was retained; and in the principal
proceedings all the chances were thrown against the prisoner. All
preliminary testimony was still _ex parte_. The accused was heard, but
he was still examined in secret. Lamoignon vainly endeavored to obtain
for him the advantage of counsel, but Colbert obstinately refused
this concession, and the utmost privilege allowed the defence was the
permission accorded to the judge, at his discretion, to confront the
accused with the adverse witnesses. In the _question préliminaire_,
torture was reserved for capital cases, when the proof was strong and
yet not enough for conviction. During its application it could be
stopped and resumed at the pleasure of the judge, but if the accused
were once unbound and removed from the rack, it could not be repeated,
even though additional evidence were subsequently obtained.[1632]
It was well to prescribe limitations, slender as these were; but in
practice it was found impossible to enforce them, and they afforded
little real protection to the accused when judges, bent upon procuring
conviction, chose to evade them. A contemporary whose judicial position
gave him every opportunity of knowing the truth, remarks: “They have
discovered a jugglery of words and pretend that though it may not
be permissible to _repeat_ the torture, still they have a right to
_continue_ it, though there may have been an interval of three whole
days. Then, if the sufferer, through good luck or by a miracle,
survives this reduplication of agony, they have discovered the notable
resource of _nouveaux indices survenus_, to subject him to it again
without end. In this way they elude the intention of the law, which
sets some bounds to these cruelties and requires the discharge of the
accused who has endured the question without confession, or without
confirming his confession after torture.”[1633] Nor were these the
only modes by which the scanty privileges allowed the prisoner were
curtailed in practice. In 1681, a royal Declaration sets forth that, in
the jurisdiction of Grenoble, judges were in the habit of refusing to
listen to the accused, and of condemning him unheard, an abuse which
was prohibited for the future. Yet other courts subsequently assumed
that this prohibition was only applicable to the Parlement of Grenoble,
and in 1703 another Declaration was necessary to enforce the rule
throughout the kingdom.[1634]
The Ordonnance of 1670, moreover, gave formal expression to another
abuse which was equally brutal and illogical—the employment of torture
_avec réserve des preuves_. When the judge resolved on this, the
silence of the accused under torment did not acquit him, though the
whole theory of the question lay in the necessity of confession.
He simply escaped the death penalty, and could be condemned to any
other punishment which the discretion of the judge might impose, thus
presenting the anomaly of a man neither guilty nor innocent, relieved
from the punishment assigned by the law to the crime for which he had
been arraigned, and condemned to some other penalty without having
been convicted of any offence. This punishing for suspicion was no new
thing. Before torture came fully into vogue, in the early part of the
fourteenth century, a certain Estevenes li Barbiers of Abbeville was
banished under pain of death for suspicion of breach of the peace,
and was subsequently tried, acquitted, and allowed to return.[1635]
About the same period a barber of Anet and his sons were arrested by
the monks of St. Martin-des-Champs on suspicion of killing a guard
who was keeping watch over some hay. The evidence against them was
insufficient, and they were taken to the gallows as a kind of moral
torture not infrequently used in those days. Still refusing to confess,
they were banished forever under pain of hanging, because, as the
record ingenuously states, the crime was not fully proved against
them.[1636] So in the records of the Parlement of Paris there is a
sentence rendered in 1402 against Jehan Dubos, a procureur of the
Parlement, and Ysabelet his wife, for suspicion of the poisoning of
another procureur, Jehan le Charron, the first husband of Ysabelet,
and Dubos was accordingly hanged, while his wife was burnt.[1637]
Jean Bodin, one of the clearest intellects of the sixteenth century,
lays it down as a rule that the penalty should be proportioned to the
proof; he ridicules as obsolete the principle that when the evidence
is not sufficient for conviction the accused should be discharged, and
mentions stripes, fines, imprisonment, the galleys, and degradation
as proper substitutes for death when there is no evidence and only
violent presumption. He gives in illustration of this a case personally
known to him of a noble of Le Mans, who was condemned to nine years of
the galleys for violent suspicion of murder.[1638] The application to
the torture-process of this determination not to allow a man to escape
unless his innocence was proved led to the illogical system of the
_réserve des preuves_.
The theory on which the doctors of the law proceeded was that if
there were evidence sufficient for conviction and the judge yet
tortured the criminal in surplusage without obtaining a confession,
the accused could not be condemned to the full punishment of his
offence, because the use of torture in itself weakened the external
proofs, and therefore the culprit must be sentenced to some lighter
punishment—a refinement worthy of the inconsequential dialectics of
the schools.[1639] The cruel absurdities which the system produced
in practice are well illustrated by a case occurring in Naples in
the sixteenth century. Marc Antonio Maresca of Sorrento was tried
by the Admiralty Court for the murder of a peasant of Miani, in the
market-place. The evidence was strong against him, but there were no
eye-witnesses, and he endured the torture without confession. The court
asserted that it had reserved the evidence, and condemned him to the
galleys for seven years. He appealed to the High Court of the royal
council, and the case was referred to a distinguished jurisconsult,
Tomaso Grammatico, a member of the council. The latter reported that
he must be considered as innocent, after having passed through torture
without confession, and denied the right of the court to reserve the
evidence. Then, with an exhibition of the peculiar logic characteristic
of the criminal jurisprudence of the time, he concluded that Maresca
might be relegated to the islands for five years, although it was a
recognized principle of Neapolitan law that torture could be inflicted
only in accusations of crimes of which the penalty was greater than
relegation. The only thing necessary to complete this tissue of legal
wisdom was afforded by the council, which set aside the judgment of
the Admiralty Court, rejected the report of their colleague, and
condemned the prisoner to the galleys for three years.[1640] Somewhat
less complicated in its folly, but more inexcusable from its date, was
the sentence of the court of Orléans in 1740, by which a man named
Barberousse, from whom no confession had been extorted, was condemned
to the galleys for life, because, as the sentence declared, he was
_strongly suspected_ of premeditated murder.[1641] A more pardonable,
but not more reasonable, example occurred at Halle in 1729, where a
woman accused of infanticide refused to confess, and as she labored
under a physical defect which rendered the application of torture
dangerous to life, the authorities, after due consideration and
consultation of physicians, spared her the torture and banished her
without conviction.[1642]
* * * * *
The same tendency to elude all restrictions on the use of torture
was manifested in the Netherlands, where the procedure was scarcely
known until the 16th century, and where it was only administered
systematically by the ordonnance on criminal justice of Philip II. in
1570. When once employed it rapidly extended until it became almost
universal, both in the provinces which threw off the yoke of Spain and
in those which remained faithful. The limits which Philip had imposed
on it were soon transcended. He had forbidden its employment in all
cases “où il n’y a plaine, demye preuve, ou bien où la preuve est
certaine et indubitable,” thus restricting it to those where there was
very strong presumption without absolute certainty. In transcription
and translation, however, the wording of the ordonnance became changed
to “plaine ou demye preuve, ou bien où la preuve est incertaine ou
douteuse,” thus allowing it in all cases where the judge might have a
doubt not of the guilt but of the innocence of the accused; and by the
time these errors were discovered by a zealous legal antiquarian, the
customs of the tribunals had become so fixed that the attempt to reform
them was vain.[1643] Even the introduction of torture could not wholly
eradicate the notion on which the ordeal system was based, that a man
under accusation must virtually prove his innocence.
* * * * *
In Germany, torture had been reduced to a system, in 1532, by the
Emperor Charles V., whose _Caroline Constitutions_ contain a more
complete code on the subject than had previously existed, except in
the records of the Inquisition. Inconsistent and illogical, it quotes
Ulpian to prove the deceptive nature of the evidence thence derivable;
it pronounces torture to be “res dira, corporibus hominum admodum
noxia et quandoque lethalis, cui et mors ipsa prope proponenda;”[1644]
in some of its provisions it manifests extreme care and tenderness
to guard against abuses, and yet practically it is merciless to the
last degree. Confession made during torture was not to be believed,
nor could a conviction be based upon it; yet what the accused might
confess after being removed from torture was to be received as the
deposition of a dying man, and was full evidence.[1645] In practice,
however, this held good only when adverse to the accused, for he was
brought before his judge after an interval of a day or two, when, if
he confirmed the confession, he was condemned, while if he retracted
it he was at once thrust again upon the rack. In confession under
torture, moreover, he was to be closely cross-questioned, and if any
inconsistency was observable in his self-condemnation the torture was
at once to be redoubled in severity.[1646] The legislator thus makes
the victim expiate the sins of his own vicious system; the victim’s
sufferings increase with the deficiency of the evidence against him,
and the legislator consoles himself with the remark that the victim
has only himself to thank for it, “de se tantum non de alio quæratur.”
To complete the inconsistency of the code, it provided that confession
was not requisite for conviction; irrefragable external evidence was
sufficient; and yet even when such evidence was had, the judge was
empowered to torture in mere surplusage.[1647] Yet there was a great
show of tender consideration for the accused. When the weight of
conflicting evidence inclined to the side of the prisoner, torture was
not to be applied.[1648] Two adverse witnesses, or one unexceptionable
one, were a condition precedent, and the legislator shows that he
was in advance of his age by ruling out all evidence resting on the
assertions of magicians and sorcerers.[1649] To guard against abuse,
the impossible effort was made to define strictly the exact quality and
amount of evidence requisite to justify torture, and the most elaborate
and minute directions were given with respect to all the various
classes of crime, such as homicide, child-murder, robbery, theft,
receiving stolen goods, poisoning, arson, treason, sorcery, and the
like;[1650] while the judge administering torture to an innocent man on
insufficient grounds was liable to make good all damage or suffering
thereby inflicted.[1651] The amount of torment, moreover, was to be
proportioned to the age, sex, and strength of the patient; women during
pregnancy were never to be subjected to it; and in no case was it to be
carried to such a point as to cause permanent injury or death.[1652]
CHAPTER VIII.
FINAL SHAPE OF THE TORTURE SYSTEM.
Charles V. was too astute a ruler not to recognize the aid derivable
from the doctrines of the Roman law in his scheme of restoring the
preponderance of the Kaisership, and he lost no opportunity of
engrafting them on the jurisprudence of Germany. In his Criminal
Constitutions, however, he took care to embody largely the legislation
of his predecessors and contemporaries, and though protests were
uttered by many of the Teutonic princes, the code, adopted by the
Diet of Ratisbon in 1532, became part and parcel of the common law
of Germany.[1653] A fair idea of the shape assumed, under these
influences, by the criminal law in its relations with torture, can
be obtained by examining some of the legal text-books which were
current as manuals of practice from the sixteenth to the eighteenth
century.[1654] As most of the authors of these works appear to condemn
the principle or to lament the necessity of torture, their instructions
as to its employment may safely be assumed to represent the most humane
and enlightened views current during the period.[1655] It is easy to
see from them, however, that though the provisions of the Caroline
Constitutions were still mostly in force, yet the practice had greatly
extended itself, and that the limitations prescribed for the protection
of innocence and helplessness had become of little real effect.
Upon the theory of the Roman law, nobles and the learned professions
had claimed immunity from torture, and the Roman law inspired too
sincere a respect to permit a denial of the claim,[1656] yet the
ingenuity of lawyers reduced the privilege to such narrow proportions
that it was practically almost valueless. For certain crimes, of
course, such as _majestas_, adultery, and incest, the authority of
the Roman law admitted of no exceptions, and to these were speedily
added a number of other offences, classed as _crimina excepta_ or
_nefanda_, which were made to embrace almost all offences of a
capital nature, in which alone torture was as a rule allowable. Thus,
patricide, uxoricide, fratricide, witchcraft, sorcery, counterfeiting,
theft, sacrilege, rape, arson, repeated homicide, etc., came to be
included in the exceptional cases, and the only privileges extended in
them to nobles were that they should not be subjected to “plebeian”
tortures.[1657] As early as 1514, I find an instance which shows how
little advantage these prerogatives afforded in practice. A certain
Dr. Bobenzan, a citizen of good repute and syndic of Erfurt, who
both by position and profession belonged to the excepted class, when
brought up for sentence on a charge of conspiring to betray the city,
and warned that he could retract his confession, extracted under
torture, pathetically replied—“During my examination, I was at one
time stretched upon the rack for six hours, and at another I was
slowly burned for eight hours. If I retract, I shall be exposed to
these torments again and again. I had rather die”—and he was duly
hanged.[1658] In fact, all these exemptions were rather theoretical
than practical, and they were speedily set aside.[1659]
In Catholic countries, of course, the clergy were specially favored,
but the immunity claimed for them by the canon law was practically
reduced to nearly the same as that accorded to nobles.[1660] The
torture inflicted on them, however, was lighter than in the case of
laymen, and proof of a much more decided character was required to
justify their being exposed to torment. As an illustration of this,
von Rosbach remarks that if a layman is found in the house of a pretty
woman, most authors consider the fact sufficient to justify torture on
the charge of adultery, but that this is not the case with priests, who
if they are caught embracing a woman are presumed to be merely blessing
her.[1661] They moreover had the privilege of being tortured only at
the hands of clerical executioners, if such were to be had.[1662]
In Protestant territories respect for the cloth was manifested by
degrading them prior to administering the rack or strappado.[1663]
Some limitations were imposed as to age and strength. Children under
fourteen could not be tortured, nor the aged whose vigor was unequal to
the endurance, but the latter could be tied to the rack, and menaced
to the last extremity; and the elasticity of the rule is manifested in
a case which attracted attention at Halle in the eighteenth century,
in which a man more than eighty years of age was decided to be fit to
bear the infliction, and only escaped by opportunely dying.[1664] In
fact, Grillandus argues that age confers no immunity from torture,
but that a humane judge will inflict it only moderately, except in
atrocious crimes; as for children, though regular torture could not be
employed on them, the rod could be legitimately used.[1665] Insanity
was likewise a safeguard, and much discussion was had as to whether
the deaf, dumb, and blind were liable or not. Zanger decides in the
affirmative whenever, whether as principals or witnesses, good evidence
was to be expected from them;[1666] and Scialoja points out that though
deaf-mutes as a rule are not to be tortured because they cannot dictate
a confession, yet if they can read and write so as to understand the
accusation and write out what they have to say, they are fit subjects
for the torturer.[1667] Pregnant women also were exempt until forty
days after childbed, even though they had become so in prison for
the express purpose of postponing the infliction.[1668] Some kinds
of disease likewise conferred exemption, and jurisconsults undertook
with their customary minuteness to define with precision this nosology
of torture, leading to discussions more prolonged than profitable.
Gout, for instance, gave rise to doubt, and some authors were found to
affirm that they knew of cases in which gouty patients had been cured
by a brisk application of the implements of the _marter-kammer_ or
torture-chamber.[1669] Other legists gravely disputed whether in the
case of epileptics the judge should bear in mind the aspects of the
moon and the equinoxes and solstices, at which times the paroxysms of
the disease were apt to be more violent. Those who thus escaped torture
on account of disease presented a problem which the jurists solved in
their ordinary fashion by condemning them to some other punishment than
that provided for the crime of which they had been accused but not
convicted.[1670]
In theory the accused could be tortured only once, but this, like all
other restrictions in favor of humanity, amounted to but little. A
repetition of torture could be justified on the ground that the first
application had been light or insufficient; the production of fresh
evidence authorized a second and even a third infliction; a failure to
persevere in confession after torture rendered a repetition requisite;
and even a variation in the confession required confirmation by the
rack or strappado.[1671] Many writers affirm that a second torture is
requisite to purge away the defect of the infamy incurred by confession
under the first, as well as to strengthen the evidence against
accomplices.[1672] In fact, some authorities go so far as to place it
entirely at the discretion of the judge whether the accused shall be
subjected or not to repeated torment without fresh evidence,[1673]
and Del Rio mentions a case occurring in Westphalia wherein a man
accused of lycanthropy was tortured twenty times.[1674] This practice
of repeating torture we are told by many authorities was exceedingly
common.[1675]
Another positive rule was that torture could only be applied in
accusations involving life or limb.[1676] Thus, for instance, in
provinces where usury was punishable only by confiscation, torture
could not be used to prove it, but where it entailed also some corporal
infliction, the accused could be subjected to the rack.[1677] Yet
when Bologna undertook to remove the abuses of her torture system she
still allowed it in cases involving a pecuniary fine of a hundred
lire, or over.[1678] Whipping being a corporal punishment, and yet a
much lighter infliction than torture, the legists were divided as to
whether a crime for which it was the only penalty was one involving
the liability of the accused to torture, but the weight of authority,
as usual, leaned to the side of the free employment of the rack.[1679]
All these fine-spun distinctions, however, were of little moment, for
Senckenberg assures us that he had known torture to be resorted to in
mercantile matters, where money only was at stake.[1680] Slaves could
always be tortured in civil suits when their testimony was required,
and freemen when there was suspicion of fraud;[1681] and it was a
general rule of mercantile law that it could be employed in accusations
of fraudulent bankruptcy.[1682] How easily, indeed, all these barriers
were overleaped is seen in the rule that where the penalty was a fine,
and the accused was too poor to pay it, he could be tortured, the
torture serving in lieu of punishment. Thus, whether he was innocent
or guilty, the judge was determined that he should not escape.[1683]
Another method in constant use of evading the limitation in offences
which by statute did not involve torture was by depriving him of food
in prison, or stripping him of clothes in winter, the slow torment of
starvation and cold not being classed legally as torture.[1684]
Equally absolute was the maxim that torture could not be employed
unless there was positive proof that crime of some sort had been
committed, for its object was to ascertain the criminal and not the
crime;[1685] yet von Rosbach remarks that as soon as any one claimed to
have lost anything by theft, the judges of his day hastened to torture
all suspect, without waiting to determine whether or not the theft had
really been committed as assumed;[1686] and von Boden declares that
many tribunals were in the habit of resorting to it in cases wherein
subsequent developments showed that the alleged crime had really not
taken place, a proceeding jocosely characterized by a brother lawyer as
putting the cart before the horse, and bridling him by the tail.[1687]
The history of torture is full of cases illustrating its effectiveness
when thus used. Boyvin du Villars relates that during the war in
Piedmont, in 1559, he released from the dungeons of the Marquis of
Masserano an unfortunate gentleman who had been secretly kept there
for eighteen years, in consequence of having attempted to serve a
process from the Duke of Savoy on the marquis. His disappearance having
naturally been attributed to foul play, his kindred prosecuted an enemy
of the family, who, under stress of torture, duly confessed to having
committed the murder, and was accordingly executed in a town where
Masserano himself was residing.[1688] Godelmann relates that a monument
in a church in upper Germany, representing a man broken on a wheel,
commemorated a case in which two young journeymen set out together to
make the accustomed tour of the country. One of them returned alone,
clad in the garments of the other, and was suspected of having made way
with him. He was arrested, and in the absence of all other evidence was
promptly put to the torture, when he confessed the crime in all its
details and was executed on the wheel—soon after which his companion
returned. Another case was that of a young man near Bremen whose
widowed mother lived in adultery with a servant. The son quarrelled
with the man, who fled and took service with another employer at a
considerable distance. His father, not knowing his departure, accused
the youth of murder, and torture speedily drew from the latter a
full confession of the crime, including his throwing the corpse into
the Weser. Not long after his execution the adulterous serving-man
reappeared and was duly put to death, as also was his father, to make
amends for the blunder of the law.[1689]
A universal prescription existed that the torment should not be so
severe or so prolonged as to endanger life or limb or to injure
the patient permanently; but this, like all the other precautions,
was wholly nugatory. Senckenberg assures us that he was personally
cognizant of cases in which innocent persons had been crippled for
life by torture under false accusations;[1690] and the meek Jesuit Del
Rio, in his instructions to inquisitors, quietly observes that the
flesh should not be wounded nor the bones broken, but that torture
could scarce be properly administered without more or less dislocation
of the joints.[1691] We may comfort ourselves with the assurance of
Grillandus, that cases were rare in which permanent mutilation or death
occurred under the hands of the torturer,[1692] and this admission
lends point to the advice which Simancas gives to judges, that they
should warn the accused, when brought into the torture-chamber, that
if he is crippled or dies under the torture he must hold himself
accountable for it in not spontaneously confessing the truth[1693]—a
warning which was habitually given in the Spanish Inquisition before
applying the torture. Von Boden, moreover, very justly points out the
impossibility of establishing any rules or limitations of practical
utility, when the capacity of endurance varies so greatly in different
constitutions, and the executioners had so many devices for heightening
or lessening, within the established bounds, the agony inflicted by
the various modes of torture allowed by law. Indeed, he does not
hesitate to exclaim that human ingenuity could not invent suffering
more terrible than was constantly and legally employed, and that Satan
himself would be unable to increase its refinements.[1694] In this as
in everything else the legists agreed that the discretion of the judge
was the sole and final arbiter in deciding whether the accused was
“competently” tortured—that is, whether the number and severity of the
inflictions were sufficient to purge him of the adverse evidence.[1695]
It is true that the old rules which subjected the judge to some
responsibility were still nominally in force. When torture was ordered
without a preliminary examination, or when it was excessive and caused
permanent injury, the judge was held by some authorities to have acted
through malice, and his office was no protection against reclamation
for damages.[1696] Zanger also quotes the Roman law as still in force,
to the effect that if the accused dies under the torture, and the
judge has been either bribed or led away by passion, his offence is
capital, while if there had been insufficient preliminary evidence,
he is punishable at discretion.[1697] But, on the other hand, Baldo
tells us that unless there is evidence of malice the presumption is
in favor of the judge in whose hands a prisoner has died or been
permanently crippled, for he is assumed to have acted through zeal
for justice,[1698] and though there were some authorities who denied
this, it seems to have been the general practical conclusion.[1699] The
secrecy of criminal trials, moreover, offered an almost impenetrable
shield to the judge, and the recital by Godelmann of the various kinds
of evidence by which the prisoner could prove the fact that he had
been subjected to torture shows how difficult it was to penetrate into
the secrets of the tribunals.[1700] According to Damhouder, indeed,
the judge could clear himself by his own declaration that he had acted
in accordance with the law, and without fraud or malice.[1701] We are
therefore quite prepared to believe the assertion of Senckenberg that
the rules protecting the prisoner had become obsolete, and that he had
seen not a few instances of their violation without there being any
idea of holding the judge to accountability,[1702] an assertion which
is substantially confirmed by Goetz.[1703]
Not the least of the evils of the system, indeed, was its inevitable
influence upon the judge himself. He was required by his office to
be present during the infliction of torture, and to conduct the
interrogatory personally. Callousness to human suffering, whether
natural or acquired, thus became a necessity, and the delicate
conscientiousness which should be the moving principle of every
Christian tribunal was well-nigh an impossibility.[1704] Nor was this
all, for when even a conscientious judge had once taken upon himself
the responsibility of ordering a fellow-being to the torture, every
motive would lead him to desire the justification of the act by the
extortion of a confession;[1705] and the very idea that he might be
possibly held to accountability, instead of being a safeguard for the
prisoner became a cause of subjecting him to additional agony. Indeed,
the prudence of persevering in torture until a confession was reached
was at least recognized, if not advised, by jurists, and in such a
matter to suggest the idea was practically to recommend it.[1706]
Both the good and the evil impulses of the judge were thus enlisted
against the unfortunate being at his mercy. Human nature was not meant
to face such temptations, and the fearful ingenuity which multiplied
the endless refinements of torture testifies how utterly humanity
yielded to the thirst of wringing conviction from the weaker party
to the unequal conflict, where he who should have been a passionless
arbiter was made necessarily a combatant. How completely the prisoner
thus became a quarry to be hunted to the death is shown by the jocular
remark of Farinacci, a celebrated authority in criminal law, that the
torture of sleeplessness, invented by Marsigli, was most excellent, for
out of a hundred martyrs exposed to it not two could endure it without
becoming confessors as well.[1707] Few, when once engaged in such a
pursuit, could be expected to follow the example of the Milanese judge,
who resolved his doubts as to the efficacy of torture in evidence by
killing a favorite mule, and allowing the accusation to fall upon
one of his servants. The man of course denied the offence, was duly
tortured, confessed, and persisted in his confession after torture.
The judge, thus convinced by experiment of the fallacy of the system,
resigned the office whose duties he could no longer conscientiously
discharge, and in his subsequent career rose to the cardinalate.
The mode in which these untoward results were usually treated is
illustrated in another somewhat similar case which was told to Augustin
Nicholas at Amsterdam in explanation of the fact that the city was
obliged to borrow a headsman from the neighboring towns whenever the
services of one were required for an execution. It appears that a
young man of Amsterdam, returning home late at night from a revel,
sank upon a doorstep in a drunken sleep. A thief emptied his pockets,
securing, among other things, a dirk, with which, a few minutes later,
he stabbed a man in a quarrel. Returning to the sleeper he slipped the
bloody weapon back to its place. The young man awoke, but before he had
taken many steps he was seized by the watch, who had just discovered
the murder. Appearances were against him; he was tortured, confessed,
persisted in confession after torture, and was duly hanged. Soon after
the real criminal was condemned for another crime, and revealed the
history of the previous one, whereupon the States-General of the United
Provinces, using the ordinary logic of the criminal law, deprived the
city of Amsterdam of its executioner, as a punishment for a result that
was inevitable under the system.[1708]
Slight as were the safeguards with which legislators endeavored to
surround the employment of torture, they thus became almost nugatory
in practice under a system which, in the endeavor to reduce doubts
into certainties, ended by leaving everything to the discretion of
the judge. It is instructive to see the parade of insisting upon
the necessity of strong preliminary evidence,[1709] and to read
the elaborate details as to the exact kind and amount of testimony
severally requisite in each description of crime, and then to find that
common report was held sufficient to justify torture, or unexplained
absence before accusation, prevarication under examination, and
even silence; and it is significant of the readiness to resort to
the question on the slenderest pretexts when we see judges solemnly
warned that an evil countenance, though it may argue depravity
in general, does not warrant the presumption of actual guilt in
individual cases;[1710] though pallor, under many circumstances,
was considered to sanction the application of torture,[1711] even
as a pot containing toads, found in the home of a suspected witch,
justified her being placed on the rack.[1712] In fact, witchcraft,
poisoning, highway robbery, and other crimes difficult of proof,
were considered to justify the judge in proceeding to torture on
lighter indications than offences in which evidence was more readily
obtainable.[1713] Subtle lawyers thus exhausted their ingenuity in
discussing all possible varieties of indications, and there grew up
a mass of confused rules, wherein, on many points, each authority
contradicted the other. In a system which thus waxed so complex, the
discretion of the judge at last became the only practical guide, and
the legal writers themselves acknowledge the worthlessness of the rules
so laboriously constructed when they admit that it is left for his
decision to determine whether the indications are sufficient to warrant
the infliction of torture.[1714] How absolute was this discretion, and
how it was exercised, is manifest when Damhouder declares that in his
day bloodthirsty judges were in the habit of employing the severest
torture without sufficient proof or investigation, boasting that by
its means they could extract a confession of everything.[1715] This
fact was no novelty, for the practice had existed, we may say, since
the first introduction of torture. Ippolito dei Marsigli early in
the sixteenth century speaks of judges habitually torturing without
preliminary evidence, and goes so far as to assert, with all the
weight of his supreme authority, that a victim of such wrongs if he
killed his inhuman judge could not be held guilty of homicide nor be
punished with death for the slaying.[1716] It was perhaps to avoid this
responsibility that some of these zealous law-despisers resorted to the
most irregular means to procure evidence. Godelmann and von Rosbach
both tell us that the magistrates of their time, in the absence of all
evidence, sometimes had recourse to sorcerers and to various forms of
divination in order to obtain proof on which they could employ the
rack or strappado. Boys whose shoes were newly greased with lard were
thought to have a special power of detecting witches, and enthusiastic
judges accordingly would sometimes station them, after duly anointing
their boots, at the church doors, so that the luckless wretches could
not get out without being recognized.[1717]
How shocking was the abuse made of this arbitrary power is well
illustrated by a case which occurred in the Spanish colony of New
Granada about the year 1580. The judges of the royal court of Santafé
had rendered themselves odious by their cruelty and covetousness,
when one morning some pasquinades against them were found posted in
the public plaza. Diligent search failed to discover the author, but
a victim was found in the person of a young scrivener whose writing
was thought to bear some resemblance to that of the offensive papers.
He was at once seized, and though libel was not an offence under the
civil law which justified the application of torture, he was ordered to
the rack, when he solemnly warned the judge deputed to inflict it that
if he should die under it he would summon his tormentor to answer in
the presence of God within three days. The judge was intimidated and
refused to perform the office, but another was found of sterner stuff,
who duly performed his functions without extracting a confession, and
the accused was discharged. Then a man who desired to revenge himself
on an enemy asserted that the writing of the latter was like that
of the pasquinades. Juan Rodriguez de los Puertos, the unfortunate
thus designated, was immediately arrested with all his family. An
illegitimate son was promptly tortured, and stated that his father had
written the libels and ordered him to post them. Then Juan himself was
ordered to the rack, but, while protesting his innocence, he begged
rather to be put to death, as he was too old to endure the torment.
He was accordingly hanged, and his son was scourged with two hundred
lashes. All that was needed to render manifest the hideous injustice of
this proceeding was developed a few years later, when the judge who was
afraid to risk the appeal of the first victim was condemned to death
for an assassination, and on the scaffold confessed that he himself had
been the author of the libels against his brother justices.[1718]
Such a system tends of necessity to its own extension, and it
is therefore not surprising to find that the aid of torture was
increasingly invoked. The prisoner who refused to plead, whether there
was any evidence against him or not, could be tortured until his
obstinacy gave way.[1719] Even witnesses were not spared, whether in
civil suits or criminal prosecutions.[1720] It was discretionary with
the judge to inflict moderate torture on them when the truth could
not otherwise be ascertained. Witnesses of low degree could always be
tortured for the purpose of supplying the defect in their testimony
arising from their condition of life. Some jurists, indeed, held that
no witness of low or vile condition could be heard without torture, but
others maintained that poverty alone was not sufficient to render it
necessary. Witnesses who were infamous could not be admitted to testify
without torture; those of good standing were tortured only when they
prevaricated, or when they were apparently committing perjury;[1721]
but, as this was necessarily left with the judges to determine,
the instructions for him to guide his decision by observing their
appearance and manner show how completely the whole case was in his
power, and how readily he could extort evidence to justify the torture
of the prisoner, and then extract from the latter a confession by the
same means. In prosecutions for treason, all witnesses, irrespective
of their rank, were liable to torture,[1722] so that when Pius IV.,
in 1560, was determined to ruin Cardinal Carlo Caraffa, no scruple
was felt, during his trial, as to torturing his friends and retainers
to obtain the evidence upon which he was executed.[1723] There was
a general rule that witnesses could not be tortured until after the
examination of the accused, because, if he confessed, their evidence
was superfluous; but there were exceptions even to this, for if the
criminal was not within the power of the court, witnesses could be
tortured to obtain evidence against him in his absence.[1724] Indeed,
in the effort made early in the sixteenth century to reform the abuse
of torture in Bologna, it was provided that if there were evidence to
show that a man was acquainted with a crime he could be tortured to
obtain evidence on which to base a prosecution, and this before any
proceedings had been commenced against the delinquent.[1725] Evidently
there was no limit to the uses to which torture could be put by a
determined legislator.
An ingenious plan was also adopted by which, when two witnesses
gave testimony irreconcilable with each other, their comparative
credibility was tested by torturing both simultaneously in each
other’s presence.[1726] Evidence given under torture was esteemed
the best kind, and yet with the perpetually recurring inconsistency
which marks this branch of criminal law it was admitted that the
spontaneous testimony of a man of good character could outweigh that of
a disreputable person under torment.[1727] Witnesses, however, could
not be tortured more than three times;[1728] and it was a question
mooted between jurists whether their evidence thus given required,
like the confession of an accused person, to be subsequently ratified
by them.[1729] A reminiscence of Roman law, moreover, is visible in
the rule that no witness could be tortured against his kindred to the
seventh degree, nor against his near connections by marriage, his
feudal superiors, or other similar persons.[1730]
There doubtless was good reason underlying the Roman rule, universally
followed by modern legists, that, whenever several parties were on
trial under the same accusation, the torturer should commence with the
weakest and tenderest, for thus it was expected that a confession could
soonest be extracted; but this eager determination to secure conviction
gave rise to a refinement of cruelty in the prescription that if a
husband and wife were arraigned together, the wife should be tortured
first, and in the presence of her husband; and if a father and son, the
son before his father’s face.[1731]
Grillandus, who seems to have been an unusually humane judge, describes
five degrees of torture, using as a standard the favorite strappado.
The first is purely mental—stripping the prisoner and tying his hands
behind him to the rope, but not hurting him. This can be used when
there is no evidence, and he tells us he had found it very efficacious,
especially with the timid and infirm. The other grades are indicated
in accordance with the strength of the proof and the heinousness of
the crime. The second is hoisting the accused and letting him hang for
the space of an Ave or a Pater Noster, or even a Miserere, but not
elevating him and letting him fall with a jerk. In the third grade this
suspension is prolonged. In the fourth he is allowed to hang for a time
varying from a quarter of an hour to an hour, according to the crime
and the evidence, and he is jerked two or three times. In the fifth and
severest form a weight is attached to his feet and he is repeatedly
jerked. This Grillandus describes as terrible; the whole body is
torn, the limbs are ready to part from the trunk, and death itself is
preferable. It should only, he says, be used in the gravest crimes,
such as heresy or treason, but we have already seen that it was mild in
comparison with many inflictions habitually employed.[1732]
Some facilities for defence were allowed to the accused, but in
practice they were almost hopelessly slender. He was permitted to
employ counsel, and if unable to do so, it was the duty of the judge
to look up testimony for the defence.[1733] After all the adverse
testimony had been taken, and the prisoner had been interrogated,
he could ask to see a copy of the proceedings, in order to frame a
defence; but the request could be refused, in which case, the judge
was bound to sift the evidence himself, and to investigate the
probabilities of innocence or guilt. Von Rosbach states that judges
were not in the habit of granting the request, though no authority
justified them in the refusal;[1734] and half a century later this is
confirmed by Bernhardi, who gives as a reason that by withholding the
proceedings from the accused they saved themselves trouble.[1735] The
right of the accused to see the evidence adduced against him was still
an open question so recently as 1742, for Goetz deems it necessary to
argue at some length to prove it.[1736] The recognized tendency of such
a system to result in an unfavorable conclusion is shown by Zanger’s
elaborate instructions on this point, and his warning that, however
justifiable torture may seem, it ought not to be resorted to without
at least looking at the evidence which may be attainable in favor of
innocence;[1737] while von Rosbach characterizes as the greatest fault
of the tribunals of his day, their neglect to obtain and consider
testimony for the accused as well as against him.[1738] Indeed, when
the public interest was deemed to require it, all safeguards were
withdrawn from the prisoner, as when, in 1719 in Saxony, a mandate
was issued declaring that in cases of thieves and robbers no defence
or exceptions or delays were to be admitted.[1739] In some special and
extraordinary cases, the judge might allow the accused to be confronted
with the accuser, but this was so contrary to the secrecy required by
the inquisitorial system, that he was cautioned that it was a very
unusual course, and one not lightly to be allowed, as it was odious,
unnecessary, and not pertinent to the trial.[1740]
Theoretically, there was a right of appeal against an order to inflict
torture, but this, even when permitted, could usually avail the accused
but little, for the _ex parte_ testimony which had satisfied the lower
judge could, of course, in most instances, be so presented to the
higher court as to insure the affirmation of the order, and prisoners,
in their helplessness, would doubtless feel that by the attempt
to appeal they would probably only increase the severity of their
inevitable sufferings.[1741] Moreover, such appeals were ingeniously
and effectually discouraged by subjecting the advocate of the prisoner
to a fine or some extraordinary punishment if the appeal was pronounced
to be frivolous;[1742] and some authorities, among which was the great
name of Carpzovius, denied that in the inquisitorial process there was
any necessity of communicating to the accused the order to subject
him to torture and then allow him time to appeal against it if so
disposed.[1743]
Slender as were these safeguards in principle, they were reduced
in practice almost to a nullity. That the discretion lodged in the
tribunals was habitually and frightfully abused is only too evident,
when von Rosbach deems it necessary to reprove, as a common error of
the judges of his time, the idea that the use of torture was a matter
altogether dependent upon their pleasure, “as though nature had created
the bodies of prisoners for them to lacerate at will.”[1744] Thus it
was an acknowledged rule that when guilt could be satisfactorily proved
by witnesses, torture was not admissible;[1745] yet Damhouder feels it
necessary to condemn the practice of some judges, who, after conviction
by sufficient evidence, were in the habit of torturing the convict,
and boasted that they never pronounced sentence of death without
having first extorted a confession.[1746] Moreover, the practice was
continued which we have seen habitual in the Châtelet of Paris in the
fourteenth century, whereby, after a man had been duly convicted of
a capital crime, he was tortured to extract confessions of any other
offences of which he might be guilty;[1747] and as late as 1764,
Beccaria lifts his voice against it as a still existing abuse, which he
well qualifies as senseless curiosity, impertinent in the wantonness
of its cruelty.[1748] Martin Bernhardi, writing in 1705, asserts that
this torture after confession and conviction was also resorted to in
order to prevent the convict from appealing from the sentence.[1749]
So, although a man who freely confessed a crime could not be tortured,
according to the general principle of the law, still, if in his
confession he adduced mitigating circumstances, he could be tortured
in order to force him to withdraw them;[1750] and, moreover, if he were
suspected of having accomplices and refused to name them, he could be
tortured as in the _question préalable_ of the French courts.[1751] Yet
the accusation thus obtained was held to be of so little value that it
only warranted the arrest of the parties incriminated, who could not
legally be tortured without further evidence.[1752] In the face of all
this it seems like jesting mockery to find these grim legists tenderly
suggesting that the prisoner should be tortured only in the morning
lest his health should suffer by subjecting him to the question after a
full meal.[1753]
If the practice of the criminal courts had been devised with the
purpose of working injustice under the sacred name of law it could
scarce have been different. Even the inalienable privilege of being
heard in his defence was habitually refused to the accused by many
tribunals, which proceeded at once to torture after hearing the adverse
evidence, a refinement of cruelty and injustice which called forth
labored arguments by von Rosbach and Simancas to prove its impropriety,
thus showing it to be widely practised.[1754] In the same way, the
right to appeal from an order to torture was evaded by judges, who
sent the prisoner to the rack without a preliminary formal order, thus
depriving him of the opportunity of appealing.[1755] Indeed, in time
it was admitted by many jurists that the judge at his pleasure could
refuse to allow an appeal; and that in no case was he to wait more than
ten days for the decision of the superior tribunal.[1756]
The frequency with which torture was used is manifested in the low
rate which was paid for its application. In the municipal accounts
of Valenciennes, between 1538 and 1573, the legal fee paid to the
executioner for each torturing of a prisoner is only two sous and a
half, while he is allowed the same sum for the white gloves worn at an
execution, and ten sous are given him for such light jobs as piercing
the tongue.[1757]
With all this hideous accumulation of cruelty which shrank from nothing
in the effort to wring a confession from the wretched victim, that
confession, when thus so dearly obtained, was estimated at its true
worthlessness. It was insufficient for conviction unless confirmed by
the accused in a subsequent examination beyond the confines of the
torture-chamber, at an interval of from one to three days.[1758] This
confirmation was by no means universal, and the treatment of cases
of retracted confession was the subject of much debate. Bodin, in
1579, complains that witches sometimes denied what they had confessed
under torture, and that the puzzled judge was then obliged to release
them.[1759] Such a result, however, was so totally at variance with
the determination to obtain a conviction which marks the criminal
jurisprudence of the period that it was not likely to be submitted
to with patience. Accordingly the general practice was that, if the
confession was retracted, the accused was again tortured, when a second
confession and retraction made an exceedingly awkward dilemma for
the subtle jurisconsults. They agreed that he should not be allowed
to escape after giving so much trouble. Some advocated the regular
punishment of his crime, others demanded for him an extraordinary
penalty; some, again, were in favor of incarcerating him;[1760] others
assumed that he should be tortured a third time, when a confession,
followed as before by a recantation, released him from further
torment, for the admirable reason that nature and justice alike
abhorred infinity.[1761] This was too metaphysical for some jurists,
who referred the whole question to the discretion of the judge, with
power to prolong the series of alternate confession and retraction
indefinitely, acting doubtless on the theory that most prisoners were
like the scamp spoken of by Ippolito dei Marsigli, who, after repeated
tortures and revocations, when asked by the judge why he retracted
his confession so often, replied that he would rather be tortured a
thousand times in the arms than once in the neck, for he could easily
find a doctor to set his arm but never one to set his neck.[1762]
The magistrates in some places were in the habit of imprisoning or
banishing such persons, thus punishing them without conviction,
and inflicting a penalty unsuited to the crime of which they were
accused.[1763] Others solved the knotty problem by judiciously advising
that in the uncertainty of doubt as to his guilt, the prisoner should
be soundly scourged and turned loose, after taking an oath not to
bring an action for false imprisonment against his tormentors;[1764]
but, according to some authorities, this kind of oath, or _urpheda_
as it was called, was of no legal value.[1765] Towards the end of
the torture system, however, the more humane though not very logical
doctrine prevailed in Germany that a retraction absolved the accused,
unless new and different evidence was brought forward, and this had to
be stronger and clearer than before, for the presumption of innocence
was now with the accused, the torture having purged him of former
suspicion.[1766]
This necessity of repeating a confession after torture gave rise to
another question which caused considerable difference of opinion among
doctors, namely, whether witnesses who were tortured had to confirm
their evidence subsequently, and whether they, in case of retraction
or the presentation of fresh evidence, could be tortured repeatedly.
As usual in doubts respecting torture, the weight of authority was in
favor of its most liberal use.[1767]
There were other curious inconsistencies in the system which manifest
still more clearly the real estimate placed on confessions under
torture. If the torture had been inflicted by an over-zealous judge
without proper preliminary evidence, confession amounted legally to
nothing, even though proofs were subsequently discovered.[1768] If, on
the other hand, absolute and incontrovertible proof of guilt were had,
and the over-zealous judge tortured in surplusage without extracting
a confession, there arose another of the knotty points to which
the torture system inevitably tended and about which jurisconsults
differed. Some held that he was to be absolved, because torture
purged him of all the evidence against him; others argued that he
was to be punished with the full penalty of his crime, because the
torture was illegal and therefore null and void; others again took
a middle course and decided that he was to be visited, not with the
penalty of his crime, but with something else, at the discretion of
his judge.[1769] According to law, indeed, torture without confession
was a full acquittal; but here, again, practice intervened to destroy
what little humanity was admitted by jurists, and the accused under
such circumstances was still held suspect, and was liable at any
moment to be tried again for the same offence.[1770] Indeed, at a
comparatively early period after the introduction of torture, we
are told that if the accused endured it without confession he was
to be kept in prison to see whether new evidence might not turn
up: if none came, then the judge was to assign him a reasonable
delay for his defence; he was regularly tried, when if convicted
he was punished; if not he was discharged.[1771] If, again, a man
and woman were tortured on an accusation of adultery committed with
each other, and if one confessed while the other did not, both were
acquitted according to some authorities, while others held that the
one who confessed should receive some punishment different from that
provided for the crime, while the accomplice was to be discharged
on taking a purgatorial oath.[1772] Nothing more contradictory and
illogical can well be imagined, and, as if to crown the absurdity of
the whole, torture after conviction was allowed in order to prevent
appeals; and if the unfortunate, at the place of execution, chanced
to assert his innocence, he was often hurried from the scaffold to
the rack in obedience to the theory that the confession must remain
unretracted;[1773] though, if the judge had taken the precaution to
have the prisoner’s ratification of his confession duly certified to by
a notary and witnesses, this trouble might be avoided, and the culprit
be promptly executed in spite of his retraction.[1774] One can scarce
repress a grim smile at finding that this series of horrors had pious
defenders who urged that a merciful consideration for the offender’s
soul required that he should be brought to confess his iniquities
in order to secure his eternal salvation.[1775] It was a minor, yet
none the less a flagrant injustice, that when a man had endured the
torture without confession, and was therefore discharged as innocent,
he or his heirs were obliged to defray the whole expenses of his
prosecution.[1776]
The atrocity of this whole system of so-called criminal justice is
forcibly described by the honest indignation of Augustin Nicolas, who,
in his judicial capacity under Louis XIV., had ample opportunities
of observing its practical working and results. “The strappado, so
common in Italy, and which yet is forbidden under the Roman law ...
the vigils of Spain, which oblige a man to support himself by sheer
muscular effort for seven hours, to avoid sitting on a pointed iron,
which pierces him with insufferable pain; the vigils of Florence,
or of Marsiglio, which have been described above; our iron stools
heated to redness, on which we place poor half-witted women accused of
witchcraft, exhausted by frightful imprisonment, rotting from their
dark and filthy dungeons, loaded with chains, fleshless, and half
dead; and we pretend that the human frame can resist these devilish
practices, and that the confessions which our wretched victims make of
everything that may be charged against them are true.”[1777] Under such
a scheme of jurisprudence, it is easy to understand and appreciate the
case of the unfortunate peasant, sentenced for witchcraft, who, in his
dying confession to the priest, admitted that he was a sorcerer, and
humbly welcomed death as the fitting retribution for the unpardonable
crimes of which he had been found guilty, but pitifully inquired of
the shuddering confessor whether one could not be a sorcerer without
knowing it.[1778]
If anything were wanting to show how completely the inquisitorial
process turned all the chances against the accused, it is to be found
in the quaint advice given by Damhouder. He counsels the prisoner,
when required to plead, to prevent his judge from taking advantage of
any adverse points that might occur, as, for instance, in a charge of
homicide to assert his innocence, but to add that, if he were proved
to have committed the crime, he then declares it to have been done in
self-defence.[1779]
* * * * *
We have seen above how great was the part of the Inquisition in
introducing and moulding the whole system of torture on the ruins
of the feudal law. Even so, in the reconstruction of European
jurisprudence, during the sixteenth and seventeenth centuries, the
ardor of the inquisitorial proceedings against witchcraft, and the
panic on the subject which long pervaded Christendom, had a powerful
influence in familiarizing the minds of men with the use of torture as
a necessary instrument of justice, and in authorizing its employment to
an extent which now is almost inconceivable.
From a very early period, torture was recognized as indispensable in
all trials for sorcery and magic. In 358, an edict of Constantius
decreed that no dignity of birth or station should protect those
accused of such offences from its application in the severest
form.[1780] How universal its employment thus became is evident from a
canon of the council of Merida, in 666, declaring that priests, when
sick, sometimes accused the slaves of their churches of bewitching
them, and impiously tortured them against all ecclesiastical
rules.[1781] It was, therefore, natural that all such crimes should
be regarded as peculiarly subjecting all suspected of them to the
last extremity of torture, and its use in the trials of witches and
sorcerers came to be regarded as indispensable.
The necessity which all men felt that these crimes should be
extirpated with merciless severity, and the impalpable nature of
the testimony on which the tribunals had mostly to depend, added to
this traditional belief in the fitness of torture. Witchcraft was
considered as peculiarly difficult of proof, and torture consequently
became an unfailing resource to the puzzled tribunal, although every
legal safeguard was refused to the wretched criminal, and the widest
latitude of evidence was allowed. Bodin expressly declares that in
so fearful a crime no rules of procedure are to be observed.[1782]
Sons were admitted to testify against their fathers, and young girls
were regarded as the best of witnesses against their mothers; the
disrepute of a witness was no bar to the reception of his testimony,
and even children of irresponsible age were allowed to swear before
they rightly knew the nature of the oath on which hung the life of
a parent. Boguet, who presided over a tribunal in Franche Comté, in
stating this rule relates a most pathetic case of his own in which a
man named Guillaume Vuillermoz was convicted on the testimony of his
son, aged twelve, and the hardened nerves of the judge were wrung at
the despair of the unhappy prisoner on being confronted with his child,
who persisted in his story with a callousness only to be explained by
the will of God, who stifled in him all natural affection in order to
bring to condign punishment this most hideous offence.[1783] Louïse
prints the records of a trial in 1662, wherein Philippe Polus was
condemned on the evidence of his daughter, a child in her ninth year.
There seems to have been no other proof against him, and according
to her own testimony the girl had been a sorceress since her fourth
year.[1784] Even advocates and counsel could be forced to give evidence
against their clients.[1785] Notwithstanding the ample resources thus
afforded for conviction, Jacob Rickius, who, as a magistrate during an
epidemic of witchcraft, at the close of the sixteenth century, had the
fullest practical experience on the subject, complains that no reliance
could be placed on legal witnesses to produce conviction;[1786] and Del
Rio only expresses the general opinion when he avers that torture is
to be more readily resorted to in witchcraft than in other crimes, in
consequence of the extreme difficulty of its proof.[1787]
Even the widespread belief that Satan aided his worshippers in
their extremity by rendering them insensible to pain did not serve
to relax the efforts of the extirpators of witchcraft, though they
could hardly avoid the conclusion that they were punishing only the
innocent, and allowing the guilty to escape. Boguet, indeed, seems to
recognize this practical inconsistency, and, though it is permissible
to use torture even during church festivals, he advises the judge not
to have recourse to it because of its inutility.[1788] How little
his advice was heeded, and how little the courts deemed themselves
able to dispense with torture, is shown in the charter of Hainault
of 1619 where in these cases the tribunal is authorized to employ it
to ascertain the truth of the charge, or to discover accomplices, or
_for any other purpose_.[1789] In this dilemma, various means were
adopted to circumvent the arch enemy, of which the one most generally
resorted to was that of shaving the whole person carefully before
applying the torture,[1790] a process which served as an excuse for
the most indecent outrages upon female prisoners. Yet notwithstanding
all the precautions of the most experienced exorcists, we find in
the bloody farce of Urbain Grandier that the fiercest torments left
him in capital spirits and good humor.[1791] Damhouder relates at
much length a curious case which occurred under his own eyes while
member of the council of Bruges, when he assisted at the torture of a
reputed witch who had exercised her power only in good works. During
three examinations, she bore the severest torture without shrinking,
sometimes sleeping and sometimes defiantly snapping her fingers at the
judges. At length, during the process of shaving, a slip of parchment
covered with cabalistic characters was found concealed in her person,
and on its removal she was speedily brought to acknowledge her pact
with the Evil One.[1792] The tender-hearted Rickius was so convinced
of this source of uncertainty that he was accustomed to administer the
cold-water ordeal to all the miserable old women brought before him
on such charges, but he is careful to inform us that this was only
preparatory proof, to enable him with a safer conscience to torture
those who were so ill-advised as to float instead of sinking.[1793]
Grillandus tells us that he had met with cases in which the
insensibility to the severest tortures was so complete that only magic
arts could explain it; the patient seemed to be supported in the air,
or to be in a profound stupor, and he mentions some of the formulas
which were employed for the purpose. In one case at Rome a notorious
thief suspected of a large robbery came to him voluntarily and said
he wanted to purge himself of the rumors against him. He was tortured
repeatedly in various ways; when the operation began he muttered
something and fell into a stupor in which he was absolutely insensible.
After exhausting his ingenuity, Grillandus had to discharge him. In
another case the formula “Quemadmodum lac beatæ,” etc., produced the
same effect.[1794]
From the time when the Cappadocians of old were said to harden their
children with torture in order that they might profitably follow the
profession of false witnesses, there existed so general a belief among
experienced men that criminals of all kinds had secrets with which
to deaden sensibility to torture that it is not improbable that the
unfortunates occasionally were able to strengthen their endurance with
some anæsthetic. Boguet complains that in modern times torture had
become almost useless not only with sorcerers but with criminals in
general, and Damhouder asserts that professional malefactors were in
the habit of torturing each other in order to be hardened when brought
to justice, in consequence of which he advises the judge to inquire
into the antecedents of prisoners, in order to proportion the severity
of the torture to the necessities of the case.[1795]
When the concentrated energies of these ingenious and determined
law dispensers failed to extort by such means a confession from the
wretched clowns and gossips thus placed at their mercy, they were even
yet not wholly at fault. The primitive teachings of the Inquisition
of the thirteenth century were not yet obsolete; they were instructed
to treat the prisoner kindly, and to introduce into his dungeon some
prepossessing agent who should make friends with him and induce him
to confess what was wanted of him, promising to influence the judge
to pardon, when at that moment the judge is to enter the cell and
to promise grace, with the mental reservation that his grace should
be shown to the community and not to the prisoner.[1796] Or, still
following the ancient traditions, spies were to be confined with
him, who should profess to be likewise sorcerers and thus lead him to
incriminate himself, or else the unhappy wretch was to be told that
his associate prisoners had borne testimony against him, in order to
induce him to revenge himself by turning witness against them.[1797]
Boguet, indeed, does not consider it correct to mislead the accused
with promises of pardon, and though it was generally approved by
legists, he decides against it.[1798] Simancas also considers such
artifices to be illegal, and that a confession thus procured could be
retracted.[1799] Del Rio, on the other hand, while loftily condemning
the outspoken trickery recommended by Sprenger and Bodin, proceeds to
draw a careful distinction between _dolum bonum_ and _dolum malum_.
He forbids absolute lying, but advises equivocation and ambiguous
promises, and then, if the prisoner is deceived, he has only himself to
thank for it.[1800] In fact, these men conceived that they were engaged
in a direct and personal struggle with the Evil One, and that Satan
could only be overcome with his own arts.
When the law thus pitilessly turned all the chances against the victim,
it is easy to understand that few escaped. In the existing condition
of popular frenzy on the subject, there was no one but could feel that
he might at any moment be brought under accusation by personal enemies
or by unfortunates compelled on the rack to declare the names of all
whom they might have seen congregated at the witches’ sabbat. We can
thus readily comprehend the feelings of those who, living under such
uncertainties, coolly and deliberately made up their minds in advance
that, if chance should expose them to suspicion, they would at once
admit everything that the inquisitors might desire of them, preferring
a speedy death to one more lingering and scarcely less certain.[1801]
The evil fostered with such careful exaggeration grew to so great
proportions that Father Tanner speaks of the multitude of witches
who were daily convicted through torture;[1802] and that this was no
mere form of speech is evident when one judge, in a treatise on the
subject, boasted of his zeal and experience in having dispatched within
his single district nine hundred wretches in the space of fifteen
years, and another trustworthy authority relates with pride that in
the diocese of Como alone as many as a thousand had been burnt in a
twelvemonth, while the annual average was over a hundred.[1803]
* * * * *
Were it not for the steady patronage bestowed on the system by the
Church, it would seem strange that torture should invade the quiet
and holy retirement of the cloister. Its use, however, in monasteries
was, if possible, even more arbitrary than in secular tribunals. Monks
and nuns were exempt from the jurisdiction of the civil authorities,
and were bound by vows of blind obedience to their superiors. The
head of each convent thus was an autocrat, and when investigating the
delinquencies of any of his flock he was subjected to no limitations.
Not only could he order the accused to be tortured at will, but the
witnesses, whether male or female, were liable to the same treatment,
with the exception that in the case of nuns it was recommended that
the tortures employed should not be indecent or too severe for the
fragility of the sex. As elsewhere, it was customary to commence the
torment with the weakest of the witnesses or criminals.[1804]
CHAPTER IX.
ENGLAND AND THE NORTHERN RACES.
In this long history of legalized cruelty and wrong the races of
northern Europe are mostly exceptional. Yet it is somewhat remarkable
that the first regular mediæval code in which torture is admitted as
a means of investigation is the one of all others in which it would
be least expected. The earliest extant law of Iceland, the Grágás,
which dates from 1119, has one or two indications of its existence
which are interesting as being purely autochthonic and in no sense
derivable, as in the rest of Europe, from the Roman law. The character
of the people, indeed, and of their institutions would seem to be
peculiarly incompatible with the use of torture, for almost all cases
were submitted to inquests or juries of the vicinage, and, when this
was unsuitable, resort was had to the ordeal. The indigenous origin of
the custom, however, is shown by the fact that while it was used in
but few matters, the most prominent class subjected to it was that of
pregnant women, who have elsewhere been spared by the common consent
of even the most pitiless legislators. An unmarried woman with child,
who refused to name her seducer, could be forced to do so by moderate
torments which should not break or discolor the skin.[1805] The object
of this was to enable the family to obtain the fine from the seducer,
and to save themselves from the expense of supporting the child.
When the mother confessed, however, additional evidence was required
to convict the putative father. When the inhabitants of a district,
also, refused to deliver up a man claimed as an outlaw by another
district, they were bound to torture him to ascertain the truth of the
charge[1806]—a provision doubtless explicable by the important part
occupied by outlawry in all the schemes of Scandinavian legislation.
These are the only instances in which it is permitted, while its
occasional abuse is shown by a section providing punishment for its
illegal employment.[1807] Slaves, moreover, under the Icelandic, as
under other codes, had no protection at law, and were at the mercy
of their masters.[1808] These few indications of the liability of
freemen, however, disappear about the time when the rest of Europe was
commencing to adopt the use of torture. In the _Jarnsida_, or code
compiled for Iceland by Hako Hakonsen of Norway, in 1258, there is no
allusion whatever to its use.
The Scandinavian nations, as a whole, did not admit torture into their
systems of jurisprudence. The institution of the jury in various forms
was common to all, and where proof upon open trial was deficient,
they allowed, until a comparatively recent date, the accused to
clear himself by sacramental purgation. Thus, in the Danish laws of
Waldemar II., to which the date of 1240 is generally assigned, there
is a species of permanent jury, _sandemend_, as well as a temporary
one, _nefninge_, and torture seems to have formed no part of judicial
proceedings.[1809] This code was in force until 1683, when that of
Christiern V. was promulgated. It is probable that the employment
of torture may have crept in from Germany, without being regularly
sanctioned, for we find Christiern forbidding its use except in cases
of high treason, where the magnitude of the offence seems to him to
justify the infraction of the general rule. He, however, encouraged
one of its greatest abuses in permitting it on criminals condemned to
death.[1810]
Among the kindred Frisians the tendency was the same. Their code of
1323 is a faithful transcript of the primitive Barbarian jurisprudence.
It contains no allusions to torture, and as all crimes, except theft,
were still compounded for with _wer-gilds_, it may reasonably be
assumed that the extortion of confession was not recognized as a
judicial expedient.[1811]
So, in Sweden, the code of Raguald, compiled in 1441, and in force
until 1614, during a period in which torture flourished in almost every
European state, has no place for it. Trials are conducted before twelve
_nempdarii_, or jurymen, and in doubtful cases the accused is directed
to clear himself by oath or by conjurators. For atrocious crimes the
punishments are severe, such as the wheel or the stake, but inflictions
like these are reserved for the condemned.[1812] Into these distant
regions the Roman jurisprudence penetrated slowly, and the jury trial
was an elastic institution which adapted itself to all cases.
* * * * *
To the same causes may be attributed the absence of torture from the
Common Law of England. In common with the other Barbarian races,
the Anglo-Saxons solved all doubtful questions by the ordeal and
wager of law, and in the collection known as the laws of Henry I. a
principle is laid down which is incompatible with the whole theory of
torture, whether used to extract confession or evidence. A confession
obtained by fear or fraud is pronounced invalid, and no one who has
confessed his own crime is to be believed with respect to that of
another.[1813] Such a principle, combined with the gradual growth of
the trial by jury, doubtless preserved the law from the contamination
of inquisitorial procedure, though, as we have seen, torture was
extensively employed for purposes of extortion by marauders and
lawless nobles during periods of civil commotion. Glanville makes no
allusion to it, and though Bracton shows a wide acquaintance with the
revived Roman jurisprudence, and makes extensive use of it in all
matters where it could be advantageously harmonized with existing
institutions, he is careful to abstain from introducing torture into
criminal procedure.[1814] A clause in Magna Charta, indeed, has been
held by high authority to inhibit the employment of torture, but it
has no direct allusion to the subject, which was not a living question
at the time, and was probably not thought of by any of the parties to
that transaction.[1815] In fact, the whole spirit of English law was
irreconcilable with the fundamental principles of the inquisitorial
process. When the accused was brought before court, he was, it is
true, required to appear ungirdled, without boots, or cap, or cloak,
to show his humility, but it is expressly directed that he shall not
be chained, lest his fetters should embarrass his self-possession in
his defence, and he was not to be forced in any way to state anything
but of his own free will.[1816] Men who could frame legal maxims so
honorable to their sense of justice and so far in advance of the
received notions of their age could evidently have nothing in common
with the principles which placed the main reliance of the law on
confession to be wrung from the lips of an unfortunate wretch who was
systematically deprived of all support and assistance. To do so, in
fact, is classed with homicide, by a legal writer of the period;[1817]
but that it was occasionally practised is shown by his giving a form
for the appeal of homicide against judges guilty of it.[1818]
Under the common law, therefore, torture had properly no existence
in England, and in spite of occasional efforts on the part of the
Plantagenets[1819] the character of the national institutions kept at
bay the absorbing and centralizing influences of the Roman law.[1820]
Yet their wide acceptance in France, and their attractiveness to those
who desired to wield absolute authority, gradually accustomed the crown
and the crown lawyers to the idea that torture could be administered
by order of the sovereign. Sir John Fortescue, who was Lord Chancellor
under Henry VI., inveighs at great length against the French law for
its cruel procedures, and with much satisfaction contrasts it with
the English practice,[1821] and yet he does not deny that torture was
occasionally used in England. Indeed, his fervent arguments against
the system, addressed to Prince Edward, indicate an anxiety to combat
and resist the spread of civil law doctrines on the subject, which
doubtless were favored by the influence of Margaret of Anjou. An
instance of its application in 1468 has, in fact, been recorded,
which resulted in the execution of Sir Thomas Coke, Lord Mayor of
London;[1822] and in 1485, Innocent VIII. remonstrated with Henry VII.
respecting some proceedings against ecclesiastics who were scourged,
tortured, and hanged.[1823]
Under Henry VIII. and his children, the power of the crown was largely
extended, and the doctrine became fashionable that, though under the
law no one could be tortured for confession or evidence, yet outside
and above the law the royal prerogative was supreme, and that a
warrant from the King in Privy Council fully justified the use of the
rack and the introduction of the secret inquisitorial process, with
all its attendant cruelty and injustice. It is difficult to conceive
the subserviency which could reconcile men, bred in the open and
manly justice of the common law, to a system so subversive of all the
principles in which they had been trained. Yet the loftiest names of
the profession were concerned in transactions which they knew to be in
contravention of the laws of the land.
Sir Thomas Smith, one of the ornaments of the Elizabethan bar,
condemned the practice as not only illegal, but illogical. “Torment or
question, which is used by order of the civile law and custome of other
countries, ... is not used in England.... The nature of Englishmen is
to neglect death, to abide no torment; and therefore hee will confesse
rather to have done anything, yea, to have killed his owne father,
than to suffer torment.” And yet, a few years later, we find the same
Sir Thomas writing to Lord Burghley, in 1571, respecting two miserable
wretches whom he was engaged in racking under a warrant from Queen
Elizabeth.[1824]
In like manner, Sir Edward Coke, in his Institutes, declares—“So, as
there is no law to warrant tortures in this land, nor can they be
justified by any prescription, being so lately brought in.” Yet, in
1603, there is a warrant addressed to Coke and Fleming, as Attorney and
Solicitor General, directing them to apply torture to a servant of Lord
Hundsdon, who had been guilty of some idle speeches respecting King
James, and the resultant confession is in Coke’s handwriting, showing
that he personally superintended the examination.[1825]
Coke’s great rival, Lord Bacon, was as subservient as his
contemporaries. In 1619, while Chancellor, we find him writing to
King James concerning a prisoner confined in the Tower on suspicion
of treason—“If it may not be done otherwise, it is fit Peacock be
put to torture. He deserveth it as well as Peacham did”—Peacham
being an unfortunate parson in whose desk was found a MS. sermon,
never preached, containing some unpalatable reflections on the royal
prerogative, which the prerogative resented by putting him on the
rack.[1826]
As in other countries, so in England, when torture was once introduced,
it rapidly broke the bounds which the prudence of the Roman lawgivers
had established for it. Treason was a most elastic crime, as was shown
in 1553 by its serving as an excuse for the torture of one Stonyng,
a prisoner in the Marshalsea, because he had transcribed for the
amusement of his fellow-captives a satirical description of Philip II.,
whose marriage with Queen Mary was then under contemplation.[1827] But
it was not only in cases of high treason that the royal prerogative
was allowed to transgress the limits of the law. Matters of religion,
indeed, in those times of perennial change, when dynasties depended
on dogmas, might come under the comprehensive head of constructive
treason, and be considered to justify the torture even of women, as
in the instance of Ann Askew in 1546;[1828] and of monks guilty of
no other crime than the endeavor to preserve their monasteries by
pretended miracles.[1829] Under Elizabeth, engaged in a death-struggle
with Rome, matters became even worse, and torture was habitually used
on the unhappy Catholics who were thrown into the Tower. As the whole
matter was without the color of law, all legal limitations seem to
have been disregarded. The Jesuit Campion was subjected to the rack no
less than three times with extreme severity, and in the intervals was
made to dispute with Protestant divines.[1830] Having once thus secured
its introduction in state trials for treason, the custom inevitably
tended to spread to the sphere of the most ordinary criminal business.
Suspicion of theft, murder, horse-stealing, embezzlement, and other
similar offences was sufficient to consign the unfortunate accused to
the tender mercies of the rack, the Scavenger’s Daughter,[1831] and the
manacles, when the aggrieved person had influence enough to procure
a royal warrant; nor were these proceedings confined to the secret
dungeons of the Tower, for the records show that torture began to be
habitually applied in the Bridewell. Jardine, however, states that this
especially dangerous extension of the abuse appears to have ceased
with the death of Elizabeth, and that no trace of the torture even of
political prisoners can be found later than the year 1640.[1832] The
royal prerogative had begun to be too severely questioned to render
such manifestations of it prudent, and the Great Rebellion finally
settled the constitutional rights of the subject on too secure a basis
for even the time-serving statesmen of the Restoration to venture on
a renewal of the former practice. Yet how nearly, at one time, it
had come to be engrafted on the law of the land is evident from its
being sufficiently recognized as a legal procedure for persons of
noble blood to claim immunity from it, and for the judges to admit
that claim as a special privilege. In the Countess of Shrewsbury’s
case, the judges, among whom was Sir Edward Coke, declared that there
was a “privilege which the law gives for the honor and reverence of
the nobility, that their bodies are not subject to torture _in causa
criminis læsæ majestatis_,” and no instance is on record to disprove
the assertion.[1833]
In one class of offences, however, torture was frequently used to a
later date, and without requiring the royal intervention. As on the
Continent, sorcery and witchcraft were regarded as crimes of such
peculiar atrocity, and the dread they excited was so universal and
intense, that those accused of them were practically placed beyond
the pale of the law, and no means were considered too severe to
secure the conviction which in many cases could only be obtained by
confession. We have seen that among the refinements of Italian torture,
the deprivation of sleep for forty hours was considered by the most
experienced authorities on the subject to be second to none in severity
and effectiveness. It neither lacerated the flesh, dislocated the
joints, nor broke the bones, and yet few things could be conceived as
more likely to cloud the intellect, break down the will, and reduce
the prisoner into a frame of mind in which he would be ready to admit
anything that the questions of his examiners might suggest to him.
In English witch-trials, this method of torture was not infrequently
resorted to, without the limitation of time to which it was restricted
by the more experienced jurists of Italy.[1834]
Another form of torture used in Great Britain, which doubtless proved
exceedingly efficacious, was the “pricking” adopted to discover the
insensible spot, which, according to popular belief, was one of the
invariable signs of a witch. There were even professional “prickers”
who were called in as experts in the witch-trials, and who thrust long
pins into the body of the accused until some result, either negative or
positive, was obtained.[1835] Thus at the prosecution of Janet Barker,
in Edinburgh, in 1643, it is recorded that “she had the usual mark on
the left shoulder, which enabled one James Scober, a skilful pricker
of witches, to find her out by putting a large pin into it, which she
never felt.”[1836] One witch pricker, named Kincaid, used to strip his
victims, bind them hand and foot, and then thrust his pins into every
part of their bodies, until, exhausted and rendered speechless by the
torture, they failed to scream, when he would triumphantly proclaim
that he had found the witch-mark. Another pricker confessed on the
gallows that he had illegally caused the death of a hundred and twenty
women whom he had thus pricked for witchcraft.[1837]
In Scotland, torture, as a regular form of judicial investigation,
was of late introduction. In the various codes collected by Skene,
extending from an early period to the commencement of the fifteenth
century, there is no allusion whatever to it. In the last of these
codes, adopted under Robert III. by the Parliament of Scotland in
1400, the provisions respecting the wager of battle show that torture
would have been superfluous as a means of supplementing deficient
evidence.[1838] The influence of the Roman law, however, though late in
appearing, was eventually much more deeply felt in Scotland than in the
sister kingdom, and consequently torture at length came to be regarded
as an ordinary resource in doubtful cases. In the witch persecutions,
especially, which in Scotland rivalled the worst excesses of the
Inquisition of Italy and Spain, it was carried to a pitch of frightful
cruelty which far transcended the limits assigned to it elsewhere.
Thus the vigils, which we have seen consisted simply in keeping the
accused awake for forty hours by the simplest modes, in Scotland were
fearfully aggravated by a witch-bridle, a band of iron fastened around
the face, with four diverging points thrust into the mouth. With this
the accused was secured immovably to a wall, and cases are on record in
which this insupportable torment was prolonged for five and even for
nine days. In other cases an enormous weight of iron hoops and chains,
amounting to twenty-five or thirty stone, would be accumulated on the
body of the patient.[1839] 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.[1840] 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.[1841]
Torture thus maintained its place in the laws of Scotland as long as
the kingdom preserved the right of self-legislation, though an attempt
seems to have been made to repress it during the temporary union with
England under the Commonwealth. In 1652, when the English Commissioners
for the administration of justice sat in Edinburgh, among other
criminals brought before them were two witches who had confessed their
guilt before the Kirk. They were the remains of a party of six, four of
whom had died under the tortures employed to procure confession—such as
hanging by the thumbs tied behind the back, scourging, burning the feet
and head and putting lighted candles into their mouths, clothing them
in hair-cloth soaked in vinegar “to fetch off the skin,” &c. Another
woman was stripped naked, laid on a cold stone with a hair-cloth over
her, and thus kept for twenty-eight days and nights, being fed on bread
and water. The diarist who records this adds that “The judges are
resolved to inquire into the business, and have appointed the sheriff,
ministers, and tormentors to be found out, and to have an account of
the ground of this cruelty.”[1842] What result their humane efforts
obtained in this particular instance I have not been able to ascertain,
but the legal administration of torture was not abolished until after
the Union, when, in 1709, the United Parliament made haste, at its
second session, to pass an act for “improving the Union,” by which it
was done away with.[1843] Yet the spirit which had led to its abuse
could not be repressed by Act of Parliament, and a case is on record,
occurring in 1722, when a poor old woman in her dotage, condemned to
be burnt as a witch, actually warmed her withered hands at the stake
lighted for her destruction, and mumbled out her gladness at enjoying
the unaccustomed warmth.[1844]
CHAPTER X.
DECLINE OF THE TORTURE SYSTEM.
A system of procedure which entailed results so deplorable as those
which we have seen accompany it everywhere, could scarcely fail to
arouse the opposition of thinking men who were not swayed by reverence
for precedent or carried away by popular impulses. Accordingly, an
occasional voice was raised in denunciation of the use of torture.
Geiler von Kaisersberg, the most popular preacher of his time in
Germany, who died in 1510, endeavored to procure its disuse, as well
as to mitigate the cruelties practised upon prisoners.[1845] The
Spaniard, Juan Luis Vives, one of the profoundest scholars of the
sixteenth century, condemned it as useless and inhuman.[1846] 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. “To tell the truth, it is a
means full of uncertainty and danger; what would we not say, what would
we not do to escape suffering so poignant? whence it happens that when
a judge tortures a prisoner for the purpose of not putting an innocent
man to death, he puts him to death both innocent and tortured....
Are you not unjust when, to save him from being killed, you do worse
than kill him?”[1847] In 1624, the learned Johann Gräfe, in his
_Tribunal Reformatum_, argued forcibly in favor of its abolition,
having had, it is said, practical experience of its horrors during
his persecution for Arminianism by the Calvinists of Holland, and his
book attracted sufficient attention to be repeatedly reprinted.[1848]
Friedrich Keller, in 1657, at the University of Strassburg, presented
a well-reasoned thesis urging its disuse, which was reprinted in 1688,
although the title which he prefixed to it shows that he scarce dared
to assume the responsibility for its unpopular doctrines.[1849] When
the French Ordonnance of 1670 was in preparation, various magistrates
of the highest character and largest experience gave it as their fixed
opinion that torture was useless, that it rarely succeeded in eliciting
the truth from the accused, and that it ought to be abolished.[1850]
Towards the close of the century, various writers took up the question.
The best known of these was perhaps Augustin Nicolas, who has been
frequently referred to above, and who argued with more zeal and
learning than skill against the whole system, but especially against it
as applied in cases of witchcraft.[1851] In 1692, von Boden, in a work
alluded to in the preceding pages, inveighed against its abuses, while
admitting its utility in many classes of crimes. Bayle, not long after,
in his Dictionary, condemned it in his usual indirect and suggestive
manner.[1852] In 1705, at the University of Halle, Martin Bernhardi
of Pomerania, a candidate for the doctorate, in his inaugural thesis,
argued with much vigor in favor of abolishing it, and the dean of the
faculty, Christian Thomas, acknowledged the validity of his reasoning,
though expressing doubts as to the practicability of a sudden reform.
Bernhardi states that in his time it was no longer employed in
Holland, and its disuse in Utrecht he attributes to a case in which a
thief procured the execution, after due torture and confession, of a
shoemaker, against whom he had brought a false charge in revenge for
the refusal of a pair of boots.[1853] His assertion, however, is too
general, for it was not until the formation of the Republic of the
Netherlands, in 1798, that it was formally abolished.[1854]
These efforts had little effect, but they manifest the progress of
enlightenment, and doubtless paved the way for change, especially in
the Prussian territories. Yet, in 1730, we find the learned Baron
Senckenberg reproducing Zanger’s treatise, not as an archæological
curiosity, but as a practical text-book for the guidance of lawyers
and judges. Meanwhile the propriety of the system continued to be
a subject of discussion in the schools, with ample expenditure of
learning on both sides.[1855] In 1733, at Leipzig, Moritz August Engel
read a thesis, which called forth much applause, in which he undertook
to defend the use of torture against the dictum of Christian Thomas
nearly thirty years before.[1856] The argument employed is based on the
theory of the criminal jurisprudence of the time, in which the guilt
of the accused is taken for granted and the burden thrown upon him
of proving himself innocent. Engel declares that in all well-ordered
States torture is rightfully employed; those who are innocent and are
the victims of suspicious circumstances have only themselves to blame
for their imprudence, and must make allowance for the imperfections
of human reason; and he airily disposes of the injustice of the
system by declaring that the State need not care if an innocent man
is occasionally tortured, for no human ordinance can be expected to
be free from occasional drawbacks. Another disputant on the same side
meets the argument that the different sensibilities of individuals
rendered torture uncertain, by boasting that in the Duchy of Zerbst the
executioner had invented an instrument which would wring a confession
out of the most hardened and robust.[1857] It was shortly after this,
however, that the process of reform began in earnest. Frederic the
Great succeeded to the throne of Prussia May 31, 1740. Few of his
projects of universal philanthropy and philosophical regeneration of
human nature survived the hardening experiences of royal ambition,
but while his power was yet in its first bloom he made haste to get
rid of this relic of unreasoning cruelty. It was almost his earliest
official act, for the cabinet order abolishing torture is dated
June 3d.[1858] Yet even Frederic could not absolutely shake off the
traditional belief in its necessity when the safety of the State or of
the head of the State was concerned. Treason and rebellion and some
other atrocious crimes were excepted from the reform; and in 1752, at
the instance of his high chancellor, Cocceji, by a special rescript,
he ordered two citizens of Oschersleben to be tortured on suspicion
of robbery.[1859] With singular inconsistency, moreover, torture in a
modified form was long permitted in Prussia, not precisely as a means
of investigation, but as a sort of punishment for obdurate prisoners
who would not confess, and as a means of marking them for subsequent
recognition.[1860] It is evident that the abrogation of torture did not
carry with it the removal of the evils of the inquisitorial process.
When the royal philosopher of Europe thus halted in the reform, it is
not singular that his example did not put an end to the controversy
as to the abolition of torture elsewhere. German jurisprudence, in
fact, was not provided with substitutes, and legists trained in the
inquisitorial process might well hesitate to abandon a system with
which they were familiar in order to enter upon a region of untried
experiment for which there was no provision in the institutions or the
ancestral customs of the land. These natural doubts are well expressed
by Gerstlacher, who, in 1753, published a temperate and argumentative
defence of torture. He enumerates the substitutes which had been
proposed by his opponents, and if he does them no injustice, the judges
of the day might naturally feel indisposed to experiments so crude and
illogical. It seems that the alternatives offered for the decision of
cases in which the accused could not be convicted by external evidence
reduced themselves to four—to dismiss him without a sentence either
of acquittal or conviction, to make him take an oath of purgation, to
give him an extraordinary (that is to say, a less) penalty than that
provided for the crime, and, lastly, to imprison him or send him to the
galleys or other hard labor, proportioned to the degree of the evidence
against him, until he should confess.[1861]
In Saxony, as early as 1714, an Electoral Rescript had restricted
jurisdiction over torture to the magistrates of Leipzig, to whom
all proceedings in criminal prosecutions had to be submitted for
examination prior to their confirmation of the decision of the local
tribunals to employ it.[1862] This must have greatly reduced the
amount of wrong and suffering caused by the system, and thus modified
it continued to exist until, in the remodelling of the Saxon criminal
law, between 1770 and 1783, the whole apparatus of torture was swept
away. In Austria the _Constitutio Criminalis Theresiana_, issued in
1769 by Maria Theresa, still contains elaborate instructions as to the
administration of torture, with careful descriptions and illustrations
of the implements in use and the methods of employing them;[1863] but
the enlightenment of Joseph II., soon after his accession in 1780, put
an end to the barbarism, and in Switzerland about the same time it was
similarly disused. In Russia, the 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.[1864] In the singularly enlightened
instructions which she drew up for the framing of a new code in 1767,
the use of torture was earnestly argued against in a manner which
betrays the influence of Beccaria.[1865] 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
Würtemberg 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. Yet legists who had been trained in
the old school could not admit the soundness of modern ideas, and in
the greater part of Germany the theories which resulted in the use
of torture continued to prevail. The secret inquisitorial process
was retained and the principle that the confession of the accused
was requisite to his condemnation. Torture of some kind is necessary
to render the practical application of this system efficacious, and
accordingly, though the rack and strappado were abolished, their place
was taken by other modes in reality not less cruel. When appearances
were against the prisoner, he was confined for an indefinite period
and subjected to all the hard usage to be expected from officials
provoked by his criminal obstinacy. He was brought up repeatedly
before his judge and exposed to the most searching interrogatories and
terrified with threats. Legists, unwilling to abandon the powerful
weapon which had placed every accused person at their mercy, imagined
a new justification for its revival. It was held that every criminal
owed to society a full and free confession. His refusal to do this was
a crime, so that if his answers were unsatisfactory to the judge the
latter could punish him on the spot for contumacy. As this punishment
was usually administered with the scourge, it will be seen that the
abolition of torture was illusory, and that the worst abuses to which
it gave rise were carefully retained.[1866] Indeed, if we are to
accept literally some letters of M. A. Eubule-Evans in the London
“Times” of 1872, the _Untersuchungschaft_ or inquisitorial process as
employed in Prussia to the present day lacks little of the worst abuses
recorded by Sprenger and Bodin. The accused while under detention is
subjected to both physical and moral torture, and is carefully watched
by spies. In the prison of Bruchsal there is a machine to which the
prisoner is attached by leather thongs passed around head, trunk, and
limbs, and drawn so tight that the arrested circulation forces the
blood from mouth and ears; or he is confined, perhaps for a week at a
time, in a small cell of which floor and sides are covered with sharp
wooden wedges, rivalling the fragments of potsherds which Prudentius
considered the crowning effort of devilish ingenuity for the torture of
Christian martyrs.
Spain, as may readily be imagined, was in no haste to reform the
ancient system of procedure. As late as 1796, in the Vice-royalty of
New Granada, when the spread of the ideas of the French Revolution
began to infect society, some pasquinades appeared in Santafé
displeasing to the government. Though the Viceroy Ezpeleta was regarded
as a singularly enlightened man, he had a number of persons arrested on
suspicion, one of whom was put to the torture to discover the author
of the obnoxious epigrams. It is satisfactory to know that although
several of the accused were convicted and sent to Spain to serve out
long terms of punishment, on their arrival at Madrid they were all
discharged and compensated.[1867] After the revolution, the authorized
use of torture was abolished, but as recently as 1879 its application,
by various methods showing skill and experience in its use, on an
American citizen falsely accused of theft, led to a correspondence
between the governments of Venezuela and the United States, recorded in
the journals of the time.
In the mother country the employment of torture, though becoming rarer
as the eighteenth century neared its end, continued legal until the
overthrow of the old monarchy, and it was not abolished until the
Cortes of Cadiz in 1811 revolutionized all the institutions of the
nation. In the reaction which followed the return of the Bourbons it
was not reinstated, but moderated appliances known as _apremios_—which
were sometimes as severe as the rack or the pulley—continued to be
used, especially in political offences, by the arbitrary despotism of
the Restoration.[1868]
Even France had maintained a conservatism which may seem surprising in
that centre of the philosophic speculation of the eighteenth century.
Her leading writers had not hesitated to condemn the use of torture.
In the _Esprit des Lois_, in 1748, Montesquieu stamped his reprobation
on the system with a quiet significance which showed that he had on
his side all the great thinkers of the age, and that he felt argument
to be mere surplusage.[1869] Voltaire did not allow its absurdities
and incongruities to escape. In 1765 he endeavored to arouse public
opinion on the case of the Chevalier de la Barre, a youthful officer
only twenty years of age, who was tortured and executed on an
accusation of having recited a song insulting to Mary Magdalen and of
having mutilated with his sword a wooden crucifix on the bridge of
Abbeville.[1870] He was more successful in attracting the attention
of all Europe to the celebrated _affaire Calas_ which, in 1761, had
furnished a notable example of the useless cruelty of the system.
In that year, at midnight of Oct. 13th, at Toulouse, the body of
Marc-Antoine Calas was found strangled in the back shop of his father.
The family were Protestants and the murdered man had given signs of
conversion to Catholicism, in imitation of his younger brother. A
minute investigation left scarcely a doubt that the murder had been
committed by the father, from religious motives, and he was condemned
to death. He appealed to the Parlement of Toulouse, which after a
patient hearing sentenced him to the wheel, and to the _question
ordinaire et extraordinaire_, to extract a confession. He underwent
the extremity of torture and the hideous punishment of being broken
alive without varying from his protestations of innocence. Though both
trials appear to have been conducted with rigorous impartiality, the
Protestantism of Europe saw in the affair the evidence of religious
persecution, and a fearful outcry was raised. Voltaire, ever on the
watch for means to promote toleration and freedom of thought, seized
hold of it with tireless energy, and created so strong an agitation
on the subject that in 1764 the supreme tribunal at Paris reversed
the sentence, discharged the other members of the family, who had
been subjected to various punishments, and rehabilitated the memory of
Calas.[1871] When Louis XVI., at the opening of his reign, proposed
to introduce many long-needed reforms, Voltaire took advantage of the
occasion to address to him in 1777 an earnest request to include among
them the disuse of torture;[1872] yet it was not until 1780 that the
_question préparatoire_ was abolished by a royal edict which, in a
few weighty lines, indicated that only the reverence for traditional
usage had preserved it so long.[1873] This edict, however, was not
strictly obeyed, and cases of the use of torture still occasionally
occurred, as that of Marie Tison at Rouen, in 1788, accused of the
murder of her husband, when thumb-screws were applied to both thumbs
and at the same time she was hoisted in the strappado, in which she was
allowed to hang for an hour after the executioner had reported that
both shoulders were out of joint, all of which was insufficient to
extract a confession.[1874] There evidently was occasion for another
ordonnance, which in that same year, 1788, was promulgated in order
to insure the observance of the previous one.[1875] In fact, when the
States-General was convened in 1879, the _cahier des doléances_ of
Valenciennes contained a prayer for the abolition of torture, showing
that it had not as yet been discontinued there.[1876] The _question
définitive_ or _préalable_, by which the prisoner after condemnation
was again tortured to discover his accomplices, still remained until
1788, when it, too, was abolished, at least temporarily. It was
pronounced uncertain, cruel to the convict and perplexing to the judge,
and, above all, dangerous to the innocent whom the prisoner might name
in the extremity of his agony to procure its cessation, and whom he
would persist in accusing to preserve himself from its repetition. Yet,
with strange inconsistency, the abolition of this cruel wrong was only
provisional, and its restoration was threatened in a few years, if the
tribunals should deem it necessary.[1877] When those few short years
came around they dawned on a new France, from which the old systems
had been swept away as by the besom of destruction; and torture as
an element of criminal jurisprudence was a thing of the past. By the
decree of October 9th, 1789, it was abolished forever.
In Italy, Beccaria, in 1764, took occasion to devote a few pages of
his treatise on crimes and punishments to the subject of torture, and
its illogical cruelty could not well be exposed with more terseness
and force.[1878] It was probably due to the movement excited by this
work that in 1786 torture was formally abolished in Tuscany. In
this the enlightened Grand-duke Leopold was in advance of his time,
and the despots who ruled the divided fractions of the peninsula,
although they might be willing to banish torture from ordinary criminal
jurisprudence, had too well-grounded a distrust of the fidelity of
their subjects to divest themselves of this resource in the suppression
of political offences. Hardly had the Bourbons, after the overthrow
of Napoleon, been reseated on the throne of the Two Sicilies when the
restless dissatisfaction of the people seemed to justify the severest
measures for the maintenance of so-called order. The troubles of 1820
led to arming the police with exceptional and summary jurisdiction,
under which it deemed itself authorized to employ any methods requisite
to detect and punish conspirators. This continued until the revolution
of 1848 aggravated the fears of absolutism, and from its suppression
until the expedition of Garibaldi the régime of the Neapolitan
dominions was an organized Terror. Grave as we have seen were the
abuses of torture when systematized in the detection of crime, they
were outstripped by the licensed cruelty of the ex-galley slaves of
the Neapolitan police, who were restrained by no codes or rules of
practice, and were eager to demonstrate their zeal by the number of
their victims. The terrible secrets of the dungeons of Naples and
Palermo may never see the light, but enough is known to show that
they rivalled those of Ezzelin da Romano. Police agents competed in
inventing new and hideous modes of inflicting pain. Neither age nor
sex was spared. In one case an old man and his daughter, five months
gone in pregnancy, died under the lash. If a suspected man took alarm
and fled, his mother or his wife and daughters would be tortured to
discover his hiding-place. The evil records of the dark ages have
nothing to show more brutal and inhuman than the application of torture
in Naples and Sicily in the second half of the nineteenth century.[1879]
That the mortal duel between autocracy and Nihilism in Russia should
lead to the employment of torture in unravelling the desperate
conspiracies of the malcontents is so natural that we may readily
accept the current assertions of the fact. The conspirators are said
frequently to carry poison in order, if arrested, to save themselves
from endless torment and the risk of being forced to betray associates,
and the friends of prisoners spare no effort to convey to them some
deadly drug by means of which they may escape the infliction. Polish
aspirations for liberty are repressed in the same manner, and in 1890
the journal’s recorded the case of Ladislas Guisbert, rendered insane
by the prolonged administration of Marsigli’s favorite torment of
sleeplessness.
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 defenceless. As recently as 1867, in Texas, the Jefferson
“Times” records a case in which, under the auspices of the military
authorities, torture was applied to two negroes suspected of purloining
a considerable amount of money which had been lost by a revenue
collector. More recently still, in September, 1868, the London journals
report fearful barbarities perpetrated by the Postmaster-General of
Roumania to trace the authors of a mail robbery. A woman was hung to a
beam with hot eggs under the armpits; others were burned with grease
and petroleum, while others again were tied by the hair to horses’
tails and dragged through thorn bushes. It must be added that the
offending officials were promptly dismissed and committed for trial. A
still more recent case is one which has been the subject of legislative
discussion in Switzerland, where it appears that in the Canton of Zug,
under order of court, a man suspected of theft was put on bread and
water from Oct. 26th to Nov. 10th, 1869, to extort confession, and when
this failed he was subjected to thumb-screws and beaten with rods.
* * * * *
In casting a retrospective glance over this long history of cruelty and
injustice, it is saddening to observe 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 to
the nineteenth century. From this no race or religion has been exempt.
What the Calvinist suffered in Flanders, he inflicted in Holland; 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 passions 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 Saviour, yet are we approaching it, even if our steps are painful
and hesitating. In the slow evolution of the centuries, it is only 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.
INDEX.
Aames II., story of, 260
Abbeys, champions of, 197
Abbo of Fleury claims exemption from ordeal for clerics, 414
Abelard and Heloise, legend of, 364
Aben Ezra on water of golden calf, 262
_Abiadiong_, or sorcerer, 254
Abingdon, Abbey of, uses ordeal of chance, 356
the black cross of, 373
Abraham, covenant of, 27
exposed to fire ordeal, 303
Abraham of Freisingen takes ordeal of Eucharist, 348
Absolution for use of torture, 485
secures escape in ordeal, 402
Abuse of the ordeal, 405, 417
of power by judges, 545
of torture under Wisigoths, 461
by modern judges, 539
Accessories of oaths, 29
Accomac County, Va., case of bier-right, 366
Accomplices, the weakest tortured first in Rome, 448
in Spain, 463
in Germany, 543
evidence not used against in Rome, 443, 445
in England, 563
received in Wales, 564
torture to discover, in Inquisition, 484
in France, 515, 517, 584
in Germany, 546
in Denmark, 562
in Massachusetts, 570
Accusation withheld from accused, 514
Accusations, repeated, 45
Accusatorial conjurators, 94
in France, 94
in England, 95
in Béarn, 96
in Germany, 96, 97
in Northern kingdoms, 97
in Vehmgericht, 99
Accusatorial ordeals, 389
Accused (see also _Defendant_),
advantage of compurgation to, 62
allowed to present a warrantor, 121
entitled to duel though guilty, 131
obliged to accept the duel, 140, 141, 143
his right of election, 144
swears to his innocence, 166
allowed choice of weapons, 177
selects the ordeal, 292
obliged to submit to the ordeal, 383
compounding for the ordeal, 384
fined if his adversary escapes in the ordeal, 384
can demand ordeal, 387
counsel denied to, by Inquisition, 486
in France, 517
allowed counsel in Castile, 469
in Germany, 544
hearing allowed him, 518
refused a hearing, 547
entitled to see adverse testimony in Castile, 468
in Italy, 507
in Valtelline, 508
in France, 504, 512
evidence refused him in France, 514
in Germany, 544
held responsible for torture, 532
torture of witnesses against absent, 542
confrontation with accuser, 545
tortured after conviction, 545, 546
absolved by retraction of confession, 550
after acquittal pays expenses, 552
Damhouder’s advice to, 553
not to be chained in England, 565
Accuser (see also _Appellant_, _Plaintiff_),
selects the conjurators, 48, 49
onus of proof on, 74, 272
obliged to accept the duel, 140, 141
not obliged to accept duel, 143
his right to demand duel, 144, 145
allowed choice of weapons, 176
selects the ordeal, 291
fined if accused escapes in the ordeal, 384
defeated, ordeal for, 385
guilty of perjury, 386
can demand ordeal, 386
ordeal for, 389
must be present at ordeal, 405
subject to _talio_ in Rome, 440, 445
under Wisigoths, 459
must inscribe himself in Rome, 440, 446
his responsibility for torture under Wisigoths, 458, 460
relieved of responsibility in inquisitorial process, 513
confrontation with accused, 545
Accusers, limitation of, in China, 122
fire ordeal used by, 305
Achan, case of, 262
Acquittal usual in ordeal, 406
in ordeal, fees for, 416
accused pays expenses after, 552
Adalbert, St., power of his intercession, 377
Adalger at Council of St. Baseul, 395
Adaulfus of Compostella, legend of, 372
Admiralty courts, duel not admitted by, 165
Adrian, his restrictions on torture, 446
his estimate of torture, 446
Adrian II. administers ordeal of Eucharist, 349
Adulteress, escape of, in ordeal, 402, 403
Adultery, accusation of, in Wales, 45
accusation of, in the Koran, 46
compurgation prescribed for, 87
ordeal for, 413
in China, 253
torture for, in Rome, 439, 448
under Wisigoths, 460
torture of partners in, 551
evidence of slave received in Rome, 444
Adurabad, ordeal of, 267
Advocates, use of, 70
exempt from torture in Castile, 467
must testify against clients in witch-trials, 555
of churches, 198
Advowson, origin of, 198
_Æneum_, 278
_Affaire Calas_, 584
_Afia-ibnot-idiok_, 254
_Afia-edet-ibom_, 254
Africa, ordeals in, 254
Agde, council of, in 508, condemns the _sortes sanctorum_, 354
Age, compurgation as privilege of, 57
minimum, liable to duel, 141
subject to torture in Rome, 446
in Spain, 463, 466
in Germany, 527
advanced, exempted in Germany, 527
Agobard, St., denounces the duel, 206
on confusion of laws, 275
his tracts against ordeals, 409
cold-water ordeal unknown to, 321
Ahyto, Bishop, prescribes the ordeal, 409
Ainos of Japan, duel among, 108
ordeals used by, 253
Aix-la-Chapelle, merchants exempt from duel, 204
council of, 816, prohibits ordeal of cross, 338
Alamanni, Laws of—
selection of compurgators, 43
compurgation for murder, 52
formula of compurgation, 60
perjury of compurgators, 63
judicial duel in, 113, 119
fine for defeated combatant, 167
kinsmen as champions, 180
Albenga, conviction by ordeal at, 418
Albero of Mercke, ordeal refused to, 418
Albert I. substitutes compurgation for the duel, 81
Albertus de Gandino, his work on torture, 525
Albertus Magnus, his recipe against fire, 408
Alby, Council of, 1254, denies counsel to accused, 487
Alcalá, Ordenamiento de, on the duel, 216
Alexander I. (Pseudo) on extorted confessions, 478
Alexander II. forbids ordeal of Eucharist, 369
denounces the ordeal, 414
Alexander III. forbids duel to clerics, 156, 207
on extortion in ordeals, 417
prohibits the ordeal, 417
secures confession by deceit, 559
Alexander I. (Scotland), his charter to Scone, 162
Alexander II. (Scotland) on use of champions, 192
restricts ordeals, 421
Alexander the slave, his torture, 447
Alexander of Constantinople, case of, 379
Alexis Mikhailovich abrogates the duel, 239
Alfin, his duel with Olaf Trygvesson, 115
Alfonso VI. (Castile) introduces Roman ritual, 132
Alfonso VII. undergoes compurgation, 67
Alfonso X. introduces the _jure de juicio_, 22
rejects negative proofs, 74, 425
his charter to Treviño, 202, 424
restricts the duel, 214
his regulation of torture, 462
Alfonso XI. allows accused to see testimony, 468
duel ordered by, 215
his regulations of the duel, 216
Aliprandus of Milan on punishment of conjurators, 64
_Alltud_, 39
Alphonse of Poitiers, his charter to Riom, 203
to Auzon, 490
Alsace, cold-water ordeal for slaves, 322
Altars, oaths on, 28
Alternative numbers of conjurators, 43
Altoviti and Gaddi, duel of, 236
_Althing_, or Icelandic assembly, 18
Ambassadors, champions necessary to, 129
America, appeal of death in, 246
compurgation in, 88
bier-right in, 366
torture in, 569
_peine forte et dure_ in, 575
Amiens, bailli of, compurgation prescribed for, 77
duel restricted in, 201
nobles of, claim the duel, 227
torture of clerics in, 491
Amsterdam deprived of its headsman, 536
exile for retracted confession, 549
use of torture in 1803, 578
Amula of Modena, story of, 293
Andernach, battle of, 400
André de Trahent, case of, 397
Andreas of Lunden regulates fees for ordeal, 416
Andres, founding of abbey of, 316
Andrew, St., his lance tested by ordeal, 308
Angelo da Chiavasco describes compurgation, 92
his allusion to ordeals, 425
Angli & Werini, laws of—
judicial duel in, 114
limit of duel, 147
kinsmen as champions, 180
ordeal of red-hot iron, 291
Anglican Church, compurgation in, 93
Anglo-Saxons, compurgation for injuries, 17
classification of oaths, 24
reduplicated oaths, 28
rules for compurgation, 46, 48
_juramentum supermortuum_, 55
oath of compurgators, 58
_overcythed_, 61
_forath_, 95
judicial duel not used, 114
ordeals in suits with Welsh, 276
use of hot-water ordeal, 283
of red-hot iron ordeal, 287
accuser selects the ordeal, 291
the dead cleared by ordeal, 294
formula for cold-water ordeal, 318
use of cold-water ordeal, 322
triple ordeal for sorcery, 326
corsnæd for clerics, 341
Eucharist for clerics, 348
ordeal of the lot, 353
enforcement of ordeal, 383
compounding for the ordeal, 384
accuser can demand ordeal, 386
ordeal for all suspects, 489
in failure of compurgation, 390
for perjurers and convicts, 392
prevention of collusion in ordeal, 405
Anjou, hired champions allowed, 193
Anselm and the sacred vessels of Laon, 136, 324, 474
_Antejuramentum_, 95
Antioche, Assises d’, 143
Antonino, St., his allusion to ordeals, 425
Antoninus Pius orders torture of slaves in civil suits, 441
rejects evidence of accomplices, 445
Antrustions, hot-water ordeal for, 323
Apollonius of Tyana, his power, 447
Appeal of death, 242
in Massachusetts, 245
in Maryland, 247
abolished, 246
Appeals determined by duel, 123
from feudal courts, 473
denied to villeins, 491
from sentence of torture in Castile, 465, 467
in France, 514
in Germany, 545
refused, 547
from conviction, torture to prevent 546
after conviction, torture to prevent, 552
Appellant (see also _Accuser_).
selects conjurators, 48, 49
his right to demand duel, 144
swears to justice of his cause, 166
punishment of defeated, 167
for default, 173
allowed choice of weapons, 176
use of champions by, 181
Approvers, 175, 243
_Apremios_, 583
Aquitaine, torture resisted in, 498
Aquinas on duel and ordeal, 209
_Ara maxima_, the, 27
Arabs, ordeal among the, 264
Aragon, limit of value for duel, 148
duels between Christians and Saracens forbidden, 151
duel prohibited, 214
bier-right in, 366
ordeals prohibited, 424
torture restricted in, 462, 469
Arcadius and Honorius on exemption of decurions, 438
Arckel, Jan van, his duel, 104
Ardennes, ordeal of staff in, 397
Arducius, Bishop of Geneva, 162
Arezzo, Bishop of, grants the duel, 161
admits champions in a duel, 189
Argenton, Seigneur d’, subjected to torture, 499
Argentré, Bertrand d’, accepts bier-right, 366
on preliminary proof, 515
Arian, ordeal to convert an, 296
defeated by hot-water ordeal, 279
worsted by fire ordeal, 304
relics tested by fire, 315
Aristogiton, torture of, 433
Aristotle quoted for bier-right, 359
Arius, death of, 379
Armagnac, Count of, his duel, 222
challenges Foix, 225
Arms of witnesses blessed at altar, 120
choice of, in duel, 176
coats of, duels concerning, 105
Arnoul of Flanders offers the ordeal, 294
Arnoul, St., his relics tested with fire, 316
Arnustus, his death, 343
Arques, punishment of murder in, 13
restriction on duel in, 203
Arras, ordeal of fire at, 310
Bishop of, uses ordeal for heretics, 411
council of, 1025, tortures heretics, 474
Aryans, social organization of, 13
the duel a custom of, 108
ordeal among, 265
use of torture among, 431, 432
Ashantee, poison ordeal in, 255
Ashford _vs._ Thornton, case of, 246
Askew, Ann, torture of, 568
Aspres, customs of, 19
Assizes of Clarendon order cold-water ordeal, 322, 388, 400
Assyria, use of imprecations in, 260
use of torture in, 430
Astesanus on oaths, 30
condemns the ordeal system, 420
Astin of Wispington, case of, 389
Astyages, his use of torture, 431
Atharva Veda, allusion to ordeals in, 267
_Athia_, 147
Atto of Vercelli objects to compurgation, 37
denounces the duel, 128
on clerical liability to duel, 155, 157
Audefroy le Bâtard, ballad by, 68
Augsburg, duel in 1409, 172
Augustin, St., on oaths on relics, 31, 372
favors the lot, 352
condemns torture, 477, 576
Augustus tortures Q. Gallius, 435
his opinion of torture-evidence, 441
Ausch, Council of, 1068, confirms the ordeal, 410
Australia, duel among aborigines, 108
Austria, case of bier-right in, 364
torture of page of Richard I., 474
abolition of torture, 580
Dukes of, allowed champions, 134
Auxerre, relics of St. Martin at, 380
Auzon, charter of, exempts from torture, 490
_Avantparlier_, 70
Aventinus on judgment of God, 102, 426
Avesta, responsibility of kindred in, 14
ordeal prescribed by the, 265
Avitus, St., denounces the duel, 206, 409
his dispute with the Arians, 379
_Avoués_ of churches, 198
Ayesha accused of adultery, 46
Aymar, Jacques, 427
Aztecs, oath ordeal among, 259
Bacon, Francis, recommends torture, 568
Bacon, Roger, admits virtue in ordeals, 424
Baden, torture abolished, 581
Baglioni, lord of Spello, grants the duel, 236
_Bahr-recht_, 359
Bail required of combatants, 173
liability of, 174
Baioarian law—
admission of compurgation, 53
witnesses and conjurators, 62
accusatorial conjurators, 94
challenge of witness, 103
judicial duel, 113, 119
minimum limit for duel, 147
champions always used, 181
use of ordeal, 274
torture of slaves, 452
Bajazet, his method of investigation, 576
Balance, ordeal of, 334
used in witchcraft cases, 335
Balbás, Fuero of, compurgation in, 34, 49
Bâle, council of, denounces abuse of oaths, 23
Baldus de Periglis, his work on torture, 525
Baldwin VII. (Flanders) his charter to Ypres, 48, 201
Bands of iron used as an ordeal, 377
Banishment after success in ordeal, 401
Bankruptcy cases, torture used in, 530
Baptista de Saulis describes compurgation, 93
his allusion to ordeals, 425
Barbarian laws, personal not territorial, 131, 275, 453
rest on negative proofs, 73
accusatorial conjurators, 94
judicial duel, 112
use of champions, 180
ordeal of the lot, 353
no trace of bier-right, 359
use of torture, 449
corporal punishment unknown, 451
torture of slaves, 451
Barbarians, the, their jurisprudence, 16
lack of confidence in oaths, 24
universal use of compurgation, 34
general use of ordeal, 275
cold-water ordeal not used, 320
Barberousse punished for suspicion, 521
Barcelona, council of 599, prescribes the lot, 355
Bari exempted from duel and ordeal, 201
Barker, Janet, case of, 571
Barriller and Carrington, duel of, 231
Bastards, their right to the duel, 140
Battle, Wager of, 101
Battoon, the, for duels, 176
Bavaria, torture in, 473
torture abolished, 581
Bavarian house of Guelf, founding of, 133
Bayle, Peter, condemns torture, 577
Béarn, selection of compurgators, 51
formula of compurgation, 58
compurgation retained, 79
accusatorial conjurators, 96
duel between prince and subject, 135
limitations on duel, 145
penalty for defeat in duel, 168
for default in duel, 174, 233
use of champions, 194
duel legal till 1789, 232
hot-water ordeal, 283
red-hot iron ordeal, 295
cold-water ordeal, 323
torture not used in, 487
Beaulieu, Abbey of, its jurisdiction, 161
Beaumanoir, silence as to compurgation, 75
limitations on duel, 140
on punishment of defeated champion, 185
his opinion of the duel, 221
rejects negative proofs, 74
no reference to torture, 488
Beauvais, champion of, 196
Beccaria on torture, 516, 546, 549, 586
Belfast, relic of St. Patrick at, 374
Belgium, witches tried by ordeal in 1815, 323
Belief, compurgators only swear to, 71
Benares, ordeal in 1783, 284, 290
Bera and Sanila, duel of, 117
opposition excited by it, 206
Berkeley, Abbey of, 40
Bermuda, compurgation in, 87
Bernard, St., on study of Roman law, 73
Bernard, St.—
approves of ordeal for heretics, 410
Bernard Gui complains of restrictions on torture, 511
Bernard of Italy, his rebellion, 470
Bernard VI. of Armagnac, 203
Bernhardi, Martin, opposes torture, 577
Berthaut Lestalon, case of, 501
Bertin, St., power of his intercession, 378
Bertrand, St., of Comminges, his improvised ordeals, 285, 374
Bertulf of Bruges, case of, 152
Béziers, council of, 1255, 490
Bible and key, ordeal of, 357
Bibliomancy, 335
Bier-right, 359
explanations of it, 369
weight of its evidence, 370
influence of imagination, 396
Biers placed in the lists, 172
Bignon, Jerome, on cold-water ordeal for witchcraft, 330
Bigorre, conjurators in, 43
exemption of widows from duel, 146
hired champions, 195
duel not obligatory, 202
profits of ordeals, 415
Bilateral ordeals, 249
ordeal of cross, 336
in Tibet, 269
Binsfeld on cold-water ordeal in witchcraft, 327
Bishops, oaths taken on hand of, 30
number of conjurators for, 43
select compurgators for clerics, 51
decree duels in their courts, 162
selected by the lot, 355
fitness determined by ordeal, 410
their profits from ordeals, 416
their unrestricted power to torture, 511
Spanish, their privilege in swearing, 36
Bitter water, ordeal of, 262
Blind, the, torture of, 528
Blois, assembly of notables in 1498, 513
Blondel, Geoffrey, a salaried champion, 196
Blood swallowed as an ordeal in India, 258
in Greece, 270
Blood-money (see _Wer-gild_).
Bobenzan, Dr., his torture, 526
Boccaccio’s story of Calendrino, 341
Boden, von, opposes abuses of torture, 577
Bodin on cold-water ordeal in witchcraft, 327
urges punishment for suspicion, 519
approves deceit in witch-trials, 559
Boguet complains of uselessness of torture, 558
disapproves deceit in witch-trials, 559
Bohemia, judicial duel used, 110
duels of women, 153
universal use of ordeals, 274
iron bands to punish fratricide, 377
compounding for the ordeal, 384
ordeal for all suspects, 388
in prohibited marriages, 410
fees for ordeals, 416
use of torture, 473, 476
Bohemian Brethren use the lot, 355
Bologna, regulation of champions, 195
torture in cases involving fines, 529
Bones, bleeding, murder revealed by, 364
Boniface, St., on perjury of compurgators, 63
Boniface converts Russia by an ordeal, 310
Bonifazio de’ Vitaliani, his work on torture, 525
Bonuszeno of Soavo, 196
Books tested by fire ordeal, 313, 314
Boot, torture of, 573
Bordeaux, oath of plaintiff in, 98
bier-right in, 366
torture resisted in, 498
Borneo, ordeals in, 257
_Borru_, ordeal of, 256
Bothwell, his offers of the duel, 240
Bourbons of Naples, their use of torture, 587
Bourges, torture of Jews in, 492
Bourges, Nicholas, case of, 492
Bowgas, Margery, cleared by compurgation, 92
Boys with greased boots detect witches, 539
Bracton on use of compurgators, 71, 84
ordeals obsolete in his time, 421
knows nothing of torture, 564
Brahm, F. M., on water ordeal for witches, 331
Brahman caste, oaths prescribed for, 25
hot-water ordeal for, 284
ordeal of balance for, 334
their presence required at ordeals, 269, 280
Brant, N., water ordeal for witches, 331
Bread and cheese, ordeal of, 339
Brehons, inspiration of, 272
Bribes in ordeal, 406
Brice, St., his ordeal, 304
Bridewell, the, torture used in, 569
Britanny, accusatorial conjurators in, 99
duel permitted till 1539, 231
bier-right in, 366
charter of 1315, 495
use of torture, 504
responsibility of judges for torture, 515
Brothers, duel between, 141, 218
Brown and Hepburn, duel of, 240
Bruchsal, torture in prison of, 582
Bruges, duel prohibited in, 203
ordeal at choice of accused, 387
for convicts, 392
witch-trial in, 567
Bruntfield and Carmichael, duel of, 240
Brunnemann on facilities for defence, 547
Brzetislas, ordeal in his laws, 274
Buda, Council of, 1279, prohibits ordeals, 423
Buddha, his relic tested by fire, 314
Buddhism, its influence in China, 252
accepts the ordeal, 269
Bulgaria, survival of the duel, 239
use of torture in, 478
Bull’s blood, ordeal of, 270
Burchard, Bishop of Chartres, subjected to ordeal, 410
Burckardt of Worms on the ordeal, 392, 410
Burgmeister on water ordeal for witches, 329, 331
Burgundian law, kindred as compurgators, 50
judicial duel, 112, 119
champions unusual, 181
witnesses must be of same race, 275
torture of slaves, 451
Burgundy, nobles of, claim the duel, 227
duel abolished by Philippe le Bon, 231
ordeal for witches in 17th century, 331
bier-right in, 366
charter of, 1315, 495
Burial alive, women punished by, 153, 503
Burke defends the appeal of death, 246
Burning for refusal of ordeal, 411
Burnt Njal, saga of, 17
Byzantine Empire, ordeal used in, 277, 299, 304, 313
_Cacabus_, 278
Cachielawis, torture of, 573
Cadiz, Córtes of, abolishes torture, 583
Cæsarism, extension of torture by, 435
Cæesarius of Heisterbach, his theory of ordeal, 402
on ordeal for heretics, 411
Cæsarius of Königswinter, case of, 374
Cagots as conjurators, 43
Cain and Abel, their duel, 107
Calas, case of, 584
_Caldaria_, 278
Calendrino, story of, 341
Caligula, his relish for torture, 436
Calixtus II. approves of ordeal, 412
Cambrai, heretics convicted by ordeal, 297
Campetti, his use of divining-rod, 428
Campion, Jesuit, his torture, 569
Canon law on perjury, 30
adopts compurgation for heretics, 36
Canonical compurgation, 33
Canute, his laws on compurgation, 48
Cappadocians hardened to torture, 558
Caracalla allows torture for poisoning, 439
of slaves in adultery cases, 444
Caraffa, Cardinal, his trial, 541
Cardigan, holy taper of, 32
Cardone, Raymond de, challenges Armagnac, 225
Carena on bier-right, 359
his explanation of it, 369
Carlovingian law—
selection of compurgators, 50
admission of compurgation, 53
punishment of compurgators, 64
accusatorial conjurators, 95
judicial duel proscribed, 113, 118
challenging of witnesses, 120
liability of ecclesiastics, 155
penalty for defeat in duel, 167
for defeated champion, 184
robbers not to serve as champions, 186
reliance on judgment of God, 250
red-hot iron ordeal, 291
cold-water ordeal, 322
ordeal of cross, 336
in failure of compurgation, 390
for ill-repute, 392
as a punishment, 393
confidence reposed in the ordeal, 399
use of chrism in ordeal, 407
of torture, 469
Carlos, Don, his torture, 468
Carmichael and Brentfield, duel of, 240
Caroline Constitutions, torture in, 522
adopted in 1532, 524
Carpzov on the evidence of bier-right, 370
denies appeal from sentence of torture, 545
Carrington and Bariller, duel of, 231
Carrouges and le Gris, duel of, 229
Carter, Paul, bier-right in case of, 366
Casimir III. (Poland) regulates compurgation, 83
forbids inquisitorial process, 509
Casimir IV. (Poland) restricts compurgation, 83
Castelnau, Sire de, offers the duel, 233
Castile, purgatorial oaths, 24
compurgation in, 80
Mozarabic rite defended by duel, 132
by fire ordeal, 313
duels only permitted between gentlemen, 151
use of champions restricted, 195
duel restricted, 214
bier-right, 366
ordeals prohibited, 424
use of torture in, 462
Catalonia, limitation on duels, 146
Truce of God enforced by the ordeal, 323
Cathari, ordeal used to convict, 411
Catherine II. restricts torture, 581
Catholics tortured under Elizabeth, 568
Cats, use of, in torture, 554
Caussade, Raymond de, challenged by Thomas Felton, 229
Caussois, Gervaise, case of, 501
Cautinus of Auvergne uses ordeal of Eucharist, 348
Celestin III. on perjury of compurgators, 64
forbids clerical duels, 158, 207
Celtiberians, judicial duel among, 108
Celts, solidarity of the family among, 15
judicial duel among, 108
ordeals used by, 272, 273
Cemeteries, duels forbidden in, 209
Centulla I., his charter to Lourdes, 202
Centulla IV., employs the ordeal, 295
Ceremonial of compurgation, 60
Calchuth, council of, condemns the lot, 353
Chaldea, use of imprecations in, 260
Challenging of witnesses, 103, 120
of judges, 123
Champagne, nobles of, claim the duel, 227
cold-water ordeal for witchcraft, 330
resistance to torture, 496
Champion of England, the, 134
Champions, 179
put forward as warrantors, 121
denied to witnesses, 121
of ambassadors, 129
allowed to Dukes of Austria, 134
used to convict thieves, 135
oath of, 139
in duels of different ranks, 150
supplied by the State, 152
allowed to clerics, 157
defeated, penalties of, 168, 184
as witnesses, 182
disabilities incurred by, 187
restrictions on their employment, 189
hiring of, 190, 193
equalization of, 194
of towns, 196
of churches, 197
in ordeals, 295, 337, 390, 398, 400
Chance in selection of compurgators, 49
ordeal of, 352
in China, 253
in Borneo, 257
in Rajmahal, 259
Charlemagne tries Leo III., 35
on number of conjurators, 43
urges use of judicial duel, 118
prohibits duel between his heirs, 127
his duel with Witikind, 130
cold-water ordeal ascribed to, 321
favors ordeal of cross, 337
on iron bands for parricide, 378
his confidence in the ordeal, 399
on use of chrism in ordeal, 407
orders buildings for the _mallum_, 471
torture for sorcerers, 470
Charles le Chauve attacks Louis of Saxony, 400
Charles IV. (Emp.) interferes with duels of Bishop of Liége, 160
his charter to Worms, 205
torture in his Golden Bull, 504
Charles V. (Emp.) prescribes compurgation, 81
challenges Francis I., 106
duel ordered by, 216
on sentences of torture, 467
his laws on torture, 522
Charles V. (France) alludes to compurgation, 77
Charles VI. (Fr.) limits the duel, 230
admits women as witnesses, 228
Charles IX. (France), edict against duels, 104, 235
Charles I. (England) tries to prevent duel, 244
Charles XI. (Sweden) restricts compurgation, 83
Charles of Anjou challenges Pedro of Aragon, 105
prohibits the ordeal, 422
Charles de Valois, his use of torture, 494
Charles the Good, of Flanders, his murder, 152, 474
Charles the Bold tries to prevent duel, 232
Charms forbidden in duels, 139
in ordeals, 407
use of, against torture, 556, 557
Charteris and Douglass, duel of, 239
Charters exempting from duel, 200
of prelates granting jurisdiction of ordeal, 412
Chartres, council of, sanctions ordeal, 412
Chassanée accepts bier-right, 366
Chastity tested by fire ordeal, 304
Chateaudun, church of, its interest in ordeals, 415
Château-Neuf, case of torture in, 493
Châtelet of Paris, its use of torture, 493, 500
Cheese, ordeal of, 339
_Cherleman_, 47
_Cherreen_, ordeal of, 259
Children, responsibility for, 20
as substitutes in ordeals, 398
their evidence received in witch-trials, 554
not subject to torture in Rome, 446
in Spain, 463, 466
in Germany, 527
Chimpanzee skull used in ordeal, 254
China, redemption of punishment, 122
freedom from superstition, 251
torture not used, 431
Chindaswind prohibits Roman law among Goths, 458
his regulation of torture, 460
Chivalry, duels of, 242
Choice of conjurators made by sheriff, 48
by plaintiff, 48, 49
by court, 49
by judge, 51
by defendant, 57
of weapons in duel, 176
Chrism, use of, in ordeal, 407
Christ, his swaddling-cloth tested by fire, 315
Christian burial, ordeal prerequisite to, 412
Christianity, its influence on torture in Rome, 444
Christians, their torture in Rome, 436
Christiern IV. abolishes compurgation, 82
Christiern V. prohibits compurgation, 82
restricts use of torture, 562
Church, the, supersedes family ties, 19, 35
favors the use of oaths, 22
its teachings as to perjury, 30
its profits in administering oaths, 32
adopts compurgation, 35
degree of confidence in compurgation, 61
it modifies the compurgatorial oath, 71
disabilities imposed on women, 122
deprived of exemption from duel, 131
its secular jurisdiction, 161
its champions, 197
its opposition to duel, 206
its perplexities as to the duel, 211
influence in favor of ordeal, 276
does not favor the lot, 352
its relations with the ordeal, 408, 409
its opposition to the papacy, 415
its condemnation of torture, 471, 477
extorted confession invalid, 478
adopts use of torture for heresy, 484
adopts the _talio_, 169, 513
Churches, oaths taken in, 29
champions of, 197
local, their interest in ordeals, 415
Cicero, his estimate of torture, 447
Cid, the, requires compurgation of Alfonso VI., 68
Ciruelo on Eucharist ordeal, 351
his theory of ordeals, 403
_Cin_, 18
Citizenship in Rome, 440
Civil cases, champions required for, 192, 193
ordeal in, 385
lack of testimony requisite for ordeal, 387
torture of slaves in, 433, 441
torture used in, 530
Clarendon, Assizes of, ordeal for all suspects, 388
disbelief in ordeal, 400
Class-privileges as to oaths, 24
in compurgation, 57
Claudia Quinta, her ordeal, 271
Claudius, his relish for torture, 436
swears not to torture freemen, 439
Claxton _vs._ Lilburn, case of, 244
Clement III. forbids clerics to fight, 156
Clement V. forces torture of Templars, 511
Clergy, the, sustain the ordeal, 417
Clerics, their _wer-gild_, 20
purgatorial power of their oaths, 22
oaths administered by, 30
their claim of disculpatory oaths, 36
not allowed to select compurgators, 47
compurgators for, 51
their evidence decisive in Wales, 55
not to serve as advocates, 73
Irish, their use of the duel, 109
not received as witnesses, 122
duel unfitted for, 128
subject to duel by Otho II., 131
their liability to the duel, 155
they fight personally, 156
champions allowed them, 157
dispensations for fighting duels, 160
exempted from secular laws, 161
forbidden the duel, 207
ordeal of corsnæd for, 342
ordeal of Eucharist for, 348
shaving reserved for, 403
they uphold the ordeal, 409
ordeal specially for, 412
exempted from the ordeal, 414
relieved from ordeals and duels, 415
subject to torture in Rome, 438
exempted from torture in Castile, 467
in France, 491
their presence forbidden at torture, 471, 475
use of torture renders them irregular, 484
their exemption from torture limited, 527
tortured in England, 566
_Clog Oir_, the, 397
Clotair II., his legitimacy proved, 39
prevents collusion in ordeal, 405
Clovis and the vase of Soissons, 450
Club, the, for duels, 176
Coblentz, council of, on conjurators, 43
Cobra used as an ordeal, 376
Cock used in ordeal, 256
Coke, Sir Edward, on use of torture, 567
Coke, Sir Thomas, his torture, 566
Colbert refuses counsel to accused, 517
Cold-water ordeal, its process, 318
its use in India, 319
its introduction in Europe, 321
a patrician or plebeian ordeal, 322
used in witchcraft cases, 325
in cases of heresy, 410
abuse of women, 417
_Collaudantes_ (see _Conjurators_).
Collusion in the ordeal, 405
Coloman, King, regulates privilege of ordeals, 415
Colville, Sir Thomas, 197
Combat, Trial by, 101
Commerce, its influence on the duel, 204
Comminges, Bernard of, challenges Foix, 225
Common law, torture not legal in, 563
Communes, their exemption from duel, 200
their influence on ordeals, 426
Communion before duel efficacious, 138
Communities, 14
responsibility of, 41
champions of, 196
Como, number of witches in, 560
Compensation for injuries, 16
Compounding for duel forbidden, 144
for the ordeal allowed, 383
Compurgation, 33
adopted by the Church, 35
conditions of, 51
in default of testimony, 52
depends on degree of crime, 56
in place of duel, 57
formulas of, 58
its ceremonial, 60
combined with ordeal, 61
confidence felt in it, 61
responsibility incurred, 64
its decline, 67
modification of oath, 71
abolished in England in 1833, 87
as used in the Inquisition, 90
combined with ordeal, 389
ordeal in case of failure, 390
and ordeal alternative, 392
replaces ordeal, 418
Condemnation of the innocent explained, 403
Conditions of compurgation, 51
of wager of battle, 140
of the ordeal, 383
Confession (judicial), partial, 46
withdrawal of, 52
extorted, invalid, 462, 563
in ecclesiastical law, 478
under torture must be confirmed, 463, 514, 522, 548
extorted in Inquisition, 485
under illegal torture is invalid, 550
revoked, invalid in Sicilian Constitutions, 482
questions concerning, 548
absolves accused, 550
torture repeated for, 463, 522, 548, 550
not necessary for conviction in Germany, 523
spontaneous, torture after, 546
under torture to secure salvation, 552
under promise of pardon, 558
rewarded by strangling, 573
must be spontaneous in England, 565
Confession (sacramental) secures victory in duel, 138
escape in ordeal by, 297, 310, 402
not made in ordeal of Eucharist, 351
Confidence reposed in compurgation, 61
in judicial duel, 127
in the ordeal, 399
Confirmation of confession required, 463, 522, 548, 550
of evidence required, 550
Confiscation for refusal of duel, 131
for default in duel, 173
for refusal of ordeal, 383
torture not used for cases of, 529
Confrontation of accused with witnesses, 517
of accused with accuser, 545
Confucianism, its freedom from superstition, 252
Conjurations forbidden in duels, 139
in ordeals, 407
use of against torture, 556, 557
Conjurators, 33
selection of, 38
large numbers required, 39
classified by rank, 46
not witnesses, 51
subject to penalty of perjury, 63
double the number of witnesses, 85
accusatorial, 94
substituted for duel, 201
tried by ordeal of cross, 337
subjected to ordeal, 390
Conrad of Marburg, his inquisition, 89
convicts heretics by ordeal, 419
Conring, Hermann, approves of water ordeal, 331
Consanguinity determined by ordeal, 410
Consecration of ordeal-iron, 288
Consecrated crosses, value of, 30
Constance, council of, prescribes compurgation, 92
Constantine orders torture for unnatural lust, 439
enforces the _talio_, 440
Constantinople, use of iron ordeal, 299
use of fire ordeal, 304, 313
Constantius prescribes torture for sorcerers, 439, 554
_Constitutio Criminalis Theresiana_, 580
Continuance of torture, 466, 517
Contrition secures escape in ordeal, 402
Convents, torture in, 560
Conversion of Iceland, 199
of Denmark, 295
of Russia, 310
Convictions rare in ordeal, 406
in ordeal, fees for, 416
without confession in Germany, 523
punishment without, 528
where there has been no crime, 531
torture after, to prevent appeals, 552
Convicts sent to ordeal, 392
not tortured in Rome to implicate others, 445
so tortured in modern times, 484, 515, 517, 546, 562, 570, 584
Cope of St. Martin used in compurgation, 60
Copper, molten, ordeal of, 266
Copres uses the fire ordeal, 304
Corporal punishment unknown to Barbarians, 451
Corsica, bier-right in, 366
use of torture, 506
Corsnæd, the, 339
in Rome, 272
in 16th century, 343
its use in India, 344
Cory, Giles, case of, 575
_Cosha_, 344
Coucy, Enguerrand de, case of, 221
Coucy, Jacques de, case of, 516
Counsel, his assertion not binding on client, 70
allowed to accused in Castile, 469
denied by Inquisition, 486
in France, 517
allowed in 1788, 583
in Germany, 544
fined for frivolous appeal, 545
must testify against clients in witch-trials, 555
Court records altered by the duel, 135
Courtenay, Sir Piers, case of, 145
Courts, challenging of, 123
their right to refuse the duel, 140
ecclesiastical, duel in, 161
publicity of Carlovingian, 471
of feudal, 512
Covenant between the pieces, 27
Cowbridge, Margaret, cleared by compurgation, 92
_Crannchur_, 354
Crespy exempted from duel, 203
Cremona, case of bier-right, 359
Crime, torture to ascertain, 530
Crimes liable to duel, 147
excepted, in Roman torture, 439
under Wisigoths, 459, 460
in Castile, 464, 466
in Germany, 526
_Crimen majestatis_, torture in, 435, 438, 443
in France, 495
in England, 564, 570
Criminal cases, champions in, 192, 193
Cripples forced to provide champions, 152
champions allowed to, 181, 189
limitation on right to champions, 194
Crippling, torture not to cause, 465, 467, 523
caused by torture, 532
Cross, ordeal of, 336
relic of, tested by fire, 317
Crosses, oaths taken on, 30
suffice for clerics, 414
Crucet-houses, 476
Culm, synod of, on ordeal for witches, 322
Cunigunda, St., her ordeal, 287, 293
Dacia, purgatorial oaths in, 23
Dagobert I. revises the Barbarian laws, 113
Dalzell, Sir Wm., case of, 145
Damages allowed to champions, 188
of slaves in torture paid for by pleader, 433
paid to master in Rome, 445
among Barbarians, 452
under Wisigoths, 458
in Castile, 468
Damhouder approves the duel, 237
his _Praxis_, 524
his advice to accused, 553
on insensibility to torture, 557
Dante justifies the duel, 211
Darius, his savage punishments, 431
David and Goliath, their duel, 107, 209, 261
David I. (Scotland), his charter to Holyrood, 162
David, penitential of, 29
Deacons, number of conjurators for, 43
Dead, the, their evidence obtained by conjurators, 56
champions represent them in duel, 152
cleared by ordeal, 294
pardon asked of, 360
their repentance proved by ordeal, 412
Deaf-mutes, torture of, 528
Death, appeal of, 242, 245
in America, 246
invoked as an ordeal, 379
under torture, penalty for under Wisigoths, 460
in modern times, 504, 523, 532, 574
Debt, action for, negative proofs in, 74
Debts, compurgation used to escape, 85
Deceit, use of, by Inquisition, 485
use of, in witch-trials, 558
Decline of compurgation, 67
Decline—
of the duel, 199
of the ordeal, 421
of the torture system, 575
Decurions exempt from torture, 438
_Deeyeh_, 29
Default in duel, penalty for, 173, 233
Defeat in duel is perjury, 167, 184
Defence, accused not heard in, 518, 547
facilities for, in Castile, 468
in Châtelet of Paris, 504
in Italy, 507
in Valtelline, 508
in France, 512
withdrawn in France, 513
in Germany, 544
Defendant (See also _Accused_).
has choice of conjurators, 57
proof required of, 74
obliged to accept the duel, 140, 141, 143
swears to justice of his cause, 166
allowed choice of weapons, 177
use of champions by, 181
can demand ordeal, 387
allowed his own law, 394
Degradation inflicted on champions, 187
Degrees of kinship settled by ordeal, 410
of torture, five, 543
De la Barre, case of, 584
Delay accorded in duel, 173
Delfos, Bellido, kills Sancho II., 68
Del Rio, his explanation of bier-right, 369
on severity of torture, 532
approves deceit in witch-trials, 559
Demoniacal possession caused by perjury, 372
Denmark, levying of _wer-gild_ in, 18
kinsmen as compurgators, 41
selection of compurgators, 49
prolonged use of compurgation, 82
early use of duel, 110
duel abolished in, 200
converted by the ordeal, 295
bier-right in, 364
ordeals prohibited, 422
torture introduced, 562
Deposition of priests engaged in duels, 156
Des Guerres and Fendilles, duel of, 234
Deuterius of Constantinople, case of, 379
_Dharma_ and _Adharma_, 352
Diabolic illusions in ordeal, 408
Die, priory of, its relics, 373
Difference of rank prevents duel, 141, 149
Dinteville and du Plessis, duel of, 233
Diocletian, his torture of Christians, 437
forbids torture of soldiers, 438
allows torture of slaves in will cases, 442
masters not to offer slaves to torture, 444
his restrictions on torture, 446
Diodorus Siculus, his account of Egyptian courts, 430
Disabilities of women, 122
inflicted on champions, 187
Disability, bodily, averts duel, 144
Disbelief in ordeal, 400
Discretion of judge, everything left to, 533, 538, 541, 544
its abuse, 545
Disease as exemption from torture, 528
Dislocations generally result from torture, 532
Disowning of children in Wales, 55
Dispensations for clerical duellists, 160
for duellists, 207
for use of torture, 485
Divination condemned, 354
employed to justify torture, 539
Diviners tortured in Rome, 439
Divining-rod, the, 427
Divorce, compurgation in cases of, 93
Doctors exempted from torture in Spain, 463, 466
their exemption limited in Germany, 525
Dog of Montargis, story of, 228
_Dolum bonum_ and _malum_, 559
Domenico da Pescia, his ordeal of fire, 311
Dominic, St., his writing tested by fire, 313
Domitian, his use of torture, 439
Dortmund exempted from duel, 205
Doubtful results in the ordeal, 405
Douglass and Charteris, duel of, 239
Dower, no duel in cases of, 141
Drowning, punishment of, 321
for sorcery, 325
Dubos, Jehan, punished for suspicion, 519
Duel, judicial, 101
supersedes compurgation, 61
difference between it and modern duel, 103
in diplomacy, 129
legislative function of, 129, 133
state questions decided by, 130
penalty for refusing, 131
habitual use in criminal law, 135
explanations of its injustice, 136
limitations on it, 140
minimum limit of value in, 141
regulations of, 166
of women, regulations of, 153
ferocity of, 178
use of champions, 179
rendered a matter of chance, 195
its decline, 199
forbidden to clerics, 207
exemptions of the communes, 201
opposition of the Church, 206
influence of the Roman law, 212
reforms of St. Louis, 216
prolonged use in England, 241
traces of, in the United States, 246
used in Japan, 253
ordeal of cross substituted, 337
Dunning defends the appeal of death, 245
Dunstan, St., his formula for cold-water ordeal, 319
Du Plessis and Dinteville, duel of, 233
Durham, Bishop of, exempted from duel, 159
Dyaks, ordeals among, 257
Dyvnwal-moel-mud, ordeals ascribed to, 110
Earth, the, rejects corpse of criminal, 319
Earth swallowed as an ordeal, 258
from grave detects witches, 382
Earl Richard, ballad of, 361
Eastern Empire, ordeal used in, 277, 299, 304, 313
Ebroin of Burgundy, 29
Eccelino da Romano, his use of torture, 483
Ecclesiastical courts, duel in, 161
torture in, 510
Ecclesiastical law, disculpatory oaths, 28
value of oaths, 30
acceptance of compurgation, 35
number of compurgators, 43
selection of compurgators, 51
default of evidence requisite, 54
oath of compurgators, 59
modified, 72
retention of compurgation, 88
accusatorial conjurators, 95
clerics forbidden to fight duels, 156
exempted from secular law, 161
jurisdiction over duels claimed by churches, 162
_lex talionis_, 169, 513
the duel forbidden to clerics, 207
effect of dispensations, 208
denial of sepulture to duellists, 211
duels forbidden by Council of Trent, 237
use of ordeals, 409
Gratian’s hesitation about ordeals, 413
ordeals forbidden to clerics, 414
priests forbidden to conduct ordeals, 419
to be present at torture, 471
extorted confessions forbidden, 478
torture ordered In the Inquisition, 484
established in episcopal courts, 511
for discovery of accomplices, 516
of witnesses, 541
in monastic establishments, 560
known as, 511
Ecgbehrt of York, ordeal of the lot, 353
exempts priests from ordeal, 414
Edict of Theodoric, duel not referred to, 116
torture in, 457
Edinburgh, torture in 1652, 574
Edmund, St., intervenes in a duel, 137
Edward the Confessor and Queen Emma, 294
convicts Duke Godwin, 341
Edward I. refuses lists to Charles of Anjou, 106
Edward II. orders torture of Templars, 511
Edward III. enlarges the sphere of compurgation, 85
his challenge of Philippe de Valois, 104
Egeno accuses Otho of Bavaria, 133
Eggs, hot, used in torture, 588
Egil Skallagrimsson, 111
Egiza introduces ordeal among Goths, 275
Egypt, ordeals in, 259
use of torture, 430
Eisenach, duel limited in, 205
Ekkehardus Junior on abuses of ordeals, 417
Ekkehard of Munster forbids the ordeal, 418
Elfstan of Winchester, his faith, 282
Eldon, Lord, on champions, 192
Elizabeth, Queen, legislation on duel under, 244
torture under, 567, 568
Ellenborough, Lord, sustains the duel, 246
Elne, council of, 1065, recognizes the ordeal, 410
Emeric, St., power of his intercession, 378
Emma, Queen, undergoes the ordeal, 294
Emo of Wittewerum, 422
Employer, slave not tortured against, 442
Endurance, ordeal of, 336, 339
Engel, M. A., defends torture, 578
Engilbert of Trèves, 343
England (see also _Anglo-Saxons_).
reduplicated oaths, 28
alternative number of conjurators, 43
rise of jury-trial, 48
extensive use of compurgation, 57
compurgation abolished, 67
its limited use, 70
its use prolonged, 84
finally abolished in 1833, 87
in ecclesiastical cases, 93
accusatorial conjurators, 95, 97
William I. introduces judicial duel, 115, 394
challenging of warrantors, 121
of courts, 123
the champion of England, 134
habitual use of the duel, 135
limitations on duel, 144, 146
minimum limit of value, 147
clerics exempted from duel, 158
no duel in mercantile law, 165
penalty for defeat in duel, 168, 169
_lex talionis_, 171
penalty for default in duel, 174
expenses defrayed by the crown, 175
approvers, 175, 243
equality of weapons, 176, 177
champions as witnesses, 182, 183
defeated, their punishment, 184
hiring of, forbidden, 190
salaried, 192
required in civil cases, 192
charters exempting from duel, 201
persistence of the duel, 241
duel of chivalry, 242
abrogation of duel, 246
red-hot iron an aristocratic ordeal, 292
use of cold-water ordeal, 322
for witchcraft, 330, 333
witch weighed against Bible, 336
ordeal of Bible and key, 357
of sieve-driving, 358
for all suspects, 388
for accuser or accused, 389
result of ordeal inconclusive, 400
ordeals forbidden in 1219, 421
torture used under Stephen, 476
of Templars, 511
unknown to common law, 563
used under royal prerogative, 566
in witch-trials, 570
_peine forte et dure_, 574
English and Normans, duels between, 115
English influence on duel in France, 231
Enguerrand de Marigny, his trial, 494
Epicharis, her endurance, 437
Epileptics, torture of, 528
Epilepsy caused by false oaths, 373
Episcopal courts, duel in, 162
unlimited torture in, 511
Equality of combatants, 144
of weapons, 177
Equalization of champions, 194
Equestrian duel among Goths, 117
Equity of redemption not subject to duel, 141
Erembors, ballad of, 68
Erfurt, citizens tortured by Lothair II., 475
Dr. Bobenzan tortured, 526
Eric VII. on levying of _wer-gild_, 18
Erik Hakonsen abolishes duel, 199
Erkenbald de Burban, case of, 346
Erwig, King, on abuse of torture, 461
Escape in ordeal, explanation of, 401
Estates, succession to, regulated by duel, 129
Estevenes li Barbiers, case of, 519
Estrapade, the, 485
Ethelwold, St., his test of Elfstan, 282
Ethiopia, ordeals in, 256
Eubule-Evans on use of torture in Prussia, 582
Eucharist preliminary to ordeal, 280
the, as an ordeal, 344
beliefs connected with, 345
a sacerdotal purgation, 348
used in 17th century, 351
Eugenius II., cold-water ordeal ascribed to, 321
Eulalius, Count, tried by Eucharist, 348
Eurik, his Wisigothic Code, 458
Evidence, difficulty of rating it, 21
of relatives, 38
compurgation in default of, 52
not admitted in Wales, 55
compurgation to confirm it, 56
conjurators give none, 62
negative, in Barbarian laws, 73
absence of, requisite for duel, 142, 145, 239
supersedes duel, 155
of women not admitted, 122
received in 1396, 228
reliance on, in China, 252
false, allowed in India, 268
weight of, in bier-right, 370
ordeal in absence of, 385, 386
requisite to justify torture, 487, 523, 537
of clergy, 527
torture in default of, 465
external, necessary for conviction, 489
retracted, witness tortured for, 550
of witchcraft unattainable, 554
withheld from accused in France, 514
in Germany, 544
under torture, estimate of, in Rome, 446
unknown to Barbarians, 453
in modern times, 542, 547
of slaves requires torture in Greece, 433
in Rome, 440
under Barbarians, 452
under Goths, 459
Evil looks do not justify torture, 537
_Examen pedale_, 287
Excepted crimes in Rome, 439
under Wisigoths, 459, 460
in Castile, 464, 466
in Germany, 526
Exclusion of women as witnesses, 122
Exclusive salvation, results of belief in, 589
Excommunication of duellists, 207
Exemption from secular laws for clerics, 414
from torture in Rome, 438
in Spain, 463, 466
in France, 495
in Germany, 525
of nobles in England, 570
Exile after success in ordeal, 401
for retracted confession, 549
Exorcism for hot-water ordeal, 280
for red-hot iron ordeal, 288
in fire-test of relics, 315
for the corsnæd, 340
in ordeal of Eucharist, 347
of witches on trial, 556
Expenses of prosecution, 552
_Experimentum crucis_, 339
Explanations of results of duel, 136
of injustice of ordeal, 401
Extorted confession invalid in the Church, 478
received in Inquisition, 485
Extortion in ordeals, 417
torture used for, 476
of confession is homicide in England, 565
Eye, loss of, in duel, 145
Ezpeleta, his use of torture, 583
Fachtna Tulbrethach, 272
Failure in compurgation, 65
in duel through other sins, 137
in ordeal through other sins, 403
Faith in the intervention of God, 135
False Decretals, extorted confessions invalid, 478
on accusation of accomplices, 515
False money, ordeal for issuing, 393
Family, organization of the, 13
solidarity of the, 14, 19
Family ties superseded by Church, 19, 35
Farfa, Abbey of, case of, 155
Farinacci on torture of sleeplessness, 535
Fasting preliminary to ordeal, 280, 288
Father, his purgatorial oath, 41
and son, rule as to torturing, 543
Feast days, torture not to be used on, 505
torture on, 551, 556
_Fechtbücher_, 238
Fees to champions, 190, 195, 196
derived from ordeals, 415
their enforcement, 416
for administering torture in Peru, 511
in Valenciennes, 548
Feini, levying of fines, 18
tribal responsibility, 42
judicial duel among, 109
their judges warned, 272
hot-water ordeal used by, 273
Felix, St., of Nola, oaths on his relics, 372
Felonies, duel for, 146
champions not allowed in, 192
tried by water ordeal, 322
Felton, Thomas, challenges Raymond de Caussade, 229
Fendilles and Des Guerres, duel of, 234
Ferdinand and Isabella furnish counsel to accused, 469
Fernando III. (Castile), his charter to Medina, 202
Ferocity of judicial duel, 178
Fetish, invocation of, in ordeals, 255
Feudal jurisdictions, 219
courts, their publicity, 473
Feudalism, its struggle with civilization, 78
undermined by the Roman law, 212
struggle for the duel in France, 216
torture under, 473
its resistance to torture, 494
Fian, Dr., torture of, 573
Ficino, Marsiglio, his belief in bier-right, 365
Fiefs, titles to, settled by ordeal, 324, 387
Figeac, Abbey of, its advocate, 198
_Fijodalgo_, privilege of, 24
Fines, distribution of, 18
for conjurators, 64, 417
for withdrawing from duel, 144, 145
for defeated combatant, 167
for challenging in Bruges, 204
for losing party in the ordeal, 384, 416
torture in cases involving, 529
Fire, ordeal of, among the Persians, 266
in the Ramayana, 267
in the Manava Dharma Sastra, 268
in Greece, 270
in India, 303
among Hebrews, 303
in Christendom, 304
employed on relics, 314
precautions against unguents, 408
Fisherman of Utrecht, case of, 402
Flamen Dialis relieved from oath-taking, 36
Flanders, selection of compurgators, 48
compurgation in default of evidence, 54
compurgation retained, 82
villein cannot challenge a noble, 152
penalty for default in duel, 174
charters exempting from duel, 201-3
merchants exempted from duel, 204
duel abolished by Philippe le Bon, 231
survival of duel, 237
ordeal for second accusation, 392
torture system in, 521
evidence refused to accused, 544
Fleta, multiple oaths in, 28
negative proofs in, 74
definition of _secta_, 85
Fleurant de Saint-Leu, case of, 502
Fleury, Abbey of, 343
Floating of sorcerers and witches, 325
Florence, church subjected to duel, 160
Flower-buds in fire ordeal, 303
Foix, Raymond Bernard of, his duel, 222
Fontaines, Pierre de, ignores compurgation, 76
on appeals, 124
on gladiators and champions, 187
his opinion of the duel, 221
no reference to torture, 489
Fontanelle, Abbey of, its ordeal-iron, 288
Foot, loss of, for hired warrantor, 131
for hired champions, 191
For de Morlaas, duels in the, 134
_Forath_, 95
Forchheim, case of bier-right, 362
Forez, fines for withdrawing from duel, 144
Formosus, pope, case of, 382
Formulas of compurgation, 58
in Lille, 78
in the Inquisition, 90
of application for duel, 142
for the corsnæd, 340
for bier-right, 368
for unguent against fire, 408
to protect from torture, 557
_Fort_ of Bordeaux, 98
Fortescue, Sir John, on use of torture, 566
Foulcher de Chartres on lance of St. Andrew, 309
France (see also _Merovingian Law_, _Salic Law_, _Carlovingian Laws_).
judicial use of oaths, 23
reduplicated oaths, 28
oaths required of prelates, 36
evidence of kinsmen excluded, 38
selection of compurgators, 40, 47
clients responsible for advocates, 70
decline of compurgation, 76
accusatorial conjurators, 94
Henry II. prohibits wager of battle, 107
challenging of witnesses, 121
protection of witnesses, 123
challenging of judges, 124
conditions of the duel, 140
minimum limit for duel, 147
Jews exempted from duel, 149
duels between different ranks, 149
liability of clerics to duel, 157, 159
_lex talionis_ in duel, 170
club used in duels, 176
champions a matter of course, 181
defeated, their punishment, 184
employment of, 193
decline of the duel, 216
its disappearance, 235
cold-water ordeal for witchcraft, 326, 330
ordeal of sieve-driving, 358
bier-right, 366
iron bands for parricide, 378
ordeals become obsolete, 423
reappearance of torture, 479, 487
resisted by Feudalism, 494
use of torture becomes general, 499
adoption of inquisitorial process, 513
applications of torture, 515
Ordonnance of 1670, 517
_réserve des preuves_, 518
abolition of torture, 583
Francesco della Puglia opposes Savonarola, 311
Francis I. challenged by Charles V., 106
grants the duel, 233
perfects the inquisitorial process, 514
Francis, St., uses ordeal of fire, 307, 309
Franconia, use of purgatorial oaths, 24
_Frangens jusjurandum_, 46
Frankfort, duel in 1369, 171
Franks, use of compurgation, 34
use of judicial duel, 113
use of ordeal, 274
punish sorcery with drowning, 325
compounding for ordeals, 384
torture of slaves, 453
torture of freemen, 470
Fratricide punished with iron bands, 377
Fraud, torture in cases of, 530
use of, in witch-trials, 558
Fredegonda, her compurgation, 39
her use of torture, 455
Frederic I. (Emperor) overthrows Henry the Lion, 133
his charter to Austria, 134
exempts traders from the duel, 204
prescribes iron ordeal for slaves, 292
ordeal at discretion of accused, 387
master’s oath clears a slave, 390
prescribes torture for theft, 475
Frederic II. (Emperor) on compurgation, 41
rules for compurgation, 54, 56
ignores compurgation, 75
prohibits clerics as judges, 73
compels clerics to duel, 159
allows defendant choice of weapons, 177
on cowardice of champions, 185
provides champions at public expense, 190
his charters to Ratisbon and Vienna, 204
denounces the duel, 212
prohibits the ordeal, 422
prescribes torture for treason, 475
is use of torture, 482
Frederic of Mainz takes ordeal of Eucharist, 348
Frederic the Great limits use of torture, 579
_Fredum_, 16
Freeman not liable to personal punishment, 65
and serf, combat between, 122
cannot be challenged by serf, 140
red-hot iron ordeal for, 291
not tortured in Greece, 432
not subject to torture in Rome, 434
exceptions, 435, 437, 439
is a Roman citizen, 440
not tortured among Ostrogoths, 457
limitation on torture of, under Wisigoths, 459, 460
subject to torture in Castile, 464
inviolability obsolete, 470
presence required at the _mallum_, 472
Freedman not tortured in Greece, 433
not tortured against his patron in Rome, 442
among Ostrogoths, 457
against patron in Spain, 464
Freisingen, duels of women in, 153
Frese, Georg, his ordeal, 301
Friends, evidence of, excluded, 38
Frisian laws, oaths in, 23
use of compurgation, 34
rules for compurgators, 47
compurgation and ordeal combined, 61
penalties of conjurators, 64
judicial duel in, 114
facilities for judicial duel, 119
either party can claim the duel, 140
right of _litus_ to the duel, 148
hired champions allowed, 180
hot-water ordeal, 283
ordeal of the lot, 353
ordeal for defeated accuser, 385
Frisia, ordeals persisted in, 422
torture not used, 563
_Frithborgs_, 41
Frotho III. orders judicial duel, 110
Fuero Juzgo, no compurgation in, 75
torture in, 461
Fuero Viejo, compurgation in, 75, 80
Fulk the inquisitor, his abuse of torture, 486
Fulk Nera, his charter to Abbey of Beaulieu, 161
Fulvius Flaccus, case of, 448
Furstenberg, Count of, uses the ordeal, 300
Gaddi and Altoviti, duel of, 236
Gæum, ordeal used in the, 270
_Galanas_, 40
Galbert, his explanation of ordeal, 401
Galicia, hot-water ordeal in, 281
Gallius, Q., case of, 435
Gascony, land title decided by cold-water ordeal, 323
Gauls, torture of widows among, 452
Gauntlet, iron, ordeal of, 296
Gautama, ordeal unknown to, 268
Gavarret, revenue from ordeal at, 415
Geiler von Kaisersberg opposes torture, 575
Gelmirez, Diego, authorizes duel, 132
Gengulphus, St., his improvised ordeal, 286
George IV. abolishes torture in Hanover, 581
Geirröd, his torture of Odin, 454
Gerald, St., of Braga, case of, 379
Gerard of Cambrai on torture of heretics, 474
Gerberga drowned as a witch, 325
_Gerefa_, 48
Gerhardt, E., on ordeal for witches, 332
Germany (see also _Sachsenspiegel_, _Schwabenspiegel_,
_Sachsische Weichbild_).
purgatorial oaths, 23, 24
of father, 41
_sinodales homines_, 41
rules for compurgation, 54
_juramentum supermortuum_, 56
use of advocates, 70
clerics not to be judges, 73
compurgation retained, 80
accusatorial conjurators, 96, 97
judicial duel among ancient Germans, 112
challenging of judges, 126
legislative function of duel, 129
duel habitual in criminal cases, 135
theory of guilt, 136
limitations on the duel, 141
crimes liable to duel, 147
penalty of defeat in duel, 171
of default in duel, 173
weapons allowed, 177
champions a matter of course, 190
exemptions granted to the towns, 204
prolongation of the duel, 238
use of hot-water ordeal, 283
titles to fiefs settled by water ordeal, 324
cold-water ordeal in witchcraft, 326
ordeal of sieve-driving, 358
cases of bier-right, 362
formula for bier-right, 368
use of ordeal in civil cases, 387
ordeal for convicts, 392
persistence of ordeals, 423
mediæval use of torture, 475, 476
reappearance of torture, 479, 505
torture established, 522
disused, 579
substitutes for torture, 582
Gerode, Abbey of, its ordeal, 295
Geroldus converts Mecklenburg, 277
Gerstlacher, his defence of torture, 580
Getter’s case, bier-right in, 367
Ghent, laws of, no allusion to ordeal, 202
ordeal for slaves, 394
_Ghee_, boiling, ordeal of, 283
Giraldus Cambrensis on study of Roman law, 73
Gifts to hired champions, 191
Giuliano Rondinelli, his ordeal of fire, 311
Gladiators identified with champions, 187
subject to torture in Rome, 441
Glanville, jury-trial ascribed to him, 48
allusions to compurgation, 70
prescribes cold-water ordeal for slaves, 322
knows nothing of torture, 564
Glastonbury, Abbey of, its hired champion, 197
Gloucester, Statute of, 242
Thomas of, his duel code, 241
Glove as gage of battle, 245
_Gobereen_, ordeal of, in Rajmahal, 259
God, judgment of, faith reposed in, 102
tempting of, in the ordeal, 207, 411
his interposition expected, 250
appeals to, among Hebrews, 261
Godelmann on cold-water ordeal in witchcraft, 328
Godfrey, St., his charter to Amiens, 201
_Godi_, Norse priest and judge, 27
decides as to compurgation, 53
Godwin of Kent, his death, 341
Golden Bull, torture in, 505
Golden Calf, ashes of, as ordeal, 262
Gonsalvo de Cremona, 359
Gothic ritual defended by duel, 132
by fire ordeal, 313
Goths (see also _Ostrogoths_ and _Wisigoths_).
compurgation not used, 34
use of judicial duel by, 115
their civilization, 456
their use of torture, 457
Gout cured by torture, 528
Gräfe, Johann, opposes torture, 576
Grágás (see _Iceland_).
Grammatico, Tomaso, on punishment for suspicion, 520
Gran, council of, 1099, prescribes the ordeal, 410
Grand jury, presentation by, 388
Grandier, Urbain, case of, 556
Grateley, council of, 928, regulation of ordeal, 406
Gratian does not condemn the ordeal, 413
on extorted confessions, 478
Greece, family organizations in, 15
oaths used, 26
traces of compurgation in, 34
traces of judicial duel, 108
ordeals in, 270
oath of the gods, 371
use of torture in, 432
varieties of torture, 434
Greeks, duels with Franks, 151
Gregory I. on oaths on relics, 372
extorted confessions invalid, 478
Gregory II. prescribes oaths for clerics, 36
Gregory III., penitential of, on oaths, 30
Gregory VII., his war on simony, 62
introduces Roman ritual in Spain, 132
tries cold-water ordeal, 324
takes ordeal of Eucharist, 349
his improvised ordeal, 350
Gregory IX., his Decretals, 419
on purgation of heresy, 484
prohibits counsel to accused, 487
Gregory XI. condemns the Sachsenspiegel, 210, 420
Gregory of Tours, his purgatorial oaths, 28
accused by Leudastes, 454
Grenoble, accused refused a hearing, 518
Grillandus on compurgation, 93
on torture of sleeplessness, 535
his five degrees of torture, 543
on charms against torture, 557
Grimkel, Bishop, tests relic with fire, 316
Grimoald, King, restricts judicial duel, 114
restricts right of slaves to duel, 148
Grossolano, Archbishop, convicted by ordeal, 306
Gualberto, St. Giovanni, urges the ordeal, 305
Guarantees required for oaths, 25
of compurgatorial oath withdrawn, 72
Guardians, required to provide champions, 153
Guardianship cases, slave torture in, 442
Gudrun, Queen, cleared by the ordeal, 385
Guelf, Bavarian house of, founded, 133
Guibert of Nogent uses ordeal for heretics, 410
Guido, Abbot, of Pescara, 157
Guy (Emp.) on duels of clerics, 155
Guilds to furnish conjurators, 82
Guillot de Ferrières, case of, 492
Guilt before God but not before man, 136
Guisbert, Ladislas, case of, 588
_Gulathingenses Leges_, partition of _wer-gild_, 18
selection of compurgators, 50
oath of compurgators, 59
Gundeberga, Queen, case of, 113
Gundobald, King, use of duel ascribed to, 112
the duel as remedy for perjury, 118
Gunner’s case, 86
Gushtasp converted by the ordeal, 295
Gustavus Adolphus, compurgation in his laws, 83
Gyda, Queen, duel for, 115
Hainault, penalty for default in duel, 173
charter of 1619, torture in, 556
Hako Hakonsen on division of _wer-gild_, 18
choice of compurgators, 49
oath of compurgators, 59
prohibits ordeal, 422
Hair may float in cold-water ordeal, 319
Hale, Sir Matthew, on the duel, 245
Hales, Alexander, on duel, 209
condemns ordeals, 420
Halle, citizens tortured by Lothair II., 475
punishment without conviction, 521
torture of aged in, 527
Hanche, Adolf, his duel, 171
Hand of bishop, oath taken on, 30
Hand, loss of, for perjury, 64
for hired champions, 191
wrapped up after ordeal, 280, 288
Hanover, torture abolished, 581
Hans Speiss, convicted by bier-right, 363
Hardening to torture, 558
Harold Blaatand abolishes duel, 200
converted by ordeal, 295
Harold the Simple abolishes duel, 200
Harry, slave, convicted by bier-right, 367
Haselwood, Wm., uses ordeal of sieve, 358
Hatchet used in iron ordeal, 289
Hatred excuses from duel, 146
_Haut-justiciers_, their rights over duel, 218
Haynokes, Susannah, case of, 336
Hearing refused to accused, 518, 547
Heaven, its interposition relied on, 251
Hebrew customs, sacrificial oaths, 26, 27
use of ordeals, 261
fire ordeal, 303
torture not used, 430
Hela, witch tried by ordeal in, 333
Hellenic _Patræ_ and _Phratriæ_, 15
Hen used in ordeal, 256
Henry II. (Emp.) accepts a duel, 134
restricts use of champions, 189
accords duel to the guilty, 131
hangs thieves convicted by the duel, 135
cold-water ordeal for slaves, 322
Henry III. (Emp.) on number of conjurators, 43
rules for compurgation, 54
challenges Henry I. (France), 130
charter to church of Volterra, 161
Henry IV. (Emp.) offers the duel, 133
his charter to Pisa, 200
refuses ordeal of Eucharist, 350
Henry V. (Emp.) his charter to Venice, 57
Henry I. (England), laws of, compurgation abolished, 67
his charter to London, 201
Henry II. (Engl.) exempts clerics from duel, 158
forbids hiring of champions, 190
his bleeding after death, 360
Henry III. (Engl.) prohibits the ordeal, 421
Henry VIII., compurgation under, 92
use of torture under, 566, 568
Henry II. (France) swears to grant no duels, 234
Henry III. (France) revises coutumier of Normandy, 79, 231
Henry IV. (France) edict against duels, 104
his pardons to duellists, 107
Henry II. (Navarre) grants the duel, 233
Henry of Bavaria buries a tortured pilgrim, 474
Henry of Essex, case of, 137
Henry, Duke of Limburg, 343
Henry the Lion, case of, 133
Henry of Lorraine claims jurisdiction of duel, 238
Henry I. of Mainz administers the ordeal, 295
Henry of Strassburg convicts heretics by ordeal, 419
Henry of Susa pronounces ordeals illegal, 420
Hepburn and Brown, duel of, 240
Hera, oaths taken by, 26
Heracles pays for murder of Iphitus, 15
Heretics, compurgators for, 88
conviction of, by ordeal, 297, 410, 419
ordeal forbidden in their trial, 419
torture used in 1025, 474
Heresy, no limitations on torture, 467
torture habitually used, 484
Herigarius, miracle granted to, 379
Herkia defeated in ordeal, 385
Hermann of Cologne, conversion of, 418
Hermann of Slavonia prescribes compurgation, 84
Hermann of Suabia challenges Henry II., 134
Hermes, mutilation of statues of, 433
Herzegovina, ordeal for witches, 333
Hidulf, St., power of his intercession, 377
Hildebert of Le Mans on torture, 475
Hinemar, his rules for compurgators, 47
his eulogy of hot-water ordeal, 278, 282
explanation of cold-water ordeal, 319
ordeals for witnesses and compurgators, 389
his suggestion of a champion, 398
Hindu customs (see _India_).
Hiring of champions, 190, 193, 195
Hirpi walk over burning coals, 287
Hoel Dda, his laws, 20
abrogation of ordeals ascribed to, 110
Holland, ordeal of balance in, 335
torture system in, 521, 576
disuse of torture, 577
_Holm-gang_, 111
abolition of, 199
Holstein, bier-right in, 364
Holy Coat of Trèves, 422
Holy Ghost, ordeal of, 381
Holy water used in ordeal, 281, 407
Holyrood, Abbey of, its jurisdiction, 162
Homicide, penalty of, at Arques, 13
duel necessary to prove it, 142
inferior can challenge superior, 151
_Homines sinodales_, 41
_Homo infamatus_ sent to ordeal, 392
Honor, duel of, 104
Honorius III. forbids clerical duels, 160
prohibits ordeals, 423
Honorius of Autun sanctions ordeal, 413
Horatii and Curiatii, preliminary oath, 271
Horatius, _wer-gild_ paid by, 15
Host, consecrated, power of, 347
Hot-water ordeal in Japan, 253
in Ethiopia, 256
in Madagascar, 257
among the Khonds, 258
in Rajmahal, 259
among the Mazdeans, 265
in Tibet, 269
among the Feini, 272
in earliest Salic law, 274
among the Wisigoths, 275
its use in Europe, 278
swallowing hot water, 283
its use in India, 283
miraculous cases, 285
used for trifling cases, 292
patrician or plebeian ordeal, 322
Household slaves, torture of, in Spain, 464
Hubert, Bishop of Worcester, 40
Huesca, ordeals prohibited in, 424
Hugh Capet challenged by Louis d’Outremer, 130
Hugh, king of Italy, 128
Hugh, legate, refuses bribe, 62
Hungary, liability of clerics to duel, 157
restriction of duel in, 237
ordeals introduced, 277
use of iron ordeal, 299
witches tried by ordeal in 1730, 332, 335
ordeal for all suspects, 388
preservation of purity of ordeal, 405
privilege of administering ordeals, 415
fees for ordeals, 416
ordeals prohibited in 1279, 423
torture legalized, 508
Husband and wife, rule as to torture of, 543
Hutten, Ludwig von, declines a challenge, 238
Iarnsida, partition of _wer-gild_, 18
selection of compurgators, 50
compurgation in default of evidence, 54
oath of compurgators, 59
use of compurgation, 82
no torture in, 562
Iceland, legal process in, 17
levying of fines, 18
sacrificial oaths, 27
use of compurgation, 35, 82
admission of compurgation, 53, 54
oaths of compurgators, 59
accusatorial conjurators, 97
use of duel in, 111
penalty for default, 174
duel abolished, 199
use of red-hot iron ordeal, 292
accused can demand ordeal, 387
ordeals abolished, 422
use of torture, 561
_Ictus capituli_, 163
Idol-water as an ordeal, 344
_Iesameh_, 29
Iglau, compurgation in laws of, 84
the duel in, 205
Illegal torture renders confession invalid, 550
Illinois, bier-right in, 368
Illusions, diabolic, in ordeal, 408
Imagination, influence of, in ordeals, 339, 396
Imbrico of Augsburg, his ordeal of Eucharist, 351
Immunity of clerics from secular law, 414
Imprecations, use of, in Assyria, 260
Imprisonment for retracting confession, 549
Incest, evidence of slave in cases of, 444
Incrimination of accomplices rejected in Rome, 443
accepted in modern times, 484, 515, 517, 546, 562, 570, 584
Incontinency, compurgation for, 87
India, communal organization in, 14
use of oaths, 25
evidence of friends and kinsmen excluded, 38
duel to avert battles, 104
judicial duel not used, 108
limitations on witnesses, 122
champions allowed in ordeals, 179
ordeals of pre-Aryan races, 258, 291, 344
oaths as ordeals, 267
ordeal of fire, 267
complicated ordeal system, 268
is a religious ceremony, 269, 280
ordeal of boiling oil, 283
of red-hot iron, 289
of fire, 303
relics tested by fire, 314
ordeal of cold water, 319
of balance, 334
of endurance, 339
of rice, 344
of cosha, or idol-water, 344
of chance, 352
of poison, 375
only for doubtful characters, 384
either party can undergo the ordeal, 384
minimum limit of ordeals, 391
torture unknown, 431
Infamy of champions, 187
ordeal in cases of, 388
Influence of torture on judges, 534
Informers, responsibility of, in Rome, 440, 446
under Wisigoths, 459
Injustice of ordeal, explanation of, 401
Innocent I. on use of torture, 477
Innocent II. prescribes compurgation, 62, 71
forbids clerics to fight, 156
Innocent III. modifies compurgatorial oaths, 71
orders purgation for heresy, 89
on failure in duel, 137
forbids clerics to fight, 156, 158
his relation to the duel, 208
suppresses the ordeal, 418
Innocent IV. forbids clerical duels in France, 159
orders torture to discover heresy, 484
Innocent VIII. on torture of clerics in England, 566
Inquest of Fame, 71
Inquests, torture not used in, 499, 512
Inquisition, its use of compurgation, 89
its use of torture, 483
extortion of confession, 485
its influence on use of torture, 486, 512
restricted by Council of Vienne, 511
torture to discover accomplices, 516
Inquisition of State in Venice, 507
Inquisitorial Process, the, 512
becomes general, 499
not used in Poland, 509
retained in Germany, 581
Inquisitors dispensed for use of torture, 484
Insane, the, exempt from torture, 528
Inscription of accuser in Rome, 440, 446
under Wisigoths, 459
Intervention of God expected in the duel, 135
Inundation of 1219 caused by ordeals, 422
Inverness exempted from duel, 201
Involuntary perjury, penance for, 31
Ipswich, selection of conjurators in, 49
Ireland, solidarity of the family in, 15
levying of fines, 18
tribal responsibility, 42
judicial duel among the Feini, 109
duel in 1583, 243
inspiration of judges, 272
hot-water ordeal in, 273
hot-iron ordeal for women, 292
ordeal of the lot, 354
of the oath, 374
use of the Clog Oir, 397
Irregular ordeals, 377
Irregularity of clerics, 484
Iron bands used as an ordeal, 377
Iron ordeal (see _Red-hot iron_).
Isaac, assassin of Charles the Good, 474
Isidor of Seville on perjury, 31
Islam, reduplicated oaths, 29
accusations of adultery, 46
oaths as ordeals in, 263
Italy (see also _Lombard Law_, _Sicilian Constitutions_).
conjurators to confirm witnesses, 56
challenging of witnesses, 120
Otho II. enlarges the sphere of the duel, 131
cases admitting the duel, 141
the Church subjected to the duel, 155, 160
jurisdiction of the Church over duel, 163
oaths preliminary to the duel, 166
penalty for defeat in duel, 169
duels fought to the end, 178
champions always employed, 182
as a profession, 189
restrictions on use of, 189
equalization of, 194
abrogation of duel, 235
bier-right, 365
ordeals prohibited in Naples, 422
in 15th century, 425
reappearance of torture, 481, 484
its development, 506
its abolition, 586
Itzehoe, case of bier-right in, 365
Ivan III., torture introduced by, 509
Ivo of Chartres, distrust of compurgation, 61
refuses to grant the duel, 162
his opinion of the ordeal, 401, 412
claims exemption of ordeal for priests, 414
on extorted confessions, 478
Jacintus, his hot-water ordeal, 279
Jacob’s Review of the Statutes, 86
James I. grants the duel, 240
approves of ordeal for witches, 330
his belief in bier-right, 361
torture under, 567, 568
his torture of Dr. Fian, 573
Jamnuggur, ordeal in 1867, 284
Janssen, Hendrik, torture of, 578
Jardine on torture in England, 566
Jarnac, his duel with La Chastaigneraye, 106
Japan, judicial duel in, 108
ordeals in, 253
use of torture, 432
Jayme I. (Aragon) restricts torture, 462
prohibits the duel, 214
Jeanne de Bourgogne, offers the combat, 226
_Jeffniteed_, 97
Jehan de Warlus, case of, 501
Jerusalem, Assisses de, 75
on use of counsel, 70
reject negative proofs, 74
no compurgation, 75
women cannot be witnesses, 122
limitations on duel, 143
limit of value for duel, 148
discrimination of race in, 151
champions supplied to the poor, 152
no duel in mercantile law, 165
_lex talionis_ enforced, 170
penalty of defeat for women, 173
champions as witnesses, 183
punishment of defeated champion, 184
red-hot iron ordeal plebeian, 292
use of iron ordeal, 298
ordeal for all suspects, 388
reappearance of torture, 480
Jew, duel with, ordered by the Virgin, 209
ordeal to convert, 296
Jews (see also _Hebrews_).
their liability to the duel, 149, 151
asking pardon of a corpse, 360
convicted by bier-right, 362
ordeal of brambles for, 382
torture of, by King John, 477
in Bourges, 492
mode of executing them, 503
John XII. challenged by Bishop Liutprand, 129
John, King (England), favors the duel, 241
tortures Jews, 477
John, King (France), abrogates compurgation, 78
John, Bishop of Avranches, recognizes the ordeal, 412
John, Bishop of Didymoteichos, 402
John of Coldinghame, 191
John of Freiburg on duel in episcopal courts, 165
John of Freiburg—denounces ordeals, 420
Jonah, use of lot, 262
Jonathan, case of, 262
Joseph II. abolishes torture, 581
_Jovem lapidem jurare_, 270
Judaism (see _Hebrews_).
Judges decide as to compurgators, 53
challenging of, 123
royal, not liable to appeal, 126
discretion in granting duel, 140, 146
inspiration of, in Islam, 263
inspiration of, among Feini, 272
responsibility for torture under Wisigoths, 458, 460
in Castile, 465, 467
in Italy, 507
in France, 515
in Germany, 523
responsibility elusory, 533
using torture liable for homicide in England, 565
cannot be witnesses, 509
everything left to their discretion, 533, 538, 541, 549
abuse of their discretion, 545
influence of torture on, 534
their abuse of torture, 539
their neglect of favoring evidence, 544
Judgment of God expected, 250
faith reposed in, 102
appealed to by Hebrews, 261
Judgment reversed, penalty of, 124, 126
of blood forbidden to clerics, 471
Judicial duel, 101
_Judicium_ means ordeal, 298
_Judicium crucis_, 336
_Judicium ferri_, 287
_Judicium offæ_, 339
_Juise_, 287, 298
Julius (Pseudo) forbids evidence of accomplices, 515
Julius II., his bull against duels, 236
_Jura de juicio_, 22
_Juramentum supermortuum_, 55
_Juratores_ (see _Conjurators_).
Jurisdiction over duel, profits of, 218
over ordeals, its advantages, 415
Jury and ordeal combined, 388
Jury-trial, rise of, 48
as substitute for duel, 144
for pleaders unable to fight, 192
in Denmark, 562
influence of, on the duel, 241
in England, 564
_Jus cruentationis_, 359
_Jus feretri_, 359
_Jus Provinciale Alamannicum_ (see _Schwabenspiegel_).
_Jus Provinciale Saxonicum_ (see _Sachsenspiegel_).
_Jusjurandum in jure_, 21, 22
Jusiers, church of, its exemption, 158
Justice, tardy recognition of, 13
Justinian orders torture for adultery, 439
enforces the _talio_, 440
orders torture of witnesses, 441
Kai Kaoos orders fire ordeal, 266
Kalabarese ordeals, 254
Katrington, his duel, 179
Kayser-Recht, duel limited in, 205
denounces the duel, 212
no allusion to torture, 480
Keller, Fried., opposes torture, 576
_Keure_ de Bruges, 203
_Keyser Retenn_, 563
Khandogya Upanishad, its explanation of the ordeal, 267
Khonds, ordeals among the, 258
Kilty on duel in Maryland, 247
Kincaid, a witch-pricker, 571
King _vs._ Williams, case of, 86
Kinship a bar to duel, 141
Kinsmen, responsibility of, 14, 18, 19
their evidence, 38
not admitted in Castile, 465
as compurgators, 38, 40, 45, 48, 50
as champions, 180
witness not tortured against, 542
Knighthood, oath of, 186
Knipschild on torture of nobles, 526
Knox, John, on Bothwell’s challenge, 240
Koran, accusation of adultery in, 46
Kraku Hreidar, 111
Kshatriya caste, oaths required of, 25
La Chastaigneraye, his duel with Jarnac, 106
Lactantius, his account of persecution, 437
Ladislas, St., prevents collusion in ordeal, 405
regulates fees for ordeals, 416
Lafon, Mary, on _affaire Calas_, 585
_Lag feste men_, 41
Lambert of Redenberg, case of, 401
Lambert of Tuscany, his duel, 128
Lamoignon on counsel for accused, 517
Lance of St. Andrew, case of, 308
Lancelotti prescribes compurgation, 93
Land, communal holding of, 14
acquired by duel, 111, 211
Land-titles decided by ordeal of cross, 339
Lang, J. P., on cold-water ordeal for witches, 330
Languedoc, use of torture in, 495
Laon, theft of sacred vessels of, 136, 324, 474
Lascaris, Theod., invents a torture, 554
La Seauve, Abbey of, its revenue from ordeals, 415
Lateran, council of, 1216, on heresy, 89
forbids clerics to fight, 156
forbids the duel, 208
forbids priestly ministration in ordeals, 419
on purgation of heresy, 484
Latins, ordeals disused among, 270
Lausanne, chapter of, adjudges the duel, 162
Law means compurgation, 57
personal, not territorial, 131
Lawyers, advantage of employing, 70
exempt from torture in Castile, 467
Laymen as compurgators for clerics, 44
sin of shaving by, 403
Lebanon, Ills., bier-right in, 368
Ledesma, case of bier-right in, 366
Legislation, secular, against ordeals, 421
Legislative functions of duel, 129, 133
Legitimacy proved by ordeal, 273, 381
Le Gris and Carrouges, duel of, 229
Lemarinier, Jehan, case of, 517
Lemgow, cold-water ordeal in, 327
Lent, ordeal administered in, 410
Leo III. (Pope) clears himself by compurgation, 35
cold-water ordeal ascribed to, 321
Leo IV. forbids ordeal of lot, 353
Leo X., his prohibition of duels, 236
Leopold, Gr. Duke, abolishes torture, 586
Leper cured by St. Martin’s relics, 380
battle not allowed to, 141
_Les cous lou roi_, 163
Lescar, Bishop of, uses the ordeal, 295
_Lèse majesté_, first recognition of, in France, 495
its appearance in England, 564
Lessingon, patronage of church of, 119
Leudastes, case of, 454
_Lex apparens and simplex_, 148
_Lex Gundebalda_, 112
_Lex Monachorum_, 412
_Lex talionis_ (see _Talio_).
Lhotka, assembly of, 355
Libo, prosecution of, 443
Lie as preliminary to duel, 229
Liége, Bishop of, demands the duel, 160
use of torture in, 505
Liguaire, St., quarrel over his relics, 354
Life not to be jeoparded in torture, 465, 467
Lilburn and Claxton, case of, 244
Lille, responsibility of kindred, 19
formula of compurgation in, 78
torture not used in, 498
Lillebonne, council of, 1080, on clerical duellists, 156
on fees for ordeals, 416
Lima, fees for torturing in, 511
Limitations on the duel, 140
on use of champions, 189
on torture in Rome, 445
in Castile, 465
none in Châtelet of Paris, 500
in Italy, 506
disregarded, 526
Limbs not to be crippled in torture, 465, 467
Lindisfarne, unchaste priest of, 346
Lioba, St., undergoes ordeal of cross, 337
Lists, biers placed in, 172
_Litus_, his right to duel, 148
Liutgarda forced to duel, 123
Liutprand (King), on perjury of compurgators, 63
restricts judicial duel, 114
Liutprand, Bishop, his challenges, 129
Liutprand convicts Grossolano by ordeal, 306
Livonians asked to be relieved from ordeals, 423
_Livre de Jostice et de Plet_ requires compurgation, 76
no reference to torture, 488
Ljot the Pale, 111
Loaf of bread, ordeal of, 357
Lombard law—
rules for compurgation, 47, 50, 53
withdrawal of confession, 52
oath of compurgators, 58
ceremony of compurgation, 60
witnesses outweigh conjurators, 62
perjury of compurgators, 63
Otho II. limits compurgation, 67
judicial duel, 113
Otho II. extends use of duel, 118, 131
duel allowed to the guilty, 131
minimum limit for duel, 147
right of slaves to duel, 148
liability of clerics to duel, 155
penalty for defeat in duel, 168
kinsmen as champions, 180
champions always employed, 181
freedmen or clients, 186
restrictions on use of champions, 189
use of hot-water ordeal, 283
cold-water ordeal prohibited, 322
for slaves, 322
duel for cases of sorcery, 326
ordeal of cross prohibited, 338
London, exemption from duel granted, 201
Loquetier, Nicholas, case of, 493
Lord and vassal, no duel between, 146
Lorraine, Dukes of, their rights over duel, 238
Lorris, oaths in laws of, 23
fines for withdrawing from duel, 144
Lot, ordeal of the, 352
among Hebrews, 261
in Greece, 270
Lothair, King, his divorce from Teutberga, 281
dies of ordeal of Eucharist, 349
Lothair I. (Emp.), formula of compurgation, 53
prohibits cold-water ordeal, 322
prohibits ordeal of cross, 338
Lothair II., his use of torture, 475
Loudon, charter of, 391
Louis le Débonnaire tries Pascal I., 37
on selection of conjurators, 51
compurgation in lack of evidence, 53
on penalty for defeat, 167
condemns cold-water ordeal, 321
prohibits ordeal of cross, 338
orders freemen present at _mallum_, 472
Louis II. (Emp.), compurgation in lack of evidence, 53
decides cases in favor of Siena, 56
Louis IV. (Emp.), his charter to Dortmund, 205
punishes Ueberlingen, 363
Louis d’Outremer offers duel to Hugh Capet, 130
Louis VI. (France) grants charter of Loudun, 391
Louis VII., his charter to Lorris, 23
exempts the church of Jusiers, 158
Louis VIII., his charter to Crespy, 203
Louis IX. on use of oaths, 23
makes clients responsible for advocates, 70
his Établissements, 76
restricts challenging of judges, 125
prohibits duel between brothers, 141
enforces the _lex talionis_, 170
his struggle with feudalism, 216
his restriction of the duel, 217
punishes Enguerrand de Coucy, 221
torture not in his laws, 488
gives facilities for defence, 512
Louis X. endeavors to repress the duel, 227
orders cold-water ordeal for sorcery, 326
maintains use of torture, 494
Louis XIV. revises the torture process, 517
Louis XVI. abolishes torture in France, 585
Louis of Saxony, his use of the ordeal, 400
Lourdes exempted from duel, 202
Low _vs._ Paramore, case of, 139, 243
Lowe’s case, torture in, 571
Lubeck, introduction of torture in, 483
Lucerne, case of bier-right, 363
Lucius III. annuls judgment by ordeal, 418
Lucretius quoted for bier-right, 360
Ludlow, ordeal of Bible and key, 357
Luitzes, their duel with Saxons, 131
Lust, unnatural, torture for, in Rome, 439
Lycanthropy, prolonged torture for, 529
Lyons, council of, 1080, on simony, 62
Archbishop of, uses ordeal for heretics, 411
Macarius, St., his appeal to God, 251
Maci, Jehannin, case of, 501
Madagascar, ordeals in, 256
Madrid, compurgation in fuero of, 75
Magdeburg, thieves convicted by the duel, 135
Magi use fire-test on swaddling cloth of Christ, 315
Magic arts in duel, 139
in ordeal, 407, 410
torture in trials for, 469, 554
Magicians lose their specific gravity, 325, 334
tortured in Rome, 439
their evidence not received, 523
Magna Charta, no allusion to torture in, 564
Mahabharata, the, 14
Mahomet on accusations of adultery, 46
on interposition of God, 262
Mahuot and Plouvier, duel of, 232
Maiming, permanent, prerequisite for duel, 142
Mainz, council of, 847, ordeal for slaves, 394
council of, 848, prescribes iron ordeal, 291
councils of, 888 and 1028, prescribe the ordeal, 410
Templars offer the ordeal, 299
_Majestas_, torture in, 435, 438, 443
its extension, 436
Majjars, ordeals introduced among, 277
Majorca, duel prohibited, 214
ordeal prohibited, 424
_Mallum_, regulations for holding it, 471
Manasses of Reims deposed for simony, 62
Manava Dharma Sastra, village communities in, 14
oaths prescribed in, 25
on perjury, 267
ordeals described in, 268
Mandeure, ordeal of staff in, 396
Manichæan defeated by fire ordeal, 304
Manorial courts, compurgation in, 57
Mansuetus, St., power of his intercession, 378
Mantra in Hindu ordeals, 289
for cold-water ordeal, 319
for ordeal of balance, 335
for poison ordeal, 375
Manuscripts tested by fire, 313
Marches, Scottish, duel universal, 145
liability of clerics to duel, 158
death does not release from duel, 174
Marcus Aurelius, his exemptions from torture, 438
Maresca, Marc Antonio, case of, 520
Maria Theresa, torture in her laws, 580
Marguerite de la Pinele, case of, 503
Marmoutiers, Abbey of, case of, 404
Marne, jurisdiction of duel at, 163
Marriage, compurgation to prove nullity, 93
tested by ordeal, 336, 410
Marshal’s court, the, regulates duels, 241
Marschalck, his duel, 172
Marsigli, Hipp. de’, his case of bier-right, 365
his torture of sleeplessness, 535
on abuse of torture, 539
Martial, St., of Limoges, perjury on his altar, 373
Martin of Austrasia, 29
Martin, St., vindicates his relics, 380
his cope used in compurgation, 60
Martin II. forbids duel of Charles of Anjou, 106
Mary, wife of Otho III., story of, 293
Mary, Queen, torture under, 568
Maryland, compurgation in, 88
appeal of death in, 247
Mass as part of the ordeal, 413
mortuary, in ritual of ordeal, 394
Massachusetts, appeal of death in, 246
use of torture in, 569
_peine forte et dure_, 575
Masserano, Marquis of, 531
Master’s oath clears a slave, 22, 390
Master and serf, no duel between, 146
his consent necessary to his serf’s duel, 149
slaves not tortured against, in Rome, 442
except in treason, 443
other exceptions, 444
under Ostrogoths, 457
under Wisigoths, 459
in Spain, 464
repaid for damage to tortured slave in Rome, 445
among Barbarians, 452
under Wisigoths, 458
in Castile, 468
Maternal kindred as compurgators, 45
Mathieu le Voyer sues Louis IX., 219
Matthias Corvinus restricts the duel, 237
Maubourguet exempted from duel, 203
Maumarel, Guillaume, 157
Maur, St., perjury on his relics, 273
Maximilian I. restricts compurgation, 81
Maximus on crimes involving torture of slave against master, 444
Mazdeism, ordeals in, 265, 295
torture not prescribed in, 431
Mecklenburg, ordeal introduced into, 277
Medina del Pomar exempted from duel, 202
ordeals prohibited, 424
Melanesians, judicial duel among, 108
Men, hot-iron or water ordeal for, 292
Menelaus and Paris, their duel, 108
Mennonites, use of the lot by, 355
Mental torture efficacious, 543
Mercantile law, duel not recognized in, 165
adverse to use of torture, 483
torture used in, 530
Merchants, multiple oaths by, 28
exempted from the duel, 204
Merida, council of, 666, on torture by priests, 554
Merovingian laws, accusatorial conjurators, 94
ordeal for slaves, 453
of the lot prescribed, 353
in absence of evidence, 386
precautions against collusion in ordeals, 405
Merovingians, torture used by, 454
Merseburg, thieves convicted by the duel, 135
Messalina, her torture of patricians, 439
Metz, Bishop of, has jurisdiction over duel, 164
Mexico, ordeal of oath in, 259
Michael Palæologus condemned to ordeal, 299
Milan, disappearance of duel in, 236
fire ordeal in, 306
restrictions on torture in, 506
Miles the Stammerer, his duel, 138
Milhaud, torture used in, 499
Minimum limit of value for duel, 147
for ordeals, 391
for ordeal in India, 290
_Mir_, the Russian, 15
Miracle, endurance of torture is a, 504
Miraculous hot-water ordeals, 285
red-hot iron ordeals, 301
Miralles, Archbishop, tests relics by fire, 317
Mirandola, limitations on torture in, 507
Miroir de Souabe, ordeals in, 424
Modena, iron ordeal in, 299
Bishop of, claims jurisdiction of duel, 163
Modestinus, his estimate of torture, 446
Modestus tortured by Fredegonda, 455
_Moine de Caen_, 516
Monasteries, their interest in ordeals, 415
torture in, 560
Monks as compurgators for monks, 93
appear personally in duels, 156
torture of, 560, 568
Montaigne argues against torture, 576
Montano of Toledo, his ordeal, 305
Montargis, story of dog of, 228
Monte Cassino, test of relics by fire, 316
Montenegro, ordeal for witches, 333
Montesquieu denounces torture, 583
Montigny-le-Roi, ordeal for witches at, 331
Montfort, Simon de, restricts the duel, 208
Montpellier, limitation on duel, 146
on ordeal, 387
Montricher, Sire de, case of, 150
Monza, duel of abbey at, 158
Mt. Gerizim, its claims tested by fire, 314
Moore, Samuel, case of, 510
Morann, his miraculous chain, 272
Moravia, the duel in, 205
Mortuary mass in ritual of ordeal, 394
Motive extenuates perjury, 31, 268
Mowbray, Francis, condemned to the duel, 240
Mozarabic rite defended by duel, 132
tested by fire, 313
Mstislas Davidovich exempts merchants from the duel, 204
Muh-Wang, his instructions to his judges, 252
Multiple oaths, 28
Municipal champions, 196
Muratori on ordeal for witches, 332
Murder (see _Homicide_).
Mutilation of defeated champions, 184
under torture unusual, 532
Myagh, Thos., his torture, 569
Myrc, John, instructions to priests, 242
Name written on paper and used in ordeal, 398
Namur, council of, sustains the duel, 238
Naples (see _Sicilian Constitutions_).
fire ordeal in 1811, 317
ordeals prohibited in, 422
punishment for suspicion in, 520
torture after conviction, 546
modern torture in, 587
Natives can decline duel with strangers, 141
Navarre and Castile, proposed duel between, 129
late introduction of torture, 469
_Neffn i kyn_, 41
_Nefninge_, 562
Negative proofs in Barbarian laws, 73
rejected, 74
unknown to Roman law, 272
Nehring, J. C., oil ordeal for witches, 331
_Nempdarii_, 563
Nero, his torture of Christians, 436
Netherlands, compurgation in, 81
ordeal of balance in, 335
bier-right in, 365
torture system in, 521
torture abolished in, 578
Neuwald on ordeal for witches, 327
New Granada, abuse of torture in, 540
modern use of torture, 582
New Hampshire, judicial duel in, 247
New Jersey, bier-right in, 367
New York, bier-right in, 396
Niam-Niam, ordeals among the, 256
Nicene creed, confirmation of, 379
Nicetius, St., power of his intercession, 378
Nicholas I. discourages the duel, 156, 207
forbids use of torture, 478
Nicholas, St., saves a convict from hanging, 381
Nicolas, Augustin, on torture system, 552, 577
Nieuport, laws of, on compurgation, 54, 66
no allusion to duel, 202
iron ordeal plebeian, 292
Nihilism, torture used to suppress it, 587
Nimrod exposes Abraham to fire ordeal, 303
_Nithstong_, 174
Nivard, Guillaume, case of, 493
Noailles, monks of, their duel, 196
Nobles can only be challenged by nobles, 150
allowed to employ champions, 193
subjected to cold-water ordeal, 323
their exemption from torture
under Wisigoths, 460
in Spain, 463, 466
torture of, in Champagne, 496
their liability to torture, 499, 500
exemption limited in Germany, 525
claim exemption in England, 570
and villeins, duels between, 149
Nod-men, 45, 60
Norgaud of Autun, his trial for simony, 59, 66
Normandy, formula of compurgation, 58
survival of compurgation, 79
duels in real estate cases, 146
limit of value for duel, 148
penalty for defeat in duel, 167, 169
_lex talionis_ introduced, 170
champions as witnesses, 183
punishment of defeated champions, 184
hiring of champions forbidden, 190
duel legal till 1583, 231
ordeal for all suspects, 388
ordeals become obsolete, 423
torture not used in, 487
torture introduced, 495
Normans not liable to duel with Saxons, 115, 394
Norsemen, their use of oaths, 26, 27
form of oath used by, 25
compurgation used by, 35
duel supersedes compurgation, 61
accusatorial compurgators, 97
use of judicial duel, 111
ordeal used by, 274
hot-water ordeal, 283
use of torture, 561
Northampton, Assizes of, on the ordeal, 322, 400
Norway, selection of compurgators, 50
oaths of compurgators, 59
accusatorial conjurators, 97
duel abolished, 199
ordeals prohibited, 422
Nôtre Dame de Paris, its liability to duel, 159
chapter of, adjudges the duel, 163
_Nouveaux indices survenus_, 518
Novara, Bishop of, claims jurisdiction of duel, 163
Nucius, Nicander, on torture in England, 568
Nullity of marriage, compurgation in, 93
Number of compurgators, 39
for clerics, 36
Nuns, torture of, 560
Nürnberg exempted from the duel, 204
Oaths, 21
in Roman law, 21
their purgatorial power, 22
guarantees required for, 25
reduplicated, 28
relics necessary for, 29
simplicity of, in Spain, 32
of clerics, 36, 414
of denial, in Wales, 55
of conjurators, 58
value of conjuratorial, 62
of conjurators modified, 71
disculpatory, in Suabia, 98
preliminary, in duels, 139, 166
not required in China, 252
as ordeals, 32, 371
among the Khonds, 258
among Aztecs, 259
among Ostiaks, 259
among Samoiedes, 259
in Islam, 263
in Greece, 269
in Rome, 270
Oath and ordeal alternative, 391
of master clears a slave, 390
convicts not admitted to, 392
of discharged prisoner, 550
O’Connors, duel of the, 243
Odin, his torture by Geirröd, 454
Odum wood, ordeal of, 255
Oelsner, his explanation of bier-right, 369
Officials exempt from torture in Spain, 463
of cities, their exemption, 495
Oil, boiling, ordeal of, 283
in Ethiopia, 256
among the Khonds, 258
Olaf, St., his ordeal, 296
his relics tested with fire, 316
saves a convict from hanging, 381
his use of the ordeal, 404
Olaf Trygvesson, his duel with Alfin, 115
Olaus Magnus on water torture, 510
Oldenkop on cold-water ordeal in witchcraft, 328
_Olim_, the, compurgation in, 76
cases of duel in, 224
cases of torture in, 491
Oodeypur, ordeal in 1873, 290
Opstallesboom, laws of, no torture in, 563
Oracles as ordeals, 260
Ordeal, the, 249
for _roturiers_, 58
combined with compurgation, 61, 389
administered by priests, 276
varieties of, 277
of boiling water, 278
of red-hot iron, 287
of fire, 303
of cold water, 318
of the balance, 334
of the cross, 336
of bread and cheese, 339
of the Eucharist, 344
of the lot, 352
of Bible and key, 357
of sieve-driving, 358
bier-right, 359
oaths as ordeals, 371
poison ordeals, 375
irregular ordeals, 377
of Holy Ghost, 381
for witches, 382
of the staff, 397
as preparatory to torture, 329
conditions of its use, 383
for accusers, 385, 389
in default of evidence, 385, 386
at demand of accuser, 386
of accused, 387
of both parties, 387
for ill-repute, 388, 392
in failure of compurgation, 390
and oath alternative, 391
as a punishment, 391
and compurgation alternative, 392
ritual of, 394
as a torture, 394
replaced by torture, 395, 429
champions in, 295, 337, 390, 398, 400
confidence reposed in it, 399
explanations of its injustice, 401
efforts to preserve its purity, 405
usually results in acquittal, 406
its relation to the Church, 408
fees and profits derived from it, 415
abuses of, 417
prohibited by the papacy, 418
suppression by secular law, 421
used to supplement torture, 481
Ordeal-iron, 288
Ordeal nut, 254
Ordenamiento de Alcalá, 216
_Ordines_ for ordeals, 276, 413
Ordonnance of 1254, 487, 490 of 1670, 517
Orissa, ordeals in, 258
Orleans, limit of value for duel, 147
punishment for suspicion in, 521
Bishop of, grants the duel, 162
claims jurisdiction of duel, 163
Orphans not liable to duel, 141
Ostiaks, oath-ordeal among, 259
Ostrogoths, compurgation not used, 34
judicial duel not used, 116
their use of torture, 456
Oswyn, his relics tested by fire, 316
Othlonus, case related by, 403
Otho I. favors the duel, 128
punishes refusal of duel, 131
Otho II. limits compurgation, 67
extends use of duel, 109, 118, 131
minimum limit for duel, 147
subjects the Church to duel, 155
restricts use of champions, 189
Otho of Bavaria sentenced to duel, 132
Otto Premizlas, compounding for the ordeal, 384
fees for ordeals, 416
Oudewater, scales for weighing witches, 335
Outlaws, torture of, in Iceland, 562
Outlawry for refusal of ordeal, 383
after success in ordeal, 400
Outsworn, 61
ordeal in such cases, 390
_Overcythed_, 61
Owner of slaves (see _Master_).
_Pabulum probationis_, 339
Pachymere, George, describes the ordeal, 299
Pain, insensibility of witches to, 556
methods of acquiring insensibility, 408, 557
Palencia, council of, 1322, prohibits ordeals, 424
Palermo, abuse of torture, 587
Pallor may justify torture, 537
_Panis conjuratio_, 339
Papacy, its opposition to the duel, 207
it opposes the ordeal, 409, 414
its final assault on the ordeal, 417
Paper with names of accused submitted to ordeal, 398
Pardon, promise of, in witch-trials, 558
_Parikyah_, 269
Paris, church of, its liability to duel, 157, 159
council of, 1212, restricts the duel, 209
Parker and Vaughan, duel of, 242
Parlement of Paris rarely prescribes compurgation, 76, 77
extension of its jurisdiction, 220
discourages the duel, 224
on lie as preliminary to duel, 229
its right to grant the duel, 230
forbids ordeal for witchcraft, 330
cases of torture before, 491
Parliament, English, rejects the Roman law, 566
declines to abrogate the duel, 244
debate on appeal of death, 245
Parricide, red-hot iron ordeal for, 291
punished with iron bands, 377
Parsis, ordeal among the, 265, 295
_Partidas las Siete, jura de juicio_ in, 22
privilege of bishops’ oaths, 36
negative proofs rejected, 74, 424
use of champions, 195
restrictions on duel, 214
regulation of torture, 462
Partial confession, 46
Pascal I. clears himself by compurgation, 36
Paterculus, account of duels ascribed to, 112
_Paterfamilias_, authority of, 444
Paternal kindred as compurgators, 45
Paternity, proved by compurgation, 55
by water ordeal, 285
by iron ordeal, 294
by recognition, 381
torture to discover, 561
_Patræ_, Hellenic, 15
Patriarchate of Constantinople, test of, 313
Patricians exempt from torture in Rome, 438
tortured by Messalina, 439
Patrick, St., restricts judicial duel, 109
perjury on his relics, 374
Patron, freedman not tortured against, 442
Paul, St., his Roman citizenship, 440
Paulus Jovius on Russian torture, 509
Peacham’s case, torture in, 568
Peasants, their right to the duel, 148
champions not allowed, 193
accused, can choose ordeal, 387
Pedro the Cruel, compurgation in his _Fuero_, 80
Pedro III. of Aragon challenged by Charles of Anjou, 105
Pedro IV. (Aragon) grants duel to Thomas Felton, 229
Peers of accused as conjurators, 43
Pehlvi, the ordeal in, 266
_Peine forte et dure_, 574
Pelagius I., his purgatorial oath, 28
Penance for perjured oaths, 30
for priest engaging in duel, 156
for the _sortes sanctorum_, 354
Penitentials, the, on oaths, 29
Penniwinkis, torture of, 573
Pennsylvania, bier-right in, 367
Pepin le Bref orders ordeal of cross, 336
_Peregrina judicia_, 418
Périgord, secrecy of trials forbidden, 496
Perjurers sent to ordeal, 392
Perjury, degrees of, 29
penance for, 30
retribution for, 31
punishment of, 168
by demoniacal possession, 372
conjurators liable for, 63
temptation to, in compurgation, 85
duel used for its suppression, 120
defeat in duel is equivalent to, 167
divine punishment of, in India, 267
allowed with sufficient motive, 268
ordeal of cross for, 337
Persians, ancient, ordeals among, 265
Peru, fees for torturing in, 511
Pescara, abbey of, duel adjudged to, 157
Peter, St., his assistance in duel purchased, 138
oaths on his relics, 372
power of his intercession, 378
Peter, Bishop, case of, 65, 390
Peter Cantor denounces the duel, 162, 207
argues against ordeals, 310, 401, 418
on refusal of ordeal, 411
on fees for ordeals, 416
Peter Bartholomew, his fire ordeal, 308
Petrobatalla of Soavo, 196
Petrus Igneus, his fire ordeal, 305
Phelipot de Monine, case of, 501
Philadelphia, belief in bier-right, 368
Philippe II. (France) enforces the _lex talionis_, 170
regulates weapons in duel, 176
his charter to Tournay, 54, 202, 386
restricts use of ordeals, 421
Philippe le Hardi allows duels, 222
Philippe le Bel prescribes compurgation, 77
represses the duel, 222
his Ordonnance of 1306, 167, 223
remonstrates against torture, 486
Philippe le Long exempts Jews from duel, 149
duel becoming obsolete, 228
prohibits secrecy of trials, 496
Philippe de Valois restricts abusive appeals, 228
Philip II. (Spain), his torture of Don Carlos, 468
regulates torture in Flanders, 521
Philip of Alsace, his charters, 202
Philippe le Bon abolishes the duel, 231
Philippines, ordeals in the, 257
Philotas, his torture, 433, 448
Phocion threatened with torture, 433
_Phratriæ_, Hellenic, 15
Piacenza, disappearance of duel in, 236
Picardy, use of duel in, 227
Piedmont, bier-right in, 365
perjury followed by death, 372
Pietro, Bishop of Florence, convicted by ordeal, 305
Pilgrim, torture of, in Bavaria, 473
Pisa, duel limited in, 200
Piso, conspiracy of, 437
Pitto, his duel with Adalulf, 113
Pius IV., his trial of Cardinal Caraffa, 541
Pius V. orders torture to discover accomplices, 516
Plaintiff (see also _Accuser_).
value of his oath, 98
obliged to accept the duel, 140, 141
punishment of defeated, 167
can demand ordeal, 386
Plantagenets endeavor to use torture, 565
Plead, torture for refusal to, 541
punishment for, 574
Plebeian ordeals, 292
Ploughshares, red-hot, ordeal of, 287, 289
Plouvier and Mahuot, duel of, 232
Poison ordeals in Africa, 254
in Madagascar, 256
among the Khonds, 258
Bitter Water among Hebrews, 262
in Greece, 270, 375
in India, 375
Poisoning, duel necessary in cases of, 144
red-hot iron ordeal for, 291
use of torture for, in Rome, 439
Poitiers, council of, 1100, on simony, 66
Poland, _wer-gild_ in, 16
prolonged use of compurgation, 83
duel abolished, 239
torture introduced, 509
modern use of torture, 588
Polus, Philippe, case of, 555
Pons of Andaone, his improvised ordeal, 285
Popes, their opposition to the duel, 207
to the ordeal, 409, 414
they prohibit the ordeal, 417
Poppo, Bishop, converts the Danes by the ordeal, 295
_Præjuramentum_, 95
_Prauda jeliezo_, 274
Prayer before duel efficacious, 138
preliminary to ordeal, 280
escape from ordeal by, 298
in fire-test of relics, 315
Pre-Aryan races of India, ordeals of, 258, 291, 344
Precautions before duel, 138
against magic arts in ordeal, 407
Prelates as temporal seigneurs, 161
assert jurisdiction over the duel, 162
their interest in ordeals, 415
liable to ordeal, 417
Prerogative, royal, torture under, 567
Presles, Raoul de, his torture, 494
Pressing to death, 574
Previous offences, torture to discover, 501
in Germany, 546
Pricking for witches, 571
Priest, hand of, oath taken on, 30
Priests (see also _Clerics_).
disculpatory oaths of, 28
number of conjurators for, 36, 43
their oaths, 36
penance for engaging in duel, 156
administration of ordeals by, 276, 409
sinful, warning of Eucharist, 346
the ordeal part of their functions, 413
their control of the ordeal, 414
their influence augmented by ordeals, 417
forbidden to minister in ordeal, 419
their exemption from torture in Rome, 438
torture the slaves of their churches, 554
Privileges of administering ordeals, 415
_Procès ordinaire_ and _extraordinaire_, 499
Professional champions, 184
Profits of jurisdiction over duel, 218
derived from ordeals, 415
Proof required of accuser, 74
Property acquired by duel, 111
Dante approves of, 211
Prosecutor to be present at ordeal, 405
Protestant clergy degraded before torture, 527
Prussia, ordeals introduced by the Teutonic knights, 423
torture restricted, 579
still used, 582
Prudentius, his description of tortures, 449
Pselli, ordeal to prove legitimacy, 273
Psillus seeds, 408
Pseudo-Isidor on clerical immunity, 414
Publicity of criminal procedure, 471, 496
withdrawn in inquisitorial process, 513
Publius Syrus, his estimate of torture, 447
Punishment of conjurators, 64
of defeated witnesses, 120
for refusing duel, 131
of default in duel, 144, 145, 173
of defeat in duel, 167
of defeated champions, 184
of hired champions, 191
ordeal as, 391
torture as, 579
without conviction, 519, 528
for refusal to plead, 574
corporal, none in Barbarian laws, 451
_Purgatio canonica_, 37
_Purgatio vulgaris_, 282
Purgatorial power of oaths, 22
_Purrikeh_, 269
Pyrrhus, his indestructible toe, 314
Quæstors, their functions as torturers, 444
Quarrel over compurgation, 39
Quercy, secrecy of trials forbidden, 496
_Question avec réserve des preuves_, 518
_définitive_ or _préalable_, 515, 517, 547
not allowed in Rome, 445
used in Massachusetts, 569
in Denmark, 562
abolished in France, 585
_ordinaire_ and _extraordinaire_, 516
_préparatoire_, 515, 517
abolished in France, 585
Quintilian, his estimate of torture, 447
Quintus Curtius, his estimate of torture, 448
_Rachinborgs_, 53
_Radenicht_, 47
Raguald, code of, torture not used in, 563
_Raith_, 38
_Raithmen_, 39
their character, 45
their oath, 60
Rajmahal, hill-tribes of, 14
ordeals in, 258
red-hot iron ordeal, 291
ordeal of salt, 344
Ramayana, ordeal in, 267
Ramgur, ordeal of endurance at, 339
Ramon de Peñafort, his definition of duel, 117
condemns the duel, 209
denounces ordeals, 420
Rank, distinction of, in duel, 141, 149
prevents torture under Wisigoths, 460
high, entitles to use of champions, 194
Raoul de Caen on lance of St. Andrew, 309
Raoulin du Pré, torture of, 500
Rape, duels of women for, 153
Ratification of confession under torture required, 463, 482
in France, 514
of evidence given under torture, 542
Ratisbon, compurgation in, 80
exempted from duel, 204
Diet of, adopts Caroline Constitutions, 524
Raymond d’Agiles on lance of St. Andrew, 309
Raymond Bernard of Foix, his duel, 222
Rebellion, torture retained for, in Prussia, 579
Receiver and thief, duel between, 136, 171
Recipe for unguent against fire, 408
Records of court altered by the duel, 135
_Recreantise_, 168
Red-hot iron ordeal—
in Ethiopia, 256
in Madagascar, 257
among the Khonds, 258
among the Arabs, 264
in Greece, 270
among Slavs, 274
its use in Europe, 287
in India, 289
a patrician or plebeian ordeal, 291, 293
cases of its use, 294
universality of its employment, 298
used for sorcery and witchcraft, 300, 409
miraculous cases, 301
used in cases of heresy, 411, 419
Red water, ordeal of, 254
Redemption of hand for compurgators, 64
for champion, 168
Reduplicated oaths, 28
Refusal of duel, penalty for, 131
of ordeal, burning for, 411
to plead, torture for, 541
Reginger accuses Henry IV., 133
Regulations of the duel, 166
Reims, the _jusjurandum in jure_ in, 22
champions denied to witnesses, 121
restriction on champions, 194
duel in archiepiscopal court, 162
Archbishop of, convicts heretic by ordeal, 411
Council of, 1119, on compurgation, 57
sanctions ordeal, 412
in 1157, uses ordeal for heretics, 411
council of, 1408, on torture, 505
Reinward of Minden, his murder, 363
Relics, importance of, in oaths, 29
necessary in Wales, 30
not required at the gallows, 563
oaths on, 372
tested by hot-water ordeal, 283
tested by fire, 314
Remy of Dorchester cleared by the ordeal, 295
Réné of Lorraine grants the duel, 233
Reparation of insults to champions, 188
Repentance secures escape in ordeal, 297, 310, 402
Repeated accusations, 45
Repetition of torture illegal in Castile, 466
three times in Britanny, 504
forbidden in France, 513, 517
practised in France, 515
authorized, 529
unlimited, 500
for retracted confession, 463, 548
Report, common, justifies torture, 537
Representation in succession, 129
Repute, liability to ordeal depends upon, 384, 388, 392
Reserving the evidence, 519
Responsibility of accuser, 384, 385, 386, 440, 445, 446, 449, 458, 460
of conjurators, 64
of judge, 458, 460, 465, 467, 507, 515, 523, 533, 565
of the kindred, 14, 18, 19
Restoration, torture under, in Spain, 583
Restrictions on the duel, 140
on use of champions, 189
on torture eluded, 529
Results of ordeal in doubt, 405
Retraction of confession in Sicilian Constitutions, 482
under torture, 463
questions concerning, 548
torture for, 522
absolves accused, 550
of evidence, witnesses tortured for, 550
Retribution for perjury, 31
Revenues derived from ordeals, 415
Reversal of judgment, penalty of, 124, 126
Rhine, ordeal of the, 273
Rhodians, use of torture by, 433
Rice, swallowing, as an ordeal, 258
Richard I. at the funeral of Henry II., 360
torture of his page, 474
Richard II. challenges Charles V., 106
Richardis, Empress, undergoes the ordeal, 293
_Richstich Landrecht_, on use of lawyers, 70
appeal from judgment, 127
duel necessary in homicide, 142
infamy of champions, 188
ordeal for convicts, 393
ordeals in 14th century, 424
no allusion to torture, 480
Rickius on hot-water ordeal, 283
on cold-water ordeal in witchcraft, 329
on ordeal of balance, 335
Riculfus tortured by Fredegonda, 455
Riga, its merchants exempted from the duel, 204
Rights connected with the duel, 219
Riom exempted from duel, 203
Ripuarian Laws, duel in, 113, 118
fire ordeal used, 305
ordeal of the lot, 353
ordeal in failure of compurgation, 390
Risbach, council of, 799, prescribes iron ordeal, 291
Rituals of ordeals, 276, 394, 413
Robbers not to act as champions, 186
Robbery, torture for, in Prussia, 579
Robert the Pious, his notion of perjury, 31
forbids ordeal of Eucharist, 349
Robert III. (Scotland), torture not used under, 572
Robert Curthose tests his sons by the ordeal, 294
Robert the heretic convicted by ordeal, 411
Rodolph I. limits the duel, 205
his charter to Styria, 213
intervenes against torture, 476
Rodolph II. confirms privilege of Lorraine, 238
Rodriguez de los Puertos, case of, 540
Roger of Naples, his charter to Bari, 201
Roman law, grades of proof in, 21
importance of oaths in, 21
its influence on compurgation, 72
rejects negative proofs, 74
its centralization, 78
its influence on the duel, 211
its influence on ordeals, 426
its regulations of torture, 435
its influence on the Goths, 456
its influence in Germany, 524
its influence in Scotland, 572
rejected in England, 566
Romans, traces of ordeals among, 270
Rome, guarantees of oaths, 26
oaths of priests in, 36
council of, 384, condemns torture, 477
Rosbach, Emerich von, his work on criminal law, 525
Rotharis, his law on compurgation, 47
forbids withdrawal of confession, 52
prescribes the judicial duel, 113
restricts the judicial duel, 114
Rotruda, St., her relics tested with fire, 316
Roumania, modern use of torture, 588
Royal courts not liable to appeal, 126
_Ruaille_, 168
Rumor suffices to justify torture, 537
Russia, the _Mir_, 15
_wer-gild_, 15
early use of duel, 110
no limitation of weapons, 178
duels with foreigners prohibited, 178
use of champions, 195
exemption of German traders, 204
duel abolished, 238
use of ordeals, 274
water and iron ordeals, 292
converted by ordeal of fire, 310
household ordeal for theft, 334
bier-right, 359
ordeal in all cases, 386
for accuser, 389
torture introduced, 509
abolished, 581
used in political cases, 587
Sachentages, 477
_Sachsenspiegel_—
value or purgatorial oaths, 23
compurgation, 81
appeals from judgment, 126
limitations on the duel, 141
difference of rank, 151
champions for the dead, 152
guardians must provide champions, 153
penalty for defeat in duel, 171
penalty for default in duel, 173
weapons provided for the poor, 175
advantages equally divided, 177
regulations of use of champions, 181
disabilities of champions, 188
duel condemned by Gregory XI., 210, 420
use of hot-water ordeal, 283
accused selects the ordeal, 292, 383
land titles settled by ordeal, 324
ordeal for convicts, 393
no allusion to torture, 480
_Sachsische Weichbild_—
formula of oath, 26
purgatorial oath of father, 41
compurgation, 81
kinship an impediment to duel, 141
wounds sufficing for duel, 142
difference of rank, 151
penalty for defeat in duel, 171
penalty for default in duel, 173
use of champions, 181
infamy of champions, 187
hiring of champions forbidden, 190
duel only in criminal cases, 204
the dead cleared by ordeal, 294
ordeal for convicts, 393
_Sacramentales_ (see _Conjurators_).
Sacrifices as guarantee of oaths, 26
Sacrificial ordeals, 258
_Saighi_, 18
St. Adrian of Zala, abbey of, 157
St. Aignan, chapter of, challenges a knight, 159
St. Albans, abbey of, its claims for the duel, 162
St. Andrews, bishop of, exempted from duel, 159
witch-pool of, 330
St. Aubin, abbey of, its duel, 158
St. Bascul, council of, 395
St. Bonnet, customs of, 219
St. Brieuc, Bishop of, orders the duel, 164
St. Disier, torture not used in, 497
St. Martin-des-Champs, use of torture, 499
St. Omer, its traders exempted from the duel, 204
Saint-Pé, abbey of, its fees for ordeals, 415
St. Quentin, challenging of courts, 124
council of, 1235, complains of St. Louis, 217
St. Remy, abbey of, decrees the duel, 163
St. Sergius, case of priory of, 137
St. Sever, abbey of, gains land by ordeal, 323
St. Vaast d’Arras, abbey of, 164
Saints’ tombs, oaths on, 372
Salaried champions, 192, 196
Salic law, use of compurgation in, 34
number of compurgators, 42
compurgation in default of testimony, 52
penalties of conjurators, 64
accusatorial conjurators, 94
judicial duel in, 112, 118
ordeal of hot water, 274, 282
hot-water ordeal for Antrustions, 323
enforcement of the ordeal, 383
compounding for the ordeal, 384
ordeal in failure of compurgation, 390
torture of slaves, 452
Salisbury, Bishop and Earl of, duel between, 139
Salt, blessed, used in ordeal, 281
lumps of, used as ordeal, 257
Salvation, exclusive, results of belief in, 589
Salzburg, council of, 799, prescribes the ordeal, 409
Samaritan legend of fire-test, 314
Samoa, punishment of perjury, 374
Samoiedes, oath ordeal among, 259
Sanballat, his triumph in fire-test, 314
Sancar, his ordeal, 290
Sanctio of Orleans, his trial for simony, 61
Sand-bag used in duels, 244
_Sandemend_, 562
Sanila and Bera, duel of, 117
Sapor I., his religious reforms, 267
_Saraad_, 55
Saracens, duels with Christians forbidden, 151
Saragossa, council of, 592, tests relics by fire, 315
Sardinia, perjury on relics, 374
Sassanids, ordeals under the, 267
Sassy-bark, ordeal of, 254
Satan, aids witches in ordeals, 300, 327, 328, 332
in torture, 555
_Satane_ ordeal, 258
_Sathee_, 344
Savonarola, his _Sperimento di fuoco_, 311
Saxon laws (see also _Sachsenspiegel_)—
purgatorial oaths in, 23
reclamation of stolen horse, 26
judicial duel in, 114
Saxons offer duel to Luitzes, 130
Saxony, torture in 1130, 474
no defence allowed to accused, 544
exile for retracted confession, 549
abolition of torture, 580
Sayn, Count, his compurgation, 89
Scandinavian nations, torture not used by, 562
Scavenger’s Daughter, the, 569
_Scheingehen_, 365
Schoolmen on duel and ordeal, 209
_Schwabenspiegel_, value of oaths, 24
purgatorial oath of father, 41
compurgation retained, 80
faith in judgment of God, 102
judges must be vigorous men, 123
appeals from judgment, 126
theory of guilt, 136
limitations on the duel, 141
difference of rank, 150
cripples must provide champions, 152
duels of women, 153
penalty for defeat in duel, 171
penalty for default in duel, 173
penalty of bail of defaulter, 174
disabilities of champions, 188
hired champions forbidden, 190
use of hot-water ordeal, 283
accused selects the ordeal, 292, 383
ordeal in default of evidence, 387
for convicts, 393
no allusion to torture, 480
Schwartzenberg challenges von Hutten, 238
Schwerin, Synod of, condemns the duel, 210
Scialoja, his work on torture, 525
Scipio, oath administered by, 271
Scober, James, a witch-pricker, 571
Scone, abbey of, its jurisdiction, 162
Scotland, use of compurgation, 34
selection of conjurators in, 44
compurgation in default of evidence, 53
compurgation for the aged, 57
compurgation retained, 82
first evidence of duel in, 162
champions as witnesses, 183
use of champions, 192
charters exempting from duel, 201
restrictions on duel in towns, 203
persistence of duel, 239
cold-water ordeal for slaves, 323
cold-water ordeal for witchcraft, 330
cases of bier-right, 361
bribes in ordeal forbidden, 406
ordeals disused, 421
use of torture in, 572
abolition of torture, 574
witch-burning in 1722, 575
Scottish Marches, duel universal, 145
liability of clerics to duel, 158
death does not release from duel, 174
Scourging as torture, 466, 467
a torture for children, 528
for retracted confession, 549
Scribonius on cold-water ordeal in witchcraft, 327
_Scuz iarn_, 288
Sebakemsauf, violation of his tomb, 430
Secrecy of inquisitorial process, 496, 513, 546
_Secta_, 84, 96
Secular law, exemption from, for clerics, 414
jurisdiction of prelates, 161
legislation against ordeals, 421
Security required of combatants, 173
_Seguidors_, 51
Seigneur, his power over the villein, 490
Sejanus, plot of, 435
Selection of compurgators, 38
of mode of compurgation, 383
Selingenstadt, council of, 1023, prescribes the ordeal, 410
Semites, ordeals among, 260
torture among, 430
_Semperfri_, 150
Senan, St., his golden bell, 397
Senchus Mor, duel prescribed in, 109
Senckenberg reprints Zanger’s treatise, 578
Senlis, case of torture in, 491
Sens, Archbishop of, compelled to duel, 159
Sentence of torture, appeals from, in Castile, 465, 467
consultation over, in France, 507, 513
appeal from, in Germany, 545
deliberation required for, 547
its revision in Saxony, 580
Sepulture denied to duellists, 207, 210
Serfs allowed to bear testimony, 122
cannot challenge freemen, 140
and master, no duel between, 146
duels between, 149
cold-water ordeal for, 322
Servia, survival of the duel, 239
Servitude must be proved before torture, 438
Severity of ordeal, 394
of torture, limitations eluded, 532
of the strappado, 543
Severus, Sept., on evidence of slaves against masters, 444
_Sexhendeman_, 47
Shadrach, Mesach, and Abednego, their ordeal, 304
Shakespeare, his description of bier-right, 360
Shaving of witches to neutralize charms, 556
Shaving, sin of, in laymen, 403
Shells used in ordeal, 257
Sheriff selects compurgators, 48
his presence required at ordeal, 406
Shower-bath, punishment of, 510
Shrewsbury, Countess of, her case, 570
Shrift of combatant, 242
Shrines of saints, oaths on, 372
_Shu-king_, its theo-philosophy, 252
Siawush, fire ordeal of, 266
Sicily, modern use of torture, 587
_Sicularum Constitutiones_—
no compurgation in, 75
defendant allowed choice of weapons, 177
champions as witnesses, 183
punishment of defeated champion, 185
champions provided at public expense, 190
severe restriction on duel, 212
ordeals prohibited, 422
use of torture, 482
Sieve-driving, ordeal of, 358
Sigurd Thorlaksson, case of, 404
Silanus, prosecution of, 443
Silence under torture does not acquit, 519
Simancas on compurgation for heresy, 89
on universality of torture, 468
disapproves deceit in witch-trials, 559
Simon de Montfort limits the duel, 208
Simony, trials for, 59, 62, 350
compurgation for, 92
Simple ordeals, 278, 287, 391
Simplicius, St., of Autun, his ordeal, 305
Sinking requisite in cold-water ordeal, 318
Sins, previous, cause failure in duel, 137
cause failure in ordeal, 403
Sita, ordeal undergone by, 267
Skevington, Sir Wm., invents a torture, 569
_Skirsla_ or ordeal of turf, 274
Slavs, communities among, 15
prolonged use of compurgation, 83
use of judicial duel, 110
ordeals used by, 274
of Mecklenburg, ordeal introduced, 277
Slaves cleared by master’s oath, 22
ordeal in default of master’s oath, 390
their right to the duel, 148
ordeal for, in Rome, 272
red-hot iron ordeal for, 291, 292
fire ordeal for, 306
cold-water ordeal for, 322
ordeal of the lot, 353
subjected to ordeal, 394
as vicarious victims in ordeal, 396
torture reserved for, in Greece, 433
their evidence requires torture in Greece, 433
tortured as witnesses in Rome, 441
restriction on, 445, 446
by their owners in Rome, 444
torture of, under Ostrogoths, 457
under Wisigoths, 458
under Barbarians, 451, 452
in civil suits in Germany, 530
of churches tortured by priests, 554
unprotected in Iceland, 562
not tortured against their masters in Rome, 442
except in treason, 443
other exceptions, 444
under Wisigoths, 459
in Spain, 464
tortured, damage paid to master in Rome, 445
among the Barbarians, 452
in Castile, 468
thief sold as, in Wales, 564
Slavery, its extent in Greece, 433
its extent in Rome, 441
Slavonia, use of compurgation, 84
Sleeplessness, torture of (see _Vigils_).
Smith, Sir Thos., on use of torture, 567
Snake-fang, ordeal of, 254
Soaper’s case, in appeal of death, 247
Soavo, champion of, 196
Soest, accusatorial conjurators in laws of, 97
exempted from duel, 202
Soissons, Bishop of, uses ordeal for heretics, 410
Chapter of, duel in its court, 224
council of, 853, uses the ordeal, 410
the vase of, 450
Solidarity of the family, 14
in Lombard Law, 48
Somali, ordeals among the, 256
Son to be tortured in presence of father, 543
his evidence against parents in witch-trials, 554
Sophocles, ordeals enumerated by, 270
Sorcerers, loss of weight by, 326, 335
tortured in Rome, 439
their punishment by Theodoric, 457
their evidence not received, 523
unconscious, 553
Sorcery forbidden in duels, 139
in ordeal, 407
duel in trial for, 230
red-hot iron ordeal for, 291, 300, 409
use of cold-water ordeal, 325
torture in accusations of, 469
used to justify torture, 539
detention after torture without confession, 551
torture necessary in trials for, 554
_Sortes sanctorum_, 354
Southampton, ordeal of Bible and key, 357
South Carolina, compurgation in, 88
appeal of death in, 247
Spain (see also _Wisigothic Laws_).
_jusjurandum in jure_, 22
purgatorial oaths, 24
simplicity of oaths, 32
use of compurgation, 34, 75
selection of compurgators, 49
compurgation of Alfonso VI., 67
negative proofs rejected, 74
compurgation in the _Fuero Viejo_, 80
duel among Celtiberians, 108
introduction of Roman ritual, 132, 313
Catalonia, limitation on duel, 146
Aragon, limit of value for duel, 148
difference of rank in duels, 151
ordeals for women, 154
use of champions, 195
charters exempting from duel, 202
restrictions on the duel, 214
use of hot-water ordeal, 281
red-hot iron ordeal, 288
paternity proved by iron ordeal, 294
Arian relics tested by fire, 315
truce of God enforced by ordeal, 323
ordeal of Eucharist, 351
bier-right, 366
ordeal for loose women, 393
escape of adulteress in ordeal, 403
decline of ordeals, 423
torture under the Goths, 458
mediæval and modern, 462
irregular use of, 476
abolished in 1811, 583
_Speculum Saxonicum_ (see _Sachsenspiegel_).
_Speculum Suevicum_ (see _Schwabenspiegel_).
_Sperimento di fuoco_ of Savonarola, 311
Spies, use of in witch-trials, 558
Spiritual courts, duel in, 155
ordeal in, 409
torture in, 510
Spoon, ordeal of the, 264
Spot, insensible, of witches, 571
Sprenger admits lawfulness of duel, 213
objects to ordeal in witchcraft, 300
no allusion to cold-water ordeal, 326
his explanation of bier-right, 369
recommends deceit, 559
_Sringa_, 375
Staff, ordeal of, 397
_Stalla hringr_, 95
Stansfield, Philip, case of, 361
_Stapfsaken_, 274
_Stare ad crucem_, 336
Stars, duel to end when they appear, 178
Starvation and cold employed as torture, 530
State questions decided by duel, 130
Statute of Gloucester, 242
Staundford, Sir Wm., on ordeals, 426
Steil, historic duel at, 129
Stephen, St., supplies champions for abbey, 157
ordeals not in his laws, 277
Stephen V. condemns the ordeal as a torture, 395
Stephen VII. condemns Formosus, 382
Stercorarian heresy proved by ordeal, 411
_Stockneffn_, 49
Stonyng’s case, torture in, 568
Strangers, fire ordeal for, 306
subject to torture in Greece, 433
Strappado, the, 466, 467
description of, 516
five degrees of, 543
Strassburg, heretics convicted by ordeal, 297, 419
Stream of water, torture of, 510
Style’s “Practical Register,” 86
Styria, duel restricted in, 212
Styx, oath of the gods on its water, 371
Suabia, use of oaths in, 32, 24
accusatorial conjurators, 98
Subico of Speyer takes ordeal of Eucharist, 348
Substitutes in the ordeal, 295, 337, 390, 398, 400
for torture, 578, 580, 582, 583
Succession, law of, decided by duel, 129
Sudra caste, oaths required of, 25
cold-water ordeal used for, 320
Suidger of Munster, his improvised ordeal, 302
Sunset, duel to end at, 178
Superstition, its persistence, 427
Surlet, Gilles, case of, 505
Suspicion, ordeal for, 388
punishment for, 519
of incontinency, compurgation for, 87
of heresy, compurgation for, 88, 90
Swaddling cloth of Christ tested by fire, 315
Swantopluck of Bohemia, his use of torture, 476
Sweden, selection of compurgators, 49
prolonged use of compurgation, 82
accusatorial conjurators, 97
red-hot iron ordeal, 287, 298
paternity proved by the ordeal, 294
fees to priest for ordeal, 416
prelates liable to ordeal, 417
ordeals prohibited, 422
torture not used in, 563
Swinefield, Bishop, his hired champion, 192
Switzerland, torture abolished, 581
Synagogues, oaths taken in, 28
Syrians, duels with Franks, 151
Szegedin, witches tried by ordeal in 1730, 332, 335
Tacitus, his account of the Germans, 112
Tacitus (Emp.) on evidence of slave against master, 444
Tahiti, ordeal in, 257
_Talio_, the, applied to the duel, 143, 169
used in Ashantee, 255
in Rome, 440
applied to accusation of slaves in Rome, 445
for accusers under Wisigoths, 459
adopted by the Church, 513
rejected in inquisitorial process, 513
Tangena nut, ordeal of, 256
Tanner on number of witch-trials, 560
Taoism, its influence in China, 252
Tarbes, Cathedral of, its revenue from ordeals, 415
Tarragona, council of, 1244, on heresy, 89
Tassilo, allusion to ordeal by, 274
Tears, inability of witches to shed, 556
Teeth, question as to, in duel, 144
Templars offer to undergo the ordeal, 299
use of torture on, 486
torture of, in England, 511
Temple, the, oaths taken in, 27
Temporal jurisdiction of prelates, 161
Tempting of God in the ordeal, 207, 411
Terouane, torture in 1127, 474
_Testes synodales_, 41
_Testimonis_, 51
Testimony (see _Evidence_).
Teutberga, her divorce, 281
Teutonic Knights introduce the ordeal, 423
Texas, torture used in, 588
Thangbrand, Deacon, 199
Thebe, people of, float in water, 326
Theft, Russian ordeal for, 334
Theodore, penitential of, on oaths, 30
Theodore Lascaris prescribes the ordeal, 299
Theodoric tries to suppress judicial duel, 115
his use of torture, 457
Theodosius I. exempts priests from torture, 438
Thibaut of Champagne, his grant to church of Châteaudun, 415
Thief and receiver, duel between, 136, 171
Thieves convicted by the duel, 135
Thomas of Gloucester, his rules of duel, 171, 241
Thomas, Christian, opposed to torture, 577
Thumb, indestructible, of Pyrrhus, 314
Thuringians, kinsmen as champions, 180
minimum limit for duel, 147
red-hot iron ordeal, 291
Tiberius, his use of torture, 435
his devices to elude the laws, 443
Tibet, hot-water ordeal in, 269
_Tiers-État_, influence of, 200
_Tiht-bysig_ man sent to ordeal, 392
Tirel, Hugues, case of, 77
Tison, Marie, case of, 585
Tithes, contested, settled by ordeal, 410
Titles to land settled by duel, 182, 197
by cold-water ordeal, 324
_Tobbach_, 18
Toledo, council of, 683, on abuse of torture, 461
Tombs of saints, oaths on, 372
Tonga, punishment of perjury, 374
Tongue, red-hot iron ordeal applied to, 264, 289, 291, 293
Tooth-relic of Buddha tested by fire, 314
Toribio, St., limits fees for torturing, 511
Torture, 429
as preliminary to compurgation, 91
ordeal as preparatory to, 329
used as torture, 394
its influence on ordeals, 426
in Egypt and Asia, 400
in Greece, 432
limitations on, in Rome, 445
estimate of evidence under, in Rome, 446
under the Barbarians, 451
its use by the Goths, 456
in mediæval and modern Spain, 462
its repetition illegal, 466
under the Carlovingians, 469
its use for extortion, 476
condemned by the Church, 477
its reappearance in 13th century, 479
unlimited repetition, 500
to discover previous offence, 501, 546
is ecclesiastical law, 511
to discover accomplices, 484, 515, 517, 546, 562, 570, 584
of witnesses, 440, 453, 459, 533, 541
its influence on judges, 534
its abuse by judges, 539
in surplusage after conviction, 546
without confession is acquittal, 551
as punishment, 579
indispensable in witch-trials, 554
witches insensible to, 556
devices to elude, 558
use of, is homicide in England, 565
to compel pleading in England, 575
its decline and abolition, 575
substitutes for, 578, 580, 582, 583
Toulouse, duel forbidden there, 224
exempted from torture, 495
Tournay, charter of, 54, 392
exempted from duel, 202
Tours, council of, 813, on use of chrism in ordeal, 407
council of, 925, prescribes the ordeal, 410
_Tout Lieu de S. Disier_, 497
Towel of Christ tested by fire, 316
Towns, champions of, 196
Tower of London, torture in, 569
Townships, responsibility of, 42
Trade, its influence adverse to duel, 204
Trahent, André de, case of, 397
Trajan on evidence of slave against master, 443
Trallian laws, 15
Transylvania, witches tried by ordeal, 322
Travancore, ordeal abolished in, 284
Treason, duel necessary in cases of, 144
torture for, in Rome, 435, 438, 443
its extension in Rome, 436, 437
torture for, in Spain, 459, 463
torture of witnesses in cases of, 541
torture for, in Denmark, 562
torture for, in England, 568
nobles not tortured for, in England, 570
torture retained for, in Prussia, 579
Trebinje, ordeal for witches in 1857, 333
Trent, Bishop of, tried for simony, 62, 71
council of, prohibits the duel, 237
Trèves, Holy Coat of, 422
council of, 1227, forbids iron ordeal, 419
Treviño exempted from duel, 202
ordeals prohibited in, 424
Trial by jury, rise of, 48
by combat, 101
Tribal responsibility, 42
Tribur, council of, 895, on accusatorial conjurators, 96
prescribes the ordeal, 291, 410
ordeal for those outsworn, 390
Triple ordeals, 278, 287
_Triumviri capitales_, their functions as torturers, 444
Truce of God, enforcement of, 58, 323
_Trux iarn_, 287
Tucca, her ordeal, 271
Tudors, use of torture under, 566
Turks, divination among, 265
use of ordeal for witches, 333
Turf, ordeal of, 274
Tuscany, torture abolished, 586
_Twelfhendeman_, 47
Twins in Wales are one person, 177
_Twyhindus_, 47
Tyndareus, oath exacted by, 26
Tynemouth, priory of, its champion, 197
Uberto of Tuscany recognized by his son, 381
Ueberlingen, case of bier-right, 363
Ulpian, his estimate of torture, 446
Ulric of Cosheim, 133
Umbrians, judicial duel among, 108
Uncertainty of compurgation, 91
Unguents as protection in fire ordeals, 408
Unitas Fratrum, use of lot by, 355
United States, wager of law in, 88
appeal of death, 246
bier-right, 366
divining rod, 428
use of shower bath, 510
use of torture, 588
_Untersuchungschaft_, 582
Upstallesboom, laws of, ordeals obsolete in, 422
Upton, Nicholas, his work on the duel, 231
Urim and Thummim, 261
_Urpheda_, 550
Urraca, Queen, authorizes duel, 132
Usury, torture in cases of, 529
Uta, Queen, her compurgation, 40
Utrecht, case of fisherman of, 402
torture abandoned in, 577
_Vadiare legem_, 57
Vaisya caste, oaths required of, 25
cold-water ordeal used for, 320
Valdebran, abbey of, relic tested by fire, 317
Valence, council of, 855, represses abuse of oaths, 22
denounces the duel, 207
1248, denies counsel to accused, 487
Valenciennes, duel in 1455, 232
fees for torture in, 548
petitions for abolition of torture, 585
Valentinian I. exempts decurions from torture, 438
Valentinian II. applies _talio_ to accused slaves, 445
Valerius Maximus, his estimate of torture, 447
Vallombrosa, fire ordeal in, 305
Valtelline, limitations on torture in, 508
Value of conjuratorial oath, 62
of extorted confession, 462, 548, 550
Vannes, council of, 465, condemns the _sortes sanctorum_, 354
_Var nirang_, 266
Varieties of ordeal, 277
of torture, 536
in Greece, 434
in Rome, 449
in Castile, 465, 467
in England, 476
in Russia, 509
in France, 514, 516
in Scotland, 573
in Roumania, 588
Vasistha, ordeals unknown to, 268
Vassal and lord, no duel between, 146
Vaughan and Parker, duel of, 242
Vedas, ordeals in the, 267
Vehm-Gericht, accusatorial conjurators in, 99
Venezuela, use of torture, 583
Vengeance, legal recognition of, 13
Venice, rules for compurgation, 57
bier-right in, 365
use of torture, 507
Vercelli, Bishops of, their jurisdiction over duels, 164
Verdiersville, bier-right in, 368
Vermandois, appeals in, 125
nobles of, claim the duel, 227
Verona, council of, 983, on the duel, 131
limitation on duels, 146
penalty for defeat in duel, 169
champions appointed by the city, 189
regulations for champions, 195
ordeal of cross, 337
torture used in 1228, 481
Vestal virgins, exempt from taking oaths, 36
ordeals of, 271
Vezelai, heretics tried by ordeal, 411
Vicarious ordeals, 281, 295, 390, 398, 400
in Africa, 256
poison ordeal, 376
Vich, council of, 1068, orders the ordeal, 323
_Vidames_, 198
Vienna exempted from duel, 204
case of bier-right in, 364
Vienne, council of, 1311, case of Boniface VIII., 226
restricts torture in Inquisition, 511
Viescher, his treatise on the duel, 103
Viga Glum’s saga, 27
Vigils of Marsigli, torture of, 535, 552
insanity caused by, 588
severity of, in England, 570
severity of, in Scotland, 572
of Florence, 552
of Spain, 552
Villadiego, his description of torture,466
Village communities, 14
Villein not allowed to challenge judge, 124
and gentleman, duels between, 149
his subjection to his seigneur, 490
Villeneuve, case of torture in, 491
consuls exempted from torture, 499
Villon, his water torture, 514
Virgin Mary orders a duel, 209
Virginia, bier-right in, 366
Viry, jurisdiction of duel at, 163
_Vishanaga_, 376
Vishnu, his complicated ordeal system, 268
Vives, J. L., opposes torture, 576
Vladislas II. (Hungary) restricts the duel, 237
Vola, Zierkin von, his duel, 171
Voltaire opposes torture, 584
Volterra, Bishop of, his jurisdiction, 161
Voluntary perjury, penance for, 31
_Vomeres igniti_, 287
_Vorogeia_, 334
Vuillermoz, Guill., case of, 555
Wafer, consecrated, power of, 347
Wager of Law, the (see _Compurgation_).
its derivation, 57
Wager of Battle (see _Duel_).
Waldemar II., his Constitutions, 41
prohibits ordeal, 422
jury-trials in his laws, 562
Wales, solidarity of the family in, 15, 19
compensation for injuries, 17
responsibility for children, 20
oaths of absolution, 24
reduplicated oaths, 28
oaths on relics, 30
reverence for relics, 32
compurgation, 38
number of compurgators, 40, 44
character of compurgators, 45
compurgation supplants evidence, 55
_juramentum supermortuum_, 56
oath of conjurators, 60
judicial duel not used, 110
difference of rank in duels, 151
twins, their advantage in duels, 177
champions, reward of, 186
ordeals in suits with Saxons, 276
confession of accomplice at the gallows, 563
Wang-i, his two servants, 252
Warfare, private, among the Barbarians, 16
Warning to accused before torture, 532
Warrantors, 121
Water Ordeals (see _Hot Water_ and _Cold Water_).
Water from idol as ordeal, 344
torture, 514
torture of stream of, 509
will not receive perjurers, 319
or witches, 326
Weapons of witnesses blessed, 120
provided for pauper combatants, 175
choice of, 176
equality of, 177
Weight, loss of, by witches, 325, 334
Welf II. of Altorf subjected to ordeal, 323
Welf of Bavaria, 133
Wells, poisoning of, in France, 503
Wenceslas of Bohemia abolishes torture, 473
_Wer-gild_, 14
its character, 17
in Greece and Rome, 15
in Russia, 15
in Poland, 16
in Iceland, 18
in Ireland, 18
in Denmark, 18
in Wales, 19
of clerics, 20
among Moslem, 29
its connection with compurgation, 38
in Frisia in 14th century, 563
oath rated by, 47
Werner, J. F., defends use of torture, 578
West Prussia, ordeal for witches in, 322
Westminster, Abbey of, claims jurisdiction of duel, 162
Westphalia, accusatorial conjurators in, 97
cold-water ordeal in witchcraft, 327, 328, 331
Whipping as torture, 466
torture in cases involving, 530
Widows, exemption from duel in Bigorre, 146
torture of, among Gauls, 452
Wier on cold-water ordeal in witchcraft, 326, 328
Wife to be tortured in husband’s presence, 543
William I. (Engl.), introduces judicial duel, 115
penalty for defeat in duel, 168
William Rufus utilizes the ordeal, 295
William the Lion forbids bribery in ordeal, 406
William Clito, his privilege to St. Omer, 204
William of Ely and the Archbishop of York, 70
William of Utrecht, his ordeal of Eucharist, 351
Wills, fraudulent, torture of slaves in cases of, 443
Wilson, Christian, case of, 362
Wisigothic Laws, their authors, 458
oaths in, 22
compurgation not used, 34, 75
exclude evidence of kinsmen, 38
influence of Roman law, 116, 457
judicial duel not used, 116
judicial duel revived, 117
late introduction of ordeal, 275
ordeal preliminary to torture, 395
use of torture, 458
Witch-bridle, 572
Witchcraft, its influence on criminal law, 553
evidence of, insufficient, 554
Witches, Satan aids them in trials, 300, 555
loss of weight by, 325, 334
tortured for confession in Russia, 509
their evidence not received, 523
detected by boys with greased boots, 539
escape by revoking confession, 548
detention after torture without confession, 551
cruelties practised on, 552
their insensibility to torture, 556
Witch-mark, 571
Witchpool in Bay of St. Andrews, 330
Witch-pricking, 571
Witch-trials, red-hot iron ordeal for, 291, 300, 409
use of cold-water ordeal, 325
special ordeals for, 382
all rules set aside, 554
torture indispensable in, 555
shaving in, 556
use of deceit, 558
torture in, in England, 570
severity of, in Scotland, 572, 574
Withdrawal from duel forbidden, 144
Witikind, his duel with Charlemagne, 130
Witness, judge cannot act as, 509
Witnesses, are not conjurators, 38, 51
compurgation in default of, 52
confirmed by conjurators, 56
outweigh conjurators, 62
challenging of, 103, 120, 121
penalty of defeated, 120
come armed to court, 120
must be capable of fighting, 122
champions not allowed to, 121
champions for, 194
their protection in France, 123
seven necessary to avoid duel, 142
must offer battle, 143
defeated, lose a hand, 167
become champions, 182
champions debarred as, 187
women admitted, 228
allowed to give false evidence, 268
must be of the same race, 275
subjected to ordeal, 389
names of, given to accused in Castile, 469
examined in presence of accused, 504
contradictory, tortured together, 542
confrontation of, with accused, 517
necessary to justify torture, 523
their uselessness in witch-trials, 555
torture of, in Rome, 440
unknown to Barbarians, 453
practised in Castile, 464
in Milan, 506
not tortured in Piacenza, 507
tortured in Germany, 530
in modern times, 541
in advance, 542
for retracted evidence, 550
in monasteries, 560
slave, tortured in Greece, 433
restrictions on torture in Rome, 445, 446
their torture under Ostrogoths, 457
under Wisigoths, 459
Women incompetent as prosecutors, 18
admitted as compurgators, 50, 92
not received as witnesses, 122
admitted as witnesses, 228
allowed champions in duel, 152
liable to duel, 153
ordeals for, in Spain, 154
hot-water or iron ordeal for, 292
buried or burned alive in capital cases, 503
buried alive for defeat in duel, 153, 170
burnt for defeat in duel, 173
abuse of, in cold-water ordeal, 417
tortured in Rome for poisoning, 439
pregnant, not subject to torture in Rome, 446
not tortured in Spain, 463, 466
exempt from torture in Germany, 523, 528
tortured in Iceland, 561
Worms exempted from duel, 205
council of, 829, prohibits cold-water ordeal, 322
council of, 868, on ordeal of Eucharist, 348
Wounds, severity of, requisite for duel, 142
Writings tested by fire, 313
_Wunden kampffbaren_, 142
Würtemburg, torture abolished, 581
Wurzburg, council of, 1298, prohibits ordeals, 423
Yahveh-worship, its seat tested by fire, 314
York, Archbishop of, and William of Ely, 70
York, miraculous escape in ordeal, 297
Ypres, selection of compurgators, 48
exempted from duel, 201
torture not used in, 497
Zabolcs, council of, 1092, on fees for ordeals, 416
_Zadruga_, the Slavonic, 16
Zala, Abbey of, its champions, 157
Zanger, Johann, his treatise on torture, 524, 578
Zends, ordeal among, 265, 295
torture not legally used, 431
Zerbst, effective torture in, 579
Zerubabbel, his defeat in fire test, 314
Zoroaster exposed to fire ordeal, 266
converts Gushtasp by the ordeal, 295
Zug, modern use of torture, 588
Zurich, priest of, uses unconsecrated host, 345
FOOTNOTES
[1] Legg. Villæ de Arkes § xxviii. (D’Achery Spicileg. III. 608).
[2] See Pictet, Origines Indo-Européennes (Paris, 1878, T. II.
pp. 372-6; T. III. pp. 5-8), for the philological evidence of the
development of society from the family in all the Aryan nations.
[3] Vendidad, Farg. IV. 24-35 (Bleeck’s Translation, Hertford, 1864,
pp. 30-1).
[4] Manava Dharma Sastra, VIII. 295 sqq. Comp. Maine’s Ancient Law, pp.
260 sqq.
[5] Yajnavalkya, II. 272 (Stenzler’s Translation).
[6] Even among the remnants of the pre-Aryan races of India the
same customs are traceable. Early in the present century Lieutenant
Shaw described the hill-tribes of Rajmahal, to the north of Bengal,
as recognizing the responsibility of the injurer to the injured;
compensation was assessed at the pleasure of the complainant, and the
kindred of the offender were compelled to contribute to it, exactly as
among the barbarians who occupied Europe (Asiatic Researches, Vol. IV.).
[7] Dicæarchi Frag. (Didot, Frag. Hist. Græcor.).—Apollodor. Biblioth.
II. vi. 2-3.—Diodor. Siculi IV. 31.—Plut. Quæst. Græc. 46.—Maine’s
Ancient Law, p. 127.
[8] Tit. Liv. I. 26; V. 32.—Appiani de Bell. Hannibal. xxviii.—Dion.
Halicar. II. 10; XIII. 5.
[9] Esneaux, Hist. de Russie, I. 172 sqq.
[10] Jo. Herburti de Fulstin Statut. Reg. Polon. tit. _Homicid._
(Samoscii, 1597, pp. 200 sqq.). In cases, however, of homicide
committed by a _kmetho_, or serf, upon another, a portion of the
_wer-gild_ was paid to the magistrate.
[11] See an abstract of Bojisic’s work on the customs of the southern
Slavs, in the “Penn Monthly” Magazine, Phi’a, Jan. 1878, pp. 15 sqq.
[12] Gradually, however, a portion of the composition money was
attributed, under the name of _fredum_, to the king or the magistrate,
as a compensation for readmitting the criminal to the public peace.
[13] Ll. Edwardi C. xii. (Thorpe’s Ancient Laws, I. 467).
[14] Gwentian Code, Bk. II. chap. vii. §8. (Aneurin Owen’s Ancient
Laws, etc. of Wales, I. 701.)
[15] Senchus Mor, I. 259 (Hancock’s ed. Dublin, 1865).
[16] Grágás, Sect. IV. cap. cxiv.
[17] Ibid. Sect. VIII. cap. lv.
[18] Jarnsida, Mannhelge, cap. xxix.—Cf. Legg. Gulathingenses,
Mannhelgi, cap. xii.
[19] Constit. Eric. Ann. 1269 § vii. (Ludewig, Reliq. MSS. T. XII. p.
204).
[20] Dimetian Code, Bk. II. ch. i. §§ 17-31.—Bk. III. ch. iii.
§4.—Anomalous Laws, Bk. IV. ch. iii. § 11.
[21] Dimetian Code, Bk. II. chap. xxiv. § 12.
[22] Roisin, Franchises, etc. de la ville de Lille, pp. 106-7.
[23] Charta Balduini Hannoniens. (Martene, Collect. Ampliss. I. 964.)
[24] Capitul. Lib. IV. cap. 15.
[25] Concil. Tribur. an. 895, can. iv.
[26] Dimetian Code, Bk. II. chap. i. § 32.
[27] Venedotian Code, Bk. III. chap. i. § 21.
[28] The oath may be regarded as the foundation of Roman legal
procedure—“Dato jurejurando non aliud quæritur, quam an juratum sit;
remissa quæstione 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
_jusjurandum in jure_ proffered by the plaintiff to the defendant was
conclusive: “Manifestæ turpitudinis et confessionis est nolle nec
jurare nec jusjurandum referre”—Ibid. l. 38.
[29] Ll. Wisigoth. Lib. II. Tit. ii. c. 5.
[30] Concil. Valentin. ann. 855, c. xi.
[31] Ll. Ripuar. Tit. XII. § 1; ix. 17.—Capit. Ludov. Pii. ann. 819
add. ad L. Salicam, c. 15.—Capitul. L. IV. c. 29.—Ivonis Decr. XVI. 239.
[32] De presbytero vero, si quilibet sacerdos a populo fuerit
accusatus, si certi non fuerint testes qui criminis illati approbent
veritatem, jusjurandum erit in medio, et illum testem proferat de
innocentiæ suæ puritate cui nuda et aperta sunt omnia; sicque maneat in
proprio gradu.—Gregor. PP. II. Epist. XIV. ad Bonifacium. Cf. Hincmari
Remens. Epist. XXII.
[33] Thus Alfonso the Wise endeavored to introduce into Spain the
mutual challenging of the parties involved in the Roman _jusjurandum
in jure_, by his _jura de juicio_ (Las Siete Partidas, P. III. Tit.
xi. l. 2. Cf. Espéculo, Lib. V. Tit. xi. ley 2). Oddly enough, the
same procedure is found incorporated in the municipal law of Rheims
in the fourteenth century, probably introduced by some over-zealous
civilian; “Si alicui deferatur jusjurandum, necesse habet jurare vel
referre jusjurandum, et hoc super quovis debito, vel inter quasvis
personas”—Lib. Pract. de Consuetud. Remens. § 15 (Archives Législat. de
Reims, P. I. p. 37). By this time, however, the oaths of parties had
assumed great importance. In the legislation of St. Louis, they occupy
a position which was a direct incentive to perjury. Thus he provides
for the hanging of the owner of a beast which had killed a man, if
he was foolish enough not to swear that he was ignorant of its being
vicious. “Et si il estoit si fox que il deist que il seust la teche de
la beste, il en seroit pendus pour la recoignoissance”—Établissements,
Liv. I. chap. cxxi.
A charter granted to the commune of Lorris, in 1155, by Louis le
Jeune, gives to burghers the privilege of rebutting by oath, without
conjurators, an accusation unsupported by testimony—Chart. Ludovic.
junior. ann. 1155, cap. xxxii. (Isambert, Anciennes Lois Françaises
I. 157.) And, in comparatively modern times, in Germany, the same
rule was followed. “Juramento rei, quod purgationis vocatur, sæpe
etiam innocentia, utpote quæ in anima constitit, probatur et indicia
diluuntur;” and this oath was administered when the evidence was
insufficient to justify torture. (Zangeri Tract. de Quæstionibus, cap.
iii. No. 46.) In 1592, Zanger wrote an elaborate essay to prove the
evils of the custom.
It is a noteworthy fact, however, that of all the medieval codes the
one least affected by the influence of the Roman law was the Saxon,
and in this the purgatorial power of the oath was admitted to a degree
unknown elsewhere. The accused was allowed in certain cases to clear
himself, however notorious were the facts, and no evidence was admitted
to disprove his position, unless it were a question of theft, and the
stolen articles were found in his possession, or he had suffered a
previous conviction. (Jur. Provin. Saxon. Lib. I. Art. 15, 18, 39; Lib.
II. Art. 4, 72.) Even this was an improvement on the previous custom,
if we may believe Cardinal Henry of Susa, who denounces the practice in
Saxony and Dacia, where a man can clear himself, even if he holds the
stolen article in his hand and the loser has ample witnesses present
(Hostiensis Aureæ Summæ Lib. V. De Purg. canon. § 3). This irrational
abuse was long in vogue, and was denounced by the council of Bâle in
the fifteenth century (Schilter. Thesaur. II. 291). It only prevailed
in the north of Germany; the Jus Provin. Alaman. (cap. ccclxxxi. §
3), which regulated Southern Germany, alludes to it as one of the
distinguishing features of the Saxon code.
So, also, at the same period a special privilege was claimed by the
inhabitants of Franconia, in virtue of which a murderer was allowed to
rebut with his single oath all testimony as to his guilt, unless he
chanced to be caught with the red hand—Jur. Provin. Alaman. cap. cvi. §
7.
[34] “Ego solus jurare volo, tu, si audes, nega sacramentum meum et
armis mecum contende.”—Ll. Ripuar. Tit. IX. § 3.
[35] Laws of Wihtræd, cap. 16-21. Comp. LI. Henrici I. Tit. lxiv. § 8.
[36] Anomalous Laws, Book IV. chap. i. § 11.
[37] Jur. Provin. Alaman. cclxiv. 7, 8.
[38] Fuero Viejo, III. ii.
[39] Book VII. 109-13 (after Delongchamps’ translation).
The corresponding passage in the Institutes of Vishnu (VIII. 20-3)
renders this somewhat more intelligible. When the judge swears the
witness—
“A Brahmana he must address thus, ‘Declare.’
“A Kshatriya he must address thus, ‘Declare the truth.’
“A Vaisya he must address thus, ‘Thy kine, grain, and gold (shall yield
thee no fruit if thou wert to give false evidence).’
“A Sudra he must address thus, ‘Thou shalt have to atone for all
(possible) heavy crimes (if thou wert to give false evidence).’”
[40] Institutes of Vishnu, IX. (Jolly’s Translation).
[41] Iliad. XV. 36-40.—Luciani Philopseud. 5; Cataplus 11.
[42] LI. 3, 4, D. XII. ii.
[43] Volundarkvida 31 (Thorpe’s Sæmund’s Edda). A curious remnant of
this is seen in the burgher law of Northern Germany in the thirteenth
century, by which a man reclaiming a stolen horse was bound to kick its
left foot with his right foot, while with his left hand he took hold
of the animal’s ear and swore by its head that it was his.—Sachsisches
Weichbild, art. 135.
[44] Deuteron. xxi. 4-8.
[45] Pausan. III. xx. 9.
[46] Islands Landnamabok IV. 7; II. 9 (Ed. 1774, pp. 299, 83).
[47] Keyser’s Religion of the Northmen, Pennock’s Translation, p. 238.
[48] Gen. xv. 9-17.—Jer. xxxiv. 18-19.—I. Kings, viii. 31-2.—Chrysost.
Orat. adv. Jud. I. 3.
[49] Anastas. Biblioth. No. LXII.
[50] Ecgberti Dialog. IV. (Haddan and Stubbs’s Councils of Great
Britain, III. 405).
[51] Gregor. Turon. Hist. Lib. V. cap. xlix. Gregory complains that
this was contrary to the canons, of which more hereafter.
[52] Dooms of Alfred, cap. 33.
[53] Dimetian Code, Bk. II. chap. vi. § 17 (Owen, I. 431).
[54] Fleta, Lib. II. cap. lxiii. § 12. The Moslem jurisprudence has
a somewhat similar provision for accusatorial oaths in the Iesameh
by which a murderer can be convicted, in the absence of testimony or
confession, by fifty oaths sworn by relatives of the victim. Of these
there must be at least two, and the fifty oaths are divided between
them in proportion to their respective legal shares in the Deeyeh,
or blood-money for the murder.—Du Boys, Droit Criminel des Peuples
Modernes, I. 269.—Seignette, Code Mussulman, Constantine, 1878, p. lvi.
[55] Fredegarii Chron. cap. xcvii.
[56] Excerpt. de Libro Davidis No. xvi. (Haddan and Stubbs, I. 120).
[57] Si in manu episcopi ... aut in cruce consecrata perjurat III.
annos pœniteat. Si vero in cruce non consecrata perjurat, I. annum
pœniteat; si autem in manu hominis laici juraverit nihil est.—Theodori
Cantuar. Pœnit. cap. xxiv. § 2. (Thorpe, Ancient Laws, vol. II. p. 29.)
Cf. Haddan and Stubbs, III. 423; Wasserschleben, Bussordnungen, pp.
190, 226.
[58] Pœnitent. Pseudo-Gregor. III. vii. (Wasserschleben, p. 539).
[59] Pœnitent. Cummeani cap. V. § 3 (Wasserschleben, p. 477).—Gratiani
Decr. c. 2. Caus. XXII. Q. v. In the fourteenth century this was
repeated in the penitential canons of Astesanus (§ 23), which continued
until the Reformation to be a recognized authority in the confessional.
Astesanus, however, explains that the obligation is equal to God,
but unequal as regards the church, whence the difference in the
penance.—Astesani Summa de Casibus Conscientiæ, P. I. Lib. I. Tit.
xviii.
[60] Anomalous Laws, Book IX. chap. v. § 3; chap. xxxviii. § 1 (Owen,
II. 233, 303). The definition of relics, however, was somewhat
vague—“There are three relics to swear by: the staff of a priest; the
name of God; and hand to hand with the one sworn to.” Bk. XIII. ch. ii.
§ 219 (Ibid. II. 557).
[61] Regino de Eccles. Discip. Lib. I. cap. ccc. See also Jur.
Provin. Saxon, Lib. III. c. 41. Notwithstanding the laxity of these
doctrines, it is not to be supposed that the true theory of the oath
was altogether lost. St. Isidor of Seville, who was but little anterior
to Theodore of Canterbury, well expresses it (Sententt. Lib. II.
cap. xxxi. § 8): “Quacunque arte verborum quisque juret, Deus tamen,
qui conscientiæ testis est, ita hoc accipit, sicut ille cui juratur
intelligit,” and this, being adopted in successive collections of
canons, coexisted with the above as a maxim of ecclesiastical law
(Ivon. Decret. P. XII. c. 36.—Gratian. c. 13, Caus. XXII. Q. ii.).
[62] Helgaldi Vit. Roberti Regis.
[63] Augustin. Epist. 78, §§ 2, 3 (Ed. Benedict.).
[64] Gregor. Turon. de Gloria Martyr. cap. 58, 103.
[65] Suppression of Monasteries, p. 186 (Camden Soc. Pub.). The Priory
of Cardigan was dependent upon the Abbey of Chertsey, and the sum named
was apparently the abbot’s share of the annual “alms.”
Perhaps the most suggestive illustration of the reverence for relics
is a passage in the ancient Welsh laws limiting the protection legally
afforded by them—“If a person have relics upon him and does an illegal
act under the relics, he is not to have protection or defence through
those relics, for he has not deserved it.”—Venedotian Code, Bk. I.
chap. x. § 7.
[66] Espéculo, Lib. V. Tit. xi. leyes 14, 15. The oaths required of
Jews and Moors were much more elaborate (Ibid. 16, 17).
[67] Patetta, Le Ordalie, Torino, 1890, p. 130.
[68] Yet compurgators appear in the Spanish laws of the twelfth
century. See Fuero de Balbás, ann. 1135 (Coleccion de Privilegios, etc.
Madrid, 1833, T. VI. p. 85).
[69] The primitive Scottish procedure appears to have been based on
compurgation.—Neilson’s Trial by Combat, London, 1890, p. 78.
[70] First Text of Pardessus, Tit. xxxix. § 2, and Tit. xlii. § 5 (Loi
Salique, Paris, 1843, pp. 21, 23). It is somewhat singular that in the
subsequent recensions of the code the provision is omitted in these
passages.
[71] Eginhard. Annal. ann. 800.—The monkish chroniclers have endeavored
to conceal the fact that Leo underwent the form of trial like a common
criminal, but the evidence is indubitable. Charlemagne alludes to it in
the _Capitularium Aquisgranense_ ann. 803, in a manner which admits of
no dispute.
The monk of St. Gall (De Gestis B. Carol. Mag. Lib. i. cap. 28), whose
work is rather legendary in its character, describes the Pope as
swearing to his innocence by his share at the day of judgment in the
promises of the gospels, which he had placed upon his head.
[72] Capit. Aquisgran. ann. 803, cap. vii.
[73] Bonifacii Epist. cxxvi.
The subject of the oaths of priests was one of considerable perplexity
during the dark ages. Among the numerous privileges assumed by the
sacerdotal body was exemption from the necessity of swearing, an
exemption which had the justification of the ancient Roman custom;
“Sacerdotem, Vestalem, et Flaminem Dialem in omni mea jurisdictione
jurare non cogam” (Edict. Perpet. ap. Aul. Gell. x. 15). The effort
to obtain the reversion of this privilege dates from an early period,
and was sometimes allowed and sometimes rejected by the secular
authorities, both as respects promissory, judicial, and exculpatory
oaths. The struggle between church and state on this subject is well
exemplified in a case which occurred in 1269. The Archbishop of Reims
sued a burgher of Chaudardre. When each party had to take the oath,
the prelate demanded that his should be taken by his attorney. The
defendant demurred to this, alleging that the archbishop had in person
presented the complaint. Appeal was made to the Parlement of Paris,
which decided that the defendant’s logic was correct, and that the
personal oath of the prelate was requisite (Olim, I. 765).
In Spain, a bishop appearing in a secular court, either as plaintiff or
defendant, was not exempt from the oath, but had the singular privilege
of not being compelled to touch the gospels on which he swore.—Siete
Partidas, P. III. Tit. xl. l. 24.
[74] Gratian. c. 19, Caus. II. Q. V.
[75] Eginhard. Annal. ann. 823.
[76] Atton. de Pressuris Ecclesiast. P. 1.
[77] Buchardus, Ivo, Gratianus, _passim_.—Ivon. Epist. 74.
[78] L. Longobard. Lib. II. Tit. xxi. § 9; Tit. lv. § 12.—L. Burgund.
Tit. vii.—Laws of Ethelred, Tit. ix. §§ 23, 24.—L. Henrici I. cap.
lxxiv. § 1. Feudor. Lib. V. Tit. ii.
This point illustrates the essential distinction between witnesses
and compurgators. The Roman law exercised great discrimination in
admitting the evidence of a relative to either party in an action
(Pauli Sentent. Lib. V. Tit. xv.—Ll. 4, 5, 6, 9. Dig. XXII. v.). The
Wisigoths not only adopted this principle, but carried it so far as to
exclude the evidence of a kinsman in a cause between his relative and
a stranger (L. Wisigoth. Lib. II. Tit. iv. c. 12), which was adopted
into the Carlovingian legislation (Benedict. Levit. Capitul. Lib. VI.
c. 348) under the strong Romanizing influence which then prevailed. The
rule, once established, retained its place through the vicissitudes
of the feudal and customary law (Beaumanoir, Coutumes du Beauvoisis,
cap. xxxix. § 38.—Cout. de Bretagne, Tit. vii. art. 161, 162). In the
ancient Brahmanic legislation the evidence of both friends and enemies
was excluded (Institutes of Vishnu, viii. 3).
[79] Anomalous Laws, Bk. IX. chap. ii. § 4; chap. v. § 2 (Owen, II.
225, 233). This collection of laws is posterior to the year 1430.
[80] Anomalous Laws, Bk. V. chap. ii. § 117 (Ibid. II. p. 85).
[81] Ibid. § 144 (p. 95).
[82] Aimoini Lib. III. c. 29.
[83] Greg. Turon. Lib. VIII. c. 9.
[84] Herman. Contract. ann. 899.
[85] Spelman. Concil. I. 335.
[86] Venedotian Code, Book III. chap. i. §§ 1-10.—Dimetian and Gwentian
Codes, Book II. chap. i. §§ 10-12 (Owen I. 219-21, 407, 689).—There is
very great confusion in these laws as to the numbers requisite for many
crimes, but with respect to the accessories of _galanas_, or homicide,
the rule appears to have been absolute.—Cf. Spelman, Glossary s. v.
_Assath_.
[87] Venedotian Code, Book III. chap. i. § 18. Anomalous Laws, Book IV.
chap. iii. §§ 12, 13 (Ibid. I. 231, II. 23).
[88] Ibid. § 17 (p. 231); cf. Book II. chap. viii. § 4 (p. 137).
[89] Gwentian Code, Book II. chap. iii. § 11 (Ibid. I. 691).
[90] Leg. Cimbric. Lib. II. c. 9.—Constit. Woldemari Regis §§ 9, 52,
56, 86. Throughout Germany a minor son could be cleared, even in
capital accusations, by the single purgatorial oath of his father, if
it was the first time that they had been defendants in court.—Jur.
Provin. Alaman. cap. clxix. § 1; Sachsische Weichbild, art. 76.
[91] Böhlau, Nove constitutiones Dom. Alberti, pp. 2, 6, 12, 38
(Weimar, 1858). “Cum duobus viris bone opinionis et integri status,
sinodalibus hominibus.” The expression is doubtless derived from the
_testes synodales_—men of standing and reputation selected in episcopal
synods to act as a kind of grand jury and report the sins of their
neighbors.
[92] This has been denied by those who assume that the _frithborgs_ of
Edward the Confessor are the earliest instance of such institutions,
but traces of communal societies are to be found in the most ancient
text of the Salic law (First text of Pardessus, Tit. XLV.), and both
Childebert and Clotair II., in edicts promulgated near the close of the
sixth century, hold the hundreds or townships responsible for robberies
committed within their limits (Decret. Childeberti ann. 595, c. 10;
Decret. Chlotarii II. c. 1).
It is not improbable that, as among all the barbarian races, the family
was liable for the misdeeds of its members, so the tribe or clan of
the offender was held responsible when the offence was committed upon
a member of another tribe, and such edicts as those of Childebert and
Clotair were merely adaptations of the rule to the existing condition
of society. The most perfect early code that has reached us, that of
the ancient Irish, expresses in detail the responsibility of each sept
for the actions not only of its members, but of those also who were
in any way connected with it. “And because the four nearest tribes
bear the crime of each kinsman of their stock.... And because there
are four who have an interest in every one who sues and is sued: the
tribe of the father, the chief, the church, the tribe of the mother
or foster-father.... Every tribe is liable after the absconding
of a member of it, after notice, after warning, and after lawful
waiting.”—Senchus Mor, I. 263-5.
[93] See Mr. Pike’s very interesting “History of Crime in England,”
Vol. I. pp. 61-2. London, 1873.
[94] First text of Pardessus, Tit. XLII. § 5.
[95] Marculf. App. xxxii.; xxix.
[96] Pact. pro Tenore Pacis cap. vi.
[97] L. Alaman. Tit. lxxvi.
[98] Capit. Car. Mag. IV. ann. 803, cap. x.
[99] Goldast. Constit. Imp. I. 231.
[100] Hartzheim Concil. German. II. 600.
[101] Lagrèze, Hist. du Droit dans les Pyrénées, p. 47, Paris, 1867.
[102] Pike, op. cit. I. 451.
[103]
Pontificem parium manus expurgat duodena.
Sexta sacerdotem, levitam tertia purgat.
Maior maiori, minor est adhibenda minori.
Quem plebs infamat purgabitur in manifesto.
Hostiensis Aureæ Summæ Lib. V. Tit. _De Purgat. canon._ § 4.
[104] Ibid. § 5.
[105] Quoniam Attachiamenta cap. xxiv. §§ 1, 4; cap. lxxv. §§ 1, 4. In
another subsequent code, in simple cases of theft, when the accuser
had no testimony to substantiate his claim, thirty conjurators were
necessary, of whom three must be nobles (Regiam Majestatem Lib. IV.
c. 21). For the disputed date of the _Regiam_ see Neilson, Trial by
Combat, ch. 30.
[106] Leg. Burgorum cap. xxiv. §§ 1, 3.
[107] Anomalous Laws, Book XIII. chap. ii. § 94 (Owen II. 521).
[108] Gwentian Code, Bk. II. chap. vii. § 10 (Ibid. I. 701).
[109] Anomalous Laws, Bk. IX. chap. ii. § 4; chap. xx. § 12; chap. xxi.
§ 3.—Book XIV. chap. xxxviii. § 16.—Book V. chap. ii. § 112 (Ibid. II.
225, 261, 709, 83).
Under the primitive Venedotian Code (Book III. chap. i. §§ 13, 19)
only twelve men were required, one-half to be _nod-men_, two-thirds of
paternal, and one-third of maternal kin; while in the Gwentian Code
(Book II. chap. ii. § 10) and in the Dimetian Code (Book II. chap. iii.
§ 10, Book III. chap. i. § 24), fifty are prescribed.
The _nod men_, as will be seen hereafter, were conjurators who took a
special form of oath.
[110] Anomalous Laws, Book XIV. chap. xxxviii. § 16; Book IX. chap. xx.
§ 12; chap. xxi. § 1.
[111] Leges Wallice, Lib. II. cap. xxiii. § 17 (Owen II. 848). It is
worthy of remark that one of the few instructions for legal procedures
contained in the Korán relates to cases of this kind. Chapter xxiv.
6-9 directs that a husband accusing his wife of infidelity, and having
no witnesses to prove it, shall substantiate his assertion by swearing
five times to the truth of the charge, invoking upon himself the
malediction of God; while the wife was able to rebut the accusation by
the same process. As this chapter, however, was revealed to the Prophet
after he had writhed for a month under a charge brought against his
favorite wife Ayesha, which he could not disregard and did not wish to
entertain, the law is rather to be looked upon as _ex post facto_ than
as indicating any peculiar tendency of the age or race.
[112] Anomalous Laws, Book XI. chap. v. §§ 40, 41 (Ibid. II. 445).
[113] Wealreaf, _i. e._, mortuum refere, est opus nithingi; si quis
hoc negare velit, faciat hoc cum xlviii. taynis plene nobilibus.—Leg.
Æthelstani, de Ordalio.
[114] Sacramentum liberalis hominis, quem quidem vocant
_twelfhendeman_, debet stare et valere juramentum septem villanorum
(Cnuti Secular. cap. 127). The _twelfhendeman_ meant a thane
(Twelfhindus est homo plene nobilis i. Thainus.—Leg. Henrici I. Tit.
lxxvi. § 4), whose price was 1200 solidi. So thoroughly did the
structure of jurisprudence depend upon the system of _wer-gild_ or
composition, that the various classes of society were named according
to the value of their heads. Thus the villein or _cherleman_ was also
called _twyhindus_ or _twyhindeman_, his _wer-gild_ being 200 solidi;
the _radcnicht_ (road-knight, or mounted follower) was a _sexhendeman_;
and the comparative judicial weight of their oaths followed a similar
scale of valuation, which was in force even subsequently to the
Conquest (Leg. Henrici I. Tit. lxiv. § 2).
[115] L. Frision. Tit. I.
[116] Hincmari Epist. xxxiv. So also in his Capit. Synod. ann. 852, II.
xxv.
[117] L. Longobard. Lib. II. Tit. lv. § 5.
[118] Ibid. Tit. xxi. § 9.
[119] Proost, Récherches sur la Législation des Jugements de Dieu,
Bruxelles, 1868, p. 96.
[120] Nominentur ei XIV., et adquirat XI., et ipse sit duodecimus.—L.
Cnuti c. lxvi. Horne, who probably lived in the reign of Edward II.,
attributes to Glanville the introduction of the jury-trial.—“Car, pur
les grandes malices que lon soloit procurer en testmonage et les grands
delaies qui se fierent en les examinements, exceptions et attestations,
ordeina Randulph de Glanvile celle certeine Assise ou recognitions et
jurées se feissent per XII jurors, les procheins vicines, et issint est
cest establissement appelé assise.”—Myrror of Justice, cap. II. sect.
xxv. For a minute examination into the origin of the jury-trial, see a
series of articles by Prof. J. B. Thayer in the Harvard Law-Review for
1892.
[121] Laws of Ethelred, Tit. III. c. xiii.
[122] L. Henrici I. Tit. xxxi. § 8; Tit. lxvi. § 10.
[123] Constit. Woldemari Regis §§ lii. lxxii.
[124] Fuero de Balbás (Coleccion de Privilegios, etc. Madrid, 1833, T.
VI. p. 85).
[125] Prof. J. B. Thayer, in Harvard Law Review, Vol. V. p. 58.
[126] L. Scaniæ Lib. vii. c. 8.—Chart. Woldemari Regis, ann. 1163 (Du
Cange s. v. _Juramentum_).
[127] Jarnsida, Thiofa-Balkr, cap. ix. X.
[128] Leges Gulathingenses, Thiofa-Bolkr, c. xiii. (Ed. Havniæ 1817, p.
547).
[129] L. Longobard. I. xxxiii. 1, 3.
[130] L. Burgund. Tit. viii.
[131] Capit. Car. Mag. I. ann. 789 c. lxii.
[132] Ibid.
[133] Capit. Ludov. Pii ann. 829 Tit. III. § vi.
[134] For. de Morlaas, Rubr. xli. art. 146-7.
[135] Que sien boos et loyaus, et que no sien enemicxs.—Fors de Béarn,
Rubr. xxx.
[136] Formulary of the Papal Penitentiary, Philadelphia, 1892, p. 100.
[137] Königswarter, Études Historiques. p. 167.
[138] Nam nulli liceat, postquam manifestaverit, postea per sacramentum
negare, quod non sit culpabilis, postquam ille se culpabilem
assignavit. Quia multos cognovimus in regno nostro tales pravas
opponentes intentiones, et hæc moverunt nos præsentem corrigere legem,
et ad meliorem statum revocare.—L. Longobard. Lib. II. Tit. lv. § 8.
[139] Si quis hominem ingenuo plagiaverit et probatio certa non fuit,
sicut pro occiso juratore donet. Si juratores non potuerit invenire,
VIII M dinarios, qui faciunt solidos CC, culpabilis judicetur (Tit.
xxxix. § 2). A similar provision—“si tamen probatio certa non
fuerit”—occurs in Tit. xlii. § 5.
[140] Si quis hominem occiderit et negare voluerit, cum duodecim
nominatis juret.—L. Alaman. Tit. LXXXIX.
[141] L. Alaman. Tit. XLII.
[142] Islands Landnamabok II. ix. (p. 83).
[143] For instance, in the Baioarian law—“Nec facile ad sacramenta
veniatur.... In his vero causis sacramenta præstentur in quibus nullam
probationem discussio judicantis invenerit” (L. Baioar. Tit. VIII. c.
16). In a Capitulary of Louis le Débonnaire—“Si hujus facti testes
non habuerit cum duodecim conjuratoribus legitimis per sacramentum
adfirmet” (Capit. Ludov. Pii ann. 819, § 1). In one of the Emperor
Lothair—“Si testes habere non poterit, concedimus ut cum XII.
juratoribus juret” (L. Longobard. Lib. I. Tit. IX. § 37). So Louis II.,
in 854, ordered that a man accused of harboring robbers, if taken in
the act, was to be immediately punished; but if merely cited on popular
rumor, he was at liberty to clear himself with twelve compurgators
(Recess. Ticinen. Tit. II. cap. 3).
It was the same in subsequent periods. The Scottish law of the
thirteenth century alludes to the absence of testimony as a necessary
preliminary, but when an acquittal was once obtained in this manner the
accused seems to have been free from all subsequent proceedings, when
inconvenient witnesses might perhaps turn up—“Et si hoc modo purgatus
fuerit, absolvetur a petitione Regis in posterum” (Regiam Majestatem,
Lib. IV. c. 21). So, in the laws of Nieuport, granted by Philip of
Alsace, Count of Flanders, in 1163 “Et si hoc scabini vel opidani non
cognoverint, conquerens cum juramento querelam suam sequetur, et alter
se excusabit juramento quinque hominum” (Leg. secundæ Noviportus). See
also the Consuetud. Tornacens. ann. 1187, §§ ii. iii. xvi., where two
conjurators release a defendant from a claim of debt unsupported by
evidence. In case of assault, “si constans non fuerit,” two conjurators
clear the accused; in case of wounding, six are required if the affair
occurred by daylight; if at night, the cold water ordeal is prescribed
(D’Achery, Spicileg. III. 551-2). The legislation of Norway and Iceland
in the next century is even more positive “Iis tantum concessis quæ
legum codices sanciunt, juramenta nempe purgatoria et accusatoria, ubi
legitimi defuerint testes” (Jarnsida, Mannhelge, cap. xxxvii.).
On the other hand, an exception to this general principle is apparently
found in a constitution of the Emperor Henry III., issued about the
middle of the eleventh century “Si quem ex his dominus suus accusaverit
de quacunque re, licet illi juramento se cum suis coæqualibus
absolvere, exceptis tribus: hoc est si in vitam domini sui, aut in
cameram ejus consilium habuisse arguitur, aut in munitiones ejus.
Cæteris vero hominibus de quacunque objectione, absque advocato, cum
suis coæqualibus juramento se poterit absolvere” (Goldast. Constit.
Imp. I. 231).
In a constitution of Frederic II. in 1235, the oaths of six
compurgators clear a man accused of having commenced hostilities
without awaiting the three days term prescribed after defiance, no
evidence being alluded to on either side—“et nisi violator productus
super hoc vel septena manu sinodalium hominum purgaverit innocentiam
suam quod non commiserat contra hoc statutum perpetuo pene subiaceat
quod dicitur erenlos und rehtlos”—Nove Constitutiones Dom. Alberti, p.
12 (Weimar, 1858).
[144] S. Raymondi Summæ Lib. III. Tit. xxxi. § v. _ad calcem._
[145] Gwentian Code, Book II. chap. xxxix. § 40 (Owen I. 787). So, in
disowning a child, if the reputed father were dead, the oaths of the
chief of the kindred, with seven of the kinsmen, were decisive, or, in
default of the chief, the oaths of fifty kinsmen (Ibid. § 41).
[146] Anomalous Laws, Book IX. chap. ii. § 9 (Ibid. II. 227).
[147] Ibid. Book VIII. chap. xi. § 31 (Ibid. II. 209).
[148] Ibid. Book IX. chap. ii. § 6 (Ibid. II. 227).
[149] Dooms of Ine, cap. liii.
[150] Leg. Wallice, Lib. II. cap. xix. § 2 (Owen II. 842).
[151] Ea autem debita de quibus non constat, super mortuum probari
debent, septima manu.—Jur. Provin. Alaman. cap. vii. § 2. (Ed.
Schilter.)—Sachsische Weichbild art. 67.
[152] Nove Constitutiones Dom. Alberti, p. 38.
[153] “Quod in sacramentis supradictorum testium veritas absque ullo
dolo versata est.”—Leon. PP. IV. Epist. 5 (Migne, CXV. 664).
[154] Lünig Cod. Ital. Diplom. II. 1955.
[155] Maitland, Select Pleas in Manorial and other Seignorial Courts,
pp. 7, 10, 18, 32, 36, 37, 47, 83, 137, 140, 141, 142, 144, 151, 157,
173.
[156] Si burgensis calumniatus præteriit ætatem pugnandi, et hoc
essoniaverit in sua responsione, non pugnabit. Sed juramento duodecim
talium qualis ipse fuerit, se purgabit.—L. Burgorum cap. 24, §§ 1, 2.
[157] Concil. Remens. ann. 1119 (Harduin. VI. 1986).
[158] On þone Drihten se að is clæne and unmæne þe N. swor.—Thorpe’s
Ancient Laws, I. 180-1.
[159] Hoc quod appellatus juravit, verum juravit. Sic Deus,
etc.—Formul. Vet. in L. Longobard (Georgisch, 1275).
[160] Per aquetz santz ver dits.—Fors de Béarn, Rubr. LI. art. 165.
[161] Du serment que Guillaume a juré, sauf serment a juré, ainsi
m’aist Dieu et ses Sainctz.—Ancienne Cout. de Normandie, chap. lxxxv.
(Bourdot de Richebourg, IV. 54).
[162] Nobis adhæc Deo coram periculosum esse videtur, ejus, cujus
interest, jusjurandum purgatorium edendo præeunte, omnes (ab eo
productos testes) iisdem ac ille conceptis verbis jurare, incerti
quamvis fuerint, vera ne an falsa jurent. Nos legibus illatum volumus
ut ille, cujus interest, jusjurandum conceptis verbis solum præstet,
cæteri vero ejus firment juramentum adjicientes se nequid verius, Deo
coram, scire, quam jurassent.—Jarnsida, Mannhelge, cap. xxxvii.—The
passage is curious, as showing how little confidence was really felt in
the purgation, notwithstanding the weight attached to it by law.
[163] Leges Gulathingenses, Thiofa-Bolkr, c. xiii.
[164] Credo Norigaudum istum Eduensem episcopum vera jurasse, sicut me
Deus adjuvet.—Hugo. Flaviniac. Lib. II.
[165] Anomalous Laws, Book VII. chap. i. § 18 (Owen, II. 135).
[166] L. Alaman. Tit. vi.
[167] L. Longobard. Lib. II. Tit. lv. § 28.
[168] Anomalous Laws, Book IX. chap. vi. § 4; chap. xvii. § 5.—cf. Book
VI. chap. i. § 50 (Owen. II. 235, 255, 113).
[169] Marculf. Lib. I. Formul. xxxviii.
[170] L. Frisionum Tit. xiv.
[171] Dooms of King Edward, cap. iii.
[172] Keyser’s Religion of the Northmen, Pennock’s Transl. p. 246.
[173] Quantum in conspectu hominum purgari poterat.—Ivon. Epist. liv.
[174] Hugo Flaviniac. Lib. II.
[175] Gratian. c. 17, Caus. II. Q. v.
[176] L. Baioar. Tit. XIV. cap. i. § 2.
[177] L. Longobard. Lib. I. Tit. ix. § 37.
[178] Institutions Judiciaires, I. 308.
[179] Ut propter suam nequitiam alii qui volunt. Dei esse non se
perjurent, nec propter culpam alienam semetipsos perdant.—L. Alaman.
Tit. xlii. § 1.
[180] Quod pro anima sua timendo, non præsumat sacramentalis esse.—L.
Longobard. Lib. II. Tit. lv. § 14.
[181] Othlon. Vit. S. Bonif. Lib. II. c. xxi.—“Vos soli juratis, si
vultis; nolo ut omnes hos congregatos perdatis.”—Boniface, however,
did not weakly abandon the cause of the church. He freely invoked
curses on the greedy brethren, which being fulfilled on the elder, the
terror-stricken survivor gladly relinquished the dangerous inheritance.
[182] L. Salic. Tit. I. §§ 3, 4.
[183] L. Frisionum Tit. X.
[184] Capit. Pippini ann. 793 § 15.—Capit. Car. Mag. incert. anni c. x.
(Martene Ampl. Collect. VII. 7).
[185] Celest. PP. III. ad Brugnam Episc. (Baluz. et Mansi, III. 382).
[186] Cod. Vatican. No. 3845, Gloss, ad L. 2 Lombard. II. 51, apud
Savigny, Geschichte d. Rom. Recht. B. iv.—I owe this reference to the
kindness of my friend J. G. Rosengarten, Esq.
[187] Capit. Car. Mag. ann. 794 § 7.
[188] Hugo, Flaviniac. Lib. II. ann. 1100. Norgaud, however, was
reinstated next year by quietly procuring, as we have already seen,
two brother prelates to take the oath with him, in the absence of his
antagonists.
[189] Et si quis de quinque juvantibus defecerit, accusatus debit tres
libras, et percusso decem solidos.—Leg. Secund. Noviportus (Oudegherst).
[190] Hostiensis Aureæ Summæ Lib. v. _De Purg. Canon_, § 7.—“Sicut
puniretur de crimine de quo impetebatur si convinceretur considerato
modo agendi, sic punietur si in purgatione deficiat.”
[191] L. Longobard. Lib. II. Tit. lv. § 34.—Qua ex re mos detestabilis
in Italia, improbusque non imitandus inolevit, ut sub legum specie
jurejurando acquireret, qui Deum non timendo minime formidaret
perjurare.
[192] L. Henrici I. cap. lxiv. § 1. “Malorum autem infestacionibus et
perjurancium conspiracione, depositum est frangens juramentum, ut magis
Dei judicium ab accusatis eligatur; et unde accusatus cum una decima
se purgaret per eleccionem et sortem, si ad judicium ferri calidi
vadat.” This cannot be considered, however, as having abrogated it even
temporarily in England, since it is contradicted by many other laws in
the same code, which prescribe the use of compurgators, and we shall
see hereafter how persistently its use was maintained.
[193] Romances Antiguos Españoles. Londres, 1825, T. I. pp. 246-7. Cf.
Dozy, Recherches sur l’Histoire, etc. de l’Espagne, Leipzig, 1881, II.
108.
[194] Le Roux de Lincy, Chants Historiques Français, I. 15.
[195] Glanville, Lib. I. cap. ix. Also, Lib. I. c. xvi., Lib. IX.
c. i., Lib. X. c. v.
[196] “In aliis enim curiis si quis aliquid dixerit unde eum
pœnituerit, poterit id negare contra totam curiam tertia manu cum
sacramento, id se non dixisse affirmando” (Ibid. Lib. VIII. c. ix.).—In
some other systems of jurisprudence, this unsophisticated mode of
beclouding justice was obtained by insisting on the employment of
lawyers, whose assertions would not be binding on their clients. Thus,
in the Assises de Jerusalem (Baisse Court, cap. 133): “Et por ce il
deit estre lavantparlier, car se lavantparlier dit parole quil ne doie
dire por celuy cui il parole, celui por qui il parle et son conceau y
pueent bien amender ains que le iugement soit dit. Mais se celuy de cui
est li plais diseit parole qui li deust torner a damage, il ne la peut
torner arieres puis quil la dite.” The same caution is recommended in
the German procedure of the fourteenth century—“verbis procuratoris non
eris adstrictus, et sic vitabis damnum” (Richstich Landrecht, cap. II.
Cf. Jur. Provin. Saxon. Lib. I. art. 60; Lib. II. art. 14). The same
abuse existed in France, but was restricted by St. Louis, who made the
assertion of the advocate binding on the principal, unless contradicted
on the spot (Établissements, Liv. II. chap. xiv.).
[197] Roger de Hoveden ann. 1194.
[198] Tunc vadiabit defendens legem se duodecima manu.—Bracton. Lib.
III. Tract. iii. cap. 37, § 1.—Et si ad diem legis faciendæ; defuerit
aliquis de XII. vel si contra prædictos excipi possit quod non sunt
idonei ad legem faciendam, eo quod villani sunt vel alias idonei minus,
tunc dominus incidet in misericordiam.—Ibid. § 3. So also in Lib. V.
Tract. V. cap. xiii. § 3.
[199] Pike, History of Crime in England, I. 285.
[200] Gratian, c. 17, C. 11. Q. v.—“Deinde vero purgatores super sancta
Dei evangelia jurabunt quod sicut ipsi credunt verum juravit.” Cf. c. 5
Extra, V. xxxiv.
[201] Summæ Stephani Tornacensis caus. II. Q. 5 (Schulte, 1891, p. 171).
[202] C. 7, Extra, V. xxxiv.
[203] Illi qui ad purgandam alicujus infamiam inducuntur, ad solum
tenentur juramento firmare quod veritatem credunt eum dicere qui
purgatur.—C. 13, Extra, V. xxxiv. Innocent also endeavored to put an
end to the abuse by which ecclesiastics, notoriously guilty, were
able to escape the penalty due their crimes, by this easy mode of
purgation.—C. 15, eod. loc.
The formula as given about 1240 by St. Ramon de Peñafort is
“Nos credimus quod ipse juravit verum, vel, verum esse quod
juravit.”—Raymondi Summæ Lib. III. Tit. xxxi. § 5.
[204] The rapidity with which the study of the civil law diffused
itself throughout the schools and the eagerness with which it was
welcomed were the subject of indignant comment by the ecclesiastics
of the day. As early as 1149 we find St. Bernard regretting that the
laws of Justinian were already overshadowing those of God—“Et quidem
quotidie perstrepent in palatio leges, sed Justiniani, non Domini” (De
Consideratione, Lib. I. cap. iv.). Even more bitter were the complaints
of Giraldus Cambrensis towards the end of the century. The highest of
high churchmen, in deploring the decline of learning among the prelates
and clergy of his age, he attributes it to the exclusive attention
bestowed on the jurisprudence of Justinian, which already offered
the surest prizes to cupidity and ambition, and he quotes in support
of his opinion the dictum of his teacher Mainier, a professor in the
University of Paris: “Episcopus autem ille, de quo nunc ultimo locuti
sumus, inter superficiales numerari potuit, cujusmodi hodie multos
novimus propter leges Justinianas, quæ literaturam, urgente cupiditatis
et ambitionis incommodo, adeo in multis jam suffocarunt, quod magistrum
Mainerium in auditorio scholæ suæ Parisius dicentem et damna sui
temporis plangentem, audivi, vaticinium illud Sibillæ vere nostris
diebus esse completum, hoc scilicet ‘Venient dies, et væ illis, quibus
leges obliterabunt scientiam literarum’” (Gemm. Ecclesiast. Dist. II.
cap. xxxvii.). This, like all other branches of learning, was as yet to
a great extent in the hands of the clergy, though already were arising
the precursors of those subtle and daring civil lawyers who were
destined to do such yeoman’s service in abating the pretensions of the
church.
It is somewhat singular to observe that at a period when the highest
offices of the law were frequently appropriated by ecclesiastics, they
were not allowed to perform the functions of advocates or counsel. See
Horne’s Myrror of Justice, cap. II. sect. 5. There was good reason
for prohibiting them from serving as judges, as Frederic II. did in
1235—“Idem erit laicus propter sententias sanguinum quas clerico
scribere non liceat, et præterea ut si dilinquid in officio suo pena
debita puniatur” (Nove Constitutiones Dom. Alberti, p. 46).
[205] Actor quod adseverat, probare se non posse profitendo, reum
necessitate monstrandi contrarium non adstringit: cum per rerum naturam
factum negantis probatio nulla sit (Const. xxiii. C. de Probat. IV.
19).—Cum inter eum, qui factum adseverans, onis subiit probationis, et
negantem numerationem, cujus naturali ratione probatio nulla est ...
magna sit differentia (Const. x. C. de non numerat. IV. 30). It is a
little curious to see how completely this was opposed to the principle
of the early Common Law of England, by which in actions for debt
“semper incumbit probatio neganti” (Fleta, Lib. II. cap. lxiii. § 11).
[206] La cosa que non es non se puede probar nin mostrar segunt
natura.—Las Siete Partidas, P. III. Tit. xiv. l. 1.
[207] Though absent from the general laws of Spain, yet compurgation
had been introduced as an occasional custom. We have seen it above
(p. 49) in the Fuero de Balbás in 1135. The Fuero of Madrid in 1202
provides that a man suspected of homicide and other crimes, in the
absence of testimony, can clear himself with six or twelve conjurators,
according to the grade of the offence (Mem. de la Real. Acad. de la
Historia, 1852). We shall see hereafter that it appears in the Fuero
Viejo of Castile in 1356. The passage from the Romancero del Cid,
quoted above, shows the hold it had on the popular imagination.
[208] Olim, II. 153, 237.
[209] Actes du Parlement de Paris, T. I. p. cccvii. (Paris, 1863).
[210] Actes du Parlement de Paris, T. I. p. 382.
[211] Statuunt ... se manu centesima nobilium se purgare, et ad
huic benedicto juveni bis septem librarum milia pro sui rancoris
satisfactione præsentare.—Wilelmi Egmond. Chron.
[212] Is qui reus putatur tertia manu se purgabit, inter quos sint duo
qui dicentur denominati.—Du Cange s. v. _Juramentum_.
[213] Et li deffendans, sour qui on a clamet se doit deffendre par
lui tierche main, se chou est hom II. hommes et lui, se chou est fame
II. femmes et li à tierche.... “Tel sierment que Jehans chi jura boin
sierment y jura au mien ensiant. Si m’ait Dius et chist Saint.”—Roisin,
Franchises, etc. de la Ville de Lille, pp. 30, 35.
[214] Ibid. p. 51. The system was abrogated by a municipal ordinance of
September, 1351, in accordance with a special ordonnance to that effect
issued by King John of France in March, 1350.
The royal ordonnance declares that the oath was “en langage estraigne
et de mos divers et non de legier a retenir ou prononchier,” and yet
that if either party “par quelconques maniere faloit en fourme ou en
langage ou que par fragilite de langhe, huirans eu, se parolle faulsist
ou oubvliast, ou eslevast se main plus que li dite maniere acoustumee
en requeroit ou quelle ne tenist fermement sen poch en se paulme ou ne
wardast et maintenist pluiseurs autres frivoles et vaines chozes et
manieres appartenans au dit sierment, selonc le loy de la dite ville,
tant em parole comme en fait, il avoit du tout sa cause perdue, ne
depuis nestoit rechus sur che li demanderes a claim ou complainte, ne
li deffenderes a deffensce.”—Ibid. p. 390.
[215] Anc. Coutume de Normandie, chap. lxxxv. (Bourdot de Richebourg,
IV. 53-4).
[216] Recherches de la France, Liv. IV. chap. iii. Concerning the date
of this, see La Croix du Maine, s. v. _Estienne Pasquier_.
[217] Fors et Cost. de Béarn, Rubr. de Juramentz (Bourdot de
Richebourg, IV. 1082).
[218] Lo jurament deu seguidor se fé JURAN PER aquetz sanctz bertat
ditz exi que io crey.
[219] E si gelo negare e non gelo quisier probar, devel’ facer salvo
con once Fijosdalgo e èl doceno, que non lo fiço (Fuero Viejo de
Castiella, Lib. I. Tit. v. 1. 12). It will be observed that this is an
unqualified recognition of the system of negative proofs.
[220] Du Cange, s. v. _Juramentum_.
[221] Jur. Provin. Alaman. cap. xxiv.; cccix. § 4; cccxxix. §§ 2, 3;
cccxxxix. § 3 (Edit. Schilteri).
[222] Jur. Provin. Saxon. Lib. I. c. 63.
[223] Sachsische Weichbild, art. 71, 72, 86, 40, 88.
[224] Goldast. Constitt. Imp. III. 446.
[225] Meyer, Institutions Judiciaires, V. 221.
[226] Sique accusatus tanta ac tam gravi suspitione laboraret ut
aliorum quoque purgatione necesse esset, in arbitratu stet judicis, si
illi eam velit injungere, nec ne, qui nimirum compurgatores jurabunt,
se credere quod ille illive qui se per juramentum excusarunt, recte
vereque juraverint.—Constit. de Pace Publica cap. xv. § 1 (Goldast.
Constitt. Imp. I. 541).
[227] Damhouder, Rerum Criminalium Praxis cap. xliv. No. 6 (Antwerp,
1601).
[228] Statut. Davidis II. cap. i. § 6.
[229] Jarnsida, Mannhelge & Thiofa-Balkr _passim_; Erfthatal cap.
xxiv.; Landabrigtha-Balkr cap. xxviii.; Kaupa-Balkr cap. v., ix., etc.
[230] See Sporon & Finsen, Dissert. de Usu Juramenti juxta Leges Daniæ
Antiquas, Havniae, 1815-17, P. I. pp. 160-1, P. II. pp. 206-8.
[231] Christiani V. Jur. Danic. Lib. i. c. xiv. § 8.
[232] Poteritque se tunc purgare cui crimen imponitur juramento XVIII.
virorum.—Raguald. Ingermund. Leg. Suecorum Lib. i. c. xvi.
[233] Legg. Civil. Gustavi Adolphi Tit. X.
[234] Caroli XI. Judicum Regulæ, cap. xxxii.
[235] Ludewig. Reliq. MSS. T. VII. p. 401.
[236] Herb. de Fulstin Statut. Reg. Poloniæ, Samoscii, 1597, pp.
186-88, 465.
By the customs of Iglau, about the middle of the thirteenth century,
a man could rebut with two conjurators a charge of assault with
serious mutilation, and was subject to a fine of fourteen marks if
he failed; accusations of complicity required only the oath of the
accused.—Statuta Primæva Moraviæ, Brunæ, 1781, pp. 103-4.
[237] Bassani de Sacchi Jura Regni Croatiæ, Dalmatiæ et Sclavoniæ.
Zagrabiæ, 1862, Pt. I. p. 182.
[238] Et sic major præsumptio vincit minorem. Si autem querens
probationem habuerit, sicut instrumenta et chartas sigillatas, contra
hujusmodi probationes non erit defensio per legem. Sed si instrumento
contradicatur, fides instrumenti probabitur per patriam et per testes.
Bracton, Lib. IV. Tract. vi. cap. 18, § 6.
The word “secta” is a troublesome one to legal antiquarians from
its diverse significations. As used in the above text it means the
supporters of the plaintiff’s case. Elsewhere we find it denoting the
hue and cry, which all men were bound to follow; see Stubb’s Select
Charters, pp. 256, 366, etc. “Facere sectam” also seems to have the
sense of holding court (Ib. p. 303), whence it also derives a secondary
meaning of jurisdiction (Baildon, Select Civil Pleas, I. 42).
[239] Fleta, Lib. II. c. lxiii. § 10. Sed si sectam [actor] produxerit,
hoc est testimonium hominum legalium qui contractui inter eos
habito interfuerint præesentes, qui a judice examinati si concordes
inveniantur, tunc poterit [reus] vadiare legem suam contra petentem
et contra sectam suam prolatam; ut si duos vel tres testes produxerit
[actor] ad probandum, oportet quod defensio fiat per quatuor vel per
sex; ita quod pro quolibet teste duos producat jurat [ores] usque ad
xii.
[240] 38 Edw. III. St. I. cap. v. (Statutes at Large I. 319. Ed. 1769).
[241] 27 Eliz. cap. xix. § I.
[242] Jacob’s Review of the Statutes, 2d Ed. London, 1715, p. 532.
[243] I owe a portion of these references to a paper in the London
“Jurist” for March, 1827, the writer of which instances the wager of
law as an evidence of “that jealous affection and filial reverence
which have converted our code into a species of museum of antiques and
legal curiosities.”
[244] Wharton’s Law Lexicon, 2d ed., p. 758.
[245] I owe a transcript of these records to the kindness of the late
General J. H. Lefroy, then Governor of Bermuda. The quaintness of the
proceedings may justify the printing of the sentences.
Nov. Assizes, 1638.—“Arthur Thorne being presented by the minister
and church wardens of Pembroke tribe [parish] upon suspition of
incontinency with Elizabeth Jenour the wyfe of Mr. Anthony Jenour, was
censured [sentenced] in case he could not purge himself to doe open
penaunce in two churches.” He probably failed in his purgation, for
Mrs. Jenour confessed her sin in open court and was referred to her
minister for penance.
June Assizes, 1639. “The minister, church wardens, and sydesmen
of Sandy’s Tribe doe present Mary Eldrington, the wyfe of Roger
Eldrington, upon suspition of incontinency grounded on comon fame: upon
which presentment she was censured to doe open penaunce in the church
in case she could not purge herselfe by the oath of 3 women of credit
in the Tribe.”
“Edward Bowly, presented upon suspition of incontinency with Anne, a
negro woman, supposed to be the father of her bastard child, was put to
his compurgators, and did thereupon purge himself, and the negro woman
censured to receave 21 lashes at the whipping-post, which was executed
upon her.”
“Edward Wolsey and Dorathie Penniston were presented upon common fame
for suspition of incontinencie by the grand inquest, and also presented
by the minister and churchwardens of Pembroke Tribe upon the like
suspition, whereupon they were sentenced to doe penaunce in the church,
standing in a whyte sheete during divine service, making confession of
that their suspitious walking in case they could not purge themselves
by their owne oathes and two sufficient compurgators.”
[246] Cooper’s Statutes at Large of South Carolina, Columbia, 1837, II.
403.
[247] Kilty’s Report on English Statutes, Annapolis, 1811, p. 140.
[248] Ego talis juro ... me firmiter credere quod talis non fuit
Insabbatus, Valdensis, vel pauperum de Lugduno ... et credo firmiter
eum in hoc jurasse verum.—Doctrina de modo procedendi contra Hæreticos
(Martene, Thesaur. T. V. p. 1801).—This is the same as the form
prescribed by the Council of Tarragona in 1242, where we learn,
moreover, that the number of compurgators was prescribed by the
inquisitor in each case (Aguirre, Concil. Hispan. IV. 193).
[249] Conc. Lateran. IV. can. iii.—Decret. Gregor. P. P. IX. (Harduin.
VII. 163).
[250] Hartzheim Conc. Germ. III. 542-50.—Alberic. Trium Font. ann.
1233-4.—Gest. Treviror. c. 175.
[251] Jacob. Simancæ de Cathol. Instit. Tit. lvi. No. 3, 4 (Romæ, 1575).
[252] Simancæ, loc. cit. No. 31.—Villadiego, Fuero Juzgo, p. 318 _b_
(Madrid, 1600).—Both of these authorities stigmatize it as “fragilis et
periculosa, cæca et fallax.”
[253] Simancæ, loc. cit. No. 12.
[254] Simancæ, loc. cit. No 17.
[255] Strype’s Ecclesiastical Memorials, I. 87.
[256] Reformator. Constant. Decretal. Lib. V. Tit. ii. cap. 1, 3 (Von
der Hardt, Tom. I. P. XII. pp. 739, 742).
[257] Angeli de Clavasio Summa angelica, s. v. _Purgatio_.
[258] Baptistæ de Saulis Summa rosella, s. v. _Purgatio_.
[259] Institut. Jur. Canon. Lib. IV. Tit. ii. § 2.—Cf. Concil.
Tarraconens. ann. 1591, Lib. IV. Tit. xiv. (Aguirre, VI. 322).
[260] P. Grillandi Tract. de Sortileg. Qu. 6, No. 14; Qu. 3, No.
36.—Decret. II. caus. xxx. q. 1, can. 2.—C. 7 Extra, Lib. IV. Tit. xv.
[261] Du Cange, loc. cit.
[262] Burnet, Reformation, Vol. II. p. 199 (Ed. 1681).
[263] Tit. LXXIV. of Herold’s text; Cap. Extravagant. No. XVIII. of
Pardessus.
[264] L. Baioar. Tit. XVI. cap. i. § 2.
[265] Pactus pro Tenore Pacis, § 2, cf. § 5 (Baluze).
[266] Decreti Childeberti c. vii. (Baluze). This provision was not
merely temporary. It is preserved in the Capitularies (Lib. VII. c.
257), whence it was carried into the Decretum of Ivo of Chartres in the
twelfth century (Decr. P. xiii. c. 6; P. xvi. c. 358).
[267] Capit. Car. Mag. VI. ann. 806, c. xxiii. (Concil. Roman.
Silvestri PP. I.).
[268] E li apelur jurra sur lui par VII. humes numez, sei siste
main, que pur haur nel fait ne pur auter chose, si pur sun dreit nun
purchacer.—Ll. Guillel. I. cap. xiv.
[269] Omnis tihla tractetur antejuramento plano vel observato.—Ll.
Henrici I. Tit. lxiv. § 1. Anlejuramentum a compellante habeatur, et
alter se sexto decime sue purgetur; sicut accusator precesserit.—Ibid.
Tit. lxvi. § 8.
[270] Prof. J. B. Thayer in Harvard Law Review, Vol. V. pp. 47-51.
[271] C. Tribur. ann. 895 c. xxii.
[272] For de Morlaas, Rubr. xxxviii. art. 63.
[273] Bracton. Lib. IV. Tract. vi. cap. 18, § 6.
[274] Statuta Susatensia, No. 10 (Hæberlin, Analecta Medii Ævi, p.
509).—The same provision is preserved in a later recension of the laws
of Soest, dating apparently from the middle of the thirteenth century
(Op. cit. p. 520).
[275] Jur. Provin. Alaman. cap. cccix. § 4 (Ed. Schilter).—Jur. Provin.
Saxon. Lib. III. art. 88.—Sachsische Weichb. art. 115.
[276] Jur. Provin. Alaman. cap. cccxcviii. §§ 19, 20.
[277] Du Cange _sub voce_.
[278] Legg. Scan. Provin. Lib. V. c. 57 (Ed. Thorsen, p. 140).
[279] Ideo manus libro imponimus sacro, quod audivimus (crimen rumore
sparsum), at nobis ignotum est verum sit nec ne.—Jarnsida, Mannhelge,
cap. xxiv.
[280] Rabanis, Revue Hist. de Droit, 1861, p. 511.
[281] Du Boys, Droit Criminel des Peuples Modernes, II. 595.
[282] Freher. de Secret. Judic. cap. xvii, § 26.
[283] Anc. Cout. de Bretagne, Tit. VIII. art. 168.
[284] Thus, as late as the thirteenth century, the municipal law
of Southern Germany, in prescribing the duel for cases destitute
of testimony, says with a naïve impiety: “Hoc ideo statutum est,
quod causa hæc nemini cognita est quam Deo, cujus est eandem juste
decidere.” Early in the sixteenth century the pious Aventinus
regretfully looks back upon the time when princes and priests,
assembled to witness the combat, “divinam opem implorabant, beneficia
memoriter commemorabant quæ in simili negotio Deus immortalis Christus
servator noster ipsis pro sua benignitate atque clementia contulisset
... comprecabantur ut summa potestas in re præsenti, pollicita re,
hactenus semper factitasset, comprobaret” (Aventini Annal. Baior. Lib.
IV. cap. xiv. n. 28). Even as late as 1617, August Viescher, in an
elaborate treatise on the judicial duel, expressed the same reliance
on the divine interposition: “Dei enim hoc judicium dicitur, soli Deo
causa terminanda committitur, Deo igitur authore singulare hoc certamen
suscipiendum, ut justo judicio adjutor sit, omnisque spes ad solam
summæ providentiam Trinitatis referenda est” (Viescher Tract. Juris
Duellici Universi, p. 109). This work is a most curious anachronism.
Viescher was a learned jurisconsult who endeavored to revive the
judicial duel in the seventeenth century by writing a treatise of
700 pages on its principles and practice. He exhibits the wide
range of his studies by citations from no less than six hundred and
seventy-one authors, and manages to convey an incredibly small amount
of information on the subject. Ephraim Gerhardt, moreover, taxes him
with wholesale plagiarism from Michael Beuther’s _Disputatio de duello_
(Strassburg, 1609) and with false citations of authorities.—Eph.
Gerhardi Tract. de Judicio Duellico, præfat.
[285] L. Baioar. Tit. XIV. c. i. § 2.
[286] Rymer, Fœdera, V. 198-200.
[287] Ayeen Akbery, II. 324.
[288] The early edicts directed against the duel proper (Ordonn.
Charles IX., an. 1566; Henri IV., an. 1602—in Fontanon I. 665) refer
exclusively to the noblesse, and to those entitled to bear arms, as
addicted to the practice, while the judicial combat, as we shall see,
was open to all ranks, and was enforced indiscriminately upon all.
[289] Chron. Domin. de Arkel (Matthæi Analect. VIII. 296). In 1336 a
judicial duel was fought in Bavaria to decide a similar question—the
right of two nobles to a coat of arms.—Würdinger, Beiträge zur
Geschichte des Kampfrechtes in Bayern, München, 1877, p. 14.
[290] Rymer, Fœdera, II. 226-9, 230-4, 239-40, 242-3.—Lünig. Cod. Ital.
Diplom. II. 986.
[291] Ramon Muntaner, cap. lxxi. See also Pedro’s own brief account of
the matter in a letter of June 20, 1283, to his nephew, the Infante
Juan of Castile.—Memorial Histórico Español, 1851, T. II. p. 99.
[292] “Sub speculatoris supremi judicio terminatum.”—Rymer, Fœd. VII.
407.
[293] Du Bellay, Mémoires, Liv. III.—The letters are given by Juan de
Valdés in the _Diálogo de Mercurio i Caron_ (Dos Diálogos, pp. 243,
247, 287.—Reformistas antiguos Españoles).
[294] An outlying fragment of the same belief is to be seen in the
ancient Japanese practice of deciding knotty questions by the judicial
duel (Griffis’s Mikado’s Empire, New York, 1876, p. 92). Even the most
savage of existing races, the aborigines of Australia, have a kind of
duel under certain rules by which private controversies are settled,
and among the Melanesians the custom prevails, champions even being
sometimes employed (Patetta, Le Ordalie, Torino, 1890, pp. 55, 60).
[295] Iliad. III. 277-323.
[296] Nicholaus Damascenus (Didot Frag. Hist. Græcor. III. 457).
[297] Liv. XXVII. 21.
[298] Senchus Mor, I. 251.
[299] Synod. S. Patricii ann. 456, c. 8.
[300] Anomalous Laws, Book XIV. chap. xiii. § 4 (Owen II. 623).
[301] Patetta, Le Ordalie, p. 156.
[302] Königswarter, op. cit. p. 224; Patetta, pp. 158 sqq.; Eph.
Gerhardi Tract. Jurid. de Judic. Duellico, c. ii. § 12.
[303] Saxon. Grammat. Hist. Dan. Lib. V.
[304] Islands Landnamabok, III. vii.; V. xii. xiii. See also II. vi.
and xiii.
[305] Keyser’s Religion of the Northmen, Pennock’s Translation, p.
245-7.
[306] Tacit. de Mor. Germ. X. Du Cange refers to a passage of
Paterculus as proving the existence of the judicial duel among the
Germans (Lib. II. cap. 118), but it seems to me only to refer to the
law of the strongest.
[307] Si tamen non potuerit adprobare ... et postea, si ausus fuerit,
pugnet.—Leyden MS.—Capit. Extravagant. No. xxviii. of Pardessus.
[308] Gregor. Turon. Hist. Franc. Lib. VII. c. xiv.; Lib. X.
c. x.—Aimoini Lib. IV. c. ii.
[309] Aimoini Lib. IV. cap. X.
[310] Quia absurdum et impossible videtur esse ut tam grandis causa sub
uno scuto per pugnam dirimatur.—L. Longobard. Lib. II. Tit. lv. §§ 1,
2, 3.
[311] L. Longobard. Lib. II. Tit. xxxv. §§ 4, 5.
[312] Gravis causa nobis esse comparuit, ut sub uno scuto, per unam
pugnam, omnem suam substantiam homo amittat.... Quia incerti sumus de
judicio Dei, et multos audivimus per pugnam sine justitia causam suam
perdere. Sed propter consuetudinem gentis nostræ Longobardorum legem
impiam vetare non possumus (L. Longobard. Lib. I. Tit. ix. § 23).
Muratori states that the older MSS. read “legem istam,” in place of
“impiam,” as given in the printed texts, which would somewhat weaken
the force of Liutprand’s condemnation.
[313] L. Anglior. et Werinor. Tit. I. cap. 3; Tit. XV.—L. Saxon. Tit.
XV.—L. Frision. Tit. V. c. i.; Tit. XI. c. 3.
[314] In Horne’s Myrror of Justice (cap. II. sect. 13), a work which
is supposed to date from the reign of Edward II., there is a form
of appeal of treachery “qui fuit trové en vielx rosles del temps du
Roy Alfred,” in which the appellant offers to prove the truth of his
charge with his body; but no confidence can be placed in the accuracy
of the old lawyer. Some antiquarians have been inclined to assume that
the duel was practised among the Anglo-Saxons, but the statement in
the text is confirmed by the authority of Mr. Pike (Hist. of Crime in
England, I. 448), whose exhaustive researches into the original sources
of English jurisprudence render his decision virtually final.
In the Saga of Olaf Tryggvesson it is related that he was chosen by an
English queen named Gyda for her husband, to the great displeasure of
Alfin a previous pretender to her hand, who challenged him thereupon,
because “It was then the custom in England, if two strove for anything,
to settle the matter by single combat” (Laing’s Heimskringla, I. 400).
Snorro Sturleson, however, can hardly be regarded as of much authority
on a point like this; and as Gyda is represented as daughter of a king
of Dublin, the incident, if it occurred at all, may have taken place in
Ireland.
[315] A charter issued by William, which appears to date early in
his reign, gives the widest latitude to the duel both for his French
and Saxon subjects (L. Guillelmi Conquest. II. §§ 1, 2, 3. Thorpe,
I. 488). Another law, however, enabled a Norman defendant to decline
the combat when a Saxon was appellant. “Si Francigena appellaverit
Anglum ... Anglus se defendat per quod melius voluerit, aut judicio
ferri, aut duello.... Si autem Anglus Francigenam appellaverit et
probare voluerit, judicio aut duello, volo tunc Francigenam purgare se
sacramento non fracto” (Ibid. III. § 12. Thorpe, I. 493). Such immunity
seems a singular privilege for the generous Norman blood.
[316] Cassiodor. Variar. Lib. III. Epist. xxiii., xxiv.
[317] An Epistle from Theodoric to the Gaulish provinces, which he
had just added to his empire, congratulates them on their return to
Roman laws and usages, which he orders them to adopt without delay.
Its whole tenor shows his thorough appreciation of the superiority of
the Imperial codes to the customs of the barbarians, and his anxiety
for settled principles of jurisprudence (Cassiodor. Variar. Lib. III.
Epist. xvii.).
[318] Ermold. Nigell. de Reb. Gest. Ludov. Pii Lib. III.—Astron. Vit.
Ludov. Pii cap. xxxiii.—Marca Hispanica, Lib. III. c. 21.
[319] Even as late as the middle of the thirteenth century St. Ramon
de Peñafort thus defines it—“Duellum est singularis pugna inter
aliquos ad probationem veritatis, ita videlicet ut qui vicerit
probasse intelligitur; et dicitur duellum quasi duorum bellum. Dicitur
etiam vulgo in pluribus partibus judicium, eo quod ibi Dei judicium
expectatur.”—S. Raymondi Summæ Lib. II. Tit. iii.
[320] L. Burgund. Tit. xlv.—The remedy, however, would seem to have
proved insufficient, for a subsequent enactment provides an enormous
fine (300 solidi) to be levied on the witnesses of a losing party, by
way of making them share in the punishment, “Quo facilius in posterum
ne quis audeat propria pravitate mentire.”—L. Burgund. Tit. lxxx. § 2.
The position of a witness in those unceremonious days was indeed an
unenviable one.
[321] Capit. Car. Mag. ex Lege Longobard. c. xxxiv. (Baluze).
[322] L. Longobard. Lib. II. Tit. iv. $ 34.
[323] Lib. adversus Legem Gundobadi cap. x.
[324] L. Frision. Tit. xiv. § 4.
[325] Goldast. Antiq. Alaman. chart. lxxxv.
[326] L. Baioar. Tit. XVI. cap. i. § 2.
[327] Capit. Ludov. Pii ann. 819, cap. xv.
[328] L. Baioar. Tit. XVI. c. 5.
[329] Beaumanoir, Coutumes du Beauvoisis, chap. lxi. § 58.—In the
contemporary Italian law, however, there was some limitation on the
facility of challenging witnesses—“Ita demum inter contrarios testes
fit pugna, si ipsi inter se imponant nam pars testibus non potest
pugnam imponere nisi velint.”—Odofredi Summa de Pugna, c. i. (Patetta,
p. 483).
[330] Lib. Pract. de Consuetud. Remens. §§ 14, 40 (Archives Législat.
de Reims, Pt. I. pp. 37, 40).
[331] Bracton de Legibus Angl. Lib. III. Tract. II. cap. xxxvii. §
5.—Fleta, Lib. I. cap. xxii.
[332] Thus in a case in 1220 involving a stolen mare, the accused
gave a warrantor, and on the accuser challenging him to battle he
gave a second warrantor. On investigation he was found to have
received five marks for the service with a promise of five more, and
he was mercifully treated by being condemned only to the loss of a
foot—“Sciendum quod misericorditer agitur cum eo per consilium domini
regis cum majorem pœnam de jure demeruisset.”—Maitland, Select Pleas of
the Crown, I. 127.
[333] Beaumanoir, chap. vi. § 16.
[334] Beaumanoir, ch. xxxix. §§ 30, 31, 66.—Assises de Jerusalem,
cap. 169. A somewhat similar principle is in force in the modern
jurisprudence of China. Women, persons over eighty or under ten years
of age, and cripples who have lost an eye or a limb are entitled to buy
themselves off from punishment, except in a few cases of aggravated
crime. They are, therefore, not allowed to appear as accusers, because
they are enabled by this privilege to escape the penalties of false
witness.—Staunton, Penal Code of China, Sects. 20-22, and 339. In the
ancient Brahmanic law also there is a long enumeration of persons
who are not receivable as witnesses, including women, children,
and men over eighty years of age. In this, however, the exclusion
of women would appear to be because they were presumably under
tutelage.—Institutes of Vishnu, VIII. 2.
The exclusion of women as witnesses during the mediæval period was
also one of the numerous disabilities by which the Church expressed
its contempt for the sex which had tempted Adam to his fall. As early
as the fourth century Hilary the Deacon, in a tract which long passed
current under the name of St. Augustin, says: “Nec docere enim potest,
nec testis esse, neque fidem dicere, neque judicare” (Hilari Diac.
Quæstt. ex Vet. Testamento, c. xlv.—Migne, T. XXX. p. 2244). And this
was carried through Ivo of Chartres (Decreti, P. VIII. c. 85) into the
body of the canon law (Gratiani Decr. Caus. XXXIII. Q. v. cap. 17).
[335] The earliest of these charters is a grant from Louis le Gros in
1109 to the serfs of the church of Paris, confirmed by Pope Pascal II.
in 1113 (Baluz. et Mansi III. 12, 62). D’Achery (Spicileg. III. 481)
gives another from the same monarch in 1128 to the church of Chartres.
[336] Beaumanoir, chap. lxi. § 59.
[337] Ibid. chap. lxi. § 57.
[338] Ibid. chap. xl. § 21.
[339] Jur. Provin. Alaman. cap. lxviii. § 6.
[340] “Curia ... tenetur tamen judicium suum tueri per duellum....
Sed utrum curia ipsa teneatur per aliquem de curia se defendere, vel
per alium extraneum hoc fieri possit, quero” (De Leg. Angliæ Lib.
VIII. cap. ix.). The result of a reversal of judgment must probably
have been a heavy fine and deprivation of the judicial function, such
being the penalty provided for injustice in the laws of Henry I.—“Qui
injuste judicabit, cxx sol. reus sit et dignitatem judicandi perdat”
(L. Henrici I. Tit. xiii. § 4)—which accords nearly with the French
practice in the time of Beaumanoir.
[341] Cited by Marnier in his edition of Pierre de Fontaines.
[342] Car poi profiteroient les costumes el païs, s’il s’en covenoit
combatre; ne dépecier ne les puet-om par bataille.—Édition Marnier,
chap. XXII. Tit. xxxii.
[343] Chap. XXII. Tit. i. vi. viii. x. xxvii. xxxi.—“Et certes
en fausement ne gist ne vie ne menbre de cels qui sont fausé, en
quelconques point que li fausemenz soit faiz, et quele que la querele
soit” (Ibid. Tit. xix.). If the judge was accused of bribery, however,
and was defeated, he was liable to confiscation and banishment (Tit.
xxvi.). The increasing severity meted out to careless, ignorant, or
corrupt judges manifests the powerful influence of the Roman law,
which, aided by the active efforts of legists, was infiltrating the
customary jurisprudence and altering its character everywhere. Thus de
Fontaines quotes with approbation the Code, _De pœna judicis_ (Lib.
VII. Tit. xlix. l. 1) as a thing more to be desired than expected,
while in Beaumanoir we already find its provisions rather exceeded than
otherwise.
[344] De Fontaines, chap. XXII. Tit. iii.
[345] Ibid. chap. XXII. Tit. xxiii.—Et ce fu li premiers dont je oïsse
onques parler qui fust rapelez en Vermendois sanz bataille.
[346] Coutumes du Beauvoisis, chap. lxi. §§ 36, 45, 47, 50, 62.—It
should be borne in mind, however, that Beaumanoir was a royal bailli,
and the difference between the “assise de bailli” and the “assises de
chevaliers” is well pointed out by Beugnot (Les Olim, T. II. pp. xxx.
xxxi.). Beaumanoir in many cases evidently describes the law as he
would wish it to be.
[347] Et pour ce ne l’en puët fausser, car l’en ne trouveroit mie
qui droit en feist car li rois ne tient de nului fors de Dieu et de
luy.—Établissements, Liv. I. chap. lxxviii.
[348] Conseil, ch. XXII. tit. xxi.
[349] Si contingat ut de justitia sententiæ pugnandum sit, illa pugna
debet institui coram rege (Jur. Provin. Alaman. cap. xcix. § 5—Ed.
Schilt.). In a French version of this code, made probably towards
the close of the fourteenth century, the purport of this passage is
entirely changed. “De chascun iugemant ne puet lan trover leaul ne
certain consoil si bien come per le consoil de sages de la cort le
roi.”—Miroir de Souabe, P. I. c. cxiii. (Ed. Matile, Neufchatel,
1843). We may hence conclude that by this period the custom of armed
appeal was disused, and the extension of the royal jurisdiction was
established.
[350] Jur. Provin. Saxon. I. 18; II. 12.—This has been questioned by
modern critics, but there seems to be no good reason for doubting
its authority. The whole formula for the proceeding is given in the
Richstich Landrecht (cap. 41), a manual of procedure of the fourteenth
century, adapted to the Saxon code.
[351] Richstich Lehnrecht, cap. xxvii.
[352] Carol. Mag. Chart. Divisionis ann. 806 cap. xiv.
[353] Liutprandi Antapodos, Lib. III. cap. 46.
[354] De Pressuris Eccles. Pt. II. This was written about 945.
[355] Dithmari Chron. Lib. II. ann. 950.
[356] Widukind. Rer. Saxon. Lib. II. cap. x.—The honest chronicler
considers that it would have been discourteous to the nobility to treat
questions relating to them in a plebeian manner. “Rex autem meliori
consilio usus, noluit viros nobiles ac senes populi inhoneste tractari,
sed magis rem inter gladiatores discerni jussit.” In both these cases
Otho may be said to have had ancient custom in his favor. See L.
Longobard. Lib. I. Tit. xii. § 2.—L. Alamann. cap. LVI., LXXXIV.;
Addit. cap. XXII.
[357] Liutprandi Hist. Otton. cap. vii.
[358] Liutprandi Legat. cap. vi.
[359] Benedict. Abbat. Gesta Henrici II. p. 139 (M. R. Series).
[360] Lambert. Hersfeld. ann. 1056.
[361] Conquest. Ludov. in Synod. Ingilheim. ann. 948.
[362] S. Mathild. Regin. Vit. c. I.
[363] Wipponis vit. Chunradi Salici.
[364] “Nos belli dono ditat rex maximus Otto.”
[365] L. Longobard. Lib. II. Tit. lv. § 38.
[366] Ibid. § 34.
[367] Si non audeat, res suæ infiscentur.—Convent. Papiens. ann. 971.
[368] Qui vero infra treugam, post datum osculum pacis, alium hominem
interfecerit, et negare voluerit, pugnam pro se faciat.—L. Longobard.
Lib. I. Tit ix. § 38.
[369] Roderici Toletani de Reb. Hispan. VI. xxvi. This story has been
called in question by orthodox writers for the reason that Archbishop
Roderic, who flourished in the middle of the thirteenth century, is
the only authority for it, but there is nothing in the manners of the
age to render it incredible, and he mentions that the champion of the
Mozarabic rite came from Matanza near the Pisuerga, and that his family
still existed.
In 1121, when the Queen-regent Urraca was at Compostella, one of her
courtiers informed a gentleman of the Archbishop Diego Gelmirez, that
she was plotting to seize him, whereupon he surrounded himself with
a guard. This attracted attention and led to discussion in which the
archbishop’s retainer gave the name of his informant. The latter denied
the statement and Urraca, as a matter of course, ordered the duel
between them, in which her courtier was defeated and was punished with
blinding.—Historia Compostellana, Lib. II. c. xxix. (Florez, España
Sagrada, T. XX. p. 312).
[370] Lambert. Hersfeld. ann. 1070, 1073, 1074.—Conrad. Ursperg. ann.
1071.—Bruno de Bello Saxonico.
[371] Conrad. Ursperg. ann. 1175.
[372] Dithmari Chron. Lib. V.
[373] From the time of Henry I., the office of king’s champion was one
of honor and dignity. See Spelman’s Glossary.
[374] Constit. Frid. II. ann. 1245 cap. 9 (Goldast. Const. Imp. I. 303).
[375] For de Morlaas, Rubr. xxvi.
[376] Dithmari Chron. Lib. VII. c. 36, 37.—“Ibi tunc multi latrones a
gladiatoribus in singulari certamine devicti suspendio perierunt.”
[377] Bracton. Lib. III. Tract. ii. cap. 37, § 5.
[378] Bracton. Lib. III. Tract. ii. cap. 33, § 2; 34, § 2.
[379] Dreyer, Anmerckung von den ehemaligen Quellgesetzen, p. 156.
[380] Guibert. Noviogent. de Vita sua, Lib. III. cap. xvi.—Hermann. de
Mirac. S. Mariæ Laudun. Lib. III. cap. 28.—Forsitan, ut multi putarunt,
pro fidei violatæ reatu, qua promiserat fidem Anselmo, quod eum non
detegeret.
[381] Und diser vor Got schuldig, und vor den luten nit (Jur. Provin.
Alamann. cap. ccxix. § 8). This is a provision for cases in which
a thief accuses a receiver of having suggested and assisted in the
crime. The parties are made to fight, when, if the receiver is worsted,
both are hanged; if the thief, he alone, and the receiver escapes
though criminal. The French version enlarges somewhat on the principle
involved: “Se il puet vancre lautre il est quites et li autre sera
panduz, et sera an colpe anver lo munde et anver dex andui: ce avient
a assez de genz, que aucons sunt an colpe anver dex et ne mie anver le
seigle” (Miroir de Souabe, P. II. c. vi.).
[382] Innoc. PP. III. Regest. VI. 26 (c. 2 Extra, V. 35)—“Duellum in
quo aliis peccatis suis præpedientibus, ceciderunt.”
[383] Chron. Jocelini de Brakelonda (Ed. Camden Soc. pp. 50-2).
[384] Isdem quoque Milo ... monomachi certaturus pugna, attribuit
sancto Petro terram quam habebat in Luco, prope atrium ecclesiæ, quo
sibi adjutor in disposito bello existerit.—Chron. Besuense, Chart. de
Luco.
[385] Cæsar. Heisterbach. Dial. Mirac. Dist. III. c. xviii.
[386] Ibid. Dist. IX. c. xlviii.
[387] Neilson’s Trial by Combat, p. 152.
[388] Odofredi Summa de Pugna (Patetta, p. 487).—The oath prescribed
in the Ordonnance of Philippe le Bel in 1306 is very elaborate—“Par
les seremens que j’ay fais je n’entens pourter sur moy ne sur mon
cheval paroles, pierres, herbes, charmes, charroiz, ne conjurations,
invocations d’ennemis [demons] ne nulle autre chose ou j’aye esperance
d’avoir ayde ne à luy nuire. Ne n’ay recours fors que à Dieu et à
mon bon droit, par mon corps, par mon cheval et par mes armes. Et
sur ce je baise ceste vraye croix et les saincts evangiles, et me
tais.”—Isambert, Anc. Lois Françaises, II. 843.
[389] Stow’s Annals, ann. 1571 (Ed. 1615, p. 669).
[390] Ll. Frision. Tit. IX. § 3.
[391] Coutumes du Beauvoisis, chap. lxi. § 2; chap. xliii. § 6.
[392] Ibid. chap. lxi. § 2; chap. xxxix. § 12.
[393] Coutumes du Beauvoisis, chap. lxiii. §§ 1, 2, 10.
[394] Twenty-one years is the age mentioned by St. Louis as that at
which a man was liable to be called upon to fight.—Établissements, Liv.
I. chap. lxxiii., cxlii.
[395] Coutumes du Beauvoisis, chap. lxiii. §§ 11, 13, 18. The denier
was the twelfth part of the solidus or sou.
[396] Établissements, Liv. I. chap. clxvii.
[397] In contemporary Italy the great jurist Roffredo gives a long
enumeration of the cases in which the duel is admitted covering nearly
the whole of the more serious criminal actions and a number of civil
suits.—Odofredi Summa de Pugna (Patetta, pp. 480-4).
[398] Jur. Provin. Alaman. cap. clxvi. §§ 13, 27; cap. clxxvii. (Ed.
Schilt.).—Jur. Prov. Saxon. Lib. I. clxviii.
[399] This rule was strictly laid down as early as the time of Frederic
Barbarossa.—Feudor. Lib. II. Tit. xxvii. § 3.
[400] Jur. Provin. Alaman. cap. ccclxxxvi. § 2 (Ed. Schilteri).—Jur.
Provin. Saxon. Lib. I. c. lxiii.—Sachsische Weichbild, xxxv. 6.
[401] Jur. Provin. Alaman. cap. ccxcii. § 2.—Jur. Provin. Saxon. Lib.
III. c. xxvi. xxxiii.
[402] Sed scias si de perpetrato homicidio agitur, probationem sine
duello non procedere.—Richstich Landrecht, cap. xlix.
[403] Jur. Provin. Alaman. cap. ccclxxxvi. §§ 28, 29 (Ed.
Schilteri).—Jur. Prov. Saxon. Lib. I. art. 64.—Sachsische Weichbild,
art. lxxxvii. lxxxviii.
[404] Sachsische Weichbild, lxxxi. If he accused more than the number
of his wounds, they could defend themselves with six compurgators.
[405] Jur. Provin. Alaman. cap. clxxii. § 20 (Ed Senckenberg).
[406] Hinc pervenit dispositio de duello. Quod enim homines non vident
Deo nihilominus notum est optime, unde in Deo confidere possumus, eum
duellum secundum jus diremturum.—Jur. Provin. Alaman. cap. clxviii. §
19 (Ed. Senckenberg).
In a formula of application for the duel, given by Hermann de Bare
(De Formandis Libellis, 1535), there is no allusion to defect of
evidence; it is a simple assertion of the guilt of the other side with
a demand for the duel in case it is desired.—“Domine Judex, etc. Ego
Petrus, etc. Quod Martinus hic præsens est falsus et proditor, qui
perditionaliter rapuit mihi quendam equum pili mauri, stellatum in
fronte, quod si ipse confiteatur peto ipsum condemnari super prædicta
rapina ut raptorem. Si autem hoc neget ego per pugnam armis paribus
sumtis a me et ab eo faciam eum confiteri palam per os suum in campo
nobis per vos assignando, vel reddam eum victum vel mortuum in dicto
campo. Et super dicta pugna pignus meum vel chyrothecas meas hic in
medio in præsentia vestra offero et reddo, et promitto me juraturum
in introitu campi per vos nobis ad certamen seu ad dictam pugnam
assignandi quod ego non habeo herbas nec breves conjuratorias vel
alia quæ maleficia vel fascinationes pariant vel parturiant quoquo
modo. Et quod tunc Martinus juret similiter illud. Item et peto per
vos Dominum judicem si Martinus prædictam rapinam neget declarari et
judicari pugnam posse et debere esse et fieri ex prædicta causa inter
me et eum et ipsum sententialiter condemnari ad subeundam pugnam mecum
ex prædicta causa ut super prædicta rapina possit per pugnam veritas
inveniri.”—Eph. Gerhardi Tract. Jurid. de Judicio duellico, cap. I, § 5
(Francof. 1735).
[407] Assises d’Antioche, Haute Cour, ch. ix. xi. xii; Assises des
Bourgeois, ch. vi. vii. (Venise, 1876). This code, of which the
existence has long been suspected, has recently been discovered in an
Armenian version made by Sempad, the Constable of Armenia Minor, in
1265, for the use of his fellow countrymen. It has been published, with
a French translation, by the Mehkitarist Society of St. Lazarus, and
gives us the customary law of the Crusaders in an earlier form than the
current texts of the Assises de Jerusalem.
[408] Bracton. Lib. III. Tract. ii. cap. 18.—Fleta Lib. I. cap. xxxi.
§§ 2, 3.
[409] Bracton. Lib. III. Tract. ii. cap. 23, § 1.
[410] Si autem uterque defaltam fecerit, et testatum sit quod
concordati fuerunt, uterque capiatur, et ipsi et plegii sui in
misericordia.—Ibid.
The custom with regard to this varied greatly according to local usage.
Thus, a charter of the Count of Forez in 1270 concedes the right of
avoiding battle, even at the last moment, by satisfying the adversary,
and paying a fine of sixty sols.—Chart. Raynaldi Com. Forens. c. 4
(Bernard, Hist. du Forez, T. I. Preuves, p. 35). According to the
customs of Lorris, in 1155, if a composition was effected after battle
had been gaged and before security was given, each party paid a fine
of two sous and a half. If after security was pledged, the fine was
increased to seven sous and a half.—Chart. Ludov. Junior. ann. 1155,
cap. xiv. (Isambert, Anciennes Lois Françaises, I. 155).
[411] Fleta Lib. II. cap. xxi. § 2.
[412] Bracton. Lib. III. Tract. ii. cap. 24 § 4.—“Hujusmodi vero
dentes multum adjuvant ad devincendum.”—Olivier de la Marche tells us
(_Traités sur le Duel_, communicated to me by George Neilson, Esq.)
that if the defendant had lost an eye the appellant must have one
correspondingly bandaged. This device can scarce have been known in
England, else it would have deprived Sir William Dalzell of the £200
forfeit adjudged to him by Richard II. when Sir Piers Courtenay refused
to submit to the loss of an eye, to counterbalance that which Sir
William had lost at Otterburn (Neilson, Trial by Combat, p. 237).
[413] Glanvil. Lib. XIV. cap. i.—Bracton. Lib. III. Tract. ii. cap. 3 §
1.
[414] Feudor. Lib. II. Tit. xxxix.
[415] Neilson, Trial by Combat, p. 128.
[416] For de Morlaas, Rubr. xxxviii. xxxix.
[417] Marca, Hist. de Béarn. p. 293 (Mazure et Hatoulet).
[418] For de Morlaas, Rubr. iv.
[419] De Lagrèze, Hist. du Droit dans les Pyrénées, Paris, 1867, p. 68.
[420] Libell. Catalan. MS. (Du Cange).
[421] Meo arbitrio determinabo duellum, vel judicium judicabo.—Lib.
Juris Civil. Veronæ, cap. 78 (p. 63).
[422] Statut. Montispess. ann. 1204 (Du Cange).
[423] Établissements de Normandie, _passim_ (Édition Marnier).
[424] Bracton. Lib. III. Tract. ii. cap. 19 § 6, cf. cap. 23 § 2.
[425] Ibid. cap. 20 § 5. Cf. Maitland, Select Pleas of the Crown, Vol.
i. p. 43.
[426] Maitland, p. 48—“Utrum verum sit appellum vel athia” (hate).
[427] Würdinger, Beiträge zur Geschichte des Kampfrechtes in Bayern,
p. 7.
[428] L. Anglior. et. Werinor. Tit. XV. The variations in the coinage
are so numerous and uncertain, that to express the values of the
solidus or sou, at the different periods and among the different
races enumerated, is virtually impossible. In general terms, it may
be remarked that the Carlovingian solidus was the twentieth part of
a pound of silver, and according to the researches of Guérard was
equivalent in purchasing power to about thirty-six francs of modern
money. The marc was half a pound of silver.
[429] L. Baioar. Tit. VIII. cap. ii. § 5; cap. iii.
[430] L. Longobard, Lib. ii. cap. lv. § 37.
[431] L. Henrici I. cap. 59.
[432] Isambert, Anciennes Lois Françaises, I. 162. This occurs in an
edict abolishing sundry vicious customs of the town of Orleans. It was
probably merely a local regulation, though it has been frequently cited
as a general law.
[433] Livres de Jostice et de Plet, Liv. XIX. Tit. xvii. § 3, Tit.
xxii. § 4, Tit. xxxviii. § 3. See also a coutumier of Anjou of the same
period (Anciens Usages d’Anjou, § 32—Marnier, Paris, 1853).
The “Livre de Jostice et de Plet” was the production of an Orléannais,
which may account for his affixing the limit prescribed by the edict
of Louis le Jeune. The matter was evidently regulated by local custom,
since, as we have already seen, his contemporary, Beaumanoir (cap.
lxiii. § 11), names twelve deniers, or one sou, as the minimum.
[434] Cod. Leg. Norman. P. II. cap. xxi. § 7 (Ludewig, Reliq. MSS.
VII. 307). The judgment of God was frequently styled _Lex apparens_ or
_paribilis_.
[435] Anc. Coutum. de Normandie, cap. 87 (Bourdot de Richebourg, IV.
55).
[436] Assises de Jerusalem, cap. 149.—Assises d’Antioche, Haute Cour.
ch. ix.; Assises des Bourgeois, ch. vi.
[437] Laws of Huescar, by Don Jayme I. (Du Cange, s. v. _Torna_).
[438] L. Longobard. Lib. I. Tit. XXV. § 49.
[439] Ibid. Lib. I. Tit. IX. § 38.
[440] L. Frision. Tit. XI. cap. iii.
[441] Coutumes du Beauvoisis, cap. lxiii. § 1.—The consent of the
master was necessary to authorize the risk of loss which he incurred by
his serf venturing to engage in the duel. Thus, in a curious case which
occurred in 1293, “idem Droetus corpus suum ad duellum in quo perire
posset obligare non poterat sine nostra licentia speciali.”—Actes du
Parlement de Paris, I. 446.
[442] Livres de Jostice et de Plet, Liv. XIX. Tit. 13.—Tabul.
Vindocinens. cap. 159 (Du Cange, s. v. _adramire_).
[443] Assises de l’Echiquier de Normandie, p. 174 (Marnier).
[444] Laurière, Table Chron. des Ordonnances, p. 105.
[445] Beaumanoir, op. cit. cap. lxi. §§ 9, 10.—Établissements de S.
Louis, Liv. I. chap. lxxxii.
[446] Beaumanoir, cap. lxiv. § 3.
[447] Conseil, ch. XXI. Tit. xiv.
[448] Actes du Parlement de Paris, T. I. No. 2269 A. p. 217.
[449] Jur. Provin. Saxon. Lib. I. c. 50, 62. Lib. III. c. 29,
65.—Sachsische Weichbild xxxiii. xxxv. Jur. Provin. Alamann. cap.
ccclxxxv. §§ 14, 15 (Ed. Schilteri). According to some MSS. of the
latter, however, this privilege of declining the challenge of an
inferior was not allowed in cases of homicide.—“Ibi enim corpus corpori
opponitur”—cap. liii. § 4 (Ed. Senckenberg). On the other hand, a
constitution of Frederic Barbarossa, issued in 1168 and quoted above,
forbids the duel in capital cases unless the adversaries are of equal
birth.
Tallhöfer’s Kamp-recht lays down the rule unconditionally—“Item ist das
ain man kempflich angesprochen wirt von ainem der nit als gut is als
er, dem mag er mit recht ussgan ob er wil ... sprict aber der edler den
mindern an zu kempfen so mag der der minder nich absyn.”—Dreyer, _op.
cit._ p. 166.
[450] Jur. Prov. Alamann. cap. cclviii. § 20. (Ed. Schilter.)—We have
already seen that the converse of this rule was introduced in England,
as regards questions between Frenchmen and Englishmen, by William the
Conqueror.
[451] Quia surien et greci in omnibus suis causis, præter quam in
criminalibus excusantur a duello.—Assises de Jerusalem, Baisse Court,
cap. 269.
[452] Laws of Huescar, ann. 1247 (Du Cange s. v. _Torna_).
[453] Las Siete Partidas, P. VII. Tit. iii. l. 3.
[454] Anomalous Laws, Book XIV. chap. xiv. § 1 (Owen II. 625).
[455] Galberti Vit. Caroli Boni, cap. 2, n. 12.
[456] Jur. Provin. Saxon. Lib. I. art. 48.
[457] Assises de Jerusalem, cap. 266, 267.
[458] Jur. Provin. Alamann. cap. lx. § 5.
[459] Jur. Provin. Saxon. Lib. I. c. 42, 43.
[460] Belitz de Duellis Germanorum, p. 9 (Vitembergæ, 1717).
[461] Jur. Provin. Alamann. cap. ccxxix. § 2. This chapter is omitted
in the French version of the Speculum Suevicum.
[462] Ephr. Gerhardi Tract. Jurid. de Judic. Duellico, cap. iii. § 7,
et Mantissa.—Dreyer, Anmerckung von den Quellgesetzen, p. 160.—Meyer,
Der Gerichtliche Zweikampf, 1873. Gerhardt gives from a MS. of the
fifteenth century in the Grand-ducal Library of Saxe-Gotha a rude
representation of the first stage of one of these combats, which is
here reduced in facsimile. A MS. at Wolfenbüttel has a miniature
virtually the same. In another representation of these combats, the
antagonists are furnished with curved knives (Würdinger, Beiträge, p.
18).
[Illustration: Two men fighting, one with club the other with ball on
chain.]
In many places, however, crimes which a man was forced to disprove by
combat were subject to the ordeal of hot iron or water when the accused
was a woman. Thus, by the Spanish law of the thirteenth century, “Muger
... salvese por fierro caliente; e si varon fuere legador ... salvese
por lid”—Fuero de Baeça (Villadiego, Fuero Juzgo fol. 317^a).
[463] Patetta, Le Ordalie, p. 159.
[464] Capit. Ludov. Pii I. ann. 819, cap. X.
[465] Ughelli, T. II. p. 122 (Du Cange).
[466] Addunt insuper, quoniam si aliquis militum sacerdotes Dei
in crimine pulsaverit per pugnam sive singulari certamine esse
decernendum.—De Pressuris Eccles.
[467] Muratori Script. Rer. Ital. II. II. 499, 505.
[468] Clericus ... si duellum sine episcopi licentia susceperit ... aut
assultum fecerit, episcopis per pecuniam emendetur.—Orderic. Vital. P.
II. Lib. V. c. 5.
[469] Goffrid. Vindocinens. Lib. III. Epist. 39.
[470] Du Cange.
[471] Ut clerici non pugnent in duello, nec pro se pugiles
introducent.—Chron. S. Ægid. in Brunswig.—C. 1. Extra, Lib. V. Tit. xiv.
[472] C. 1. Extra, Lib. I. Tit. xx.
[473] C. 2. Extra, Lib. V. Tit. xiv.
[474] Council. Lateran. IV. can. 18.
[475] C. 22. Decret. caus. II. q. v.—Nicolai PP. I Epist. 148.
[476] Atton. Vercell. De Pressuris Eccles. Pt. I.
[477] Chart. S. Stephani (Batthyani Legg. Eccles. Hung. T. I. p. 384).
[478] Chron. Piscariens. Lib. II. (D’Achery, II. 951).
[479] Cartulaire de l’Église de Paris, I. 378.
[480] The charter recording the suit and its results is given by Baluze
and Mansi, Miscell. III. 59.
[481] Ibid. p. 134.
[482] C. 1 Extra, Lib. V. Tit. xxxv.
[483] Du Boys, Droit Criminel des Peuples Modernes, II. 187.
[484] Matt. Paris Hist. Angl. ann. 1176 (Ed. 1644, p. 92).
[485] Neilson, Trial by Combat, pp. 122-7.
[486] Actes du Parlement de Paris, T. I. p. cccvii.
[487] Contraria consuetudine non obstante.—Cart. de l’Église de Paris,
II. 393-4.
[488] Archives Administratives de Reims, T. I. p. 733.
[489] Berger, Registres d’Innocent IV. n. 6184 (T. III. p. 148).
[490] Harduin. Concil. VII. 384.
[491] Compilat. V. Lib. V. Tit. vii. (Ed. Friedberg, p. 184). “Rem
hactenus inauditam et tam juri scripto quam æquitati contrariam.”
[492] Fit pugna si ecclesia contra ecclesiam habet controversiam vel
contra privatum et instrumentum dicatur falsum.—Odofredi Summa de Pugna
(Patetta, p. 483).
[493] Joh. Friburgens. Summæ Confessorum Lib. II. Tit. iii. Q. 3, 5,
6.—Cf. Baptist. de Saulis Summam Rosellam s. v. _Dispensatio_, § 7.
[494] Proost, Législation des Jugements de Dieu, p. 19.
[495] It is not easy to understand the remark of Olivier de la
Marche, in the latter half of the fifteenth century (Traités du Duel
Judiciaire, p. 44, communicated to me by George Neilson, Esq.), warning
judges that they cannot condemn clerks to the duel except in cases of
_lèse majesté_ and those affecting the faith. At that time the faith
was exclusively in the hands of the Inquisition, and the canons admit
of no exception to clerical immunity in cases of treason. In both
matters torture had long before proved itself vastly more efficient
than the clumsy and doubtful ordeals.
[496] Du Cange, s. v. _Bellum_.
[497] Muratori, Antiq. Ital. Dissert. 39.—Among various other examples
given by the same author is one of the year 1010, in which the court
of the bishop of Aretino grants the combat to decide a case between a
monastery and a layman.
[498] Neilson, Trial by Combat, pp. 76, 81.
[499] Ivon. Epist. cxlviii.
[500] Ivon. Epist. ccxlvii.
[501] Pet. Cantor. Verb. Abbreviat. cap. lxxviii.
[502] Migne’s Patrologia, T. 188, p. 1287.
[503] Baildon, Select Civil Pleas, I. 43.
[504] Lib. Pract. de Consuetud. Remens, _passim_ (Archives Législatives
de Reims).
[505] Archives Adminst. de Reims, T. I. p. 822.
[506] Actes du Parlement de Paris, T. I. p. cccvii.
[507] Cartulaire de l’Église de Paris, III. 433. After the first blows
the parties could be separated on payment of a fine to the court, from
the recipient of which the name is evidently derived. Apparently the
good canons drew a distinction between awarding the duel and engaging
in it, for we have already seen (p. 159) that twenty-four years before
they had obtained from Innocent IV. a special privilege exempting them
from the necessity of maintaining their rights by battle.
[508] Cartulaire de l’Église de Paris, I. 234.
[509] Ibid. I. 79-80.
[510] Patetta, Le Ordalie, p. 437.
[511] Les Olim, I. 24.
[512] Actes du Parl. de Paris, T. I. No. 2122, C. p. 197.
[513] Actes du Parl. de Paris, T. I. p. 446.
[514] Du Cange, s. v. _Arramiatio_.
[515] Les Olim, III. 679.
[516] Voirs est que tuit li cas où il pot avoir gages de bataille ou
peril de perdre vie ou membre, doivent estre justicié par le laie
justice; ne ne s’en doit sainte Église meller.—Coutumes du Beauvoisis,
cap. xi. art. 30.
[517] See the Registre Criminel de la Justice de St. Martin-des-Champs
(Paris, 1877).
[518] Joh. Friburgens. Summæ Confessorum Lib. II. Tit. iii. Q. 5.
[519] En la cort de la mer na point de bataille por prueve ne por
demande de celuy veage.—Assises de Jerusalem, cap. xliii.
[520] Pardessus, Us et Coutumes de la Mer.
[521] Livres de Jostice et de Plet, Liv. VII. Tit. iv. § 2.
[522] According to Bracton, the appellant in criminal cases appears
always obliged to swear to his own personal knowledge, _visu ac
auditu_, of the crime alleged. This, however, was not the case
elsewhere. Among the glossators on the Lombard law there were warm
disputes as to the propriety, in certain cases, of forcing one of the
contestants to commit perjury. The matter will be found treated at some
length in Savigny’s Geschichte d. Rom. Recht. B. IV. pp. 159 sqq. Cf.
Odofredi Summa de Pugna (Patetta, pp. 485-7).
The formula of the oath as given in the Fleta is as follows: The
parties take each other by the hand and first the appellee swears, “Hoc
audis, homo quem per manum teneo, qui A. te facis appellari per nomen
baptismi tui, quod ego C. fratrem tuum, vel alium parentem vel dominum
non occidi, vel plagam ei feci ullo genere armorum per quod remotior
esse debuit a vita et morti propinquior; sic me Deus adjuvet et hæc
Sancta, etc.” Then the appellant responds: “Hoc audis homo quem per
manum teneo, qui te R. facis appellari per nomen baptismi tui, quod tu
es perjurus et ideo perjurus quia tali anno, tali die, tali hora et
tali loco nequiter et in felonia occidisti C. fratrum meum tali genere
armorum, unde obiit infra triduum; sic me Deus, etc.”—Lib. I. cap.
xxxii. §§ 28, 29.—Bracton, Lib. III. Tract ii. c. 21, § 2.
In the German law the oath was simpler, but quite as absolute.—Jur.
Prov. Saxon, Lib I. cap. lxii.—Sachsische Weichbild, xxxv. 8.
By the ordonnance of Philippe le Bel in 1306 each party was obliged to
take three solemn oaths on relics before a priest, asserting his good
cause in the most positive manner and his reliance on the judgment of
God.—Isambert, Anc. Lois Françaises, II. 840.
[523] Cod. Leg. Normann. P. I. c. lxiv. (Ludewig. Reliq. MSS. T. VII.
p. 270).—Anc. Cout. de Normandie (Bourdot de Richebourg, IV. 29).
[524] Leg. Alamann. Tit. 84.
[525] Capit. Ludov. Pii ann. 819, cap. x. A somewhat similar provision
occurs in the L. Burgund. Tit. xlv. et lxxx.
[526] L. Guillelmi Conquest. III. xii. (Thorpe, I. 493).—A previous
law, however, had assessed a Norman appellant sixty sous when defeated
(Ibid. II. ii.).
[527] L. Henrici I. cap. lix. § 15.
[528] Glanvil. de Leg. Angl. Lib. II. cap. iii.
[529] Pipe Roll Society, I. 21; II. 31, 46, 59; III. 10.
[530] Maitland, Select Pleas of the Crown, I. 108.
[531] Solement ceux vainqus sont quittes ou lour clients pur eux rendre
aux combattants vanquishours 40 sous en nosme de recreantise et ruaille
peur la bourse a mettre eins ses deniers oustre le jugement sur le
principall.—Horne’s Myrror of Justice, cap. iii. sect. 23.
[532] Formul. Vetus in L. Longobard. (Georgisch, p. 1276).
[533] For d’Oloron, Art. 21.
[534] Bracton, Lib. III. Tract. ii. cap. 18, § 4. In another passage,
Bracton gives a reason for this clemency—“Si autem victus sit in campo
... quamvis ad gaolam mittendus sit, tamen sit ei aliquando gratia de
misericordia, quia pugnat pro pace” (Ibid. cap. 21, § 7). See also the
Fleta, Lib. I. cap. xxxii. § 32.
[535] Étab. de Normandie, Tit. “De prandre fame à force” (Marnier).
[536] Lib. Juris Civilis Veronæ, cap. 78 (p. 63).
[537] Odofredi Summa de Pugna c. xii. (Patetta, p. 491-2).
[538] Qui calumniam illatam non probat, pœnam debet incurrere quam si
probasset reus utique sustineret.—C. 2 Decret. Caus. v. q. vi.
[539]
... ad poenas exigat æquas,
Victus ut appellans sive appellatus, eadem
Lege ligaretur mutilari aut perdere vitam.
Moris enim extiterit apud illos hactenus, ut si
Appellans victus in causa sanguinis esset,
Sex solidos decies cum nummo solveret uno
Et sic impunis, amissa lege, maneret:
Quod si appellatum vinci contigeret, omni
Re privaretur et turpi morte periret.
Guillielmi Brito. Phillippidos Lib. VIII.
It will be observed that the pre-existing Norman custom here described
is precisely that indicated above by Glanville.
[540] _E. g._ Établissements Lib. I. cap. 27 and 91.—“Cil qui seroit
vaincus seroit pendus” (cap. 82).
[541] Beaumanoir, chap. lxiv. § 10.
[542] Assises d’Antioche, Haute Cour, ch. xi.; Assises des Bourgeois,
ch. vi. vii. See also Assises de Jerusalem, cap. 317.
[543] Recta fides et æquitas et jus armorum volunt ut appellans eandem
incurrat pœnam quam defendens, si is victus fuerit et subactus.—Formula
Duelli, apud Spelman. Glossar. s. v. _Campus_.
[544] Jur. Provin. Saxon. Lib. I. c. 63.—Jur. Provin. Alamann. cap.
ccclxxxvi. §§ 19, 20 (Ed. Schilter.).
[545] Sachsische Weichbild, 82.—Jur. Provin. Alamann. cap. clxviii. §
20; clxxii. § 18 (Ed. Senckenberg.).
[546] Ibid. cap. ccxix. § 6 (Ed. Schilter.).
[547] Chron. Cornel. Zantfliet ann. 1369 (Mart. Ampl. Coll. V. 293-4).
[548] Chron. Augustan. (Pistor. III. 684, Ed. 1726).
[549] Assis. Hierosol. Alta Corte cap. cv. (Canciani, V. 208).
[550] Würdinger, Beiträge zur Geschichte des Kampfrechtes in Bayern,
p. 8.
[551] Jur. Provin. Saxon. Lib. I. c. 63, 65.—Sachsische Weichbild,
xxxv.—Jur. Provin. Alamann. cap. ccclxxxvi. § 31 (Ed. Schilter.); cap.
clxxviii. §§ 7, 8 (Ed. Senckenb.). See Würdinger, p. 11, for the solemn
sentence placing the defaulter under the ban.
[552] Proost, Législation des Jugements de Dieu, pp. 18, 21.
[553] For de Morlaas, Rubr. IV. art. 5.
[554] Horne’s Myrror of Justice, cap. iv. sect. 13.—Pipe Roll Society,
I. 65.
[555] Schlegel Comment. ad Grágás § 31.—Grágás sect. VIII. cap. 105. A
fanciful etymologist might trace to this custom the modern phrase of
“posting a coward.”
[556] Neilson, Trial by Combat, p. 128.
[557] Jur. Provin. Alamann. cap. ccclxxxvi. § 32 (Ed. Schilter.); cap.
clxxiii. § 13 (Ed. Senckenberg.).
[558] Un Miracle de Notre-Dame d’Amis et d’Amille (Monmerqué et Michel,
Théat. Français au Moyen-Age, p. 238).
Another passage in the same play signifies the equality of punishment
for appellant and defendant in cases of defeat:—
—Mais quant il seront
En champ, jamais n’en ysteront
Sans combatre, soiez-en fis,
Tant que l’un en soit desconfis;
Et celui qui vaincu sera,
Je vous promet, pendu sera:
N’en doubte nulz.
[559] Jur. Provin. Saxon, I. 63.
[560] Venables, Lincolnshire Notes and Queries, Vol. I. p. 195 (1889).
So an entry in the Pipe Roll for 1158-9 “Et in conductu Rad. Shirloc.
6_s._ 8_d._ Et pro apparatu ejusdem Rad. et socii ejus ad duellum
16_s._ 4_d._”—Pipe Roll Society, I, 2.
[561] Neilson, Trial by Combat, p. 42.
[562] _E. g._ Constit. Sicular. Lib. II. Tit. xxxvii. § 1. This was
also the case in Bohemia (Patetta, Le Ordalie, p. 159).
[563] Laurière, Table des Ordonn. p. 10.
[564] See facsimile of a record of a duel between Walter Blowberme and
Hamo le Stare, where in the background the latter unlucky defendant is
represented as hanging on a gallows (Maitland’s Select Pleas of the
Crown, Vol. I.). It had already been engraved in Bysshe’s notes to
Upton’s De Studio Militari, p. 37.
[565] Revue Historique de Droit, 1861, p. 514.
[566] Constit. Sicular. Lib. II. Tit. xxxvii. § 4.
[567] This, moreover, was not permitted by Frederic (_Ubi sup._).
[568] Jur. Provin. Saxon. I. 63.
[569] Würdinger, Beiträge, p. 22.
[570] De Militari Officio Lib. II. cap. viii.
[571] Book of Cynog, chap. xi. § 34 (Owen, II. 211).
[572] Du Boys, op. cit. I. 611.
[573] D’Achery Spicilegium, T. III. p. 376.
[574] Odofredi Summa de Pugna, vii. xi. (Patetta, pp. 490, 491).
[575] Galfridi Vit. Caroli Boni, cap. xiii. n. 94.
Similar persistence was exhibited in a combat before Richard II. in
1380. Katrington, the defeated defendant died the next day in delirium
caused by exhaustion.—Neilson’s Trial by Combat, p. 172.
[576] It is perhaps worthy of remark that in India, where the
judicial duel was unknown, in the other ordeals one of the ancient
lawgivers, Katyayana, allows, and in some cases prescribes, the use of
champions.—Patella, Le Ordalie, p. 110.
[577] L. Alamann. Add. cap. xxi.
[578] L. Longobard. Lib. I. Tit. iii. § 6, and Lib. II. Tit. lv. § 12.
[579] L. Anglior. et Werinor. Tit. XIV.
[580] Licet unicuique pro se campionem mercede conducere si eum
invenire potuerit.—Ll. Frision. Tit. XIV. c. iv.
[581] Greg. Turon. Hist. Lib. X. cap. x. In this case, both combatants
perished, when the accused was promptly put to death, showing that such
a result was regarded as proving the truth of the offence alleged.
[582] Horum enim causa accidit ut non solum valentes viribus, sed etiam
infirmi et senes lacessantur ad certamen et pugnam etiam pro vilissimis
rebus (Lib. adv. Legem Gundobadi cap. vii.). Mitte unum de tuis, qui
congrediatur mecum singulari certamine, ut probat me reum tibi esse, si
occiderit (Lib. contra Judicium Dei cap i.).
[583] Liceat ei per campionem, id est per pugnam, crimen ipsum de super
se si potuerit ejicere.—L. Longobard. Lib. I. Tit. i. § 8.
[584] Proost, Législation des Jugements de Dieu, p. 82.
[585] Jur. Provin. Saxon. Lib. I. art. 39, 48.—Sachsische Weichbild,
art. xxxv. 2. 4; art. lxxxii. 2.
[586] Patetta, Le Ordalie, pp. 427-9. Roffredo, after carefully
enumerating six cases in which champions were allowed by the law,
adds: “Hodie tamen de consuetudine permittitur cuilibet campionem
dare.”—Odofredi Summa de Pugna (Patetta, p. 485).
[587] Glanvil. de Leg. Angl. Lib. II. iii. Thus in a suit over a
knight’s fee in 1201, the plaintiffs offer a champion, Walter Wider,
“qui idem optulit ut de visu suo et auditu.”—Baildon, Select Civil
Pleas, I. 33.
[588] Cod. Leg. Norman. P. II. cap. lxiv. (Ludewig Reliq. MSS. VII.
416).
[589] Étab. de Normandie, p. 21 (Marnier).
[590] Assises d’Antioche, Haute Cour, ch. ix. xi. xii.; Assises des
Bourgeois, ch. vi. vii.
[591] Assis. Hierosol. Bassa Corte, cap. ccxxxviii. (Canciani, II.
534).—Constit. Sicular. Lib. II. Tit. xxxvii. § 2.
[592] Neilson’s Trial by Combat, pp. 88, 90-1.
[593] Horne’s Myrror of Justice, cap. iii. § 23.
[594] Myrror of Justice, cap. iv. § 11.
[595] Cod. Leg. Norman. P. II. cap. lxiv. § 18 (Ludewig VII 417).
[596] Among the crimes entailing infamy is enumerated that of “ceux qui
combatent mortelment pur loyer qui sont vanquish en combate joyné per
jugement.”—Horne’s Myrror of Justice, cap. iv. sect. 13.
[597] Et campioni qui victus fuerit, propter perjuriam quod ante
pugnam commisit, dextra manus amputetur (Capit. Ludov. Pii ann.
819, § x.).—Victus vero in duello centum solidos et obolum reddere
tenebitur. Pugil vero conductitius, si victus fuerit, pugno vel pede
privabitur (Charta ann. 1203—Du Cange).—Also Beaumanoir, Cout. du
Beauv., cap. lxvii. § 10 (Du Cange seems to me to have misinterpreted
this passage).—See also Monteil’s admirable “Histoire des Français des
divers États,” XVe Siècle, Hist. XIII.
[598] Assis. Hierosol. Bassa Corte, cap. ccxxxviii. Alta Corte, cap.
cv. (Canciani II. 534; V. 208).
[599] Assises d’Antioche, Haute Cour, ch. xi.; Assises des Bourgeois,
ch. vi. vii.
[600] Et li campions vaincus a le poing copé; car se n’estoit por le
mehaing qu’il emporte, aucuns, par barat, se porroit faindre par loier
et se clameroit vaincus, par quoi ses mestres emporteroit le damace et
le vilonie, et cil emporteroit l’argent; et por ce est bons li jugemens
du mehaing (Cout. du Beauv., cap. lxi. § 14).
[601] Isambert, Anciennes Lois Françaises V. 387.
[602] Constit. Sicular. Lib. II. Tit. xxxvii. § 3.
[603] Et post illam inquisitionem, tradat manum ipse camphio in manu
parentis aut conliberti sui ante judicem.—L. Longobard. Lib. II. Tit.
lv. § 11.
[604] Thus the oath administered by the papal legate to William of
Holland, on his receiving knighthood previous to his coronation as King
of the Romans in 1247, contains the clause “pro liberatione cujuslibet
innocentis duellum inire.”—Goldast. Constit. Imp. T. III. p. 400.
[605] Anomalous Laws, Book x. chap. ii. § 9 (Owen, II. 315). The
position thus acquired was that of brother or nephew in sharing and
paying _wer-gild_.
[606] Ut nemo furem camphium mancipiis aut de qualibet causa recipere
præsumat, sicut sæpius dominus imperator commendavit.—Capit. Carol.
Mag. ex L. Longobard. cap. xxxv. (Baluze).
[607] Novel. CXV. cap. iii. § 10—more fully set forth in Lib. III. Cod.
Tit. xxvii. l. 11.
[608] Conseil. chap. xxxiii. tit. 32.
[609] Ibid. chap. xv. tit. 87, which is a translation of Lib. IV. Dig.
Tit. ii. l. 23, § 2.
[610] Percutiat si quis hominem infamem, hoc est lusorem vel pugilem,
aut mulierem publicam, etc.—Sachsische Weichbild, Art. cxxix.
“Plusieurs larrons, ravisseurs de femmes, violleurs d’églises, batteurs
à loyer,” etc.—Ordonn. de Charles VII. ann. 1447, also Anciennes
Coutumes de Bretagne (Monteil, _ubi sup._).
[611] Johen de Beaumont dit que chanpions loiez, prové de tel chose, ne
puet home apelier á gage de bataille an nul quas, si n’est por chanpion
loiez por sa deffansse; car la poine de sa mauvese vie le doit bien en
ce punir.—Livres de Jostice et de Plet, Liv. XIX. Tit. ii. § 4.
[612] Campiones et eorum liberi (ita nati) et omnes qui illegitime
nati sunt, et omnes qui furti aut pleni latrocinii nomine satisfecere,
aut fustigationem sustinuere, hi omnes juris beneficiis carent.—Jur.
Provin. Alaman. cap. xxxvi. § 2 (Ed. Schilter.).—Jur. Provin. Saxon.
Lib. III. c. xlv.
[613] Campionibus et ipsorum liberis emendæ loco datur fulgur ex clypeo
nitido, qui soli obvertitur, ortum; hoc is qui eis satisfactionem debet
loco emendæ præstare tenetur (Jur. Prov. Alaman. cap. cccv. § 15.—Jur.
Provin. Saxon. Lib. III. art. xlv.). In the French version of the
Speculum Suevicum, these emblematic measures of damage are followed by
the remark “cestes emandes furent establies an la vieillie loy per les
roys” (P. II. c. lxxxvi.), which would appear to show that they were
disused in the territories for which the translation was made.
[614] Richstich Landrecht, Lib. II. cap. xxv.
[615] Odofredi Summa de Pugna c. v. (Patetta, p. 489).
[616] Lib. Juris Civilis Veron. cap. 125, 126 (Veronæ, 1728, p. 95).
[617] L. Longobard. Lib. II. Tit. lv. §§ 38, 40.
[618] Muratori, Antiq. Ital. Dissert. 39.
[619] L. Longobard. Lib. I. Tit. ix. § 37; Tit. x. § 4.
[620] Vix enim aut nunquam duo pugiles inveniri poterunt sic æquales,
etc.—Constit. Sicular. Lib. II. Tit. xxxiii.
[621] Ibid. Lib. I. Tit. xxxiii.
[622] Ibi tunc multi latrones a gladiatoribus singulari certamine
devicti, suspendio perierunt.—Dithmari. Chron. Lib. VII.
[623] Jur. Provin. Alaman. cap. xxxvi. § 2; cap. lx. § 1.
[624] Sachsische Weichbild, c. lxxxii. § 3.
[625] Concil. Eccles. Rotomag. p. 128 (Du Cange).
[626] Cod. Leg. Norman. P. II. c. lxiv. § 19 (Ludewig. VII. 416).
[627] De Leg. Angliæ Lib. II. cap. iii.
[628] Bracton, Lib. III. Tract. ii. cap. 32 § 7.
[629] Ibid. c. 18 § 4.
[630] See a case in which Ralph Rusdike, a witness, offers battle
against Elias of Dumbleton—“et Elias defendit totum versus eum ut
versus campionem conductitium et villanus.” Then Ralph shows that he
has an interest in the matter which warrants his acting as appellor and
battle is gaged.—Maitland’s Select Pleas of the Crown, Vol. I. p. 80.
Also another case in 1220 in which the appellant offers a silver mark
to the king for opportunity to prove that an adverse witness is a hired
champion.—Ib. p. 124. Another case in 1220 (p. 137) shows how customary
it was to impugn an adverse witness as a hired champion.
[631] Neilson’s Trial by Combat, p. 49.
[632] This charter, which has recently been found among the records of
Durham Cathedral, is printed in the London _Athenæum_ of November 10th,
1866. It is not dated, but the names of the subscribing witnesses show
that it must have been executed about the year 1260.
I owe to James Clephan, Esq., of Newcastle-on-Tyne, the interesting
fact that the Sherburn Hospital, Durham, is still in possession of the
vill of century by Ralph, son of Paulinus of York, who had obtained it
as the result of a judicial combat between his champion and that of the
opposing claimants.
[633] Neilson, Trial by Combat, p. 51.
[634] Lord Eldon, in his speech advocating the abolition of trial
by battle, in 1819, stated, “In these the parties were not suffered
to fight _in propria persona_—they were compelled to confide their
interests to champions, on the principle that if one of the parties
were slain, the suit would abate.”—Campbell’s Lives of the Chancellors,
VII. 279.
[635] Pur felony ne poit nul combattre pur autre; en personal
actions nequidant venials, list aux actors de faire les battailes
per lour corps ou per loyal tesmoigne come en droit reals sont les
combats.—Horne’s Myrror of Justice, cap. iii. sect. 23.
[636] Bracton, Lib. III. Tract. ii. cap. 21, §§ 11, 12.—Ibid. cap. 24.
[637] Regiam Majestatem, Lib. IV. cap. iii.
[638] Neilson’s Trial by Combat, p. 115. By the Burgher laws of
Scotland, a man who was incapacitated by reason of age from appearing
in the field, was allowed to defend himself with twelve conjurators.—L.
Burgor. cap. xxiv. §§ 1, 2.
[639] Assises de Jerusalem, Baisse Court, cap. 145, 146.—Beaumanoir,
cap. lxi. § 6; cap. lxii. § 4.
[640] Beaumanoir, cap. lxi. § 14.
[641] Conseil, chap. XXII. Tit. xiii.
[642] Grandes Chroniques T. IV. p. 427.
[643] Il est usage que se aucun demende la cort de bataille qui est
juege par champions loées, il la tendra le jor maimes, et si ele est
par le cors des quereléors il metra jor avenant à la tenir autre que
celui.—Coutumes d’Anjou, XIII.^e Siècle, § 74.
[644] Kar haute persone doit bien metre por lui, à deffendre soi,
home, honeste persone, se l’an l’apele, ou s’il apele autre.—Livres de
Jostice et de Plet, Liv. II. Tit. xviii.
[645] Lib. Pract. de Consuet. Remens. § 40 (Archives Législ. de Reims,
Pt. 1. p. 40).
[646] Ibid. § 14, p. 37.
[647] For de Morlaas, Rubr. liii. art. 188.
[648] Quando pugna debet fieri per campionem debet fieri eorum equa
distributio ... et etiam jure longobardo cavetur quod pugna debet fieri
per similes campiones.—Odofredi Summa de Pugna c. iv. (Patetta, p. 488).
[649] L. Jur. Civilis Veronæ cap. 125, 126 (p. 95).
[650] Patetta, Le Ordalie, pp. 427-9.
[651] Pugiles in Bigorra non nisi indigenæ recipiantur (Lagrèze, Hist.
du Droit dans les Pyrénées, p. 251). By the same code, the tariff of
payment to the champion was 20 sous, with 12 for his shield and 6 for
training—“pro præparatione.”
[652] Las Siete Partidas, Pt. VII. Tit. iv. l. 3.
[653] Du Boys, Droit Criminel des Peuples Modernes, I. 611-13.
[654] Campagnola, Lib. Juris Civ. Veronæ (Veronæ, 1728, p. xviii).
[655] Polyptichum Irminonis, App. No. 33 (Paris, 1836, p. 372).
[656] Une malvese coustume souloit courre anciemment, si comme nos
avons entendu des seigneurs de lois.—Cout. du Beauvoisis, cap. xxxviii.
§ 15.
[657] Hist. des Français, XV^e Siècle, Hist. xiii.—The tariff of
rewards paid to Blondel, and Beaumanoir’s argument in favor of
mutilating a defeated champion, offer a strong practical commentary on
the fundamental principles upon which the whole system of appeals to
the judgment of God was based—that success was an evidence of right.
[658] Bysshe’s notes to Upton’s De Studio Militari, p. 36.
[659] Neilson’s Trial by Combat, p. 150.
[660] Hist. Monast. Figeacens. (Baluz. et Mansi IV. p. 1).
[661] Abbonis Floriac. Collect. Canon. can. ii.—Histor. Trevirens.
(D’Achery Spicileg. II. 223).—Gerohi Reichersperg. de Ædificio Dei cap.
VI.
[662] Schlegel Comment. ad Grágás, p. xxii.—Dasent, in his Icelandic
Chronology (Burnt Njal, I. cciii.), places this in 1006, and Keyser
(Religion of the Northmen, Pennock’s Trans. p. 258) in 1000.
[663] The kind of Christianity introduced may be estimated by the
character of the Apostle of Iceland. Deacon Thangbrand was the son of
Willibald Count of Saxony, and even after he had taken orders continued
to ply his old vocation of viking or sea robbing. To get rid of him and
to punish him, King Olaf Tryggvesson of Norway imposed upon him the
task of converting Iceland, which he accomplished with the sword in one
hand and the Bible in the other.—See Dasent, Burnt Njal, II. 361.—Olaf
Tryggvesson’s Saga c. lxxx. (Laing’s Heimskringla, I. 441).
[664] Keyser, op. cit. p. 258.
[665] Saxon. Grammat. Hist. Dan. Lib. x.
[666] Ibid. Lib. xi.
[667] Lünig Cod. Diplom. Ital. I. 2455.—The liberal terms of this
charter show the enlightenment of the Emperor, and explain the fidelity
manifested for him by the imperial cities in his desperate struggles
with his rebellious nobles and an implacable papacy.
[668] Neilson’s Trial by Combat, pp. 33, 65, 97.
[669] Chart. Commun. Ambianens. c. 44 (Migne’s Patrolog. T. 162, p.
750).
[670] The charter is given by Proost, op. cit. p. 96.
[671] Ferrum, cacavum, pugnam, aquam, vobis non judicabit vel judicari
faciet (Muratori, Antiq. Ital. Dissert. 38).
[672] Priviléges de Lourdes, cap. ii. (Lagrèze, op. cit. p. 482).
[673] Ibid., cap. xiii. (Lagrèze p. 484). These privileges were
confirmed at various epochs, until 1407.
[674] Statuta Susatensia, No. 41 (Hæberlin Analect. Med. Ævi. p.
513). This is retained in the subsequent recension of the law, in the
thirteenth century (Op. cit. p. 526).
[675] Consuetud. Tornacens. ann. 1187, §§ ii. iii. xxi (D’Achery
Spicileg. III. 552).
[676] Oudegherst, Annales de Flandre ed. Lesbroussart. T. I. pp. 426
sqq.; T. II. not. ad. fin.
[677] Coleccion de Cédulas, etc., Madrid, 1830, Tom. VI. p.
142.—Memorial Histórico Español, Madrid, 1850, T. I. p. 47.
[678] Statuta Commun. apud Crispiacum (D’Achery Spicileg. III. 595).
[679] Legg. Villæ de Arkes § xxxi. (Ibid. p. 608).
[680] Libertates Villæ Ricomag. § 6 (Ibid. p. 671).
[681] E sobre ayso que dam e autreyam als borges de la vielle
de Maubourguet que totz los embars pusquen provar sens batalhe,
etc.—Coutumes de Maubourguet, cap. v. That this, however, was not
expected to do away entirely with the battle trial is shown by the
regulation prescribed in cap. xxxvii. (Lagrèze, op. cit. pp. 470, 474).
[682] L. Burgorum, c. 14, 15 (Skene).
[683] Warnkönig, Hist. de la Flandre, IV. 129.
[684] In omni mercato Flandriæ si quis clamorem adversus eos
suscitaverit, judicium scabinorum de omni clamore sine duello subeant;
ab duello vero ulterius liberi sint.—Warnkönig. Hist. de la Flandre,
II. 411.
[685] Nemo mercatorem de Flandria duello provocabit (Ibid. II. 426).
[686] Traité de 1228, art. 3 (Esneaux, Hist. de Russie, II. 272).
[687] Belitz de Duellis Germanorum, p. 9. Vitembergæ, 1717.
[688] Constit. Frid II. de Jur. Norimb. § 4 (Goldast. Constit. Imp. I.
291).
[689] Sachsische Weichbild, Art. xxxv. lxxii. lxxxi.-lxxxiv. lxxxix.
xc. xcii. cxiv.
[690] Henke, Gesch. des Deut. Peinlichen Rechts I. 192 (Du Boys, op.
cit. II. 590).
[691] Goldast. op. cit. I. 314.
[692] Jur. Cæsar. P. IV. cap. i. (Senckenberg Corp. Jur. German. I.
118). This portion of the Kayser-Recht is probably therefore posterior
to the rise of the Hapsburg dynasty.
[693] Belitz de Duel. German. p. 11.
[694] Jura Primæva Moraviæ, Brunæ, 1781, pp. 33, 102.
[695] “Liber adversus Legem Gundobadi” and “Liber contra Judicium
Dei” (Agobardi Opp. Ed. Baluz I. 107, 301). Both of these works
display marked ability, and a spirit of enlightened piety, mingled
with frequent absurdities which show that Agobard could not in all
things rise superior to his age. One of his favorite arguments is that
the battle ordeal was approved by the Arian heretic Gundobald, whom
he stigmatizes as “quidam superbus ac stultus hæreticus Gundobadus
Burgundionum rex.”
[696] Concil. Valentin. ann. 855 can. 12.
[697] C. 22 Decreti caus. II. q. v.
[698] Pet. Cantor. Verb. Abbrev. cap. LXXVIII.
[699] C. 1 Extra Lib. V. Tit. xiv.
[700] C. 2 Ibid.
[701] Innocent. PP. III. Regest. XI. 64—Verum quoniam hujusmodi
duellorum judicia juxta pravam quarundam consuetudinem regionum non
solum a laicis seu clericis in minoribus ordinibus constitutis, sed
etiam a majoribus ecclesiarum prælatis consueverunt, prout multorum
assertione didicimus, exerceri.
[702] Concil. Lateranens. IV. can. 18.
[703] Consuetud. S. Montisfortis (Contre le Franc-Alleu sans Tiltre, p.
229).
[704] Concil. Parisiens. ann. 1212, P. IV. c. xv. (Harduin. vi. ii.
2017).
[705] S. Raymundi Summæ Lib. II. Tit. iii.—Cardinal Henry of Susa is
equally uncompromising—Hostiensis Aureæ Summæ Lib. V. Tit. _De Cler.
pugnant._
[706] Alexandri de Ales Summæ P. III. Q. xlvi. Membr. 3.
[707] Sec. Sec. Q. 95 art. 8.
[708] Wilhelmi Egmond. Chron. (Matthæi Analect. IV. 231). Proost
(Législation des Jugements de Dieu, p. 16) gives this story, with
some variations, as occurring at Mons, and states that the duel was
authorized by no less a personage than Pope John XXII. Cornelius
Zantfliet in his Chronicle (Martene Ampl. Collect. V. 182) locates
it at Cambron in Hainault, and states that the Jew was a favorite of
William Count of Hainault. Mr. Neilson informs me that Olivier de la
Marche likewise adopts Cambron as the scene of the occurrence. The tale
apparently was one which obtained wide currency.
[709] In 1374 Gregory XI. when condemning the Sachsenspiegel laid
especial stress on the passages in which the judicial duel was
prescribed (Sachsenspiegel, ed. Ludovici, 1720, p. 619). As late as
1492, the Synod of Schwerin promulgated a canon prohibiting Christian
burial to those who fell in the duel or in tournaments.—Synod. Swerin.
ann. 1492, Can. xxiv. (Hartzheim Concil. German. V. 647).
[710] “Et si Deus adest nonne nefas est habendo justitiam succumbere
posse?... Et si justitia in duello succumbere nequit, nonne de jure
acquiritur quod per duellum acquiritur?... stultum enim est valde vires
quas Deo comfortat inferiores in pugile suspicari.”—De Monarchia II. 10
(Patetta, Le Ordalie, p. 415).
[711] Joh. Friburgens. Summæ Confessorum Lib. II. Tit. iii. Q. 3-5.
[712] Constit. Sicular. Lib. II. Tit. xxxii. xxxiii.—“Non tam vera
probatio quam quædam divinatio ... quæ naturæ non consonans, a jure
communi deviat, æquitatis rationibus non consentit.” Cf. Lib. I. Tit.
xxi. cap. 2.
[713] Cum viderit innocentes in duello succubuisse, et sontes contra
in sua iniustitia nihilominus victoriam obtinuisse. Et ideo in jura
imperii scriptum est, ubi duo ex more in duellum procedunt, hoc non
pertinet ad imperium.—Jur. Cæsar. P. II. c. 70 (Senckenberg I. 54).
[714] Quilibet sciat imperatorem jussisse ut nemo alterum ad duellum
provocet.... Nemo enim unquam fortiores provocari vidit, sed semper
debiliores, et fortiores semper triumpharunt.—Ibid. P. IV. cap. 19.
[715] Rudolphi I. Privileg. (Ludewig. Reliq. MSS. T. IV. p. 260).
[716] Goldast. Constitt. Imp. III. 446.
[717] Malleus Maleficar. Francof. 1580, pp. 527-9.
[718] Villanueva, Viage Literario, XXII. 288.
[719] Los sabios antiguos que ficieron las leyes non lo tovieron por
derecha prueba; ed esto por dos razones; la una porque muchas vegadas
acaesce que en tales lides pierde la verdat e vence la mentira; la otra
porque aquel que ha voluntad de se adventurar á esta prueba semeja que
quiere tentar á Dios nuestro señor.—Partidas, P. III. Tit. xiv. l. 8.
[720] Ibid. P. VII. Tit. iii. l. 2, 3. According to Montalvo’s edition
of the Partidas (Sevilla, 1491), these laws were still in force under
Ferdinand and Isabella.
[721] Tres dias débese acordar al reptado para escoger una de las
tres maneras que desuso dixiemos, qual mas quisiere porque se libre
el pleyto. ... ca el re nin su corte non han de mandar lidiar por
riepto.—Ibid. P. VII. Tit. iii. l. 4. Some changes were introduced in
these details by subsequent ordinances.
[722] Muera quito del riepto; ca razon es que sea quito quien
defendiendo la verdad recibió muerte.—Ibid. P. VII. Tit. iv. l. 4.
[723] Crónica de Alfonso el Onceno, cap. CCLXII.
[724] Ordenamiento de Alcalá, Tit. XXXII. ll. vii.-xi. See also the
Ordenanzas Reales of 1480, Lib. IV. Tit. ix.
[725] Meyer, Institutions Judiciaires, I. 337.
[726] Nous deffendons à tous les batailles par tout nostre demengne,
més nous n’ostons mie les clains, les respons, les convenants, etc....
fors que nous ostons les batailles, et en lieu des batailles nous meton
prueves de tesmoins, et si n’oston pas les autres bones prueves et
loyaux, qui ont esté en court laye siques à ore.—Isambert, I. 284.
Laurière (Tabl. des Ordonn. p. 17) alludes to an edict to the same
purport, under date of 1240, of which I can nowhere else find a trace.
There is no reference to it in the Tables des Ordonnances of Pardessus
(Paris, 1847).
It is a curious illustration of the fluctuating policy of the contest
that in his struggle to enforce the supremacy of the royal jurisdiction
as against the prelates of the province of Reims, one of the complaints
of the bishops at the Council of Saint-Quentin in 1235 is that he
forced ecclesiastics in his court to prove by the duel their rights
over their serfs—“Item, supplicat concilium quod dominus rex non
compellat personas ecclesiasticas probare per duellum in curia sua
homines quos dicunt suos esse de corpore suo” (Harduin. VII. 259).
[727] Se ce est hors l’obeissance le Roy, gage de bataille (Étab. de
St. Louis, Liv. II. chap. xi. xxix. xxxviii.). Beaumanoir repeats it,
a quarter of a century later, in the most precise terms, “Car tout cil
qui ont justice en le conté poent maintenir lor cort, s’il lor plest,
selonc l’ancienne coustume; et s’il lor plest il le poent tenir selonc
l’establissement le Roy” (Cout. du Beauv. cap xxxix. § 21). And again,
“Car quant li rois Loïs les osta de sa cort il ne les osta pas des
cours à ses barons” (Cap. LXI. § 15).
[728] Liv. I. chap. xxvii. xci. cxiii. etc. This is so entirely at
variance with the general belief, and militates so strongly with the
opening assertion of the Établissements (Ordonn. of 1260) that I should
observe that in the chapters referred to the direction for the combat
is absolute; no alternative is provided, and there is no allusion to
any difference of practice prevailing in the royal courts and in those
of the barons, such as may be seen in other passages (Liv. I. chap.
xxxviii. lxxxi. cxi. etc.). Yet in a charter of 1263, Louis alludes to
his having interdicted the duel in the domains of the crown in the most
absolute manner.—“Sed quia duellum perpetuo de nostris domaniis duximus
amovendum” (Actes du Parlement de Paris No. 818 A. T. I. p. 75, Paris,
1863).
[729] Établissements Liv. I. chap. clxvii.
[730] Jur. Provin. Alamann. cap. CLXXI. §§ 10, 11, 12.
[731] Pilori, échelle, carquant, et peintures de champions combattans
sont marques de haute justice.—Instit. Coutum. Liv. II. Tit. ii. Règle
47.
[732] Beaumanoir, op. cit. chap. LXI. §§ 11, 12, 13.
In Normandy, these advantages were enjoyed by all seigneurs justiciers.
“Tuit chevalier et tuit sergent ont en leurs terres leur justice de
bataille en cause citeaine; et quant li champions sera vaincuz, il
auront LX sols et I denier de la récréandise.”—Etab. de Normandie
(Ed. Marnier, p. 30). These minutely subdivided and parcelled out
jurisdictions were one of the most prolific causes of debate during the
middle ages, not only on account of the power and influence, but also
from the profits derived from them. That the privilege of decreeing
duels was not the least remunerative of these rights is well manifested
by the decision of an inquest held during the reign of Philip Augustus
to determine the conflicting jurisdictions of the ducal court of
Normandy and of the seigneurs of Vernon. It will be found quoted in
full by Beugnot in his notes on the Olim, T. I. p. 969. See also
Coutumes d’Auzon (Chassaing, Spicilegium Brivatense, p. 95).
[733] See Coutume de Saint-Bonnet, cap. 13 (Meyer, Recueil d’Anciens
Textes, Paris, 1874, I. 175).
[734] Les Olim, I. 491. It is perhaps needless to add that Mathieu’s
suit was fruitless. There are many cases recorded in the Olim showing
the questions which arose and perplexed the lawyers, and the strenuous
efforts made by the petty seigneurs to preserve their privileges.
[735] Actes du Parlement de Paris, I. 407.
[736] Recueil de Chants Historiques Français, I. 218. It is not
unreasonable to conjecture that these lines may have been occasioned
by the celebrated trial of Enguerrand de Coucy in 1256. On the plea
of baronage, he demanded trial by the Court of Peers, and claimed
to defend himself by the wager of battle. St. Louis proved that the
lands held by Enguerrand were not baronial, and resisted with the
utmost firmness the pressure of the nobles who made common cause
with the culprit. On the condemnation of de Coucy, the Count of
Britanny bitterly reproached the king with the degradation inflicted
on his order by subjecting its members to inquest.—Beugnot, Olim I.
954.—Grandes Chroniques ann. 1256.
[737] Et se li uns et li autres est si enreués, qu’il n’en demandent
nul amesurement entrer pueent par folie en périll de gages (Conseil,
chap. XV. Tit. xxvii.). Car bataille n’a mie leu ou justise a mesure
(Ibid. Tit. xxviii.). Mult a de perix en plet qui est de gages de
bataille, et mult es grans mestiers c’on voist sagement avant en tel
cas (Cout. du Beauv. chap. lxiv. § 1). Car ce n’est pas coze selonc
Diu de soufrir gages en petite querele de meubles ou d’eritages; mais
coustume les suefre ès vilains cas de crieme (Ibid. chap. vi. § 31).
[738] Actes du Parlement de Paris, T. I. No. 2269 A. p. 217.
[739] Beaumanoir, op. cit. chap. lxi. § 63.
[740] Grandes Chroniques, T. IV. p. 104.
[741] Isambert, II. 702, 806.
[742] I have not been able to find this Ordonnance. Laurière alludes
to it (Tabl. dés Ordonn. p. 59), but the passage of Du Cange which
he cites refers only to prohibition of tournaments. The catalogue of
Pardessus and the collection of Isambert contain nothing of the kind,
but that some legislation of this nature actually occurred is evident
from the preamble to the Ordonnance of 1306—“Savoir faisons que comme
ça en arrière, pour le commun prouffit de nostre royaume, nous eussions
defendu généraument à tous noz subgez toutes manieres de guerres
et tous gaiges de batailles, etc.” It is worthy of note that these
ordonnances of Philippe were no longer confined to the domain of the
crown, but purported to regulate the customs of the whole kingdom.
[743] Willelmi Egmond. Chron. (Matthæi Analect. IV. 135-7).
[744] Dont pluseurs malfaicteurs se sont avancez par la force de leurs
corps et faulx engins à faire homicides, traysons et tous autres
maléfices, griefz et excez, pource que quant ilz les avoient fais
couvertement et en repost, ilz ne povoient estre convaincuz par aucuns
tesmoings dont par ainsi le maléfice se tenoit.—Ordonnance de 1306 (Éd.
Crapelet, p. 2).
[745] Car entre tous les périlz qui sont, est celui que on doit plus
craindre et doubter, dont maint noble s’est trouvé déceu ayant bon
droit ou non, par trop confier en leurs engins et en leurs forces ou
par leurs ires oultrecuidées (Ibid. p. 34). A few lines further on,
however, the Ordonnance makes a concession to the popular superstition
of the time in expressing a conviction that those who address
themselves to the combat simply to obtain justice may expect a special
interposition of Providence in their favor—“Et se l’intéressé, sans
orgueil ne maltalent, pour son bon droit seulement, requiert bataille,
ne doit doubter engin ne force, car le vray juge sera pour lui.”
[746] Ordonnance de 1306, cap. i.
[747] Isambert, II. 850.
[748] See Les Olim, _passim_.
[749] Actes du Parlement de Paris, I. 446.
[750] Les Olim, III. 381-7.—Vaissette, Hist. Gén. de Languedoc, T. IV.,
Preuves, 140-44.
[751] Wadding. Annal. Minor. ann. 1312 No. 2.
[752] Isambert, III. 40.
[753] Chronique Métrique, I. 6375.
[754] Et quant au gage de bataille, nous voullons que il en usent, si
comme l’en fesoit anciennement.—Ordonn. Avril 1315, cap. I (Isambert,
III. 62).
[755] Nous voullons et octroions que en cas de murtre, de larrecin,
de rapte, de trahison et de roberie, gage de bataille soit ouvert, se
les cas ne pouvoient estre prouvez par tesmoings—Ordonn. 15 Mai 1315
(Isambert, III. 74).
[756] Ancien Coutumier inédit de Picardie, p. 48 (Marnier, Paris, 1840).
[757] Ordonn. Mai 1315, P. I. chap. 13 (Isambert, III. 90).
[758] Ibid. P. II. chap. 8 (Isambert, III. 95).
[759] Isambert, III. 196-221.
[760] Ordonn. 9 Mai 1330 (Isambert, IV. 369).
[761] Neron, Récueil d’Édits, I. 16.
[762] Dissertations sur la Mythologie Française.
[763] Bofarull y Mascaró, Coleccion de Documentas ineditos, VI. 355-59.
[764] De Laurière, note on Loysel, Instit. Coutum. Lib. VI. Tit. i.
Règle 22.
[765] Froissart, Liv. III. chap. xlix. (Éd. Buchon, 1846).
[766] Hist. de Charles VI. ann. 1386.
[767] Hist. de Charles VI. Liv. VI. chap. ix.
[768] Buchon, notes to Froissart, II. 537.
[769] Registre du Châtelet de Paris, I. 350 (Paris, 1861).
[770] Que jamais nuls ne fussent receus au royaume de France à faire
gages de bataille ou faict d’armes, sinon qu’il y eust gage jugé par le
roy, ou la cour de parlement.—Juvenal des Ursins, ann. 1409.
[771] Monstrelet, Liv. I. chap. lv.
[772] Nic. Uptoni de Militari Officio Lib. II. cap. iii. iv. (pp.
72-73).
[773] Très Ancienne Cout. de Bretagne, chap. 99, 129-135 (Bourdot de
Richebourg).
[774] Ancienne Cout. de Normandie, chap. 53, 68, 70, 71, 73, etc.
(Bourdot de Richebourg).
[775] Fors et Cost. de Béarn, Rubr. de Batalha (Bourdot de Richebourg,
IV. 1093).
[776] Mathieu de Coussy, chap. cxii.—Ol. de la Marche, ch. xxii. Such a
case as this justifies the opinion quoted by Olivier de la Marche, “que
le gaige de bataille fut trouvé par le diable pour gagner et avoir les
âmes de tous les deux, tant du demandeur que du deffendeur” (Traité du
Duel Judiciaire, p. 4, communicated to me by George Neilson, Esq.).
[777] D. Calmet, Hist. de Lorraine.
[778] Jehan Masselin, Journal des États de Tours, p. 320.
[779] Archives de Pau, _apud_ Mazure et Hatoulet, Fors de Béarn, p.
130. There may have been something exceptional in this case, since
the punishment was so much more severe than the legal fine of 16 sous
quoted above (Fors de Morlaas, Rubr. IV.).
[780] D. Calmet, Hist. de Lorraine.
[781] Brantôme, Discours sur les Duels. An account of this duel,
published at Sedan, in 1620, represents it as resulting even less
honorably to Fendilles. He is there asserted to have formally
submitted, and to have been contemptuously tossed out of the lists like
a sack of corn, Des Guerres marching off triumphantly, escorted with
trumpets.
[782] Fontanon, I. 665.
[783] Statuta Criminalia Mediolani e tenebris in lucem edita, Bergomi,
1594.—Statuta et Decreta antiqua Civitatis Placentiæ, Placentiæ, 1560.
[784] Patetta, Le Ordalie, p. 449.
[785] Julii PP. II. Bull. _Regis pacifici_ § 2, 1509 (Mag. Bull. Rom.
I. 499).
[786] Leon. PP. X. Bull. _Quam Deo_, 23 Julii, 1519 (Ib. p. 596).
[787] Patetla, op. cit. pp. 438-46.
[788] Eph. Gerhardi Tract. Jurid. de Judic Duellico c. ii. § II.
[789] Quia in duellorum dimicatione plurimæ hinc inde fraudes committi
possunt; raro enim illi inter quos illud fit judicium per se decertant,
sed pugiles conducunt, qui nonnunquam dono, favore, et promissis
corrumpuntur.—L. Uladis. II. c. ix. (Batthyani, I. 531).
[790] Reperio tamen indubie vulgarem purgationem sive duellum in casu
sine scrupulo admittendum quum publicæ salutis caussa fiat: et istud
est admodum laudabile.—Damhouder. Rer. Crimin. Praxis cap. xlii. No. 12
(Antverp. 1601).
[791] Concil. Trident. Sess. xxv. De Reform, cap. xix. Detestabilis
duellorum usus fabricante diabolo introductus.
[792] Anne is usus relinquendus sit arbitrio principis? Videtur quod
sic, et respiciendum esse principi quid discernat.—Le Plat, Monument.
Concil. Trident. VII. 19.
[793] Le Plat, VII. 75.
[794] Würdinger, Beiträge, pp. 17, 19.
[795] Belitz de Duellis German. p. 15.
[796] For these details I am indebted to Du Boys, Droit Criminel des
Peuples Modernes, I. 611-17, 650. See also Patetta, Le Ordalie, p. 161.
The Sachsenspiegel was extensively in use in Poland, and under it duels
continued to be lawful until its abrogation early in the sixteenth
century by Alexander I. (Ib. p. 162).
[797] Statut. Roberti III. cap. iii. The genuineness of this statute
has been questioned, but it undoubtedly reflects the practice of the
period. For the evidence, see Neilson (Trial by Combat, p. 256), who
further notes the identity of these provisions with those of Philippe
le Bel’s ordonnance of 1306.
[798] Neilson’s Trial by Combat, p. 292.
[799] Knox’s Hist. of Reformation in Scotland, pp. 322, 446-7.
[800] Neilson’s Trial by Combat, pp. 307, 310.
[801] Neilson’s Trial by Combat, p. 35. See also a very interesting
essay on the origin and growth of the jury by Prof. J. B. Thayer in the
Harvard Law Review, Jan.-March, 1892.
[802] Maitland’s Select Pleas of the Crown, p. xxiv. Whatever may have
been the desire of the royal judges, King John himself was not averse
to it, for there is a record of two duels between common malefactors
ordered to be fought before the king “quia ea vult videre” (Ib. p. 40).
[803] Spelman (Gloss. s. v. _Campus_) gives a Latin translation of this
interesting document from a MS. of the period.
Mr. Neilson draws (pp. 167, 168) a distinction, which is evidently
correct, between what he calls the chivalric duel, conducted by
marshals and constables, and the ordinary combat adjudged by the
courts of law. The former makes it appearance in the latter half of
the fourteenth century, when the common law duel was falling into
desuetude. As we have seen above, a somewhat similar development,
though not so formally differentiated, is traceable in France and Italy.
[804] 3 Henr. VII. cap. I.
[805] John Myrc’s Instructions for Parish Priests, p. 26 (Early English
Text Society, 1868).
[806] Stow’s Annals, ann. 1492.
[807] Spelman, Gloss, p. 103.—Stow’s Annals, ann. 1571.
[808] Neilson, Trial by Combat, p. 205.
[809] Maitland’s Select Pleas of the Crown, I. 92. See Neilson, p.
154, for an account of a savage combat in 1456 with an approver who
had already caused the hanging of several innocent men. In this case
the judge laid down the law that if the approver was vanquished the
defendant must be hanged for homicide. This strange ruling is not in
accordance with earlier practice. In 1220 an approver accuses seven
persons, but is defeated in the first combat and hanged, whereupon the
accused are discharged on bail (Maitland, Select Pleas, I. 123). See
two other cases in the same year (Ibid. p. 133).
[810] Hale, Pleas of the Crown, II. chap. xxix. According to Pike
(Hist. of Crime in England, I. 286 sq.), the record shows that
approvers almost invariably either died in prison or were hanged in
consequence of the acquittal of the party whom they accused. It was
very rare that a combat ensued.
[811] Rushworth’s Collections, Vol. I. P. I. pp. 788-90, P. III. p.
356. The gloves presented by the champions in such trials had a penny
in each finger; the principals were directed to take their champions to
two several churches and offer the pennies in honor of the five wounds
of Christ that God might give the victory to the right (Neilson’s Trial
by Combat, p. 149).
[812] Hale, loc. cit.
[813] Campbell’s Lives of the Chancellors of England, VI. 112.
[814] I. Barnewall & Alderson, 457.—In April, 1867, the journals record
the death at Birmingham of William Ashford the appellant in this suit.
Thornton emigrated to America, and disappeared from sight.
[815] Campbell, Chief Justices, III. 169.
[816] I. Harris and McHenry’s Md. Reps. 227.
[817] Cooper’s Statutes at Large of S. C. II. 403, 715.
[818] Kilty’s Report on English Statutes, Annapolis, 1811, p. 141.
[819] Capit. Lib. VII. cap. 259.
[820] Vita Patrum Lib. III. c. 41 (Migne’s Patrologia, T. LXXIII. p.
764).
[821] Shu-King, Pt. IV. ch. 4, 27 § 21 (after Goubil’s translation).
[822] Staunton, Penal Code of China, p. 364.
[823] Livre des Récompenses et des Peines, trad. par Stan. Julien,
Paris, 1835, p. 220.
[824] W. T. Stronach in “Journal of the North China Branch of the Royal
Asiatic Society,” New Series, No. 2, Dec. 1865, p. 176.
[825] Griffis’s “Mikado’s Empire,” New York, 1876, p. 92.
[826] Hutchinson’s Impressions of Western Africa, London, 1858.
[827] Examination of the Toxicological Effects of Sassy-Bark, by
Mitchell and Hammond (Proc. Biological Dep. Acad. Nat. Sci. Phila.,
1859).—T. Lauder Brunton’s Gulstonian Lectures, 1877 (Brit. Med.
Journ., March 26, 1877).
This would seem to support the theory of Dr. Patetta (Ordalie, p.
13) that the original form of the poison ordeals was the drinking of
water in which a fetish had been washed, the spirit of which was thus
conveyed into the person of the accused. On the other hand, there is
the fact that in some of the poison ordeals sickness was a proof of
innocence.
[828] London Athenæum, May 29, 1875, p. 713.
[829] Schweinfurth’s Heart of Africa, New York, 1874, Vol. II. pp.
32-36.
[830] Patetta, Le Ordalie, p. 70.
[831] Philadelphia Evening Bulletin, March 7, 1871.—Ellis’s Three
Visits to Madagascar, chap. I. VI.
[832] Patetta, Le Ordalie, p. 61.
[833] Ellis’s Polynesian Researches, Vol. I. ch. 14.
[834] Königswarter, op. cit. p. 202.—E. B. Tylor, in Macmillan’s
Magazine, July, 1876.
[835] Patetta, Le Ordalie, p. 61.
[836] Macpherson’s Memorials of Service in India, London, 1865, p.
83.—See also p. 364 for modes of divination somewhat akin to these.
[837] Lieut. Shaw, in Asiatic Researches, IV. 67, 84.
[838] Patetta, Le Ordalie, pp. 57, 67.
[839] Herod. II. 174.
[840] Oppert et Ménant, Documents Jurid. de l’Assyrie, Paris, 1877, pp.
93, 106, 122, 136, 191, 197, 209, 238, 242, 246, 250, 253.
It is interesting to compare with these primitive formulas the terrible
imprecations which became customary in mediæval charters against those
who should seek to impair their observance.
[841] Numb. xxvi. 55-6; xxxiii. 54.—Joshua xviii. 8-11; xix. 1, 10, 17,
24, 51.—I. Chron. xviii. 5-18, 31.—Nehem. x. 34; xi. 1.
[842] Josh. vii. 14-26.—I. Sam. xiv. 37-45. Cf. Michaelis, Laws of
Moses, art. 304.—Ewald’s Antiq. of Israel, Solly’s Translation, pp.
294-6.—Kuenen’s Religion of Israel, May’s Translation, I. 98.
[843] Mishna, Sota ix. 9; Wagenseilii Comment. op. cit. vi. 4 (Ed.
Surenhus. III. 257, 291). The curious who desire further information
on the subject can find it in Wagenseil’s edition of the Tract Sota,
with the Gemara of the Ain Jacob and his own copious and learned notes,
Altdorf, 1674.
[844] Mishcat ul-Masabih, Matthews’s Translation, Calcutta, 1810, vol.
II. pp. 221-31.
[845] Loniceri Chron. Turcic. Lib. II. cap. xvii.
[846] Königswarter, op. cit. p. 203.
[847] Collin de Plancy, Dictionnaire Infernal, s. v. _Céromancie_.
[848] The Dinkard, translated by Peshotun Dustoor Behramjee Sunjana,
vol. II, p. 65, Bombay, 1876.
[849] Vendidad, Farg. IV. 156-8. If Prof. Oppert is correct in his
rendering of the Medic Behistun inscription, the Zend version of the
Avesta is not the original, but a translation made by order of Darius
Hystaspes from the ancient Bactrian, which would greatly increase the
antiquity attributable to this record of primæval Aryan thought. See
“Records of the Past,” VII. 109.
[850] Firdusi, Shah-Nameh, XII. 4 (Mohl’s Translation, II. 188). Kai
Kaoos was the grandfather and immediate predecessor of Cyrus.
[851] The Dabistan, Shea and Troyer’s translation, I. 219.
[852] Quoted from the Dinkard by Dr. Haug in Arda-Viraf, p. 145.
[853] Hyde Hist. vet. Persar. Relig. p. 280 (Ed. 1760). See also,
Dabistan, I. 305-6.
[854] Bk. VII. st. 108.
[855] Atharva Veda II. 12 (Grill, Hundert Lieder des Atharva Veda,
Tübingen, 1879, p. 16).—Khandogya-Upanishad. VI. 16 (Max Müller’s
Translation, p. 108). In this latter passage there is a philosophical
explanation attempted why a man who covers himself with truth is not
burnt by the hot iron.
[856] Monier Williams, Indian Wisdom, 2d ed. p. 360.
[857] Man. Dharm. Sast. VIII. 114-16, 190.
[858] Institutes of Vishnu, IX.
[859] Institutes of Gautama, XIII. 1, 3, 23 (Bühler’s Translation).
So the Vasishtha Dharmasastra is equally ignorant of ordeals and
even more immoral in its teaching—“Men may speak an untruth when
their lives are in danger or the loss of their whole property is
imminent”—Vasishtha XVI. 10, 35 (Bühler’s Translation).
[860] See Halhed’s Gentoo Code, chap. iii. §§ 5, 6, 9, 10; chap. xviii.
(E. I. Company, London, 1776).—Ayeen Akbery, or Institutes of Akbar
(Gladwin’s Translation, London, 1800), vol. II. pp. 496, sqq. Also a
paper by Ali Ibrahim Khan, chief magistrate of Benares, communicated by
Warren Hastings to the Asiatic Society in 1784 (Asiatic Researches, I.
389).
[861] Duclos, Mém. sur les Épreuves.
[862] Smith’s Dict. of Antiq. s. v. _Marlyria_.
[863] Pausan. VII. xxv. 8.
[864] Festus s. v. _Lapidem_.—Liv. I. 24; XXI. 45.—Polyb. III. xxv.
6-9.—Aul. Gell. I. 21.
[865] Liv. XXII. 53. Cf. Fest. s. v. _Præjurationes_. See an example of
a similar oath taken by a whole army, Liv. ii. 45.
[866] Val. Maxim. I. i. 7; VIII. i. 5.—Ovid. Fastor. IV. 305 sqq.
[867] A scholiast on Horace, dating probably from the fifth century
of our era, describes an ordeal equivalent to the _judicium offæ_.
When slaves, he says, were suspected of theft they were taken before
a priest who administered to each a piece of bread over which certain
conjurations had been uttered and he who was unable to swallow it was
adjudged guilty (Patetta, I.e Ordalie, p. 140). Not only the date
of this deprives it of value as evidence of Roman custom, but also
the fact that Romans might well employ such means of influencing the
imagination of Barbarian or ignorant slaves.
[868] Senchus Mor. I. 25, 195. Comp. Gloss, p. 199.
[869] Anthol. IX. 125.—Cf. Julian. Imp. Epist. XVI.—Claud. in Rufinum
II. 110.—Pliny describes (Nat. Hist. VII. ii.) a somewhat similar
custom ascribed to the Pselli, an African tribe who exhaled an odor
which put serpents to sleep. Each new-born child was exposed to a
poisonous snake, when if it were legitimate the reptile would not touch
it, while if adulterine it was bitten. Another version of the same
story is given by Ælian (De Nat. Animal. I. lvii.).
[870] Keyser’s Religion of the Northmen, Pennock’s Translation, p. 259.
The extreme simplicity of the _skirsla_ finds its counterpart in modern
times in the ordeal of the staff, as used in the Ardennes and described
hereafter.
[871] First Test of Pardessus, Tit. liii. lvi.
[872] Decret. Tassilon. Tit. ii. § 7.
[873] Grimm, ap. Pictet, Origines Indo-Européennes, III. 117.
[874] Annal. Saxo ann. 1039.—Ruskaia Prawda, art. 28 (Esneaux, Hist. de
Russie, I. 181).
[875] L. Wisigoth. VI. i. 3.
[876] Lib. adv. Leg. Gundobadi iv. vi.
[877] Senatus Consult. de Monticolis Waliæ c. ii.
[878] A great variety of these _Ordines_ will be found in the
collections of Baluze, Martène, Pez, Muratori, Spelman, and others.
From these we derive most of our knowledge as to the details of the
various processes.
[879] Batthyani Leg. Eccles. Hung T. I. pp. 439, 454.
[880] Anon. Chron. Slavic. cap. xxv. (S. R. German. Septent.
Lindenbrog. p. 215).
[881] Hincmar. de Divort. Lothar. Interrog. VI.
[882] Dooms of King Æthelstan, iv. cap. 7.
[883] Adjuratio ferri vel aquæ ferventis (Baluz. II. 655).
[884] De Gloria Martyrum Lib. I. cap. 81.—Injecta manu, protinus usque
ad ipsa ossium internodia caro liquefacta defluxit.
[885] Institutes of Vishnu, IX. 33 (Jolly’s Translation).
[886] Formulæ Exorcismorum, Baluz. II. 639 sqq.
[887] Doom concerning hot iron and water (Laws of Æthelstan, Thorpe, I.
226); Baluze, II. 644.
[888] Martene de Antiq. Eccles. Ritibus, Lib. III. c. vii. Ordo. 19.
[889] Florez, España Sagrada, XIX. 377-8.
[890] “Quia in aqua ignita coquuntur culpabiles et innoxii liberantur
incocti, quia de igne Sodomitico Lot justus evasit inustus, et
futurus ignis qui præibit terribilem judicem, Sanctis erit innocuus
et scelestos aduret, ut olim Babylonica fornax, quæ pueros omnino non
contigit.”—Interrog. vi.
[891] Vit. S. Æthelwoldi c. x. (Chron. Abingd. II. 259. M. R. Series).
[892] First text of Pardessus, Tit. liii. lvi.; MS. Guelferbyt. Tit.
xiv. xvi.; L. Emend. Tit. lv. lix.
[893] L. Frision. Tlt. iii.; L. Æthelredi iv. § 6; L. Lombard. Lib. I.
Tit. xxxiii. § 1.
[894] Grágás, Sect. VI. cap. 55.
[895] Ruskaia Prawda, Art. 28.
[896] Jur. Provin. Saxon. Lib. I. art. 39; Jur. Provin. Alamann. cap.
xxxvii. §§ 15. 16.
[897] Du Cange.
[898] Defens. Probæ Aquæ; Frigid, §§ 167, 169, etc.
[899] J. H. Böhmer, Jus. Eccles. Protestantium T. V. p. 597.
[900] Ayeen Akbery, II. 498. This work was written about the year 1600
by Abulfazel, vizier of the Emperor Akbar. Gladwin’s Translation was
published under the auspices of the East India Company in 1800. See
also Ali Ibrahim Khan, in Asiatic Researches, I. 398.
[901] Ali Ibrahim Khan, loc. cit.
[902] D’Achery, Not. 119 ad Opp. Guibert. Noviogent.
[903] Vit. S. Bertrandi Convenar. No. 15 (Martene Ampliss. Collect. VI.
1029-30).
[904] Pet. Cantor. Verb. Abbrev. Not. in cap. lxxviii. (Migne’s Patrol.
T. CCV. p. 471).
[905] Natur. Histor. L. VII. c. 2.
[906] “Si titubaverit, si singulos vomeres pleno pede non presserit,
si quantulumcunque læsa fuerit, sententia proferatur.”—Annal. Winton.
Eccles. (Du Cange, s. v. _Vomeres_). Six is the number of ploughshares
specified in the celebrated trial of St. Cunigunda, wife of the emperor
St. Henry II. (Mag. Chron. Belgic.). Twelve ploughshares are prescribed
by the Swedish law (Legg. Scan. Provin. Lib. VII. c. 99. Ed. Thorsen.
p. 170).
[907] Legg. Æthelstan. iv. § 6; Ætheldred. iii. § 7; Cnut. Secular, §
58; Henrici I. lxvi. 9.
[908] Legg. Scan. Provin. Lib. VII. c. 99 (Ed. Thorsen, pp. 170-2).
[909] Fuero de Baeça, _ap._ Villadiego, Fuero Juzgo, fol. 317_a_.
[910] Du Cange, s. v. _Ferrum candens_.
[911] Laws of Ethelstan, iv. § 7.—Adjuratio ferri vel aquæ ferventis
(Baluz. II. 656).—Fuero de Baeça (_ubi sup._).
[912] For instance, see various forms of exorcism given by Baluze,
II. 651-654. Also Dom Gerbert (Patrologiæ CXXXVIII. 1127); Goldast.
Alamann. Antiquitat. T. II. p. 150 (Ed. Senckenberg).
[913] Petri Cantor. Verb. Abbreviat. cap. lxxviii. (Patrol. CCV. 233).
[914] Weber’s Hist. of Indian Literature, Mann & Zachariae’s
Translation, p. 73.
[915] Travels of Hiouen Thsang (Wheeler, Hist. of India, III. 262).
[916] Institutes of Vishnu, XI.—Yajnavalkya II. 103-6 (Stenzler’s
Translation, p. 61).
It is easy to understand the prescription of Vishnu that the fire
ordeal is not to be administered to blacksmiths or to invalids, but not
so easy that it was forbidden during summer and autumn (Ib. X. 25-6).
Yajnavalkya, moreover, says that the ordeals of fire, water, and poison
are for Sudras (II. 98).
[917] Ayeen Akbery, II. 497.—Patella, Le Ordalie, p. 106.
[918] Asiatic Researches, I. 395.
[919] Lieut. Shaw, in Asiatic Researches, IV. 69.
[920] Capit. Carol. Mag. II. ann. 803, cap. 5.
[921] Concil. Risbach. can. ix. (Hartzheim Concil. German. II. 692).
[922] L. Anglior. et Werinor. Tit. xiv.
[923] Si presbyterum occidit ... si liber est cum XII. juret; si autem
servus per xii. vomeres ignitos se purget.—C. Mogunt, ann. 848 c. xxiv.
[924] Concil. Triburiens. ann. 895 c. 22 (Harduin. Concil. VI. I. 446).
[925] Laws of Ethelred, iv. § 6.
[926] The Jus Provin. Alaman. (cap. xxxvii. §§ 15, 16; cap. clxxxvi.
§§ 4, 6, 7; cap. ccclxxiv.) allows thieves and other malefactors to
select the ordeal they prefer. The Jus Provin. Saxon. (Lib. I. art. 39)
affords them in addition the privilege of the duel.
[927] Après les serements des parties soloit lon garder la partie, et
luy porter a la maine une piece de fer flambant sil fuit frank home, ou
de mettre le main ou la pié en eaw boillant s’il ne fuit frank.—Myrror
of Justice, cap. III. sect. 23.—Cf. Glanville, Lib. XIV. c. I.
[928] Baisse Court, cap. 132, 261, 279, 280, etc.
[929] Lesbroussart’s Oudegherst, II. 707.
[930] Radevic. de Reb. Frid. Lib. I. cap. xxvi.
[931] Rouskaïa Prawda, Art. 28.
[932] Grágás, Sect. VI. c. lv.
[933] Maitland, Pleas, etc., I. 5. Again in another case in 1207 (p.
55), while in yet another a man and woman, accomplices in the same
crime, are both sent to the hot iron (p. 77). In 1203 a case occurs in
which the court offers the accused the choice between red-hot iron and
water, and he selects the former.—Ib. p. 30.
[934] O’Curry, _ap._ Pictet, Origines Indo-Européennes, III. 179.
[935] Regino. ann. 886.—Annales Metenses.
[936] Vit. S. Kunegundæ cap. 2 (Ludewig Script. Rer. German. I. 346-7).
[937] Gotfridi Viterbiensis Pars XVII., “De Tertio Othone Imperatore.”
Siffridi Epit. Lib. I. ann. 998. Ricobaldi Hist. Impp. sub Ottone
III.—The story is not mentioned by any contemporary authorities, and
Muratori has well exposed its improbability (Annali d’Italia, ann.
996); although he had on a previous occasion argued in favor of its
authenticity (Antiq. Ital. Dissert. 38). In convicting the empress of
calumny, the Countess of Modena appeared as an accuser, making good the
charge by the ordeal; but if we look upon her as simply vindicating
her husband’s character, the case enters into the ordinary course of
such affairs. Indeed, among the Anglo-Saxons, there was a special
provision by which the friends of an executed criminal might clear his
reputation by undergoing the triple ordeal, after depositing pledges,
to be forfeited in cases of defeat (Ethelred, iii. § 6), just as in
the burgher law of Northern Germany a relative of a dead man might
claim the duel to absolve him from an accusation (Sachsische Weichbild,
art. lxxxvii.). This was not mere sentiment, as in crimes involving
confiscation the estate of the dead man was at stake.
[938] Giles states (note to William of Malmesbury, ann. 1043) that
Richard of Devizes is the earliest authority for this story.
[939] Dudon. S. Quintini Lib. iv.
[940] Order. Vitalis Lib. X. cap. 13.
[941] Grágás, Sect. VI. cap. 45. Andreas of Lunden early in the 13th
century speaks of it as formerly in vogue for these cases, but disused
in his time (Legg. Scan. Provin. Ed. P. G. Thorsen, Kjobenhavn, 1853,
p. 110).
[942] “E si alguna dixiere que preñada es dalguno, y el varon no la
creyere, prenda fierro caliente; e si quemada fuere, non sea creyda,
mas si sana escapare del fierro, de el fijo al padre, e criel assi como
fuero es.”—Fuero de Baeça (Villadiego, Fuero Juzgo, fol. 317_a_).
[943] Roger of Wendover, ann. 1085.
[944] Eadmeri Hist. Novor. Lib. II. (Migne, CLIX. 412).
[945] Gudeni Cod. Diplom. Mogunt. T. I. No. liii.
[946] Mazure et Hatoulet, Fors de Béarn, p. xxxviii.
[947] Hyde Relig. Vet. Persar. cap. xxiv. (Ed. 1760, pp. 320-1).
[948] Widukindi Lib. III. cap. 65.—Sigebert. Gemblac. Ann.
966.—Dithmari Chron. Lib. II. cap. viii.—Saxo. Grammat. Hist. Danic.
Lib. X. The annalists of Trèves claim the merit of this for their
archbishop Poppo, whose pontificate lasted from 1016 to 1047. According
to their legend, Poppo not only drew on an iron gauntlet heated to
redness, but entered a fiery furnace clad only in a linen garment
soaked in wax, which was consumed by the flames without injury to
him.—Gest. Trevir. Archiep. cap. xvi. (Martene Ampliss. Collect. IV.
161).
[949] Guibert. Noviogent. de Incarnat. contra Judæos Lib. III. cap. xi.
Guibert states that he had this from a Jew, who was an eye-witness of
the fact.
Somewhat similar was a volunteer ordeal related by Gregory of Tours,
when a Catholic disputing with an Arian threw his gold ring into
the fire and when heated to redness placed it in his palm with an
adjuration to God that if his faith was true it should not hurt him,
which of course proved to be the case.—Greg. Turon. de Gloria Confess,
c. xiv.
[950] Legend, de S. Olavo (Langebek II. 548).
[951] Cæsar. Heisterbach. Dial. Mirac. Dist. III. c. xvi. xvii.
[952] Raine’s Church of York (English Historical Review, No. 9, p. 159).
[953] Legg. Scan. Provin. Lib. v. c. 57 (Ed. Thorsen, pp. 139-40).
[954] This text is given by Kausler, Stuttgard, 1839, together with an
older one compiled for the lower court of Nicosia.
[955] Pardessus, Us et Coutumes de la Mer, I. 268 sqq.
[956] Patetta, Le Ordalie, p. 475.
[957] Du Cange, s. v. _Ferrum Candens_.
[958] Pachymeri Hist. Mich. Palæol. Lib. I. cap. xii.
[959] Raynouard, Monuments relatifs à la Condamn. des Chev. du Temple,
p. 269.
[960] Bonif. de Morano Chron. Mutinense. (Muratori Antiq. Ital. Diss.
38).
[961] Malleus Maleficar. Francof. 1580, pp. 523-31.
[962] P. Burgmeister, who relates this in his thesis for the Doctorate
(De Probat. per aquam, &c. Ulmæ, 1680), vigorously maintains the truth
of the miracle against the assaults of a Catholic controversialist
who impugned its authenticity. The affair seems to have attracted
considerable attention at the time, as a religious question between the
old Church and the Lutherans.
[963] Cæsar. Heisterb. Dial. Mirac. Dist. X. c. xxxvi.
[964] Godelmanni de Magis Lib. III. cap. v. § 19.
[965] Annalista Saxo ann. 993.
[966] Thus Rabelais, “en mon aduiz elle est pucelle, toutesfoys ie nen
vouldroys mettre mon doigt on feu” (Pantagruel, Liv. II. chap. xv.);
and the Epist. Obscur. Virorum (P. II. Epist. 1) “Quamvis M. Bernhardus
diceret, quod vellet disputare ad ignem quod hæc est opinio vestra.”
[967] Ali Ibrahim Khan (Asiatic Researches, I. 390).
[968] Wheeler’s Hist. of India, III. 262.
[969] Targum of Palestine, Gen. xi. (Etheridge’s Translation, I.
191-2).—Shalshelet Hakkabala fol. 8_a_. (Wagenseilii Sota p. 192-3).
[970] Daniel, iii. 19-28.
[971] Rufini Historia Monachorum cap. ix.
[972] Theodori Lector. H. E. Lib. II.
[973] Greg. Turon. Hist. Francor. II. 1.—Ejusd. de Gloria Confess.
76.—S. Hildefonsi Toletani Lib. de Viris Illustribus c. iii.
[974] Quodsi servus in ignem manum miserit, et læsam tulerit, etc.—Tit.
XXX. cap. i.; also Tit. XXXI.
[975] Vit. S. Johannis Gualberti c. lx.-lxiv.—Berthold. Constantiens.
Annal. ann. 1078.
[976] Landulph. Jun. Hist. Mediol. cap. ix. x. xi. (Rer Ital. Script.
T. V.).—Muratori, Annal. Ann. 1103, 1105.
[977] Cæsar. Heisterb. Dial. Mirac. Dist. x. c. xxxiv.—The same
incident is related of St. Francis of Assisi (Vita et Admiranda
Historia Seraphici S. P. Francisci, Augsburg, 1694, xxiii).
[978] Fulcher. Carnot. cap. x.; Radulf. Cadomensis cap. c. ci.
cii. cviii.; Raimond. de Agiles (Bongars, I. 150-168). The latter
was chaplain of the Count of Toulouse, and a firm asserter of the
authenticity of the lance. He relates with pride, that on its discovery
he threw himself into the trench and kissed it while the point only
had as yet been uncovered. He officiated likewise in the ordeal,
and delivered the adjuration as Peter entered the flames: “Si Deus
omnipotens huic homini loquutus est facie ad faciem, et beatus Andreas
Lanceam Dominicam ostendit ei, cum ipse vigilaret, transeat iste
illæsus per ignem. Sin autem aliter est, et mendacium est, comburatur
iste cum lancea quam portabit in manibus suis.” Raoul de Caen, on the
other hand, in 1107 became secretary to the chivalrous Tancred, and
thus obtained his information from the opposite party. He is very
decided in his animadversions on the discoverers. Foulcher de Chartres
was chaplain to Baldwin I. of Jerusalem, and seems impartial, though
sceptical.
The impression made by the incident on the popular mind is manifested
in the fact that the Nürnberg Chronicle (fol. cxcv.) gives a veritable
representation of the lance-head.
[979] Raynaldi Annal. Eccles. ann. 1219, c. 56.
[980] Martyrol. Roman. 19 Jun.—Petri Damian. Vit. S. Romualdi c. 27.
[981] Petri Cantor. Verb. Abbreviat. cap. lxxviii. (Patrol. CCV. 229).
[982] Cæsar. Heisterbach. Dial. Mirac. Dist. III. c. xv.
[983] Luca Landucci, Diario Fiorentino, pp. 166-9.—Burlamacchi,
Vita di Savonarola (Baluz. et Mansi I. 559-63).—Processo Autentico
(Baluz. et Mansi I. 535-42).—Villari, Storia di Gir. Savonarola, II.
App. lxxi. lxxv. lxxx. lxxxiii. xc.-xciii.—Diarium Burchardi ann.
1498.—Guicciardini, III. vi.
[984] Roderici Toletani de Reb. Hispan. VI. xxvi. (see ante p. 132).
[985] Pet. Val. Cernaii Hist. Albigens. cap. III.
[986] Niceph. Gregor. Lib. VI.
[987] Chron. Samaritan. c. xlv. (Ed. Juynboll, Lug. Bat. 1848, p. 183).
[988] Dathavansa, chap. III. 11-13 (Sir M. Coomara Swamy’s Translation,
London, 1874).
[989] Plinii Hist. Natur. L. VII. c. ii.
[990] Gospel of the Infancy, III.
[991] Concil. Cæsar-August. II. ann. 592 c. 2.
[992] Martene de Antiquis Ecclesiæ Ritibus Lib. III. c. viii. § 2.
[993] Chron. Casinensis Lib. II. c. xxxiv.
[994] Matthew of Westminster, ann. 1065.
[995] Olaf Haraldss. Saga, ch. 258 (Laing’s Heimskringla, II. 349).
[996] Guibert. Noviogent. de Vita sua Lib. III. cap. xxi.
[997] Chron. Andrensis Monast. (D’Achery Spicileg. II. 782).
[998] Villanueva, Viage Literario, T. XIX. p. 42.
[999] Patetta, Le Ordalie, p. 34.
[1000] Hincmar. de Divort. Lothar. Interrog. vi. It may readily be
supposed that a skilful management of the rope might easily produce the
appearance of floating, when a conviction was desired by the priestly
operators.
[1001] L. Æthelstani I. cap. xxiii.
[1002] Martene de Antiq. Eccles. Ritibus Lib. III. c. vii. Ordo 8.
[1003] Petri Cantor. Verb. Abbreviat. cap. lxxviii. (Patrol. CCV. 233).
[1004] De Divort. Lothar. Interrog. vi.
[1005] Ordo S. Dunstani Dorobern. (Baluze II. 650).
[1006] Institutes of Vishnu IX. 29-30, XII.--Yajnavalkya II. 98,
108-9.—Ayeen Akbery, II. 497.—Some unimportant variations in details
are given by Ali Ibrahim Khan (As. Researches, I. 390). Hiouen Thsang
describes a variant of this ordeal in which the accused was fastened
into one sack and a stone in another; the sacks were then tied together
and cast into a river, when if the man sank and the stone rose he
was convicted, while if he rose and the stone sank he was acquitted
(Wheeler’s Hist. of India, III. 262).
[1007] Canciani Legg. Barbar. T. I. pp. 282-3.—Martene de Antiq.
Eccles. Ritibus Lib. III. c. vii. Ord. 9, 16.
[1008] Baluze II. 646.—Mabillon Analect. pp. 161-2 (_ap._
Cangium).—Muratori Antiq. Ital. Diss. 38.—Jureti Observat. ad Ivon.
Epist. 74. An Ordo printed by Dr. Patetta from an early tenth century
MS. (Archivio Giuridico, Vol. XLV.) mixes up Popes Eugenius and Leo,
the Emperor Leo and Charlemagne in a manner to show how exceedingly
vague were the notions concerning the introduction of the ordeal,
“Incipit juditium aqua frigida. Quod dominus eugenius et leo imperator
et episcopi vel abbati sive com ti fecerunt.... Similiter fecit domnus
carolus imperator pro domnus leo papa, etc.”
[1009] Lib. adv. L. Gundobadi cap. ix.—Lib. contra Judic. Dei. c. i.
[1010] Arguments for its earlier use in Europe have been drawn from
certain miracles related by Gregory of Tours (Mirac. Lib. I. c. 69-70),
but these relate to innocent persons unjustly condemned to drowning,
who were preserved, and therefore these cases have no bearing on the
matter. The Epistle attributed by Gratian to Gregory I. (c. 7 § 1 Caus.
II. q. v.), in which the cold-water ordeal is alluded to, has long
since been restored to its true author, Alexander II. (Epist. 122).
[1011] Capit. Wormat. ann. 829, Tit. II. cap. 12.—L. Longobard. Lib.
II. Tit. lv. § 31.
[1012] De Divort. Lothar. Interrog. vi.
[1013] Assisa facta apud Clarendune §§ 1, 2.—Assisa apud Northamtoniam
(Gesta Henrici II. T. II. p. cxlix.; T. I. p. 108.—M. R. Series).
[1014] Opusc. adv. Hincmar. Laudun. cap. xliii.
[1015] L. Longobard. Lib. I. Tit. ix. § 39.
[1016] Recess. Convent. Alsat. anno 1051, § 6 (Goldast. Constit. Imp.
II. 48).
[1017] De Legg. Angliæ Lib. XIV. cap. i.
We have seen above (p. 292), however, that this rule was by no means
invariable. In addition to the cases there adduced another may be cited
when in 1177 a citizen of London who is qualified as “nobilissimus et
ditissimus,” accused of robbery, was tried by the water ordeal, and on
being found guilty offered Henry II. five hundred marks for a pardon.
The dazzling bribe was refused, and he was duly hanged.—Gesta Henrici
II. T. I. p. 156.
[1018] Regiam Majestatem Lib. IV. cap. iii. § 4.
[1019] Text. Herold. Tit. LXXVI.
[1020] Mazure et Hatoulet, Fors de Béarn, p. xxxi.
[1021] Conrad. Ursperg. sub. Lothar. Saxon.
[1022] Quidam illustris vir.—Othlon. de Mirac. quod nuper accidit etc.
(Migne’s Patrol. T. CXL. p. 242).
[1023] Concil. Ausonens. ann. 1068 can. vii. (Aguirre, IV. 433).
[1024] Juris Feud. Alaman. cap. lxxvii. § 2.—Jur. Prov. Saxon. Lib.
III. c. 21.
[1025] MS. Brit. Mus. quoted by Pertz in Hugo. Flaviniac. Lib. II.
[1026] Hermann. de Mirac. S. Mariæ Laudun. Lib. III. cap. 28.
[1027] Lodharius ... Gerbergam, _more maleficorum_, in Arari mergi
præcepit.—Nithardi Hist. Lib. I. ann. 834.
[1028] Plinii Natur. Histor. L. VII. c. ii.
[1029] Ameilhon, de l’Épreuve de l’Eau Froide.
[1030] In earlier times, various other modes of proof were habitually
resorted to. Among the Lombards, King Rotharis prescribed the judicial
combat (L. Longobard. Lib. I. Tit. xvi. § 2). The Anglo-Saxons
(Æthelstan. cap. VI.) direct the triple ordeal, which was either
red-hot iron or boiling water.
[1031] Regest. Ludovici Hutini (_ap._ Cangium).
[1032] Mall. Maleficarum.
[1033] Wieri de Præstigiis Dæmonum pp. 589, 581.
[1034] Scribonii Epist. de Exam. Sagarum. Newald Exegesis Purgat.
Sagarum. These tracts, together with Rickius’s “Defensio Probæ Aquæ
Frigidæ,” were reprinted in 1686 at Leipsic, in 1 vol. 4to.
[1035] De Magor. Dæmonomania, Basil. 1581, pp. 372, 385.
[1036] Binsfeldi Tract. de Confess. Malefic. pp. 287-94 (Ed. 1623). He
argues that, as the proceeding was unlawful, confessions obtained by
means of it were of no legal weight.
[1037] Wieri _op. cit._ p. 589.
[1038] Godelmanni de Magis Lib. III. cap. v. §§ 30, 35.
[1039] P. Burgmeister Dissert. de Probat. per aquam, etc. Ulmæ, 1680, §
44. Burgmeister adopts the explanation of Binsfeld to account for the
cases in which witches floated.
[1040] Königswarter, _op. cit._ p. 176.—Bochelli Decr. Eccles.
Gallicanæ, Paris, 1609, p. 1211.
[1041] “Porro, nostra memoria, paucis abhinc annis, solebant judices
reos maleficii accusatos mergere, pro certo habentes incertum crimen
hac ratione patefieri.”—Notæ ad Legem Salicam.
[1042] Tanquam aqua suum in sinum eos non admitteret, qui
excussa baptismi aqua se omni illius sacramenti beneficio ultro
orbarunt.—Dæmonologiæ Lib. III. cap. vi.
[1043] Rogers’ Scotland, Social and Domestic, p. 266 (Grampian Club,
1869).
[1044] Dissert. Inaug. de Torturis Th. XVIII. § xi. Basil. 1661.
[1045] N. Brandt de Legitima Maleficos et Sagas investigandi et
convincendi ratione, Giessen, 1662.
[1046] P. Burgmeister Dissert. de Probat. per aquam ferventem et
frigidam, §§ 29, 39-41, Ulmæ, 1680.
[1047] Le Brun, Histoire critique des Pratiques Superstitieuses, pp.
526-36 (Rouen, 1702).
[1048] F. M. Brahm de Fallacibus Indiciis Magiæ, Halæ Magdeburg. 1709.
[1049] J. C. Nehring de Indiciis, Jenæ, 1714.
[1050] J. H. Böhmer, Jur. Eccles. Protestant. T. V. p. 608.
[1051] Per aquam, tum frigidam ut hodiernum passim in sagarum
inquisitionibus.—Eph. Gerhardi Tract. Jurid. de Judic. Duellico, cap.
i. § 4 (Francof. 1735).
[1052] Antiq. Ital. Dissert. 38.
[1053] Qui ex levi suspicione, in tali crimine delatas, nec confessas,
nec convictas, ad torturas, supernatationem aquarum, et alia eruendæ
veritatis media, tandem ad ipsam mortem condemnare ... non verentur,
exempla proh dolor! plurima testantur.—Synod. Culmens. et Pomesan. ann.
1745, c. v. (Hartzheim Concil. German. X. 510).
[1054] Meyer, Institutions Judiciaires, I. 321.
[1055] Königswarter, op. cit. p. 177.
[1056] Spottiswoode Miscellany, Edinburgh, 1845, II. 41.
[1057] V. Bogisic, in Mélusine, T. II. pp. 6-7.
[1058] Hartausen, Études sur la Russie (Du Boys, Droit Criminel des
Peuples Modernes, I. 256).
[1059] Institutes of Vishnu, X.—In the code of Yajnavalkya (II.
100-102) there are some differences in the process, but the statement
in the text is virtually the same as that in the Ayeen Akbery (II. 486)
as in force in the seventeenth century.
[1060] Rickii Defens. Probæ Aq. Frigidæ, § 41.
[1061] Collin de Plancy, Diet. Infernal, s. v. _Bibliomancie_.
[1062] Kœnigswarter, _op. cit._ p. 186.
[1063] J. H. Böhmer, Jur. Eccles. Protestant. T. V. p. 608.
[1064] E. B. Tylor in Macmillan’s Magazine, July, 1876.
[1065] Formulæ Bignonianæ, No. xii.
[1066] Vit. S. Lamberti (Canisii et Basnage, II. 140).—Pseudo Bedæ Lib.
de Remed. Peccator. Prologus (Wasserschleben, Bussordnungen, Halle,
1851, p. 248).
[1067] Capit. Pippini ann. 752, § xvii.
[1068] Chart. Division, cap. xiv. Capit. ann. 779, § x.; Capit. IV.
ann. 803, §§ iii. vi.; in L. Longobard. Lib. II. Tit. xxviii. § 3; Tit.
lv. § 25, etc.
[1069] Ughelli Italia Sacra T. V. p. 610 (Ed. 1653).
[1070] Capit. Car. Mag. incerti anni c. x. (Hartzheim. Concil. German.
I. 426).
[1071] Capit. Lud. Pii ann. 816, § 1 (Eccardi L. Francorum, pp. 183,
184).
[1072] Rudolph. Fuldens. Vitæ S. Liobæ cap. xv. (Du Cange, s. v.
_Crucis Judicium_).
[1073] Concil. Aquisgran. cap. xvii.
[1074] L. Longobard. Lib. II. Tit. lv. § 32.
[1075] Not. ad Libb. Capit. Lib. I. cap. 103. This derives additional
probability from the text cited immediately above, relative to the
substitution of this ordeal for the duel, which is given by Eckhardt
from an apparently contemporary manuscript, and which, as we have seen,
is attributed to Louis le Débonnaire in the very year of the Council of
Aix-la-Chapelle. It is not a simple Capitulary, but an addition to the
Salic Law, which invests it with much greater importance. Lindenbruck
(Cod. Legum Antiq. p. 355) gives a different text, purporting likewise
to be a supplement to the Law, made in 816, which prescribes the duel
in doubtful cases between laymen, and orders the ordeal of the cross
for ecclesiastical causes—“in Ecclesiasticis autem negotiis, crucis
judicio rei veritas inquiratur”—and allows the same privilege to the
“imbecillibus aut infirmis qui pugnare non valent.” Baluze’s collection
contains nothing of the kind as enacted in 816, but under date of 819
there is a much longer supplement to the Salic law, in which cap. x.
presents the same general regulations, almost verbatim, except that in
ecclesiastical affairs the testimony of witnesses only is alluded to,
and the _judicium crucis_ is altogether omitted. The whole manifestly
shows great confusion of legislation.
[1076] Chart. Divisionis ann. 837, cap. 10.
[1077] Meyer, Recueil d’Anciens Textes, Paris, 1874, p. 12.
[1078] Sir John Shore, in Asiatic Researches, IV. 362.
[1079] Half an ounce, according to a formula in a MS. of the ninth
century, printed by Dom Gerbert (Migne’s Patrolog. CXXXVIII. 1142).
[1080] Baluze II. 655.
[1081] Muratori, Antiq. Ital. Dissert. 38.—For three other formulas see
_Fasciculus Rerum Expetendarum et Fugiendarum_, Ed. 1690, II. 910.
[1082] Martene de Antiq. Eccles. Ritibus Lib. III. c. vii. Ordo 15.
[1083] Decam. Giorn. VIII. Nov. 6.
[1084] This account, with unimportant variations, is given by Roger of
Wendover, ann. 1054, Matthew of Westminster, ann. 1054, the Chronicles
of Croyland, ann. 1053, Henry of Huntington, ann. 1053, and William of
Malmesbury, Lib. II. cap. 13, which shows that the legend was widely
spread and generally believed, although the Anglo-Saxon Chronicle,
ann. 1052, and Roger de Hoveden, ann. 1053, in mentioning Godwin’s
death, make no allusion to its being caused in this manner. A similar
reticence is observable in an anonymous Life of Edward (Harleian MSS.
526, p. 408 of the collection in M. R. Series), and although this is
perhaps the best authority we have for the events of his reign, still
the author’s partiality for the family of Godwin renders him not
altogether beyond suspicion.
No great effort of scepticism is requisite to suggest that Edward,
tired of the tutelage in which he was held, may have made way with
Godwin by poison, and then circulated among a credulous generation the
story related by the annalists.
[1085] Lives of Edward the Confessor, p. 119 (M. R. Series).
[1086] Dooms of Ethelred, IX. § 22; Cnut. Eccles. Tit. v.
[1087] Alium examinis modum, nostro etiamnunc sæculo, sæpe malo modo
usitatum.—Cod. Legum Antiq. p. 1418.
[1088] De Mirac. S. Benedicti. Lib. I. c. v.
[1089] Gesta Treverorum, continuat. I. (Migne’s Patrol. CLIV. 1205-6).
[1090] Ayeen Akbery, II. 498.
[1091] Ali Ibrahim Khan (Asiatic Researches, I. 391-2).
[1092] Lieut. Shaw in As. Researches, IV. 80.
[1093] Institutes of Vishnu, XIV.—Yajnavalkya, II. 112-13.
[1094] Vitodurani Chron. ann. 1336.
[1095] Roger of Wendover, ann. 1051.
[1096] Cæsar. Heisterbacens. Dial. Mirac. Dist. II. c. v.
[1097] Ibid. Dist. IX. c. xxxviii.
[1098] Baluz. et Mansi Miscell. II. 575.
[1099] Rod. Glabri Hist. Lib. V. cap. i.
[1100] Greg. Turon. Hist. Lib. X. cap. 8.
[1101] Dooms of Ethelred, X. § 20; Cnut. Eccles. Tit. V.
[1102] C. 23, 26 Caus. II. q. v.
[1103] Reginonis Continuat. ann. 941.
[1104] Dithmari Chron. Lib. II.
[1105] Hist. Archiep. Bremens. ann. 1051.—Lambert. Hersfeld. ann.
1050.—Hartzheim. Concil. German. III. 112.
[1106] Regino ann. 869.—Annal. Bertiniani.
[1107] Helgaldi Epitome Vitæ Roberti Regis.
[1108] Duclos, Mémoire sur les Épreuves.
[1109] Lambert. Hersfeld. ann. 1077.
[1110] This anecdote rests on good authority. Peter Damiani states that
he had it from Hildebrand himself (Opusc. XIX. cap. vi.), and Calixtus
II. was in the habit of relating it (Pauli Bernried. Vit. Greg. VII.
No. 11).
[1111] Bernald. Constant. Chron. ann. 1077.
[1112] Hugon. Flaviniac. Chron. Lib. II. ann. 1080.—Lambert. Hersfeld.
ann. 1076.
[1113] Ciruelo, Reprovacion de las Supersticiones, P. II. cap. vii.
Barcelona, 1628. The first edition appeared in 1539 at Salamanca.
[1114] Del Rio Disquis. Magic. L. IV. c. iv. q. 3.—P. Kluntz Dissert,
de Probat. per S. Eucharist. Ulmæ, 1677.
[1115] Ayeen Akbery, II. 498. This form of ordeal is allowed for all
the four castes.
[1116] Ali Ibrahim Khan (As. Researches I. 392).
[1117] “Sors enim non aliquid mali est, sed res est in dubitatione
humana divinam indicans voluntatem.”—S. Augustini Enarrat. in Psal.
XXX. Serm. ii. §13.—Gratian. c. I. Caus. XXVI. q. ii.—Gratian, however,
gives an ample array of other authorities condemning it.
[1118] Ad ignem seu ad sortem se excusare studeat.—Tit. XXXI. § 5.
[1119] Pact. Childeberti et Chlotarii, ann. 593, § 5: “Et si dubietas
est, ad sortem ponatur.” Also § 8: “Si litus de quo inculpatur ad
sortem ambulaverit.” As in § 4 of the same document the _æneum_ or
hot-water ordeal is provided for freemen, it is possible that the lot
was reserved for slaves. This, however, is not observed in the Decret.
Chlotarii, ann. 595, § 6, where the expression, “Si de suspicione
inculpatur, ad sortem veniat,” is general in its application, without
reservation as to station.
[1120] Ecgberti Excerpt. cap. lxxxiv. (Thorpe, II. 108).
[1121] Conc. Calchuth. can. 19 (Spelman. Concil. Brit. I. 300).
[1122] Leon. PP. IV. Epist. VIII. c. 4 (Gratian, c. 7. Caus. XXVI.
q. v.).
[1123] L. Frision. Tit. XIV. §§ 1, 2. This may not improbably be
derived from the mode of divination practised among the ancient
Germans, as described by Tacitus, De Moribus German, cap. x.
[1124] Sullivan, _ap._ Pictet, Origines Indo-Européennes, III. 179.
[1125] When used for purposes of divining into the future, these
practices were forbidden. Thus, as early as 465, the Council of Vannes
denounced those who “sub nomine fictæ religionis quas sanctorum
sortes vocant divinationis scientiam profitentur, aut quarumcumque
scripturarum inspectione futura promittant,” and all ecclesiastics
privy to such proceedings were to be expelled from the church (Concil.
Venet. can. xvi.). This canon is repeated in the Council of Agde
in 506, where the practice is denounced as one “quod maxime fidem
catholicæ religionis infestat” (Conc. Agathens. can. xlii.); and a
penitential of about the year 800 prescribes three years’ penitence for
such acts.—Ghaerbaldi Judicia Sacerdotalia c. 29 (Martene Ampl. Coll.
VII. 33).
[1126] Baldric. Lib. I. Chron. Camerac. cap. 21 (Du Cange, s. v.
_Sors_).
[1127] Decret. Caus. XXVI. q. ii.
[1128] Concil. Barcinon. II. ann. 599 c. 3.
[1129] Goll, Quellen und Untersuchungen, II. 99-105.
[1130] Hist. Monast. de Abingdon. Lib. I. (M. R. Series I. 89).
[1131] Grimm’s Teutonic Mythology, Stallybrass’s Translation, p. 1109.
[1132] E. B. Tylor on Ordeals and Oaths (Macmillan’s Mag. July, 1876).
[1133] Patetta, Le Ordalie, p. 216.
[1134] Grimm’s Teutonic Mythology, pp. 1108-9. Grimm quotes Theocritus
and Lucian to show that similar forms of divination with a sieve were
familiar in classical antiquity.
[1135] Inderwick, Side-lights on the Stuarts, p. 152.
[1136] Patetta, Le Ordalie, p. 158.
[1137] Carena, Tractatus de Officio Sanctiss. Inquisit. P. II. Tit.
xii. § xxii. In Carena’s first edition (Cremona, 1636) there is no
allusion to the subject. His attention apparently was attracted to it
by a case occurring at Cremona in 1636, where he was acting as criminal
judge. In this, Gonsalvo de Cremona, the clerical governor of Cremona,
applied to the Council of Milan in February for instructions and
received an unsatisfactory reply. He returned to the charge in June and
was effectually snubbed by the following:—
“Philippus IV. Hispaniarum Rex et Mediolani Dux.
“Dilectiss. Noster: satis fuit responsum litteris quas die 28 Febr.
proxime præteriti scripsistis ad magnificum Senatus nostri præsidem de
nece Juliæ Bellisellæ et Jo. Baptisti Vicecomitis, cujus ex vulneribus
sanguis exivit in conspectu Vespasiani Schitii, non autem Gasparis
Picenardi, pariter suspectorum eius facinoris. Igitur novissimis
litteris quibus petiistis vobis dici quid de ea re sentiamus nihil est
quod præterea respondeamus nisi ut meliora quæratis indicia et juxta ea
procedatis ad expeditionem causæ, referendo referenda.
“Mediolani 3 Julii, 1636.”
[1138] Marsilii Ficini de Immortal. Animæ Lib. XVI. c. 5.—Del Rio,
Magicarum Disquisit. Lib. I. cap. iii. Q. 4, ¶ 6.—C. C. Oelsner de Jure
Feretri cap. I. § 6 (Jenæ, 1711).
The passage relied on has usually a much less decent significance
ascribed to it—
“Idque petit corpus mens, unde ’st saucia amore:
Namque omnes plerumque cadunt in volnus et illam
Emicat in partem sanguis unde icimur ictu,
Et si cominus est hostem ruber occupat humor.”
De Rer. Nat. IV. 1041-44.
[1139] Gamal. ben Pedazhur’s Book of Jewish Ceremonies, London, 1738,
p. 11.
[1140] Roger de Hoveden, ann. 1186; Roger of Wendover; Benedicti
Abbatis Gesta Henricii II. ann. 1189.
[1141] Scott’s Minstrelsy of the Scottish Border.
[1142] Nam ut in homicidio occulto sanguis e cadavere, tangente
homicida, erumpit, quasi cœlitus poscens ultionem.—Demonologiæ Lib.
III. c. vi.
[1143] Scott’s notes to the ballad of Earl Richard.
[1144] Cobbett’s State Trials, XI. 1371.
[1145] Spottiswoode Miscellanies, II. 69.
[1146] Alphonsi de Spina Fortalicium Fidei Lib. III. consid. vii.
[1147] Vitodurani Chron. ann. 1331.
[1148] Swartii Chron. Ottbergensis § xlvii. (Paullini Antiq. Germ.
Syntagma).
[1149] Val. Anshelm, Berner-Chronik, ann. 1503 (Bern, 1886, II. 393).
[1150] Oelsner de Jure Feretri c. iii. § 8. This little thesis was
written in 1680. It seems to have met with approval, for it was
reprinted in 1711 and 1735.
[1151] Oelsner _op. cit._ cap. iii. § 7. A variant of this story is
told by Scott in his notes to the “Minstrelsy of the Scottish Border.”
In this the bone chances to be fished up from a river, where it had
lain for fifty years, and the murderer, then an old man, happens to
touch it, when it streams with blood. He confesses the crime and is
duly condemned.
[1152] Carena, _op. cit._ P. II. Tit. xii. § 22.
[1153] Oelsner, cap. iii. § 6. Joh. Christ. Nehring de Indiciis, Jenæ,
1714, p. 19.—Königswarter (_op. cit._ p. 183) tells us that this custom
was observed also in the Netherlands and throughout the North.
[1154] Unde forte contingit ut occisi hominis vulnus etiam jacente
cadavere, in eum qui vulneraverat, si modo ille comminus instet,
vulnus ipsum inspiciens, sanguinem rursus ejiciat, quod quidem
evenire nonnunquam Lucretius affirmavit et judices observarunt.—De
Immortalitate Animæ Lib. XVI. c. 5.
[1155] Marsil. Pract. Criminal. (_ap._ Binsfeld, de Confess. Maleficar.
pp. 111-12).
[1156] Carena, _loc. cit._
[1157] Patetta, Le Ordalie, p. 34.
[1158] Cujus rei rationem petunt e causis naturalibus et reddere
conatur Petrus Apponensis; quæ qualescunque tandem hæ sint, constat
evenisse sæpe, et magnis autoribus tradita exempla.—B. d’Agentré
Comment, in Consuet. Britann. p. 145 (Ed. Antverp. 1644).
[1159] Carena, _loc. cit._—Oelsner, _op. cit._ c. iv. § 2.
[1160] Carena, _loc. cit._ A similar dramatic exhibition by a corpse is
recorded in a case occurring in Germany in 1607.—Oelsner, c. iii. § 5.
[1161] I owe this account to the kindness of L. S. Joynes, M.D., of
Richmond, who informs me that he found it while examining the Accomac
County records.
[1162] Annual Register for 1767, pp. 144-5.
[1163] Dunglison’s Human Physiology, 8th Edition, II. 657.
[1164] Phila. Bulletin, April 19, 1860.—N. Y. World, June 5,
1868.—Phila. North American, March 29, 1869.
[1165] Oelsner, _op. cit._ cap. i. § 10; c. iii. § 8.
[1166] Malleus Maleficarum, Francof. 1580, pp. 21, 32.
[1167] Magicarum Disquisit. Lib. I. cap. iii. Q. 4, ¶ 6.
[1168] Tract. de Officio Sanctiss. Inquisit. P. II. Tit. xii. §
22.—“Sed utcunque sit certum est in judiciis passim fuisse practicatum
indicium istud sanguinis emissi sufficere ad torturam si doctoribus
nostris credendum est.”
[1169] De Jure Feretri, cap. ii.
[1170] Oelsner, _op. cit._ c. iv. §§ 2, 3. Cf. Zangeri Tract. de
Quæstionibus cap. ii. n. 160.—It is perhaps worthy of remark that the
earlier jurists made no allusion to it. Angelus Aretinus, Albertus
de Gandavo, and Bonifacius de Vitellinis, in discussing the proofs
requisite to justify torture, do not mention it.
[1171] As late as 1678, an anonymous _Praxis Criminalis_, printed at
Altenburg, speaks of it as a recognized process, gives instructions
as to the cautions requisite, and says the record must be sent to the
magistrate (Ib. c. i. § 11).—In 1714, Nehring (De Indiciis, Jenæ, 1714,
pp. 42-3) still quotes authorities in favor of its justifying torture,
and feels obliged to argue at some length to demonstrate its inadequacy.
[1172] Martene de antiq. Ecclesiæ Ritibus, Lib. III. c. vii. Ordo 8, 16.
[1173] Hesiodi Theogonia, v. 794-806.
[1174] August. Epist. lxxviii. §§ 2, 3 (Ed. Benedict.).—“Ut quod
homines invenire non possunt de quolibet eorum divino judicio
propaletur.”
[1175] Decreti c. 6, Caus. II. q. v.—Gregor. PP. I. Homil XXXII. in
Evangel. cap. 6.
Dr. Patetta (Ordalie, p. 15) informs us that in some parts of Piedmont
it is still believed that a perjurer will die within the year.
[1176] Munionis Histor. Compostellan. Lib. I. cap. 2, § 2.
[1177] Gregor. Turon. De Gloria Martyrum cap. 58, 103.
[1178] Sancta enim adeo est, ut nullus, juramento super eam præstito,
impune et sine periculo vitæ suæ possit affirmare mendacium.—Hist.
Monast. Abing. Lib. I. c. xii. (M. R. Series).
[1179] Radulph. Tortarii Mirac. S. Benedicti cap. xxii. (Migne’s
Patrol. T. CLX. p. 1210).
[1180] Gregor. Turon. de Glor. Confess. c. xxix.
[1181] Chambers’s Book of Days, I. 384.
[1182] Patetta, Le Ordalie, p. 34. In Tonga and Samoa false oaths taken
on certain sacred articles are likewise believed to be followed by
speedy death (Ib. p. 63).
[1183] Vit. S. Bertrandi Convenar. No. 26 (Martene Ampliss. Collect.
VI. 1035).
[1184] Cæsar. Heisterbach. Dial. Mirac. Dist. IV. c. lviii.
[1185] Institutes of Vishnu XIII.—Yajnavalkya, II. 110-111. Yajnavalkya
classes it among the ordeals reserved for the Sudra caste (Ib. II. 98).
[1186] Ayeen Akbery, II. 497.
[1187] Ali Ibrahim Khan (As. Researches, I. 391).
[1188] Wheeler’s India, III. 262.
[1189] Ali Ibrahim Khan, _ubi sup._
[1190] Fratricidas autem et parricidas sive sacerdotum interfectores
... per manum et ventrem ferratos de regno ejiciat ut instar Cain jugi
et profugi circueant terram.—Leg. Bracilai Boæmor (Annal. Saxo ann.
1039). So also a century earlier for the murder of a chief.—Concil.
Spalatens. ann. 927, can. 7 (Batthyani, I. 331).
[1191] De Successoribus S. Hidulfi cap. xviii. (Patrolog. CXXXVIII. p.
218). A similar case attested the sanctity of St. Mansuetus (Vit. S.
Mansueti Lib. II. c. 17.—Martene et Durand. Thesaur. III. 1025).
[1192] Folcardi Mirac. S. Bertin. Lib. I. c. 4.
[1193] Batthyani, Legg. Eccles. Hung. T. I. p. 413. See also Mirac. S.
Swithuni c. ii. § 32.—Mirac. S. Yvonis c. 21 (Patrol. CLV. 76, 91).
Various other instances may be found in Muratori, Antiq. Med. Ævi,
Diss. 23. Charlemagne seems to have considered it a deception to be
restrained by law.—Car. Mag. cap. I. ann. 789, § lxxvii.
[1194] Martene de antiquis Ecclesiæ Ritibus Lib. I. cap. vi. art. 4 n.
12.
[1195] Cæsar. Heisterb. Dial. Mirac. Dist. XI. c. xxvii. xxix.
[1196] Greg. Turonens. Vitæ Patrum, Cap. viii. n. 10.
[1197] Bernald. Vit. S. Gerald. cap. xv. (Baluz et Mansi I. 134).
[1198] Socratis Hist. Eccles. Lib. I. c. 25.
[1199] Theodori Lector. H. E. Lib. II. When, about the year 500, St.
Avitus bishop of Vienne was disputing with the Arians before King
Gundobald, he offered to leave the decision as to the rival faiths to
Heaven by both parties going to the tomb of St. Justus and appealing
to him, but the Arians prudently refused to imitate Saul and practise
necromantic arts.—Collatio Episcoporum coram R. Gundebaldo (Migne’s
Patrologia, LIX. 391).
[1200] Remberti Vit. St. Anscharii c. xvi. (Langebek I. 458-9).
[1201] Gesta Consul. Andegavens. c. iii. § 16 (D’Achery III. 241).
[1202] Cæsar. Heisterbach Dial. Mirac. Dist. VIII. c. lxxiii.
[1203] Legendæ de S. Olavo (Langebek II. 551-2).
[1204] Pet. Damian. Opusc. LVII. Diss. ii. c. 3, 4.
[1205] Conc. Roman. ann. 904 (898) c. 1 (Harduin. VI. I.
487).—Liutprand. Antapodos. Lib. I. c. 30, 31.
[1206] Patetta, Le Ordalie, p. 218.
[1207] Wieri de Præstigiis Dæmonum, pp. 589-90.
[1208] That this was a settled practice is shown by its existence in
the earliest text of the law (Tit. LVI.) as well as in the latest (L.
Emend. Tit. LIX.).
[1209] Si aufugerit et ordalium vitaverit, solvat plegius compellanti
captale suum et regi weram suum.—L. Cnuti Sæc. cap. xxx.—See also cap.
xli.
[1210] Et eligat accusatus alterutrum quod velit, sive simplex
ordalium, sive jusjurandum unius libre in tribus hundredis super xxx.
den.—L. Henrici I. cap. LXV. § 3. By the municipal codes of Germany,
a choice between the various forms of ordeal was sometimes allowed to
the accused who was sentenced to undergo it.—Jur. Provin. Alaman. cap.
xxxvii. §§ 15, 16. Jur. Provin. Saxon. Lib. I. Art. 39.
[1211] Dooms of Ethelstan, I. cap. 21.
[1212] First Text, Tit. LIII. and L. Emend. Tit. LV.
[1213] Jura primæva Moraviæ, Brunæ, 1781, p. 27.
[1214] Yajnavalkya, II. 96.
[1215] Institutes of Vishnu, IX. 18-19.
[1216] Yajnavalkya, II. 22.
[1217] Leg. Frision. Tit. III. c. 8, 9.
[1218] Guthrunarkvida Thridja, 9, 10 (Thorpe’s Elder Edda, pp. 106-7).
[1219] Roberti Pulli Sententt. Lib. VI. cap. liv. (Migne’s Patrologia,
T. CLXXXVI. p. 905).
[1220] Si certa probatio non fuerit.—L. Sal. Tit. XIV. XVI. (MS.
Guelferbyt). The same is found in the Pact. Childeberti et Chlotarii
§ 5.—Decret. Chlotarii II. ann. 595, § 6.—Capit. Carol. Calvi,
ann. 873, cap. 3, 7.—Cnuti Constit. de Foresta § 11: “Sed purgatio
ignis nullatenus admittatur nisi ubi nuda veritas nequit aliter
investigari.”—In the customs of Tournay in 1187, when a man has been
wounded and has no witnesses the accused can clear himself with six
conjurators if the affair occurred in the daytime, but if at night he
is forced to the cold-water ordeal (Consuet. Tornacens. § ii. _ap._
D’Achery, Spicileg. III. 551). Horne’s Myrror of Justice, cap. III.
Sect. 23: “En case ou battaille ne se poit joindre ne nul tesmognage
n’avoit lieu ... e le actor n’ad point de testmoignes a prover sa
action, adonque estoit en le volunt del deffendant a purger sa fame
per le miracle de Dieu.” Yet in an English case of murder early in the
thirteenth century, the accused was found with the murdered man’s cap
and the knife with which he had been slain, and the whole vicinage
testified to it, yet he was allowed to purge himself with the water
ordeal.—Maitland, Pleas, etc., p. 80.
[1221] Ruskaia Prawda, art. 28. Even the evidence of a slave was
sufficient to condemn the accused to the red-hot iron. If he escaped,
the accuser paid him a small fine, which was not required if the
witnesses had been freemen. In all cases of acquittal, however, there
were fines payable to the sovereign and to the ministers of justice.
[1222] Et omnis accusator vel qui alium impetit, habeat optionem quid
velit, sive judicium aque vel ferri ... et si fugiet (accusatus) ab
ordalio, reddat eum plegius wera sua.—Ethelr. Tit. III. c. vi. (Thorpe
II. 516).
[1223] Thus, in the Icelandic code—“Quodsi reus ferrum candens se
gerere velle obtulerit, hoc minime rejiciatur.”—Grágás, Sect. VI.
c. 33. So in the laws of Bruges in 1190 (§ 31), we find the accused
allowed to choose between the red-hot iron and a regular inquest—“Qui
de palingis inpetitur, si ad judicium ardentis ferri venire noluerit,
veritatem comitis qualem melius super hoc inveniri poterit, accipiet”
(Warnkönig, Hist. de la Fland. IV. 372)—showing that it was considered
the most absolute of testimony. And in a constitution of Frederic
Barbarossa “Si miles rusticum de violata pace pulsaverit ... de duobus
unum rusticus eligat, an divino aut humano judicio innocentiam suam
ostendat.”—Feudor. Lib. II. Tit. xxvii. § 3.
[1224] Thus an anonymous ecclesiastic, in an epistle quoted by Juretus
(Observat. in Ivon. Carnot. Epist. 74)—“Simoniaci non admittuntur ad
judicium, si probabiles personæ, etiam laicorum, vel feminarum, pretium
se ab eis recipisse testantur; nec aliud est pro manifestis venire ad
judicium nisi tentare Dominum.”
[1225] Duellum vel judicium candentis ferri, vel aquæ ferventis,
vel alia canonibus vel legibus improbata, nullomodo in curia
Montispessulani rati sunt, nisi utraque pars convenerit.—Statut.
Montispess. ann. 1204 (Du Cange).
[1226] Si accolis de neutrius jure constat, adeoque hac in re
testimonium dicere non queant, tum judicio aquæ res decidatur.—Jur.
Provin. Alaman. cap. cclxxviii. § 5.—Poterit enim alteruter eorum
petere probationem per aquam (wasser urteyll) nec Dominus nec
adversarius detrectare possit; sed non, nisi quum per testes probatio
fieri nequit.—Jur. Feud. Alaman. cap. lxxvii. § 2.
“Aut veritas reperiatur de hoc per aquaticum Dei judicium. Tamen
judicium Dei non est licitum adhiberi per ullam causam, nisi cujus
veritas per justitiam non potest aliter reperiri, hoc terminabitur
judicio Dei.”—Jur. Feud. Saxon. § 100 (Senckenberg. Corp. Jur. Feud.
German. p. 249).—So, also, in a later text, “judicium Domini fervida
aqua vel ferro non licet in causa aliqua experiri, nisi in qua modis
aliis non poterit veritas indagari.”—Cap. xxiv. § 19 (Ibid. p. 337).
[1227] Établissements de Normandie, Tit. de Prison (Éd. Marnier).
Precisely similar to this was a regulation in the early Bohemian
laws.—Bracilai Leges. (Patrol. CLI., 1258-9). And an almost identical
provision is found in the Anglo-Saxon jurisprudence.—L. Cnuti Sæc. cap.
xxxv.—L. Henric. I. cap. lxi. § 5.—See, also, Assises de Jerusalem,
Baisse Court, cclix.
[1228] Batthyany, Legg. Eccles. Hung. II. 105.
[1229] Et qui inveniatur per sacramentum prædictorum rettatus vel
publicatus quod fuerit robator vel murdrator vel latro vel receptor
eorum, postquam dominus rex fuit rex, capiatur et eat ad juisiam
aquæ.—Assisa de Clarenduna § 2 (Stubbs, Select Charters, p. 137). For
examples, see Maitland, Pleas, pp. 3, 4, 5, etc.
[1230] Maitland, Pleas, etc., I. 1. P. 75 is a case of a youth detained
in prison and sent to the ordeal apparently without a trial.
[1231] Ruskaia Prawda, Art. 28.
[1232] Maitland, Pleas, etc., I. 10.
[1233] Hincmari Capit. Synod. ann. 852, II. xxi.
[1234] Hincmari Epist. xxxiv.
[1235] Capit. Car. Mag. ann. 794, § 7.
[1236] Se juratores non potuerit invenire, aut ad ineum ambulat aut,
etc.—MS. Guelferbyt. Tit. XIV.
[1237] Quod si ... juratores invenire non potuerit, ad ignem seu ad
sortem se excusare studeat.—L. Ripuar. Tit. xxxi. § 5.
[1238] Dooms of Edward the Elder, cap. iii. So also in the laws of
William the Conqueror, Tit. I. cap. xiv.—“Si sen escundira sei duzime
main. E si il auer nes pot, si sen defende par juise.” The collection
known by the name of Henry I. has a similar provision, cap. lxvi. § 3.
[1239] Radevic. de Reb. Frid. Lib. I. cap. xxvi. This was an old
feature of the Barbarian codes which continued till late in the Middle
Ages. See _ante_, p. 22.
[1240] Concil. Tribur. ann. 895, can. xxii.
[1241] Yajnavalkya, II. 99.
[1242] Chart. Commun. Laudun. (Baluz. et Mansi IV. p. 39).
[1243] Consuetud. Tornacens. § iii. (D’Achery III. 551). See above, p.
54.
[1244] Ut deinceps non sint digni juramento sed ordalio.—Legg. Edwardi
cap. iii.; Æthelredi cap. i. § 1; Cnuti Sæcul cap. xxii. xxx.; Henrici
I. cap. lxv. § 3.
[1245] Capit. Car. Mag. I. ann. 809, cap. xxviii.—Capit Ludov. Pii. I.
ann. 819.
[1246] Burchardi Decret. Lib. XVI. cap. 19.
[1247] Keure de la Châtellenie de Bruges, § 28 (Warnkönig, Hist. de la
Fland. IV. 371).
[1248] Jur. Provin. Alaman. cap. clxxxvi. §§ 4, 6, 7; cap.
ccclxxiv.—Jur. Provin. Saxon. Lib. I. Art. 39.—Sachsische Weichbild,
Art. xcii. § 2.—Richstich Landrecht, cap. lii.
[1249] Si non fuere provada por mala, que aya yazido con cinco
omes.—Fuero de Baeça (Villadiego, Fuero Juzgo, fol. 317 _a_).
[1250] Capit. Car. Mag. III. ann. 813, cap. 46.
[1251] Concil. Mogunt. ann. 847, can. xxiv.—Burchardi Decret. Lib. XVI.
cap. 19.—Keure de Gand, §§ 7, 8, 12 (Warnkönig, II. 228).
The law of William the Conqueror (Tit. II. c. 3.—Thorpe, I. 488) by
which the duel was reserved for the Norman, and the vulgar ordeal for
the Saxon, might be supposed to arise from a similar distinction. In
reality, however, it was only preserving the ancestral customs of the
races, giving to the defendant the privilege of his own law. The duel
was unknown to the Anglo-Saxons, who habitually employed the ordeal,
while the Normans, previous to the Conquest, according to Houard, who
is good authority (Anc. Loix Franc. I. 221-222), only appealed to the
sword.
[1252] Martene de Antiq. Eccl. Ritibus Lib. III. c. vii. Ord. 6. For
the beliefs connected with mortuary masses see Concil. Toletan XVII.
ann. 694 c. 5; D’Argentré Collect. Judic. de novis Error. I. II. 344;
Angeli de Clavasio Summa Angelica s. v. _Interrogationes_; Diaz de
Luco, Practica Criminalis Canonica cap. xxxv.; Grillandi de Sortilegiis
q. xiv.
[1253] The severity of the ordeal, when the sufferer had no friends
among the operators to save him, may be deduced from the description of
a hand when released from its three days’ tying up after its plunge in
hot water: “inflatam admodum et excoriatam sanieque jam carne putrida
effluentem dexteram invitus ostendit” (Du Cange, s. v. _Aquæ Ferv.
Judicium_). In this case, the sufferer was the adversary of an abbey,
the monks of which perhaps had the boiling of the caldron.
[1254] L. Wisig. L. VI. Tit. i. § 3.
[1255] Ivon. Carnot. Epist. 74; Ejusd. Decr. X. 27.—C. 20 Decr. Caus.
II. q.v.
This epistle is generally attributed to Stephen V., but two MSS. of Ivo
of Chartres ascribe it to Sylvester II. (Migne’s Patrologia CLXII. 96).
[1256] Concil. Basol. cap. xi. Rainer, private secretary of Arnoul,
offered to prove his statement by giving up a slave to walk the burning
ploughshares in evidence of his truth (Ibid. cap. xxx.).
[1257] Yajnavalkya, II. 99.
[1258] Wharton and Stillé’s Med. Jurisp., 2d Edit. 1860.
[1259] Michelet, Origines du Droit, p. 349.—Proost, Jugements de Dieu,
p. 80. This seems to be derived from the _skirsla_ of the Norsemen
described above.
[1260] London Athenæum, Aug. 20, 1881, p. 247.
[1261] Polyptichum Irminonis, App. No. 34 (Paris, 1836, p. 373).
[1262] Martene, De Antiq. Eccles. Ritibus Lib. III. cap. vii. Ordo 5.
[1263] Patetta, Le Ordalie, p. 192.
[1264] Hincmari Remens. Epist. XXII. (Migne’s Patrol. CXXVI. 136).
[1265] Quod si accusatus contendere voluerit de ipso perjurio stent ad
crucem.... Hoc vero de minoribus rebus. De majoribus vero, aut de statu
ingenuitatis, secundum legem custodiant.—Capit. Car. Mag. ann. 779, §
10. That this was respected as law in force, nearly a hundred years
later, is shown by its being included in the collection of Capitularies
by Benedict the Levite (Lib. V. cap. 196).
[1266] Ut omnes judicio Dei credant absque dubitatione.—Capit. Car.
Mag. I. ann. 809, § 20.
[1267] Aimoini Chron. Continuat. Lib. V. c. 34.
[1268] Assisa facta apud Clarendune §§ 12, 13, 14 (Gesta Henrici II. T.
II. p. clii.—M. R. Series). A case in accordance with this occurs in
1212 (Maitland, Pleas, I. 63).
[1269] Gesta Henrici II. T. I. p. 108.—Cf. Bracton. Lib. III. Tract,
ii. cap. 16 § 3.
[1270] Simili modo, cauterium militis nullum tibi certum præbet
argumentum, cum per examinationem ferri candentis occulto Dei
judicio multos videamus nocentes liberatos, multos innocentes sæpe
damnatos.—Ivon. Carnot. Epist. cccv.
[1271] Pet. Cantor. Verb. Abbreviat. c. lxxviii.
[1272] Vit. Carol. Comit. Flandren. cap. xx.
[1273] Collin de Plancy, op. cit. S. V. _Fer Chaud_.
[1274] Cæsar. Heisterbach. Dial. Mirac. Dist. X. c. xxxv.
[1275] Ciruelo, Reprovacion de las Supersticiones, P. II. c. vii.
[1276] Othlon. Narrat. de Mirac. quod nuper accidit, &c. (Migne’s
Patrol. CXLVI. 243-4).
[1277] Polyptichum Irminonis, App. No. 20 (Paris, 1836, p. 354).
[1278] Olaf Haraldssons Saga, cxlv. (Laing’s Heimskringla, II. 210).
[1279] Enimvero mirum fuit ultra modum, quod fautores arsuram et
inflationem conspiciebant; criminatores ita sanam ejus videbant palmam,
quasi penitus fulvum non tetigisset ferrum.—Mirac. S. Swithuni c. ii.
§ 37. In this case the patient was a slave, whose master had vowed to
give him to the Church in case he escaped.
[1280] Ad utramque partem sint ternas personas electas, ne conludius
fieri possit.—Decret. Chlotharii II. cap. VII.
[1281] Ethelred, III. § 4.
[1282] Synod. Zaboles can. 27 (Batthyani, Legg. Eccles. Hung. T. I. p.
439).
[1283] Martene de Antiq. Eccl. Ritibus Lib. III. c. vii. Ordo 1.
[1284] Statut. Wilhelmi Regis cap. 7 § 3 (Skene II. 4).
[1285] Ibid. cap. 16.
[1286] Maitland, Pleas of the Crown, I. 75.
[1287] Nam criminosos eodem chrismate unctos aut potatos nequaquam ullo
examine deprehendi posse a multis putatur.—C. Turonens. III. ann. 813
c. 20 (Harduin. IV. 1026).
[1288] Capit. Car. Mag. II. ann. 809.—Capitul. Lib. III. c.
55.—Reginon. de Discip. Ecclesiæ I. 73.
[1289] Reginon. _op. cit._ I. 72.—Burchardi Decret. IV. 80.—Ivon.
Carnot. Decret. I. 274.
[1290] Martene de Antiq. Ritibus Ecclesiæ Lib. III. c. vii. Ordo 8.
So in a ninth century exorcism of the hot water—“et si culpabilis de
hac causa est et aliqua maleficia aut per herbas peccatum suum tegere
voluerit tua dextera evacuare dignetur.”—Patetta, Archivio Giuridico,
Vol. XLV.
[1291] Martene, _loc. cit._ Ord. 10, 18.
[1292] Du Cange, s. v. _Ferrum candens_.
[1293] Experimentum mirabile quod facit homines ire in ignem sine
læsione, vel portare ignem vel ferrum ignitum sine læsione in manu.
Recipe succum bismalvæ et albumen ovi et semen psilli et calcem et
pulveriza et confice; cum illo albumine ovi succum raphani commisce et
ex hac confectione illinas corpus tuum et manum et dimitte siccari; et
postea iterum illinas et post hoc poteris audacter sustinere ignem sine
nocumento.—Alb. Mag. de Miraculis Mundi (Binterim, Denkwürdigkeiten der
Christ-Katholischen Kirche, Bd. V. Th. iii. p. 70).
[1294] The “Liber adversus Legem Gundobadi” and “Liber contra Judicium
Dei.”
[1295] Concil. Salisburg. I. can. ix. (Dalham Concil. Salisburg. p. 35).
[1296] Ahytonis Capitular, cap. xxi. (D’Achery I. 585).
[1297] Capit. Carol. Calvi Tit. XI. c. iii. (Baluze).
[1298] Concil. Turon. ann. 925 (Martene et Durand Thes. T. IV. pp.
72-3).
[1299] Annalist. Saxo. ann. 1028.
[1300] Höfler, Concilia Pragensia, p. xiv. Prag. 1862.
[1301] Burchardi Decret. Lib. XIX. c. 5 (Migne’s Patrologia CXL. p.
973).—Corrector Burchardi cap. 155 (Wasserschleben, Bussordnungen der
abenländischen Kirche, p. 660).
[1302] Batthyani, Legg. Eccles. Hung. II. 126.
[1303] Examinati judicio aquæ mendaces inventi sunt ... aqua eos non
suscipiente.—In Cantica, Sermon. 66 cap. 12.
[1304] De Vita Sua Lib. III. cap. 18.
[1305] Concil. Remens. ann. 1157, can. 1 (Martene Ampl. Coll. VII. 75).
[1306] Hist. Vizeliacens. Lib. IV. (D’Achery Spicileg. II. 560).
[1307] Godefridi S. Pantaleon. Annal. ann. 1172 (Freher et Struv. Rer.
German. Scriptt. I. 340).
[1308] Pet. Cantor. Verb. Abbreviat. cap. lxxviii. (Patrol. CCV. 230).
[1309] Cæsar. Heisterbach. Dial. Mirac. Dist. III. c. xvi. xvii.
[1310] Döllinger, Beiträge zur Sektengeschichte des Mittelalters,
München, 1890, II. 621, 622.
[1311] Theodericus Abbas Vice-Comitem adiit paratus aut calidi ferri
judicio secundum legem monachorum per suum hominem probare, aut scuto
et baculo secundum legem secularium deffendere.—Annal. Benedict. L. 57,
No. 74, ann. 1036 (_ap._ Houard, Loix Anc. Franç. I. 267).
[1312] Judicium ferri igniti et aquæ ferventis Abrincis portaretur, si
clerici lapsi in culpam degradationis forte invenirentur.—Chart. Joan.
Abrinc. (Patrolog. CXLVII. 266).
[1313] Ivon. Carnot. Epist. ccxxxii. ccxlix. cclii.
[1314] C. Remens. ann. 1119 (Harduin. VI. 1986).—Hildeberti Cenomanens.
Epist. (D’Achery Spicileg. III. 456).
[1315] Gemma Animæ, Lib. 1 cap. 181. At least this is the only reading
which will make the passage intelligible—“Horum officium est ... vel
nuptias vel arma, vel peras, vel baculos vel judicia ferre et aquas vel
candelas ... benedicere,” where “ferre et aquas” is evidently corrupt
for “ferri et aquæ.”
[1316] Hoc autem utrum ad omnia genera purgationis, an ad hæc duo
tantum, quæ hic prohibita esse videntur, pertineat, non immerito
dubitatur propter sacrificium zelotypiæ, et illud Gregorii.—C. 20,
caus. II. q. v.
[1317] Ordo ad Frigidam Aquam, etc. (Pez, Thesaur. Anecd. T. II. P. II.
p. 635).
[1318] Ivon. Decret. X. 15.
[1319] Dialog. Ecbert. Ebor. Interrog. III. (Thorpe, II. 88).
[1320] Abbon. Floriac. Epist. viii.
[1321] Ivon. Carnotens. Epist. lxxiv.
[1322] I have treated this matter in some detail in “Studies in Church
History,” pp. 69-74, 190 sqq.
[1323] Du Cange, s. v. _Adramire._
[1324] Revue Hist. de Droit, 1861, p. 478.
[1325] Decret. Coloman. c. 11 (Batthyani T. I. p. 454).
[1326] Lagrèze, Hist. du Droit dans les Pyrénées, p. 246.
[1327] “Presbyter de ferro duas pensas et de aqua unam pensam
accipiat.” Synod. Zabolcs. ann. 1092 can. 27 (Batthyani I. 439).
Another reading makes the fee equal for both (Ib. II. 101).
[1328] Jura Primæva Moraviæ, Brunæ, 1781, p. 26.
[1329] Pet. Cantor. Verb. Abbreviat. cap. xxiv.
[1330] Orderic. Vital. Lib. V. cap. v.
[1331] Leg. Scanicar. Lib. VII. cap. 99 (Ed. Thorsen, p. 171). There
is another provision that in certain cases of murder the accused could
not be compelled to undergo the ordeal of the red-hot ploughshares
unless the accuser was supported by twelve conjurators, when, if the
accused was successful each of the twelve was obliged to pay him three
marks, and the same sum to the priest.—Ib. L. V. c. 58 (p. 140). It
was scarcely intelligible why these ordeals were not allowed to be
performed in any week in which there was a church-feast (Ibid. p.
170-1).
[1332] Post. Concil. Lateran. P. II. cap. 3, 11.
[1333] Holophernicos.... Presbyteros, qui animas hominum carissime
appreciatas vendant; fœminas nudatas aquis immergi impudicis oculis
curiose perspiciant, aut grandi se pretio redimere cogant.—De Casibus
S. Galli cap. xiv.
[1334] Alex. PP. III. Epist. 74.
[1335] Alex. PP. III. Epist. (Harduin. VI. II. 1439).
[1336] Pet. Cantor. Verb. Abbreviat. cap. lxxviii.
[1337] Hermanni Opusc. de sua Conversione c. 5 (Migne, CLXX. 814).
[1338] Anon. Libell, adversus Errores Alberonis (Martene Ampl. Coll.
IX. 1265).
[1339] C. 8 Extra V. xxxiv.
[1340] Can. 10 Extra V. 31.
[1341] Innoc. PP. III. Regest. XIV. 138.—Yet abundant miracles in
Strassburg testified to the divine favor in these trials.—Cæsar.
Hiesterbac. Dist. III. c. 16, 17.
[1342] Nec ... quisquam purgationi aquæ ferventis vel frigidæ, seu
ferri candentis ritum cujuslibet benedictionis seu consecrationis
impendat.—Concil Lateran. can. 18. In 1227, the Council of Trèves
repeated the prohibition, but only applied it to the red-hot iron
ordeal. “Item. nullus sacerdos candens ferrum benedicat.”—Concil.
Trevirens. ann. 1227, cap. ix.
[1343] Trithem. Chron. Hirsaug. ann. 1215.
[1344] Vulgaris purgatio est quæ a vulgo est inventa, ut ferri
candentis, aquæ ferventis vel frigidæ, panis vel casei, monomachiæ id
est duelli et ceteræ hujusmodi: sed ista hodie in totum reprobata est
et maledicta, tum quia inventa est a diabolo fabricante.—S. Raymundi
Summæ Lib. III. Tit. xxxi. § 1.
[1345] Ergo hujusmodi judicia sunt penitus reprobanda et purgatio per
talia.—Alex. de Ales Summæ P. III. Q. xlvi. Membr. 3.
[1346] Hostiensis Aureæ; Summæ Lib. V. _De Purg. Vulg._ § 3.
[1347] Joh. Friburgens. Summæ Confessorum Lib. III. Tit. xxxi. Q. 2, 3.
[1348] Astesani de Ast Summæ de Casibus Conscientiæ, P. I. Lib. I. Tit.
xiv.
[1349] Sachsenspiegel, ed. Ludovici, 1720, p. 619.
[1350] Fontanon, IV. 942.
[1351] Rymer, Fœd. I. 228.
[1352] Prohibitum est judicium quod fieri consuevit per ignem et per
aquam.—Mat. Westmon. ann. 1250.
[1353] De cetero non fiat judicium per aquam vel ferrum, ut consuetum
fuit antiquis temporibus.—Statut. Alex. II. cap. 7 § 3. There is some
obscurity about this provision owing to variants in the MSS., but Mr.
Neilson holds (Trial by Combat, p. 113;) that there can be little doubt
that it abolished the ordeal wholly.
[1354] Leges quæ a quibusdam simplicibus sunt dictæ paribiles ...
præsentis nostri nominis sanctionis edicto in perpetuum inhibentes
omnibus regni nostri judicibus, ut nullus ipsas leges paribiles, quæ
absconsæ a veritate deberent potius nuncupari, aliquibus fidelibus
nostris indicet.... Eorum etinim sensum non tam corrigendum duximus
quam ridendum, qui naturalem candentis ferri calorem tepescere, imo
(quod est stultius) frigescere, nulla justa causa superveniente,
confidunt; aut qui reum criminis constitutum, ob conscientiam læsam
tantum asserunt ab aquæ frigidæ elemento non recipi, quem submergi
potius aeris competentis retentio non permittit.—Constit. Sicular. Lib.
II. Tit. 31. This last clause would seem to allude to some artifice of
the operators by which the accused was prevented from sinking in the
cold-water ordeal when a conviction was desired.
This common sense view of the miracles so generally believed is the
more significant as coming from Frederic, who, a few years previously,
was ferociously vindicating with fire and sword the sanctity of the
Holy Seamless Coat against the aspersions of unbelieving heretics. See
his Constitutions of 1221 in Goldastus, Const. Imp. I. 293-4.
[1355] Statut. MSS. Caroli I. cap. xxii. (Du Cange, s. v. _Lex Parib._).
[1356] Königswarter, _op. cit._ p. 176.
[1357] Emon. Chron. ann. 1219 (Matthæi Analect. III. 72).
[1358] Issued in 1323.
[1359] Cod. Leg. Norman. P. II. c. X. §§ 2, 3 (Ludewig, Reliq.
Mictorum. VII. 292). It is a little singular that the same phrase is
retained in the authentic copy of the Coutumier, in force until the
close of the sixteenth century.—Anc. Cout. de Normandie, c. 77 (Bourdot
de Richebourg. IV. 32).
[1360] C. iii. Extra, Lib. V. Tit. xxxv.—As embodied in the Decretals
of Gregory IX. this canon omits a clause indicating how great was the
detestation of the people for the ordeal thus imposed on them—“quare
conversis et convertendis scandalum incutiunt et terrorem.”—Quint.
Compilat. Honorii III. Lib. IV. Tit. xiv.
[1361] Batthyani, Legg. Eccles. Hung. T. II. p. 436.—Hartzheim, IV. 27.
[1362] Rogeri Bacon Epist. de Secretis Operibus Artis c. ii. (M. R.
Series I. 526).
[1363] Richstich Landrecht, cap. LII. The same provisions are to be
found in a French version of the Speculum Suevicum, probably made
towards the close of the fourteenth century for the use of the western
provinces of the Empire.—Miroir de Souabe, P. I. c. xlviii. (Éd.
Matile, Neufchatel, 1843).
[1364] Villaneuva, Viage Literario, XXII. 288.—Du Cange, s. vv. _Ferrum
candens_, _Batalia_.
[1365] Coleccion de Cédulas, etc., Madrid, 1830, Tom. V. p. 142.
[1366] Memorial Histórico Español, Madrid, 1850, Tom. I. p. 47.
[1367] Concil. Palentin. ann. 1322, can. xxvi.
[1368] Non es tenuda la parte de probar lo que niega porque non lo
podrie facer.—Las Siete Partidas, P. III. Tit. xiv. l. 1.
[1369] S. Antonini Confessionale.
[1370] Angeli de Clavasio Summa Angelica s. v. _Interrogationes_. The
contemporary Baptista de Saulis speaks of ordeals in the present tense
when saying that all concerned in them are guilty of mortal sin.—Summa
Rosella, s. v. _Purgatio_.
[1371] Patetta, Le Ordalie, p. 450.
[1372] Plees del Corone, chap. xv. (quoted in 1 Barnewall & Alderson,
433).
[1373] Ciruelo, Reprovacion de las Supersticiones. P. II. cap. vii.
Salamanca, 1539.
[1374] Aventini Annal. Boior. Lib. IV. c. xiv. n. 31.
[1375] When, in 1692, Jacques Aymar attracted public attention to
the miracles of the diving-rod, he was called to Lyons to assist the
police in discovering the perpetrators of a mysterious murder, which
had completely baffled the agents of justice. Aided by his rod, he
traced the criminals, by land and water, from Lyons to Beaucaire,
where he found in prison a man whom he declared to be a participant,
and who finally confessed the crime. In 1703 Marshal Montrevel and
the intendant Baville made use of Aymar to discover Calvinists,
of whom numbers were condemned on the strength of his revelations
(Patetta, Le Ordalie, p. 33). Aymar was at length proved to be merely
a clever charlatan, but the mania to which he gave rise lasted through
the eighteenth century, and nearly at its close his wonders were
rivalled by a brother sharper, Campetti. The belief in the powers of
the divining-rod has not yet died out, and it is frequently used to
discover oil wells, springs, mines, etc.
A good account of Aymar’s career and the discussion to which it gave
rise may be found in Prof. Rubio y Diaz’s “Estudios sobre la Evocacion
de los Espiritus,” Cadiz, 1860, pp. 116-28.
[1376] Diod. Sicul. 1. lxxv.—Sir Gardiner Wilkinson (Ancient Egyptians,
Vol. II.) figures several of these little images.
[1377] See the translation of the Amherst Papyrus by Chabas,
Mélanges Égyptologiques, III.^e Serie, T. II. p. 17 (Sept. 1873).
The interpretation of the groups relating to the hands and feet is
conjectural, but they unquestionably signify some kind of violence.
M. Chabas qualifies this passage as highly important, being the first
evidence that has reached us of the judicial use of torture in Egypt.
The question has been a debated one, but the previous evidence adduced
was altogether inconclusive.
[1378] Lenormant, Man. de l’Hist. Ancienne de l’Orient, II. 141.
[1379] Herod. I. 116.
[1380] Behistun Inscription, col. II. 25-6 (Records of the Past,
VII. 98-99). It is worthy of remark that this Medic version of the
Inscription is more circumstantial as to these inflictions than the
Persian text translated by Rawlinson (Records I. 118-19).
[1381] Manu, Bk. VIII.—Institutes of Vishnu, VI. 23, VIII. IX.—Ayeen
Akbery, Tit. Beyhar, Vol. II. p. 494—Halhed’s Code of Gentoo Laws,
chap. xviii.
[1382] Albany Law Journal, 1879.
[1383] Lib. III. cap. iii.
[1384] Aristophanes (_Ranæ_, 617) recapitulates most of the processes
in vogue.
_Aiachos._ καὶ πῶς βασανίζω?
_Xanthias._ πάντα τρόπον, ἐν κλίμακι
δήσας, κρεμάσας, ὑστριχίδι μαστιγῶν, δέρων,
στρεβλῶν, ἔτι δ’είς τὰς ῥῖνας ὅζος ἐγχέων,
πλίνθους ἐπιτιθείς, παντα τἄλλα.
The best summary I have met with of the Athenian laws of torture is in
Eschbach’s “Introduction à l’Étude du Droit,” § 268.
[1385] Sueton. August. xxii.
[1386] Sueton. Tiberii lxii.
[1387] Ibid. Caii xxxii.—Claud. xxxiv.
[1388] Ibid. Tiber. lviii.
[1389] Tacit. Annal. XV. xliv.
[1390] Lactant. de Mortib. Persecut. cap. xiii.
[1391] Tormentorum genera inaudita excogitabantur (Ibid. cap.
xv.).—When the Christians were accused of an attempt to burn the
imperial palace, Diocletian “ira inflammatus, excarnificari omnes suos
protinus præcipit. Sedebat ipse atque innocentes igne torrebat” (Ibid.
cap. xiv.).—Lactantius, or whoever was the real author of the tract,
addresses the priest Donatus to whom it is inscribed: “Novies etiam
tormentis cruciatibusque variis subjectus, novies adversarium gloriosa
confessione vicisti.... Nihil adversus te verbera, nihil ungulæ, nihil
ignis, nihil ferrum, nihil varia tormentorum genera valuerunt” (Ibid.
cap. xvi.). Ample details may be found in Eusebius, Hist. Eccles. Lib.
V. c. 1, VI. 39, 41, VIII. passim, Lib. Martyrum; and in Cyprian,
Epist. X. (Ed. Oxon. 1682).
[1392] Tacit. Annal. XV. lvi. lvii.
[1393] L. 10 § 6, Dig. XLVIII. xviii.
[1394] L. 12, Dig. XLVIII. xviii. (Ulpian.).
[1395] Const. 8 Cod. IX. xli. (Dioclet. et Maxim.).
[1396] Const. 11 Cod. IX. xli.
[1397] Ibid. § 1.
[1398] Const. 16 Cod. IX. xli.
[1399] Const. 8 Cod. I. 3.
[1400] Const. 4 Cod. IX. viii.
[1401] Dion. Cass. Roman. Hist. Lib. LX. (Ed. 1592, p. 776).
[1402] Sueton. Domit. cap. viii. To Domitian the historian also
ascribes the invention of a new and infamously indecent kind of torture
(Ibid. cap. x.).
[1403] Const. 3 Cod. IX. xli.
[1404] Const. 31 Cod. IX. ix.
[1405] Const. 7 Cod. IX. viii.
[1406] Novell. CXVII. cap. xv. § 1.
[1407] Hieron. Epist. I. ad Innocent.
[1408] Const. 17 Cod. IX. ii.—Const. 10 Cod. IX. xlvi.
[1409] Const. 3 Cod. IX. viii.
[1410] Acts, XXII. 24 sqq.
[1411] L. 21 § 2, Dig. XXII. v.
[1412] Novell. XC. cap. i. § 1.
[1413] Quæstiones neque semper in omni causa et persona desiderari
debere arbitror; et cum capitalia et atrociora maleficia non aliter
explorari et investigari possunt, quam per servorum quæstiones,
efficacissimas esse ad requirendam veritatem existimo et habendas
censeo.—L. 8, Dig. XLVIII. xviii. (Paulus).
[1414] L. 9, Dig. XLVIII. xviii. (Marcianus).
[1415] L. 9 § 1, Dig. XLVIII. xviii.—L. 1 § 16, Dig. XLVIII. xvii.
(Severus)—L. 1 § 18, Dig. XLVIII. xviii. (Ulpian.).
[1416] Pauli Lib. v. Sentt. Tit. xvi. § 7.—The same principle is
involved in a rescript of the Antonines.—L. 1 § 14, Dig. XLVIII. xvii.
(Severus).
[1417] L. 1 § 7, Dig. XLVIII. xvii. The expression “in caput domini”
applies as well to civil as to criminal cases.—Pauli Lib. V. Sentt.
Tit. xvi. § 5.
[1418] L. 3, Dig. XLVIII. xviii.—Const. 13 Cod. IX. xli.
[1419] L. 10 § 2, Dig. XLVIII. xviii.—Const. 2 Cod. IX. xli. (Sever. et
Antonin. ann. 205).
[1420] L. 1 § 11, Dig. XLVIII. xvii.
[1421] L. 1 § 9, Dig. XLVIII. xvii.
[1422] L. 1 § 13. XLVIII. xvii.—Pauli Lib. V. Sentt. Tit. xvi. § 9.
[1423] Const. 10 Cod. IX. xli. (Dioclet. et Maxim.).
[1424] Tacit. Annal. II. 30. See also III. 67. Somewhat similar
in spirit was his characteristic device for eluding the law which
prohibited the execution of virgins (Sueton. Tiber. lxi.).
[1425] This principle is embodied in innumerable laws. It is sufficient
to refer to Constt. 6 § 2, 7 § 1, 8 § 1, Cod. IX. viii.
[1426] L. 18 § 6, Dig. XLVIII. xviii. (Paulus).
[1427] L. 1 § 19, Dig. XLVIII. xviii. (Ulpian.).
[1428] Const. 1 Cod. IX. xli. (Sever et Antonin.).
[1429] Constt. 3, 32 Cod. IX. ix.—L. 17, XLVIII. xviii. (Papin.).
[1430] L. 5 Dig. XLVIII. xviii. (Marcian.).
[1431] Fl. Vopisc. Tacit. cap. IX.
[1432] Du Boys, Hist. du Droit Crim. des Peup. Anciens. pp. 297, 331,
332.
[1433] Const. 7 Cod. IX. xli. (Dioclet. et Maxim.).
[1434] Pauli Lib. v. Sentt. Tit. xvi. § 3.—See also Ll. 6, 13 Dig.
XLVIII. xviii.
[1435] Const. 6 Cod. IX. xlvi. This provision of the L. Julia appears
to have been revived by Diocletian.
[1436] Lib. IX. Cod. Theod. i. 14.
[1437] L. 16 § 1, Dig. XLVIII. xviii. (Modestin.).
[1438] L. 10 Dig. XLVIII. xviii. (Arcad.).
[1439] L. 3 Dig. XLVIII. xix. (Ulpian.).
[1440] L. 10 § 3, Dig. XLVIII. xviii.
[1441] L. 22 Dig. XLVIII. xviii.
[1442] L. 21 Dig. XLVIII. xviii.
[1443] L. 1 § 1, Dig. XLVIII. xviii. (Ulpian.).
[1444] Const. 8 Cod. IX. xli. (Dioclet. et Maxim.).
[1445] L. 7, Dig. XX. v.
[1446] L. 1 § 4, Dig. XLVIII. xviii. (Ulpian.).
[1447] L. 1 § 23, Dig. XLVIII. xviii.—Res est fragilis et periculosa et
quæ veritatem fallat.
[1448] Altera sæpe etiam causam falsa dicendi, quod aliis patientia
facile mendacium faciat, aliis infirmitas necessarium.—M. F. Quintil.
Inst. Orat. V. iv.
[1449] Val. Maximi Lib. VIII. c. iv.
[1450] Philostrati vit. Apollon. VII. xxiv.
[1451] Valer. Maxim. Lib. VIII. c. iv.
[1452] Hieron. Epist. I. ad Innocentium.
[1453] Q. Curt. Ruf. Hist. VI. xi. Anceps conjectura est quoniam et
vera confessis et falsa dicentibus idem doloris finis ostenditur.
[1454] Pauli Lib. V. Sentt. Tit. xiv. § 2.—L. 18 Dig. XLVIII. xviii.
[1455] Aurel. Prudent. de Vincent. Hymn. v.
[1456] Greg. Turon. Hist. Franc. Lib. II. c. xxvii.
[1457] De Bell. Gall. VI. xix.
[1458] These provisions are specified only in the Salic Law (First Text
of Pardessus, Tit. XL. §§ 6, 7, 8, 9, 10.—L. Emend. Tit. XLII. §§ 8, 9,
10, 11, 12, 13), but they were doubtless embodied in the practice of
the other tribes.
[1459] L. Burgund. Tit. VII.—The other allusions to torture in this
code, Tit. XXXIX. §§ 1, 2, and Tit. LXXVII. §§ 1, 2, also refer only to
slaves, _coloni_, and _originarii_. Persons suspected of being fugitive
slaves were always tortured to ascertain the fact, which is in direct
contradiction to the principles of the Roman law.
[1460] L. Baioar. Tit. VIII. c. xviii. §§ 1, 2, 3.
[1461] L. Salic. First Text, Tit. XL. §§ 1, 2, 3, 4.—L. Emend. Tit.
XLII. §§ 1, 2, 3, 4, 5.—In a treaty between Childebert and Clotair,
about the year 593, there is, however, a clause which would appear to
indicate that in doubtful cases slaves were subjected, not to torture,
but to the ordeal of chance. “Si servus in furto fuerit inculpatus,
requiratur a domino ut ad viginti noctes ipsum in mallum præsentet.
Et si dubietas est, ad sortem ponatur” (Pact. pro Tenore pacis cap.
v.—Baluz.). This was probably only a temporary international regulation
to prevent frontier quarrels and reprisals. That it had no permanent
force of law is evident from the retention of the procedures of
torture in all the texts of the Salic law, including the revision by
Charlemagne.
[1462] First Text, Tit. XL. § 4.—MS. Monaster. Tit. XL. § 3.—L. Emend.
Tit. XLII. § 6.
[1463] Grimnismal, Thorpe’s Sæmund’s Edda, I. 20.
[1464] Greg. Turon. Hist. Franc. Lib. VII. c. xx.; Lib. VIII. cap.
xxxi. Also, Lib. V. cap. xxxvii.—Aimoin. Lib. III. c. xxx. xlii. li.
lxiv. lxvii.—Flodoard. Hist. Remens. Lib. ii. c. ii.—Greg. Turon.
Miraculorum Lib. I. cap. 73.
[1465] Gregor. Turon. Hist. Franc. Lib. V. c. xlix.
[1466] Edict. Theodor. cap. c. ci. cii.
[1467] Cassiodor. Variar. iv. xxii. xxiii.
[1468] L. Wisigoth. Lib. VI. Tit. i. l. 5.
[1469] Ibid.
[1470] Ibid. II. iv. 4.
[1471] Ibid. VI. i. 4; VII. vi. 1; VIII. iv. 10, 11.
[1472] L. Wisigoth. VI. i. 1.
[1473] Ibid. VI. i. 2.
[1474] Concil. Toletan. XIII. ann. 683, can. ii.
[1475] See the Fuero Juzgo, Lib. I. Tit. iii. l. 4; Tit. iv. l. 4.—Lib.
III. Tit. iv. ll. 10, 11.—Lib. VI. Tit. i. ll. 2, 4, 5.—Lib. VII.
Tit. i. l. 1; Tit. vi. l. 1. The only points in which these vary from
the ancient laws are that, in Lib. VI. Tit. i. l. 2, adultery is
not included among the crimes for suspicion of which nobles can be
tortured, and that the accuser is not directed to conduct the torture.
In Lib. VII. Tit. i. l. 1, also, the informer who fails to convict is
condemned only in a single fine, and not ninefold; he is, however,
as in the original, declared infamous, as a _ladro_; if a slave, the
penalty is the same as with the Wisigoths.
[1476] Jacobi Regis constitutio adversus Judæos, etc. c. xiii. (Marca
Hispanica, p. 1416).
[1477] Partidas, P. VII. Tit. i. l. 26.
[1478] Ibid. P. VII. Tit. ix. l. 16.
[1479] Ca por los tormentos saben los judgadores muchas veces la
verdad de los malos fechos encubiertos, que non se podrian saber dotra
guisa.—Ibid. P. VII. Tit. xxx. l. 1.
[1480] Por premia de tormentos ó de feridas, ó por miedo de muerte ó de
deshonra que quieren facer á los homes, conoscen á las vegadas algunas
cosas que de su grado non las conoscerien: e por ende decimos que la
conoscencia que fuere fecha en algunas destas maneras que non debe
valer nin empesce al que la Face.—Ibid. P. III. Tit. xiii. l. 5.
[1481] Partidas, P. VII. Tit. xxx. l. 4.—Porque la conoscencia que es
fecha en el tormento, si non fuere confirmada despues sin premia, non
es valedera.
[1482] Alvari Pelagii de Planctu Ecclesiæ, Lib. II. Art. xli.
[1483] Partidas, P. VII. Tit. xxx. l. 2. Except the favor shown to the
learned professions, “por honra de la esciencia,” which afterwards
became general throughout Europe, these provisions may all be found in
the Roman law—Const. 4 Cod. IX. viii.; L. 3, Dig. XLVIII. xix.; L. 10,
Dig. XLVIII. xviii.; Const. 11 Cod. IX. xli.
[1484] Partidas, P. VII. Tit. xxx. l. 5.—Imitated from L. 18, Dig.
XLVIII. xviii.
[1485] Partidas, P. VII. Tit. xxx. l. 7. Cf. Tacit. Annal. XIV.
xliii.-xlv.
[1486] Partidas, P. VII. Tit. xxx. l. 16.
[1487] Ibid. P. III. Tit. xvi. l. 43.—P. VII. Tit. xxx. l. 8.
[1488] Partidas, P. VII. Tit. i. l. 26, “Home mal enfamado.”—P. VII.
Tit. xxx. l. 3, “Et si fuere home de mala fame ò vil.”
[1489] Ibid. P. VII. Tit. i. l. 26.
[1490] Ibid. P. VII. Tit. xxx. l. 4; Tit. ix. l. 16.
[1491] Ibid. P. VII. Tit. xxx. l. 9.
[1492] Ibid. P. III. Tit. xxiii. l. 13.
[1493] Partidas, P. VII. Tit. xxx. l. 1.
[1494] Ordenamiento de Alcalà, Tit. xxviii. l. 1.
[1495] Simancas, however, states that a single repetition of the
torture was allowable.—De Cathol. Instit. Tit. LXV. No. 76.
[1496] De Cathol. Instit. Tit. LXV. No. 44-48. Cf. Novísima
Recopilacion, Lib. VI. Tit, ii. leis 4 y 5 (Ed. 1775).
[1497] Villadiego, Gloss, ad Fuero Juzgo, Lib. VI. Tit. i. l. 2, Gloss.
_c_, _d_, _e_, _f_, _g_.
[1498] Novísima Recopilacion, Lib. II. vii. leis 1 y 13.
[1499] Villadiego, _op. cit._ Lib. VI. Tit. i. 1. 5, Gloss. _b_, _c_.
[1500] Simancæ de Cathol. Instit. Tit. LXV. No. 8.
[1501] Novísima Recopilacion, Lib. II. Tit. vi. lei 6; Lib. VIII. Tit.
i. lei 4. Aragon is said to have been an exception as regards the use
of torture (Gomez Var. Resolut. T. III. c. 13—_ap._ Gerstlacher. de
Quæst. per Torment. p. 68). In Navarre there is no trace of the use of
torture prior to the fifteenth century.—G. B. de Lagrèze, La Navarre
Française, II. 342.
[1502] Capit. Carol. Mag. II. ann. 805, § xxv. (Baluz.). No other
interpretation can well be given of the direction “diligentissime
examinatione constringantur si forte confiteantur malorum quæ
gesserunt. Sed tali moderatione fiat eadem districtio ne vitam perdant.”
[1503] Capitul. Lib. VI. cap. cxxix.
[1504] Non solum se tradunt sed ultro etiam non admoti quæstionibus
omnem technam hujus rebellionis detegunt.—Goldast. Constit. Imp. I. 151.
[1505] Non licet presbytero nec diacono ad trepalium ubi rei torquentur
stare.—Concil. Autissiodor. ann. 578, can. xxxiii.
Ad locum examinationis reorum nullus clericorum accedat.—Concil.
Matiscon. II. ann. 585, can. xix.
[1506] Under Charlemagne and Louis le Débonnaire seems to have
commenced the usage of holding the court under shelter. Thus
Charlemagne, “Ut in locis ubi mallus publicus haberi solet, tectum tale
constituatur quod in hiberno et in æstate observandus esse possit”
(Capit. Carol. Mag. II. ann. 809, § xiii.). See also Capit. I. eod.
ann. § xxv. Louis le Débonnaire prohibits the holding of courts in
churches, and adds, “Volumus utique ut domus a comite in locum ubi
mallum teneri debet construatur ut propter calorem solis et pluviam
publica utilitas non remaneat” (Capit. Ludov. Pii. I. ann. 819, § xiv.).
[1507] In 769, we find Charlemagne commanding the presence of all
freemen in the general judicial assembly held twice a year, “Ut
ad mallum venire nemo tardet, unum circa æstatem et alterum circa
autumnum.” At others of less importance, they were only bound to attend
when summoned, “Ad alia vero, si necessitas fuerit, vel denunciatio
regis urgeat, vocatus venire nemo tardet” (Capit. Carol. Mag. ann. 769,
§ xii.).
In 809, he desired that none should be forced to attend unless he had
business, “Ut nullus ad placitum venire cogatur, nisi qui caussam habet
ad quærendam” (Capit. I. ann. 809, § xiii.).
In 819, Louis ordered, that the freemen should attend at least three
courts a year, “et nullus eos amplius placita observare compellat,
nisi forte quilibet aut accusatus fuerit, aut alium accusaverit, aut
ad testimonium perhibendum vocatus fuerit” (Capit. Ludov. Pii. V. ann.
819, § xiv.).
[1508] Placuit ut adversus absentes non judicetur. Quod si factus
fuerit prolata sententia non valebit.—Capit. Lib. V. § cccxi.
[1509] This right of appeal was not relished by the seigneurs, who
apparently foresaw that it might eventually become the instrument of
their destruction. It was long in establishing itself, and was resisted
energetically. Thus the Kings of England who were Dukes of Aquitaine,
sometimes discouraged the appeals of their French subjects to the
courts of the King of France by hanging the notaries who undertook to
draw up the requisite papers.—Meyer, Instit. Judiciaires, I. 461.
[1510] Annalist. Saxo ann. 928.
[1511] Dithmari Chron. Lib. VII. ad. fin.
[1512] Multa dissimulatione renitebant, adeo ut nullis suppliciis
possent cogi ad confessionem.—Synod. Atrebatens. ann. 1025 (Hartzheim
III. 68).
[1513] Hermannus de S. Mariæ Lauden. Mirac. Cf. Guibert. Noviogent. de
Vita Sua. cap. xvi.
[1514] “Cumque captum eduxissit Isaac, virgis et vinculis coactum et
flagellatum constringit, et ita extorsit ab eo ut reos in comitis
traditione proderet.”—Galberti Vit. Caroli Boni cap. ix. n. 66.
[1515] Chron. Montis Sereni (Mencken. Script. Rer. Germ. II. 172).
[1516] Radulf. de Coggeshale Chron. Anglic. ann. 1192.
[1517] Hildebert. Cenoman. Epist. xxx.
[1518] Feudor. Lib. II. Tit. xxvii. § 8.
[1519] Fred. II. Lib. Rescript. II. §§ 1, 6. (Goldast. Constit. Imp.
II. 54).
[1520] Erphurdianus Variloquus, ann. 1125.
[1521] Annal. Bosovienses, ann. 1129.
[1522] Cod. Epist. Rudolphi I. p. 216-7 (Lipsiæ, 1806).
[1523] Cosmæ Pragens. Lib. III. ann. 1108.
[1524] Annalist. Saxo ann. 1123. See also, about the same date,
the Chron. S. Trudon. Lib. XII. (D’Achery II. 704); and the Epist.
Friderici Episc. Leodiens. in Martene, Ampliss. Collect. I. 654.
[1525] Gerardi Hist. Compostellan. Lib. II. cap. 80.
[1526] Anglo Saxon Chronicle, ann. 1137.
[1527] Pike, History of Crime in England, I. 427.
[1528] Jaffé Regesta p. 884.
[1529] Matt. Paris. Hist. Ang. ann. 1210.
[1530] Synod. Roman. ann. 384, can. 10.
[1531] Innocent PP. I. Epist. III. cap. iii.
[1532] De Civ. Dei Lib. XIX. cap. vi.
[1533] Gregor. PP. I. Lib. VIII. Epist. xxx.
[1534] Nicolai PP. I. Epist. xcvii. § 86.
[1535] Pseudo-Alexand. decret. “Omnibus orthodoxis.”
[1536] Ministrorum confessio non sit extorta sed spontanea.—Ivon.
Panorm. IV. cxvii.
[1537] Quod vero confessio cruciatibus extorquenda non est.—C. I.
Decreti Caus. XV. q. vi.
[1538] Cæsarius of Heisterbach, writing in 1221, gives a story of an
occurrence happening in 1184 which, if not embellished by some later
transcriber, would seem to indicate that the judicial use of torture
was known at an earlier period than is stated in the text. A young
girl, in the disguise of a man, was despatched with letters to Lucius
III. by the partisans of Wolmar in his struggle with Rudolph for the
bishopric of Trèves. Near Augsburg she was joined by a robber, who,
hearing his pursuers approaching, gave her his bag to hold while he
retired on some pretext to a thicket. Captured with the stolen property
she was condemned, but she told her story to a priest in confession,
the wood was surrounded and the robber captured. He was tortured until
he confessed the crime. Then he retracted, and the question between the
two was settled, at the suggestion of the priest, by the ordeal of hot
iron, when the robber’s hand was burnt, and the girl’s uninjured. The
tale is a long one, very romantic in its details, and may very probably
have been ornamented by successive scribes.—Cæsar. Heisterb. Dial.
Mirac. Dist. I. c. xl.
[1539] Assises de Jerusalem, Baisse Court, cap. cclix.
[1540] Lib. Juris Civilis Veronæ cap. 75 (p. 61).
[1541] Constit. Sicular. Lib. I. Tit. xxvii.
[1542] Du Boys, Droit Criminel des Peup. Mod. II. 405.
[1543] Monach. Paduan. Chron. Lib. II. ann. 1252-3 (Urstisii Script.
Rer. German. p. 594).—Quotidie diversis generibus tormentorum
indifferenter tam majores quam minores a carnificibus necabuntur. Voces
terribiles clamantum in tormentis die noctuque audiebantur de altis
palatiis.... Quotidie sine labore, sine conscientiæ remorsione magna
tormenta et inexcogitata corporibus hominum infligebat, etc.
[1544] Mevii Comment. in Jus Lubecense, Lib. IV. Tit. vi. Art. 4
(Francofurt. 1664).
[1545] Concil. Lateran. IV. can. iii.—Goldast. Constit. Imp. I.
293-5.—Harduin. Concil. VII. 164. See above, p. 89.
[1546] Teneatur præterea potestas seu rector omnes hæreticos quos
captos habuerit, cogere citra membri diminutionem et mortis periculum,
tanquam vere latrones et homicidas animarum et fures sacramentorum Dei
et fidei Christianæ, errores suos expresse fateri et accusare alios
hæreticos quos sciunt, et bona eorum, et credentes et receptatores et
defensores eorum, sicut coguntur fures et latrones rerum temporalium
accusare suos complices et fateri maleficia quæ fecerunt.—Innocent IV.
Bull. _Ad extirpanda_ § 26.
[1547] Alex. P. P. IV. Bull. _Ut negotium_, 7 Julii, 1256 (MSS. Doat,
XXXI. 196).—Ripoll. Bullar. Ord. Prædic. I. 430.—Mag. Bullar. Roman. I.
132.
[1548] Trac. de Hæres. Paup. de Lugd. (Martene Thesaur. V. 1787). In
the tract, Frederic II., who died in 1250, is spoken of as “quondam
imperator.”
[1549] Clamor validus et insinuatio luctuosa fidelium subditorum ...
processus suos in inquisitionis negotio a captionibus, quæstionibus
et excogitatis tormentis incipiens personas quas pro libito asserit
hæretica labe notatas, abnegasse Christum ... vi vel metu tormentorum
fateri compellit.—Lit. Philip. Pulchri (Vaissette, Hist. Gén. de
Languedoc, T. IV. Preuves p. 118).
[1550] The fearful details of torture collected by Raynouard (Mon.
Hist. rel. à la Condamnation des Chev. du Temple) show that the
Inquisition by this time was fully experienced in such work.
[1551] Simancæ de Christ. Instit. Tit. LXV. No. 19.—To the Inquisition
is likewise attributable another of the monstrous iniquities of
criminal justice—the denial to the accused of the assistance of
counsel. Under the customary law of the feudal courts, the avocat or
“avantparlier” was freely admitted, but such privilege was incompatible
with the arbitrary process of which the sole object was to condemn for
a crime scarce susceptible of proof. The decretal against heretics
issued in 1235 by Gregory IX. forbids all judges, advocates, and
notaries from helping the suspected heretic under pain of perpetual
deprivation of function—“Item, judices, advocati, et notarii nulli
eorum officium suum impendant; alioquin eodem officio perpetuo sint
privati” (Harduin. Concil. VII. 164); and the same rule was enjoined
“ne Inquisitionis negotium per advocatorum strepitum retardetur” by the
Council of Valence (can. xi.) in 1248 and that of Alby (can. xxiii.) in
1254 (Harduin. VII. 426, 461).
[1552] Personas autem honestas vel bonæ famæ, etiam si sint
pauperes, ad dictum testis unici, tormentis seu quæstionibus
inhibemus, ne ob metum falsum confiteri, vel suam vexationem redimere
compellantur.—Fontanon, Edicts et Ordonn. I. 701.—A somewhat different
reading is given by Isambert, Anciennes Loix Françaises I. 270.
[1553] Cil qui est pris et mis en prison, soit por meffet ou por dete,
tant comme il est en prison il n’est tenus à respondre à riens c’on li
demande fors es cas tant solement por quoi il fu pris. Et s’on li fet
respondre autre coze contre se volenté, et sor ce qu’il allige qu’il ne
veut pas respondre tant comme il soit en prison; tout ce qui est fait
contre li est de nule valeur, car il pot tout rapeler quand il est hors
de prison.—Beaumanoir, cap. LII. § xix.
[1554] Quant tel larrecin sunt fet, le justice doit penre toz les
souspeçonneus et fere moult de demandes, por savoir s’il porra fere
cler ce qui est orbe. Et bien les doit en longe prison tenir et
destroite, et toz cex qu’il ara souspechonneus par malvese renommée.
El si’l ne pot en nule maniere savoir le verité du fet, il les doit
delivrer, se nus ne vient avant qui partie se voille fere d’aus acuser
droitement du larrecin.—Ibid. cap. XXXI. § vi.
[1555] Si li bons n’est connoissans de son mesfet, ou s’il l’a coneu et
ce a esté par covent, s’en li fait jugement, apeler en puet.—Conseil,
ch. xxii. art. 28 (Édition Marnier, Paris, 1846).
[1556] Tanon, Registre Criminel de la justice de S. Martin-des-Champs,
Introd. p. lxxxvi. (Paris, 1877); Vaissette, Ed. Privat, VIII.
1348.—L’Oiseleur (Les Crimes et les Peines, Paris, 1863, p. 113) says
that it was enacted for the baillages of Beauvais and Cahors, but we
have seen from Beaumanoir that torture was not used in the Beauvoisis.
[1557] Baluz. Concil. Gall. Narbon. p. 75.
[1558] Chassaing, Spicilegium Brivatense, p. 92.
[1559] Conseil ch. xxi. art. 8.
[1560] Fontaines, Conseil, art. 14. Et encor ne puisse li vileins
fausser le jugement son seignor.
[1561] Actes du Parlement de Paris, I. 382 (Paris, 1863).
[1562] Olim. T. II. p. 451.
[1563] Olim. III. 49-50.
[1564] Ibid. III. 185-6.
[1565] Olim. III. 221-2.
[1566] Ibid. III. 505-6.
[1567] Ibid. III. 751-2.
[1568] Ibid. III. 1299.
[1569] Guill. de Nangis Continuat. ann. 1304.
[1570] Ibid. ann. 1314.
[1571] Ibid. ann. 1315.
[1572] Grandes Chroniques, T. V. p. 221 (Ed. Paris, 1837).
[1573] Isambert, Anciennes Loix Françaises, III. 131, 60, 65.
[1574] Ordonnance, 1^{ier} Avril, 1315, art. xix. (Ibid. III. 58).
[1575] Cart. Norman I. Mar. 1315, cap. xi. Cart. II. Jul. 1315, cap.
xv. (Ibid. 51, 109).
[1576] Ordonn. Mai 1315, art. v. xiv. (Bourdot de Richebourg, III.
233-4).
[1577] Ordonn. Mars 1315, art. ix. (Ibid. p. 235). This ordonnance is
incorrectly dated. It was issued towards the end of May, subsequently
to the above.
[1578] Ordonn. Jul. 1319, art. xxii. (Isambert, III. 227).
[1579] Tout Lieu de Saint Disier, cap. cclxxii. (Olim, T. II. Append,
p. 856).
[1580] Ibid. cap. cclxxiii.
[1581] Roisin, Franchises, Lois et Coutumes de Lille, p. 119. Thus, “on
puet et doit demander de veir et de oir,” but when this is impossible,
“on doit et puet bien demander et enquerre de croire et cuidier. Et
sour croire et sour cuidier avoec un veritet aparent de veir et d’oir,
et avoec l’omechide aparant, on puet bien jugier, lonc l’usage anchyen,
car d’oscure fait oscure veritet.”
[1582] Rabanis, Revue. Hist, de Droit, 1861, p. 515.—No volgoren los
savis antiquament qu’om pergossa sa franquessa ni sa libertat.
[1583] Registre Criminel de la Justice de St. Martin-des-Champs, p. 50.
[1584] Du Cange s. v. _Quæstionarius_.
[1585] Letters granting exemption from torture to the consuls of
Villeneuve for any crimes committed by them were issued in 1371
(Isambert, V. 352). These favors generally excepted the case of high
treason.
[1586] He pleaded his rank as baron as an exemption from the torture,
but was overruled. Dumoulin, however, admits that persons of noble
blood are not to be as readily exposed to it as those of lower
station.—Desmaze, Les Pénalités Anciennes, d’après des Textes inédits,
p. 39 (Paris, 1866).
[1587] Du Cange s. v. _Quæstio_ No. 3.
[1588] Pour denier mettre à question et tourment.—Jean Desmarres,
Décisions, Art. 295 (Du Boys, Droit Criminel II. 48).
[1589] L. Tanon, Registre Criminel de la Justice de S.
Martin-des-Champs, Introd. p. lxxxv. (Paris, 1877).
[1590] Registre Criminel du Châtelet de Paris. Publié pour la première
fois par la Société des Bibliophiles Français. 2 tom. 8vo. Paris, 1864.
[1591] Ibid. I. 9, 14.
[1592] Ibid. I. 143. See also the similar case of Raoulin du Pré (p.
149), who recanted on the scaffold and protested his innocence “sur
la mort qu’il attendoit à avoir et recevoir presentement,” but who
nevertheless was executed. Also that of Perrin du Quesnoy (p. 164).
[1593] See the case of Berthaut Lestalon (Ibid. p. 501) accused of
sundry petty thefts and tortured unsuccessfully. The court decided that
in view of the little value of the articles stolen and of their having
been recovered by the owners, the prisoner should be tortured again,
when, if he confessed, he should be hanged, and if he still denied,
he should have his right ear cropped and be banished from Paris. This
logical verdict was carried out. No confession was obtained, and he
was punished accordingly. Somewhat similar was the case of Jehan de
Warlus (Ibid. p. 157), who was punished after being tortured five times
without confession; also that of Jaquet de Dun (Ibid. p. 494).
[1594] In the Registre Criminel de St. Martin-des-Champs the cases are
recorded with too much conciseness to give details as to the process,
only the charge and the sentence being stated. It frequently happens,
however, that a man convicted of some petty larceny is stated to have
confessed more serious previous crimes, which necessarily implies their
confession being extorted. See, for instance, the case of Jehannin
Maci, arrested in 1338 for having in his possession two brass pots,
the stealing of which he not only confessed but also “plusures murtres
et larrecins avoir fais” for which he was duly drawn on a hurdle and
hanged (_op. cit._ pp. 120-1). The case of Phelipote de Monine (p. 178)
is also suggestive.
[1595] Registre Criminel du Châtelet de Paris, I. 36.
[1596] Ibid. I. 201-209.—Somewhat similar was the case of Marguerite
de la Pinele (Ibid. p. 322), accused of stealing a ring, which she
confessed under torture. As she did not, however, give a satisfactory
account of some money found upon her, though her story was partially
confirmed by other evidence, she was again twice tortured. This was
apparently done to gratify the curiosity of her judges, for, though no
further confession was extracted from her, she was duly buried alive.
Crimes for which a man was hanged or decapitated were punished in a
woman by burying or burning. Jews were executed by being hanged by the
heels between two large dogs suspended by the hind legs—a frightful
death, the fear of which sometimes produced conversion and baptism on
the gallows (Ibid. II. 43).
[1597] Ibid. I. pp. 1, 268, 289; II. 66, etc.
[1598] Ibid. I. 419-475.—The same result is evident in a very curious
case in which an old sorceress and a young “fille de vie” were accused
of bewitching a bride and groom, the latter of whom had been madly
loved by the girl (Ibid. I. p. 327).
[1599] Ibid. I. 516.
[1600] Ibid. I. 151, 163, 164, 173-77, 211, 269, 285, 306, 350, etc.
[1601] See, for instance, the case of Pierre Fournet (Ibid. I. 516).
[1602] Très Ancienne Cout. de Bretagne, cap. CI. (Bourdot de Richebourg
IV. 224-5)—“Et s’il se peut passer sans faire confession en la gehenne,
ou les jons, il se sauveroit, et il apparestroit bien que Dieu
montreroit miracles pour luy.”
[1603] Concil. Remens. ann. 1408, cap. 49 (Martene Ampliss. Collect.
VII. 420).
[1604] Bull. Aur. cap. xxiv. § 9 (Goldast. I. 365).
[1605] Chron. Cornel. Zantfleit, ann. 1376 (Martene Ampl. Coll. V.
308-9).
[1606] Statut. Criminali cap. xiv. (Gregorj, Statuti di Corsica, p.
101).
[1607] Ibid. cap lx. (p. 163).
[1608] Statuta Criminalia Mediolani e tenebris in lucem edita, cap. 3,
24-28 (Bergomi, 1694).
[1609] Statuti della Terra del Comune della Mirandola, Modena, 1885, p.
91.
[1610] Statuta et Decreta antiqua Civitatis Placentiæ, Lib. v. Rubr. 96
(Placentiæ, 1560, fol. 63_b_).
[1611] Statuts de l’Inquisition d’Etat, 1^e Supp. §§ 20, 21 (Daru).
[1612] Li Statuti de Valtellina Riformati nella Cità di Coira nell’
anno del S. MDXLVIII. Stat. Crimin. cap. 8, 9, 10 (Poschiavo, 1549).
[1613] Synod. Reg. ann. 1514, Proœm. (Batthyani Legg. Eccles. Hung. I.
574). According to some authorities, this was a general rule—“Judex
quamvis viderit committi delictum non tamen potest sine aliis
probationibus reum torquere, ut per Specul. etc.”—Jo. Emerici a Rosbach
Process. Criminal. Tit. V. cap. v. No. 13 (Francof. 1645).
[1614] Du Boys, Droit Criminel, I. 650.
[1615] Jo. Herb. de Fulstin. Statut. Reg. Polon. (Samoscii, 1597, p. 7).
[1616] Esneaux, Hist. de Russie, III. 236.
[1617] Pauli Jovii Moschovia.—This is a brief account of Russia,
compiled about the year 1530, by Paulus Jovius, from his conversations
with Dmitri, ambassador to Clement VII. from Vasili V., first Emperor
of Russia. Olaus Magnus, in the pride of his Northern blood, looks upon
the statement in the text as a slander on the rugged Russ—“hoc scilicet
pro terribili tormento in ea durissima gente reputari, quæ flammis et
eculeis adhibitis, vix, ut acta revelet, tantillulum commovetur”—and
he broadly hints that the wily ambassador amused himself by hoaxing
the soft Italian: “Sed revera vel ludibriose bonus præsul a versuto
Muscovitici principis nuntio Demetrio dicto, tempore Clementis VII.
informatus est Romæ” (Gent. Septent. Hist. Brev. Lib. XI. c. xxvi.).
The worthy archbishop doubtless spoke of his own knowledge with
respect to the use of the rack and fire in Russia, but the contempt
he displays for the torture of a stream of water is ill-founded. In
our prisons the punishment of the shower-bath is found to bring the
most refractory characters to obedience in an incredibly short time,
and its unjustifiable severity in a civilized age like this may be
estimated from the fact that it has occasionally resulted in the
death of the patient. Thus, at the New York State Prison at Auburn,
in December, 1858, a strong, healthy man, named Samuel Moore, was
kept in the shower-bath from a half to three-quarters of an hour, and
died almost immediately after being taken out. A less inhumane mode
of administering the punishment is to wrap the patient in a blanket,
lay him on his back, and, from a height of about six feet, pour upon
his forehead a stream from an ordinary watering-pot without the rose.
According to experts, this will make the stoutest criminal beg for his
life in a few seconds.
During the later period of our recent war, when the prevalence of
exaggerated bounties for recruits led to an organized system of
desertion, the magnitude of the evil seemed to justify the adoption
of almost any means to arrest a practice which threatened rapidly to
exhaust the resources of the country. Accordingly, the shower-bath
was occasionally put into requisition by the military authorities to
extort confession from suspected deserters, when legal evidence was not
attainable, and it was found exceedingly efficacious.
[1618] Du Boys, _op. cit._ I. 618.
[1619] Quod iidem prælati et inquisitores de ipsis Templariis et eorum
corporibus, quotiens voluerint, ordinent et faciant id quod eis,
secundum legem ecclesiasticam, videbitur faciendum.—Rymer, Fœdera, III.
203.
[1620] C. 1 § 1 Clement, V. 3.—Bern. Guidonis Gravamina (MSS. Doat,
XXX.).
[1621] Haroldus, Lima limata Conciliis etc. Romæ, 1672, pp. 75, 76.
[1622] Statut. S. Ludov. ann. 1254, §§ 20, 21 (Isambert, I. 270).
[1623] Thus Gratian, in the middle of the twelfth century—“Qui
calumniam illatam non probat pœnam debet incurrere quam si probasset
reus utique sustineret.”—Decreti P. II. caus. v. quæst. 6, c. 2.
[1624] Ordonnance, Mars 1498, §§ 110-116 (Isambert, XI. 365.—Fontanon,
I. 710). It would seem that the only torture contemplated by this
ordonnance was that of water, as the clerk is directed to record “la
quantité de l’eau qu’on aura baillée audit prisonnier.” This was
administered by gagging the patient, and pouring water down his throat
until he was enormously distended. It was sometimes diversified by
making him eject the water violently, by forcible blows on the stomach
(Fortescue de Laudibus Legg. Angliæ, cap. xxii.). Sometimes a piece of
cloth was used to conduct the water down his throat. To this, allusion
is made in the “Appel de Villon”:—
“Se fusse des hoirs Hue Capel
Qui fut extraict de boucherie,
On ne m’eust, parmy ce drapel,
Faict boyre à celle escorcherie.”
[1625] Ordonn. de Villers Cotterets, Août 1539, §§ 162-164 (Isambert,
XIII. 633-4). “Ostant et abolissant tous styles, usances ou coutumes
par lesquels les accusés avoient accoutumés d’être ouïs en jugement
pour sçavoir s’ils devoient être accusés, et à cette fin avoir
communication des faits et articles concernant les crimes et délits
dont ils étoient accusés.”
[1626] Anc. Cout. de Bretagne, Tit. I. art. xli.—D’Argentré’s
labored commentary on this article is a lamentable exhibition of the
utter confusion which existed as to the nature of preliminary proof
justifying torture. Comment. pp. 139, sqq.
[1627] Nemo igitur de proprio crimine confitentem super conscientia
scrutetur aliena.—Const. 17 Cod. IX. ii. (Honor. 423).
[1628] Nemini de se confesso credi potest super crimen alienum, quoniam
ejus atque omnis rei professio periculosa est, et admitti adversus
quemlibet non debet.—Pseudo-Julii Epist. II. cap. xviii.—Gratian.
Decret. P. II. caus. v. quæst. 3, can. 5.
[1629] Inhærendo decretis alias per felicis recordationis Paulum papam
quartum Sanctissimus dominus noster Pius papa quintus decrevit omnes et
quoscunque reos convictos et confessos de heresi pro ulteriori veritate
habenda et super complicibus fore torquendos arbitrio dominorum
judicum.—Locati Opus Judiciale Inquisitorum, Romæ, 1570, p. 477.
[1630] Chéruel, Dict. Hist. des Institutions, etc. de la France, p.
1220 (Paris, 1855).
[1631] Isambert, XIV. 88. Beccaria comments on the absurdity of such
proceedings, as though a man who had accused himself would make any
difficulty in accusing others.—“Quasi che l’uomo che accusa sè stesso,
non accusi più facilmente gli altri. E egli giusto il tormentare gli
uomini per l’altrui delitto?”—Dei Delitte e delle Pene, § XII. A
curious illustration of its useless cruelty when applied to prisoners
of another stamp is afforded by the record of a trial which occurred
at Rouen in 1647. A certain Jehan Lemarinier, condemned to death for
murder, was subjected to the _question définitive_. Cords twisted
around the fingers, scourging with rods, the strappado with fifty
pounds attached to each foot, the thumbscrew were applied in succession
and together, without eliciting anything but fervent protestations of
innocence. The officials at last wearied out remanded the convict to
prison, when he sent for them and quietly detailed all the particulars
of his crime, committed by himself alone, requesting especially that
they should record his confession as having been spontaneous, for the
relief of his conscience, and not extorted by torment.—Desmaze, Les
Pénalités Anciennes, p. 159, Paris, 1866.
[1632] Ordonnance Criminel d’Août 1670, Tit. xiv. xix. (Isambert, XIX.
398, 412).
[1633] Nicolas, Dissertation Morale et Juridique sur la Torture, p. 111
(Amsterd. 1682).
[1634] Déclaration du 13 Avril 1703 (Ordonnances d’Alsace, I. 340).
[1635] Coutumier de Picardie, Éd. Marnier, p. 88.
[1636] Registre Criminel de la Justice de S. Martin-des-Champs. Paris,
1877, p. 229.
[1637] Desmaze, Pénalités Anciennes, p. 204.
[1638] Bodini de Magor. Dæmonoman. Basil. 1581, pp. 325, 334, 390.
[1639] Scialojæ Praxis torquendi Reos c. i. No. 12 (Neap. 1653).
[1640] Thomæ Grammatici Decisiones Neapolitanæ, pp. 1275-6 (Venetiis
1582). Cf. Scialojæ _op. cit._ c. i. No. 22.
[1641] L’Oiseleur, Les Crimes et les Peines, pp. 206-7.
[1642] Braune Dissert. de Tortura Valetudinar. Halæ Cattor. 1740, p. 28.
[1643] Meyer, Institutions Judiciaires, IV. 285, 293.
[1644] Legg. Capital. Caroli V. c. lx. lviii.
[1645] Ibid. c. xx. lviii.
[1646] Ibid. c. lv. lvi. lvii.
[1647] Legg. Capital. Carol. V. c. xxii. lxix.
[1648] Ibid. c. xxviii.
[1649] Ibid. c. xxiii. xxi.
[1650] Ibid. c. xxxiii.-xliv.
[1651] Ibid. c. xx. lxi.
[1652] Ibid. c. lviii. lix. Accusatus, si periculum sit, ne inter vel
post tormenta ob vulnera expiret, ea arte torquendus est, ne quid damni
accipiat.
[1653] Heineccii Hist. Jur. Civ. Lib. II. §§ cv. sqq.—Meyer (Instit.
Judiciaires, Liv. VI. chap. xi.) gives a very interesting sketch of the
causes which led to the overthrow of the old system of jurisprudence
throughout Germany. He attributes it to the influence of the emperors
and the municipalities, each equally jealous of the authority of
the feudal nobles, aided by the lawyers, now becoming a recognized
profession. These latter of course favored a jurisprudence which
required long and special training, thus conferring upon them as a
class peculiar weight and influence.
[1654] My principal authorities are:—
Rerum Criminalium Praxis, by Josse Damhouder, a lawyer and statesman
of repute in Flanders, where he held a distinguished position under
Charles V. and Philip II. His work was received as an authority
throughout Europe for two centuries, having passed through numerous
editions, from that of Louvain, in 1554, to that of Antwerp, in 1750.
My edition is of Antwerp, 1601.
Tractatus de Quæstionibus seu Torturis Reorum, published in 1592 by
Johann Zanger, of Wittenberg, a celebrated jurisconsult of the time,
and frequently reprinted. My edition is that of 1730, with notes by the
learned Baron Senckenberg, and there is a still later one, published at
Frankfort in 1763.
Practica Criminalis, seu Processus Judiciarius ad usum et consuetudinem
judiciorum in Germania hoc tempore frequentiorem, by Johann Emerich von
Rosbach, published in 1645 at Frankfort on the Mayn.
Tractatio Juridica, de Usu et Abusu Torturæ, by Heinrich von Boden, a
dissertation read at Halle in 1697, and reprinted by Senckenberg in
1730, in conjunction with the treatise of Zanger.
Scialojæ Praxis torquendi Reos, Neapoli, 1653.
Tractatus de Maleficiis, nempe D. Alberti de Gandino, D. Bonifacii de
Vitalianis, D. Pauli Grillandi, D. Baldi de Periglis, D. Jacobi de
Arena. Venetiis, 1560.
[1655] Cum nihil tam severum, tam crudele et inhumanum videatur quam
hominem conditum ad imaginem Dei ... tormentis lacerare et quasi
excarnificare, etc.—Zangeri Tract. de Quæstion. cap. I. No. 1.
Tormentis humanitatis et religionis, necnon jurisconsultorum argumenta
repugnant.—Jo. Emerici a Rosbach. Process. Crimin. Tit. v. c. ix. No. 1.
Saltem horrendus torturæ abusus ostendit, quo miseri, de facinore
aliquo suspecti, fere infernalibus, et si fieri possit, plusquam
diabolicis cruciatibus exponuntur, ut qui nullo legitimo probandi
modo convinci poterant, atrocitate cruciatuum contra propriam salutem
confiteri, seque ita destruere sive jure sive injuria, cogantur.—Henr.
de Boden Tract. Præfat.
[1656] Zangeri cap. I. Nos. 49-58.
[1657] Zangeri cap. I. Nos. 59-88.—Knipschild, in his voluminous
“Tract. de Nobilitate” (Campodun. 1693), while endeavoring to exalt to
the utmost the privileges of the nobility, both of the sword and robe,
is obliged to admit their liability to torture for these crimes, and
only urges that the preliminary proof should be stronger than in the
case of plebeians (Lib. II. cap. iv. Nos. 108-120); though, in other
accusations, a judge subjecting a noble to torture should be put to
death, and his attempt to commit such an outrage could be resisted
by force of arms (Ibid. No. 103). He adds, however, that no special
privileges existed in France, Lombardy, Venice, Italy, and Saxony
(Ibid. Nos. 105-7). Scialoja expressly says (Praxis c. xiii. Nos.
40-49, 55) that in Naples no dignity, secular or ecclesiastical, except
that of judges, conferred immunity from torture; and all privileges
were set aside by a direct order from the sovereign.
[1658] Erphurdianus Variloquus, ann. 1514 (Mencken. Script. Rer.
German. II. 527-8).
[1659] Grillandi de Quæst. et Tortura Q. vi.—Baldi de Periglis de
Quæstionibus c. iii. § 4.—Alberti de Gandino de Quæstionibus §§ 7, 9,
36, 37.
[1660] Damhouder. Rer. Crimin. Praxis cap. xxxvii. Nos. 23, 24. Cf.
Passerini Regulare Tribunal Quæst. xv. Art. ix. No. 117.
[1661] Emer. a Rosbach Process. Crimin. Tit. v. cap. xiv.
[1662] Simancæ de Cathol. Instit. Tit. LXV. No. 50.
[1663] Willenbergii Tract. de Excess. et Pœnis Cleric. 4to. Jenæ, 1740,
p. 41.
[1664] Braune Diss. de Tortura Valetudinar. p. 32.
[1665] Grillandi de Quæstione et Tortura, Q. vi. §§ 4, 6, 9.—Baldi de
Periglis de Quæstionibus cap. i. § 4.
[1666] Zangeri _op. cit._ cap. I. Nos. 34-48.
[1667] Scialojæ c. xiii. No. 21.
[1668] Ibid. Nos. 24-30.
[1669] Goetzii Dissert. de Tortura, Lipsiæ, 1742, pp. 46-8.
[1670] Braune Diss. de Tortura Valetudinar. pp. 24, 43.
[1671] Zangeri cap. V. Nos. 73-83.
[1672] Del Rio Magicarum Disquisit. Lib. v. Sect. iii. L.
[1673] Damhouder. _op. cit._ cap. xxxviii. Nos. 3, 4.—Rosbach. Tit. V.
cap. xv. No. 14.—Simancas, however, declares that only two applications
of torture are allowable (De Cathol. Instit. Tit. LXV. Nos. 76, 81).
[1674] Disquis. Magicar. Lib. V. sect. ix.
[1675] Assessores tamen honoris et avidi et cupidi hoc non servant imo
quotidie quæstiones repetunt absque novis indiciis.—Baldi de Periglis
de Quæstionibus cap. i. § 6. So also Alberti de Gandino de Quæstionibus
§ 20, and Bonifacii de Vitalianis, Rubr. _Quæ Indicia_ § 8.
[1676] Zangeri Præfat. No. 31.
[1677] Scialojæ _op. cit._ cap. i. No. 27.
[1678] Statuta Criminalia Communis Bononiæ (Bononiæ, 1525, fol. 15 _a_).
[1679] Goetzii Dissert. de Tortura, pp. 52-3.
[1680] Zangeri Tract. Not. ad p. 903.
[1681] Grillandi de Quæst. et Tortura Q. vii.
[1682] Scialojæ _op. cit._ cap. i. No. 34.—Goetzii Dissert. de Tortura,
p. 53.—Grillandi, _loc. cit._—Bernhard (Diss. Inaug. de Tort. cap. I.
§ iv.) states that in these cases not only the principals but even the
witnesses could be tortured if suspected of concealing the truth.
[1683] Grillandi de Quæst. et Tortura, Q. V. § 6.
[1684] Baldi de Periglis de Quæstionibus cap. iii. § 2.—Damhoud. cap.
xxxviii. No. 13.—Alberti de Gandino de Quæstionibus § 31.
[1685] Zangeri Præfat. No. 32.—Tortura enim datur non ad liquidandum
factum sed personam.—Damhouder. Rer. Crimin. Prax. cap. xxxv. No. 7.
[1686] Process. Criminal. Tit. V. cap. ix. No. 17.
[1687] De Usu et Ab. Tort. Th. IX.—Qui aliter procedit judex, equum
cauda frenat et post quadrigas caballum jungit.
[1688] Boyvin du Villars, Mémoires, Liv. VII.
[1689] Godelmanni de Magis Lib. III. cap. x.
[1690] Not. ad p. 907 Zangeri _op. cit._
[1691] Del Rio Magicar. Disquisit. Lib. V. sect. ix.
[1692] Grillandi de Quæst. et Tortura, Q. vi. § 10.
[1693] Simancæ de Cathol. Instit. Tit. LXV. No. 56.
[1694] De Usu et Abusu Tort. Th. XIII.
It must not be supposed from this and the preceding extracts that von
Boden was an opponent of torture on principle. Within certain bounds,
he advocated its use, and he only deplored the excessive abuse of it by
the tribunals of the day.
[1695] Quando quis dicatur competenter tortus vel non, similiter quando
quis dicatur purgasse indicia vel non, omnia ista demum relinquuntur
arbitrio et discretioni honesti judicis, quoniam in his certa regula
tradi non potest.—Grillandi de Quæst. et Tortura Q. vii. § 10.—Cf.
Godelmanni de Magis Lib. III. cap. x. § 36.—Baldi de Periglis de
Quæstionibus cap. i. § 5.
[1696] Zangeri _op. cit._ cap. I. Nos. 42-44.
[1697] Ibid. cap. III. Nos. 20-22.
[1698] Baldi de Periglis cap. iii. § 7.
[1699] Bonifacii de Vitalianis, Rubr. _de Perseverentia_ § 5.—Alberti
de Gandino, De Quæstionibus § 35.
[1700] Godelmanni l. c. § 54.
[1701] Cap. xxxviii. No. 18.
[1702] Zangeri cap. III. Nos. 20-22.
[1703] Goetzii Dissert. de Tortura, p. 74.
[1704] So thoroughly was this recognized, that in 1668 Racine
represents a judge, desirous of ingratiating himself with a young girl,
as offering to exhibit to her the spectacle of the question as an
agreeable pastime.
“DANDIN. N’avez vous jamais vu donner la question?
ISABELLE. Non, et ne le verrai, que je crois de ma vie.
DANDIN. Venez, je vous en veux faire passer l’envie.
ISABELLE. Hé! Monsieur, peut-on voir souffrir les malhereux?
DANDIN. Bon! cela fait toujours passer une heure ou deux.”
_Les Plaideurs_, Acte III. Sc. dernière.
[1705] Fortescue, in his arguments against the use of torture, does
not fail to recognize that the acquittal of a tortured prisoner is the
condemnation of the judge—“qui judex eum pronuntiet innocentem, nonne
eodem judicio judex ille seipsum reum judicat omnis sævitiæ et pœnarum
quibus innocentem afflixit?”—De Laud. Legg. Angl. cap. xxii.
[1706] Occurrit hic cautela Bruni dicentis, si judex indebite torserit
aliquem facit reum confiteri quod fuit legitime tortus, de qua
confessione faciat notarium rogatum.—Rosbach. Process. Crim. Tit. V.
cap. xv. No. 6.
[1707] Quoted by Nicolas, Diss. Mor. et Jurid. sur la Torture, p. 21.
This mode of torture consisted in placing the accused between two
jailers, who pummelled him whenever he began to doze, and thus, with
proper relays, deprived him of sleep for forty hours. Its inventor
considered it humane, as it endangered neither life nor limb, but the
extremity of suffering to which it reduced the prisoner is shown by its
efficaciousness.
Marsigli received much credit for this ingenious invention. Grillandus
informs us that he experimented with it in a difficult case of two
monks “et profecto vidi ea quæ prius non credebam, quod illud affert
maximum tormentum et fastidium in corpore absque aliqua membrorum
læsione.”—Grillandi de Quæstione et Tortura Art. ii.
I have purposely abstained from entering into the details of the
various forms of torture. They may be interesting to the antiquarian,
but they illustrate no principle, and little would be gained by
describing these melancholy monuments of human error. Those who may be
curious in such matters will find ample material in Grupen Observat.
Jur. Crim. de Applicat. Torment., 4to., Hanov. 1754; Zangeri _op. cit._
cap. IV. Nos. 9, 10; Hieron. Magius de Equuleo cum Appendd. Amstelod.
1664, etc. According to Bernhardi, Johann Graefe enumerates no less
than six hundred different instruments invented for the purpose.
Damhouder (_op. cit._ cap. xxxvii. Nos. 17-23) declares that torture
can legally be inflicted only with ropes, and then proceeds to describe
a number of ingenious devices. One of these, which he states to produce
insufferable torment without risk, is bathing the feet with brine and
then setting a goat to lick the soles.
The strappado, or suspension by the arms behind the back with weights
to the feet, was the torture in most general use and most favored by
legal experts.—Grillandus, _loc. cit._
[1708] Augustin Nicholas, _op. cit._ pp. 169, 178.
[1709] Even this, however, was not deemed necessary in cases of
conspiracy and treason “qui fiunt secreto, propter probationis
difficultatem devenitur ad torturam sine indiciis”—Emer. a Rosb. Tit.
V. cap. x. No. 20.
[1710] Fama frequens et vehemens facit indicium ad torturam (Zanger.
c. II. No. 80. Cf. Alberti de Gandino de Quæst. § 39). Reus ante
accusationem vel inquisitionem fugiens et citatus contumaciter absens,
se suspectum reddit ut torqueri possit (Ibid. No. 91. Cf. Simancæ
Cathol. Instit. Tit. LXV. Nos. 28-30). Inconstantia sermonis facit
indicium ad torturam (Zanger. Nos. 96-99). Ex taciturnitate oritur
indicium ad torturam (Ibid. No. 103). Physiognomia malam naturam
arguit, non autem delictum (Ibid. No. 85). How exceedingly lax was the
application of these rules may be guessed from a remark of Damhouder’s,
that although rumor was sufficient to justify torture, yet a contrary
rumor neutralized the first and rendered torture improper.—Damhouder.
Rer. Crimin. Praxis cap. xxxv. Nos. 14, 15.
[1711] Deinde a pallore et similibus oritur indicium ad torturam
secundum Bartol. (Emer. a Rosbach Tit. V. c. vii. Nos. 28-31).
Whereupon von Rosbach enters into a long dissertation as to the causes
of paleness.
[1712] Godelmanni de Magis Lib. III. cap. x. § 29.
[1713] Scialojæ cap. iii. Nos. 5, 6.
[1714] Judicis arbitrio relinquitur an indicia sint sufficientia
ad torturam (Zanger. cap. II. Nos. 16-20). An indicia sufficiant
ad torturam judicis arbitrio relictum est.... Indicia ad torturam
sufficientia relinquuntur officio judicis (Emer. a Rosbach Tit.
V. c. ii. p. 529). Damhouder, indeed, states that no rules can be
framed—“neque ea ullis innituntur regulis: sed universum id negotium
geritur penes arbitrium, discretionem ac conscientiam judicis.”—Rer.
Crimin. Praxis cap. xxxvi. Nos. 1, 2. Cf. Braune Dissert. de Tortura
Valetudin. Halæ Cattor. 1740.
So Grillandus (De Quæstione et Tortura Q. iii.)—“Quæ autem indicia
dicantur esse sufficientia ad torturam certa regula tradi non potest,
sed hoc relinquitur arbitrio et discretioni boni judicis.”
And Albertus de Gandino (De Quæstionibus § 14)—“Nec de his possit dari
certa doctrina sed hoc committitur arbitrio judicantis.”
[1715] Sunt tamen nonnulli prætores et judices sanguine fraterno
adeo inexsaturabiles ut illico quemvis malæ famæ virum, citra ulla
certa argumenta aut indicia, corripiant ad sævissimam torturam,
inclementer dicentes, cruciatum facile ab illis extorturum rerum omnium
confessionem.—Damhouder. Rer. Crimin. Praxis cap. xxxv. No. 13.
[1716] Hipp. de Marsiliis Singularia, No. 455 (Venet. 1555).
[1717] Godelmanni de Magis Lib. III. cap. v. § 26.—Emer. a Rosbach Tit.
V. c. x. No. 25.
[1718] Groot, Historia Eclesiastica y Civil de Nueva Granada, Bogotá,
1869, T. I. pp. 114-5, 116-20. Cf. Scialojæ Praxis torquendi Reos, cap.
i. No. 25.
[1719] Rosbach Tit. V. cap. x. No. 2.
[1720] Ibid. Tit. V. cap. xiv. No. 16.—Goetzii Dissert. de Tortura, p.
54.—Grillandi de Quæst. et Tortura, Q. vii.
[1721] Scialojæ cap. xiv. Nos. 5-20.—Jo. Frid. Werner Dissert. de
Tortura Testium, Erford. 1724, pp. 72 sqq.
[1722] Passerini Regulare Tribunal, Quæst. XV. Art. ix. No. 115 (Colon.
Agripp. 1665).
[1723] Process. contr. Card. de Caraffa (Hoffman. Collect. Script. I.
632).
[1724] Scialojæ c. xiv. No. 2.
[1725] Statuta Criminalia Communis Bononiæ (Bononiæ 1525, p. 15 _b_).
[1726] Damhouder, _op. cit._ cap. xlvii. No. 3.
[1727] Passerini, _loc. cit._ Nos. 122-3.
[1728] Ibid. No. 118.
[1729] Simancæ de Cathol. Instit. Tit. LXV. No. 73.
[1730] Zangeri, _op. cit._ I. Nos. 8-25.
[1731] Zangeri cap. IV. Nos. 25-30.—Damhouder, _op. cit._ cap. xxxvii.
Nos. 15, 16.—Baldi de Periglis de Quæstionibus, cap. i. § 7.—Alberti de
Gandino de Quæstionibus § 11.
[1732] Grilland. de Quæstione et Tortura Q. iv. §§ 2-10. “Quod tunc
corpus ipsius rei dilaniatur membraque et ossa quodammodo dissolvuntur
et evelluntur a corpore.”
[1733] Zangeri, _op. cit._ cap. III. No. 3.
[1734] Process. Criminal. Tit. V. cap. x. No. 7.
We have already seen (p. 514) that in France the accused was not
allowed to see the evidence against him; and the same rule was in force
in Flanders—“Toutes depositions de tesmoins en causes criminelles
demeureront secrètes à l’égard de l’accusé.”—Coutume d’Audenarde, Stile
de la Procedure, Art. 10. (Le Grand, Coutumes de Flandre, Cambrai,
1719, p. 103).
[1735] Diss. Inaug. cap. I. § xii.
[1736] Goetzii, _op. cit._ p. 36.
[1737] Zangeri, _op. cit._ cap. III. Nos. 1, 4, 5-43.
[1738] Process. Crim. Tit. V. cap. xi. No. 6.
[1739] Goetzii, _op. cit._ p. 35.
[1740] Zangeri cap. II. Nos. 49-50.—Cum enim confrontatio odiosa sit
et species suggestionis, et remedium extraordinarium ad substantiam
processus non pertinens, et propterea non necessaria.
[1741] Zangeri, cap. IV. Nos. 1-6.
[1742] Goetzii Dissert. de Tortura, p. 34.
[1743] Braune Dissert. de Tortura Valetudin. p. 16.
[1744] Process. Crimin. Tit. V. cap. ix. No. 10.
[1745] Zangeri cap. I. No. 37.
[1746] Rer. Crimin. Praxis cap. xxxviii. Nos. 6, 7.
[1747] Boden de Usu et Abusu Torturæ Th. XII. Damhouder declares this
practice to be unjustifiable, though not infrequent (Rer. Crimin.
Praxis cap. xxxvii. No. 12).—Bonifazio de’ Vitaliani speaks of it as a
common but evil custom.—De Quæstionibus, Rubr. _Quæ indicia_, § 7.
[1748] He represents the judge as addressing his victim “Tu sei il reo
di un delitto, dunque è possibile che lo sii di cent’ altri delitti:
questo dubbio mi pesa, voglio accertarmene col mio criterio di verità:
le leggi ti tormentano, perche sei reo, perche puoi esser reo, perche
voglio che tu sii reo.”—Dei Delitti e delle Pene, § XII.
[1749] Martini Bernhardi Diss. Inaug. de Tortura cap. I. § 4. Scialoja,
in 1653, assures us that this torture after confession to prevent
appeals was no longer permitted in the Neapolitan courts, and that it
was only allowed for the discovery of accomplices (Praxis torquendi
Reos. c. i. Nos. 8-10).
[1750] Scialojæ, _op. cit._ cap. i. No. 14.
[1751] Damhouder, Rer. Crimin. Prax. cap. xxxv. No. 9, cap. xxxviii.
No. 14.—Werner Dissert. de Tortura Testium, pp. 76 sqq.
[1752] Damhoud. cap. xxxix. No. 6.
[1753] Goetzii Dissert. de Tortura, p. 26.
[1754] Emer. a Rosbach Process. Criminal. Tit. V. cap. x. Nos.
8-16.—Simancæ Cath. Inst. LXV. 17.
[1755] Bernhardi, _loc. cit._ The difference between the practice
and principles of the law is shown by the rules laid down in 1647
by Brunnemann, coexisting with the above. He directs that the
proceedings are to be exhibited to the accused or his friends, and
then submitted to a college of jurists who are to decide as to the
necessity of torture, and he warns the latter that they can have no
graver question placed before them—“Et sane nullam graviorem puto esse
deliberationem in Collegiis Juridicis quam ubi de tortura infligenda
agitur.”—Brunneman. de Inquisitionis Processu cap. VIII. Memb. iv. No.
10; Memb. v. No. 1.
[1756] Passerini Regulare Tribunal; Praxis, cap. viii. No. 170.
[1757] Louïse, Sorcellerie et Justice Criminelle à Valenciennes
(Valenciennes, 1861, pp. 121-125).
[1758] Goetzii Diss. de Tortura, p. 71.
[1759] Bodin de Magor. Dæmonom. (Basil. 1581, p. 325).
[1760] Zangeri cap. V. Nos. 79-81.
[1761] Bernhardi Diss. Inaug. cap. I. § xi.
[1762] Emer. a Rosbach, _op. cit._ Tit. V. cap. xviii. No.
13.—Godelmanni de Magis L. III. cap. x. § 52.—Gerstlacheri Comment.
de Quæst. per Tormenta, p. 35.—Grillandi de Quæst. et Tortura Q. vii.
§ 11. So Beccaria (Delitt. e Pene, § XII.)—“Alcuni dottori ed alcune
nazioni non permettono questa infame petizione di principio che per
tre volte; altre nazioni ed altri dottori la lasciano ad arbitrio del
giudice.”
[1763] This custom prevailed in Electoral Saxony until the abrogation
of torture (Goetzii Diss. de Tort. p. 33), and was especially the case
at Amsterdam. Meyer (Institutions Judiciaires, IV. 295) states that the
registers there afford scarcely an instance of a prisoner discharged
without conviction after enduring torture.
[1764] Zanger. _loc. cit._
[1765] Bernhardi, cap. I. § xii.—Goetzii _op. cit._ p. 74.—Cf. Caroli
V. Const. Crim. cap. XX. § 1.—Goetz (p. 67) derives _urpheda_ from _ur_
before, and _fede_ enmity.
[1766] Goetzii Dissert. de Tortura, p. 31.
[1767] Werner. Dissert. de Tortura, pp. 91-2.
[1768] Zangeri cap. II. Nos. 9-10; cap. V. Nos. 19-28.—Damhouder. _op.
cit._ cap. xxxvi. No. 36.—Baldi de Periglis de Quæstionibus cap. ii. §
9.
[1769] Zangeri cap. V. Nos. 1-18.—Goetzii Dissert. de Tortura, pp. 67-9.
[1770] Damhouder. _op. cit._ cap. xl. No. 3.—Bigotry and superstition,
especially, did not allow their victims to escape so easily. In
accusations of sorcery, if appearances were against the prisoner—that
is, if he were of evil repute, if he shed no tears during the torture,
and if he recovered speedily after each application—he was not to
be liberated because no confession could be wrung from him, but was
to be kept for at least a year, “squaloribus carceris mancipandus
et cruciandus, sæpissime etiam examinandus, præcipue sacratioribus
diebus.”—Rickii Defens. Aq. Probæ cap. I. No. 22.
[1771] Alberti de Gandino de Quæstionibus § 21.
[1772] Zangeri cap. V. No. 53-61.—Goetzii Dissert. de Tortura, p. 57.
[1773] Boden, _op. cit._ Th. V. VI.
[1774] Goetzii Dissert. de Tortura, p. 72.
[1775] Boden, _op. cit._ Th. V. VI.
[1776] Goetzii Dissert. de Tortura, p. 76. Distinction was sometimes
made between crimes involving death or corporal punishment and those of
lighter grade, but Goetz states that in his time (1742) in Saxony the
above was the received practice.
[1777] Dissert. Mor. et Jurid. sur la Torture, pp. 36-7.
[1778] Ibid. p. 169.
[1779] Damhoud. Rer. Criminal. Prax. cap. 34, § 7.
[1780] Const. 7 Cod. IX. xviii.
[1781] Concil. Emeritan. ann. 666 can. xv.
In the middle of the thirteenth century, the Emperor Theodore Lascaris
invented a novel mode of torture in a case of this kind. When a noble
lady of his court was accused of sorcery, he caused her to be inclosed
naked in a sack with a number of cats. The suffering, though severe,
failed to extort a confession.—Georg. Pachymeri Hist. Mich. Palæol.
Lib. I. cap. xii.
[1782] Bodini de Magorum Dæmonoman. Lib. IV. cap. 2.
[1783] Boguet, Discours des Sorciers, chap. lv. (Lyon, 1610).
[1784] Louïse, La Sorcellerie et la Justice Criminelle à Valenciennes
(Valenciennes, 1861, pp. 133-64).—For other similar instances see
Bodin, _op. cit._ Lib. IV. cap. 1, 2.
[1785] Bodin. Lib. I. cap. 2.
[1786] Per legales testes hujus rei ad convincendum fides certa haberi
non potest.—Rickii Defens. Aquæ Probæ cap. III. No. 117.
[1787] Idque facilius in excepto et occulto difficilisque probationis
crimine nostro sortilegii admiserim quam in aliis.—Disquisit. Magicar.
Lib. V. Sect. iii. No. 8.
[1788] Boguet, Instruction pour un juge en faict de Sorcelerie, art.
xxxii.
[1789] Soit pour ne trouver les délitz suffisament vérifiez, ou pour
savoir tous les complices, _ou autrement_.—Chart. nouv. du Haynau,
chap. 125, art. xxvi. (Louïse, p. 94).
[1790] Nicolas, p. 145. The curious reader will find in Del Rio (Lib.
V. Sect. ix.) ample details as to the arts of the Evil One to sustain
his followers against the pious efforts of the Inquisition.
[1791] “Qu’après qu’on eut lavé ses jambes, qui avoient été déchirées
par la torture, et qu’on les eut présentées au feu pour y rapeller
quelque peu d’esprits et de vigueur, il ne cessa pas de s’entretenir
avec ses Gardes, par des discours peu sérieux et pleins de railleries;
qu’il mangea avec apétit et but avec plaisir trois ou quatre coups;
et qu’il ne répandit aucuns larmes en souffrant la question, ni après
l’avoir souffert, lors même qu’on l’exorcisa de l’exorcisme des
Magiciens, et que l’Exorciste lui dit à plus de cinquante reprises
‘præcipio ut si sis innocens effundas lachrymas.’”—Hist. des Diables de
Loudon, pp. 157-8.
[1792] Rerum Crimin. Praxis Cap. xxxvii. Nos. 21, 22. Cf. Brunnemann.
de Inquisit. Process. cap. VIII. Memb. v. No. 70.
[1793] Rickii _op. cit._ cap. I. No. 24.
[1794] Grillandi de Quæstione et Tortura, Art. iii. §§ 12-16. One of
the conjurations is an allusion to the Crucifixion,
“Imparibus meritis tria pendent corpora ramis.
Dismas et Gestas, in medio est divina potestas.
Dismas damnatur, Gestas ad astra levatur.”
Another “Quemadmodum lac beatæ gloriosæ Mariæ virginis fuit dulce et
suave domino nostro Jesu Christo, ita hæc tortura sit dulcis et suavis
brachiis et membris meis.”
[1795] Boguet, Instruction pour un juge, art. xxix.—Damhouderi Rer.
Crim. Prax. cap. xxxviii. No. 19.
[1796] Sprenger Mall. Maleficar. P. III. q. xvi. This was directly
in contradiction to the precepts of the civil lawyers. Ippolito dei
Marsigli says positively that a confession uttered in response to a
promise of pardon cannot be used against the accused (Singularia,
Venet. 1555, fol. 36 _b_). The Church, however, did not consider
itself bound by the ordinary rules of law or morality. Marsigli in
another passage (fol. 30 _a_) relates that Alexander III. once secretly
promised a bishop that if he would publicly confess himself guilty of
simony he should have a dispensation, and on the prelate’s doing so,
immediately deposed him.
[1797] Bodin. Lib. IV. cap. I.
[1798] Boguet, Instruction, art. xxvii.
[1799] De Cathol. Instit. Tit. XIII. No. 12.
[1800] Disquisit. Magicar. Lib. V. Sect. x.
[1801] Father Tanner states that he had this from learned and
experienced men.—Tanneri Tract. de Proc. adv. Veneficas, Quæst. II.
Assert. iii. § 2.
[1802] Ibid. _loc. cit._
[1803] Nicolas, p. 164.
[1804] Chabot, Encyclopédie Monastique, p. 426 (Paris, 1827). For
instances see Angeli Rumpheri Hist. Formbach. Lib. II. (Pez, I. III.
446).—A. Molinier in Vaissette, Ed. Privat, IX. 417.
[1805] “Ita torquatur ut nec plagam referat nec color cutis
livescat.”—Grágás, Festathattr cap. xxxiii.
[1806] Grágás, Vigslothi cap. cxi.
[1807] Ibid. Vigslothi cap. lxxxviii.
[1808] Schlegel Comment. ad Grágás § xxix.
[1809] Legg. Cimbric. Woldemari Lib. II. cap. i. xl. (Ed. Ancher,
Hafniæ, 1783).
[1810] Christiani V. Jur. Danic. Lib. I. cap. xx. (Ed. Weghorst,
Hafniæ, 1698). Senckenberg (Corp. Jur. German. T. I. Præf. p. lxxxvi.)
gives the chapter heads of a code in Danish, the _Keyser Retenn_,
furnished to him by Ancher, in which cap. iv. and v. contain directions
as to the administration of torture. The code is a mixture of German,
civil, and local law, and probably was in force in some of the Germanic
provinces of Denmark.
[1811] Legg. Opstalbomicæ ann. 1323 (_ap._ Gärtner, Saxonum Leges Tres.
Lipsiæ, 1730).
[1812] Raguald. Ingermund. Leg. Suecor. Stockholmiæ, 1623.
[1813] Ll. Henrici I. cap. v. § 16.
A curious disregard of this principle occurs in the Welsh laws, which
provide that when a thief is at the gallows, with the certainty
of being hanged, his testimony as to his accomplices is to be
received as sufficient without requiring it to be sworn to on a
relic—the inseparable condition of all other evidence. By a singular
inconsistency, however, the accomplice thus convicted was not to be
hanged, but to be sold as a slave.—Dimetian Code, Bk. II. ch. v. § 9
(Owen I. 425).
[1814] Many interesting details on the influence of the Roman law upon
that of England will be found in the learned work of Carl Güterbock,
“Bracton and his Relation to the Roman Law,” recently translated by
Brinton Coxe (Philadelphia, 1866). The subject is one which well
deserves a more thorough consideration than it is likely to receive at
the hands of English writers.
It is curious to observe that the _crimen læsæ majestatis_ makes its
appearance in Bracton (Lib. III. Tract. ii. cap. 3, § 1) about the
middle of the thirteenth century, earlier than in France, where, as we
have seen, the first allusion to it occurs in 1315. This was hardly to
be expected, when we consider the widely different influences exerted
upon the jurisprudence of the two countries by the Roman law.
[1815] The passage which has been relied on by lawyers is chap. xxx.:
“Nullus liber homo capiatur, vel imprisonetur, aut dissaisiatur, aut
utlagetur, aut aliquo modo destruatur; nec super eum ibimus, nec super
eum mittemus, nisi per legale judicium parium suorum, vel per legem
terræ.” If the law just above quoted from the collection of Henry I.
could be supposed to be still in force under John, then this might
possibly be imagined to bear some reference to it; but it is evident
that had torture been an existing grievance, such as outlawry, seizure,
and imprisonment, the barons would have been careful to include it in
their enumeration of restrictions. Moreover, Magna Charta was specially
directed to curtail the royal prerogative, and at a later period was
not held by any one to interfere with that prerogative whenever the
king desired to test with the rack the endurance of his loving subjects.
[1816] Et come ascuns felons viendrount en Jugement respondre de lour
felonie, volons que ils viegnent dechausses et descients sauns coiffe,
et a teste descouverte, en pure lour cote hors de fers et de chescun
manere de liens, ïssint que la peine ne lour toille nule manere de
rason, selon par force ne lour estouva mye respondre forsque lour
fraunche volunte.—Britton, chap. v.
[1817] Per volunté aussi se fait ceste pesché [homicide] si come
per ceux qui painent home tant que il est gehist pur avouer pesché
mortelment.—Horne, The Myrror of Justice, cap. I. sect. viii.—See also
Fleta, Lib. I. cap. xxvi. § 5.
[1818] Ou faussement judgea Raginald ... ou issint; tant luy penia pur
luy faire conoistre, approver il se conoist faussement aver pesché ou
nient ne pescha.—Horne, cap. II. sect. xv.
[1819] Pike (Hist. of Crime in England I. 427) quotes a document of
1189 which seems indirectly to show that torture could be inflicted
under an order of the king. The expression is somewhat doubtful, and as
torture had not yet established itself anywhere in Europe as a judicial
procedure the document alleged can hardly be received as evidence of
its legality.
[1820] See Fortescue de Laud. Legg. Angliæ. cap. xxxiii.—The jealousy
with which all attempted encroachments of the Roman law were repelled
is manifested in a declaration of Parliament in 1388. “Que ce royalme
d’Engleterre n’estait devant ces heures, ne à l’entent du roy nostre
dit seignior et seigniors du parlement unque ne serra rulé ne governé
par la ley civill.”—Rot. Parl., II Ric. II. (Selden’s Note to
Fortescue, _loc. cit._).
[1821] De Laudibus Legum Angliæ, cap. xxii.
[1822] See Jardine’s “Reading on the Use of Torture in the Criminal Law
of England,” p. 7 (London, 1837), a condensed and sufficiently complete
account of the subject under the Tudors and Stuarts.
[1823] Partim tormentis subjecti, partim crudelissime laniati, et
partim etiam furca suspensi fuerant.—Wilkins Concil. III. 617.
[1824] Jardine, _op. cit._ pp. 8-9, 24-5. It is due to Sir Thomas
to add that he earnestly begs Lord Burghley to release him from so
uncongenial an employment.
[1825] Ibid. pp. 8, 47.
[1826] Bacon’s Works, Philadelphia, 1846, III. 126.
[1827] Strype’s Eccles. Memorials, III. 101.
[1828] Burnet, Hist. Reform. Bk. III. pp. 341-2.
[1829] According to Nicander Nucius (Travels, Camden Soc. 1841, pp. 58,
62), the investigation of these deceptions with the severest tortures,
Βασάνοις ἀφορήτοις, was apparently the ordinary mode of procedure.
[1830] Diarium rerum gestarum in Turri Londinensi (Sanderi Schisma
Anglicanum, _ad calcem_, Ingolstadt, 1586).
[1831] Sir William Skevington, a lieutenant of the Tower, under Henry
VIII., immortalized himself by reviving an old implement of torture,
consisting of an iron hoop, in which the prisoner was bent, heels to
hams and chest to knees, and was thus crushed together unmercifully. It
obtained the nickname of Skevington’s Daughter, corrupted in time to
Scavenger’s Daughter. Among other sufferers from its embraces was an
unlucky Irishman, named Myagh, whose plaint, engraved on the walls of
his dungeon, is still among the curiosities of the Tower:—
“Thomas Miagh, which liethe here alone,
That fayne wold from hens begon:
By torture straunge mi truth was tryed,
Yet of my libertie denied.
1581. Thomas Myagh.” (Jardine, _op. cit._ pp. 15, 30).
[1832] Jardine, pp. 53, 57-8.
It is rather remarkable to find torture legalized at this period,
even in qualified form of the _question définitive_ in the Colony of
Massachusetts. The Body of Liberties, enacted in 1641, declares:—
“45. No man shall be forced by Torture to confesse any crime against
himselfe nor any other, unlesse it be in some Capitall case where
he is first fully convicted by cleare and suffitient evidence to be
guilty, After which if the case be of that nature, That it is very
apparent there be other conspiritours or confederates with him, Then
he may be tortured, yet not with such Tortures as be Barbarous and
inhumane.”—Whitmore’s Colonial Laws of Massachusetts, Boston, 1889 (N.
Y. Nation, No. 1268, p. 318).
From this it would appear safe to conclude that this is a limitation on
a pre-existing, more general use of torture.
[1833] Jardine, p. 65.
[1834] Lecky, Hist. of Rationalism, Am. ed. I. 122.—In his very
interesting work, Mr. Lecky mentions a case, occurring under the
Commonwealth, of an aged clergyman named Lowes, who, after an
irreproachable pastorate of fifty years, fell under suspicion. “The
unhappy old man was kept awake for several successive nights, and
persecuted ‘till he was weary of his life, and was scarcely sensible of
what he said or did.’ He was then thrown into the water, condemned, and
hung.”—Ibid. p. 126.
[1835] Cobbett’s State Trials, VI. 686.—Although ostensibly not used to
extort confession, this pricking was practically regarded as a torture.
Thus in 1677 the Privy Council of Scotland “found that they (_i. e._,
the inferior magistracy) might not use any torture by pricking or by
withholding them from sleep” (_loc. cit._).
[1836] Spottiswoode Miscellany, Edinburgh, 1845, II. 67.
[1837] Rogers’s Scotland, Social and Domestic, p. 266.
[1838] Statut. Roberti III. cap. xvi. (Skene).
[1839] Lecky, _op. cit._ I. 145-6.—Rogers, _op. cit._ pp. 267-300.
[1840] I quote from Mr. Lecky (p. 147), who gives as his authority
“Pitcairn’s Criminal Trials of Scotland.”
“But others and perhaps worse trials were in reserve. The three
principal that were habitually applied were the penniwinkis, the boots,
and the caschielawis. The first was a kind of thumbscrew; the second
was a frame in which the leg was inserted, and in which it was broken
by wedges driven in by a hammer; the third was also an iron frame
for the leg, which was from time to time heated over a brazier. Fire
matches were sometimes applied to the body of the victim. We read, in
a contemporary legal register, of one man who was kept for forty-eight
hours in ‘vehement tortour’ in the caschielawis; and of another who
remained in the same frightful machine for eleven days and eleven
nights, whose legs were broken daily for fourteen days in the boots,
and who was so scourged that the whole skin was torn from his body.”
These cases occurred in 1596.
These horrors are almost equalled by those of another trial in which
a Dr. Fian was accused of having caused the storms which endangered
the voyage of James VI. from Denmark in 1590. James personally
superintended the torturing of the unhappy wretch, and after exhausting
all the torments known to the skill and experience of the executioners,
he invented new ones. All were vain, however, and the victim was
finally burnt without confessing his ill-deeds (Ibid. p. 123).
[1841] Rogers, _op. cit._ p. 307.
[1842] Diurnal of Occurrences in Scotland (Spottiswoode Miscellany, II.
90-91).
[1843] 7 Anne c. 21.—While thus legislating for the enlightenment
of Scotland, the English majority took care to retain the equally
barbarous practice of the _peine forte et dure_. This was commenced in
1275 simply as a “prisone forte et dure” (First Statute of Westminster,
cap. xii.; Cf. Britton, cap. xi.) for felons refusing to plead, and
speedily developed into starvation and nakedness (Fleta, Lib. I. cap.
xxxii. § 33). Horne (Myrror of Justice, cap. I. § viii.; cap. II. §
ix.) evidently regards as illegal “le horrible et perillous lien,” and
treats as murder a death occasioned by it. In spite of this protest the
process was rendered still more barbarous by piling weights of iron on
the poor wretch, and finally the device of a press was adopted in which
he was squeezed. In this shape it lost its original justification of
wearing out his endurance and forcing him to plead either guilty or
not guilty, and became a simple punishment of peculiar atrocity, for,
after its commencement the prisoner was not allowed to plead, but was
kept under the press until death, “donec oneris, frigoris atque famis
cruciatu extinguitur” (Hale, Placit. Coron. c. xliii.). This relic of
modern barbarism was not abolished until 1772, by 12 Geo. III. c. 20.
The only case of its employment in America is said to have been that
of Giles Cory, in 1692, during the witchcraft epidemic. Knowing the
hopelessness of the trials, he refused to plead, and was duly pressed
to death (Cobbett’s State Trials, VI. 680).
When the _peine forte et dure_ had become simply a punishment, it was
sometimes replaced by a torture consisting of tying the thumbs together
with whipcord until the endurance of the accused gave way and he
consented to plead. This practice continued at least until so late as
1734. See an interesting essay by Prof. James B. Thayer, Harvard Law
Review, Jan. 1892.
[1844] Rogers, _op. cit._ p. 301.
[1845] Herzog, Abriss der Gesammten Kirchengeschichte, II. 346.
[1846] His arguments are quoted and controverted by Simancas, Bishop of
Badajos, in his Cathol. Institut. Tit. LXV. No. 7, 8.
[1847] Essais, Liv. II. chap. v.—This passage is little more than a
plagiarism on St. Augustin, de Civ. Dei Lib. XIX. cap. vi.—Montaigne
further illustrates his position by a story from Froissart (Liv. IV.
ch. lviii.), who relates that an old woman complained to Bajazet
that a soldier had foraged on her. The Turk summarily disposed of
the soldier’s denial by causing his stomach to be opened. He proved
guilty—but what had he been found innocent?
[1848] Bayle, Dict. Hist. s. v. _Grevius_.—Gerstlacheri Comment. de
Quæst. per Torment. Francof. 1753, pp. 25-6.
[1849] Frid. Kelleri Paradoxon de Tortura in Christ. Repub. non
exercenda. Reimp. Jenæ, 1688.
[1850] Déclaration du 24 Août, 1780 (Isambert, XXVII. 374).
[1851] Nicolas is careful to assert his entire belief in the existence
of sorcery and his sincere desire for its punishment, and he is
indignant at the popular feeling which stigmatized those who wished for
a reform in procedure as “avocats des sorciers.”
[1852] Dict. Histor. s. v. _Grevius_.
[1853] Bernhardi Diss. Inaug. cap. II. §§ iv. x.—Bernhardi ventured
on the use of very decided language in denunciation of the
system.—“Injustam, iniquam, fallacem, insignium malorum promotricem, et
denique omni divini testimonii specie destitutam esse hanc violentam
torturam et proinde ex foris Christianorum rejiciendam intrepide
assero” (Ibid. cap. I. § 1).
[1854] Meyer, Institutions Judiciaires, IV. 297. Even, then, however,
the inquisitorial process was not abolished, and criminal procedure
continued to be secret. For the rack and strappado were substituted
prolonged imprisonment and other expedients to extort confession;
and in 1803 direct torture was used in the case of Hendrik Janssen,
executed in Amsterdam on the strength of a confession extracted from
him with the aid of a bull’s pizzle.
[1855] An enumeration of the opponents of torture may be found in
Gerstlacher’s Comment. de Quæst. per Tormenta, pp. 24-30, and Werner’s
Dissert. de Tortura Testium, pp. 28-31.
[1856] M. A. Engel de Tortura ex Foris Christ. non proscribenda.
Lipsiæ, 1733.
[1857] Jo. Frid. Werner Dissert. de Tortura Testium, Erford. 1724.
Reimpr. Lipsiæ, 1742.
[1858] Carlyle, Hist. Friedrich II. Book XI. ch. i.
[1859] I find this statement in an account by G. F. Günther (Lipsiæ,
1838) of the abolition of torture in Saxony.
[1860] Günther, _op. cit._
[1861] Gerstlacheri Comment. de Quæst. per Tormenta, Francofurti, 1753,
p. 56.
[1862] Goetzii Dissert. de Tortura, Lipsiæ, 1742, p. 24.
[1863] Constitutio Criminalis Theresiana, Wien, 1769.
[1864] Du Boys, Droit Criminel des Peuples Modernes, I. 620.
[1865] Instructions addressées par sa Majesté l’Impératrice de toutes
les Russies à la Commission établie pour travailler à l’exécution
du projet d’un Nouveau Code de Lois Art. X. §§ 82-87 (Pétersbourg
1769).—See also Grand Instructions of Catherine II., London, 1769, pp.
113-8.
[1866] Jardine, Use of Torture in England, p. 3.—Meyer, Institutions
Judiciaires, T. I. p. xlvi.—T. II. p. 262.
[1867] Groot, Hist. Ecles. y Civil de Nueva Granada II. 79-80.
[1868] Toreno, Levantamiento, Guerra y Revolución de España, Paris,
1838, II. 371, 438.
[1869] Tant d’habiles gens et tant de beaux génies ont écrit contre
cette pratique que je n’ose parler après eux. J’allois dire qu’elle
pourroit convenir dans les gouvernements despotiques; où tout qui
inspire la crainte entre plus dans les ressorts du gouvernement:
j’allois dire que les esclaves, chez les Grecs et chez les Romains——
Mais j’entends la voix de la nature qui crie contre moi.—Liv. VI. ch.
xvii.
[1870] Desmaze, Pénalités Anciennes, Pièces Justicatives p. 423.
[1871] Mary Lafon, Histoire du Midi de la France, T. IV. pp.
325-355.—The theory of the defence was that the murdered man had
committed suicide; but this is incompatible with the testimony, much of
which is given at length by Mary Lafon, a writer who cannot be accused
of any leanings against Protestantism.
[1872] Chéruel, Dict. Hist. des Institutions de la France. P. II. p.
1220.
[1873] Déclaration du 24 Août 1780 (Isambert, XXVII. 373).
[1874] Desmaze, Pénalités Anciennes, pp. 176-77.
[1875] Déclaration du 3 Mai 1788, art. 8. “Nôtre déclaration du 24 Août
sera exécutée” (Isambert, XXIX. 532).
[1876] Louīse, Sorcellerie et Justice Criminelle à Valenciennes, p. 96.
[1877] Isambert, XXIX. 529.—It is noteworthy, as a sign of the temper
of the times, on the eve of the last convocation of the Notables,
that this edict, which introduced various ameliorations in criminal
procedure, and promised a more thorough reform, invites from the
community at large suggestions on the subject, in order that the reform
may embody the results of public opinion—“Nous élèverons ainsi au rang
des lois les résultats de l’opinion publique.” This was pure democratic
republicanism in an irregular form.
The edict also indicates an intention to remove another of the blots
on the criminal procedure of the age, in a vague promise to allow the
prisoner the privilege of counsel.
[1878] Dei Delitti e delle Pene, § XII.—The fundamental error in the
prevalent system of criminal procedure was well exposed in Beccaria’s
remark that a mathematician would be better than a legist for the
solution of the essential problem in criminal trials—“Data la forza dei
muscoli e la sensibilitá delle fibre di un innocente, trovare il grado
di dolore che lo farà confessar reo di un dato delitto.”
[1879] Carlo di la Varenne, La Tortura in Sicilia, 1860.
* * * * * *
Transcriber’s note:
Obvious typographical errors have been silently corrected.
Variations in hyphenation have been standardised but all other
spelling and punctuation remains unchanged.
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