JL^ Gins'; . G f bldO Book ,L±^ C ■ COPYRIGHT DEPOSIT. SUPERSTITION AND FORCE, ESSAYS ON THE WAGER OF LAW— THE WAGER OF BATTLE- THE ORDEAL— TORTURE. BY HENRY C. LEA Plurima est et in omni jure civili, et in pontificum libris, et in XII. tabulis, antiquitatis effigies. — Cicero, de Oratore I. ^j. THIRD EDITION, RE VISED. PHILADELPHIA: HENRY C. LEA. 1878. Entered according to Act of Congress, in the year 1878, by HENRY C. LEA, in the Office of the Librarian of Congress. All rights reserved. COLLINS, PRINTER PREFACE. The history of jurisprudence is the history of civiliza- tion. 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 dis- cover 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 reveal to us some of the strangest mysteries of the human mind. In this edition I have endeavored to indicate, mofe clearly than before, the source, in prehistoric antiquity, of IV PREFACE. 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 ra- tionalism. In a greatly condensed form the first three essays originally appeared in the North American Review. Philadelphia, June, 1878. CONTENTS. I. THE WAGER OF LAW. PAGE Social Organization of the Aryan Races. Crime merely an offence against individuals . . . • ^3 Tribal organization — Responsibility of kindred ... 14 Compensation for injuries — The Wer-gild . . . .16 The Oath and its Accessories. Perplexities as to evidence ....... 20 Guarantees required for the oath . . . . . .21 CONJURATORS, OR PARTAKERS IN THE OaTH. The Wager of Law a prehistoric Aryan custom . . .31 It is adopted by the Church ....... 33 Selection of Compurgators. They are originally the kindred ...... 35 Strangers admitted ........ 37 Numbers required ........ 40 Modes of selection ........ 44 Conditions of Compurgation. Employed in default of testimony 48 Except in Wales . . . . . . . . .51 Dependent on importance of case . . . . . • S^ Formulas and Procedure. Forms of compurgatorial oath ...... 53 Modes of administration . . . . . • • 55 Qualified confidence reposed in compurgation . . • 56 Conjurators liable to ptnaliies of perjury .... 58 1* VI CONTENTS. PAGE Decline of Compurgation. Early efforts to limit or abolish it . . . . . .61 The oath no longer a positive asseveration .... 66 Influence of revival of Roman Lav/ . . . . .67 Conservatism of Feudalism . . . . . . .71 Gradual disappearance of Compurgation in Continental Europe 73 Preserved in England until 1833 . . . . . . 78 Maintained in the Church and in the Inquisition . . .81 Accusatorial Conjurators. Employed by the Barbarians ...... 86 Maintained until the sixteenth century ..... 90 II. THE WAGER OF BATTLE. Natural tendency to appeal to Heaven ...... 93 Distinction between the Judicial Combat and the Duel ... 95 Origin of the Judicial Combat. A prehistoric Aryan custom ..... . . 99 Extension of Use of the Judicial Combat. Its form Christianized into an appeal to God .... 108 Universality of its employment . . . . . .109 Practice of challenging vi^itnesses . . , . . .111 of challenging judges . . . . . .113 Confidence reposed in the Judicial Combat. Its jurisdiction universal . . . . . . . i r8 Implicit faith reposed in it . . . . . . .126 Limitations imposed on the Judicial Combat. Respective rights of plaintiff and defendant . . . .128 Minimum limit of value . . . . . . • ^33 Questions of rank . . . . . . . '135 Liability of women to the combat . . . . . .138 of ecclesiastics . . . . . . .140 The combat under ecclesiastical jurisdiction .... 144 Not recognized in mercantile law . . . , . .147 CONTENTS. Regulations of the Judicial Combat. Penalty for defeat Security required of combatants Choice of weapons Champions. Originally kinsmen .... Employment of champions becomes general Hired champions were originally witnesses Punishment for defeated champions Professional champions Efforts to limit the use of champions Champions of communities . of the Church Decline of the Judicial Combat. Iceland and Norway the first to prohibit it Opposition of the Municipalities . of the Church .... Influence of the Roman Law Struggle over its abolition in France Reforms of St. Louis .... Resistance of the Feudatories Reaction after the death of St. Louis Renewed efforts of Philippe-le-Bel Continued by his successors . Occasional cases in fifteenth and sixteenth centuries Final disappearance ...... Its later history in Hungary, Italy, Flanders, Russia, Scotland Maintained in England until the nineteenth century Traces of its legal existence in the United States . 155 156 158 160 161 163 164 168 174 175 176 177 182 185 190 I go 192 195 196 200 204 208 208 211 216 III. THE ORDEAL. Tendency of the human mind to cast its doubts on God China an exception ...... The Ordeal in Africa ...... in the Indian and Pacific Archipelagos among pre-Aryan Indian Tribes . 217 219 221 224 225 Vlll CONTENTS. Traces of the Ordeal in Egypt . . . . . . .226 Among Semitic Races — The Assyrians, Hebrews, Moslem . . 227 Among Aryans — Mazdeism ........ 232 Hinduism — Buddhism ........ 234 Hellenes and Italiotes ........ 236 Celts, Teutons, Slavs ........ 238 The Ordeal in the Barbarian occupation of Europe . . . 241 Adopted by the Church ........ 242 Ordeal of Boiling Water. Details of its administration .... Miracles reversing the ordinary process . Ordeal of Red-hot Iron. Various forms of its administration Specially used in cases of importance and in cases of disputed paternity Examples of its use ..... Miracles reversing the ordinary process . Ordeal of Fire. Its prototypes ...... Cases of its use ...... Used to test relics ...... Ordeal of Cold Water. Requires a miracle for conviction . Mode of administration ' Supposed origin in ninth century . Received in general use . ... Prolonged employment in witchcraft cases Occasionally used in nineteenth century . Ordeal of the Balance. Modes of administration Ordeal of the Cross. It is one of endurance . Variations in procedure The Corsn^d. Formula of employment Cases of its use . 244 250 252 256 259 260 265 266 267 277 279 280 282 283 286 293 294 296 297 299 3^1 CONTENTS. IX PAGE The Eucharist as an Ordeal. Superstitions connected with the Eucharist .... 304 Cases of its use as an ordeal ....... 307 Still used in seventeenth century . . . . . .311 Ordeal of the Lot. Various modes of its administration . . . . .311 Appeals to chance — Ordeal of Bible and key - . . .314 Bier-Right. Doubtful origin . . . . . . . . '3^5 Cases of its use . . . , . . . . .316 It lingers to the present day ....... '322 Oaths as Ordeals. Superstitions connected with the oath . . . . -323 Risks of perjury in oaths on relics ..... 323 Poison Ordeals. Used in India, not in Europe ...... 327 Irregular Ordeals. Iron bands on murderers . . . . . . .329 Cases of miraculous interposition ...... 330 Conditions of the Ordeal. It is a regular judicial procedure ...... 333 Absence of testimony usually a prerequisite .... 335 Usually a means of defence . . . . . . '337 Used in default of compurgation ...... 338 Sometimes regarded as a punishment . . . . . 339 Its use in extorting confessions ...... 342 Practically amounts to torture ...... 343 Confidence reposed in the Ordeal. Compounding for the ordeal ....... 347 Conflicting views as to its efficacy ...... 348 Explanations of its unjust results . . . . . - 3SO Regulations to enforce its impartial administration . . . 353 The Church and the Ordeal. The Papacy consistently opposes it . . . . -355 But it is sustained by the clergy . . . . . • 355 Advantages derived from it by the clergy . . . -359 The Popes at length undertake its abolition .... 363 CONTENTS. Repressive Secular Legislation. Forbidden in England in 1 2 19 Gradually falls into desuetude Influence of Roman Law and of the communes Persistence of suoerstition .... PAGE 364 368 369 IV. TORTURE. The ordeal and torture are substitutes for each other Torture in Egypt — in Assyria — not used by Hebrews Not used by Oriental Aryans .... Greece and Rome. Usages of torture in Greece .... Rome — freemen not liable under Republic Caesarism extends the use of torture . Limited by Inscription and the Lex Talionis Torture of witnesses Liability of slaves to torture Limitations on use of torture Value of evidence under torture The Barbarians. Structure of Barbarian society Freemen originally not liable — torture of slaves Illegal torture of freemen by the Merovingians The Goths. Influence of Roman institutions on the Golhs Torture under the Ostrogoths Employed by the Wisigoths — details of its use Transmitted by them to modern Spain . Legislation of Las Siete Partidas . Final shape of torture system in Spain . Carlovingian and Feudal Law. Torture first used for witchcraft, under Charlemagne Character of institutions adverse to its use Feudalism not favorable to it Torture used for punishment and extortion Ecclesiastical influence adverse to its use . . 371 . 372 • • zn . • 374 . . 376 . . 377 lis . 381 . . 382 382 . . 387 • 388 . . 391 . 392 395 . 397 . 398 . 399 . 403 403 • ^ • 408 e 411 . 413 , •414 . 415 . 419 CONTENTS, XI Reappearance of Torture. Influence of the Roman Law . . . . Torture first appears in Latin kingdom of Jerusalem It is revived in Italy in 13th century Influence of the Inquisition .... First appearance of torture in France, in 1254 Its gradual introduction — 1283 to 1319 . Resistance of the nobles in 131 5 . Permanently established in opposition to Feudalism Examples of procedure in the Chatelet of Paris, 1 389-1 392 Introduction in Germany — Corsica — Venice — the Valtelline- Hungary — Poland — Russia ..... The Inquisitorial Process. Secret proceedings and denial of opportunity for defence Perfected by Francis I. . Revised under Louis XIV. .... Torture avec reserve des preuves Illegal extension of the system in the Netherlands Germany — the Caroline Constitutions Final Shape of the Torture System. The Roman Law engrafted on German Jurisprudence Theoretical exemptions practically annulled . The accused abandoned to the discretion of the judge Torture of witnesses .... Denial of opportunities for defence Abuse of the power lodged with the judge Influence of the system upon the judge . Confirmation of confession necessary Influence of witch-trials in aggravating the torture system Torture in monasteries ....... England and the Northern Races. Influence of the jury-trial in delaying introduction of Torture in Denmark, Norway, and. Sweden . . England — Torture unknown to the Common Law . Introduced as a concession to the royal prerogative Influence of witch-trials ..... Scotland — frightful severity of torture trials .... 420 422 423 425 428 432 435 438 441 446 451 453 456 458 460 461 463 464 466 470 473 475 481 485 490 496 497 500 503 506 508 XU CONTENTS. Decline of the Torture System. Opponents arise — Vives, Montaigne, Graefe, Sec. — Gradual ef- forts to abolish it . . ..... Abolished in Prussia in 1740 ..... in Saxony, Austria, Ru&>ia .... Continued in Baden till 1831 — Retention of the Inquisitorial Process, and Revival of Torture in the German Empire Abolished in Spain in 1812 . in France, 1 780-1 789 ..... in Italy in 1786 ...... Recent instances of its use ...... 512 514 516 517 518 518 522 522 I. THE WAGER OF LAW. SOCIAL ORGANIZATION OF THE ARYAN RACES. 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 suf- ferer 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 develop- ment, 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 inten- tional homicide, he was handed over to the family of the murdered person, to be slain by them in turn.^ It still was vengeance, and not justice, that was to be satisfied. In early times, therefore, the wrong-doer owed no satisfac- tion 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 de- veloped 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 ' Legg. Villse de Arkes, \ xxviii. (D'Achery Spicileg. III. 608). 2 14 THEWAGEROFLAW. to the Other similar aggregations in the tribe or nation, pre- senting, with respect to personal rights, features analogous to their communal holding of land. Within these units, as a general rule, each individual was personally answerable for all, and all were answerable for each. A characteristic inci- dent of this system was the wer-gild or blood-money, through which offences were condoned and the aggrieved were satis- fied 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.^ Among the Hindus, the most ancient extant code, the Manava Dharma Sastra, represents a highly com- plex social organization, in which primitive institutions have been completely overlaid by the later and antagonistic ele- ments of caste and Brahmanism, but yet it reveals the exist- ence of village communities which were a direct development of the primal system of the family;^ and in the adventures of the Kauravas and Pandavas the Mahabharata preserves frag- ments of traditions conveying some indications of a pre- existing solidarity among kindred.^ Much mt)re clearly de- fined were the Hellenic organizations of the patrcz and phratricej while the institution of the wer-gild is seen in the wages earned by Heracles in serving Omphale, to be paid to > Vendidad, Farg. IV, 24-35 (Bleeck's Translation, Hertford, 1864, pp. 30-1). 2 Manava Dharma Sastra, VIII, 295 sqq. Comp, Maine's Ancient Law, pp, 260 sqq. 3 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 recog- nizing 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.) SOCIAL ORGANIZATION. I5 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. ^ In Rome, notwithstanding the powerful Latin tendency to absorb all minor subdivisions into the state, the institution of the gens f 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.^ The early legisla- tion 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 de- velopment of the original family ; while the Ruskaia Prawda, the earliest extant code, promulgated by Yaroslav Vladomi- rovich in the eleventh century, allows the relatives of a murdered man either to kill the murderer or to accept a wcr-gildixQWi him. The district, moreover, in which a homi- cide 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.'^ In Poland, the laws in force until the close of the fifteenth century provided no ' Dicsearclii Frag. (Didot, Frag, Hist. Graecor.). — Apollodor. Bib- lioth II. vi. 2-3. — Diodor. Siculi iv. 31. — Plut. Quaest. Graec. 46. — Maine's Ancient Law, p. 127. 2 Tit. Liv, I. 26; v. 32. — Appiani de Bell. Hannibal xxviii. — Dion. Halicar. II. lO; xiii. 5. 3 Esneaux, Hist, de Russie, I. 172 sqq. l6 THE WAGER OF LAW. 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 imprison- ment added. ^ 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. ^ In obedience to this all-pervading tendency of organiza- tion, the barbarian tribes which overthrew the Roman Em- pire based their institutions on two general principles — the independence of the individual freeman and the solidarity of the family group — and on these was founded their rude 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 pecu- niary compensation to console him for his sufferings.^ If he disdained this peaceful process, he was at liberty to as- semble 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 mallufn, or judicial assembly of the tribe j nor could he, as a rule, claim the right of armed defence, if the complainant preferred to receive the money payment pro- vided for the offence of which he might prove his antagonist guilty. This wer-gild was in no sense a fine inflicted as a punish- • Jo. Herburti de Fulstin Statut. Reg. Polon. tit. Hoinicid. (Samoscii, 1597, pp. 20D 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. 2 See an abstract of Bojisic's work on the customs of the southern Slavs, in the "Penn Monthly" Magazine, Phila., Jan. 1878, pp. 15 sqq. 3 Gradually, however, a portion of the composition money was attri- buted, under the name oifredum, to the king or the magistrate, as a com- pensation for readmitting the criminal to the public peace. BARBARIAN INSTITUTIONS. I7 ment 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 approv- ingly in the laws of Edward the Confessor, as collected by William the Conqueror, says: ''Bicge spere of side o'Ser bere" — Buy off the spear from thy side or endure it.^ 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 parri- cides. 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. ^ This system introduced into legal proceedings a commer- cial 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 encou- raging, 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 proceed- ings with a challenge to single combat, or a powerful pleader might collect his friends for a raid on the Althing ^ LI. Edwardi, c. xii. (Thorpe's Ancient Laws, I. 467). 2 Gwentian Code, Bk. 11. chap. vii. ^ 8. (Aneurin Owen's Ancient Laws, etc. of Wales, I. 701,) l8 THEWAGEROFLAW. and thus brccak up the court, this traffic in suits was a specu- lation 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 de- grees 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 kmsman in general."^ Avery complete example of the development of this system is to be found in the Ice- landic 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.^ 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.^ It was not until about 1270 that King Haco, in his unsuccessful attempt to reform these laws, ven- tured 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.* On the other hand, in Denmark, Eric VII., in 1269, relieved the kindred of the ' Senchus Mor, I. 259 (Hancock's ed. Dublin, 1865). 2 Gr^gas, Sect. iv. cap. cxiv. ^ ihid. Sect. viii. cap. Iv. * Jarnsida, Mannhelge, cap, xxix. — Cf. Legg. Gulatbingenses, Mann- helgi, cap. xii. SOLIDARITY OF FAMILIES. I9 murderer from contributing to the wer-gild, although it continued to be divided among the relatives of the slain. ^ Among the Welsh the provisions for levying and distri- buting 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;^ 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.^ 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 por- tion 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.* A still more pregnant example of the responsibility of kindred is found in the cus- toms 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.^ The introduction of Christianity, with the all-pervading sacerdotalism of the church, rendered necessary an innova- » Constit. Eric. Ann. 1269, I vii. (Ludewig, Reliq. MSS. T. XII. p. 204). 2 Dimetian Code, Bk. 11. ch. i. \\ 17-31 — Bk. ni. ch. iii. \ 4 — Anoma- lous Laws, Bk. IV. ch. iii. ^11. 3 Dimetian Code, Bk. 11. chap. xxiv. \ 11. 4 Roisin, Franchises, etc. de la ville de Lille, pp. 106-7. 5 Charta Balduini Hannoniens. (Martene, Collect. Ampliss. I. 964.) 20 THEWAGEROFLAW. tion on the primeval form of social organization, for eccle- siastical ties dissolved those of the family. By the Carlo- vingian 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,^ though this regulation subsequently was modi- fied 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.^ 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;^ 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. *' Nei- ther 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."* With this exception, therefore, in its relations to the com- munity, 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 inallum 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 feudal and customary law. 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 ' Capitul, Lib. iv. cap. 15. 2 Concil. Tribur. an. 895, can. iv. ^ Dimetian Code, Bk. ii. chap. i. § 32. 4 Venedotian Code, Bk. in. chap. i. \ 21. VALUE OF OATHS. 21 one which has taxed man's reasoning powers to the utmost; and the subtle distinctions of the Roman law, with its proba- tio, prcesumpHo juris, prcEsumptio juris tantum : the endless refinements of the glossators, rating evidence in its different grades, as prohatio optinia, evidentissiina, aperiissima, legiti- ma, sufficiens, indicbitata, dilucida, liquida, evidens, pe?'spicua, and semiplena; and the complicated rules which bewilder the student of the common law, all alike show the importance of the subject, and its supreme difficulty. The semi-barbarian, impatient of such expenditure of logic, arrived at results by a shorter and more direct process. Some writers have assumed that the unsupported oath of the accused was originally sufficient to clear him of a charge, and they dilate with enthusiasm on the heroic age, when a lie is cowardice, and the fierce warrior disdains to shrink from the consequences of his act. All this is purely conven- tional, and justification will vainly be sought for it in any of the unadulterated records of the barbarians. 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 intro- duction of such a custom may be traced to the influence of the Roman law, in which the importance of the oath was overwhelming.^ 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 testi- mony, to escape on his single oath,^ and this exception only 1 The oath may be regarded as the foundation of Roman legal proce- dure — " Uato jurejurando non aliud quaeritur, quam an juratum sit; remissa qusestione an debeatur; quasi satis probatum sit jurejurando." L. 5, \ 2, D, XII. ii. T^^Q. jusjurandiun necessarium could always bead- ministered by the judge in cases of deficient evidence, and \h^ jiisjurandum injure proffered by the plaintiff to the defendant was conclusive: " Mani- festoe turpitudinis et confessionis est nolle nee jurare nee jusjurandum referre." Ibid. L 38. 2 LI. Wisigoth. Lib. 11. Tit. ii. c. 5. 22 THEWAGEROFLAW. tends to prove the rule. So great was the abhorrence of the other races for practices of this kind, that at the council of Valence, in 855, the Wisigothic custom was denounced in the strongest terms as an incentive to perjur3^^ It was not until long after the primitive customs of the wild tribes had become essentially modified by contact with the remains of Roman civilization, that such procedures were regarded as admissible ; and, indeed, it required the revival of the study of the civil law in the twelfth century to give the practice a position entitled to respect.^ • Concil. Valentin, ann. 855, c, xi. 2 Thus Alfonso the Wise endeavored to introduce into Spain the mutual challenging of the parties involved in the ^o\n2.Vi jiisjurandum injure, by his jura de juicio (Las Siete Partidas, P. ill. Tit. xi. 1. 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 per- sonas." Lib. Pract. de Consuetud. Remens. § 15 (Archives Legislat. 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." — Etablissements, Liv. I. chap, cxxi. In certain local codes, the purgatorial power of the oath was carried to the most absurd extent. Thus, in the thirteenth century, the municipal law of the Saxons enabled the accused in certain cases to clear himself, however notorious the facts of the case, 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 convic- tion. (Jur. Provin. Saxon. Lib. I. Ait. 15, 18, .39; Lib, 11. Art. 4, 72.) This irrational abuse was long in vogue, and was denounced by the coun- cil of Bale in the fifteenth century (Schiller. 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 dis- tinguishing features of the Saxon code. So, also, at the same period a special privilege was claimed by the in- CLASS PRIVILEGES. 23 It is true that occasionally, in the early legislation of the barbarians, an instance occurs in which certain privileges in this respect are accorded to some classes in the community, but these are 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 assevera- tion, 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 canon- ical compurgation which will be hereafter described/ So, in the Welsh legislation, exemption from the oath of absolu- tion was accorded to bishops, lords, the deaf, the dumb, men of a different language, and pregnant women. ^ In- stances 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 sub- stance and repute, while, if otherwise, he was obliged to provide two conjurators/ and in Castile, the fijodalgo, or habitants of Fi-anconia, ill 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. A charter granted to the commune of Lorris, in 1 155, by Louis-le-Jeune, gives to burghers the privilege of rebutting by oath, without conjurators, an accusation unsupported by testimony. — Chart. Ludovic. junior, ann. 1 155, cap. xxxii. (Isambert, Anciennes Lois Franfaises I. 157.) And, in comparatively modern times, in Germany, the same rule was followed. " Juramento rei, quod purgationis vocatur, ssepe etiam innocentia, utpote quae in anima constitit, probatur et indicia diluuntur;" and this oath was administered when the evidence was insufficient to justify torture. (Zan- geri Tract, de Quaesiionibus cap. iii. No. 46.) In 1592, Zanger wrote an elaborate essay to prove the evils of the custom. J Laws of Wihtraed, cap. 16-21. Comp. LI. Henrici I. Tit. Ixiv. ^ 8. 2 Anomalous Laws, Book iv. chap. i. ^ ii. — (Owen's Laws and Insti- tutes of Wales, II. 5.) 3 Jur. Provin. Alaman. cclxiv. 7, 8. 24 THE WAGER OF LAW. 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.^ 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 the Aryans 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, and the similarity of the formulas employed shows that the origin of the cus- tom may be traced to a period anterior to the division of the parent stock. Thus the 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 can- not 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 Visvvamitra 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 Ksha- triya by his horses, his elephants, or his arms ; the Vaisya by his cows, his corn, and his gold; the Sudra by all crimes."^ We see the same custom in Greece, where Homer repre- sents Hera as exculpating herself by an oath on the sacred head of Zeus, and on their marriage bed, a practice which ' Fuero Viejo ill. ii. ^ Book VII. 109-13 (after Delongchamps' translation). ACCESSORIES OF THE OATH. 25 mortals imitated by swearing on the heads of their children, or on that of their patron, or of the king.^ Under the Ro- man law, oaths were frequently taken on the head of the litigant, or on those of his children.^ The Norse warrior was sworn, like the Hindu Kshatriya, on his warlike gear : *' Oaths shalt thou By edge of sword, First to me swear, That thou wilt not slay By board of ship, The wife of Volund, By rim of shield, Nor of my bride By shoulder of steed. Cause the death. ''3 When these material pledges were not offered, the sanc- tions of religion have in all ages been called into play to impress the imagination of the swearer with the awful respon- sibility 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. We see this 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 ;* 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 Ital- iotes. Similar practices were familiar to the Norsemen. Among them the Godi was both priest and judge, the judg- ment-seat adjoined the temple, and all parties to a suit, inclu- ding judge and witnesses, were solemnly sworn upon the sacred ring kept for that purpose on the altar. It was sprin- ' Iliad. XV. 36-40. — Luciani Philopseud. 5; Cataplus ii. 2 LI. 3, 4, D. XII. ii. 3 Volundarkvida 31 (Thorpe's Ssemund's Edda). A curious remnant of this is seen in the burgher law of Northern Germany in the thirteenth cen- tury, 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 ani- mal's ear and swore by its head that it was his. — Sachsisches Weichbild, art. 135. 4 Pausan. iii. xx. 9. 3 26 THEWAGEROFLAW. kled 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 jus- tice.^ 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 con- fessing his guilt he apparently was denying it most circum- stantially.^ 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 addi- tional solemnity to the awful ceremony. In this the natural tendency of the church to follow the traditional customs of the Aryans 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 cere- mony 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.^ These beliefs developed into a great variety of formulas, which would re- ward an examination more detailed than that which I can give them here. In the middle of the sixth century, Pope Pelagius I. did ' Islands Landnamabok iv. 7; II. 9 (Ed. 1774, pp. 299, S;^). 2 Keyser's Religion of the Northmen, Pennock's Translation, p. 238. 3 Gen. XV. 9-17. — Jer. xxxiv. 18-19. — I. Kings, viii. 31-2. — Chrysost. Orat. adv. Jud. i. 3. MULTIPLE OATHS. 27 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.^ About the same period, when the holy Gregory of Tours was accused of reproachful words truly spoken of the in- famous 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.^ This plan of reduplicating oaths on different altars was an established practice among the Anglo-Saxons, who, in cer- tain 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.^ Seven altars are similarly specified in the ancient Welsh laws in cases where a surety desired to deny his suretyship ;* and, according to the Fleta, as late as the thirteenth century, a custom was current among merchants, of proving the pay- ment of a debt by swearing in nine churches, the abuse of which led to its abrogation.^ 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 ad- ' Anastas. Biblioth. No. Lxn. 2 Gregor. Turon. Hist. Lib. v. cap. xlix. Gregory complains that this was contrary to the canons, of which more hereafter. 3 Dooms of Alfred, cap. 33. 4 Dimetian Code, Bk. 11. chap. vi. \ 17 (Owen, I. 431). 5 Fleta, Lib, ii. cap. Ixiii. \ 12. The Moslem jurisprudence has a somewhat similar provision for accusatorial oaths in the lesame 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 Die, or blood-money for the murder. — Du Boys, Droit Criminel des Peuples Modernes, I. 269. 28 THE WAGER OF LAW. juncts came to be looked upon as the essential feature, and the imprecation itself to be divested of binding force with- out 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 re- liquaries, 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. ^ 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 St. 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, ^ 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 minis- tration of a priest had not been employed, the oath was void, and no penalty was inflicted for its violation.^ In a similar mood the penitential of Gregory III. provides that three ' Fredegarii Chron. cap. xcvii, 2 Excerpt, de Libro Davidis No. xvi. (Haddau and Stubbs's Councils of Great Britain, I. 120). ^ Si in manu episcopi . . . aut in cruce consecrata perjurat III. annos poeniteat. Si vero m cruce non consecrata perjurat, I. annum poeniteat; si autem in manu hominis laici juraverit, nihil est. — Theodori Cantuar. Poenit. cap. xxiv. | 2. (Thorpe, Ancient Laws, vol. II. p. 29.) ACCESSORIES OF THE OATH. 29 years' penance will absolve for perjury committed on a con- secrated 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/ 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. '•^ In the same spirit, ecclesiastical authority was even found to admit that a powerful motive might extenuate the sin of perjury. If committed voluntarily, seven years of penitence were enjoined for its absolution ; if involuntarily, sixteen months, while if to preserve life or limb, the offence could be washed out with four months.^ When such doctrines • Gregor. PP. III. de Criminibus et Remediis, cap. vii. 2 Anomalous Laws, Boole ix. chap. v. § 3, chap, xxxviii. | I (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. xill. ch. ii. | 219. (Ibid. II. 557.) 3 Regino de Eccles, Discip. Lib. I. cap. ccc. See also Gregor. PP. III. de Crimin. loc. cit. and Jur. Provin. Saxon, Lib. in. c. 41. Not- withstanding the shocking laxity of these doctrines, it is not to be sup- posed that the true theory of the oath was altogether lost. St. Isidor of Seville, who was but little anterior to Theodore of Canterbury, well ex- presses it: "Quacunque arte verborum quisque juret, Deus tamen, qui conscientise 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. — Gra- tian. caus. xxii, q. 2 can. 13). -7* 30 THE WAGER OF LAW. 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 them- selves, and his monkish panegyrist is delighted in recounting this holy deceit.^ It was easy, from a belief such as this, to draw the deduc- tion that when an oath was sworn on relics of peculiar sanc- tity, 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. Augustine there are traces of such practices, which that Father of the Church not only records, but imitated,^ and at a later period the legends are numerous which record how the perjured sinner was stricken down senseless or rendered rigid and motion- less in the act of swearing falsely.^ The profit which the church derived from thus administering oaths on relics affords an easy explanation of her teachings, and of the ex- tension 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 her 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 VHI., the prior, Thomas Hore, testified: "Item, » Helgaldi Vit. Roberti Regis. 2 Augustin. Epist. 78, §| 2, 3. (Ed. Benedict.) 3 Gregor. Turon. de Gloria Martyr, cap. 58, 103. CONJURATORS. 31 that since the ceasynge of burnyiige 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 ad- mounted to greate sommes of money in tymes passed, pay- enge yerely to the same XXti nobles for a pencion unto thabbott of Chersey."^ CONJURATORS, OR PARTAKERS IN THE OATH. Notwithstanding the earnestness with which these teachings were enforced, it may readily be believed that the wild bar- barian, who was clamoring for the restoration of stolen cattle, or the angry relatives, eager to share the wer-gild of some murdered kinsman, would scarcely 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 iiad 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 remarkable custom which was subsequently known as canonical compurgation, and which long remained a part of English jurisprudence, under I Suppression of Monasteries, p. i86. (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 spoils. 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. 32 THE WAGER OF LAW. the name of the Wager of Law. The defendant, when de- nying the allegation under oath, appeared surrounded by a number of companions — juratores, conjuratores, sacra- mentales, collaiidantes, compurgator es, as they were variously termed — who swore, not to their knowledge of the facts, but as sharers and partakers m the oath of denial. This curious 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 Europe. 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 civili- zation. 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 remotest past, all gave to this form of purga- tion a prominent position in their jurisprudence, and it may be said to have reigned from Southern Italy to Scotland. The custom was anterior to the settlement of the barba- rians in the Roman provinces. 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 conver- sion 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.^ So in the Frisian law, which although compiled in the eighth century, still reveals pagan customs and the primitive ' First Text of Pardessus, Tit. xxxix. \ 2, and Tit. xlii. \ 5 (Loi Salique, Paris, 1843, PP- ^i, 23). It is somewhat singular that in the subsequent recensions of the code the provision is omitted in these pas- sages. ANTIQUITY OF COMPURGATION. 33 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 pro- cedure 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 their departure from the common seat of the Aryans in the farther East. The church, with the tact which distinguished her deal- ings 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.^ Three years afterwards^ the Em- peror decreed that, in all doubtful cases, priests should defend themselves with three, five, or seven ecclesiastical compur- ' 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. 34 THE WAGER OF LAW. gators, and he announced that this decision had been reached by the common consent of Pope, patriarchs, bishops, and all the faithful.^ It is true that a few months later, on being shown a decretal of Gregory 11.^ ordering the clergy to re- but 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 prac- tical result. 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 investi- gation by the commissioners sent by Louis-le-Debonnaire, he hastily purged himself of the crime in anticipation of their arrival, by an oath taken with a number of bishops as his compurgators;^ and it is a striking example of the weight • Capit. Aquisgran. aim. 803, cap. vi.i. 2 Bonifacii Epist. cxxvi. The su1)ject 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 exemp- tion which had the justification of the ancient Roman custom; " Sacerdo- tem, 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 Rheims 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 cor- rect, 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. ill. Tit. xl. 1. 24. 3 Eginhard. Annal. ann. 823. SELECTION OF COMPURGATORS. 35 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 com- plains 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. As the priesthood, however, failed in obtaining the entire im- munity 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 dif- ferences, and endeavoring, in the eleventh and twelfth cen- turies, 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."^ From this fact it obtained its appellation of '* purgatio canonica," or canonical com- purgation. 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 ' Atton, de Pressuris Ecclesiat. P. i. 2 Buchardus, Ivo, Gratianus, passim. — Ivon. Epist. 74. 36 THE WAGER OF LAW. universally.^ This is well illustrated in the Welsh laws, where the '^raith," or compurgation, was the basis of almost all procedure, and where consequently the system was brought to its fullest perfection. Complicated rules existed as to the proportion of paternal and maternal kindred required in various cases, and the connection between the wer-gild and the obligation of swearing in defence of a kins- man was fully recognized — "Because the law adjudges the men nearest in worth in every case, excepting where there shall be men under vows to deny murder," therefore the compurgators were required to be those ''nearest to obtain his worth if killed.''^ Under these circumstances, the raiih- man could be objected to on the score of not being of kin, when the oaths of himself and his principal were received as sufficient proof of relationship;^ and the "alltud," or foreigner, was not entitled to the raith unless he had kindred to serve on it.* How the custom sometimes worked in prac- tice among the untameable barbarians is fairly illustrated by a case recounted by Aimoin as occurring under Chilperic.I. * L. Longobard. Lib. ii. Tit. xxi. | 9; Tit. Iv. \ 12. — L. Burgund. Tit. vii. — Laws of Elhelred, Tit. ix. ^| 23, 24. — L. Henrici I. cap. Ixxiv. \ I. Feudor. Lib. v. Tit. ii. This point affords an illustration of the divergent customs of the Latin and Teutonic races. 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. — LI. 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 throvigh the vicissitudes of the feudal and customary law (Beaumanoir, Coutumes du Beauvoisis, cap. xxxix. \ 38. — Cout. de Bre- tagne, Tit. vii. art. 161, 162). 2 Anomalous Laws, Bk. ix. chap. ii. \\; chap. v. \ 2. (Owen, II. 225, 233.) This collection of laws is posterior to the year 1430. 3 Anomalous Laws, Bk. v. chap. ii. \ 117 (Ibid. II. p. 85). 4 Ibid. I 144 (p. 95). KINSMEN AS CONJURATORS. 37 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 inno- cence; the husband not yet satisfied, accused the compurg- ators 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. ^ 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 some- what questionable reputation and secured the throne to her offspring, by ai)pearing 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.'^ 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.^ 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, ^ Aimoini Lib. iii. c. 29. * Greg. Turon. Lib. viil. c. 9. ^ Herman. Contract, ann. 8qq. 38 THEWAGEROFLAW. and a hundred and fifty other ecclesiastics.^ These were, per- haps, 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 raithmen to establish the denial; the second triad, 200, and the third, 300;'-' while, to rebut an accusation of killing with savage violence or poisoning, the enormous number of six hundred compurgators was considered necessary.^ 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, "^ 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 illus- trated by a further regulation, according to which, under the Gwentian code, in an accusation of theft, with positive evi- dence, the thief was directed to clear himself with twenty- four raithmen of his own cantrev or district, in equal number from each cymwd or sub-district.^ Under a different social organization, it is evidently im- possible 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 J Spelman. Concil. I. 335. 2 Venedotian Code, Book ill, chap, i. ^\ i-io. — Dimetian and Gwen- tian Codes, Book ii. chap, i. W 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. 3 Venedotian Code, Book III. chap, i. | 18, Anomalous Laws, Book iv. chap. iii. U 12, 13 (Ibid. I. 231, II. 23). " Ibid. I 17 (p. 231); cf. Book II. chap, viii, ^ 4 (p, 137). 5 Gwentian Code, Book ii. chap. iii. | ii. (Ibid. I. 691). KINSMEN AS CON J URATORS. 39 the conjuratorial oaths of kindred, known as neffn i kyn, were requisite, unless the accused could swear that he had no rela- tions, in which case he was allowed to produce twelve other men of proper character, lag feste men} Thus the aid of those not connected by ties of blood must often have been neces- sary, 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 possi- bility 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 bor- ders;"'* while the system of guilds in which the members ' Leg. Cimbric. Lib. II. c. 9. — Constit. Woldemari Regis W 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. \ I, Sachsische Weichbild, art. 76. 2 This has been denied by those who assume that the frithborgs of Ed- ward 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 hun- dreds or townshijjs responsible for robberies committed within their limits (Decret. Childeberti ann. 595, c. 10 — Decret. Chlotarii II. c. i). 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 Clo- tair 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 crimes 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. 40 THE WAGER OF LAW. 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.^ 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.^ Some formulas of Marculfus specify three freeholders and twelve friends of the accused.^ A Merovingian edict of 593 directs the employment of three peers of the defendant, with three others chosen for the pur- pose, probably by the court. ^ Alternative numbers, however, soon make their appearance, depending upon the manner in which the men were chosen. Thus among the Alamanni, on atrial for murder, the accused was obliged to secuie the sup- port of twenty designated men, or, if he brought such as he had selected himself, the number was increased to eighty.^ So, in a capitulary of 803, Charlemagne prescribes seven chosen conjurators, or twelve if taken at random,^ a rule which is virtually the s^me as that laid down by the Emperor Henry III. in the middle of the eleventh century.^ In ' See Mr. Pike's very interesting " History of Crime in England," Vol. I. pp. 61-2. London, 1873. 2 First text of Pardessus, Tit. xlii. g 5. 3 Marculf. App. xxxii. ; xxix, 4 Pact, pro Tenore Pacis cap. vi. 2 L. Alaman. Tit. Ixxvi. So in 922 the Council of Coblentz directed that accusations of sacrilege could be rebutted with " XXIV totis nominatis atque electis viris . . . aut aliis non nominatis tamen ingenuis LXXII." (Hartzheim Concil. German. 11, 600.) 6 Capit. Car. Mag. iv. ann, 803, cap. x. 7 Goldast. Constit. Imp. I. 231. NUMBERS REQUIRED. 41 Bigorre the law thus discrhninated against the cagots — a 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.^ 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.^ 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 character, 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.^ So in the burgher laws of David I., ordinary cases between citizens were settled with ten con- jurators, 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.* 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 7'aith-men were required, while similar numbers were enjoined in some civil suits respecting real property.^ From this the number diminishes in propor- tion to the gravity of the case, as is well illustrated by the provisions for denying the infliction of a bruise. If the mark ' Lagreze, Hist, du Droit dans les Pyrenees, p. 47, Paris, 1867. 2 Pike, op. cit. I. 451. 3 Quoniam Attachiamenta cap. xxiv, W 1,4; cap. Ixxv. |^ I, 4. In another code of nearly the same period, 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. * Leg. Burgorum cap. xxiv. ?| i, 3. = Anomalous Laws, Book xiii. chap. ii. | 94 (Owen IL 521)., 4^ 42 THE WAGER OF LAW. remained until the ninth day, the accused could deny it with "two persons of the same privilege as himself;" if it re- mained until the eighteenth day, the oaths of three conjura- tors were necessary; if till the twenty-seventh day, four raith-men were required.^ The character of the raith?nen also affected the number demanded. Thus, in a collection of Welsh laws of the fifteenth century there is an explanation of the apparent ano- maly that privity to theft or homicide required for its defence a vastly greater number of compurgators than the commis- sion 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^ vSo, 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} - Instances also occur in which the character of the defend- ' Gwentian Code, Bk. II. chap. vii. \ lo (Ibid. I. 701). 2 Anomalous Laws, Bk. ix. chap. ii. \ 4; chap. xx. \ 12; chap. xxi. \ 3. — Book XIV. chap, xxxviii. \ 16. — Book v. chap. ii. \ 112 (Ibid. XL 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-77ien, two-thirds of paternal, and one-third of maternal kin; M^hile in the Gwentian Code (Book II. chap. ii. \ 10) and in the Dimetian Code (Book li. 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. 3 Anomalous Laws, Book xiv. chap, xxxviii. ^16; Book ix. chap, xx, § 12, chap. xxi. \ I. NUMBERS REQUIRED. 43 ant 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 con- duct provoked a second investigation, she had to procure fourteen; w^iile, on a third trial, fifty female conjurators were requisite for her escape.^ 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 crim- inal act was concerned, confession of a portion diminished the raith for the remainder. Thus in a claim of 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 por- tion rendered him worthy of belief.^ In the A]iglo- Saxon jurisprudence, \\\q frangens jusjttrandum^ as it was called, also grew to be an exceedingly complex system in the rules by 1 Leges Wallice, Lib. ir. cap xxiii. \ 17 (Owen II. 848). It is worthy of remark that one of the few instructions for legal procedures contained in the Kor^n 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, how- ever, 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 dis- regard 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. 2 Anomalous Laws, Book xi. chap. v. \\ 40, 41 (Ibid. II. 445). 44 THEWAGEROFLAW. which the number and quality of the conjurators were regu- lated 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 com- petent to appear.^ 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 yeo- men.^ The same peculiarity is observable among the Fris- ians, 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.^ Equally various were the modes adopted for the selection of compurgators. Among the untutored barbarians, doubt- less, the custom was originally universal that the defendant procured the requisite number of members of his legal family, whose oaths were sufficient for his discharge. Even to a com- paratively late period this prevailed extensively, and its evils were 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 immu- ' Wealreaf, i. e. morUuim refere, est opus nithingi; si quis hoc negare velit, faciat hoc cum xlviii. taynis plene nobilibus. — Leg. yEthelstani, de Ordalio. 2 Sacramentum liberalis hominis, quern quidem vocant twelfJundetnan, debet stare et valere juramentum septem villanorum. (Cnuti Secular, cap. 127.) T\x& twelf/ie7ide?nan meant a thane (Twelfhindus est homo plene nobilis i. Thainus. — Leg. Henrici L Tit. Ixxvi. \ 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 cheidetnan was also called tivyhindus or tzvyhindeinan, 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. Ixiv. § 2.) 3 L. Frision. Tit. I. SELECTION OF CO M PU RG ATO P S . 45 nity 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.^ His expressions show that the ques- tion of selection at that time was undecided in France, and the alternative numbers alluded to above prove that efforts had been made to remove the difficulty without success. Other nations, however, met the question more decidedly. The original Lombard law of King Rotharis gave to the plaintiff the privilege of naming a majority of the compurg- ators, the remainder being, chosen by the defendant,^ 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.^ This same spirit is shown even so late as iri6, in a charter by which Baldwin VII. of Flanders grati- fied the citizens of Ypres by substituting among them the process of comj^urgation 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.* 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 which it probably gave rise. 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 ' Hincmari Epist. xxxiv. So also in his Capit. Synod, ann. 852, li. XXV. 2 L. Longobard. Lib. ii. Tit. Iv. ^ 5. 3 Ibid. Tit. xxi. I 9. 4 Proost, Recherches sur la Legislation des Jugements de Dieu, Erux- elles, 1868, p. 96. 46 T H E W A G E R O F L A W . oath with him.^ The selection of these virtual jurors was probably made by the gerefa, or sheriff;''^ they could be challenged for suspicion of partiality or other competent cause, and were liable to rejection unless unexceptionable in every particular.^ Very similar to this was the stockiieffn of the ancient Danish law, by which, in cases where the rela- tives 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 privi- lege enured to the plaintiff.* 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 conjura- tors ; three of these the accused could challenge for enmity, but their places were supplied by the plaintiff.^ The evan- escent code compiled for Norway and Iceland by Haco Haconsen and his son Magnus, towards the close of the thir- teenth 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 ' Nominentur ei XIV,, et adquirat XI,, et ipse sit duodecimus. — L. Cnuti c, Ixvi. 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 Ion soloit procurer en testmonage et les grandes delaies qui se fierent en les examinements, exceptions et attestations, ordeina Randulph de Glanvile celie certeine Assise ou recognitions et juries se feissent per XII jurors, les procheins vicines, et issint est cest establisse- ment appel^ assise." — Myrror of Justice, cap. ii. sect. xxv. 2 Laws of Ethelred, Tit. in. c, xiii. 3 L. Henrici I. Tit. xxxi. I 8; Tit. Ixvi. \ lo. * Constit. Woldemari Regis, W lii. Ixxii, 5 L. Scaniae Lib, vii, c. 8, — Chart. Woldemari Regis, ann, 1163, (Du- Cange s. v. Juramentum.) SELECTION OF CONJURATORS. 47 of the vicinage, of good repute, peers of the accused, and in no way connected with him by blood or other ties.^ 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, 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.^ We see here, as in the English jurisprudence, how nearly the conjuratorial process approaches to the jury-trial. Such care in the selection of those on whom duties so responsible devolved did not prevail among the more South- ern races at an earlier age. Among the Lombards slaves and women in tutelage were often employed.^ The Burgun- dians required that the wife and children, or, in their ab- sence, the father and mother of the accused should assist in making up the number of twelve,* the object being evidently to increase the responsibility of the family for the actions 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.^ That legislator, however, contented himself with forbidding those who had once been convicted of perjury from again appearing either as witnesses or conjurators;^ and the little care that was deemed necessary in their selection under the Carlovingian jurisprudence is shown by a law of Louis-le- Debonnaire ordering that landless freemen should be allowed to serve as conjurators, though ineligible as witnesses.^ A J Jarnsida, Thiofa-Balkr, cap. ix, x. 2 Leges Gulathingenses, Thiofa-Bolkr, c. xiii. (Ed. Havniae 181 7, p. 547-) 3 L. Longobard. I. xxxiii. I, 3. < L. Burgund. Tit. viii. 5 Capit. Car, Mag. I. aim, 789 c. Ixii. 5 ibid, ^ Capit. Ludov, Pii ami. 829 Tit. in. | vi. 48 THEWAGEROFLAW. truer conception of the course of justice is manifested, some centuries later, by the Bearnese legislation, which required that the seguidors or conjurators, as well as the testinionis or witnesses should be men able to pay the amount at stake, together with the fine incurred by the losing party,^ or that they should be fair and loyal men, not swayed by enmity.^ CONDITIONS OF COMPURGATION. There has been much discussion as to the conditions under M^hich resort was had to this mode of deciding litigation. Some authors assume that, in the early period, before the ferocious purity of the German character had become adul- terated with the remains of Roman civilization, it was used in all descriptions 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. ^ 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.* 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 testi- • For. de Morlaas, Rubr. xli. art. 146-7. 2 Que sien boos et loyaus, et que no sien enemicxs. — Fors de Beam, Rubr. XXX. 3 Konigswarter, Etudes Historiques, p. 167. 4 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 inten- tiones, et hsec moverunt nos praesentem corrigere legem, et ad meliorem statum revocare. — L. Longobard. Lib. 11. Tit. Iv. \ 8. CONDITIONS OF ITS USE. 49 mony ;^ and what lends additional force to the conclusion is that this direction disappears in subsequent revisions of the law, wdierein 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 ab- sence 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 of verbiage which marks our modern statutes. Thus there is a passage in the code of the Ala- manni 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.^ 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.^ 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 rachin- borgs 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 con- 1 Si quis hominem ingenue plagiaverit et probatio certa non fuit, sicut pro occiso juratoi-e 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. I 5. 2 Si quis hominem occiderit et negare voluerit, cum duodecim nominatis juret. — L. Alaman. Tit. Lxxxix. L. Alaman. Tit. XLli, 5 50 THE WAGER OF LAW. jurators, Arnkell, the Godi, decided that the plaintiff 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.^ 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.^ ' Islands Landtiamabok ii, ix (p. 83). 2 For instance, in the Raioarian law — "Nee facile ad sacramenta veni- atur, ... In his vero causis sacramenta preestentur in quibus nullam pro- bationem discussio judicantis invenerit." (L. Baioar. Tit. viii. c. 16.) In a Capitulary of Louis-le-Debonnaire — "Si hujus facti testes non habuerit cum duodecim conjuratoribus legitimis per sacramentum adfirmet." (Capit. Ludov. Pii ann. 819, | i.) In one of the Emperor Lothair — ''Si testes habere non poterit, concedimus ut cum XII. juratoribus juret." (L. Long- obard. 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 twelfth 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 wit- nesses might perhaps turn up — " Et si hocmodo purgatus fuerit, absolvetur a petitione Regis in pos'terum." (Regiam Majestatem, Lib, iv. c, 21.) So, in the laws of Nieuport, granted by Philip of Alsace, Count of Flan- ders, in 1 163. "Et si hoc scabini vel opidani non cognoverint, conquer- ens cum juramento querelam suam sequeter, et alter se excusabit juramento quinque hominum." (Leg. secundae Noviportus.) See also the Consue- tud. Tornacens. ann, 1187 | xvi (D'Achery, Spicileg. Ill, 552), The legislation of Norway and Iceland in the next century is even more posi- tive. " lis tantum concessis quae legum codices sanciunt, juramenta nenape purgatoria et accusatoria, ubi legitimi defuerint testes," (Jarnsida, Mann- helge, 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 mid- dle of the eleventh century. " Si quern ex his dominus suus accusaverit de quacunque re, licet illi juramento se cum suis coaequalibus absolvere, exceptis tribus : hoc est si in vitam domini sui, aut in cameram ejus con- CONDITIONS OF ITS USE. 5I The Welsh, however, were exceptional in this respect. The raith was the corner-stone of their system of jurispru- dence. 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 illegiti- mate child. ^ It excluded and superseded all other proce- dures. 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;'^ but where he chose to abide by the faith, the Book of Cynog formally declares that '^Evidences are not to be brought as to galajias [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 vio- lence, nor in a case where guardians should be, nor in a case where an established raith is appointed by law ; because evi- dences are not to extinguish a raith. "^ 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 wit- ness precludes a denial on the part of the defendant."^ Among other races confidence in its ability to supplement absent or deficient testimony was manifested in another silium habuisse arguitur, aut in munitiones ejus. Cseteris vero hominibus de quacunque objectione, absque advocate, cum suis cosequalibus juramento se poterit absolvere," (Goldast. Constit. Imp. I. 231.) 1 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). ^ Anomalous Laws, Book ix. chap. ii. \ 9 (Ibid. II. 227). 3 Ibid. Book viii. chap. xi. | 31 (Ibid. II. 209). * Ibid, Book ix. chap, ii, \ 6 (Ibid, II. 227}. 52 THE WAGER OF LAW. form — t\\Q jurainenfum supermortiium — 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. ^ Two centuries later, the same custom is alluded to in the Welsh laws of Iloel Dda,^ and even as late as the thirteenth century it was still in force throughout Germany.^ 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 ques- tion. This principle is fairly illustrated in a charter granted to the Venetians in the year mi by Henry V. In suits which involved only the value of a silver pound, the oath of the party was sufficient j but if the claim amounted to twelve pounds or more, then twelve chosen men were requisite to substantiate the oath of negation.* In later times, compurgation was also sometimes used as an alternative when circumstances prevented the employ- ment 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 appear- 1 Dooms of Ine, cap. liii. 2 Leg. Wallice, Lib. ii. cap. xix. | 2 (Owen II. 842). 3 Ea autem debita cle quibus non constat, super niortuum probari debent, septima manu. — Jur. Provin. Alaman. cap. vii. \ 2. (Ed. Schilter.) — Sachsische Weichbild art. 67. 4 Liinig Cod. Ital. Diplom. II. 1955. FORMULAS AND PROCEDURE. 53 ing in the arena. The burgher law of Scotland affords an example of this,^ though elsewhere such cases were usually settled by the substitution of champions. FORMULAS AND PROCEDURE. The primitive law-givers were too chary of words in their skeleton codes to embody in them the formula usually employ- ed 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 essen- tial respects, we may reasonably assume that little variation had previously occurred. The most ancient that 1 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. "^ A century later, in a compilation of the Lombard law, it appears : "That which the accused has sworn is true, so help me God."^ The form specified in Beam, at a period somewhat subsequent, is curt and decisive: ''By these saints, he tells the truth;"* 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."^ It will be observed that all these, while essen- tially distinct from the oath of a witness, are still unqualified 1 Si burgensis calumniatus praeteriit setatem pugnandi, et hoc essoniaverit in sua responsiune, non pugnabit. Sed juramento duodecim talium qualis ipse fuerit, se purgabil. — L. Burgorum cap. 24, ^^ 1,2. 2 On >one Drihten se a'S is claene and unmsene J>e N. swor, — Thorpe's Ancient Laws, I. 180-1. ^ Hoc quod appellatus juravit, verum juravit. Sic Deus, elc. — Formul. Vet. in L. Longobard. (Georgisch, 1275.) •* Per aquetz santz ver dits. — P'ors de B^arn, Ruhr. i.i. art. 165. 5 Du serment que Guillaume a jure, sauf serment a jure, ainsi m'aist Dieu et ses Sainctz. — Ancienne Cout. de Normandie, chap. Ixxxv. (Bourdot de Richebourg, IV. 54 ) 5* 54 THE WAGER OF LAW. assertions of the truth of the principal, and not mere asseve- rations of belief or protestations of confidence. The earliest departure from this positive affirmation, in secular jurispru- dence, 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.^ 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, a^nd that they know nothing truer. ^ We shall see that, before the custom fell into total disuse, the change which Haco vainly attempted, came to be gene- rally adopted, in consequence, principally, of the example set by the church. Even before this was formally promul- gated 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 iioi, we find two bishops endea- voring 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. "^ 1 Nobis adlisec Deo coram periculosiim esse vicletur, ejus, cujus interest, jusjurandum purgatorium edendo praeeunte, 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 praestet, cseteri vero ejus firment jura- mentum 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. 2 Leges Gulathingenses, Thiofa-Bolkr, c. xiii. 3 Credo Norigaudum istum Eduensem episcopum vera jurasse, sicut me Deus adjuvet. — Hugo. Flaviniac. Lib, li. FORMULAS. 55 In the form of oath, however, as well as in so many other particulars, the Welsh had a more complicated system, pecu- liar to themselves. The ordinary 7-aith-man only was re- quired 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 accord- ance with what is sworn by the criminal."^ The difference, as we have seen, in the numbers required when a portion were ?iodinen 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 admin- istering the oath. Among the Alamanni, for instance, the compurgators laid their hands upon the altar, and the prin- cipal placed his hand over the others, repeating the oath alone ;^ while among the Lombards, a law of the Emperor Lothair directs that each shall take the oath separately.^ 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 de- fendant, before the priest shall have disrobed or distributed the sacramental bread.* At an earlier period a formula of Marculfus specifies the Capella S. Martini, or cope of St. Martin,^ one of the most venerated relics of the royal chapel, ' Anomalous Laws, Book vii. chap i. \ 18 (Owen, II. 135). 2 L. Alaman. Tit. vi. 3 L. Longobard. Lib. 11. Tit. Iv. I 28. 1 Anomalous Laws, Book ix. chap. vi. ^4; chap. xvii. \ 5. — cf. Book VI. chap. i. \ 50 (OM'en. II. 235, 255, 113). 5 Marculf, Lib. i. Formul. xxxviii. 56 THE WAGER OF LAW. 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 pro- ceedings, 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 par- ticipants 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 sub- jected 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 conjura- tors were punished as perjurers.^ A similar want of confi- dence in the principle involved is shown by a reference in the Anglo-Saxon laws to the conjurators of an accused party being outsworn {ove7-cythed), when recourse was likewise had to the ordeal.''^ Among the heathen Norsemen, indeed, an offer by eitlier party to produce conjurators could always be met by the antagonist with a challenge to the duel, which at once superseded all other proceedings.^ 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 ' L. Frisioniim Tit. xiv. 2 Dooms of King Edward, cap. iii. 3 Keyser's Religion of the Northmen, Pennock's Transl. p. 246. CONFIDENCE REPOSED IN IT. 57 that, in the ninth century, Hincmar did not hesitate to re- quire 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 relat- ing 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.^ That the advantages it offered to the accused were duly appre- ciated, both by criminals and judges, is evident from the case of Manasses, Archbishop of Rheims. 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 enor- mous 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 uncompromis- ing a war with the corroding abuse of simony for his lieu- tenant to yield to any bribe, however dazzling ; the proffer was spurned, Manasses confessed his guilt by absence, and was accordingly deposed.^ Instances 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. ^ The comparative value attached to the oaths of conjura- tors 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 con- ' Quantum in conspectu hominum purgari poterat. — I von. Epist. liv. 2 Hugo Flaviniac. Lib. ii. 3 Jaffe, Regesta, p. 596. 58 THE WAGER OF LAW. sidered to outweigh those of six conjurators;^ and among the Lombards, an accusation of murder which could be met with three witnesses required twelve conjurators as a substitute.^ 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 sus- taining 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.^ 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 compurgator from the charge of false swearing, and one or two allusions have been made to the punishments inflicted on them when subsequently convicted of perjury. The code of the x\lamanni 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 per- sons from incurring the sin of perjury.* Similar evidence is derived from a regulation promulgated by King Liutprand in the Lombard Law, by which a man nominated as a con- jurator, and declining to serve, was obliged to swear that he dared not take the oath for fear of his soul.^ A case in point 1 L. Baioar. Tit. xiv. cap. i. ^ 2. 2 L. Longobard. Lib. I. Tit. ix. g 37. 3 Institutions Judiciaires, I. 308. 4 Ut propter suam nequitiam alii qui volunt Dei esse non se perjurent, nee propter culpam alienam semetipsos perdant. — L. Alaman. Tit. xlii. 5 Quod pro anima sua timendo, non proesumat sacramental is esse. — L. Longobard. Lib. ii. Tit. Iv. ^ 14. RESPONSIBILITY OF COMPURGATORS. 59 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 requi- site 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.^ The law had no hesitation in visiting such cases with the penalties reserved for perjury. By the Salic code unlucky compurgators were heavily fined. ^ Among the Frisians, they had to buy themselves off from punishment by the amount of their wer-gild — the value set upon their heads.' A slight relaxation of this severity is manifested in the Car- lovingian legislation, by which they were punished with the loss of a hand — the immemorial 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.* 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 any- thing, and decreeing that if the event proved them to be in error, they were to be punished for perjury.^ That such ' Otlilon, 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. 2 L. Salic. Tit. I. II 3, 4. 3 L. Frisionum Tit. X. 4 Capit. Pippini ann. 793 | 15. — Capit. Car. Mag. incert. anni c. x. (Martene Ampl. Collect. Yll. 7.) 5 Celest. PP. HI. ad Brugnam Episc. (Baluz. et Mansi, III. 382.) 6o THE WAGER OF LAW. 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, with- out 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. ^ All this seems in the highest degree irrational, yet in criticizing the hardships to which innocent conjurators were thus exposed, it should be borne in mind that the whole sys- tem was a solecism. In its origin, it was simply summoning the kinsmen together to bear the brunt of the court, as they were bound to bear that of battle ; and as they were liable for a portion of the fine which was the penalty of all crimes — personal punishments for freemen being unknown — they could well afford to incur the risk of paying for perjury in order to avoid the assessment to be levied upon them in case of the conviction of their relative. In subsequent periods, when this family responsibility became weakened or disused, and the progress of civilization rendered the interests of society more complex, the custom could only be retained by making the office one not to be lightly undertaken. A man who was endeavoring to defend himself from a probable charge of murder, or who desired to confirm his possession of an estate against a competitor with a fair show of title, was expected to produce guarantees that would carry convic- tion 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. * Cod. Vatican. No. 3845, Gloss, ad L. 2 Lombard, ii, 51, apud Sa- vigny, Geschichte d. Rom. Recht. B. iv. — I owe this reference to the kindness of my friend J. G. Rosengarten, Esq. DECLINE OF COMPURGATION. 6l 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 com- purgators, 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.^ So, in the year iioo, 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 Redon, 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 con- jurators wisely abandoned their intention, and Norgaud was suspended.^ The most rigid compliance with the requisi- tions of the law was exacted. Thus the statutes of Nieuport, in 1 163, provide a heavy penalty, and in addition pronounce condemnation, when a single one of the conjurators declines the oath.^ DECLINE OF COMPURGATION. In a system of which the fundamental principle was so vicious, the best efforts of legislation could prove but a slight • Capit. Car. Mag. ann. 794 ^ 7. 2 Hugo. Flaviniac. Lib. ii. ann. iioo. Norgaud, however, was rein- staled next year by quietly procuring, as we have already seen, two brother prelates to take the oath with him, in the absence of his antago- nists. 3 Et si quis de quinque juvantibus defecerit, accusatus debit tres libras, et percusso decern solidos. — Leg. Secund. Noviportus (Oudeglierst). 6 62 THE WAGER OF LAW. 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.^ In England, a more sweeping denun- ciation, 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.^ 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 assassi- nation of his brother and predecessor Sancho II. "Que nos fagays juraniento Qua! vos lo querran 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."^ The same reliance on its efficacy is shown in a little ballad by Audefroi-le-Batard, a renowned trouvere of the twelfth century — • L. Longobaid. Lib. ii. Tit. Iv. ^ 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. 2 L Henrici I. cap. Ixiv. ^ i. " Malorum autem infestacionibus et per- jurancium conspiracione, depositum estfrangens juramentum,ut magis Dei judicium ab accusatis eligatur; et unde accusatus cum una decima se pur- garet 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. 3 Romances Antiguos Espaiioles. Londres, 1825, T, I. pp. 246-7. POPULAR CONFl DENCE. 63 LA BELLE EREMBORS.t " Quand vient en. mai, que Ton dit as lous 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 stam my vows are free. If this content your doubts and fears, You shall have kisses three," Ah, dear Rinaldo! Le Roux de Lincy, Chants Historiques Frangais, I, 15. 64 T H E W A G E R O F L A W . 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, owing probably to the growth of its offshoot the jury-trial, the custom seems to have lost its importance ear- lier than elsewhere. Towards the close of the twelfth century, Glanville compiled his excellent little treatise " De legibus Angliae," the first satisfactory body of legal procedure which the history of mediaeval jurisprudence affords. Complete as this is in all the forms of prosecution and defence, the allu- sions to conjurators are so slight as to show that already they constituted an infinitesimal part of legal machinery, and that 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;^ and a party to a suit, who had made an unfor- tunate 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. ^ The custom, ' Glanville, Lib. i. cap. ix. Also, Lib. i. c. xvi.. Lib. ix. c. i.. Lib. X. c. V. 2 " In aliis enim curiis si quis aliquid dixerit unde eum poenituerit, po- tent id negare contra totam curiam tertia manu cum sacramento, id se non DECLINE OF COMPURGATION, 65 however, still continued in use. In 1194, when Richard I. undertook, after his liberation, to bring about a reconcilia- tion 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 compurga- tors that he had neither caused nor desired the arrest of the archbishop.* In the next century Bracton alludes to the employment of conjurators in cases of disputed feudal ser- vice between a lord and his vassal, wherein the utmost exact- ness was rigidly required both as to the number and fitness of the conjurators,^ and we shall see that no formal abro- gation 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."^ 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 pent torner arieres puis quil la dite." The same caution is recommended in the German procedure of the fourteenth century — " verbis procurators 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. — (Etablissements, Liv. ii. chap, xiv.) ' Roger de Hoveden, ann. 1194. 2 Tunc vadiabit defendens legem se duodecima manu. — Bracton. Lib. III. Tract, iii. cap. 37, | i. — Et si ad diem legis faciendge defuerit aliquis de XII. vel si contra prsedictos excipi possit quod non sunt idonei ad legem faciendam, eo quod villani sunt vel alias idonei minus, tunc domi- nus incidet in misericordiam. — Ibid. | 3. So also in Lib. v. Tract, v. cap. xiii. ^ 3. 3 Pike, History of Crime in England, I. 285. 6* 66 THE WAGER OF LAW. Soon after the time of Granville, the system of compurga- tion received a severe shock from its most important patron, the church. As stated above, in proceedings between eccle- siastics, it was everywhere received as the appropriate mode of deciding doubtful cases. Innocent III. himself, who did so much to abrogate the kindred absurdity of the ordeal, con- tinued to prescribe the use of compurgation in cases of mo- ment involving dignitaries of lofty station; though, sensible of the abuses to which it led, he was careful in demanding con- jurators of good character, whose intimacy with the accused would give weight to their oaths. ^ At the same time, in endeavoring to remove one of the objections to its use, he in reality destroyed one of its principal titles to respect. He decreed that compurgators should only be obliged to swear to their belief in the truth of their principal's oath,^ and thus he attacked the very foundation of. the practice, and gave a powerful impulse to the tendency of the times no longer to consider the compurgator as sharing the guilt or innocence of the accused. Such an innovation could only be regarded as withdrawing the guarantee which had immemorially ex- isted. To recognize it as a legal precept was to deprive the proceeding of its solemnity and to render it no longer a security worthy the confidence of the people or sufficient to occupy the attention of a court of justice. In the confusion arising from the long and varying contest as to the boundaries of civil and ecclesiastical jurisdiction, it is not easy to determine the exact authority which this, de- cretal 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 1 Can. vii. Extra, v. 34. 2 nil qui ad piirgandam alicujus infamiam inducuntur, ad solum tenentur juramento firmare quodveritatem credunt eum dicere qui purgatur. — Can. xiii. Extra, v. 34. 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, — Can. xv. eod. loc. ADVERSE INFLUENCES. 67 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 ex- hibit the results which were to work so profound a change in the legal maxims and principles of half of Europe.^ The criminal procedure of the barbarians had rested to a great degree on the system of negative proofs. In the absence of positive evidence of guilt, and sometimes in despite of it, the accused was bound to clear himself by compurgation or by ' The 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 persti'epent in palatio leges, sed Justiniani, non Domini" (De Consideratione, Lib. i. cap. iv.). Even more bitter were the complaints of Giraldus Cambrensis to- wards 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 attri- butes it to the exclusive attention bestowed on the jurisprudence of Justin- ian, 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, quse literaturam, urgente cupidi- tatis et ambitionis incommodo, adeo in multis jam suffocarunt, quod ma- gistrum Mainerium in auditorio scholae suae Parisius dicentem et damna sui temporis plangentem, audivi, vaticinium illud Sibillge vere nostris diebus esse completum, hoc scilicet ' Venient dies, et vse illis, quibus leges oblite- rabunt 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 Home's Myrror of Justice, cap. ii. sect. 5. 68 THE WAGER OF LAW. the ordeal. The cooler and less impassioned justice of the Roman law saw clearly the futility of such attempts, and its system was based on the indisputable maxim that it is morally impossible to prove a negative — unless indeed that negative should chance to be incompatible with some affirmative susceptible of evidence — and thus the onus of proof was thrown upon the accuser.^ The enthusiastic worshippers of the Pandects were not long in recognizing 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.^ Not long before, the Assises de Jerusalem had unequivocally declared that ''nul ne pent 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 cus- toms 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 1 Actor quod adseverat, probare se non posse profiteado, reum necessi- tate 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 nu- merationem, cujus naturali ratione probatio nulla est . . . magna sit dif- ferentia. (Const. X. C. de non numerat. I v. 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. 11. cap. Ixiii. ^ 11). 2 La cosa que non es non se puede probar nin mostrar segunt natura. — Las Siete Partidas, P. iii. Tit. xiv. 1. i. INFLUENCE OF ROMAN LAW. 69 form. Still these codes show a marked progress as relates to the kindred procedure of compurgation. The Partidas, promulgated about 1262, is of comparative unimportance as an historical document, since it was of but uncertain autho- rity, and rather records the convictions of an enlightened ruler as to what should be law than the existing institutions of a people. The absence of compurgation in Spain, more- over, was a direct legacy from the Wisigothic code, trans- mitted in regular descent through the Fuero Juzgo.^ The Assises de Jerusalem is a more precious relic of mediaeval 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 pre- sents the combined experience of the warriors of many West- ern 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. 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 vigor and 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 insti- tution. 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 Teu- ' Though absent from the general laws of Spain, yet compurgation had been introduced as an occasional custom. Thus 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, ac- cording to the grade of the offence — "iuret cum xii. uicinos bonos et ille de mays: et pergat in pace" — (El Fuero de Madrid del ano de 1202.) (Mem. de la Real. Acad, de Historia, 1852.) We shall see hereafter that it appears in the Fuero Viejo of Castile in 1356. 70 THE WAGER OF LAW. tonic, 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 ''Etablissements" of St. Louis is by no means a complete code, but it is suffi- ciently copious to render the absence of all allusion to com- purgation 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 Fon- taines, 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 13 18, I can find but two instances in which compurgation was required — one in 1279 at Noyon, and one in 1284 at Compiegne. 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 infer- ence is fair that some local custom rendered it impossible to refuse the privilege on these special occasions.^ 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 inno- vations attempted. Their authority was still circumscribed I Olim. II. 153, 237. - STRUGGLES OF FEUDALISM. 7I 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.'^ Even an occasional instance maybe found where the central power itself permitted the use of compurgation, showing how diffi- cult 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 ener- getic civil lawyers who assisted them so ably, was not in all cases adhered to. Thus, in 1283, when the bailli of Amiens w^as 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 com- purgators as to his ignorance that the criminals were eccle- siastics.^ So, in T303, a powerful noble of the court of Philippe-le-Bel was accused of a foul and treacherous mur- der, 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 him- self 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^ — a decision which off'ers the best practical commentary on the degree of faith reposed in this system of purgation. Even the Parlement of ' Actes du Parlement de Paris, T. I, p. cccvii (Paris, 1863). 2 Actes du Parlement de Paris, T. I. p. 382. Statuunt . . . se manu centesima nobilium se purgare, et ad haec benedicto juveni bis septem librarum milio pro sui rancoris satisfactione prsesentare. — Wilelmi Egmond. Chron. 72 THE WAGER OF LAW. Paris in 1353 and a rescript of Charles-le-Sage in 1357 allude to compurgation as still in use and of binding force/ It was in the provinces, however, that the system mani- fested 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 be- tween 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 preco- cious civilization of a city like Lille preserve the compurga- torial oath as a regular procedure until the middle of the fourteenth century, even though the progress of enlighten- ment 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, with some slight expression, indeed, of reserve. '-* 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 1 Is qui reus putatur tertia manu se purgabit, inter quos sint duo qui dicentur denominati. — Du Cange s. v. yiirajueiitum. 2 Et li deffendans, sour qui on a clamet se doit deffendre par lui tierche main, se chou est horn II, hommes et lui, se chou est fame II. femmes et li a tierche. ... " Tel sierment que Jehans chi jura boin sierment y jura au mien ensiant. Si m'ait Dius et cliist Saint." — Roisin, Fran- chises, etc. de la Ville de Lille, pp. 30, 35. CUSTOMS OF NORMANDY. 73 case, yet the slightest error committed by either party lost him the suit irrecoverably.* 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 53), was an unqualified assertion of the truth of that of the accused.^ Practically, however, we may assume that the custom had long grown obsolete, for the letters patent of Henry HI., 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 compurga- tion 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.^ ' Ibid. p. 51. The system was abrogated by a municipal ordinance of September, 135 1, 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 re- queroit ou quelle ne tenist fei-mement sen poch en se paulme ou ne wardast et maintenist pluiseurs autres frivoles et values chozes et manieres apparte- nans 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. 2 Anc. Coiitume de Normandie,'chap. Ixxxv. (Bourdot de Richebourg, IV. 53-4.) 3 Recherches de la France, Liv. iv. chap. iii. Concerning the date of this, see La Croix du Maine, s. v. EUienne Pasquier. 7 74 THEWAGEROFLAW. The fierce mountaineers of Beam were comparatively in- accessible 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.^ 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 prin- cipal, but a mere affirmation of belief.^ 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 inno- cence with the oath of eleven hidalgos.^ This, however, is so much in opposition to the efforts made a century earlier, by Alfonso the Wise in the Partidas, to enforce the princi- ples of the Roman jurisprudence, and is so contrary to the spirit of the Ordenamiento de Alcala, 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 Frederick II. omitting all notice of compurgation in the code prepared for his Neapolitan dominions in 123T, he did not attempt to abrogate it among his German sub- 1 Fors et Cost, de Beam, Ruhr, de Juramentz (Bourdot de Richebourg, IV. 1082). 2 Lo jurament deu seguido se fe Juran per aquetz sanctz bertat ditz exi que io crey. 3 E si gelo negare e non geloquisier probar, devel' facer salvo con once Fijosdalgo e el doceno, que non lo fi§o. — (Fuero Viejo de Castiella, Lib. I. Tit. V. I. 12.) It will be observed that this is an unqualified recognition of the system of negative proofs. GERMANY. 75 jects, for it is alluded to in a charter granted to the city of Regensburg in 1230.^ 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.^ The code in force in Northern Germany, as we have already seen, gave great facilities for rebutting accusa- tions by the single oath of the defendant, and therefore the use of conjurators is but rarely referred to in the Sachsen- Spiegel, 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.^ In the Saxon burgher law, however, the prac- tice is frequently alluded to, and it is evident 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, compur- gation 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 admissi- ble.* In the early part of the sixteenth century, Maxi- milian I. did much to diminish the use of the compurgatorial procedure,^ but that he failed to eradicate it entirely is evi- dent from a constitution issued by Charles V. in 1548, wherein its employment is enjoined in doubtful cases m 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 be- lief in the oath of their principal.^ ' Du Cange, s. v. Juramentum. 2 Jur. Provin. Alaman. cap, xxiv, ; cccix. \ 4; cccxxix. W 2, 3; cccxxxix. \ 3. (Edit. Schilteri.) 3 Jur. Provin. Saxon. Lib. I. c. 63. 1 Sachsische Weichbild, art. 71, 72, 86, 40, 88. 5 Meyer, Institutions Judiciaires, V. 221. '° Sique accusatus tanta ac tam gravi suspitione laboraret ut aliorum 76 THE WAGER OF LAW. In the Netherlands it likewise maintained its position. Damhouder, writing in 1554, after describing its employ- ment in the Courts Christian, adds that by their example it was occasionally used also in secular tribunals.* In Scotland, as late as the middle of the fourteenth cen- tury, its existence is proved by a statute which provides that if a tliief 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.^ 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 infre- quently directed, the number of conjurators being propor- tioned to the nature of the crime oV to the amount at stake, and regulations for administering the oath being given with much minuteness.^ In Denmark it was not abolished until near the middle of the seventeenth century, under Chris- tiern IV., after it had become a crying abuse through the habit of members of families, and even of whole guilds, en- tering into foj:mal engagements to support each other in this manner.* The exact date of its abrogation is a matter of uncertainty, and the stubbornness with which the people quoque purgatione necesse esset, in arbitratu stet judicis, sibi earn velit injungere, nee ne, qui nimirum eompurgatores jurabunt, se credere quod ille illive qui se per juramentum excusarunt, recte vereque juraverint. — Constit. de Pace Publica cap. xv. § i. (Goldast. Constit, Imp. I. 541.) ' Damhouder. Rerum Criminalium Praxis cap. xliv. No. 6 (Antwerp. 1601). 2 Statut. Davidis II. cap. i. ^ 6. 3 Jarnsida, Mannhelge & Thiafa-BaXkr _passim; Erfthatal cap. xxiv.; Landabrigtha-Balkr cap. xxviii. ; Kaupa-Balkr ca]). v., ix., etc. ^ See Sporon & Finsen, Dissert, de Usu Juramenti juxta Leges Danise Antiquas, Havniae 181 5-1 7, P. 1. pp. 160-1, P. II. pp. 206-8. SWEDEN POLAND. 77 clung to it is shov/n by the fact that even in 1683, Chris- tiern V., in promulgating a new code, found it necessary to formally prohibit accused persons from being forced to pro- vide conjurators.^ In Sweden, its existence was similarly prolonged. Directions for its use are contained in The code which was in force until the seventeenth century f it is con- stantly alluded to in the laws of Gustavus Adolphus;^ and an edict of Charles XL in 1662 reproves the readiness with which men were everywhere prompt to serve as compurga- tors, 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.* By this time, therefore, though not yet witnesses, they were becoming assimilated to them. The vitality of communal societies among the Slavs natu- rally led to the maintenance of a custom which drew its origin from the solidarity of families, atid 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. ^ 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, ^hen aceused 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 ' Christiani V. Jur. Danic. Lib. I. c. xiv. ^ 8, 2 Poteritque se tunc purgare cui crimen impomtur juramento XVIII. virorum. — Raguald. Ingermund. Leg. Suecorum Lib. I. c. xvi. 2 Legg. Civil. Gustavi Adolphi, Tit. x. * Caroli XI. Judicum Regulse, cap. xxxii. 5 Ludewig. Reliq. MSS. T. VII. p. 401. 78 THE WAGER OF LAW. which a persistent offender was abandoned to the full se- verity 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.^ 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. ^ The constitutional reverence of the Englishman for estab- lished 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. 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.^ 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- ' Herb, de Fulstin Statut. Reg. Poloniae. Samoscii, 1597, pp. 186-88, 465- 2 Bassani de Sacchi Jura Regni Croatias, Dalmatise et Sclavonic. Za- grabiae, 1862, Pt. I. p. 182. 3 Et sic major praesumplio vincit minorem. Si autem querens proba- tionem habuerit, sicut instrumenta et chartas sigillatas, contra hujusmodi probationes non erit defensio per legem. Sed si in instrumento contra- dicatur, fides instrumenti probabitur per patriam et per testes. Bracton. Lib. IV. Tract, vi. cap. 18, ^ 6. ENGLAND. 79 five years later, uses the term in the sense of witnesses, and in actions of debt directs the defence to be made with con- jurators double in number the plaintiff's witnesses,^ 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 suffi- cient number of conjurators, in spite of any papers put for- ward in evidence by the creditor, who is curtly told to find his remedy in some other way.^ The unquestionable advan- tages 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 in the year 1596 the statute 38 Eliz. 3, 5, shows that it was still in common use in actions for debt.^ Style's "Practical Register," pub- lished 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,"* • Fleta, Lib. ii. c. Ixiii. ^ 10. 2 38 Edw. III. St. I. cap. V. (Statutes at Large I. 319. Ed. 1769.) 3 Jacob's Review of the Statutes, 2d Ed., London, 1715, p. 532. 4 Ibid. So THE WAGER OF LAW. 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 sim- ple 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 pro- cess with all its forms as still existing, and in 1799 a case occurred in which a defendant successfully eluded the pay- ment of a claim by producing compurgators who "each held up his right hai^d, 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 farce, but law was law, and reason was forced to submit. 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.^ 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. 13.2 It is quite possible that, strictly speaking, the wager of law may still preserve a legal existence in this country. In 1 71 2 an act of the Colony of South Carolina, enumerating • 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 evi- dence of "that jealous affection and filial reverence which have converted our code into a species of museum of antiques and legal curiosities." '^ Wharton's Law Lexicon, 2d ed., p. 758. ITS USE BY THE CHURCH. 8l 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.^ 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.^ While the common sense of mankind was gradually elimi- nating 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 proba- ble 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.^ 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.* 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 eighteen years spread terror and desolation throughout Germany, that when the ' Cooper's Statutes at Large of South Carolina, Columbia, 1837, II. 403. 2 Kilty's Report on English Statutes, Annapolis, 181 1, p. 140. 3 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 Hsereticos. (Mar- tene, Thesaur. T. V. p. 1801.) 4 Cone. Lateran. IV. can. iii. — Decret. Gregor. P. P. IX. (Harduin. VII, S2 THE WAGER OF LAW. 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, and he had committed the indiscretion of attacking men of station. While King Henry VII. was holding the Diet of Mainz, in 1233, Conrad ventured to condemn to the flames the Count of Seyne, who was in at- tendance upon the court. The nobles and the king at once were aroused in his defence, and Conrad's proceedings were solemnly pronounced illegal. On his quitting Mainz, in disgust, he was assassinated on the road, and the next year, at the Diet of Frankfort, the Count of Seyne, with another accused noble, the Count of Solms, 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.^ Germany at last breathed free, and rejoiced at the overthrow of her oppressor. The practice of compurgation thus introduced at the foun- dation of the Inquisition was maintained to the last by that terrible tribunal. ''Our holy mother church," says Siman- cas. 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 theniselves; 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 1 Trithem. Chron. Hirsaug. ami. 1233,— Hartzheim Cone. Germ. III. 542-50. PRESCRIBED BY THE INQUISITION. 8^ condemnation, but under the papal law he was instantly punishable.^ Canonical purgation, according to the rules of the Inquisi- tion, was indicated when public report rendered a man sus- pected, 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 defi- ciency of one, two, or more would amount to a condemna- tion. 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 ortliodox 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 sepa- rately 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, ' Jacob. Simancse de Cathol. Instit. Tit, Ivi. No. 3,4 (Romse, 1575). 84 THEWAGEROFLAW. both civil and canon, accordingly was that it was blind, deceitful, and perilous.^ In fact, it is easy to conceive of the difficulty of finding six or ten, or twelve men willing to risk their lives and families by standing up in support of any one who had fallen into the grasp of the Holy Office. The terrible apprehension which the Inquisition spread abroad among all classes, and the dread which every man felt of being suspected and seized as an accomplice of heresy, are unconsciously intimated by Simancas when, arguing against this mode of trial, he observes that ''the morals of mankind are so corrupt at the present day, and Christian charity has grown so cold, that it is almost impossible to find any one willing to join in clearing his neighbor, or who does not easily believe the worst of him and construe all doubtful things against him. When it is enough for the condemnation of the accused that the compurgators shall declare that they are ignorant or doubtful as to his innocence, w^ho is there that will not express doubt when they know that he would not have been condemned to purge himself if he had not been violently suspected?" For these reasons he says that those of Moorish or Jewish stock should never be subjected to it, for it is almost impossible not to think ill of them, and, therefore, to send them to purgation is simply to send them to the stake. ^ For all this, there was a lively discussion in the time of Simancas, whether if the accused succeeded in thus clearing himself, it was sufficient for acquittal. Many Inquisitors indeed held to the older practice that the accused should first be tortured, when if no confession could be forced from him he was put on his purgation ; if he passed safely through this, he was then made to abjure the errors of which he had not been convicted, and after all this he was punished 1 Simancae, loc. cit. No. 31. — Villadiego, Fuero Juzgo, p. 318 b. (Madrid, 1600.) — Both of these authorities stigmatize it as " fragilis et periculosa, caeca et fallax." 2 Simancse, loc. cit. No. 12. IN ECCLESIASTICAL COURTS. 85 at the discretion of the judge. ^ Such an accumulation of injustice seems incredible, and yet Simancas feels himself obliged to enter into an elaborate discussion to prove its impropriety. In countries where the Inquisition, had not infected society and destroyed all feeling of sympathy between man and man this process of purgation was not impossible. Thus, in 1527, during one of the early persecutions of the reformers under Henry VIII., while numbers were convicted, two women, Margaret Cowbridge and Margery Bowgas, were allowed to clear themselves by compurgators, though there were several positive witnesses against them. It is also note- worthy that in these cases a portion of the compurgators were women. '^ In the regular ecclesiastical courts the practice was main- tained. 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 it decreed absolute 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.^ Nearly two centuries later Lancelotti speaks of compurgation as the only mode of defence then iii use in doubtful cases, where the evidence was insufficient.* This applied not only to cases between churchmen but also to secular matters subject to ecclesiastical jurisdiction. Gril- landus, writing about 1530, speaks of six conjurators of the ' Simancas, loc. cit. No. 17. 2 Strype's Ecclesiastical Memorials, I. 87. 3 Reformator. Constant. Decretal. Lib. v. Tit. ii. cap. I, 3. (Von der Hardt, Tom. I. P. xii. pp. 739, 742.) * Institut. Jur. Canon. Lib. iv. Tit. ii. | 2. 86 THE WAGER OF LAW. 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 accord- ance with the rules laid down in the canon law for such cases/ And among certain orders of monks within the last century, questions arising between themselves were settled by this mode of trial. ^ 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 pre- sumptions 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.^ 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 ' P. Grillandi Tract, de Sortileg. Qu. 6, No. 14; Qu. 3, No. 36.— Decret. ii. caus. xxx. q. I, can. 2, — Extra, Lib. iv. Tit. xv. can. 7. 2 Du Cange, loc. cit. 3 Burnet, Reformation, Vol. II. p. 199 (Ed. 1681). ACCUSATORIAL CONJURATORS. 87 is presumable that the judges weighed the probabilities on either side, and rendered a decision accordingly.^ 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 com- petent witness.^ These directions are so precise that there can be no doubt that the custom prevailed to a limited extent among certain tribes, as a natural expression of the solidarity of each house or family as distinguished from the rest of the sept. That it was, perhaps, more generally employed than the scanty references to it in the codes would indicate may be inferred from one of the ecclesiastical forge- ries which Charlemagne was induced to adopt and prornul- gate. According to this, no accusation against a bishop could be successful unless supported by seventy-two wit- nesses, 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.^ 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 manufacture 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. ' Tit. LXXiv. of Herold's text; Cap. Extravagant. No. xviii. of Par- dessus. 2 L. Baioar. Tit. xvi. cap, i. ^ 2. 3 Capit. Car. Mag. vi. ann. 806, c. xxiii. (Concil. Roman. Silvestri PP. I.) 8S THEWAGEROFLAW. This custom was preserved in England, where the Anglo- Saxon laws required, except in trivial cases, a "fore-oath" from the accuser {forath, ante-juramentwn, pr(EJuramentii-r7i) , 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 inten- tion on the part of the accuser.^ Indications of the same procedure are to be found in the collection known as the laws of Henry I.'-^ 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 subtle- ties of legal procedure. Even as the defendant was expected to produce vouchers of his truthfulness, so might the plamtiff 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, yet it is somewhat singular that, as the compurgatorial oath declined, the prac- tice of sustaining the plaintiff's case with conjurators seems to have become more common. In Beam 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."'' A ' E h apelur juna swi^ lui par VII. humes numez, sei siste main, que pur haur nel fait ne pur auter chose, si pur sun dreit nun purchacer. — LI. Guillel. I. cap. xiv. 2 Omnis tihlatractetur ante-juramento piano vel observato. — LI. Henrici I. Tit. Ixiv. \ I. Ante-juramentum a compellante habeatur, et alter se sexto decime sue purgetur; sicut accusator precesserit. — Ibid. Tit. Ixvi. 3 Yox de Moilaas, Rubr. xxxviii. art. 63. ACCUSATORIAL CONJURATORS. 89 similar rule obtained in England in all actions arising from contracts and sales ;^ 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.^ Throughout Germany, in the thir- teenth 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.^ So thoroughly, indeed, was this estab- lished 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 defend- ant was obliged to undergo the ceremony.* In Sweden it was likewise in use under the name oi jeffniteedf" 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 1 Bracton. Lib. iv. Tract, vi. cap. 18, § 6. 2 Statuta Susatensia, No. 10. (Hseberlin, Analecta Medii ^vi, 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). 8 Jur. Provin. Alaman. cap. cccix. \ 4. (Ed. Schilter.) — Jur. Provin, Saxon. Lib. iii. art. %%. — Sachsische Weichb. art. 115. * Jur. Provin. Alaman. cap. cccxcviii. W 19, 20. 5 Du Cange sub voce. 8* 90 THEWAGEROFLAW. much to the church.^ In Norway and Iceland, m certain cases of imputed crime^ the accuser was bound to produce ten companions, of whom eight appeared simply as sup- porters, 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 asseve- ration is shown by the fact that the accused only required two conjurators to clear himself.^ Perhaps the most careful valuation of the oath of a plain- tiff is to be found in the Coutumier of Bordeaux, which pro- vides 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 noto- rious 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.^ The custom of supporting an accusatorial oath by conjura- tors was maintained in some portions of Europe to a com- paratively recent period. Wachter* 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 I Legg. Scan. Provin. Lib. V. c. 57 (Ed. Thorsen, p. 140). ^ Ideq manus libro imponimus sacro, quod audivimus (crimen rumore sparsum), at nobis ignotum est verum sit nee ne. — Jarnsida, Mannhelge, cap. xxiy. 3 Rabanis, Revue Hist, de Droit, 1861, p. 511. 4 Da Boys, Droit Criminel des Peuples Modernes, H. 595. ACCUSATORIAL CONJURATORS. Qf tendered to them, with the assurance that, if they were Sua- bians, it would acquit them, they demanded time for con- sideration. 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 pro- cess 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-schoppen, or free judges, to take the accusatorial oath with him.^ The latest indication that I have met with of established legal provisions of this nature occurs in the custom of Britan- ny, 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."^ Even this last vestige disap- pears in the revision of the Coutumier made by order of Henry III. in 1580. • Freher. de Secret. Judic. cap. xvii. ^ 26. 2 Anc. Cout. de Bretagne, Tit. Viii. art. 168. 11. THE WAGER OF BATTLE When man is emerging from barbarism, the struggle between the rising power of reason and the waning supre- macy 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 im- provement 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 strug- gle, 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 wnth 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 94 THE WAGER OF BATTLE. has already taken a vast step towards acknowledging the empire of right and abandoning the personal independence which is incompatible with the relations of human society. It is by such indirect means that mere aggregations of indi- viduals, each relying on his own right hand, have been gradually led to endure regular forms of government, and, thus becoming organized nations, to cherish the abstract idea of justice as indispensable between man and man. Viewed in this light, the ancient forms of procedure lose their ludi- crous 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 worship- pers of Congo and the polished sceptics who frequented the salon of Mile, 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 7'achinborgs 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?^ Nor, with the warlike instincts of the race, is it 1 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 naive impiety: "Hoc ideo statutum est, quod causa haec nemini cognita est quam Deo, cujus est eandem juste decidere." Logical enough, if the premises be granted! Even as late as 1617, August Viescher, in an elabo- rate treatise on the judicial duel, expressed the same reliance on the divine interposition: " Dei enim hoc judicium dicitur, soli Deo causa terminanda THE DUEL AND THE B ATTL E - O RD E AL. 95 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 m.ust 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;"^ and, according to the event of the duel, is the decision as to the truthfulness of the witness and the ownership of the pro- perty. 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 An- tony challenged Octavius to decide the empery of the world with their two swords, or when Richard II. in the glow of youth, in 1384, proposed to end the war commenced between Philippe de Valois and Edward III. by a single combat be- tween himself and his antagonist Charles VI., ^ or when the committitur, Deo igitur authore singulare hoc certamen suscipiendum, ut justo judicio adjutor sit, omnisque spes ad solam summse providentiam Trinitatis referenda est." — (Vischer Tract. Juris Duellici Universi, p. 109. ) This work is a most curious anachronism. Viescher was a learned juris- consult who endeavored to revive the judicial duel in the seventeenth cen- tury by writing a treatise of 700 pages on iis 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. ' L. Baioar. Tit. xiv. c. i. § 2. 2 Pike, History of Crime in England, I. 393, 499. 96 THE WAGER OF BATTLE. ancient Hindus were in the habit of averting the carnage of battles in the same manner^ — these were simply expedients to save the unnecessary effusion of blood, or to gratify indivi- dual hate. When the raffing 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 ven- geance 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.^ The established euphuistic formula of demanding "the satis- faction 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 Bouil- lon to the first crusade. When some German forces joined the army, a Tyrolese noble, seeing Van Arckel's arms dis- played 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 satisfac- ' Ayeen Akbery, II. 324. 2 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 prac- tice, while the judicial combat, as we shall see, was open to all ranks, and was enforced indiscriminalely upon all. IT IS PURELY A JUDICIAL PROCESS. 97 tion 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 obtain- ing redress for an insult, but an examination into a legal question which admitted of no other solution according to the manners of the age.^ When, after the Sicilian Vespers, the wily Charles of Anjou was sorely pressed by his victori- ous rival Pedro I. of Aragon, and desired to gain time in order to repress a threatened insurrection among his penin- sular 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 the champ-clos. Both parties swore upon the Gospels to decide the accusation by combat, a hundred on each side, in the neutral territory of Bordeaux, which was then under the English crown; and Charles, having obtained the necessary suspension of arms, easily found means to prevent the hostile meeting. ^ Though prac- tically this challenge may differ little from that of Antony — its prize in reality being the crown of the Two Sicilies — still its form and purport were those of the judicial duel, the accused offering to disprove the charge of mala fides on the body of his accuser. So, when Francis I., in idle bravado, • Chron. Domin. de Arkel (Matth^ei Analect. VIII. 296). 2 Ramon Muntaner, cap. Ixxi. — Nothing more picturesquely romantic is to be found in the annals of chivalry than Muntaner's account of Don Pedro's ride to Bordeaux and his appearance in the lists, where the senes- chal was unable to guarantee him a fair field. 9 98 THEWAGEROFBATTLE. flung down the gauntlet to Charles V., it was not to save half of Europe from fire and sword, but simply to absolve him- self from the well-grounded charge of perjury brought against him by the Emperor for his non-observance of the treaty of Madrid. This again, therefore, wore the form of the judicial combat, whatever might be the motiyes of per- sonal hate and craving of notoriety which influenced the last imitator of the follies of chivalry.-^ The celebrated duel, fought in 1547, between Jarnac and La Chastaigneraye, so piteously deplored by honest old Brantome, shows the dis- tinction 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 unex- pectedly in the death of La Chastaigneraye, who was a favor- ite of the king, the monarch was induced to put an end to all legalized combats, though the illegal practice of the pri- vate 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 contra- vention 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 en- deavor 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 pro- cess, and shall, therefore, leave untouched the vast harvest J Du Bellay, Memoires, Liv. III. ANTIQUITY OF THE JUDICIAL DUEL. 99 of curious anecdote afforded by the monomachial propensi- ties of modern times. ORIGIN OF THE JUDICIAL DUEL. The mediaeval 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, imable to settle their conflicting claims in any other mode, agreed to leave the decision to the chances of single combat; but we will not enter into speculations so recondite. It is enough for us to know that all the tribes who settled in Europe practised it 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 Aryans who remained in Asia.^ 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 descrip- tion 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.^ 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. ' An outlying fragment of the same belief is to be seen in the, ancient Japanese practice of deciding knotty questions by the judicial duel. See Griffis's Mikado's Empire, New York, 1876, p. 92. s Iliad. III. 276-32,3. lOO THE WAGER OF BATTLE. Although Caesar 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.^ Among the Irish Celts, at their ap- pearance in history, we find the judicial duel established with fixed regulations. In the Senchus Mor, a code claim- ing 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 de- layed.' *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, Ms my name.' 'Let the combat be delayed,' said Sencha, 'in the name of this woman for five days.' '"* The combative ardor of the Feini, indeed, was so strong, and the appeal to the wager of battle so gene- ral, 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 1 Liv. xxvii. 21. 2 Senchus Mor, I. 251. ANTIQUITY OF THE JUDICIAL DUEL. lOI obligations which they had incurred by giving security for heathens.^ 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 collec- tion 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 con- sidered them unjust, abrogated them, and substituted the proof by men, or raith? 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 Norrsena 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 employ- ment of the duel to settle all controversies, preferring that his warriors should accustom themselves to rely, not on elo- quence, but on courage and skill f 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 JSorsemen, indeed, the holm-gang, or single combat, was so universal an arbitrator that it was recognized as con- • Synod. S. Patricii ann. 456, c, 8. 2 Anomalous Laws, Book xiv. chap. xiii. \ 4. (Owen II. 623.) 2 Saxon. Grammat. Hist. Dan. Lib. v. T02 THK WAGER OF BATTLE. ferring 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 in- stance, 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 hospi- tably received by a compatriot named Havard, with whom he passed the winter. In the spring he declared his purpose of challenging Saemund Sudureyska for a sufficient holding, but Havard dissuaded him, arguing that this mode of ac- quiring 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 Ice- land and passed the winter with his brother Ketelbiorn, the latter offered him land on which to settle, but Hallkell dis- dained 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 varia- tion of the custom is illustrated by the case of HroUeif, who after some years' settlement grew dissatisfied with his hold- ing, and challenged his neighbor Eyvind to an exchange of properties or a combat, alternatives of which the peace-loving Eyvind accepted the former.^ The Saga of Egil ^kallagrims- son 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 ' Islands Landnamabok, ill. vii.; v. xii. xiii. See also ii. vi. and xiii. AUTOCHTHONIC AMONG THE BARBARIANS. I03 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 sacri- ficing an ox as soon as he left the spot.^ It is true that Tacitus makes no allusion to such a custom among the Germans of his time, a passage which is fre- quently quoted to that effect being in reality only a descrip- tion 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.^ The object of Taci- tus, however, was not to excite the curiosity of his country- men, 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 posi- tive proofs which exist with regard to kindred tribes. Be this as it may, as soon as we obtain an insight into their cus- toms from written laws, we find the wager of battle every- where 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.^ 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 1 Keyser's Religion of the Northmen, Pennock's Translation, p, 245-7. 2 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. 3 Si tamen non potuerit adprobare . . . . et postea, si ausus fuerit, pug- net. — Leyden MS. — Capit, Extravagant. No. xxviii. of Pardessus. I04 THE WAGER OF BATTLE. early history to show that it was by no means uncommon ;^ ...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 success- ively by Childebert and Clotair II., and put into final shape by Dagobert I. about the year 630 — in their frequent refer- ence to the '* campus," show how thoroughly it pervaded the entire system of Germanic jurisprudence. The Lom- bards 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 reference to it, and their readiness to refer to its decision the most conspicuous cases is shown in the story of Queen Gunde- berga, the wife of Ariovaldus, who was the immediate pre- decessor 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 em- bassy 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.^ In- deed, the tenacious hold which it maintained on the venera- tion of the Lombards is shown by the fruitless efforts of Rotharis and his successors to restrict its employment and to abrogate it. Thus he forbids its use in some cases of im- portance, substituting conjurators, with an marked expression ^ Gregor. Turon. Hist. Franc. Lib. vii. c. xiv. ; Lib. x. c. x. — Aimoini Lib. IV. c. ii. ^ Aimoini Lib. iv. cap. x. ANCIENT BRITAIN. I05 of disbelief, which shows how little confidence was felt in its results by enlightened men.^ 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.^ In the succeeding century. King Liutprand sought to abolish it entirely, but finding the pre- judices 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. ^ While the laws of the Angles, the Saxons, and the Fris- ians bear ample testimony to the general use of the wager of battle,* 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 re- gions, 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 expla- nation of the anomaly, and can only state the bare fact that 1 Quia absurdum et impossible videUir esse ut tarn grandis causa sub uno scutu per pugnam dirimatur. — L. Longobard. Lib. ii. Tit. Iv. §^ 1,2, 3. 2 L. Longobard, Lib. ii. Tit. xxxv. ^§ 4, 5. 3 Gravis causa nobis esse comparuit, ut sub uno scuto, per unam pug- nam, omnem suam substantiam homo amittat Quia incerti sumus de judicio Dei; et multos audivimus per pugnam sine jusiitia causam suam perdere. Sed propter consuetudinem gentis nostrse 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 "im- piam," as given in the printed texts, w^hich would somewhat weaken the force of Liutprand's condemnation. * L. Anglinr. et Werinor. Tit. I. cap. 3; Tit. XV.— L. Saxon. Tit. XV. — L. Frision. Tit. v. c. i. ; Tit. xi. c. 3. Io6 THE WAGER OF BATTLE. the judicial combat is not referred to in any of the Anglo- Saxon or Anglo-Danish codes. ^ There seems, indeed, to be no reason to doubt that its introduction into English jurisprudence dates only from the time of William the Con- queror.'^ 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 endea- vored to suppress the custom among those of his subjects who had remained in Pannonia.^ That no trace of it is to 1 In Home's Myrror of Justice (cap. II, sect. 13), a work which is sup- posed to date from the reign of Edward II., there is a form of appeal of treachery " qui fuit trove 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 ex- haustive researches into the original sources of English jurisprudence ren- der 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. 2 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 sub- jects. — (L. Guillelmi Conquest, ii, ^| I, 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, in. ^12. Thorpe, I. 493.) Such immunity seems a singular privilege for the generous Norman blood. ' Cassiodor. Variar. Lib. in. Epist. xxiii., xxiv. THE GOTHS. I07 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 en- lightened conqueror endeavored to fuse the invaders and the vanquished into one body politic.^ With regard to the Wisigoths, we must remember that early conversion to Chris- tianity 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 im- perial institutions exercised a much greater effect upon them than on the subsequent bands of Northern barbarians. Ac- cordingly, we find their codes based almost entirely upon the Roman jurisprudence, with such modifications as vyere 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 ap- pear to have been unknown until a period long subsequent J 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 shuws his thorough appreciation of the superiority of the Imperial codes over the customs of the barbarians, and his anxiety for settled prin- ciples of jurisprudence (Cassiodor. Variar. Lib, ill. Epist. xvii). Io8 THE WAGER OF BATTLE. to the conquest of Aquitaine by Clovis, and but little ante- rior 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-De- bonnaire, between Counts Bera and Sanila, who were both Goths, we find the *'pugna duorum" claimed as an ancient privilege of the r^ce, with the distinction of its being eques- trian, 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.^ Nor was the wager of battle confined to races of Celtic or Teutonic origin. The Slavic tribes, as they successively emerge into the light of history, show the same tendency to refer doubtful points of civil and criminal law to the arbi- trament of the sword. The earliest records of Bohemia, Poland, Servia, Silesia, Moravia, Pomerania, Lithuania, and Russia present evidences of the prevalence of the system.^ EXTENSION OF THE CUSTOM. The wager of battle thus formed part of the ancestral in- stitutions of all the races who founded the nations of Europe. With their conversion to Christianity the appeal was trans- ferred from the heathen gods to Jehovah, Christ, and the saints, and popular confidence in the arbitrament of the sword was rather strengthened than diminished. Enlight- ened law-givers not only shared, to a greater or less ex- tent, in this confidence, but were also disposed to regard the duel with favor as the most practical remedy for the ' Ermold. Nigell. de Reb. Gest. Ludov. Pii Lib, iii. — Astron, Vit. Ludov. Pii cap. xxxiii. — Marca Hispanica, Lib. ill. c. 21. 2 Konigswartcr, op. cit, p. 224. CAUSES OF ITS EXTENSION. I09 crime of false swearing which was everywhere prevalent. Thus Gundobald assumes that its introduction into the Bur- gundian code arose from this cause ;^ Charlemagne urged its use as greatly preferable to the shameless oaths which were taken with so much facility;^ while Otho II., in 983, ordered its employment in various forms of procedure for the same reason,^ 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, which entailed upon them the liability of supporting their asseverations by under- going 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 bat- tle used indiscriminately, both as a defence against accusa- tions 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 ' 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. Ixxx. | 2. The position of a witness in those unceremonious days was indeed an unenvia- ble one. 2 Capit. Car. Mag. ex Lege Longobard. c. xxxiv. (Baluze). 3 L. Longobard. Lib. II. Tit. iv. § 34. 10 no THEWAGEROFBATTLE. 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.^ This variation is probably rather apparent than real, and if in any of these bodies of laws there were originally substan- tial 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 bellige- rent 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.^ 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 88S, 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.^ 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 common- wealths was slowly developing itself. ' Lib, adversus Legem Gundobadi cap. x. 2 L. Frision. Tit. xiv. ^ 4. 3 Goldast. Antiq. Alaman. chart, Ixxxv. CHALLENGING WITNESSES. HI 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 cliallenging 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 au- thority 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 wit- ness;' and in 819 a capitulary of Louis-le-Debonnaire 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.'' It is easy therefore to understand the custom, prescribed in some of the codes, by which wit- nesses were required to come into court armed, and to have their weapons blessed on the altar before giving their testi- mony. 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.^ Nor was this merely a temporary extravagance. Late in the thirteenth century, after enlightened legislators had been strenuously and not unsuccessfully endeavoring to limit the abuse of the judicial combat, the challenging of witnesses was still the favorite mode of escaping legal condemnation.* Even in the fourteenth century, the municipal law of Rheims, which allowed the duel between principals only in criminal ' L. Baioar. Tit. xvi. cap. i. g 2. 2 Capit. Ludov. Pii ann. 819, cap. xv. 3 L. Baioar. Tit. xvi. c. 5. 4 Beaumanoir, Coutumes du Beauvoisis, chap. Ixi. ^ 58. 112 THE WAGER OF BATTLE. cases, permitted witnesses to be indiscriminately challenged and forced to fight, affording them the privilege of employ- ing champions only on the ground of physical infirmity or advanced age.^ A still more bizarre extension of the prac- tice, 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 vvitnesses. Thus in many classes of crimes, such as theft, forgery, coining, &c., the accused could summon a *^ warrantor" from whom he professed to have received the articles which formed the basis of the accusation. The war- rantor 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.^ 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 ad- mitted.^ 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 com- pelled 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;* and when in the twelfth 1 Lib. Pract. de Consuetud. Reniens. §.§ 14, 40 (Archives L^gislat. de Reims, Pt. i. pp. 37, 40). 2 Bracton de Legibus Angl. Lib. iii. Tract, ii. cap. xxxvii. ^ 5. — Fleta, Lib. I. cap. xxii. 3 Beaumanoir, chap. vi. ^ 16. 4 Ibid. chap, xxxix. ^<^ 30,31,66. — Assises de Jerusalem cap. 169. — A somewhat similar pi-inciple is in force in the modern jurisprudence of China. Women, persons over eighty or under ten years of age, and crip- CHALLENGING WITNES SES. II3 century special privileges were granted by the kings of France empowering serfs to bear testimony in court, the dis- ability 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.^ The result of this system was that, in causes subject to such appeals, no witness could be forced to testify, by the French law of the thirteenth century, unless his principal entered into bonds to see him harmless in case of challenge, to provide a champion, and to make good all damages in case of defeat;^ though it is difficult to understand how tiiis could be satisfactorily arranged, since the penalties inflicted on a vanquished witness were severe, being, in civil causes, the loss of a hand and a fine at the pleasure of the suzerain, while in criminal actions ''il perderoit le cors avecques."^ The only limit to this abuse was that witnesses were not liable to challenge in cases concerning matters of less value than five sous and one denier.* 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 em- ployment just described, another mode of appealing to the sword in all cases was invented by which it became compe- ples 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, there- fore, 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. ' The earliest of these charters is a grant from Louis le-Gros in 1 109 to the serfs of the church of Paris, confirmed by Pope Pascal II. in 11 13. (Baluz. et Mansi III. 12, 62.) D'Achery (Spicileg. III. 481) gives another from the same monarch in 1 128 to the church of Chartres. 2 Beaumanoir, chap. Ixi. ^ 59. 3 Ibid. chap. Ixi, ^57. 4 ibid. chap. xl. § 21. 10* 114 THE WAGER OF BATTLE. tent 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 ecclesias- tics, 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. ^ Towards the end of the twelfth century in England, we find Glanville acknowledging his uncertainty as to whether the court could depute the settlement of such an appeal to a champion, or whether the judge delivering the verdict was bound to defend it personally; and also as to what, in case of defeat, was the legal position of the court thus convicted of injustice.^ 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 re- course against his judge. ^ 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 restrictions appear to be imposed as to ' Jur. Provin. Alaman. cap. Ixviii. ^ 6. 2 " Curia . . . tepetur 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. Angliae 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 mjuste judi- cabit, 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. ? Cited by Marnier in his edition of Pierre de Fontaines. CHALLENGING JUDGES. II5 the cases in \Yhich appeal by battle was permitted, except that it was not allowed to override the customary law.^ The suitor selected any one of three judges agreeing in the ver- dict; 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.^ The villein, however, was not entitled to the privilege, except by special charter.^ 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 stren- uously 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.* At the same time, the progress of more rational ideas is manifested by his admission that ' Car poi profiteroient les costumes el pni's, s'il s'en covenoit combatre; ne depecier ne les puet-om par bataille. — Edition Marnier, chap. xxii. Tit. xxxii. 2 Chap. xxn. Tit, i. vi. viii. x. xxvii xxxi. — <' Et certes en fausement ne gist ne vie ne menbre de eels qui sont fause, en quelconques point que li fausemenz soit faiz, et quele que la querele soit" (Ibid. Tit. xiv.). If the judge was accused of bribery, however, and v/as defeated, he was lia- ble 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 poena judicis (Lib. VH. Tit. xlix. 1. i) as a thing more to be desired than expected, while in Beaumanoir we already find its provisions rather ex- ceeded than otherwise. 3 De Fontaines, chap, xxii. Tit. iii. * Ibid. chap. xxiL Tit. xxiii. — Et ce fu li premiers dont je oisse onques parler qui fust rapelez en Vermendois sanz bataille. Il6 THE WAGER OF BATTLE. the combat was not necessary to reverse a judgment mani- festly 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 Beauraanoir abundant evi- dence of the success of St. Louis in setting bounds to the abuses which he was endeavoring to remove. The restric- tions 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 him- self 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."^ The king's court, however, was an exception to the gene- ral rule. No appeals could be taken from its judgments, for there was no tribunal before which they could be carried.^ The judges of the royal court were therefore safe from the necessity of vindicating their decisions in the field, and they ' Coutumes du Beauvoisis, chap. Ixi. ^§ 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 des chevaliers" is well pointed out by Beugnot (Les Olim, T. II. pp. xxx, xxxi.). Beau- manoir in many cases evidently describes the law as he would wish it to be. 2 Et pour ce ne Pen puet fausser, car Ten ne trouveroit mie qui droit en feist car li rois ne tient de nului fors de Dieu et de luy. — Etablissements, Liv. I. chap. Ixxviii. CHALLENGING JUDGES. II7 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 (pro- bably Philip Augustus) sent his whole council to sit in the court of the Abbey of Corbie, when an appeal was to be entered.^ 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 embar- rass, by enormous trouble and expense, the gratification of the impulse which disappointed suitors would have to estab- lish 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 ^^ while the Saxon code requires the extraordinary expedient of a pit( hed battle, with seven on each side in the kmg's presence/'' 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.* 1 Conseil, ch. xxii. tit. xxi. 2 Si contingat ut de justitia sententise pugnandum sit, ilia 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 Ian trover leaul ne certain consoil si bien come per lo consoil de sages de la cort loroi." — Miroir de Souabe, P. I. c. cxiii. (Ed. Matile, Neufchatel, 1843). ^^'^ ^^V hence conclude that by this period the custom of armed appeal was disused, and the extension of the royal jurisdiction was established. 3 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 au- thority. 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. * Richstich Lehnrecht, cap. xxvii. Il8 THE WAGER OF BATTLE. 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 inter- woven 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 probably treacherous bravo. This organized violence assumed for itself the sanction of a relig- ion of love and peace, and human intelligence seemed too much blunted to recognize the shocking contradiction. There was, in fact, no question which might not be sub- mitted to the arbitrament of the sword or club. If Charle- magne, in dividing his vast empire, forbade the employment of the wager of battle in settling the territorial questions which might arise between his heirs, ^ 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 jus- tice 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 Teudiniis as his champion ; Lambert was victor in the ensuing combat, and ' Carol. Mag. Chart. Divisionis ann. 806 cap. xiv. CONFIDENCE REPOSED IN IT. II9 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 pris- oner and deprived him of eyesight.* Still, the practice con- tinued 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;^ but representations of this kind were useless. About the middle of the century, Otho the Great appears, throwing the enor- mous weight of his influence in its favor. As a magnani- mous 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 her- self from a villanous accusation, to forego the safer modes of purgation, and to submit herself to the perilous decision of a combat,^ but he also caused the abstract question of repre- sentation in the succession of estates to be settled in the same manner; and to this day in Germany the division of a patri- mony 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.* 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 XH. which preceded the subjugation of the 1 Liutprandi Antapodos. Lib, iii. cap. 46. 2 De Pressuris Eccles. Pt. ii. This was written about 945. 3 Dilhmari Chron. Lib, li, ann, 950, 4 Widukind, Rer. Saxon, Lib. ii. cap, x. — The honest chronicler con- siders that it would have been disgraceful 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. I20 THE WAGER OF BATTLE. 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 pro- position promptly declined by the pontiff, skilled though he was in the use of weapons.^ 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.^ A more formal assertion of the diplomatic value of the duel was made when in 11 77 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.^ Nor were these solitary instances of the reference of the mightiest state questions to the chances of the single com- bat. 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.* 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 jus- tice of his complaints in single combat with the aggres- ' Liutprandi Hist. Otton. cap. vii. 2 Liutprandi Legat. cap. vi. Benedict. Abbat. Gesla Henrici II. p. 139 (M. R. Series). Lambert. Hersfeld. ann. 1056. THE DUEL IN QUESTIONS OF STATE. 121 sor.^ When the battle ordeal was thus thoroughly incor- porated 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 antago- nist Witikind, religion and empire being both staked on the issue as the 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. ^ 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 aggres- sors, offered to prove by the duel that the Pagan Luitzes were in fault, trusting that their Christianity would over- balance the injustice of their cause. The defeat of their champion by his heathen adversary was, however, a memo- rable example of the impartial justice of God, and was received as a strong confirmation of the value of the battle trial. 3 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 introduc- tion of the duel.* In the preceding essay, allusion has been made to his substitution of the judicial combat for the sacra- mental 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 1 Conquest. Ludov. in Synod. Ingilheim. ann. 948. 2 s. Mathild. Regin. Vit. c. i. 3 Wipponis vit. Chunradi Salici. ■* " Nos belli dono ditat rex maximus Otto." 122 THE WAGER OF BATTLE. Verona, where all the nobles of Italy, secular and ecclesi- astical, were assembled, he caused the adoption of a law which forced the Italians in this respect to follow the cus- toms of their conquerors.^ 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.^ 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 confisca- tion against any one who should refuse to undergo the chances of the combat.^ Under such auspices, and stimulated by the rising spirit of chivalry, it is no wonder that the judicial duel acquired fresh importance, and was more extensively practised than ever. From the wording of a constitution of the Emperor Henry II., it may even be assumed 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.* 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 cham- pions 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 observ- ances of religion, when the fiery and indomitable Hilde- brand endeavored to force the introduction of the Roman liturgy into Castile and Leon, in lieu of the national Gothic J L. Longobard. Lib, ii. Tit. Iv. ^ 38. 2 Ibid. I 34. 3 Si non audeat, res suae infiscentur. — Convent. Papiens. ann. 971. * Qui vero infra treugam, post datum osculum pacis, alium hominem interfecerit, et negare voluerit, pugnam pro se faciat. — I.. Longobard. Lib. I. Tit. ix. I 38. ITS UNIVERSAL APPLICATION. 123 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 compli- ance. In 1077, Alfonso I. procured the assent of a national council, but the people rebelled, and after repeated negotia- tions 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.^ Nearly contemporary with this was the celebrated case of Otho, Duke of Bavaria, perhaps the most noteworthy exam- ple of a judicial appeal to the sword. A worthless adven- turer, named Egeno, accused the proud and powerful 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. Accord- ing 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 ju- dicial 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 ^ Ferreras, Hist. Gen. d'Espagne, Trad. d'Hermilly, III. 245. 124 THE WAGER OF BATTLE. 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.^ 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 ti8o to break the over- grown power of Henry the Lion. That puissant Duke of Saxony and Bavaria had long divided the power of the em- pire, 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 Wurzburg, 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.^ No rank of life in fact procured exemption from the duel between antagonists of equal station. When in 1002, on the death of Otho HI., 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.^ Thus the champion of England, who ' Lambert. Hersfeld. ann. 1070, 1073, 1074. — Conrad. Ursperg. aim. 107 1. — Bruno de Belle Saxonico. 2 Conrad. Ursperg. ann. 1175. ' Dithmari Chron. Lib. v. ITS UNIVERSAL APPLICATION. I25 figures in the coronation pageant of Westminster Abbey, is 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 chal- lenged the right of the new monarch to his crown. ^ 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 1 156, and confirmed by Frederic II. in 1245. These privi- leges 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.^ Even more instructive is the inference deducible from the For de Morlaas, granted to his subjects by Gaston IV. of Beam about the year iioo. The privi- leges 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. To such an extent was carried the respect entertained for the judicial duel, 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 ;* and a malefactor turning king's evidence was obliged, before ' From the time of Henry I., the office of king's champion was one of honor and dignity. See Spelman's Glossary, 2 Constit. Frid. II. ann. 1245 cap, 9, (Goldast. Const, Imp. I, 303.) 3 For de Morlaas, Ruhr. xxvi. 4 Bracton, Lib. iii. Tract, ii. cap. 37 ^ 5. 126 THE WAGER OF BATTLE. receiving his pardon, to pledge himself to convict all his accomplices, if required, by the duel.^ A case which occurred about the year iioo shows the robustness of the faith with which the duel was regarded. 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 plun- dered 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 mer- chant had suffered for the violation of the oath which he had sworn to Anselm, and the reputation of the duel remained intact.^ It may readily be imagined that cases of this nature fre- quently arose, and as they often did not admit of so inge- nious an explanation of the criminal's escape, 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;^ 1 Bracton, Lib, ill. Tract, ii. cap. 33 ^ 2 ; 34 ^ 2. 2 Guibert. Noviogent. de Vita sua Lib. in. cap. xvi. — Hermann, de Mirac. S. Mariae Laudun. Lib, iii. cap. 28 — Forsitan, ut multi putarunt, pro fidei violalse reatu, qua promiserat fidem Anselmo, quod cum non detegeret 3 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 CONFIDENCE REPOSED IN IT. I27 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 1212 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.^ That the combatants themselves did not always feel im- plicit confidence in the event, or rely solely upon the right- eousness of their cause, is shown by the custom of occa- sionally bribing Heaven either to assist the right or to defend the wrong. Thus, in the eleventh century, we find the mo- nastery of St. Peter at Beze 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. ^ According to the belief of the pious. Heaven might be propitiated by less venal means, for Cse- sarius of Heisterbach relates on the authority of an eye-wit- ness 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 bat- tle, when the brother of the accused offered himself for the 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. 11, c. vi.) 1 Can. Significantibus, Extra, De Purgatione Vulgari. — " Duellum in quo aliis peccatis suis prsepedientibus, ceciderunt." 2 Isdem quoque Milo . . . monomachi certaturus pugna, attribuit sancto Petro terram quam habebat in Luco, prope atrium ecclesiae, quo sibi adjutor in dispositobello existerlt. — Chron. Besuense, Chart, de Luco. 128 THE WAGER OF BATTLE. defence — a slender and most unequal antagonist. He pre- pared himself for the strife, however, by assiduous confes- sion and prayer, and easily overcame his gigantic adversary j 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.^ Csesarius also mentions another case, in a duel decreed by Frederic Barbarossa between a knight and a gigantic champion, where the ine- quality 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.^ LIMITATIONS ON THE WAGER OF BATTLE. The right of demanding the wager of battle between prin- cipals varied much with the age and race. When Beauma- noir 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 accusa- tion was evidently a mere device to shift the guilt to the • Caesar. Heisterbach. Dial. Mirac. Dist. in. c. xviii. 2 Ibid. Dist. IX. c. xlviii. LIMITATIONS GERMANY. 12Q shoulders of another; or unless, in case of murder, the vic- tim had disculpated him, when dying, and had named the real criminals.^ 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.^ A serf could not chal- lenge 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.^ In civil actions, the battle trial was not allowed in cases relating to dower, to orphans under age,* to guardianships, or to the equity of redemption afforded by the feudal laws to kinsmen in the sale of heritable pro- perty, or where the matter at stake was of less value tha'i twelve deniers.^ St. Louis also prohibited the duel between brothers in civil cases, while permitting it in criminal accu- sations.^ Tlie slenderness of these restrictions shows whit ample opportunities were afforded to belligerent pleaders. In Germany, as a general rule, either party had a right to demand the judicial combat,^ 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.^ Relation- ship between the contestants was also an impediment, of which either might avail himself,^ and even the fact that the 1 Coutumes du Beauvoisis, chap. Ixi. § 2; chap, xliii. ^ 6, 2 Ibid. chap. Ixi. | 2; chap, xxxix. § 12. 3 Ibid. chap. Ixiii. g§ I, 2, lo. * Twenty-one years is the age mentioned by St. Lou's as that at which a man was hable to be called upon to fight. — Etablissements, Liv. I. chap. Ixxiii., cxlii. 5 Coutumes du Beauvoisis, chap. Ixiii. ^^ ii, 13, 18. The denier was the twelfth part of the solidus or sou. s Etablissements, Liv l. chap, clxvii. 7 Jur. Provin. Alaman. cap. clxvi. ^§ 13, 27; cap. clxxvii. (Ed, Schi't.) • — Jur. Prov. Saxon. Lib. I. clxviii. 8 This rule was strictly laid down as early as the time of Frederic Bar- barossa. — Feudor. Lib. 11. Tit. xxvii. ^ 3. 9 Jur. Provin. Alaman. cap. ccclxxxvi. ^ 2. (Ed. Schilteri.) — Jur. Pro- vin. Saxon. Lib. i. c. Ixiii. — Sachsische Weichbild xxxv. 6. 130 THE WAGER OF BATTLE. defendant was not a native of the territory in which the action was brought gave him the privilege of refusing the appeal.^ Still, we find the principle laid down even in the fourteenth century that cases of homicide could not be determined in any other manner. "•^ 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 chose 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.^ 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.* In the Latin kingdoms of the East, and among the Arme- nians, 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 crim- inal cases, the plaintiff or prosecutor was not obliged per- sonally 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. • Jur. Provin. Alaman. cap. ccxcii, ^ 2. — Jur. Provin. Saxon. Lib. ill. c. xxvi. xxxiii. 2 Sed scias si de perpetrato homicidio agitur, probationem sine duello non procedere. — Richslich Landrecht, cap. xlix. 3 Jur. Provin. Alaman. cap. ccclxxxvi. §^ 28, 29. (Ed. Schilteri.) — Jur. Prov. Saxon. Lib. I. art. 64. — Sachsische Weichbild art. Ixxxvii. Ixxxviii. * Hinc pervenit dispositio de duello. Quod enim homines non vident Deo nihilominus notum est optime, unde in Deo confidere possumus, eum duellum secundum jus diremtuium. — Jur. Provin. Alaman. cap. clxviii. ^ 19. (Ed. Senckenberg.) LIMITATIONS ENGLAND. I3I 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 jDarty was sufficient, and in criminal cases the accu- ser was subjected to the talio/ 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.^ On the other hand, when the appellant demanded the duel, he was obliged to make out a probable case before it was granted.^ When battle had been gaged, however, no withdrawal was permitted, and any composiiion between the parties to avoid it was punishable by fine and imprisonment* 1 Assises d'Antioche, ITaute Cour, ch. ix. xi xii; Assises des Bourgeo's, 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 Constal:)le 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. 2 Bracton. Lib. iii. Tract, ii. cap. 18. — Fleta Lib, i. cap. xxxi. ^^ 2, 3. 3 Bracton, Lib. in. Tract, ii. cap. 23 § i. 4 Si autem uterque defaltam fecerit, et testatum sit quod concordati fue- runt, 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 avoid- ing 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. 25). According to the customs of Lorris, in 1 155, 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 Frangaises, I. 155.) 132 THE WAGER OF BATTLE. — 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 con- sent alone could prevent the matter from being fought out.^ 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 tlie 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, be- cause they were held to be important weapons of offence.'' Thus the knight who demanded that his antagonist should undergo the destruction of an eye to equalize the loss of his own, extinguished in the fight of Otterbourne, was ^strictly within the privileges accorded him by law. Notwithstanding these various restrictions, cases of treason were almost always determined by the judicial duel, according to both Glanville and Bracton.^ This was in direct opposition to the custom of Lombard y, where such cases were especially exempted from decision by the sword.* In Beam, 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.^ That in such cases it was in com- mon use is shown by a treaty made, in the latter part of the eleventh century, between Centulla I. of Beam and the Vis- count of Soule, in which all doubtful questions arising be- tween 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.^ In the ' Fleta Lib. Ii. cap. xxi. ^ 2. 2 Bracton. Lib. ill. Tract, ii. cap. 24 | 4. — Hujusmodi vero dentes mul- tum adjuvant ad devincendum. 3 Glanvil. Lib. xiv. cap. i. — Bracton, Lib. iii. Tract, ii. cap. 3 'I i. 4 Feudor. Lib. 11. Tit. xxxix, 5 For de Morlaas, Rubr. xxxviii. xxxix. 6 Marca, Hist, de B^arn, p. 293. (Mazure et Ilaloulet.) MINIMUM LIMIT OF VALUE, 133 thirteenth century, however, a provision occurs which must have greatly reduced the number of duels, as it im.posed 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/ 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 ex- empt from all legal process— a provision evidently intended to relieve her from the duel in which suits were liable to terminate.'^ 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,-'' and a similar right was reserved in doubtful cases to the podesta in a code of laws enacted at Verona in 1228.* This must often have prevented the injus- tice inherent in the system, and an equally prudent reserve was exhibited in a statute of Montpellier, which required the assent of both parties.^ 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.^ From a very early period, a minimum limit of value was established, below which a pugnacious pleader was not al- lowed to put the life or limb of his adversary in jeopardy. This varied of course with the race and the period.. Thus, > For de Morlaas, Ruhr. iv. 2 De Lagreze, Hist, du Droit dans les Pyrenees, Paris, 1867, p. 68. 3 Libell. Catalan. MS. (Du Cange.) ■1 Meo arbitrio determinabo duellum, vel judicium judicabo. Lib. Juris Civil. Veronse, cap. 78 (p. 63) , 5 Statut. Montispess. ann. 1204, (Du Cange.) s Etablissements de Norma.ndie, J>assi/n (Edition Marnier). 12 134 THE WAGER OF BATTLE, among the Angli and Werini, the lowest sum for which the combat was permitted was two solidi,^ while the Baioarians established the limit at the value of a cow.^ In the tenth century, Otho II. decided that six solidi should be the smallest sum worth fighting for.^ The 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.^ In France, Louis-le-Jeune, by an edict of 1168, forbade the duel when the sum in debate was less than five sous, ^ and this remained in force for at least a century.^ 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,'' and the same provision retains its ' 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 diffei-ent periods and among the different races enumerated, would occupy too much space. In general terms, it may be remarked that the Carlovingian solidus was the twentieth part of a pound of silver, and, ac- cording to the researches of Guerard, was equivalent in purchasing power to about thirty- six francs of modern money. The marc was half a pound of silver. ^ L. Baioar, Tit. vni. cap. ii. ^ 5 ; cap. iii, 3 L. Longobard. Lib. ii. cap. Iv. | 37. 4 L. Henrici I. cap. 59. 5 Isambert, Anciennes Lois Francaises, I. 162. This occurs in an edict abolishing sundry vicious customs of the town of Orleans. It was proba- bly merely a local regulation, though it has been frequently cited as a general law. 6 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 Orleannais, 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. Ixiii. ^11), names twelve deniers, or one sou, as the minimum. 7 Cod. Leg. Norman. P. 11. cap, xxi. ^ 7 (Ludewig, Reliq. MSS. VII. 307), The judgment of God was frequently styled "Lex apparens" or " paribilis," QUESTIONS OF RANK. I35 place ill the Coutumier in use until the sixteenth century/ In the Latin States of the East founded by the Crusaders, the minimum was a silver marc in cases of both nobles and ro- turiers.^ A law of Aragon, in 1247, places the limit at ten sous.^ 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.* The contemporary law of Suabia pro- vides that in accusations of personal violence, the duel was not to be allowed, unless the injury inflicted on the com- plainant had been sufficiently serious to cause permanent maiming,^ thus showing how thoroughly different in spirit was the judicial combat from the modern code of honor which has been affiliated upon it. As regards the inferior classes of society, innumerable documents attest the right of peasants to decide their quar- rels by the ordeal of battle. By the old Lombard law, slaves were allowed to defend themselves in this manner;^ 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. ^ Similarly, among the Frisians, a litus claiming his liberty was allowed to prove it against his master with arms.^ The institutions of feudalism widered the distance between the different classes of society, and we have already seen that, in the thirteenth century, serfs were enfranchised in ' Anc. Coutum. de Normandie, cap. %"] (Bourdot de Richebourg, IV. 55)- 2 Assises de Jerusalem, cap. 149. — Assises dAntioche, Haute Cour, ch. ix. ; Assises des Bourgeois, ch. vi. ^ Laws of Huescar, by Don Jayme I. (Du Cange. s. v. Torna.) * Bracton. Lib. ill. Tract, ii. cap. 19 \ 6, cf. cap. 23 \ 2. 5 Jur, Provin. Alaman, cap. clxxii. \ 20. (Ed, Senckenberg.) 6 L. Longobard. Lib. I. Tit. xxv. \ 49. 7 Ibid. Lib, i. Tit. ix. § 38. s l. Frision. Tit. xi. ca:\ iii. 136 THE WAGER OF BATTLE. order to enable them to support .their testimony by the com- bat ; 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,^ and other contemporary authorities show that a man claimed as a serf could defend his freedom with the sword against his would-be-master. ^ 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 Nor- mandy,^ 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.* 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 Beam, 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 some- times 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 ' Coutumes du Beauvoisis, cap. Ixiii. \ i. — 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 ob- ligare non poterat sine nostri licentia speciali." — Actes du Parlernent de Paris, I. 446. 2 Livres de Jostice et de Plet, Li v. xix. Tit. 13. — Tabul. Vindocinens. cap. 159. (Du Cange, s. \. adraniire.) 3 Assises de I'Echiquier de Normandie, p. 174. (Marnier.) 4 Lauriere, Table Chron. des Ordonnances, p. 105. QUESTIONS OF RANK. 137 challenge the villein, they met on equal terms. ^ This last regulation was however enforced with impartial justice, for Beaumanoir mentions a case in which a gentleman chal- lenged a roturier, and presented himself in the lists mounted and armed with his knightly weapons. The defendant pro- tested 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.^ 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 f and I fmd a case recorded in 1280, in which 2ifemme 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.* 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 thir- teenth 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 ac- cept the appeal of the former. So thoroughly was this prin- ciple carried into practice, that, to compel the appearance of a Semperfri^ or noble of sixteen quarterings, the appellant was obliged to prove himself of equally untarnished descent.^ ' Beaumanoir, op. cit. cap. Ixi, W 9, 10. — Etablissements de S. Louis, Liv. I. chap. Ixxxii. 2 Beaumanoir, Cout. du Beauvoisis, cap. Ixiv, \ 3. 3 Conseil. ch. xxi. Tit. xiv, 4 Actes du Parlement de Paris, T. I. No. 2269 A. p. 217. 5 Jur. Provin. Saxon, Lib. I. c. 50, 62. Lib. iii. c. 29, 65. — Sachsische 12* 138 THE WAGER OF BATTLE. 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.^ 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 the challenge of a Christian, though they might in civil suits. ^ In Aragon, no judicial duel was permitted between a Christian and a Jew or a Sara- cen,^ while in Castile both combatants had to be gentlemen, quarrels between parties of different ranks being settled by the courts.* On the other hand, in Wales, extreme differ- ence of rank was held to render the duel necessary, as in cases of treason against a lord, for there the lord was plain- tiff 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.^ 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 Weichbild xxxiii. xxxv. Jur, Provin. Alamann. cap. ccclxxxv. §^ 14, 15. (Ed. Schilter.) 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 1 168 and quoted above, forbids the duel in capital cases, unless the adversaries are of equal birth. ' Jur. Prov. Alamann. cap. cclviii. § 20. (Ed. Schilter.) — We have al- ready seen that the converse of this rule was introduced in England, as regards questions between Frenchmen and Englishmen, by William the Conqueror. 2 Quia surien et greci in omnibus suis causis, praeter quam in criminali- bus excusantur a duello. — Assises de Jerusalem, Baisse Court, cap. 269. 3 Laws of Huescar, ann. 1247. (Du Cange s, v. Torna.) 4 Las Siete Partidas, P. vii. Tit. iii. 1. 3. 5 Anomalous Laws, Book xiv. chap. xiv. ^ r. (Owen IL 625.) LIABILITY OF WOMEN. I3Q 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,^ and the Assises de Jerusalem or- dered 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 like- wise obliged to furnish the champion in any trial that might arise. '-^ Equally directed to the same purpose was the Ger- man 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.^ Guardians of women and minors, moreover, were bound to furnish battle in their behalf.* 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,^ 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.^ The chances between such unequal adversaries were adjusted by burying the man to his waist, tying his left hand behind his back, and arming him only with a mace, ' Jur, Provin. Saxon. Lib. I. art. 48. 2 Assises de Jerusalem, cap. 266, 267, 3 Jur. Provin. Alamann. cap. Ix. ^ 5. ^ Jur. Provin. Saxon. Lib. I. c. 42, 43. 5 Belitz de Duellis Germanorum p. 9, (Vitembergse, 1717.) 6 Jur. Provin. Alamann, cap. ccxxix. § 2. This chapter is omitted m the French version of the Speculum Suevicum. I40 THE WAGER OF BATTLE. while his fair opponent had the free use of her limbs and was provided with a heavy stone securely fastened in a piece of stuff. ^ 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-Debonnaire, in his additions to the Salic law, directs that, in doubtful cases arising between lay- men and ecclesiastics, the duel between chosen witnesses shall be employed, but that when both parties are clerical it shall be forbidden. ^ 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;^ and, about the year 945, Atto of Vercelli complains that the tribunals allowed to eccle- siastics no exemption from the prevailing custom.^ Yet so far was this 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, yielding to warlike inspirations, boldly entered the lists themselves. In 1080 the Synod of Lillebonne adopted a canon punishing by a fine such belligerent churchmen as in- dulged in the luxury of duels without having first obtained from their bishops a special license authorizing it.^ About ' Konigswarter, op. cit. p. 221 — 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 porfierro caliente; e si varon fuere legador . . salvese por lid." — Fuero de Baeca. (Villadiego, Fuero Juzgo fol. 317^) 2 Capit. Ludov. Pii I, ann. 819, cap. x. 3 UgheUi, T. II. p. 122 (Du Cange). * Addunt insuper, quoniam si aliquis militum sacerdotes Dei in crimine pulsaverit per pugnam sive singular! certamine esse decernendum — De Pressuris Eccles. 5 Clericus ... si duelhun sine episcopi licentia susceperit . . . aut as- sultum fecerit, episcopis per pecuniam emendetur, — Orderic. Vital. P. II. Lib. v. c. 5. LIABILITY OF ECCLESIASTICS. 141 the same period, Geoffry, Abbot of Vendome, 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.^ The practice continued, and though forbidden by Pope Innocent II. in 1140,^ Alexander III. and Clement III. found it neces- sary to repeat the prohibition before the close of the century.^ 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.* The progress of the age, how- ever, was shown wheU; about thirty years afterwards, Celestin III. .pronounced sentence of deposition in a similar case submitted to him ;^ and this was formally and peremptorily confirmed by Innocent III. at the great council of Lateran in 1 215.'' 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 the ecclesiastical law.'^ The utmost privilege which the secular law accorded the clergy, how- ever, was the right of presenting a champion in the lists, which zealous churchmen naturally resented as an arbitrary injustice.^ How thoroughly it was carried out in practice, notwithstanding all remonstrances, is shown by a charter ' Goffrid. Vindocinens. Lib. IIL Epist. 39. 2 D^ Cange. 3 Ut clerici non pugnent in duello, nee pro se pugiles introducent. — Chron. S. ^gid. in Brunswig. — Can. I. Extra, Lib. v. Tit. xiv. * Can. I. Extra, Lib. I. Tit. xx. ^ Can. 2 Extra, Lib. v. Tit. xiv. s Concil. Lateran. IV. can. 18. ' Cap. Monomaehiam caus. IL q. 5. — Nicolai PP. I. Epist. 148. ^ Atton. .Vercell. De Pressuris Eccles. Pt. I. 142 THE WAGER OF BATTLE. granted in 1024 by St. Stephen of Hungary to the monas- tery 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.^ 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 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. l"he 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 com- bat 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.^ The scandal of maintaining the claims of the church by carnal weapons and bloodshed was not soon suppressed. In 1 1 12 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.^ So, about the same period, in a case between the abbey of St! Aubin in Anjou and a neighboring ' Chart. S. Stephani. (Battliyani, Legg. Eccles. Hung. T. I. p. 384.) 2 Chron. Piscariens. Lib. II. (D'Achery, II. 951.) 3 Cartulaire de I'Eglise de Paris, I. 378. LIABILITY OF ECCLESIASTICS. I43 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;^ 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.^ That such cases, indeed, were by no means un- common is shown by their special prohibition in 1195 ^7 Celestin III.^ 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 11 74 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,* still no general reform appears to have been practicable. In 1239 a knight of Orleans, Gui de Santillac, testified before the royal coun- cil that the chapter of Saint-Aignan had appealed him in wager of battle.^ As late as the year 1245, some vassals of the chapter of Notre 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 Notre Dame should be entitled to prove its rights by wit- nesses, deeds, and other legitimate proofs, notwithstanding the custom existing to the contrary.^ It was probably his interference in this case that led him a few years later, in 1 The charter recording the suit and its results is given by Baluze and Mansi, Miscell. III. 59. 2 Ibid, p. 134. 3 Can, I Extra, Lib, v. Tit. xxxv. * Du Boys, Droit Criminel des Peuples Modernes, II. 187. ^ Actes du Parlement de Paris, T. I. p. cccvii. (Paris, 1863.) 6 Contraria consuetudine non obstante. — Cart, de I'E^lise de Paris, II. 393-4. 144 THE WAGER OF BATTLE. 1252, to issue a decretal in which he pointed out the mani- fest hardship of forcing the clergy in France, when prose- cuting such claims against their serfs, to have recourse to the duel, and thus, under the canon law, to forfeit their posi- tions. 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 refus- ing the combat.^ 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. 2 Yet even a century later, when the judicial duel was going out of fashion, a bishop of Liege so vexed the burghers of Louvain, by repeated citations to the com- bat to settle disputed questions, that John III. Duke of Bra- bant was obliged to appeal to the Emperor Charles IV., who accordingly wrote to the bishops of Treves, Cambrai, and Verdun desiring them to find some means of putting an end to the bellicose tendencies of their episcopal brother.^ The customs and prejudices of the time were evidently too strong to be easily eradicated. It is therefore not surprising to find that the prelates, acting in their capacity of temporal seigneurs, should have been 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 multi- ply instances, but I may mention a charter granted by Fulk Nera, Count of Anjou, about the year 1010, bestowing these ' Archives Administratives de Reiiias, T. I. p. 733. 2 Harduin. Concil. VII. 384. 3 Proost, Legislation des Jugements de Dieu, p. 19. UNDER ECCLESIASTICAL JURISDICTION. 145 rights on the abbey of Beaulieu in Touraine/ and one by the Emperor Henry III., in 1052, to the bishop and church of Volterra in Italy. ^ Some conscientious churchmen objected to a practice so antagonistic to all the teachings of the. re- ligion 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. ^ 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 trans- ferring the cause to the court of the Countess of Chartres.* A century later the celebrated Peter Cantor resolutely de- clared 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.^ These precepts and examples were equally unavailing. Church- men continued to award the wager of battle, and resolutely resisted any invasion of their privileges. In 1 150 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.® Even in the thirteenth century, in the archbishop's court or officiality of Rheims, the duel was a matter of course / and a case is recorded, occurring in 1224, 1 Du CangCj s. v. Bellum. 2 Muratori, Antiq. Ital. Dissert. 39. — Among various other examples given by the same author is one of the year loio, in which the court of the bishop of Aretino grants the combat to decide a case between a monas- tery and a layman. 3 Ivon. Epist. cxlviii. * Ivon. Epist. ccxlvii. 5 Pet. Cantor. Verb. Abbreviat. cap. Ixxviii. 6 Migne's Patrologia, T. 188, p. 1287. 7 Lib. Pract. de Consuetud. Remens. passim. (Archives L^gisl. de Reims.) 13 T46 THE WAGER OF BATTLE. 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.^ In 1239 the Bishop of Or- leans contested with the king as to the right of the former to the jurisdiction of the duel in his diocese ;^ and in a judgment rendered in 1269, concerning a combat waged within the limits of the chapter of Notre 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."^ How eagerly these rights were maintained is apparent from nume- rous decisions concerning contested ca^es. Thus, an agree- ment of 1193, between the Countess of St. Quentin and the chapter of Notre 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 supervi- sion of both parties, and divides the spoils equally between each.* 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.^ In 1257, while St. Louis was exerting him- self 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;^ and in 1277 a similar suit on the part of the abbey of St. Vaast d' Arras was decided in its favor. '^ From a ver- dict given in 1293, the right of the chapter of Soissons to 1 Archives Adminst. de Reims, T. I. p, 822. 2 Actes du Parlement de Paris, T. I. p. cccvii. (Paris, 1 863.) a Cartulaire de I'Eglise de Paris, III. 433. After the first blows, the parties could be separated on payment of a fine to the court, from the i-e- cipient of which the name is evidently derived. 1 Cartulaire de I'Eglise de Paris, I. 234. ^ ibid. I. 79-80. « Les Olim, I. 24. 7 Actes du Pari, de Paris, T. I. No. 2122, C. p. 197. MERCANTILE LAW. 147 decree the judicial combat appears to be undoubted, as well as the earnestness of the worthy ecclesiastics to exercise the privilege.^ 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 arch- bishop;^ and even in 131 1 a bishop of St. Brieuc ordered a duel between two squires pleading in his court, in conse- quence 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 ap- pealed to the Parlement of Paris, which ordered the restora- tion of the confiscated articles, and fined the bishop for his disregard of the royal edicts prohibiting the single combat.^ 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;* but the church was not disposed to admit this limitation on its jurisdiction, and though the suppression of the wager of battle by the crown deprived it in common with the other seignorial courts of this special source of profit, it continued in its multifarious capacity of seigneur to execute the cruel laws of the period with undiminished activity.^ There was one jurisdiction which held itself more care- fully 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 trans- 1 Actes dii Pari, de Paris, T. I., p. 446. 2 Du Cange, s. v. Arraniiatio. 3 Les Olim, III. 679. 4 Voirs est que tuit li cas ou il pot avoir gages de bataille ou peril de perdre vie ou membre, doivent estre justicie par le laie justice; ne ne s'en doit sainte Eglise meller. — Coutumes du Beauvoisis, cap. xi. art. 30. 5 See the Registre Criminel de la Justice de St. Martin- des-Champs. (Paris, 1877.) 148 THE WAGER OF BATTLE. actions 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 mediaeval jurispruence. 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 Jerusa- lem expressly allude to the Admiralty Courts as not admitting the judicial duel in proof,^ while an English document of 12 Edward III. attests the same principle.^ When, how- ever, 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.^ REGULATIONS OF THE DUEL. 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 archaeologist. 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 con- ducted 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 con- ' En la cort de la mer na point de bataille por prueve ne por demande de celuy veage. — Assises de Jerusalem, cap, xliii. 2 Pardessus, Us et Coutumes de la Mer. 3 Livres de Jostice et de Plet, Liv, vn. Tit. iv. § 2. PENALTIES FOR DEFEAT. 149 flict commenced.^ 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.^ Accordingly, we find the vanquished party, whether plaintiff or defendant, subjected to penalties more or less severe, varying with the time and place. Thus, in 819, Louis-le Debonnaire decreed that, in cases where testimony was evenly balanced, one of the witnesses from each side should be chosen to fight it out, the de- feated champion suffering the usual penalty of perjury — • According to Bracton, the appellant in criminal cases appears always obliged to swear to his own personal knowledge, visu ac anditu, 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 pro- priety, in certain cases, of forcing one of the contestants to commit per- jury. The matter will be found treated at some length in Savigny's Geschichte d. Rom, Recht, B. iv. pp. 159 sqq. The formula of the oath as given in the Fleta is as follows: The par- ties take each other by ihe 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 hsec 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 per- jurus et ideo perjurus quia tali anno, tali die, tali hora et tali loco nequi- ter et in felonia occidisti C. fratrum meum tali genere armorum, unde obiit infra triduum; sic me Deus etc." — Lib. I. cap. xxxii. W 28, 29. In the German law the oath was simpler, but quite as absolute. — ^Jur. Prov. Saxon, Lib. I. cap. Ixii. — Sachsische Weichbild xxxv. 8. 2 Cod. Leg. Normann. P. I. c. Ixiv. (Ludewig. Reliq. MSS. T. VII. p. 270. — Anc. Gout, de Normandie (Bourdot de Richebourg, IV. 29). 13* 150 THE WAGER OF BATTLE. 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.^ William the Conqueror imposed a fine of forty sous on the losing side im- partially ;^ this was increased to sixty sous by the compila- tion known as the laws of Henry I. f and the same regula- tion is stated by Glanville, with the addition that the defeated person was forever disqualified as a witness or champion ;* while in the time of Edward II. the loser, except in cases of felony, paid to the victor forty sous besides a small gratifi- cation under the name of ruaille, in addition to the loss of the suit.^ 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.^ About the same time, the Bearnese legislation embodies a similar prin- ciple in a milder form, a fine of sixty-six sous Morlaas being imposed impartially on the losing party. ^ 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 im- prisoned as a calumniator, while the defendant, if defeated, ' Capit. Ludov, Pii ann. 819, cap. x. A somewhat similar provision occurs in the L. Burgund. Tit. xlv. et Ixxx, 2 L, Guillelmi Conquest. III. xii. (Thorpe, I. 493.) — A previous law, however, had assessed a Norman appellant sixty sous when defeated. (Ibid. II. ii.) 3 L. Henrici I. cap. lix. \ 15. * Glanvil. de Leg. Angl. Lib. II. cap. iii. 5 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. — Home's Myrror of Justice, cap. iii. sect. 23. 6 Formul. Vetus in L. Longobard. (Georgisch, p. 1276.) 7 For d'Oloron, Art. 21. LEX TALIONIS. 151 was executed, and his property confiscated.^ The same dis- tinction is to be found in the contemporary custom of Nor- mandy.^ So, by the code in force in Verona in 1228 the Podesta in criminal cases had the power of ordering the duel, and of punishing at his pleasure the accuser if van- quished — the accused when convicted of course undergoing the penalty of his crime. ^ Mediaeval legislation, however, was not usually so 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 con- victed, 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,* and it was natu- rally 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 accu- sation, for the comparatively light pecuniary mulct and loss of legal status previously incurred by a worsted appellant.^ ' Bracton, Lib. ill. Tract, ii. cap. 18, \ 4. In another passage, Brac- ton gives a reason for this clemency — " Si autem victus sit in campo . . . quamvis ad gaolam mittendus sit, tamen sit ei aliquando gratia de miseri- cordia, quia pugnat pro pace." (Ibid. cap. 21, \ 7.) See also the Fleta, Lib. I. cap. xxxii. \ 32. 2 Etab. de Normandie, Tit. " De prandre fame a force" (Marnier). 3 Lib. Juris Civihs Veronse, cap. 78 (p. 63). * Qui calumniam illatam non probat, poenam debet incurrere quam si probasset reus utique sustineret. — Can. Qui calumniam Caus. v. q. vi. (Decreti P. II.) s ... ad poenas exigat sequas, Victus ut appellans sive appellatus, eadem Lege ligaretur mutilari aut perdere vitam. Moris enim extiterit apud illos hactenus, ut si 152 THE WAGER OF BATTLE. 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.^ 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. ^ 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 appel- lant fought by means of one of his witnesses, and the defen- dant 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;^ and it finally established itself in England, where in the fourteenth cen- tury, we find it positively declared as an imperative regula- tion by Thomas, Duke of Gloucester, in an elaborate treatise on the rules of single combat printed by Spelman.* 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 pern-et. Guillielmi Brito. Phillippidos Lib, vill. It will be observed that the preexisting Norman custom here described is precisely that indicated above by Glanville. ^ E. g. Etablissements Lib. I. cap. 27 and 91. — " Cil c[ui seroit vaincus seroit pendus" (cap. 82). 2 Beaumanoir, chap. Ixiv. § 10, 3 Assises d'Antioche, Haute Cour, ch. xi.; Assises des Bourgeois, ch. vi. vii. See also Assises de Jerusalem, cap. 317. * Recta fides et sequitas et jus armorum volunt ut appellans eandem in- currat poenam quam defendens, si is victus fuerit et subactus. — Formula Duelli, apud Spelman. Glossar. s. v. Camptis. I LEX TALIONIS. 153 In Germany, however, 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 de- fendant, if vanquished, was visited with the punishment due to his crime, or even with a heavier penalty ;^ 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.^ 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 with the strictest impartiality.^ That these penalties were not merely nominal is shown by a case which occurred at Frankfort in 1369, when the divine interference was re- quisite, not to determine the victor, but to evade the enforce- ment 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 in- cline 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 magis- trate of the city, who presided over the combat, was not dis- posed to deprive the spectators of their promised entertain- i Jur. Provin. Saxon, Lib. I. c, 63. — Jur. Provin. Alamann. cap. ccclxxxvi. ^§ 19, 20. (Ed. Schilter.) 2 Sachische Weichbild 82. — Jur, Provin. Alamann. cap. clxviii. g 20, clxxii. I 18. (Ed. Senckenberg.) 3 Ibid. cap. ccxix. § 6. (Ed. Schilter.) 154 THE WAGER OF BATTLE. ment, 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 sen- tence 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 re- morseless judge, who fell dead, thus fulfilling his impious vow that he would not eat until he had a victim.^ 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 Mars- chalck 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.^ The most hideous exaggeration of the system, however, was found in the Frankish kingdoms of the East, which re- served a special atrocity for women — one of the numerous instances to be observed in mediaeval law of the injustice applied habitually to the weaker sex. When a woman ap- peared, 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.^ ' Chron. Cornel. Zanfliet ann. 1369 (Mart. Ampl. Coll. V. 293-4.) 2 Chron. Augustan. (Pistor. III. 684, Ed. 1726.) 3 Assis. Hierosol. Alta Corte cap. cv. (Canciani, V. 208.) PUNISHMENT OF DEFAULT. 155 It was customary to require the parties to give security for their due appearance at the appointed time, various fines and punisimients 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 posses- sions of a defaulter were forfeited, either to his heirs, or to his feudal superior.^ In a case occurring in the twelfth cen- tury 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 day- break, 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 cus- tom of Flanders, indeed, the combatant who failed to appear suffered banishment, with confiscation of all his possessions.^ This extreme rigor, however, did not obtain universally. Among the Bearnese, for instance, the forfeiture for a default was only sixteen sous Morlaas.^ By the English law, the de- faulter was declared infamous.* The Scandinavians punished him popularly by erecting a ^'nithstong" — pertica execra- iioiiis — a post inscribed with defamatory runes, and so fla- grant was this insult considered, that finally it was pro- hibited by law under pain of exile. ^ ' Jur, Provin. Saxon, Lib. I. c. d^)-) ^5- — Sachsisclie Weichbild xxxv. Jur. Provin. Alamann. cap. ccclxxxvi. \ 31. (Ed. Schilter.) — Cap. clxxiii. l\ 7, 8. (Ed. Senckenb.) 2 Proost, Legislation des Jugements de Dieu, pp. 18, 21. 3 For de Morlaas, Rubr. iv. art. 5. * Home's Myrror of Justice, cap. iv. sect. 13, 3 Schlegel Comment, ad Gragas \ 31. — Gragds sect. Viii. cap. 105. A fanciful etymologist might trace to this custom the modern phrase of "posting a coward." 156 THE WAGER OF BATTLE. The bail, of course, was liable for all legal penalties in- curred 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.^ 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 Ardr^, je vous feray ardoir Et mettre en cendre.* As regards the choice of weapons, much curious anecdote could be gathered from the pages of Brantome and others learned in punctilio, without throwing additional light upon mediaeval customs. It may be briefly observed, however, that when champions were employed on both sides, the law 1 Jur. Provin. Alamann. cap. ccclxxxvi. g 32 (Ed. Schilter); cap. clxxiii. § 13 (Ed. Senckenberg). 2 Un Miracle de Notre-Dame d'Amis et d'Amille. (Monmerqu^ et Michel, Th^at. Fran9ais au Moyen-Age, p. 238.) Another passage in the same play signalizes 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 I'un en soit desconfis; Et celui qui vaincu sera, Je vous promet, pendu sera : N'en doubte nulz. CHOICE OF WEAPONS 157 appears generally to have restricted them to the club and buckler, and to have prescribed perfect equality between the combatants.^ An ordonnance of Philip Augustus, in 1 215, directs that the club shall not exceed three feet in length.^ 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 chal- lenger, those who were wealthy sometimes forced their poorer adversaries to lavish immense sums on horses and armor. ^ Where, 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 un- reasonable.* 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.^ In the law of Northern Germany care was taken that the advan- tage 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, ' E.g. Constit. Sicular. Lib. ii. Tit. xxxvii. \ i. 2 Lauriere, Table des Ordonn. p. 10. "^ Revue Historique de Droit, 1861, p. 514. * Constit. Sicular, Lib. ii. Tit. xxxvii. \ 4. 5 This, however, was not permitted by Frederic. (Ubi sup.) 14 158 THE WAGER OF BATTLE. but either might have as many more as he pleased in his belt ; if a combatant was too poor to provide a sword and target, the judge could supply what was requisite.^ Accord- ing 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. ^ 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.^ 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, Lithua- nians, and Germans, they were habitually worsted, until judicial duels between natives and foreigners were at length prohibited on this account.* 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. 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 mem- ber of the family, as in the cognate procedure of sacramental purgation. Among the Alamanni, for instance, a woman ' Jur. Provin. Saxon. I. 63. 2 De Militari Officio Lib. 11, cap. viii. 3 Book of Cynog, chap. xi. g 34, (Owen, II. 211.) ■* Du Boys, op. cit. I. 611. I EMPLOYMENT OF CHAMPIONS. I59 when accused could be defended by a kinsman *' cum tracta spata;"^ the same rule is prescribed by the Lombard law,^ and by that of the Angli and Werini ;^ 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 laws of the Franks, of the Ala- manni, and of the Saxons make no allusion to such a privi- lege, 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.* 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-Debon- naire, "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, on the other hand, it was allowed to the appellant.^ On the other hand, the Baioarian law, which ' L. Alamann, Add. cap. xxi. 2 L. Longobard. Lib. i. Tit. iii. | 6, and Lib. ii. Tit. Iv. | 12. 3 L. Anglior. et Werinor. Tit. xiv. 4 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. 5 Horum enim causa accidit ut non solum valentes viribus, sed etiam infirmi et senes lacessantur ad certamen et pugnam etiam pro vilissimis l6o THE WAGER OF BATTLE. 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.^ 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 indi- cated, which would show that the principals were not ex- pected to appear personally. ^ Under the North German law it rested with the appellant to demand the duel either with or without champions. If the defendant was crippled, and was on that account obliged to appear by a hired cham- pion, 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 de- cline it if he could prove that the prosecutor had hired a champion.^ In all these provisions for the putting forward of substi- tutes in the duel there is something so repugnant to the fierce and self-relying spirit in which the wager of battle found its excuse, and the use of a professional gladiator is so incon- sistent with the pious reference to the judgment of God, which was alleged for the maintenance of the system, that some external reason is required to account for its introduc- rebus. (Lib. adv. Legem Gundobadi cap. vii.) Mitte unum de tuis, qui congrediatur mecum singular! certamine, ut probat me reum tibi esse, si Occident. (Lib. contra Judicium Dei cap. i.) ^ Liceat ei per campionem, id est per pugaam, crimen ipsum de super se si potuerit ejicere. — L. Longobard. Lib. i. Tit. i. ^ 8. 2 Proost, Legislation des Jugements de Dieu, p. 82. 3 Jur. Provin. Saxon. Lib. I. art. 39, 48. — Sachsische Weichbild art. XXXV. 2, 4; art. Ixxxii. 2. I WITNESSES BECOMING CHAMPIONS. l6l tion. This reason is doubtless to be found in the liberty- allowed of challenging witnesses, to which allusion has already been made. The prevalence of this throughout Western Europe readily enabled parties, unwilling them- selves 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. ^ Although the custom of hiring champions existed from a very early period, since the Frisian laws give the fullest license for employing and paying them,^ still, their identity with witnesses cannot be readily proved from the simple records of those primitive times. It becomes very evident, however, in the more detailed regulations 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 defend- ant's title as though he had been present.^ This curious legal fiction was common also to the Norman jurisprudence of the period, where in such cases the champion of the plain- tiff 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.* In a similar spirit, an earlier code of Normandy prescribes that champions shall ' This was not always the case, however. In the primitive Icelandic laws the procuring of champions was accomplished by the curious custom to which I have already alluded, of buying and selling suits. 2 Licet unicuique pro se campionem mercede conducere, si eum invenire potuerit. — L. Frision. Tit. xiv. cap. iv. 8 Glanvil. de Leg. Angl. Lib. ii. cap. iii. * Cod. Leg, Norman. P. ii. cap. Ixiv. (LudewigReliq. MSS. VII. 416.) 1 62 THE WAGER OF BATTLE. 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.' 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.^ If 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.^ 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.* In a similar spirit, if on the field of battle one of the parties pre- sented a champion who was not receivable as a witness and had not been accepted by the court, the case could be de- cided against him by default.^ It is probable from all this that not much heed was paid to the rule laid down by Brac- ton to the effect that a witness suspected of being a hired champion was not allowed to proceed to the combat, but was tried by a jury for the attempt, and if convicted suffered the loss of a hand and a foot.^ Looking on the profession of a champion in this light, as that of a false witness, we can understand the heavy penal- ' Etab. de Normandie, p. 21, (Marnier.) 2 Assises d'Antioche, Haute Cour, eh, ix, xi. xii.; Assises des Bour- geois, ch. vi. vii, s Assis. Hierosol. Bassa Corte, cap. ccxxxviii. (Canciani, II. 534.) — ■ Constit. Sicular. Lib. ii. Tit. xxxvii. ^ 2. ^ Home's Myrror of Justice, cap. iii. g 23. 5 Ibid. cap. iv. § 11. 6 Lib. III. Tract. 11. c. xxxii. § 7. WITNESSES AS CHAMPIONS. 1 63 ties to which he was subjected in case of defeat, a severity which would otherwise appear to be a purposeless expression of the savage barbarity of the times. 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 pro- perty in dispute;^ and a similar principle was recognized in the English law of the period. "-^ 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 per- jury f 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.* 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. ^ In later times, when the origin of 1 Cod. Leg. Norman. P. ii. cap. Ixiv. ^ 18. (Ludewig VII. 417.) 2 Among the crimes entailing infamy is enumerated that of " ceux qui combatent mortelment pur loyer qui sont vanquish en combate joyne per jugement." — Home's Myrror of Justice, cap. iv. sect. 13. 3 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. Ixvii. ^ 10. (Du Cange seems to me to have misinterpreted this passage.) — See also Monteil's admirable " Histoire des Fran9ais des divers Etats," XVe Siecle, Hist. xiii. 4 Assis. Hierosol. Bassa Corte, cap. ccxxxviii. Alta Corte, cap. cv. (Canciani II. 534; V. 208.) 5 Assises d'Antioche, Haute Cour, ch. xi. ; Assises des Bourgeois, ch. vi. vii. 164 THE WAGER OF BATTLE. the champion's office had been lost sight of, and he was everywhere recognized as simply a bravo who sold his skill and courage to the highest bidder, a more practical reason was found for maintaining this severity — the more necessary, because the principal was bound by law to pay his champion, even when defeated, the full sum agreed upon as the price of his services in both swearing and fighting.^ 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 betraying their employers;^ 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.^ In the same spirit, the Emperor Frederic II. pro- hibited 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.* 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 pro- cured from among the freedmen or clients of the principal, ' Cod. Leg. Norman. P. ii. cap. Ixiv. | 19. (Ludewig VII. 416.) 2 Et li campions vaincus a le poing cope ; car se n'estoit por le mehaing qu'il emporte, aucuns, par barat, se porroit faindre par loier etse clameroit vaincus, par quoi ses mestres emporteroit le damace et le vilonie, et cil emporteroit I'argent; et por ce est bons Ii jugemens du mehaing. — (Cout. du Beauv., cap. Ixi. | 14.) 8 Isambert, Anciennes Lois Fran9aises V. 387. 4 Constit. Sicular. Lib. ii. Tit. xxxvii. | 3. I PUNISHMENT OF CHAMPIONS. 1 65 and an expression in the Lombard law justifies the assump- tion that this was habitual, among that race at least/ In the palmy days of chivalry, it was perhaps not uncommon for the generous knight to throw himself boldly into the lists in defence of persecuted and friendless innocence, as he was bound to do by the tenor of his oath of knighthood.^ 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.^ 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 gradually 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 endeav- oring 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.* • Et post illam inquisitionem, tradat manum ipse camphio in manu parentis aut conliberti sui ante judicem. — L. Longobard. Lib. ii. Tit. Iv. 2 Thus the oath administered by the papal legate to William of Holland, on his receiving knighthood previous to his corunation as King of the Ro- mans in 1247, contains the clause "pro liberatione cujuslibet innocentis duellum inire." — Goldast. Constit. Imp. T. III. p. 400. 3 Anomalous Laws, Book x. chap, ii, | 9. (Owen, II. 315.) The posi- tion thus acquired was that of brother or nephew in sharing and paying wer-gild. ^ Ut nemo furem camphium de mancipiis aut de qualibet causa recipere praesumat, sicut ssepius dominus imperator commendavit. — Cap it. Carol. Mag. ex L. Longobard. cap. xxxv. (Baluze.) l66 THE WAGER OF BATTLE. 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 trans- ferred to the mediaeval 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 curious 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.^ One of the texts prescribing it is translated bodily by de Fontaines, the *'arenarius" of the Roman be- becoming the ''champions" of the Frenchman;^ and in another similar transcription from the Digest, the ''athleta" of the original is transformed into a "champion."^ 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.* 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 ' Novel, cxv. cap, iii. g lo — more fully set forth in Lib. ill. Cod. Tit. xxvii. 1. 1 1. 2 Conseil. chap, xxxiii. tit. 32. 3 Ibid. chap. xv. tit. 2,^, which is a translation of Lib. iv. Dig. Tit. ii. 1. 23, I 2. 4 Percutiat si quis hominem infamem, hoc est lusorem vel pugilem, aut muHerem publicam, &c,— Sachsische Weichbild Art. cxxix. ** Plusieurs larrons, ravisseurs de femmes, violleurs d'eglises, batteurs a loyer," etc. — Ordonn. de Charles VIL ann. 1447, also Ancienaes Coutumes de Bre- tagne. (Monteil, ubi sup.) DEGRADATION OF CHAMPIONS. 167 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.^ 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, &c., but even their children were visited with the same disabilities. 2 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, &c., in compensation of their wounded honor ; below the serf come the mounte- bank and juggler, who could only cuff the assailant's shadow projected on a wall ; and last of all are rated the champion and his children, whose only redress was a glance of sun- shine cast upon them by the offender from a duelling shield. Deemed by law incapable of receiving an insult, the satisfac- tion awarded was as illusory as the honor to be repaired.^ That this poetical justice was long in vogue is proved by the 1 Johen de Beaumont dit que chanpions loiez, prov6 de tel chose, ne puet home apelier a 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. 2 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. ill. c. xlv. 3 Campionibus et ipsorum liberis emendae loco datur fulgur ex clypeo nitido, qui soli obvertitur, ortum; hoc is qui eis satisfactionem debet loco emendas praestare tenetur. — (Jur. Prov. Alaman. cap. cccv. ^ 15. — Jur. Provin. Saxon. Lib. ill. art. xlv.) In the French version of the Speculum Suevicum, these emblematic measures of damage are followed by the re- mark " cestes emandes furent estrablies an la vieillie loy per les roys" (P. II. c. Ixxxvi.), which would appear to show that they were disused in the territories for which the translation was made. l68 THE WAGER OF BATTLE. commentary upon it in the Richstich Landrecht, of which the date is shown to be not earlier than the close of the four- teenth century, by an allusion in the same chapter to acci- dental deaths arising from the use of firearms.^ 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. 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.^ It is evident that the evils attendant upon the employment of champions were generally recognized, and it is not sin- gular 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.^ That this rule was strictly enforced in some places we may infer from the pleadings of a case oc- curring in loio before the Bishop of Aretino, concerning a disputed property, wherein a crippled right hand is alleged as the reason for allowing a champion to one of the parties.* In other parts of Italy, however, the regulation must have been speedily disregarded, for about the same time 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;^ and when, two hun- dred 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 • Richstich Landrecht, Lib. II. cap. xxv. 2 Lib. Juris Civilis Veron. cap. 125, 126. (Veronse, 1728, p. 95.) 3 L. Longobard. Lib. ii. Tit. Iv. g| 38, 40. * Muratori, Antiq. Ital. Dissert. 39. 5 L. Longobard. Lib. i. Tit. ix. ^ 37 ; Tit. x. | 4. RESTRICTIONS ON USE OF CHAMPIONS. 169 employed.^ 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. "'^ 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 rob- bers convicted in this manner at Merseburg in 1017.^ 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,* but that they were attended with little success may be inferred from the disabilities which, as we have already seen, were so copiously showered on the class by the same laws. The English law manifests considerable variation at dif- ferent periods with respect to this point. In 1150, Henry II. strictly prohibited the wager of battle with hired cham- pions in his ISorman territories;^ and 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.^ It is evident from this that mercenary champions were not recog- nized as legal in England, a principle likewise deducible from an expression of Bracton's in the succeeding century.^ This, however, was probably little regarded in practice. There exists a charter of Bracton's date, by which John ' Vix enim aut nunquam duo pugiles inveniri poterunt sic aequales, etc. — Constit. Sicular. Lib. 11. Tit. xxxiii. 2 Ibid. Lib. i. Tit. xxxiii. 3 Ibi tunc multi latrones a gladiatoribus singulari certamine devicti, sus- pendio perierunt. — Dithmari, Chron. Lib. vil. •* Jur. Provin. Alaman. cap. xxxvi. g 2; cap. Ix. g I. 5 Concil. Eccles. Rotomag. p. 128. (Du Cange.) ^ De Leg. Anglise Lib. 11. cap. iii. 7 Ita posset quilibet in tali facto alium appellare per campionem con- ductivum, quod non est sustinendum. — Bracton. Lib. iij. Tract, ii. cap. 18, § 4. 15 lyo THE WAGER OF BATTLE. *' 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.^ When John thus proclaimed himself to be a hired champion there could have been little danger that legal disa- bilities would be visited either on him or his principal. The custom gradually became general, for eventually, in civil cases, both parties were compelled by law to employ cham- pions, which presupposes, as a matter of course, that in a great majority of instances, the substitutes must have been hired. ^ In-criminal cases, however, the rule was generally reversed ; in felonies, the defendant was obliged to appear personally, while in cases of less moment he was at liberty to put forward a witness as champion f and when the ap- pellant, 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.* By the Scottish law of the twelfth century, it is evident that cham-: pions 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.^ This strictness became relaxed in time, though the practice of employing champions seems never to ' This charter, which has recently been found among the records of Durham Cathedral, is printed in the London Athenceum of November loth, 1866. It is not dated, but the names of the subscribing witnesses show that it must have been executed about the year 1260. 2 Lord Eldon, in his speech advocating the abolition of trial by battle, in 181 9, 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. 3 Pur felony ne poit nul combattre pur autre; en personal actions ne- quidant venials, list aux actors de faire les battailes per lour corps ou per loyal tesmoigne come en droit reals sont les combats. — Home's Myrror of Justice, cap. iii. sect. 23. . 4 Bracton. Lib. in. Tract, ii. cap. 21, \\ 11, 12. — Ibid. cap. 24. 5 Regiam Majestatem Lib. iv. cap. iii. RESTRICTIONS ON USE OF CHAMPIONS. I71 have received much encouragement. By a law of David 11. , about the year 1350, it appears that a noble had the privi- lege of putting forward a substitute ; but if a peasant chal- lenged a noble, he was obliged to appear personally, unless his lord undertook the quarrel for him and presented the champion as from himself/ The tendency exhibited by the English law in distin- guishing 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 em- ployment of champions in prosecutions for crime, ^ while in civil actions there appear to have been, at least in France, no restrictions whatever.^ This distinction between civil and criminal practice is very clearly enunciated by Pierre de Fontaines, who states that in appeal of judgment the appel- lant 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.* In practice, however, it is doubt- ful 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 up all the champions of the vicinity, so that a poorer antagonist had no resource to avoid the loss of life or heritage.^ This hiring of champions, moreover, was legally recognized as a necessity attendant upon the privilege ' Statut. David. II. cap. xxvili. 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. II 1,2. ' ^ 2 Assises de Jerusalem, Baisse Court, cap. 145, 146. — Beaumanoir, cap. Ixi. I 6; cap. Ixii. | 4. 3 Beaumanoir, cap. Ixi. | 14. * Conseil, chap. xxii. Tit. xiii. 5 Grandes Chroniques T. IV. p. 427. 172 THE WAGER OF BATTLE. of employing tbem.^ 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. ^ Local variations, however, are observable in the customs regulating these matters. Thus the municipal laws of Rheims, 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 spe- cified/'' 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 volun- tarily assume the office."^ The whole tenor of these provi- sions, indeed, manifests a decided intention to surround the employment of champions with every practicable impedi- ment. In Beam, 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.^ This equalization of chances was thoroughly carried out in ' II est usage que se auciin demende la cort de bataille qui est juege par champions loees, il la tendra le jor niaimes, et si ele est par le cors des quereleors il metra jor avenant a la tenir autre que celui. — Coutumes d'Anjou, XIII. e Si^cle,- 1 74. 2 Kar haute persone doit bien metre por lui, a deffendre soi, home, honeste persone, se I'an I'apele, ou s'il apele autre. — Livres de Jostice et de Plet, liv. II. Tit. xviii. 3 Lib. Pract. de Consuet. Remans. ^ 40. (Archives Legisl. de Reims, Pt. I. p. 40.) * Ibid. § 14, p. 37. 5 For de Morlaas, Ruhr. liii. art. 188. LIMITATIONS ON USE OF CHAMPIONS. I 73 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 treach- ery.^ In Bigorre, the only restriction seems to have been that champions should be natives and not foreigners.^ 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 possi- ble. The defendant had thfe 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 cham- pions 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.^ In Russia, until the sixteenth century, champions were never employed, con- testants 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.* 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 ' L, Jur. Civilis Veronge cap. 125, 126 (p. 95). '^ Pugiles in Bigorra non nisi indigenae recipiantur. (Lagreze, Hist, du Droit dans les Pyrenees, p. 251.) By the same code, the tariff of pay- ment to the champion was 20 sous, with 12 for his shield and 6 for train- ing — "pro prseparatione," 3 Las Siete Partidas, Pt. VII. Tit. iv. 1. 3. * Du Boys, Droit Criminel des Peuples Modernes, I. 611-13. 15* 174 THEWAGEROFBATTLE. 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.^ 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. ^ At length the fre- quent necessity for this species of service led to the employ- ment 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 in- stance, 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.'^ That it continued to be in vogue until long after, is shown by ' Campagnola, Lib. Juris Civ. Veronse. (Veronae, 1728, p. xviii.) 2 Polyptichum Irminonis, App. No. ^^. (Paris, 1836, p. 372.) ^ Une malvese coustume souloit courre ancieinment, si comme nos avons entendu des seigneurs de lois. — Cout. du Beauvoisis, cap. xxxviii. §15. CHAMPIONS FOR COMMUNITIES. 175 Monteil, who alludes to several documents of the kind, bearing date as late as the fifteenth century.^ The champions of the church occupied a higher 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 pros- perity 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. "^ The influence of feu- dalism early made itself felt, and the office of Vidame or Aiwue became generally hereditary, after which its possessors, for the most part, rendered themselves independent of their benefactors, their exactions and spoliations becoming a fa- vorite theme of objurgation among churchmen who regarded them as the worst enemies of the foundations which they had sworn to protect.^ 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 advocaiiis became gradually recognized as synonymous with patron. Thus, one of the worst abuses of the Anglican Church is derived from this source, and the ' Hist, des Fran§ais, XV^ Siecle, 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 princi- ple upon which the whole system of appeals to the judgment of God was based — that success was an evidence of right, 2 Hist. Monast. Figeacens. — (Baluz. et Mansj IV, p, i.) 3 Abbonis Floriac. Collect. Canon, can. ii, — fjistoy. T^eyireas. (D'Ache- ry Spicileg. II. 223). — Gerohi Reichersperg, de ^dificio Dei cap, vi. 176 THE WAGER OF BATTLE. forgotten wrongs of the Middle Ages are perpetuated, etynio- logically at least, in the advowson which renders the cure of souls too often a matter of bargain and sale. DECLINE OF THE JUDICIAL DUEL. 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 loii;^ 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 imper- fect a religion as that taught to the new converts, though the immediate cause was a holmgang between two skalds of dis- tinction, Gunnlaug Ormstunga and Skald-Rafn.^ Norway was not long in following the example, for about the same period the Jarls Erik and Svenn Hakonsen abolished the holmgang, while paganism was as yet widely prevalent.^ Denmark was almost equally prompt : indeed Saxo Gram- maticus in one passage attributes to it the priority, asserting that when Poppo, in 965, converted Harold Blaatand by the • Schlegel Comment, ad Gragas, p, xxii. — Dasent, in his Icelandic Chronology (Burnt Njal I. cciii.) places this in 1006, and Keyser (Reli- gion of the Northmen, Pennock's Trans, p. 258) in 1000. 2 The kind of Christianity introduced may be estimated by the charac- ter of the Apostle of Iceland. Deacon Thangbrand was the son of Willi- bald 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. Ixxx. (Laing's Heimskringla, I. 441.) 3 Keyser, op. cit p. 258. COMMENCEMENT OF ITS DECLINE. 177 ordeal of red-hot iron, it produced so powerful an effect as to induce the substitution of that mode of trial for the pre- viously existing wager of battle.^ 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.^ 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 boun- daries. Other causes had to work slowly and painfully for ages before man could throw off the bonds of ancestral pre- judice. One of the most powerful of these causes was the gradual rise of the Tiers-Etat 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 protec- tion 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 ' Saxon. Grammat. Hist. Dan. Lib. x. 2 ibid. Lib. xi. 178 THE WAGER OF BATTLE. battle by the oaths of twelve compurgators, except when the penalties of death or mutilation are involved; and in ques- tions concerning land, the duel is forbidden when competent testimony can be procured.^ Limited as these concessions may seem, they were an immense innovation on the preju- dices of the age, and are important as affording the earliest indication of the direction which the new civilization was assuming. Not long after, about the year T105, 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. ^ Perhaps the earliest instance of absolute freedom from the judicial combat occurs in a charter granted to the town of Ypres, in 11 16 by Bald- win VII. of Flanders, when he substituted the oath with four conjurators in all cases where the duel or the ordeal was previously in use.^ This was followed by a similar grant to the inhabitants of Bari by Roger, King of Naples, in 1132.* Curiously enough, almost contemporary with this is a simi- lar 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;^ and his desire to discourage the custom is further shown by a clause permitting the • Lunig Cod. Diplom. Ital. I, 2455. — The liberal terms of this charter show the enlightenment of the Emperor, and explain the fidelity mani- fested for him by the iinperial cities in his desperate struggles with his rebellious nobles and an implacable papacy. 2 Chart. Commun. Ambianens. c. 44. (Migne's Patrolog. T. 162, p. 750- ) 3 The charter is given by Proost, op. cit. p. 96. * Ferrum, cacavum, pugnam, aquam, vobis non judicabit vel judicari faciet. (Muratori, Antiq. Ital. Dissert. 38.) 5 Privileges de Lourdes, cap. ii. (Lagreze, op. cit. p. 482.) OPPOSITION OF THE COMMUNES. 1 79 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.^ Still more decided was a provision of the laws of Soest in Westphalia, somewhat earlier than this, by which the citizens were absolutely pro- hibited from appealing each other in battle;^ and this is also to be found in a charter granted to the town of Tournay by Philip Augustus in 1187.^ In the laws of Ghent, granted by Philip of Alsace in 11 78, there is no allusion to any species of ordeal, and all proceedings seem to be based on the ordi- nary processes of law, while in the charter of Nieuport, be- stowed by the same prince in 11 63, 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.* Louis VIII. in the charter of Cres- py, 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 ;^ and shortly after, the laws of Arques, conceded by the abbey of St. Bertin in 1231, pro- vided that the duel could only be decreed between two citi- zens of that commune when both parties should assent to it.® In the same spirit the laws of Riom, granted by Alphonse de Poitiers, theson of St.Louis, in 1 2 7o,declared that no inhabitant of the town should be forced to submit to the wager of battle.^ ' Privileges de Lourdes, cap. xiii. (Lagrfeze p. 484.) These privi- leges were confirmed at various epochs, until 1407. 2 Statuta Susatensia, No. 41 (Hseberlin Analect. Med. ^vi. p. 513). This is retained in the subsequent recension of the law, in the thirteenth century. (Op. cit, p. 526,) 3 Consuetud. Tornacens. ann. 1187, | xxi. (D'Achery Spicileg. III. 552.) 4 Oudegherst, Annales de Flandre ed. Lesbroussart. T. I. pp. 426 sqq. ; T. II. not. ad fin. 5 Statuta Commun. apud Crispiacum (D'Achery Spicileg. III. 595). s Legg. Villse de Arkes ^ xxxi. (Ibid. p. 608). ^ Libertates Villae Ricomag. | 6 (Ibid. p. 671). l8o THE WAGER OF BATTLE. In the customs of Maubourguet, granted in 1309, by Bernard VI. of Armagnac, privileges similar to those of Lourdes, al- luded to above, were included, rendering the duel a purely voluntary matter.^ 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, ex- cept 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 pre- lates, while they had the right to offer battle to the latter.^ 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. ^ 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 mer- chants of St. Omer, declaring that they should be free from all appeals to single combat in all the markets of Flanders.* In a similar spirit, when Frederic Barbarossa, in 11 73, 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 spe- ' E sobre ayso que dam e autreyam als borges de la vielle de Maubour- guet 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. (Lagreze, op. cit. pp. 470, 474.) 2 L. Burgorum, c. 14, 15. (Skene.) 3 Warnkoenig, Hist, de la Flandre, IV. 129. ■* In omni mercato Flandrise si quis clamorem adversus eos suscitaverit, judicium scabinorum de omni clamore sine duello subeant; ab duello vero ulterius liberi sint. — (Warnkonig. Hist, de la Flandre, II. 411.) OPPOSITION OF THE COMMERCIAL SPIRIT. l8l cially enacted that they should enjoy immunity from the duel.^ 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.^ Germany seems to have been somewhat later than France or Italy in the movement, yet her burghers evidently re- garded it with favor. Frederic II., who recorded his disap- proval 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,^ while as early as 12 19 he exempted the Niirnbergers from the appeal of battle throughout the empire.* The burgher law of Northern Germany alludes to the judicial combat only in criminal charges, such as violence, homicide, housebreaking, and theft ;^ and this is limited in the statutes of Eisenach, of T283, 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.*' 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 indi- vidual towns, ^ and in the Kayser-Recht this privilege is ex- tended by declaring the burghers exempt from all challenge 1 Nemo niercatoi-em de Flandria duello provocabit. (Ibid. II. 426.) 2 Traite de 1228, art. 3, Esneaux, Hist, de Russie, 11. 272. 3 Belitz de Duellis Germanorum, p. 9. Vitembergae, 1717. * Constit. Frid II. de Jur. Norimb. | 4 (Goldast. Constit. Imp. I. 291). 5 Sachsische Weichbild, Art. xxxv. Ixxii, Ixxxi.-lxxxiv. Ixxxix. xc. xcii. cxiv. 6 Henke, Gesch. des Deut. Peinlichen Rechts I. 192 (Du Boys, op. cit. II. 590). 7 Goldast. op. cit. I. 314. 16 1 82 THE WAGER OF BATTLE. to combat, except in a suit brought by a fellow-citizen,^ 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. ^ All these, however, were special privileges for a limited class of men, and their local regulations had no direct bear- ing 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 IL, 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-Debonnaire. St. Agobard, Archbishop of Lyons, took advantage of the opportunity to address to the Emperor a treatise in which he strongly ' Jur. Csesar P. iv. cap. i, (Senckenberg Corp. Jiir. German. I. 118.) This portion of the Kayser Recht is probably therefore posterior to the rise of the Hapsburg dynasty. 2 Ijelitz de Duel. Gernaan. p. 11. OPPOSITION OF THE CHURCH. 1 83 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 run- ning commentary, proving the incompatibility of Christian doctrines with these unchristian practices.^ Some thirty-five years later, the Council of Valence in 855 denounced the wager of battle in the most decided terms, praying the Em- peror 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.^ 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,' and his successors constantly en- deavored, 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 super- ior 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.* Near the close of the same century, Celestin III. prohibited it in general terms, ^ and he further pronounced that champions ' "Liber adversus Legem Gundobadi" and "Liber contra Judicium Dei." (Agobardi 0pp. Ed, Baluz I. 107, 301.) Both of these works dis- play marked ability, and a spirit of enlightened piety, mingled with fre- quent 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 hsereticus Gundobadus Burgundionum rex." 2 Concil. Valentin, ann, 855 can. 12. 3 Can. Monomachiam caus. II. q. v. 4 Pet. Cantor. Verb. Abbrev. cap. Lxxviii. 5 " In eo casu, vel aliis etiam, hoc non debes aliquatenus tolerare" (Can. I, Extra, Lib v. Tit. xxxv.). The rubric of this canon is even more decided. — " Duella et alioe purgationes vulgares prohibitse sunt, quia per eas muitoties condemnatur absolve ndus, et Deus tentari videtur." l84 THE WAGER OF BATTLE. in such contests, together with principals, were guilty of homicide, and liable to all the ecclesiastical penalties of that crime. ^ Innocent III., moreover, took care that the great council of Lateran in 1215 should confirm all the previous prohibitions of the practice.^ 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 Counts of Toulouse. In a charter given December i, 1212, he forbids its use in all the seignorial courts in his dominions, except in cases of treason, theft, robbery, and murder.* De Montfort's de- pendence on Rome, however, was exceptional, and Chris- tendom at large was not as yet prepared to appreciate the reformatory efforts of the popes. The refinements of the scholastic theology moreover found that it was less objection- able 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 cham- pions are very unequal in age or strength.^ Yet this was a subtlety too refined for the common mind, and the persist- ence 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 her- self. 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 com- mitted the sacrilege of carrying off the holy wafer to aid in the unknown and hideous rites of his fellows. The patience of the Virgin being at last exhausted, she appeared in a vision » Can. 2, Extra, Lib. v. Tit. xv. 2 Concil, Lateranens. IV. can. 18. 3 Consuetud. S. Montisfortis. (Conlre le Franc-Alleu sans Tiltre, p. 229. Paris, 1629.) « Sec. Sec. Q. 95 art. 8. INFLUENCE OF THE ROMAN LAW. 1 85 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 enter- ing 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 thoustinds of armed men who appeared around his adversary with threatening weapons. He was accordingly promptly burned, to the great satisfaction of all believers.^ Yet for all this, the opposition of the church, as authoritatively expressed by successive pontiffs, could not but have great influence in opening the minds of men to a sense of the cru'elty and injustice of the custom.^ But 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 agree- able 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 J Willelmi Egmond. Chron. (MaUheei Analect. IV. 231.) Proost (Le- gislation des Jugements de Dieu, p. 16) gives this story, with some varia- tions, as occurring at Mons, and states that the duel was authorized by no less a personage than the pope John XXII. Cornelius Zanfliet 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 Hai- nault. The tale evidently was one which obtained wide currency. 2 As late as 1492, the Synod of Schwerin promulgated a canon prohi- biting Christian burial to those who fell in the duel or in tournaments. — Synod. Swerin. ann. 1492, Can. xxiv, (Hartzheim Concil. German. V. 647.) 16* l86 THE WAGER OF BATTLE. 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 enlighten- ment had finally rendered it obsolete. The French Revolu- tion 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 to- wards its abolition were taken in 1231 by the Emperor Frederic II. in his Neapolitan code. He pronounces it to be in no sense a legal proof, but only a species of divination, incompatible with every notion of equity and justice; and he prohibits it for the future, except in cases of murder and treason where other proof is unattainable; and even in these it is placed at the option of the accuser alone, as if to render it a punishment and not a trial. ^ The German Imperial code, known as the Kayser-Recht, which was probably com- piled about the same time, contains a similar denunciation of the uncertainty of the duel, but does not venture on a prohi- bition, merely renouncing all responsibility for it, while re- cognizing it as a settled custom.'-^ In the portion, however, 1 Constit. Sicular, Lib. II, Tit. xxxii. xxxiii. — " Non tarn vera probntio quam quaedam divinatio . . . quae naturae non consonans, a jure communi deviat, sequitatis rationibus non consentit." Cf, Lib. I. Tit. xxi. cap. 2. 2 Cum viderit innocentes in duello succubuisse, et sontes contra in sua iniustitia nihilominus vic(oriam obtinuisse. Et ideo in jura imperii scrip- turn est, ubi duo ex more in duellum procedunt, hoc non pertinet ad im- perium. — Jur. Caesar. P. ii. c. 70. (Senckenberg L 54 ) GERMANY. ^ iS'J devoted to municipal law, which is probably somewhat later in date, the prohibition is much more stringently expressed, manifesting the influences at work;^ but even this is contra- dicted 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 Haps- burg, 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. ^ Still, as late as 1487, the Inquisitor Sprenger, in discoun- tenancing the red-hot iron ordeal in witch-trials, feels him- self 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 naively 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 or- deal, or that of drinking boiling water, is a tempting of God by requiring a miracle.^ 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 compara- tive strength and skill of a couple of professional bravos. In 1248, Don Jayme I. of Aragon, in revising the fran- chises of Majorca, prohibited the judicial combat in both ' Quilibet sciat imperatorem jussisse ut nemo alteram ad duellum pro- vocet. . . . Nemo enim unquam fortiores provocari vidit, sed semper debiliores, et fortiores semper triiimpharunt. — Ibid. P. iv, cap. 19. 2 Rudolphi I. Privileg. (Ludewig Reliq. MSS. T. IV. p. 260.) ' Malleus Maleficar. Francof. 1580, pp. 527-9. 165 THE WAGER OF BATTLE. civil and criminal cases. ^ Within fifteen 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 o de peones), and as reprehensible both as a tempting of God and as a source of perpetual injustice.^ 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 spe- cifically declared not subject to its decision, the body of the plaintiff being its only recognized justification.^ Even in this limited sphere, the consent of both parties was requisite, for the appellant could prosecute in the ordinary legal man- ner, 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.* When to this is added that a preliminary trial was requisite to decide whether the alleged offence was treacherous in its character ' Du Cange, s. v. Batalia. 2 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 lamentira : la otra porque aquel que ha voluntad de se adventurar a esta prueba semeja que quiere tentar 4 Dios nuestro seSor. — Parddas, P. ill. Tit. xiv. 1. 8. 3 Ibid. P. VII. Tit. iii. 1. 2, 3. According to Montalvo's edition of the Partidas (Sevilla, 1491), these laws were still in force under Ferdinand and Isabella. * Tres dias debese acordar al reptado para escoger una de las tres ma- neras 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. 1. 4. Some changes were introduced in these details by subsequent ordinances. ITS DECLINE IN SPAIN. 1 89 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 popu- lar 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. ^ 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 as successful as it deserved to be, and although it was most unwillingly received, still, these provi- sions were lasting, and produced the effect designed. The Ordenamiento de Alcala, issued by Alfonso XL in 1348, which remained in force for nearly two centuries, repeats 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, and that the ordinances of Alfonso the Wise had become part of the national law, to be received as a matter of course.''^ 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 pre- scribed by Charles V., in whose presence the combat took place. ^ ' Muera quito del riepto; ca razon es que sea quito quien defendiendo la verdad recibio muerte. — Ibid. P. vii. Tit, iv. 1. 4. (Preserved in the edition of 1491.) 2 Ordenamiento de Alcala, Tit. xxxil. 11. vii.-xi. ^ Meyer, Institutions Judiciaires, I. 337. 190 THE WAGER OF BATTLE. 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 de- tailed 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,^ he was obliged to admit that he had no ' Nous deffendons a tous les batailles par tout nostra demengne, mes nous n'ostoiis 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 par les autres bones prueves et loyaux, qui ont este en court laye siques a ore. — Isambert, I. 284. Laurifere (Tabl. des Ordonn. p. 17) alludes to an edict to the same pur- port, under date of 1240, of which I can nowhere else find a trace. REFORMS OF ST. LOUIS. I9I power to control the courts of his barons beyond the domains of the crown. ^ Even within this comparatively limited sphere, we may fairly assume from some passages in the Etablissements, 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. 2 It seems, indeed, remarkable that he should even have authorized personal combat between brothers, in crimi- nal accusations, only restricting them in civil suits to fighting by champions,^ 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 pro- hibited to those connected in the seventh degree.* Even this qualified reform provoked determined opposi- There is no reference to it in the Table des Ordonnances of Pardessus (Paris, 1847). ' Se ce est hors I'obeissance le Roy, gage de bataille. (Etab. de St. Louis, Liv. II. chap, xi., xxix., xx5^viii.) Beaumanoir repeats it, a quar- ter of a century later, in the most precise terms, " Car tout cil qui ont justice en le conte poent maintenir lor cort, s'il lor plest, selonc I'ancienne coustume; et s'il lor plest il le poent tenir selonc Testablissement le Roy." (Cout. du Beauv. cap. xxxix. | 21.) And again, "Car quant li rois Lois les osta de sa cort il ne les osta pas des cours a ses barons." (Cap. LXI. 2 Liv. I. chap, xxvii., xci., cxiii. etc. This is so entirely at variance with the general belief, and militates so strongly with the opening asser- tion of the Etablissements (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 prac- tice prevailing in the royal courts and in those of the barons, such as may be seen in other passages (Liv. I. chap, xxxviii., Ixxxi., cxi., etc.). Yet in a charter of 1 263, 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.) 3 Etablissements Liv. i. chap, clxvii. 4 Jur. Provin. Alamann. cap. CLXXI. ^ 10, ii, 12. 192 THE WAGER OF BATTLE. tion. Every motive of pride and interest prompted resist- ance. 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 paint- ings of champions engaged, are marks of high jurisdiction."^ 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, '^ besides fines from those who withdrew after the combat was decreed.^ 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 privi- ' Pilori, echelle, carquant, et peintures de champions combattans sont marques de haute justice. — Instit. Coutum Liv. II. Tit. li. Regie 47. 2 Beaumanoir, op. cit. chap. LXI. W 11, 12, 13. In Normandy, these advantages were enjoyed by all seigneurs justiciers. "Tuit chevaher ettuit sergent ont enleurs terres leur justice de bataille en cause citeaine; et quant li champions sera vaincuz, il auront LX sols et I denier de la recreandise." — 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 th' se 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 to the Olim, T. I. p. 969. 3 See Coutume de Saint-Bonnet, cap. 13. (Meyer, Recueil d'Anciens Textes, Paris, 1874, 1. 175.) STRUGGLES OF THE FEUDATORIES. I93 leges 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 com- pensation, modestly suggesting that he be allowed the same tax on all inquests held under the new law.^ 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. ^ But the loss of money was less important than the curtail- ment of privilege and the threatened absorption of power of which this reform was the precursor. Every step in advan- cing the influence of peaceful justice, as expounded by the jurists of the royal courts, was a heavy blow to the indepen- cience of the feudatories. They felt their ancestral rights assailed at the weakest point, and they instinctively recog- nized that, as the jurisdiction of the royal bailiff's became extended, and as appeals to the court of the Parlement of Paris became more frequent, their importance was dimin- i 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. 2 Actes du Parlement de Paris, I. 407. 17 194 THE WAGER OF BATTLE. ished, 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 con- servative ideas of the thirteenth century that a translation of the first stanza may not be amiss: — Gent de France, mult estes esbahis ! Je di a touz ceus qui sont nez des fiez, etc.* 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 cjuibbles 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 Di- gest led him on all occasions to seek an incongruous alliance ' Recueil de Chants Historiques Fran^ais, I. 218, It is not unreason- able to conjecture that these lines may have been occasioned by the cele- brated 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 Enguer- rand were not baronial, and resisted with the utmost firmness the pressure of the nobles who made common cause with the culprit. On the condem- nation of de Coucy, the Count of Britanny bitterly reproached the king with the degradation inflicted on his order by subjecting its members to inquests. — Beugnot, Olim I. 954. — Graudes Chroniques ann. 1256. REACTION AFTER SAINT-LOUIS. I95 between the customary and imperial law, and Beaiimanoir, 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.^ 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 scep- tre, 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 ;^ 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.^ The next monarch, Phil- ippe-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 antago- nists.* Philippe, however, was too astute not to see that his interests lay in humbling feudalism in all its forms ; while 1 Et se li uns et li autres est si enreues, qu'il n'en demandent nul ame- surement emrer pueent par folic en p^rill 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. Ixiv. ^ I.) Car ce n'est pas coze selonc Diu de soufrir gages en pe- tite querele de meubles ou d'eritages; mais coustume les suefre ^s vilains cas de crieme. — Ibid. chap. vi. ^ 31. 2 Actes du Parlement de Paris, T. I. No. 2269 A. p. 217. Beaumanoir, op. cit. chap. Ixi. § 63. 4 Grandes Chroniques, T. IV. p. 104. 196 THE WAGER OF BATTLE. 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 Parle- ment 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 advan- tage of his opportunities in every way, and the wager of battle was not long in experiencing the effect of his encroach- ments. 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.^ It was probably not long after this that he interdicted the duel wholly'^ — 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.^ 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 1 Isambert, II. 702, 8.06. 2 I have not been able to find this Ordonnance. Lauriere alludes to it (Tabl. des 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 legis- lation of this nature actually occurred is evident from the preamble to the Ordonnance of 1306 — " Savoir faisons que comme 9a en arriere, pour le commun prouffit de nostre royaume, nous eussions defendu generaument ^ tous noz subgez toutes manieres de guerres at tous gaiges de batailles, etc." It is v\^orthy of note that these ordonnances of Philipoe were no longer confined to the domain of the crown, but purported to regulate the cus- toms of the whole kingdom. 8 Willelmi Egmond. Chron. (Matthaei Analect. IV. 135-7.) REFORMS OF PH ILI P PE - LE- B EL . I97 crime and villany/ 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.^ In thus legal- izing 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 attain- able.^ 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 prose- cutor, 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.^ This was equivalent to a formal prohibition. During the whole of the period under ' Dont pluseurs malfaicteurs se sont avancez par la force de leurs corps et faulx engins a faire homicides, traysons et tous autres mal^fices, griefz et excez, pource que quant ilz les avoient fais couvertement et en repost, ilz ne povoient estre convaincuz par aucuns tesrhoings dont par ainsi le malefice se tenoit. — Ordonnance de 1306 (Ed. Crapelet, p. 2). 2 Car entre tous les perilz qui sont, est celui que on doit plus craindre et doubter, dont maint noble s'est trouve deceu ay ant bon droit ou non, par trop contier en leurs engins et en leurs forces ou par leurs ires oultrecuidees. — Ibid. p. 34. A few lines further on, however, the Ordonnance makes a concession to the popular superstition of the time in expressing a convic- tion that those who address themselves to the combat simply to obtain jus- tice may expect a special interposition of Providence in their favor. " Et se I'interesse, sans orgueil ne maltalent, pour son bon droit seulement, requiert bataille, ne doit doubter engin ne force, car le vray juge sera pour lui." ' Ordonnance de 1306, cap. i. * Isambert, II. 850. 17* 198 THE WAGER OF BATTLE. 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/ The only doubtful instance which I have ob- served 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 legiti- macy, and the case became so much obscured by the loss of the record of examinations made, that the Parlement finally shuffled it out of court without any definite decision.^ 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 ' See Les OWm, passim. 2 Actes du Pailement de Paris, I. 446. REFORMS OF PH ILT PP E -L E - B EL . I99 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.^ 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 accom- plished. It was the same with all the variety of cases in- volving 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 arrets being to restrict the custom, as allowed under the Ordon- nance, 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. 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 13 14, obliged to repeat his order of 1296, forbidding all judicial combats during the war, and holding suspended such as were in progress.^ 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 prero- gative was unable to effect, and it is a striking manifestation of his zeal in the cause, that he could turn aside to give at- tention to it amid the preoccupations of the exhausting strug- gle 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 1 Les Olim, III. 381-7.— Vaissette, Hist. Gen. de Languedoc, T. IV., Preuves, 140-44. 2 Isambert, III, 40. 200 THE WAGER OF BATTLE. 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 adul- tery, Godefroy de Paris makes the third, Jeanne, wife of Phil ippe-le-Long, offer at once to prove her innocence by the combat : — Gentil roy, je vous requier, sire, Que vous m'oiez en deffendant. 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 a mon gage prendre.^ 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-le-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.^ Those of Amiens and Ver- mandois 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. ^ A legal 1 Chronique M^trique, I. 6375. 2 Et quant au gage de bataille, nous voullons que il en usent, si comme Ten fesoit anciennement. — Ordonn. Avril I3i5,cap. i. (Isambert, III. 62.) 3 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 pouvo- ient estre prouvez par tesmoings — Ordonn. 15 Mai 13 15. (Isambert, III. 74.) FINAL STRUGGLES OF FEUDALISM. 20I record, compiled about 1325 to illustrate the customs of Picardy, shows by a group of cases that it was still quite com- mon, and that indeed it was the ordinary defence in accusa- tions of homicide.^ The nobles of Champagne demanded similar privileges, but Louis, by 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,^ 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.^ 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 13 18 and 13 t 9, while promising re- forms 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.* 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,^ it is evi- dent 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 VL, issued in 1396, by which he ordered that the testimony of women 1 Ancien Coutumier inedit de Picardie, p. 48 (Marnier, Paris, 1840.) 2 Ordonn. Mai 1315, P. I. chap. 13, (Isambert, III, 90.) 3 Ibid. P. II. chap. 8. (Isambert, III. 95.) * Isambert, III. 196-221. ^ Ordonn. 9 Mai 1330 (Isambert, IV. 369). 202 THE WAGER OF BATTLE. should be received in evidence in all the courts throughout his kingdom.^ Though the duel was thus deprived, in France, of its im- portance as an ordinary legal procedure, yet it was by no means extinguished, nor had it lost its hold upon the confi- dence of the people. An instructive illustration of this is afforded by the well-known story of the Dog of Montargis. Though the learned Bullet^ 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 137 1, 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 saga- city 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 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, un- der pain of being considered to confess the crime charged, and it was decided that the lie was not essential.^ 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 cer- ' Neron, Recueil d'Edits, I. 16. 2 Dissertations sur la Mythologie Frangaise. s De Laurifere, note on Loysel, Instil. Coutum. Lib. vi. Tit. i. Regie 22. ITS DECLINE IN FRANCE. 203 tainty 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. ^ Froissart, how- ever, 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.^ To make the tragedy complete, the Anonyme de S. Denis adds that the miserable Dame de Carrouges, overwhelmed with re- morse at having unwittingly caused the disgrace and death of an innocent man, ended her days in a convent.^ 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.* Still, it was popularly regarded as an unfailing resource. Thus, in 1390, two women were accused at the Chatelet of Paris of sorcery. After repeated torture, a confession im- plicating 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 no- tice 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. ^ • Froissart, Liv. III. chap. xlix. (Ed. Buchon, 1846.) 2 Hist, de Charles VI. ann. 1386. 3 Hist, de Charles VI. Liv. Vl. chap. ix. 4 Buchon, notes to Froissart, II. 537. 5 Registre du Chatelet de Paris, I. 350 (Paris, 1861). 204 THE WAGER OF BATTLE. In 1409, the battle trial was materially limited by an or- donnance of Charles VI. prohibiting its employment except when specially granted by the King or the Parlement;^ and though the latter body may never have exercised the privi- lege 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.^ 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 tne numerous cases in which he assisted as officer of the Earl of Salisbury, Lieu- tenant 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.^ It was about this time that Philippe-le Bon, Duke of Bur- gundy, formally abolished the wager of battle, as far 3.S lay in his power, tliroughout 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.* In Normandy, the legal existence of the judicial duel was ' Que jamais nuls ne fussent receus au royaume de France a faire gages de bataille ou faict d'armes, sinon qu'il y eust gage juge par le roy, ou la cour de parlement. — Juvenal des Ursins, ann. 1409. 2 Monstrelet, Liv. i. chap. Iv. 3 Nic. Uptoni de Militari Officio Lib. ii. cap. iii. iv. (pp. 72-73). 4 Tres Ancienne Cout. de Bretagne, chap. 99, 129-135 (Bourdot de Richebourg). PROLONGED VITALITY. 205 even more prolonged, for it was not until the revision of the coiitumier in 1583, under Henry III., that the privilege of deciding in this way numerous cases, both civil and criminal, was formally abolished.^ 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 re- main upon the statute book to so late a date. The fierce mountaineers of remote Beam clung to it more obstinately, and in the last revision of their code, in 1552, which re- mained unaltered until 1789, it retains its place as a legiti- mate 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.^ 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 ho- micide 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 staff and buckler allowed as arms. The Comte de Charo- lois, Charles-le-Temeraire, 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 ' Ancienne Cout. de Normandie, chap. 53, 68, 70, 71, 73, etc. (Bourdot de Richebourg). 2 Fors et Cost, de Beam, Ruhr, de Batalha (Bourdot de Richebourg, IV. 1093). 18 2o6 THE WAGER OF BATTLE. shaved and the nails pared on both hands and feet; they were dressed from head to foot in a tight fitting suit of hard- ened 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.^ 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 Rene, 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-closj it was duly granted, and on the appointed day the appellant was missing, to the great discomfiture and no little loss of his bail.^ When Charles d'Armagnac, in 1484, complained to the States General of the inhuman destruction of his family, committed by order of Louis XL, the Sieur de Castlenau, whom he accused of having poisoned his mother, the Comtesse d'iVrmagnac, appeared before the assembly, and his advocate denying the charge, presented his offer to prove his innocence by single combat.^ Li 15 18, Henry IL 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.* In 1538, Francis I. granted the combat between Jean du ' Mathieu de Coussy, chap. cxii. — 01. de la Marche, ch. xxii. 2 D. Calmet, Hist, de Lorraine. 3 Jehan Masselin, Journal des Etats de Tours, p. 320. ^ Archives de Pau, <2/W Mazure et Hatoulet, Fors de Bdarn, p. 130. There may have been something exceptional in this case, since the punish- ment was so much more severe than the legal fine of 16 sous quoted above. (Fors de Morlaas, Ruhr, iv.) GRADUAL DISAPPEARANCE. 207 Plessis and Gautier de Dinteville, which would appear to have been essentially a judicial proceeding, since the defend- ant, not appearing at the appointed time, was condemned to death by sentence of the high council, Feb. 20, 1538.^ The duel thus was evidently still a matter of law, which vindi- cated 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 grant- ing 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. Fen- dilles 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 Fen- dilles 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 scaf- fold 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. ' D. Calmet, Hist, de Lorraine. 208 THE WAGER OF BATTLE. Des Gnerres promptly took the hint, and Fendilles suc- cumbed 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. ^ 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 be- fore the Marshals of France, or the governor of his province.^ The custom had died a natural death. No ordonnance was necessary to abrogate it; and, seemingly from forgetfulness, the crown appears never to have been divested of the right to adjudge the wager of battle. Yet even in 1607, Henry, Duke of Lorraine, procured from the Emperor Rodolph II. a confirmation of the privilege which he claimed from of old that all combats taking place between the Rhine and the Meuse should be fought out in his presence.^ In Hungary, it was not until 1492 that any attempt was made to restrict the judicial duel. In that year Vladislas II. prohibited it in cases where direct testimony was procurable ; where such evidence was unattainable, he still permitted it, 1 Brantome, Discours sur les Duels. An account of this duel, pub- lished 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. 2 Fontanon, I. 665. 3 Belitz de Duellis German, p. 15. ITALY FLANDERS. 209 both in civil and criminal matters, and he alleged as his reason for the restriction, the almost universal employment of champions who treacherously sold out their principals. The terms of the decree show that previously its use was general, though he declared it to be a custom unknown else- where.^ Even the precocious civilization of Italy, which usually preferred astuteness to force, could not altogether shake off the traditions of the Lombard law until the six- teenth century. In 1505, Julius II. forbade the duel under the severest penalties, both civil and ecclesiastical, in a de- cretal of which the expressions allow the fair conclusion that until then the wager of battle was still in some cases em- ployed as a legal process within the confines of the pontifical states.^ 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 mid- dle 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.^ Indeed, when the Council of Trent, in 1563, stigmatized the duel as a work of the devil and prohibited ' Quia in duellorum dimicatione plurimse 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 corrum- puiitur. — L. Uladis. II. c. ix. (BaUhyani, I. 531.) 2 Duellorum et gladiatorum hujusmodi usum damnamus et improbamus, et in terris Rom. Ecclesiae mediate vel immediate subjectis . . . . e qua- cunque causa, etiam a legibus permissa, fieri omnino prohibemus. — Can. Regis Pacifici, De Duello, in Septimo. 3 Reperio tamen indubie vulgarem purgationem sive duellum in casu sine scrupulo admittendum quum publicae salutis caussa fiat : et istud est admodum laudabile. — Damhouder. Rer. Crimin. Praxis cap. xlii. No. 12. (Antverp. 1601.) iS* 2IO THE WAGER OF BATTLE. all potentates from granting it under pain of excommunica- tion and forfeiture of all feudal possessions,' the state Coun- cil 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.^ In this view, the Council of Namur agreed.^ In Russia, under the code known as the Ulogenie Zako- nof, 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 Sobornoie Ulogenie. The more enlightened branch of the Slavonic race, however, the Poles, abolished it in the fourteenth century; but Maciei- owski states that in Servia and Bulgaria the custom has been preserved to the present day.* In other countries, the custom likewise lingered to a com- paratively 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 ' Concil. Trident. Sess. xxv. De Reform, cap. xix. Detestabilis duel- lorum usus fabricante diabolo introductus, 2 Anne is usus relinquendus sitarbitrioprincipis? Videtur quod sic, et respiciendum esse principi quid discernat. — Ap. le Plat, Monument. Con- cil. Trident. VII. 19. 3 Le Plat, VII. 75. < For these details I am indebted to Du Boys, Droit Criminel des Peu- ples Modernes, I. 611-17, 650. SCOTLAND. 211 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 want- ing-' Still the '^perfervidum ingenium Scotorum" clung to the arbitrament of the sword with great tenacity. 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 re- marked, " 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 11. , 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 Tul- libardin, 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 privi- lege of proving the charge on Bothwell's body, but the latter delayed on various pretexts, until Queen Mary was able to prohibit the combat.^ . In England, the resolute conservatism, which resists inno- ' Statut. Robert! III. cap. iii. 2 Knox's Hist, of Reform, in Scotland, pp. 322, 446-7. 212 THE WAGER OF BATTLE. vation to the last, prolonged the existence of the wager of battle until a period unknown in other civilized nations. 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. ^ Even a century later, legislation was obtained to prevent its avoidance in certain cases. The ''Statute of Gloucester" (6 Ed. III. 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 i486, 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. ^ 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.^ ' Spelman (Gloss, s. v. Camptis) gives a Latin translation of this interesting document from a MS. of the period. 2 3 Henr. VII, cap, I. 8 John Myrc's Instructions for Parish Priests, p. 26. (Early English Text Society, 1868.) ENGLAND. 2I3 With the advance of civih'zation and refinement, the cus- tom gradually declined, but it was not abolished. In 1571 a case occurred, as Spelman says, '^non sine magna juris- consultorum perturbatione," when to determine the title to an estate in Kent, Westminster Hall was forced to adjourn to Tothill Fields, and all the forms of a combat were literally enacted, though an accommodation between the parties saved the skulls of their champions.* A curious custom, peculiar to the English jurisprudence, allowed a man indicted for a capital offence to turn ^'ap- prover," by confessing the crime and charging or appealing any one he chose as an accomplice, and this appeal was usually settled by the single combat. This was sufficiently frequent to require legislation as late as the year 1599, when the Act 41 Eliz. chap. 3 was passed to regulate the nice ques- tions 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.^ Even in the seventeenth century, instances occurred of the battle ordeal between persons of high station. In civil suits the last case on record, I believe, is that of Claxton V. Lilburn, which shows curiously enough the indis- position to put an end to what was regarded by common con- sent as a solecism. A valuable estate in Durham, said to be worth more than ;^2oo 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, 1 Spelman, Gloss, p. 103. 2 Hale, Pleas of the Crown, II. chap. xxix. According to Pike (Hist, of Crime in England, I. 286 sq. ) the records show 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. 214 THE WAGER OF BATTLE. 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 suf- ficient 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 peti- tioned the Long Parliament, setting forth that he had repeat- edly claimed his right of battle and had produced his cham- pion, 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.^ It was not enacted however, and Sir Matthew Hale, writing towards the close of the century, feels obliged to describe with con- siderable minuteness the various niceties of the law, though he is able to speak of the combat as " an unusual trial at this day. "2 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 ad- ministration 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 ' Rushworth's Collections, Vol. I. P. I. pp. 788-90, P. III. p. 356. 2 Hale, loc. cit. ENGLAND. 215 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. *'Irise," said he, "to support that great pillar of the constitution, the ap- peal for murder ; I fear there is a wish to establish a pre- cedent 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.^ Something was said about reforming the law through- out 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 jurispru- dence. 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 every appearance of pro- bability. 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 argu- ment. Lord EUenborough, 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.^ The curious crowd was sorely disap- pointed when the appellant withdrew, and the chief justice ' Campbell's Lives of the Chancellors of England, VI. 112. 2 I. Barnewall & Alderson, 457. — In April 1867 the journals record the death at Birmingham of WiUiam Ashford the appellant in this suit. Thornton emigrated to America, and disappeared from sight. 2l6 THE WAGER OF BATTLE. was relieved from the necessity of presiding over a gladiato- rial exhibition. A similar case occurred almost simulta- neously in Ireland, and the next year the act 59 Geo. III. chap. 46, at length put an end to this last remnant of the age of chivalry,^ 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 pro- vince of Massachusetts Bay, Dunning protested so vehement- ly. 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 privi- lege to demand the wager of battle, so he submitted to be tried by a jury, and was duly condemned and executed.^ 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 cham- pions ; but the most conservative State in this respect appears to be South Carolina. An act of that colony, in 1712, enu- merating 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.^ So Chancellor Kilty, in his Report on English Statutes applica- ble to Maryland, made in 181 1, 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.* ' Campbell, Chief Justices, III. 169. 2 I. Harris and McHenry's Md. Reps. 227. 3 Cooper's Statutes at Large of S. C. II. 403, 715. * Kilty's Report on English Statutes, Annapolis, 181 1, p. 141. III. THE ORDEAL The Wager of Battle, in its origin, was simply a mode of regulating, under conditions of comparative fairness, the primitive law of the strongest. Mingled with this, as we have seen, there came to be an appeal to the Divine Power, by which men persuaded themselves that the Deity would intervene, and would conduct the combat to an issue in ac- cordance with his eternal justice. This belief, which formed at various periods an element more or less important in the battle ordeal, was the sole principle on which were based the other forms of the judgment of God ; and the distinction thus established between these latter and the judicial combat requires them to be considered separately. We may as- sume, indeed, that the other ordeals 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 an omnipotent and just Godhead, whether single or multiform, has grown suffi- ciently 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 Omnipo- tence 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 19 2l8 THE ORDEAL. 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 reli- gious history of almost all races, that a belief in a Divine Being is accompanied with the expectation that special mani- festations 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 inscru- table ways of his Creator by the touchstone of his own limited reason. Thus miracles come to be expected as mat- ters 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 com- mitted 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 sor- rows at the feet of the Great Judge, making a merit of abne- gating the reason which, however limited, has been bestowed to be used and not rejected. In the Carlovingian Capitula- ries there occurs a passage, dictated doubtless by the spirit of genuine trust in God, which well expresses the pious sen- timents 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 v«4iich they cannot know shall be reserved for Divine judgment. Whom God hath kept for his own judgment may nbt be condemned by human means. ' Therefore judge nothing before the time, until the Lord come, who both will CHINA. 219 bring to light the hidden things of darkness, and will make manifest the counsels of the hearts.' "^ (i Cor. iv. 5.) 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 fur- nishes 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 imagi- native 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 prac- tised, 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."^ 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 wit- nesses, and even oaths are neither required nor admitted in judicial proceedings.^ ' Capit. Lib, vii. cap. 259. 2 Shu-King, Pt. IV. ch. 4, 27 \ 21 (after Goubil's translation). 8 Staunton, Penal Code of China, p. 364. 220 THE ORDEAL. These teachings, however, are too refined and sublimated' for ordinary human nature, and along-side of official Confu- cianism, Taoism and Buddhism flourish with a wealth of legends and marvels that may fairly rival the most exuberant fancies of Teutonic medievalism. In the popular mind, therefore, the divine interposition may perpetually be ex- pected to vindicate innocence and to punish crime, and moral teaching to a great extent consists of histories illus- trating this belief in all its phases and in every possible con- tingency 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 flag- staff broke in twain with a loud noise, the upper portion falling upon the guilty man and killing him, while the inno- cent 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.^ 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 vio- 1 Livre des Recompenses et des Peines, trad, par Stan. Julien, Paris, 1835, p. 220. JAPAN AFRICA. 221 lently 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 bastina- doed to teach him that wives should be more closely watched, and is presented with a small sum of money wherewith to purchase another spouse.^ 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 medieval 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."'^ 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 Kalaba- rese, for instance, 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 ' W. T. Stronach in "Journal of the North China Branch of the Royal Asiatic Society," New Series, No. 2, Dec. 1865, p. 176. 2 Griffis's "Mikado's Empire," New York, 1876, p. 92. 19* 222 THE ORDEAL. of the white line towards him demonstrates his innocence, or an inclination of the black line in his direction pro- nounces 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 capi- tal cases, or even when sickness is attributed to hostile machi- nations, 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.^ 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 re- quiring 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 mani- festation 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 eager- ness 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, ' Hutchinson's Impressions of Western Africa, London, 1858. AFRICA. 223 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.^ 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 talioiiis 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 re- quired 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. ^ 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 em- ployed as a guidance for the future in all important under- takings, and as means to discover the guilt or the innocence of those accused of crime. The principal of these is the horru, 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 favor- able ; 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 favor- able, if it dies, adverse. Or an oil extracted from the bengye wood is administered to a hen, and the same conclu- sions are drawn from its survival or death. ^ ' Examination of the Toxocological 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). 2 London Athenseum, May 29, 1875, ?• 7i3' '^ Schweinfurth's Heart of Africa, New York, 1874, Vol. XL pp. 32-36, 224 THE ORDEAL. In Madagascar the poison ordeal is less humanely admin- istered, 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 satisfac- tory 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 perse- cutions of 1836 and 1849 directed against the Malagasy Christians, many of the converts were tried with the Tangena nut, and numbers of them perished.^ 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 plan- tain in his hand, while invoking his god. The deity there- upon conducts the spirit of the thief over the water, and his reflection is recognized by the priest.^ 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- 1 Philadelphia Evening Bulletin, March 7, 187 1. — Ellis's Three Visits to Madagascar, chap. I. vi. 2 Ellis's Polynesian Researches, Vol. I. ch. 14. PRE-ARYANS OF INDIA. 22$ juice is squeezed over them, and the one whose shell first moves under this gentle^stimulant is declared the winner/ 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.'^ 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 here- after, Master Anselm proposed to identify the thief of the sacred vessels of Laon, are not unlike the ceremony used ' Konigswarter, op. cit. p. 202. — E. B. Tylor, in Macmillan's Maga- zine, July, 1876. 2 Macpherson's Memorials of Service in India, London, 1865, p. 2>t^. — See also p, 364 for modes of divination somewhat akin to these. 226 THE ORDEAL. when a district is ravaged by tigers or by pestilence, which is regarded as a retribution for sin committed by some in- habitant, 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 an- other 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.^ Reverting to the older races, we find no trace of formal ordeals in the fragmentary remains out of which Egyptolo- gists thus far have succeeded in reconstructing the antique civilization of the Nile valley, but the intimate dependence of man on the gods, and the daily interposition of the latter in human affairs, taught by the prophets of the temples and reverently accepted by the people, render it almost certain that in some shape or other the divine judgment was fre- 1 Lieut. Shaw, in Asiatic Researches, IV. 67, 84. EGYPT ASSYRIA. 227 qiiently consulted in judicial proceedings where human wis- dom was at fault. This probably took the form of reference to the oracles which abounded in every Egyptian nome. Indeed, a story related by Herodotus would seem to show that such an interpellation of the divine power was habitual in prosecutions when evidence of guilt Avas 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 ac- quitted according to the response. On ascending the throne, he paid great respect to the shrines where he had been con- demned, and neglected altogether those where he had been absolved, saying that the former gave true and the latter lying responses.^ 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 suf- ficiently 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 administra- tion of justice. The nearest approach however to the prin- ciple 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, i Herod. II, 174. 228 THE ORDEAL. 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 w^as payable into the treasury of some temple.^ Among the Hebrews, as a rule, the interposition of Yah- veh 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 medieval 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 deci- sion of Yahveh.^ 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 pro- bable that the Urim and Thummin were lots, and that they were not infrequently used, as in the cases of Achan and ' Oppert et M6nant, Documents Jurid. de I'Assyrie, Paris, 1877, pp. 93, 106, 122, 136, 191, 197, 209, 238, 242, 246, 250, 253. 2 Numb. xxvi. 55-6; xxxiii. 54, — Joshua xviii. 8-11; xix. I, lO, 17, 24,51. — I. Chron. xviii. 5-18, 31. — Nehem. x. 34; xi. i. JUDAISM ISLAM. 229 Jonathan.^ And the popular belief in the efificacy of the lot is manifested in Jonah's adventure {Jonah \. 7) when the sailors cast 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 aban- doned 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 adminis- tered 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.^ The teachings of Mahomet were too directly derived from Judaism for him to admit into his jurisprudence any formal system which depended on miracles to establish justice be- tween man and man whenever Allah might be invoked to manifest his power. Like the Jews, however, he taught • 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. 2 Mishna, Sota ix. 9; Wagenseilii Comment, op. cit. vi. 4. (Ed, Su- renhus. 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, 20 230 THE ORDEAL. that the constant supervision of the divine power is sponta- neously 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 compul- sion, 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 sys- tem. In the absence of evidence, the oath of the defendant was final, and this incitement to perjury could only be re- pressed 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 fre- quently 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 evi- dence, the defendant was ready to take the oath, when Ma- homet 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 an- other case, when two men were quarrelling over an inherit- ISLAM. 231 ancC; 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.' These cases do not bear out the tradition that, when the Prophet was perplexed beyond his ability, he had the re- source of appealing to the angel Gabriel for enlightenment. There is one legend respecting him, however, which mani- fests 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 judg- ment-seat, and reported that they had found nothing but the smoke and stench of Gehenna ; whereupon Mahomet pro- nounced that Eblis had carried off the corpse of the guilty, and that the accused was innocent.^ 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 ' Mishcat ul-Masabih, MaUhews's Translation, Calcutta, 18 10, vol 11. pp. 221-31. 2 Loniceri Chron, Turcic. Lib. 11. cap. xvii. 232 THE ORDEAL. heated, the accused applies his tongue, his guilt or innocence being manifested by his suffering, or escaping injury.^ 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.'^ It is among the Aryan races that we are to look for the fullest and most enduring evidences of the beliefs which de- veloped into the ordeal, and gave it currency from the rudest stages of nomadic existence to periods of polished and en- lightened 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 machina- tions of Ahriman and his Daevas, their power to do so de- pending only upon the righteousness of him who needed assistance.^ 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 Avould 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 com- mon 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 frag- ments of the Avesta, which embody what remains to us of the prehistoric law of the ancient Persians, we find a refer- ence 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: — • Konigswarter, op. cit. p 203. 2 Collin de Plancy, Dictionnaire Infernal, s. v. Cdromancie. 3 The Dinkard, translated by PeshoUm Dustoor Behramjee Sunjana, vol. II. p. 65, Bombay, 1876. i PARS ISM. 233 *' 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 !"^ Possibly also a reminiscence of the ordeal of fire 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 Hor- mazd, " the devouring flame became as water, in the midst of which slumbered the pearl of Zardusht."^ 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 pour- ing of molten metal on the body of the patient, though sometimes the heated substance was applied to the tongue or the feet."'* 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 Sassa- nids. Eighty thousand heretics rem.ained obstinate until Sapor I. was so urgent with his Magi to procure their con- version that the Dustoor Adurabad offered to prove the truth of orthodoxy by suffering eighteen pounds of melted ' Vendidad, Farg. iv. 156-8. If Prof. Oppert is correct in his render- ing 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 at- tributable to this record of primaeval Aryan thought. See " Records of the Past," VII. 109. 2 The Dabistan, Shea and Troyer's translation, I. 219. "^ Quoted from the Dinkard by Dr. Haug in Arda-Viraf, p. 145. 20* 234 THE ORDEAL. copper to be poured over his naked shoulders if the dis- senters 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.^ Among the Hindu Aryans so thoroughly was the divine interposition expected in the affairs of daily life that, accord- ing to the Manava Dharma Sastra, if a witness, within a week after giving testimony, should suffer from sickness, or under- go 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.^ As among the Zends, there was, therefore, no inducement to abandon the ancestral resource of the ordeal as an infallible solution of all doubtful questions. In the various forms in which we find the ordeal among the Aryans of Europe, it thus main- tained its place as a recognized resource of Hindu juris- prudence from the earliest records until British supremacy swept it away within the recollection of the present gene- ration. 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.^ 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. 1 Hyde Hist. vet. Persar. Relig. p. 280 (Ed. 1760). See also, Dabis- tan, I, 305-6. 2 Bk. vn. St. 108. 3 Monier Williams, Indian Wisdom, 2d ed. p. 360, THE HINDUS. 235 *' 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. ^ The purrikeh, parikyah, or ordeal, is prescribed in the modern 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 medieval 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.^ 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 trans- migration whereby the good and evil of the universe dis- tributed itself automatically, without supervision from the thirty-two heavens. We have seen the influence which 1 Man. Dharm. Sast. viii, 1 14-16, 190. The resemblance is note- worthy between the case of the Rishi Vatsa and that of Lambert of Tus- cany, as referred to in the preceding essay. 2 See Halhed's Gentoo Cede, chap. iii. W 5, 6, 9, lo; 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), and extracts from. the Code of Yajnavalkya (Ibid. p. 402). 236 THE ORDEAL. Buddliism exercised on Chinese materialism, and Tibetan Shamanism could hardly expect to escape it. Thus in Tibet we see 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/ The Hellenic tribes had already, in prehistoric times, reached a point of mental development superior to the grosser superstitions which find their expression in the ordeal as a recognized instrument of judicial investigation. That they brought it with them from the East, however, and that some recollection of it 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 ancestral 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.'^ The poison ordeal, also, was not wholly ob- solete. The G?eum or temple of the broad-breasted Earth, Gaea Eurysternus, at -^gae in Achaia, was served by a priest- ess 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 WTOUght her ' Duclos, Mem. sur les Epreuves. 2 Smith's Diet, of Antiq. s. v. Mai'tyria. ^ GREECE — ROME. 237 punishment if she was guilty. The same temple also fur- nished 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.^ Even these traces of the ancient customs of the race dis- appear 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 he^ad with a stone under a somewhat similar invocation.^ 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 Cannee, P. Cor- nelius 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. ^ 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 manifes- tations were principally vouchsafed in favor of the Vestals, as when the pupil of Emilia was accused of having allowed » Pausan. VII. xxv. 8. 2 Festus s. V. Lapidem. — Liv. I. 24; xxi. 45. — Polyb, lir. xxv. 6-9. — ■ Aul. Gell. I. 21. 3 Liv. XXII. 53. Cf. Fest, s, v. Prtxjurationes. See an example of a similar oath taken by a whole army, Liv. ii. 45. 238 THE ORDEAL. 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 un- chastity, 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.^ 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 in- nocent, 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. The barbarian Aryans who occupied Europe brought with them the ancestral beliefs in a form more easily recog- nizable 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 super- natural 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 judg- ments. Sen Mac Aige was subject to these marks, but witli 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 ' Val. Maxim. I. i. 7; viii. i. 5. — Ovid. Faster, iv. 305 sqq. THE CELTS. 239 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 mani- festing 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 com- mitted. 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. ^ 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 : — ©a^craXect KeXtoI 7rora/!x£ ^nXfifAovt 'p^vip K. r. X. 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. 2 ' Senchus Mor, I. 25, 195. Comp. Gloss, p. 199. 2 Anthol. IX, 125.— Cf. Julian. Imp. Epist. xvi. — Claud, in Rufinum II, no, — Pliny describes (Nat, Hist. vii. ii.) a somewhat similar custom ascribed to the Pselli, an African tribe who exhaled an odor which put 240 THE ORDEAL. The Teutonic tribes, anterior to their conversion, likewise exhibit the ordeal as a recognized resource in judicial pro- ceedings. The Norraena branch, as we have seen, cultivated the holm-gang, or duel, with ardor, and they likewise em- ployed 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 for- sworn himself the turf would fall on him as he passed beneath it.^ The Germanic tribes, in their earliest jurisprudence, afford similar evidence of adherence to the customs brought from the farther East. The most ancient extant recension of the Salic law may safely be assumed as coeval with the con- version of Clovis, as it is free from all alkisions 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.^ 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!"3 The Slavonians were not behindhand in maintaining the ordeal as a judicial process. 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 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 adulte- rine it was bitten. Another version of the same story is given by ^lian (De Nat. Animal, i. Ivii.). ' 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. 2 First Text of Pardessus, Tit. liii. Ivi. 3 Decret. Tassilon. Tit. ii. \ 7. THE BARBARIANS. 24I was the final resort in all prosecutions for murder, theft, and false accusation.^ 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 Sara- cens, that King Egiza, with the sanction of a Council of To- ledo, issued an edict commanding the employment of the ceneum or ordeal of boiling water.^ 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 indi- viduals 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 J Annal. Saxo ann. 1039. — Ruskaia Prawda, art. 28 (Esneaux, Hist, de Russie, I. 181), 2 L. Wisigoth. VI. i. 3. 21 242 THE ORDEAL. against a man of different race/ Under these circumstances, in a large proportion of cases there could be no legal evi- dence attainable, and recourse was had of necessity to the Judgment of God. Even where 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 dis- posed 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 Gccided 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 looo, 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.^ The most efficient cause of the increased use of the or- deal 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 unquestion- able, warrant being easily found for this in the Jewish prac- tices 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. 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 > Lib. adv. Leg. Gundobadi iv. vi. 2 Senatus Consult, de Monticolis Walise c. ii. FAVORING INFLUENCE OF THE CHURCH. 243 flocks. We are not without evidence of the manner in which the church thus favored the use of this Christianized pagan- ism, and introduced it along with Christianity among peoples to whom it was previously unknown. Thus among the Turanian Majjars, the laws of King Stephen, promulgated in toi6, 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. ^ So, when in the twelfth century, Bishop Geroldus converted the Slavs of Mecklenburg, they were at once forbidden to settle ques- tions by oaths taken on trees, fountains, and stones, as be- fore, but were required to bring their criminals before the priest to be tried by the hot iron or ploughshares.'^ Under the Crusaders, the ordeal was carried back towards the home of its birth, even contaminating the Byzantine civiliza- tion, and various instances of its use are related by the histo- rians 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 ascer- tained 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 corsnoed ox swallowing bread or cheese, of the Eucha- rist, 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 power from the influence exerted over the mind of the patient. 1 Batthyani Leg. Eccles. Hung. T. I. pp. 439, 454. 2 Anon. Chron. Slavic, cap. xxv. (S. R. German, Septent. Lindenbrog. P- 215.) 244 THE ORDEAL. BOILING WATER. The ordeal of boiling water {ceneitni, judicium aquce fer- ventis, 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 in the ninth century. It combines, he says, the elements of water and of fire : the one representing the deluge — the judgment in- flicted 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.^ 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 ;^ 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 breath being counted as single, and the distance to the elbow as triple.^ 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 ceneimif and the offer was accepted. Next morning • Hincmar. de Divert. Lothar. Interrog. VI. 2 Dooms of King ^Ethelstan, iv. cap. 7. 3 Adjuratio ferri vel aquse ferventis (Baluz. II. 655). BOILING WATER. 245 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 popu- lace 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. Plung- ing 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 ad- miring 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. ^ This was a volunteer experiment. As a means of judicial investigation, the church, in adopting it with the other or- deals, 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 I De Gloria Martyrum Lib. i. cap, 81. — Injecta manu, protinus usque ad ipsa ossium internodia caro liquefacta defluxit. 246 THE ORDEAL. the patient at sunrise, immediately after the prescribed ablu- tions, and while yet fasting.^ 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 cele- brated, and the accused was required to partake of the sacra- ment 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 con- trol 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 !"^ After the hand had been plunged in the seething caldron, it was carefully enveloped in a cloth, sealed with the signet 1 Yajnavalkya (Asiatic Researches, I. 402). 2 Formulae Exorcismorum, Baluz. II. 639 sqq. Various other formulas are given by Baluze, Spelman, Muratori, Goldast, and other collectors, all manifesting the same unconscious irreverence. BOILING WATER. 24-7 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.^ The justification of this mode of procedure by its most able defender, Hincmar, Archbishop of Rheims, is similar in spirit to this 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 dis- gusting details of the quarrel, council after council assem- bling 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 Teutbergse," 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 pre- cede the terrible Judge will be harmless to the Saints, and will burn the wicked as in the Babylonian furnace of old. "^ 1 Doom concerning hot iron and water (Laws of ^thelstan, Thorpe, I. 226); Baluze, II. 644. 2 " Quia in aqua ignita coquuntur culpabiles et innoxii liberantur in- cocti, quia de igne Sodomitico Lot Justus evasit inustus, et futurus ignis qui prseibit terribilem judicem, Sanctis erit innocuus et scelestos aduret, ut olim Babylonica fornax, quse pueros omnino non contigit." — Intenog. vi. 248 THE ORDEAL. In the Life of St. Ethelwold is recorded a miracle, which, though not judicial, yet, from its description by a contem- porary, affords an insight into the credulous faith which rendered lawgivers ready to intrust the most important inter- ests 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.^ 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.^ 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.^ In Iceland, it was employed from the earliest times;* in the primitive jurisprudence of Russia its use was enjoined in cases of minor importance, ° and it continued in vogue throughout Europe until the gene- ral 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 pre- scribed in certain cases by the municipal laws in force ' Vit. S. ^thelwoldi c. x. (Chron. Abingd. II. 259. M. R. Series.) 2 First text of Pardessus, Tit. liii., Ivi. ; MS. Guelferbyt. Tit. xiv., xvi. ; L. Emend. Tit. lv.,lix. 3 L. Frision. Tit. iii. ; L. ^thelredi iv. \ 6; L. Lombard. Lib. i. Tit. xxxiii. \ I. 4 Gnigas, Sect. vi. cap, 55. 5 Ruskaia Prawda, Art. 28. BOILING WATER. 249 throughout the whole of Northern and Southern Germany/ and as late as 1282 it is specified in a charter of Gaston of Beam, conferring on a church the privilege of holding or- deals.^ At a later date, indeed, it was sometimes adminis- tered 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.^ The modern Hindoo variety of this ordeal consists in casting a piece of gold or a metal ring into a vessel of boil- ing ^-^ Herod. I. 116. 2 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. 1 18-19). 3 Manu Bk. viii. — Ayeen Akbery, Tit. Beyhar, Vol. II. p. 494. — Hal- hed's Code of Gentoo Laws, chap, xviii. 32 374 TORTURE. unfailing resort in all doubtful cases. When we turn to the Aryans who established themselves in Europe and aban- doned the ancestral custom of the ordeal, we find it at once replaced by the use of torture. Thus in Greece it was tho- roughly 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 anyone 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 Max- imus as occurring among the Hellenic nations.^ The inhu- man 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 con- fidence, legal proceedings m.ust frequently have turned upon their evidence, in both civil and criminal cases. Their evi- ' Lib. III. cap. iii. IN GREECE. 375 dence, 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. Con- sequently, the torturing of slaves formed an important por- tion 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, le_aving few traces on the institutions of other races, save 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 hog- skin whip, and the injection of vinegar into the nostrils.^ ' Aristophanes (i?<2;2<^, 617) recapitulates most of the processes in vogue. Aiachos. koX vZq Saj-avi^aj ; Xanthias, ntcvna rponov, Iv iCKlfxani S'no-ttf, Kp£iJi.aa-a<;f vs-TOi)(^l^i fxa-TTiyZv, UpooVf a-TfsS'KZv, In S''si? ra? pivxc 0^01; Ij/p^soev, The best summary I have met with of the Athenian laws of torture is in Eschbach's "Introduction a I'Etude du Droit," § 268. 376 TORTURE. In the earlier days of Rome, the general principles govern- ing 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 praetor 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 tobe the instrument of a conspiracy against his life. Dis- sembling his fears for the moment, he soon caused the un- lucky praetor to be seized while presiding at his own tribunal, and after torturing him like a slave without extracting a con- fession, put him to death. ^ 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, however, which had regulated the exercise of power, so long as it belonged to the people, were feeble barriers to the pas- sions and fears of Csesarism. 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 • Sueton. August, xxii. IN ROME. 377 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 shudder- ing inhabitants pointed out a spot at 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.^ 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 beastly Claudius made it a point to be present on such occasions.^ 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 Tibe- rius, a citizen removed the head from a statute 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 interpreta- tion 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 ' Sueton. Tiberii Ixii. 2 Ibid. Caii xxxii. — Claud, xxxiv. 32* 378 TORTURE. allowing the slaves on his farm to pay him honors on the anniversary which had been sacred to Augustus.^ 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 vota- ries 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 ago- nies illuminated his unearthly orgies.^ 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 tor- ture.^ 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.* ' Sueton. Tiber. Iviii. 2 Tacit. Annal. xv. xliv. 3 Lactant. de Mortib. Persecut. cap. xiii. * 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 prsecipit. 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 crucia- tibusque variis subjectus, novies adversarium gloriosa confessione vicisti. .... Nihil adversus te verbera, nihil ungulse, nihil ignis, nihil ferrum, IN ROME. 379 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 com- pares her fortitude with the cowardice of noble Romans, who betrayed their nearest relatives- and dearest friends at the mere sight of the torture chamber.^ 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 j''^ 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 proceed- ing with the legal torments.^ 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 igno- miniously.* The same emperor published anew a rescript of Marcus Aurelius declaring the exemption of patricians and of the higher imperial officers, with their legitimate descend- ants to the fourth generation;^ and also a dictum of Ulpian asserting the same privilege in favor of decurions, or local town councillors, and their children.^ In 376, Valentinianwas nihil varia tormentorum genera valuerunt." (Ibid. cap. xvi.) Ample details may be found in Eusebius, Hist. Eccles. Lib, v. c, i, vi. 39, 41, VIII. passim, Lib. Martyrum; and in Cyprian. Epist x. (Ed. Oxon. 1682). I Tacit. Annal. XV. Ivi. Ivii. 2 L. 10 ^ 6, Dig. XLViii. xviii. 3 L. 12, Dig. XLViii. xviii. (Ulpian.) * Const. 8 Cod. ix. xli. (Dioclet. et Maxim.) 5 Const. II Cod. IX. xli. 6 ibid. 2 i. 380 TORTURE. obliged to renew the declaration that decurions were only liable in cases oi inajestatis, and in 399, Arcadius and Hono- riiis found it necessary to explicitly declare that the privilege was personal and not official, and that it remained to them after laying down the decurionate.^ Theodosius the Great, in 385, especially directed that priests should not be subjected to torture in giving testimony,^ the significance of which is shown by the fact that no slave could be admitted into holy orders. The necessity of this constant renewal of the law is indi- cated 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 in- flicted by any tribunal in cases of treason, and that in other accusations it could be authorized by the order of the em- peror.^ This power was early assumed and frequently exer- cised. 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 admin- ister torture indiscriminately, not only to free citizens, but even to knights and patricians.* So Domitian tortured a man of praetorian rank on a doubtful charge of intrigue with a vestal virgin,^ and various laws were promulgated by seve- ral emperors directing the employment of torture irrespective of rank, in some classes of accusations. Thus, in 217, Cara- calla authorized it in cases of suspected poisoning by women. ^ Constantine decreed that unnatural lusts should be punished by the severest torments, without regard to the station of the offender.'^ Constantius persecuted in like manner sooth- sayers, sorcerers, magicians, diviners, and augurs, who were to be tortured for confession, and then to be put to 1 Const. 16 Cod. IX. xli. 2 Const. 8 Cod. i. 3. 3 Const. 4 Cod. IX. viii. * Dion. Cass. Roman. Hist. Lib. LX. (Ed. 1592, p. 776.) 2 Sueton. Domit. cap. viii. To Domitian the historian also ascribes ihe invention of a new and infamously indecent kind of torture (Ibid. cap. x.). 6 Const. 3 Cod. IX. xli. 7 Const, 31 Cod. ix. ix. IN ROME. 381 death with every refinement of suffering.^ So, Justinian, under certain circumstances, ordered torture to be used on parties accused of adultery^ — 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.^ 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 pro- perly 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.* A rescript of Constantine, in 314, decrees that in cases of majestatis, 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.^ This enlight- ened 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 ex- tension 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. • Const. 7 Cod. IX. viii. 2 Novell, cxvii. cap. xv. \ i. 3 Hieron. Epist. i. ad Innocent. ■* Const. 17 Cod. IX. ii.— Const. 10 Cod. ix. xlvi. 5 Const. 3 Cod. IX. viii. 382 TORTURE. Paul proclaimed himself a Roman, the preparations for his torture were stopped forthwith, and he was examined by regular judicial process.^ 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 conse- quence 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;^ 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 bear- ing false witness or of being suborned.^ It may, therefore, readily be imagined that when the evi- dence 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.* 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, stew- ards, and in other confidential positions, were privy to almost 1 Acts. XXII. 24 sqq. 2 L, 21 g 2, Dig. xxii. v. 3 Novell, xc. cap. i. ^ i. 4 Quaestiones neque semper in omni causa et persona desiderari debere arbitror; et cum capitalia et atrociora maleficia non aliter explorari et in- vestigari possunt, quam per servomm qusestiones, efficacissimas esse ad requirendam veritatem existimo et habendas censeo. — L. 8, Dig. XLyiii. xviii. (Paulus). IN ROME. 383 every transaction of their masters, we can readily see that scarce any suit could be decided without involving the testi- mony 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. ^ 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 ;^ 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.^ 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 rela- tionship 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.* 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,^ A slave could not be tortured in a prosecution against the father or mother of the owner, or even against 1 L, 9, Dig. XLVIIT, xviii. (Marcianus.) 2 L. 9 I I, Dig. XLViii. xviii. — L. i ^ 16, Dig. XLViii. xvii. (Severus) — L. I § 18, Dig. XLVIII. xviii. (Ulpian.) 3 Pauli Lib. v. Sentt. Tit. xvi. ^ 7. — The same principle is involved in a rescript of the Antonines. — L. I ^ 14, Dig. XLVIII. xvii. (Severus.) 4 L. I ^ 7, Dig. XLVIII. xvii. The expression "in caput domini" applies as well to civil as to criminal: cases, — Pauli Lib. v. Sentt. Tit. xvi. I 5. 5 L. 3, Dig. XLVIII. xviii. — Const. 13 Cod. ix. xli. 384 TORTURE. the guardian, except in cases concerning the guardianship;' though the slave of a husband could be tortured against the wife.^ Even the tie which bound the freedman to his patron was sufficient to preserve the former from being tortured against the latter;^ 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 ;* 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. ^ This policy of the law in protectmg masters from the evi- dence 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 prose- cuting 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.^ Sub- sequent emperors were not reduced to these subterfuges, for 1 L. 10 § 2, Dig. XLViii. xviii. — Const. 2 Cod. ix. xli. (Sever, et Antonin. ami. 205). 2 L. I ^ II, Dig. XLVIII. xvii. 3 L. I ^ 9, Dig. XLVIII. xvii. 4 L. I § 13, Dig. XLVIII. xvii. — Pauli Lib. v. Sentt. Tit. xvi. ^ 9. 5 Const. 10 Cod. IX. xli, (Dioclet. et Maxim.) 6 Tacit. Annal. II. 30. See also ill. 67. Somewhat similar in spirit was his characteristic device for eluding the law which prohibited the exe- cution of virgins (Sueton. Tiber. Ixi.), IN ROME. 385 the principle became established that in cases of majestatis, even as the freeman was liable to torture, so his slaves could be tortured to convict him/ 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.^ 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 con- stitutions.^ 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 Se- verus specified adultery, fraudulent assessment, and crimes against the state as cases in which the evidence of slaves against their masters was admissible.* The provision re- specting adultery was repeated by Caracalla in 214, and afterwards by Maximus,^ and the same rule was also held to be good in cases of incest.^ It is probable that this increas- ing 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 pro- pitiate public favor by proposing a law to forbid the testi- mony of slaves against their masters except in cases of ma- ' This principle is embodied in innumerable laws. It is sufficient to refer to Constt. 6 | 2, 7 § i, 8 ^ i, Cod. ix. viii. 2 L. 18^ 6, Dig. XLViii. xviii. (Paulus.) 3 L. I § 19, Dig. XLVIII. xviii. (Ulpian.) 4 Const. I Cod. IX. xli. (Sever et Antonin.) 5 Constt. 3, 32 Cod. IX. ix. — L. 17, Dig. XLVIII. xviii. (Papin.) 6 L. 5 Dig. XLVIII. xviii. (Marcian.) 386 TORTURE. jestatis} 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 pro- duced some effect in mitigating the severity of legal pro- cedure, and in shielding the unfortunate slave from the cruelties to which he was exposed. Under the republic, while the authority oi tht 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 quaestors and trium- viri capitales.^ 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 tor- tured for evidence in cases wherein they were personally in- terested.^ This would necessarily reduce the production of slave testimony, save in accusations of majesiatis 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 ad- vance 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.^ When the slave himself was arraigned upon a false accusation and tor- tured, an old law provided that the master should receive ' Fl. Vopisc. Tacit, cap. ix. 2 Du Boys, Hist, du Droit Grim, des Peup. Anciens, pp. 297, 331, 332. 3 Const. 7 Cod. IX. xli. (Dioclet. et Maxim.). * Pauli Lib. v. Senlt. Tit. xvi. \ 3.— See also LI. 6, 13 Dig. XLViii. IN ROME. 387 double the loss or damage sustained ;^ and in ^8;^, Valenti- nian 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 /ex talionis if they failed to sustain the charge.^ 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 compila- tions of Justinian, and probably soon was disregarded. There were some general limitations imposed on the ap- plication of torture, but they were hardly such as to prevent its abuse at the hands of cruel or unscrupulous judges. An- toninus Pius set an example, which modern jurists might well have imitated, when he directed that no one should be tor- tured after confession to implicate others f and a rescript of the same enlightened emperor fixes at fourteen the minimum limit of age liable to torture, except in cases of ??iajestatis, when, as we have seen, the law spared no one, for in the imperial jurisprudence the safety of the monarch overrode all other considerations.* Women were spared during preg- nancy.^ 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.® No one was to be tortured without the inscription of a formal accuser, who rendered himself liable to the lex talionis, un- less there were violent suspicions to justify it ;^ and Adrian reminded his magistrates that it should be used for the in- ' Const. 6 Cod. ix. xlvi. This provision of the L. Julia appears to have been revived by Diocletian. 2 Lib. IX. Cod. Theod. i. 14. 3 L. 16 I I, Dig. XLViii. xviii. (Modestin.) 4 L. 10 Dig. XLVIII. xviii. (Arcad.) 5 L. 3 Dig. XLVIII. xix. (Ulpian.) 6 L. TO ^ 3, Dig. XLVIII. xviii. 7 L, 22 Dig. XLVIII. xviii. 388 TORTURE. vestigation of truth, and not for the infliction of punishment.^ Adrian further directed, in the same spirit, that the torture of slave witnesses should only be resorted to when the ac- cused was so nearly convicted that it alone was required to confirm his guilt. ^ 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.^ 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.* 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.^ Ac- cording 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.® 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 accord- ing 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 • L. 21 Dig. XLViii. xviii. 2 L. I ^ I, Dig. XLVIII. xviii. (Ulpian.) 3 Const. 8 Cod. ix. xli. (Dioclet et Maxim.) 4 L. 7, Dig. XX. V. 5 L. I g 4, Dig. XLViii, xviii. (Ulpian ) 6 L. I ^ 23, Dig XLViii. xviii. — Res est fragilis et periculosa et quae veritalem fallat. IN ROME. 389 necessary.^ 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 Vale- rius Maximus, who devotes his chapter '' De Qusestionibus" 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 Fan- nius, 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 be- ing privy to the murder of C. Flavins, a Roman knight, he was tortured six times and persistently denied his guilt, though he subsequently confessed it and was duly crucified.^ A somewhat similar case gave ApoUonius of Tyana an oppor- tunity of displaying his supernatural power. Meeting in Alexandria twelve convicts on their way to execution as rob- bers, 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 ApoUonius, was innocent, though he had accused himself to avoid the torture.^ A curious instance, moreover, of the little real weight attached to such evidence is furnished by the case of P\ilvius 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.* The same conclusion is to be drawn from the story told by St. Jerome of a woman of ' Altera saepe etiam causam falsa dicendi, quod aliis patientia facile mendacium faciat, aliis infirmitas necessanum, — M, F. Quintil. Inst. Orat. V. iv. 2 Val. Maximi Lib. viii. c. iv. 3 Philostrati vit. Apollon. vil. xxiv. * Valer. Maxim. Lib. viii. c. iv. 33"^ 390 TORTURE. 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.^ 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 re- moved 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. ^ 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 ac- complices, the judges were directed to commence with the youngest and weakest.^ 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 his- torians, in their narratives of the fearful persecutions to which their religion was exposed, give us a more extended idea of 1 Hieron, Epist. i. ad Innocentvum. 2 Q. Curt. Ruf. Hist, vi. xi. Anceps conjectura est quoniam et vera confessis et falsa dicentibus idem doloris finis ostenditur. 3 Pauli Lib. v. Sentt. Tit, xiv. ^ 2. — L. i8 Dig. XLVlii, xviii. THE BARBARIANS. 39I the resources of the Roman torture chamber. Thus Pruden- tius, m his description of the martyrdom of St. Vincent, al- ludes 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.^ 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 im- press on the far less humane administration of criminal justice in Europe almost to our own day. Yet at first it seemed destined to disappear utterly from human sight with the downfall of the Roman power. THE BARBARIANS. In turning from the nicely poised and elaborate provisions of the Imperial laws to the crude jurisprudence of the Barba- rian 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 re- spect, and who pays to that chief only the amount of obedi- ence which superior vigor and intellect may be able to en- force. 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 im- 1 Aurel. Prudent, de Vincent. Hymn. v. 392 TORTURE. usual size and beauty might be restored to him. Clovis could only promise that if the messenger would accompany him to SoissonSj 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 oc- casion to bitterly reproach the uncourtly Frank with the con- dition 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."^ This personal independence of the freeman is one of the dis- tinguishing characteristics of all the primitive Teutonic insti- tutions. 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 cculd be bought off. As the criminal could defend himself with the sword against the /ai'da 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 legis- lation of so barbarous an age. Accordingly, the codes of the Feini, the Ripuarians, the ' Greg. Turon. Hist. Franc. Lib. ii. c. xxvii. BARBARIAN TORTURE OF SLAVES. 393 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 pro- perty, 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 ma- chinery 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 con- fessed, 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. Caesar 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.^ 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 1 De Bell. Gall. vi. xix. 394 TORTURE. wergild oi 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.^ 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 him- self. 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. ^ 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 de- livered up as a slave. ^ 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.* • These provisions are specified only in the Salic Law (First Text of Pardessus, Tit. XL. \\ 6, 7, 8, 9, 10.— L. Emend. Tit. XLii. ?i\ 8, 9, 10, II, 12, 13), but they were doubtless embodied in the practice of the other tribes. 2 L. Burgund. Tit. vii. — The other allusions to torture in this code, Tit. XXXIX. W I, 2, and Tit. LXXVII. \\ i, 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. 3 L. Baioar. Tit. VIII. c. xviii. ^^ 1,2, 3. 4 L. Salic. First Text, Tit. XL. H 1,2, 3, 4.— L. Emend. Tit. xlii. H I, 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 THE MEROVINGIANS. 395 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 evi- dence 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.^ 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 intermin- gled on the same soil, being subjected to its own system of jurisprudence. The summary process of extracting con- fessions 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 chance. " Si servus in furto fuerit inculpatus, requiratur a domino ut ad viginti noctes ipsum in mallum prsesentet. 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, in- cluding the revision by Charlemagne. ' First Text, Tit. XL. | 4.— MS. Monaster. Tit. XL. § 3.— L. Emend. Tit. XLIL I 6. 396 TORTURE. 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 freemen 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 Geirrod using the torment of fire for eight days on Odin, who visits him in disguise for the purpose of testing his hospitality.^ 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. ^ 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 Frede- gonda, 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 • Grimnismal, Thorpe's Saemnnd's Edda, I. 20. 2 Greg. Turon. Hist. Franc. Lib. vii. c. xx. ; Lib. viii. cap. xxxi. Also, Lib. V. cap. xxxvii. — Aimoin. Lib. ill. c. xxx. xlii. li. Ixiv. Ixvii. — Flodoard. Hist. Remeiis. Lib. ii. c. ii. — Greg. Turon. Miraculorum Lib. I. cap. 73. THE GOTHS. 397 seized, but from some cause were discharged unhurt. Then a certain Riculfus, an accomplice of Leudastes, was re- proached 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. Me- dard. 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 naively 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.^ Now, Plato, Gallienus, and Modestus were prob- ably 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 unbri- dled passions of the Merovingian. THE GOTHS. 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 con- version 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 ' Gregor. Turon, Hist. Franc. Lib. V. c. xlix. 34 398 TORTURE. the time of Clovis. The permanent occupation of Septima- nia 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 them- selves. 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 Constantmople, 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 diff"erent 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 juris- prudence. What little exists, however, manifests a compro- mise 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 THE GOTHS. 399 was returned, and the slave was tortured. The immunity of freedmen is likewise shown by the cancelling of any manu- mission conferred for the purpose of preventing torture for evidence.^ Theodoric, however, allowed his Roman sub- jects 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.^ 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 Recas- wind 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 re- vised 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, ' Edict. Theodor. cap. c. ci. cii. 2 Cassiodor. Variar. iv. xxii. xxiii. 400 TORTURE. 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 were 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.^ 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 en- joyed 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.^ There could have been little torturing of slaves as wit- 1 L. Wisigoth. Lib. vi. Tit. i. 1. 5. 2 Ibid. THE WISIGOTHS. 40I nesses, 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 testi- mony as though they were freemen,^ 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 lia- bility.2 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 inno- cent. Moreover, if no confession were extorted, the in- former 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, de- clared 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.^ 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. > L. Wisigoth, II. iv. 4. 2 Ibid. VI. i. 4; VII. vi. I.; VIII. iv. lO, II. 8 Ibid. VI. i. I. 34* 402 TORTURE. The only cases in which it was permitted for 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 pre- scribed. 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 tor- turer, subject to the supervision of the judge, and might in- flict torment to any extent that his ingenuity could suggest, short of producing permanent injury or death. If death re- sulted, the accuser was delivered to the relatives of the de- ceased to be likewise put to death ; the judge who had per- mitted 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 tor- ture 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.^ 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 assump- tions 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 • L. Wisigoth. VI. i. 2. IN SPAIN. 403 habitual disregard of law. At the Thirteenth Council of Toledo, in 68;^, 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 " regise subtilitatis astu vel profante 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.^ 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 gath- ered around Don Pelayo. The use of the Latin tongue grad- ually faded out among them, and about the twelfth or thir- teenth 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 Penin- sula. 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.^ Torture was thus main- tained in Spain as an unbroken ancestral custom, and when Alfonso the Wise, about the middle of the thirteenth cen- tury, attempted to revise the jurisprudence of his dominions, in the code known as Las Siete Partidas which he promul- 1 Concil. Toletan. XIII. ann. 683, can. ii. 2 See the Fuero Juzgo, Lib. i. Tit. iii. 1. 4; Tit. iv. I.4.— Lib. in. Tit. iv. 11. 10, II.— Lib. VI. Tit. i. 11. 2, 4, 5.-— Lib. vii. Tit. i. 1. i ; Tit. vi. 1. I. The only points in which these vary from the ancient laws are that, in Lib. vi. Tit. i. 1. 2, adultery is not included among the crimes for sus- picion of which nobles can be tortured, and that the accuser is not directed to conduct the torture. In Lib. vii. Tit. i. 1. i, 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. 404 TORTURE. gated, 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 miindo"^ — he held that stripes and other torture inflicted judicially were no dishonor even to Spanish sensitiveness.^ Asserting that torture was frequently requisite for the discovery of hidden crimes,^ 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,* 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 inter- rogated, when, if he persisted in his confession, he was con- demned. 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 be- lieve 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.^ The humane interference of the 1 Partidas, P. vii. Tit. i. 1. 26. 2 ibid. P. vii. Tit. ix. 1. 16. 3 Ca por los tormentos saben los judgadores muchas veces la verdad de los malos fechos encubiertos, que non se podrian saber dotraguisa. — Ibid. P. VII. Tit. XXX. 1. I. 4 Por premia de tormentos 6 de feridas, 6 por miedo de muerte 6 de deshonra que quieren facer a los homes, conoscen d las vegadas algunas cosas que de su grado non las conoscerien : e por ende decimos que la conoscencia que fuere fecha en alguna destas manei-as que non debe valer nin empesce al que la face. — Ibid. P. ill. Tit. xiii. 1. 5. 5 Partidas, P. VII. Tit. xxx. 1. 4. — Porque la conoscencia que es fecha en el tormento, si non fuere confirmada despues sin premia, non es vale- dera. IN SPAIN. 405 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 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.^ 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.""^ So, when several ac- complices were on trial, the torturer was directed to com- mence with the youngest and worst trained, as the truth might probably be more readily extracted from him.^ 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 re- mained undiscovered.* 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, ' Alvari Pelagii de Planctu Ecclesiae, Lib, ii. Art. xli. 2 Partidas, P. vii. Tit. xxx. 1. 2. Except the favor shown to the learned professions, " por honra de la esciencia," which afterwards became general thrpughout Europe, these provisions may all be found in the Roman law. — Const. 4 Cod. IX. viii. ; L. 3, Dig. XLViii. xix. ; L. 10, Dig. XLViil. xviii. ; Const. 1 1 Cod. ix. xli. 3 Partidas, P. vii. Tit. xxx. 1. 5. — Imitated from L. 18, Dig. XLVlii. xviii. 4 Partidas, P. vii. Tit. xxx. 1. 7. Cf. Tacit. Annal. xiv. xliii.-xlv. 4o6 TORTURE. and no slave could be tortured to prove the guilt of a pre- sent or former owner, nor could a freedman, in a case con- cerning 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 tor- ture required subsequent confirmation.^ There is one noteworthy innovation, however, in the Par- tidas, 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 lia- bility of freemen as witnesses. When a man's evidence was vacillating and contradictory, so as to afford reasonable sus- picion 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.^ 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 insuffi- cient 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.^ 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 1 Partidas, P. vii. Tit. xxx. 1. 1 6. 2 Ibid. P. III. Tit. xvi. 1. 43. — P. vn. Tit. xxx. 1. 8. 3 Ibid. P. VII. Tit. i. 1. 26, "Home mal enfamado."— P. vii. Tit. xxx. I. 3, " Et si fuere home de mala fame o vii." IN SPAIN. 407 distant than a brother or sister's child. ^ The judge, more- over, was strictly enjoined not to exceed the strict rules ot 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.'^ 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, &c.^ Orders to inflict torture, moreover, were one of the few procedures which could be appealed from in advance.* Several of these limitations be- came generally adopted throughout Europe. We shall see, however, that they afforded little real protection to the ac- cused, 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 em- ployed, the scourge and the strappado, or hanging the pris- oner by the arms while his back and legs were loaded with heavy weights.^ 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 successful as a work of legislation. With the death of Alfonso they became dis- credited, but still retained a certain amount of authority, and, a hundred years later, in the Ordenamiento di Alcala of Al- 1 Partidas, P. vii. Tit. i. 1, 26. 2 Ibid. p. VII. Tit. XXX. 1. 4; Tit. ix. 1. 16. 3 Ibid. P. VII. Tit. XXX. 1. 9. 4 Ibid. P. III. Tit. xxiii. 1. 13. 5 Ibid. P. VII. Tit. XXX. 1. i. 4o8 TORTURE. fonso XL, issued in 1348, they are referred to as supplying all omissions in subsequent codes. ^ It is probable that in his system of torture, Alfonso the Wise merely regulated and put into shape the customs preva- lent 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 proced- ures. In the final shape which the administration of torture assumed in Spain, 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 convic- tion. 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 effec- tive, 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 un- less rendered necessary by the introduction of new testimony.^ As in the thirteenth century, nobles, doctors of laws, preg- nant women, and children under fourteen were not liable, except in cases of high treason and some other heinous of- fences. The clergy also were now exempted, unless pre- viously 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 ' Ordenamiento di Alcala, Tit. xxviii. 1. i. The Partidas are quoted as an authority on the subject of torture by Simancas, Bishop of Badajos, in the latter half of the sixteenth century. (De Cathol. Instit. Tit. LXV. No. 24, 37.) 2 Simancas, however, states that a single repetition of the torture was allowable.— De Cathol. Instit. Tit. lxv. No. 76. IN SPAIN. 409 was held to be a far more serious offence to be false to Divine than to human majesty.^ 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 imprison- ment 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.^ 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.^ 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 un- justly tortured. If there was no justification for it, he was reimbursed in double the estimated value; if the judge ex- ' De Cathol. Instit. Tit, LXV. No. 44-48. Cf. Recopilacion, Lib. vi. Tit. ii. leis 4. y 5. (Ed. 1775). ^ Villadiego, Gloss, ad Fuero Juzgo, Lib. vi. Tit, i. 1, 2, Gloss, c, d, e, 3 Recopilacion, Lib. 11. Tit. vii, leis i y 13. 35 410 TORTURE. ceeded the proper measure of torment, he made It good to the owner with another slave. ^ 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 Ba- dajos, who was a little anterior to Villadiego, speaks of it as a generally received axiom that scarcely any criminal accu- sation could be satisfactorily tried without torture.^ This is confirmed by the account recently discovered by Bergenroth of the secret history of the execution of Don Carlos, for whe- ther 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 tr)- his wretched son for the crime of encouraging the rebellious movements in the Netherlands, and the prince denied the offence, tor- ture 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, Spanish 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 Al- phonso 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 de- sired counsel should be allowed the privilege, those who ' Villadiego, op. cit. Lib. vi. Tit. i. 1. 5, Gloss, b, c. 2 Simanca; de Calhol. Instit. Tit. LXV. No. 8. CARLOVINGIAN AND FEUDAL LAW, 4II 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 legis- lation of other lands, remained in force and were embodied in the Recopilacion.^ 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 unpardonable 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 disre- garded in the case 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.^ Yet, by this time, the personal inviolability of the ^ Recopilacion, Lib, II, Tit. vi. lei 6 ; Lib, vili. Tit. i. lei 4, Aragon is said to have been an exception as regards the use of torture (Gomez Var. Resolut. T. Ill, c. 13 — ap. Gerstlacher, de Quaest, per Torment, p. 68). 2 Capit, Carol. Mag. ii, ann, 805, \ xxv, (Baluz.). No other interpre- tation can well be given of the direction " diligentissime examinatione con- stringantur si forte confiteantur malorum quae gesserunt. Sed tali modera- tione fiat eadem districtio ne viiam perdant," 412 TORTURE. 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.^ 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 appear- ance 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 Ber- nard, King of Italy, in his rebellion against Louis-le-Debon- naire, in 817, on their capture confessed the whole plot with- out being put to the torture.^ Such instances, however, were purely exceptional. In ordinary matters, there was a com- plete 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 vul- gar ordeals were not only primeval customs suited to the feelings and modes of thought of the race, but they were also much more in harmony with the credulous faith incul- cated 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 requi- site, 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 fre- ' Capitul. Lib. vi. cap. cxxix. 2 Non solum se tradunt sed ultro etiam non admoti qiisestionibus omnem technam hujus rebellionis detegunt. — Goldast. Constit. Imp. I. 151. CARLOVINGIAN AND FEUDAL LAW. 413 quent under the Merovingians, the canons of various councils prohibited the presence of any ecclesiastic in places where it was administered/ 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 instru- mentality 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,"'^ nor were the freemen of the district constrained as of old to be present,^ but it was still free to every one. The ' Non licet presbytero nee diacono ad trepalium ubi rei torquentur stare. — Concil. Autissiodor. ann. 578, can. xxxiii. Ad locum examinationis reorum nullus clericorum accedat.— Concil. IMatiscon. II. ann. 585, can. xix. 2 Under Charlemagne and Loais-le-Debonnaire seems to have com- menced 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 gestate observandus esse possit." — (Capit. Carol. Mag. II. ann. 809, \ xiii.) See also Capit. I. eod. ann. \ xxv. Louis-le-Debon- naire prohibits the holding of courts in churches, and adds, " Volumus utique ut domus a comite in locum ubi mallum tenere debet construatur, ut propter calorem soils et pluviam publica utilitas non i-emaneat." — Capit. Ludov. Pii. I. ann. 819, \ xiv.) 3 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 sestatem et alterum circa autumnum." At others of less importance, they were only bound to attend when summoned, "Ad 35* 414 TORTURE. accuser and his witnesses were confronted with the accused, and the criminal must be present when his sentence was pro- nounced.^ The purgatorial oath was administered at the altar of the parish church; the ordeal was Jt 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 ech'o 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 wit- nesses, 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 em- pire 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 he- reditary, 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 juris- diction of his feudal lord and seek a superior court. ^ 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 qugerendam." — (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 conipellat, nisi forte quilibet aut accusatus fuerit, aut alium accusaverit, aut ad testimonium per- hibendum vocatus fuerit." — (Capit. Ludov, Pii. v. ann. 819, | xiv.) • Placuit ut adversus absentes non judicetur. Quod si factus fuerit pro- lata sententia non valebit. — Capitul. Lib, v. ^ cccxi, 2 This right of appeal was not relished by the seigneurs, who apparently foresaw that it might eventually become the instrument of their destruction. FEUDALISM. 415 Still, as under the Merovingians, torture, though unrecog- nized by law, was occasionally employed as an extraordinary element of judicial investigation, as well as a means of pun- ishment 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 gib- bets and fearful elements of torture wherewith the cruelty of his judges had been exercised, .and that he never allowed them to be restored.^ 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 canoniza- tion 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 con- fession, 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 mani- fested 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 en- rolled in the catalogue of saints.^ A letter of Gerard, Bishop of Cambrai, in 1025, relating how certain suspected heretics could not be forced by torment to confession, shows that 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 couits of the King of France by hanging the notaries who undertook to draw up the requisite papers. — Meyer, Instit. Judiciaires, I. 461. ' Annalist. Saxo ann. 928. 2 Dithmari Chron. Lib. vil. ad. fin. 41 6 .TORTURE. 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. ^ In the celebrated case, also, of the robbery of the church of Laon, about the year iioo, the suspected thief, after convic- tion 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 dis- cover the place where the valuables were hidden. ^ 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.^ These are evidently rather sporadic and exceptional cases than indications of any systematic introduction of the prac- tice. 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.* 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 ' Multa dissimulatione renitebant, adeo ut nullis suppliciis possent cogi ad confessionem. — Synod. Atrebatens. ann. 1025 (Hartzheim III. 68). 2 Hermannus de S. Mariae Lauden. Mirac. Cf. Guibert. Noviogent. de Vita Sua, cap. xvi. 3 Radulf. de Coggeshale Chron. Anglic, ann. 1192. ■^ Hildebert. Cenoman. Epist. xxx. TOETURE AS PUNISHMENT. 417 of its employment as a punishment and for the extortion of money. As a punishment legally inflicted, we find it prescribed, in 1 1 68, by Frederic Barbarossa in cases of petty thefts,^ and in the next century by Frederic II. as a penalty for high treason.^ 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 vin- dictive conqueror,^ and in 11 29 he treated the citizens of Halle in the same manner.* 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.^ So summary and eff'ective a mode of forcing the weak and unprotected to ransom themselves was not likely to be over- looked in those ages of violence, and though the extra-judi- cial 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 expe- dition into Hungary in 1108, caused to be racked or put to death all prisoners who could not purchase escape by heavy ransoms.^ At the same period, Germany is described to us 1 Feudor. Lib. ii. Tit. xxvii. ^ 8. 2 Fred. II. Lib. Rescript. II. |§ i, 6. (Goldast. Constit. Imp. II. 54.) 3 Erphurdianus Variloquus ann. 1 125. 4 Annal. Bosovienses, ann. 11 29. 5 Cod. Epist. Rudolphi I, p. 216-7 (Lipsiae, 1806). 6 Cosmse Pragens. Lib. iii. ann. 1108. 4l8 TORTURE. 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.-^ In Spain, the same means were understood and employed by the savage nobles of that barbarous period.^ 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; dun- geons filled with toads and adders; slow starvation, &c. &c.^ 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 ;* 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 ;^ and in 1210 King John seized all the Jews in England and tortured them until they ransomed themselves heavily.^ In all this, however, there is no evidence of the revival of torture as a means of legal investigation. The community J Aimalist. 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. 2 Gerardi Hist. Compostellan. Lib. 11. cap. 80. 3 Anglo-Saxon Chronicle, ann. 1137. 4 Pike, History of Crime in England, I, 427. 5 Jaffe Regesta p. 884. 6 Matt. Paris. Hist. Angl. ann 1210. PROHIBITED BY THE CHURCH. 419 was satisfied with the old barbaric forms of trial, and the church, still true to its humanizing instincts, lost no opportu- nity 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;^ 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.^ About the same time St. Augustine 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.^ The great name of Gregory I. was on record in the sixth century, de- nouncing as worthless a confession extorted by incarceration and hunger.* 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 sys- tem of torture, and the injustice to which it leads, concluding with a peremptory prohibition of its continuance.^ In the first half of the same century, the manufacturers of ' Synod. Roman, ann. 384, can. 10. 2 Innocent PP. I. Epist. in. cap. iii. 3 De Civ. Dei Lib. xix, cap. vi. ^ Gregor. PP. I. Lib. viii. Epist. xxx. 5 Nicolai PP. I. Epist. xcvii. | 86. 420 TORTURE. 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.^ Oq 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;'^ and half a cen- tury 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.^ This position was consistently maintained until the revival of the Roman law familiarized the minds of men with the procedures of the imperial juris- prudence, 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. 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 boilmg 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 ' Pseudo-Alexand. decret. "Omnibus orthodoxis." 2 Ministrorum confessio non sit extorta sed spontanea. — Ivon. Panorm. IV, cxvii. 3 Quod vero confessio cruciatibus extorquenda non est. — Decreti Caus. XV. q 6, can. I. REAPPEARANCE OF TORTURE. 42 I 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 of 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 juris- diction. 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 organ- ized anarchy. The early codes, therefore, the Sachsen- spiegel, the Schwabenspiegel, the Kayser-Recht, and the Richstich Landrecht, which regulated the judicial proceed- ings 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.^ 1 Csesarius of Heisterbach, M^iting in 122 1, gives a story of an occur- rence happening in 11 84 which, if not embellished by some later tran- scriber, 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 Treves. Near Augsburg she was joined by a robber, who, hearing his pursuers approach- ing, 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 36 422 TORTURE. 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 sus- pect, 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.^ This shows tlie 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 ; 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 de- tails, and may very probably have been ornamented by successive scribes. — Caesar. Heisterb. Dial. Mirac. Dist. I. c. xl. 1 Assises de Jerusalem, Baisse Court, cap. cclix. REVIVED IN ITALY. 423 confession thus becomes requisite, yet tiie 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 judg- ment 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 Podesta was empowered to ascertain the truth of testimony by either inquest, torture, or the duel.^ 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 1 231, 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 com- mitted, 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 ' Lib, Juris Civllis Veronce cap, 75 (p. 61). 424 TORTURE. accidere novimiis 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.^ 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 un- protected class of society, and that confession during its infliction was not regarded as sufficient for conviction, unless subsequently persisted in. 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 indige- nous,^ 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 suffi- ciently evident from the accounts which we possess of the fearful cruelties habitually practised by petty despots such as Eccelino di Romano.^ 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-tovvns Lubeck, therefore, in its legislation pre- served the principles of the mercantile law, but in time these J Constit. Sicular. Lib. i. Tit. xxvii. !2 Du Boys, Droit Ciiminel des Peiip, Mod. II. 405, 3 Monach. Paduan. Chron. Lib. II. aim. 1252-3 (Urstisii Script. Rer. German, p. 594). — Quotidie diversis genevibus tormentorum indifferenter tarn majores quam minores a carnificibus necabuntur. Voces terribiles clamantum in tormentis die noctuque audiebantur de altis palatiis. . . . Quotidie sine labore, sine conscientiae remorsione magna torn enta et inex- ogitata corporibus hominum infiigebat, etc. INFLUENCE OF THE INQUISITION. 425 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.^ 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 ele- ment 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 con- fessions. When Frederic II., in 1221, published at Padua his three constitutions directed against heresy, cruel and un- sparing as they were, they contained no indication that tor- ture 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.^ In 1252, however, when Innocent IV. issued his elaborate direc- tions for the guidance of the Inquisition in Tuscany and Lom- bardy, he ordered the civil magistrates to extort from all here- tics by torture not merely a confession of their own guilt, but an accusation of all who might be their accomplices j and this derives additional significance from his reference to similar proceedings as customary in trials of thieves and robbers.^ 1 Mevii Comment, in Jus Lubecense, Lib. iv. Tit. vi. Art. 4 (Franco- furt. 1664). 2 Concil Lateran. IV. can. iii. — Goldast. Constit. Imp. I. 293-5. — Harduin, Concil. VII. 164. See above, p. 81. 3 Teneatur praeterea potestas seu rector pmneS hsei-eticos quos captos habuerit, cogere citra membri diminutionem et mortis periculum, tanquam 36* 426 TORTURE. 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. 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 deal- ing 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 confine- ment, starvation, and terror, but it abstains from recom- mending the infliction of absolute and direct torture, while its details are so full that the omission is fair negative evi- dence that such measures were not then customary.^ 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 vere latrones et homicidas animarum et fures sacramentorum Dei et fidei Christianae, errores suos expresse fateri et accusare alios haereticos quos sciunt, et bona eorum, et credentes et receptatores et defensores eoium, sicut coguntur fures et latrones rerum temporalium accusare suos complices et fateri maleficia quse fecerunt. — Innocent IV. Leg. et Const, contra Hseret. § 26. ' Trac. de Hgeres. Paup. de Lugd. (Martene Thesaur. V. 1787). In the tract, Frederic II., who died in 1250, is spoken of as "quondam im- perator." I have, however, met with a letter of St. Dominic, dated April 7th, 1217, which if genuine would show that the various kinds of torture, the rack, the pincers, the wheel, &c., were employed against the heretic Allji- genses as early as that date. — See the Fra Paolo Sarpi, Venezia, Ottob. 27, 1869. INFLUENCE OF THE INQUISITION. 427 with fictitious evidence were directed to frighten him with assertions of the testimony obtained against him from suppo- sititious 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 care- fully weakened by solitude, suifering, hunger, and terror. From this to the rack and estrapade the step was easily taken, and was not long delayed. In 130T, 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.^ 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 Motay and his knights, with endless repe- tition of torments, the confessions which were to recruit his exhausted treasury with their broad lands and accumulated riches.^ The history of the Inquisition, however, is too large a sub- ject 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 ofl'ered them in adducing the example of ecclesiastical institutions. • Clamor validus et insinuatio luctuosa fidelium subditorum . . . proces- sus suos in inquisitionis negotio a captionibus, quaestionibus et excogitatis tormentis incipiens personas quas pro libito asserit liseretica labe notatas, abnegasse Christum . . . . vi vel metu tormentorum fateri compellit. — Lit. Philip. Pulchri (Vaissette, Hist. Gen. de Languedoc, T. IV. Preuves p. 118). 2 The fearful details of torture collected by Raynouard (Mon. Hist. rel. a la Condamnation des Chev. du Temple) show that the Inquisition by this time was fully experienced in such work. 428 TORTURE. 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.^ 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.^ This would seem to indicate that the system of judicial • 1 Simancge de Christ. lustit. 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 cus- tomary 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. for- bids 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 re- tardetur" by the Council of Valence (can, xi.) in 1248 and that of Alby (can. xxiii.) in 1254. (Harduin, VII, 426, 461.) 2 Person as autem honestas vel bonae famse, etiam si sint pauperes, ad dictum testis unici, tormentis seu quaestionibus inhibemus, ne ob metum falsum confiteri, vel suam vexationem redimere compellantur. — Fontanon, Edicts et Ordonn. I, 701, A somewhat different reading is given by Isam- bert, Anciennes Lois Frangaises I. 270. INTRODUCED IN FRANCE. 429 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 nega- tive proof of no little weight. To this period, for instance, belongs the earliest extant coutumier of Normandy, pub- lished by Ludewig, and it contains no allusion to torture. The same may be said of the For de Beam, 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 Etahlissements, is like- wise free from any instructions or directions as to its applica- tion, 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 in- 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 juris- prudence of his day, and his tendencies were naturally in 43© TORTURE. favor of the new system with which St. Louis was endeavor- ing 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, bat the terms employed prove clearly that this was not intended to include the ad- ministration of torment.^ 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 dis- charged.^ All this is clearly incompatible with the theory of torture. The ^'Conseil" of Pierre de Fontaines, which was pro- bably 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 ' Cil qui est pris et mis en prison, soit poi" meffet ou por dete,tant comme il est en prison il n'est tenus a respondre a 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 volente, 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. Ln. § xix. 2 Quant tel larrecin sunt fet, le justice doit penre toz les souspe9onneus 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 renommee. El s'il ne pot en nule maniere savoir le verity du fet, il les doit delivrer, se nus ne vient avant qui parti e se voille fere d'aus acuser droitement du larrecin.— Ibid. cap. xxxi. g vi. INTRODUCED IN FRANCE. 43I another proof that he wrote at the commencement of a tran- sition 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 con- fessed, or, when he has confessed, if it has been in conse- quence of some understanding {covent). In later MSS., transcribed in the early part of the fourteenth century, the word "covent" is replaced by '' tourmenz,"^ 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 ap- plicable only to Languedoc.^ I do not know upon what facts this opinion is based, but it is observable that in the document as registered in the. council of Beziers in 1255, the section respecting torture is omitted,^ 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. While giving due weight, however, to all this, we must not lose sight of the fact that the laws and regulations pre- scribed 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 ex- posed to the caprices of barbarous and irresponsible power. ' Si li hons n'est connoissans de son mesfet, ou s'il I'a coneu et ce a este par covent, s'en li fait jugement, apeler en puet. — Conseil, ch. xxii. art. 28. (Edition Marnier, Paris, 1846.) 2 Tanon, Registre Criminel de la justice de S. Martin-des-Champs, In- trod. p, Ixxxvi. (Paris, 1877). — 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. 3 Baluz. Concil, Gall. Narbon. p. 75. 432 TORTURE. It was a maxim of feudal law that God alone could intervene between the lord and his villein — ^'Mes par notre usage n'a-il, entre toi et ton vilein, juge fors Deu"^ — the villein being by no means necessarily a serf; and another rule pro- hibited absolutely the villein from appealing from the judg- ment of his lord.^ Outside of law, and unauthorized by coutumiers and ordonnances, there must, under such insti- tutions, 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 inter- vals, from 1255 to 1 31 8, 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 tor- tured 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. ^ 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 Par- lement, because in a case of theft they had applied the ques- tion to a suspected criminal ; and though theft was within their competence, the bailli argued that torture was an inci- dent of " haute justice" which the town did not possess. The decision was in favor of the municipality.* The next J Conseil ch. xxi. art. 8. ^ Ibid. ai't. 14. Et encor ne puisse li vileins fausser le jugement son seignor, 3 Actes du Parlement de Paris, I. 382 (Paris, 1863). 4 Olim. T. II. p. 451. IN FRANCE. 433 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 Tour- nois in medicines and physicians. This, with other proper damages, he prays may be made good to him by the perpe- trators, and the arret 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.^ 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 ac- quits the Jews and awards no damages, showing that the torture was legal and a retracted confession valueless.^ 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 Ferrieres, 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, I Olim. III. 49-50. 2 Ibid. III. 185-6. 37 434 TORTURE. Etienne de Ferrieres, Chatelain of Montauban, claims dam- ages. The decision condemns Nicolas Bourges in a mulct of one thousand livres Tournois, half to Guiilot for his suffer- ings and half to Stephen for his expenses, besides a fine to the crown. ^ It is evident that judges were not allowed to inflict unlimited torment at their pleasure. The sixth case, occurring in 13 lo, 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.^ The seventh case took place in 131 2, when Michael de Poolay, accused of stealing a sum of money from Nicolas Loquetier, of Rouen, was subjected to long imprisonment and torture at Chateau-Neuf de Lincourt, and was then brought to the Chatelet at Paris, where he was again exa- mined 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.^ 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 Prevot of the Chatelet. He contends that it was illegal, while the Prevot asserts that his jurisdiction empowered him to administer it. The Parlement investigates the case, and acquits the prisoner, but awards him no damages.* The essentially commonplace 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 ' Olim. III. 221-2. 2 Ibid. III. 505-6. 3 Ibid. III. 751-2. ^ Ibid. III. 1299. RESISTANCE OF FEUDALISM. 435 during this period. These cases, too, have seemed to me worth reciting, as they ilkistrate 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 ap- plication 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.^ 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.^ 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;^ 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.* 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 care- fully nurtured by St. Louis and his successors. It was too 1 Guill. de Nangis Continuat. ann. 1304. 2 Ibid. ann. 13 14. ^ Ibid. ann. 13 15. * Grandes Chroniques, T. v. p. 221. (Ed, Paris, 1837.) 436 TORTURE. late, however, and though the storm broke on the new and untried royalty of Louis Hutin, the crown lawyers were al- ready 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 pro- mises, 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 sys- tem which their legal training led them to regard as an im- mense improvement in procedure, especially as it enabled them to supersede the wager of battle, which they justly re- garded as the most significant emblem of feudal independ- ence. 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.^ 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 *Mese-majeste" or other matters par- ' Isambert, Anciennes Lois Fran9aise.s, III. 131, 60, 65. RESISTANCE OF FEUDALISM. 437 ticularly 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 lese- majesie, which marked the triumph of the civil over the feudal law.^ 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 j 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. ^ The official documents concerning Champagne have been preserved to us more in detail. The nobles of that province complained that the royal prevots 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 pro- mised to put an end. The nobles further alleged that, in contravention of the ancient usages and customs of Cham- pagne ("centre 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 con- fession. To this Louis vaguely replied, that for the future no nobles should be tortured, except under such presump- tions as might render it proper, in law and reason, to prevent crime from remaining unpunished ; and that no one should be convicted unless confession were persevered in for a suffi- cient time after torture.^ This, of course, was anything but satisfactory, and the Champenois were not disposed to ac- cept it, but all that they could obtain after another remon- strance was a simple repetition of the promise that no nobles 1 Ordonnance, ji^r Avril, 1315, art. xix. (Ibid. III. 58). 2 Cart. Norman I. Mar. 1315, cap. xi. Cart. II. Jul. 1315, cap, xv (Ibid. 51, 109). 3 Ordonn. Mai 1315, art. v. xiv. (Bouvdot de Richebonrg, III. 233-4) 37* 438 TORTURE. should be tortured except under capital accusations.^ The struggle apparently continued, for, in 1319, we find Philippe- le-Long, in a charter granted to Perigord and Quercy, pro- mising that the proceedings preliminary to torture should be had in the presence of both parties, doubtless to silence com- plaints as to the secret character which criminal investigations were assuming.^ 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 echevins 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 Seignieur of Dampierre. Many of these cases seem peculiarly adapted to the new in- quisitorial system. Thus, in 1335, a man was attacked and wounded in the street at night. A crowd collected at his ' Ordonn. Mars 1315, art. ix, (Ibid. p. 235.) This ordonnance is in- correctly dated. It was issued towards the end of May, subsequently to the above. 2 Ordonn. Jul. 1319, art. xxii, (Isambert, III. 227). THE COMMUNES. 439 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 re- pute, he should be banished.^ 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.^ 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 evi- dence, but where this is unattainable, then the judges are allowed to decide on mere opinion and belief, for uncertain matters cannot be rendered certain.^ In such a scheme of legislation, the extortion of a confession as a condition pre- cedent to condemnation can evidently find no place. • Tout Lieu de Saint Disier, cap. cclxxii. (Olim, T. II. Append, p. 856.) 2 Ibid. cap. cclxxiii. 3 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 I'omechide aparant, on puet bien jugier, lone I'usage anchyen, car d'oscure fait oscure veritet." 440 TORTURE. Attempts to introduce torture in Aquitaine were apparently made, but they seem to have been resisted. In the Coutu- mier 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.^ 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 no longer confined to the royal jurisdic- tion, but that it was recognized as an incident to the possession of haute justice.^ By a document of 1359, it appears that it was the custom to torture all malefactors brought to the Chatelet of Paris, ^ and though privileged persons constantly endeavored to exempt themselves from it, as the consuls of Villeneuve in 1371,* and the Seigneur d'Argenton in 1385,^ 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.^ At the 1 Rabanis, Revue Hist, de Droit, 1861, p. 515. — No volgoren los savis antiquament qu'om pergossa sa franquessa ni sa libertat. 2 Registre Criminel de la Justice de St. Marlin-des-Champs, p. 50. 3 Du Cange s. v. Qua;stiotiarms. 4 Letters granting exemption from torture to the consuls of Villeneuve for any crimes committed by them were issued in 137 1 (Isambert, V. 352). These favors generally excepted the case of high treason. s 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 Penalites Anciennes, d'apris des Textes inedits, p. 39 (Paris, 1866). 6 Du Cange s. v. Qiurstio No. 3. THE CHATELET OF PARIS. 44I 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/ By this time criminal procedures were fully recognized as divisible into two classes — Xki^ pro ces ordinaire d^wA iliQ pro ces 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 re- ferred, and though at the beginning of the fourteenth century the pi'oces ordinaire, as its name infers, v/as 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 proces exti-aordinaire that by the close of the century it had become the rule rather than the exception.^ This is very clearly shown by the records of the Chatelet of Paris from 1389 to 1392,^ which enable us to form a tole- rably distinct idea of the part assigned to torture in the criminal procedure of this period. It had virtually become the rule and 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.^ 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 *Uresteau" relating the misdeeds of his ' Pour denier mettre a question et tourment, — Jean Desmarres, Decis- ions, Art. 295 (Du Boys, Droit Criminel II. 48). 2 L. Tanon, Registre Criminel de la Justice de S. Martin-des-Champs, Introd. p. Ixxxv. (Paris, 1877). 3 Registre Criminel du Cliatelet de Paris. Publie pour la premiere fois par la Societe des Bibliophiles Fran9ais. 2 torn. 8vo. Paris, 1864. 4 Ibid. I. 9, 14. 442 TORTURE. evil life chanced to mention the name of another as a profes- sional thief. The latter was immediately arrested, and though there was no specific crime charged against him, he was tor- tured repeatedly until sufficient confession was extracted from him to justify his execution.^ 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 con- fession could be thus extracted, the failure did not always serve to exempt him from punishment.^ 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 con- straint — '*sans aucune force, paour ou contrainte de ge- hayne" — 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,^ and it had 1 Ibid. I. 143, See also the similar case of Raoulin du Pre (p. 149) who recanted on the scaffold and protested his innocence " sur la mort qu'il attendoit a avoir et recevoir presentement," but who nevertheless was executed. Also that of Perrin du Quesnoy (p. 164). 2 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 con- fessed, 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 accord- ingly. 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). 3 In the Registre Criminel de St, Martin-des- Champs the cases are re- corded with too much conciseness to give details as to the process, only THE CHATELET OF PARIS. 443 become so habitual that it is scarcely worth while to cite particular examples, though thecaseof 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 misde- meanors, 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 ob- tained enough evidence to satisfy their consciences, his judges mercifully hanged him without further infliction.^ 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 a 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 insuffi- cient to merit death, he should be tortured repeatedly to ascertain whether he had not been guilty of something else the charge and the sentence being stated. It frequently happens, how- ever, 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. 1 20-1). The case of Phelipote de Monine (p. 178) is also suggestive. ' Registre Criminel du Chatelet de Paris, I. 36. 444 TORTURE. worthy of capital punishment. On that day he was therefore thrice exposed to the question, in an ascending scale of severity, but without success. Oi\ 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.^ Few criminals, however, gave so much trouble as Fleu- rant. 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 Chatelet 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,^ and not a few of the confessions read as though they were fictions composed by the accused in order to es- cape by death from the interminable suffering to which they ' 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.) 2 Ibid. I. pp. I, 268, 289; II. 66, etc. THE CHATELET OF PARIS. 445 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.^ In one case, indeed, the prisoner stated that he had known a person tortured at the Chatelet 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. '^ Yet, with all this reckless disregard of the plainest prin- ciples of justice, the torture process had not yet entirely obliterated the memory of the old customary law. The pris- oner was not, as we shall see practised hereafter, kept in ignorance of the charges against him and of the adverse testi- mony. The accusation was always made known to him, and when witnesses were examined, the record is careful to spe- cify that it was done in his presence.^ 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 Chatelet might allow him leisure for such defence, for his friends were allowed to see him in prison during the intervals of his trial. '^ ' Registre Criminel du Chatelet de Paris, 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. The incantations confessed by her, after six tortures, on being threatened with the seventh, afford an instructive insight into the superstitions of the period. (Ibid. I. 327.) 2 Ibid. I. 516. 3 Ibid. I. 151, 163, 164, 173-77, 211, 269, 285, 306, 350, etc. ^ See, for instance, the case of Pierre Fournet (Ibid. I. 516). 38 446 TORTURE. 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' — 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 Rheims, in 1408, drew up a series of instructions for the bishops of the province in visit- ing 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.^ 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 1 Trfes 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." 2 Concil. Remens. ann. 1408, cap. 49 (Martene Ampliss. Collect. VII. 420). GERMANY — CORSICA. 447 any prince of the empire ;^ and the form of expression em- ployed shows that this was an innovation. Liege, 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 riamed Gilles Surlet was found one morn- ing strangled in bed. The husband as though conscious of innocence, at once presented himself to the authorities assert- ing 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 wnth this, submitted her to the question, when she denied her guilt with the most provoking constancy. Suspicion then grew against the hus- band, and he was duly tortured without extorting a confes- sion, 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 accom- panied by a black hog, which refused to be driven away until the gallows was reached.^ 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 trans- mitted 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.^ In cases of treason, however, these limitations were not observed, and the accused was ' Bull. Aur. cap. xxiv. | 9 (Goldast. I. 365). 2 Chron. Cornel. Zantfleit, ann, 1376 (Martene Ampl. Coll V. 308-9)^ 3 Statut. Criminali cap. xiv. (Gregorj, Statuti di Corsica p. lOi). 44^ TORTURE. liable to its infliction as far and as often as might be found requisite to effect a purpose.^ The peculiar character of Venetian civilization made tor- ture 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 admin- istered, 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 sus- pected 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 inqui- sitors were insulted by being called a spy, the offender was arrested and tortured to ascertain how he had guessed the character of the emissary.^ 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 per- mitted, but only in case of persons accused of crimes involv- ing 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, ' Statut. Criminali cap, Ix. (p. 163). 2 Statuts de I'lnquisition d'Etat, i^ Supp. ^^ 20, 21 (Daru). HUNGARY — POLAND. 449 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.^ Other races adopted the new system with almost equal hesi- tation. Thus in Hungary the first formal embodiment of tor- ture in the law occurs in 15 14, 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 ap- plication, 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 ca- pacity.^ 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 dis- cretion in its administration. ^ 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 ' Li Statuti de Valtellina Riformati nella Cita di Coira nell' anno del S. IMDXLVIII. Stat. Crimin, cap. 8, 9, 10 (Poschiavo, 1549). 2 Synod, Reg. ann. 15 14, Prooem. (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. Cri- minal. Tit. V. cap. V. No. 13 (Francof. 1645). 3 Du Boys, Droit Criminel, I. 650. 38* 450 TORTURE. process found no foothold in the Poh'sh courts.^ In Russia, the first formal allusion to it is to be found in the Ulagenie Zakonof, a code promulgated in 1497, by Ivan III., which merely orders that persons accused of robbery, if of evil re- pute, 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.''^ 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 con- tumacious and stubborn criminals, the finger-nails were wrenched off with little wooden wedges.^ Still, torture ' Jo. Herb, de Fulstin. Statut. Reg. Polon. (Samoscii, 1597, p. 7.) 2 Esneaux, Hist, de Russie, III. 236, 2 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, quae flammis et eculeis adhibitis, vix, ut acta revelet, tantillulum commovetur" — and he broadly hints that the wily am- bassador amused himself by hoaxing the soft Italian : " Sed revera vel ludi- briose bonus praesul a versuto Muscovitici principis nuntio Demetrio dicto, tempore dementis VII. informatus est Romse." (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 un- justifiable 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, 1 858, 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 administeiing 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 THE INQUISITORIAL PROCESS. 45 1 makes but little show in the subsequent codes, such as the Sudebtnick, issued in 1550, and the Sobornoie Ulagenie, promulgated in 1648.^ In fact, these regions were still too barbarous for so civilized a process. 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 pains- taking perverse- ness. 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 defend- ing 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 wit- nesses ; 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 without the rose. According to experts, this will make the stoutest crimi- nal beg for his life in a few seconds. During the later period of our recent war, when the prevalence of ex- aggerated 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 to rapidly exhaust the resources of the country. Accordingly, the shower-bath was occasionally put into re- quisition by the military authorities to extort confession from suspected de- serters, when legal evidence was not attainable, and it was found exceed- ingly efficacious. 1 Du Boys, op. cit. I. 618. 452 TORTURE. 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 ne- cessity, while all the proceedings of the inquest are to be communicated freely to him.^ 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 as- sumed, 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 tliese inquisitorial proceedings, moreover, deprived the accused of one of the great 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 in- vestigation, 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 ;^ 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 Biois 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 * Statut. S. Ludov. ann. 1254, ^^ 20, 21 (Isambert, I. 270). 2 Thus Gratian, in the middle ot the twelfth century — " Qui cahimniam illatam non probat poenam debet incurrere quam si probasset i^eus utique sustineret." — Decreti P. II. caus. v. quaest. 6, c. 2. INJUSTICE TO THE ACCUSED. 453 in all criminal cases. The whole investigation was in the hands of the government official, who examined every wit- ness by himself, and secretly, the prisoner having no know- ledge 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 meanwhile 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, who decided as to his fate.-^ This cruel system was still further perfected by Francis L, who, in an ordonnance of 1539, expressly abolished the in- convenient 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 or- dered torture proportioned to the gravity of the accusation, and it was applied at once, unless the prisoner appealed, in J Ordonnance, Mars 1498, W 110-I16 (Isambert, XI. 365. — Fontanon, I. 710). It would seem that the only torture contemplated hy this ordon- nance was that of water, as the clerk is directed to record " la quantite de I'eau qu'on aura baillee 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 Lau- dibus Legg. Anglise, 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 a celle escorchene." 454 TORTURE. which case his appeal was forthwith to be decided by the superior court of the locality.^ The whole process was ap- parently 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 uni- versal. 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,^ 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 prepara- toirej and, in defiance of the old rule that it could be ap- plied but once, a second application, known as the question definitive or prealable, 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 unfortu- nate influence of the Inquisition in modifying the Roman law. The latter expressly and wisely provided that no one ' Ordonn. de VillersCotterets, Aout 1539, \\ 162-164 (Isambert, XIII. 633-4). " Ostant et abolissant tous styles, usances ou coutumes par les- quels les accuses avoient accoutum^s d'etre oui's en jugement pour s9avoir s'ils devoient etre accuses, et k cette fin avoir communication des faits et articles concernant les crimes et delits dont ils ^toient accuses." 2 Anc. Cout. de Bretagne, Tit. I. art. xli. — D'Argentr^'s labored com- mentary on this article is a lamentable exhibition of the utter confusion which existed as to the nature of preliminary proof justifyiiig torture. Comment, pp. 139, sqq. INJUSTICE TO THE ACCUSED. 455 who had confessed should be examined as to the guilt of another;^ and in the ninth century the authors of the False Decretals had emphatically adopted the principle, which thus became embodied in ecclesiastical law,^ 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. Torture was also generically divided into the question o?-di- nairesind extraoi^dinaire — 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 tor- ment, the strappado, popularly known as the Maine 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 extraor- dinary torture/ the weight was increased to two hundred and fifty pounds, and when the victim was raised to a sufficient height, he was dropped with a jerk that dislocated his joints, the operation being thrice repeated.^ 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, notwithstand- ing his pardon, he was subsequently tried, convicted, con- demned to decapitation and quartering, and also to the ' Nemo igitur de proprio crimine confitentem super conscientia scrutetur aliena. — Const. 17 Cod. ix, ii. (Honor. 423 1. 2 Nemini de se confesso credi potest super crimen alienum, quoniam ejus atque omnis rei professio periculosa est, et admit! i ad versus quemlibet non debet. — Pseudo-Julii Epist. ii. cap. xviii. — Gratian. Decret. P. II. caus. V. qusest. 3, can. 5. 3 Cheruel, Diet. Hist, des Institutions, etc. de la France, p. 1220 (Paris, 1855)- 45^ TORTURE, question extraordinai?'e to obtain a denunciation of his accomplices.^ When Louis XIV., under the inspiration of Colbert, re- moulded 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 Pus- sort. The cruel mockery of the question prtalable 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. ' Isambert, XIV. 88. Beccaria comments on the absurdity of such pro- ceedings, as though a man who had accused himself would make any diffi- cuky in accusing others, — "Quasi che I'uomo che accusa se stesso, non accusi pill facilmente gli altri. E egli giusto il tormentare gli uomini per I'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 definitive. Cords twisted around the fingers, scourging with rods, the strappado with fifty pounds attached to each foot, the thumb screw 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 Pcnaiites Anciennes, p. 159, Paris, 1 866. THE FRENCH SYSTEM. 457 In the question preHf?iinatre, 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 subse- quently obtained/ It was well to prescribe limitations, slender as these were, but in practice it v/as 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 in- dices 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."^ 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 pro- hibited for the future. Yet other courts subsequently assumed that this prohibition was only applicable to the Parlement of ' Ordonnance Criminel d'Aout 1670, Tit. xiv, xix. (Isambert, XIX. 398,412). 2 Nicolas, Dissertation Morale et Juridique sur la Torture, p. in. (Am sterd. 1682). 39 458 TORTURE. Grenoble, and in 1703 another Declaration was necessary to enforce the rule throughout the kingdom.-^ The Ordonnance of 1670, moreover, gave formal expres- sion to another abuse which was equally brutal and illogical — the employment of torture avec -reserve 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 con- demned 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 Bar- biers of Abbeville was banished under pain of death for suspicion of breach of the peace, and was subsequently tried, acquitted, and allowed to return.^ 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."'^ 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 ' Declaration du 13 Avril, 1703 (Ordonnances d'Alsace, I. 340). 2 Coutumier de Picardie, Ed. Marnier, p. 88. 3 Registre Criminel de la Justice de S. Martin-des-Champs. Paris, 1877, p. 229. CUMULATIVE INJUSTICE. 459 Ysabelet, and Dubos was accordingly hanged, while his wife was burnt. ^ 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 con- viction 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 sus- picion of murder.^ 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 reserve 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 tor- ture 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.^ 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 gal- leys for seven years. He appealed to the High Court of ' Desmaze, Penalit^s Anciennes, p. 204. 2 Bodini de Magor. Daemonoman. Basil. 1581, pp. 325, 334, 390. 3 Scialojae Praxis torquendi Reos c. i. No. 12 (Neap. 1653). 460 TORTURE. the royal council, and the case was referred to a distinguished jurisconsult, Thomaso 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 neces- sary 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. ^ Somewhat less complicated in its folly, but more inexcusable from its date, was the sentence of the court of Orleans 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 pre- meditated murder.^ 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 applica- tion of torture dangerous to life, the authorities after due consideration and consultation of physicians, spared her the torture and banished her without conviction.^ The same tendency to elude all restrictions on the use of torture was manifested in the Netherlands, where the pro- cedure was scarcely known until the i6th century, and where it was only administered systematically by the ordonnance on 1 Thomse Grammatici Decisiones Neapolitanoe, pp. 1275-6. (Venetiis 1582.) Cf. Scialojoe op. cit. c. i. No. 22. 2 L'Oiseleur, Les Crimes et les Peines, pp. 206-7. 3 Braune Dissert, de Tortura Valetudinar. Halae Cattor. 1 740, p. 28. THE NETHERLANDS — GERMANY. 461 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 forbid- den its employment in all cases '^oii il n'y a plaine, demye preuve, ou bien oil la preuve est certaine et indubitable," thus restricting it to those where there was very strong pre- sumption without absolute certainty. In transcription and translation, however, the wording of the ordonnance became changed to *^ plaine ou demye preuve, ou bien ou la preuve est incertaine ou douteuse,'' thus allowing it in all cases where the judge might not 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.^ In Germany, torture had been reduced to a system, in 1532, by the Emperor Charles V., whose ''Caroline Consti- tutions" contain a more complete code on the subject than had previously existed, except in the records of the Inquisi- tion. 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;"^ 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 w^as to be received as the deposition of a dying man, and was full evidence.* ' Meyer, Institutions Judiciaires, IV. 285, 293. 2 Legg, Capital. Caroli V. c. Ix., Iviii. 3 Ibid. c. XX. * Ibid. c. Iviii. 39* 462 TORTURE. In practice, however, this only held good 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 confes- sion, he was condemned, while if he retracted it he was at once thrust again upon the rack. In confession under tor- ture, 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.^ The legislator thus makes the victim expiate the sins of his own vicious system; the victim's sufferings increase with the de- ficiency of the evidence against him, and the legislator con- soles himself with the remark that the victim has only himself to thank for it, " de se tantum non de alio quceratur." 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.^ Yet there was a great show of tender consideration for the accused. When the weight of conflict- ing evidence inclined to the side of the prisoner, torture was not to be applied."'^ Two adverse witnesses, or one unex- ceptionable one, were a condition precedent, and the legis- lator shows that he was in advance of his age by ruling out all evidence resting on the assertions of magicians and sor- cerers.* To guard against abuse, the impossible effort was made to define strictly the exact quality and amount of evi- dence 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;^ while the judge administering torture to an innocent man on insufficient grounds was liable to make good all damage or suffering thereby inflicted.^ The ' Legg. Capital. Carol. V. c. Iv., Ivi , Ivii. 2 Ibid. c. xxii , Ixix. 3 Ibid. c. xxviii. * Ibid. c. xxiii., xxi. ^ Ibid. c. xxxiii.-xliv. •> Ibid. c. xx., Ixi. FINAL SHAPE OF TORTURE SYSTEM. ' 463 amount of torment, moreover, was to be proportioned to the age, sex, and strength of the patient; women during preg- nancy 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. ^ 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.^ 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.^ As the several au- ' Legg. Capital. Carol. V. c. Iviii., lix. AccusaUis, si periculum sit, ne inter vel post tormenta ob vulnera expiret, ea arte torquendus est, ne quid damni accipiat. 2 Heineccii Hist. Jur. Civ. Lib. II. ^^ cv. sqq. — Meyer (Instit. Judici- aires, Liv. vi, chap, xi.) gives a very interesting sketch of the causes which led to the overthrow of the old system of jurisprudence throughout Ger- many. He attributes it to the influence of the emperors and the munici- palities, 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. 3 My principal authorities are four : — I. " 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 hroughout Europe for two centuries, having passed through numerous 464 TORTURE. thors of these works all 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.^ It is easy to see from them, however, that though the pro- visions 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 Ro- man law inspired too sincere a respect to permit a denial of the claim, ^ yet the ingenuity of lawyers reduced the privilege to such narrow proportions that it was practically almost editions, from that of Louvain, in 1554, to that of Antwerp, in 1 750. My edition is of Antwerp, 1601. II. " Tractatus de Quaestionibus sen Torturis Reoriim," published in 1592 by Johann Zanger, of Wittemberg, 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. III. '* Practica Criminalis, seu Processus Judiciarius ad usum et consue- tudinem judiciorum in Germania hoc tempore frequentiorem," by Johann Emerich von Rosbach, published in 1645 at Frankfort-on-the Mayn. IV. ' Tractatio Juridica, de Usu et Abusu Torturae," by Heinrich von Boden, a dissertation read at Halle in 1697, and reprinted by Senckenberg in 1730, in conjunction with the treatise of Zanger. ' Cum nihil tam severum, tarn crudele et inhumanum videatur quam hominem conditum ad imaginem Dei . . . tormentis lacerare et quasi ex- carnificare, etc. — Zangeri fract. de Qusestion. cap. I. No. I. Tormentis humanitatis et religionis, necnon jurisconsultorum argumenta repugnant. — Jo. Emerici a Rosbach. Process. Criniin, Tit. v. c. ix. No. I. Saltem horrendus torturae abusus ostendit, quo miseri, de facinore aliquo suspecti, fere infernalibus, et si fieri possit, plusquam diabolicis cruciatibus exponuntur, ut qui nullo legitime probandi modo convinci poterant, atro- citate cruciatuum contra propriam salutem confiteri, seque ita destruere sive jure sive injuria, cogantur. — Henr. de Boden Tract. Praefat. 2 Zangeri cap. I. Nos. 49-58. DISREGARD OF EXEMPTIONS. 465 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 at any time allowable. Thus, parricide, uxoricide, fratricide, witchcraft, sorcery, counter- feiting, 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/ 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, ex- tracted under torture, pathetically replied — '' During my ex- amination, 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.^ In Catholic countries, of course, the clergy were specially 1 Zangeri cap. I. Nos. 59-88. — Knipschild, in his voluminous "Tract, de Nobilitate" (Campodun. 1693), while endeavoring to exalt to the ut- most 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. No. 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 torquendi Reos c. xiii. No. 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. 2 Erphurdianus Variloquus, ann. 15 14. 466 TORTURE. favored, but the immunity claimed for them by the canon law was practically reduced to nearly the same as that ac- corded to nobles.^ 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.^ They moreover had the privilege of being tortured only at the hands of clerical executioners, if such were to be had.^ In Protestant terri- tories respect for the cloth was manifested by degrading them prior to administering the rack or strappado.* Slight as were the safeguards with which legislators en- deavored to surround the employment of torture, they 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 pre- liminary evidence,^ 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 fearful cruelty when we see judges solemnly warned that an evil countenance, 1 Damhouder. Rer. Crimin. Praxis cap, xxxvii. Nos. 23, 24. Cf. Passerini Regul are Tribunal Qusest. xv. Art. ix. No, 117. 2 Emer. a Rosbach Process, Crimin, Tit. v, cap. xiv. 3 Simancae de Cathol, Instit. Tit. LXV, No, 50. 4 Willenbergii Tract, de Excess, et Poenis Cleric. 4to. Jense, 1740, p. 41. 5 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.) EMPLOYED AT DISCRETION. 467 though it may argue depravity in general, does not warrant the presumption of actual guilt in individual cases ;^ though pallor, under many circumstances, was considered to sanc- tion the application of torture,^ even as a pot containing toads, found in the home of a suspected witch, justified her being placed on the rack.^ 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.* 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.^ How absolute ' Fama frequens et vehemens facit indicium ad torturam. (Zanger, c. II. No, 80.) Reus ante accusationem vel inquisitionem fugiens et citatus contumaciter absens, se sijspectum reddit ut torqueri possit. (Ibid. No. 91. Cf, Simancse Cathol. Instit Tit. lxv. Nos. 28-30.) Inconstantia sermonis facit indicium ad torturam. (Zanger. Nos. 96-99.) Ex taciturni- tate 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. — Dam- houder. Rer. Crimin. Praxis cap. xxxv. Nos. 14, 15. 2 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. 8 Godelmanni de Magis Lib. in. cap. x. ^ 29. 4 Scialojse Praxis torquendi Reos cap. iii. No. 5, 6. s Judicis arbitrio relinquitur an indicia sint sufficientia ad torturam. (Zanger. cap. ii. Nos. 16-20.) An indicia sufficiant ad torturam judicis arbilrio relictum est. . . . Indiciaad torturam sufficientia relinquuntur officio judicis. (Emer. a Rosbach Tit v. c. ii. p. 529 ) Damhouder, indeed. 463 TORTURE. 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.^ This fact was no novelty, for the practice had existed, we may say, since the first introduction of torture. Hippolito dei Mar- sigli 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 autliority, 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.'^ 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 detectmg witches, and enthusiastic judges accordingly would sometimes station them, after duly anointing their boots, at the church doors, so that the luck- less wretches could not get out without being recognized.^ How shocking was the abuse made of this arbitrary power is well illustrated by a case which occurred in the Spanish states that no rules can be framed — "neque ea ullis innituntur regulis : sed universum id negotium geritur penes arbilrium, discretionem ac conscien- tiam judicis." — Rer. Crimin. Praxis cap. xxxvi. Nos. I, 2. Cf. Braune Dissert, de Tortura Valetudin. Halae Cattor. 1740. ' Sunt tamen nonnullipraetores et judices sanguine fraterno adeo inexsa- turabiles ut illico quemvis malse famae virum, citra ulla certa argumenta aut indicia, coiripiant ad srevissimam torturam, inclementer dicentes, cru- ciatum facile ab illis extorturum rerum omnium confessioiiem. — Damhou- der. Rer. Crimin. Praxis cap. xxxv. No. 13. 2 Hipp, de Marsiliis Singularia, No. 455 (Venet. 1555). 3 Godelmanni de Magis Lib. ill. cap. v. ^ 26. — Emer. a Rosbach Tit. v. c. X. No. 25. EMPLOYED AT DISCRETION. 469 colony of New Grenada about the year 1580. The judges of the royal court of Santafe had rendered themselves odious by their cruelty and covetousness, when one morning some pasquina^les 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 assassina- tion, and on the scaffold confessed that he himself had been the author of the libels against his brother justices.^ ' Groot, Historia Ecclesiastica y Civil de Nueva Granada, Bogotd, 1869, T. I. pp. 1 14-5, 116-20. Cf. Scialojae Praxis torquendi Reos, cap. i. No. 25. 40 470 TORTURE. 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.-^ Even wit- nesses were not spared, whether in civil suits or criminal prosecutions.^ It was discretionary with the judge to inflict moderate torture on them, when the truth could not other- wise 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 tor- ture; those of good standing were tortured only when they prevaricated, or when they were apparently committing per- jury f but, as this was necessarily left with the judge to de- termine, 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,* 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 exe- cuted.^ There was a general rule that witnesses could not > Rosbadi Tit. v. cap. x. No. 2. 2 Ibid. Tit. V. cap. xiv. No. 16. — Goetzii Dissert, de Tortura, p. 54. 3 Scialojse Praxis torquendi Reos cap. xiv. No. 5-20. — Jo. Frid. Wer- ner Dissert, de Tortura Testium, Erford. 1724, pp. 72 sqq. 4 Passerini Regulare Tribunal, Quaest. xv. Art. ix. No. 115. (Colon, Agripp. 1665.) 5 Process, contr. Card, de Carrafa (Hoffman. Collect. Script. I. 632). TORTURE OF WITNESSES. 471 be tortured until after the examination of the accused, be- cause, 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 tor- tured to obtain evidence against him in his absence.^ 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.^ 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 simulta- neously in each other's presence.^ Evidence given under tor- ture 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 per- son under torment.* Witnesses, however, could not be tor- tured more than three times f 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.^ 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 con- nections by marriage, his feudal superiors, or other similar persons.^ ' Scialojae Praxis torquendi Reos c. xiv. No, 2. 2 Statuta Criminalia Communis Bononiae (Bononiae 1525, p, 15 b). 3 Damhouder, op. cit. cap. xlvii. No. 3. 4 Passerini, loc. cit. Nos. 122-3. ^ Ibid. No. 1 18. 6 Simancse de Cathol. Instit. Tit. Lxv. No. 73. 1 Zangeri op. cit. I. No. 8-25. 472 TORTURE. 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. ^ 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 ;2 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.^ Pregnant women also were exempt until forty days after childbed, even though they had become so in prison for the express purpose of post- poning the infliction.* Some kinds of disease likewise con- ferred exemption, and jurisconsults undertook with their customary minuteness to define with precision this nosology of torture, leading to discussions more prolonged than pro- fitable. 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-kamnie?' or torture chamber.^ Other legists gravely disputed whether in the case of epi- leptics 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. ' Braune Diss, de Tortura Valetudinar. p. 32. 2 Zangeri op. cit. cap, I. Nns. 34-48. 3 Scialojse Praxis torquendi Reos c. xiii. No. 21. 4 Ibid. No. 24-30. ^ Goetzii Dissert, de Tortura, Lipsia), 1742, pp. 46-8. INJUSTICE TO THE ACCUSED. 473 Those who thus escaped torture on account of disease pre- sented 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.^ There doubtless was good reason underlying the Roman rule, universally followed by modern writers, 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.^ 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 de- fence.^ After all the adverse evidence 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. 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.* The recognized tendency of such a system to result in an un- favorable conclusion is shown by Zanger's elaborate in- structions on this point, and his warning that, however justifiable torture may seem, it ought not to be resorted to 1 Braune Diss, de Tortura Valetudinar. pp. 24, 43. 2 Zangeri cap. IV. Nos. 25-30. — Damhouder op. cit. cap. xxxvii. Nos. 15, 16. 3 Zangeri op. cit. cap. III. No. 3. * Goetzii op. cit. p. 36. 40* 474 TORTURE, without at least looking at the evidence which maybe at- tainable in favor of innocence ;^ while von Rosbach charac- terizes as the greatest fault of the tribunals of his day, tlieir neglect to obtain and consider testimony for the accused as well as that against him.^ 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.^ 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 sys- tem, that he was cautioned that it was a very unusual course, and one not lightly to be allowed, as it was odious, unneces- sary, and not pertinent to the trial.* 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 in- stances, 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 suffer- ings.^ Moreover, such appeals were ingeniously and effect- ually discouraged by subjecting the advocate of the prisoner to a fine or some extraordinary punishment if the appeal was pronounced to be frivolous f and some authorities, among which was the great name of Carpzovius, denied that in the inquisitorial process there was any necessity of communica- ' Zangeri op. cit. cap. III. Nos. I, 4, 5-43. 2 Process. Crim. Tit. v. cap. xi. No. 6. 3 Goetzii op. cit. p. 35. 4 Zangeri cap. 11. Nos. 49-50, — Cum enim confrontalio odiosa sit et species suggestionis, et remedium extraordinarium ad substantiam processus non pertinens, et propterea non necessaria. 5 Ibid. caj). IV. Nos. 1-6. 6 Goetzii Dissert, de Tortura p. 34. HELPLESSNESS OF THE ACCUSED. 475 ting to the accused the order to subject him to torture and then allow him time to appeal against it if so disposed.^ 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."^ Thus it was an acknowledged rule that when guilt could be satis- factorily proved by witnesses, torture was not admissible f 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.* Moreover, the practice was continued which we have seen habitual in the Chatelet 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;^ 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.® Martin Bernhardi, writing in 1705, asserts that 1 Braune Dissert, de Tortura Valetudin. p. 16. 2 Process, Criniin, Tit. V. cap, ix. No. 10. 3 Zangeri cap. i. No. t,"]. 4 Rer, Crimin, Praxis cap, xxxviii. Nos. 6, 7. 5 Boden de Usu et Abusu Torturae Th. xii. Damhouder declares this practice to be unjustifiable, though not infrequent, — Rer. Crimin. Praxis cap. xxxvii. No, 12. 6 He represents the judge as addressing his victim " Tu sei il reo di un delitto, dunque h possibile che lo sii di cent' altri delitti : questo dubbio mi pesa, vogho accertarmene col mio criterio di verita : le leggi ti tor- mentano, perche sei reo, perche puoi esser reo, perche voglio che tu sii reo." — Dei Delitti e delle Pene, 3 xii. 47^ TORTURE. this torture after confession and conviction was also resorted to in order to prevent the convict from appealing from the sentence.^ 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 cir- cumstances, he could be tortured in order to force him to withdraw them ;^ and, moreover, if he were suspected of having accomplices and refused to name them, he could be tortured as in the questio7i pi-ealable of the French courts.^ Yet the accusation thus obtained was held to be of so little value that it only warranted the arrest of the parties incrimi- nated, who could not legally be tortured without further evidence.* In the face of all this it seems like jesting mockery to find these grim legists tenderly suggesting that the pris- oner should be tortured only in the morning lest his health should suffer by subjecting him to the question after a full meal.^ Another positive rule was that torture could only be ap- plied in accusations involving life or limb.^ Thus, for in- stance, 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."^ 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.^ Whipping being a corporal punishment, and yet a • 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. No. 8-10. Neap. 1653.) 2 Scialojae op. cit. cap. i. No. 14. 3 Damhouder. Rer. Crimin. Prax. cap, xxxv. No. 9, cap. xxxviii. No. 14. — Werner Dissert, de Tortura Testium pp. 76 sqq. * Damhoud. cap. xxxix. No. 6. ^ Goetzii Dissert, de Tortura p. 26. 6 Zangeri Proefat. No. 31. ' Scialojce op. cit. cap. i. No. 27. s Staluta Criminalia Communis Bononins, p. 15 «. DlSRECxARD OF LIMITATIONS. 477 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.^ All these fine-spun dis- tinctions, 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 f and it was a general rule of mercantile law that it could be em- ployed in accusations of fraudulent bankruptcy.^ 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 ;* 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;^ 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/ The history of torture is full of cases illustrating its effectiveness when thus used. Boyvin du Villars relates that during the war in Pied- ' Goetzii Dissert, de Tortura \)-p. 52-3. 2 Zangeri Tract. Not. ad p. 903. 3 Scialojae op. cit. cap. i. No. 34. — Goetzii Dissert, de Tortura p. 53. — 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. * Zangeri Praefat. No. 32. — Tortura enim datur non ad liquidandum fac- tum sed personam. — Damhouder. Rer. Crimin. Prax. cap. xxxv. No. 7. 5 Process. Criminal. Tit. v. cap. ix. No. 17, 6 De Usu et Ab. Tort. Th. ix. — Qui aliter procedit judex, equum cauda frenat et post quadrigas cabaUum jungit. 478 TORTURE. moDt, 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 at- tempted to serve a process from the Duke of Savoy on the marquis. His disappearance having naturally been attributed to foul play, his kind] ed prosecuted an enemy of the family, who, under stress of torture, duly confessed to having com- mitted the murder, and was accordingly executed in a town where Masserano himself was residing/ 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 accus- tomed tour of the country. One of them returned alone, clad in the garments of the other, and was suspected of hav- ing 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. An- other 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 re- appeared and was duly put to death, as also was his father, to make amends for the blunder of the la^v.^ We have seen above, that, theoretically, the prisoner was entitled to have a copy of the secret evidence against him ; yet von Rosbach states that judges were not in the habit of permit- ting it, though no authority justified them in the refusal ;'' and ' Boyvin du Villars, Memoires, Liv. VII. 2 Godelmanni de Magis Lib. III, cap. x. 8 Process. Criminal. Tit. v. cap. x. No. 7. We have already seen (p. 453) that in France the accused was not al- DISREGARD OF JUSTICE. 479 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/ Even the in- alienable privilege of being heard in his det''ence was habit- ually refused 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.^ In the same way, the right to ai^peal from an order to torture was evaded by judges, who sent the prisoner to the rack without a prelimi- nary formal order, thus depriving him of the opportunity of appealing.^ 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.* If the irresponsible power which the secret inquisitorial process lodged in the hands of judges was thus fearfully abused in setting aside all the safeguards provided for the lowed to see the evidence against him; and the same rule was in force in Flanders — " Toutes depositions de tesnioins en causes criminelles demeur- eront secretes a I'egard de I'accuse." — Coutume d'Audenarde, Stile de la Procedure, Art. 10. (Le Grand, Coutumes de Flandre, Cambrai, 1 719, p. 103.) _ ' Diss. Inaug. cap. I. ^ xii. 2 Emer. a Rosbach Process. Criminal. Tit. v. cap. x. Nos. 8-16. — Si- mancse Cath. Inst. LXV. 17. 3 Bernhardi, loc. cit. The difference between the practice and princi- ples of the law is shown by the rules laid down in 1 647 by Brunnemann, coexisting with the above. He directs that the proceedings are to be ex- hibited 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. i. * Passerini Regulare Tribunal; Praxis, cap. viii. No. 170. 480 TORTURE. prisoner by law, it was none the less so in disregarding the limitations provided against excessive torture. A universal prescription existed that the torment should not be so severe or so prolonged as to endanger life or limb, or to permanently injure the patient ; but Senckenberg assures us that he was personally cognizant of cases in which innocent persons had been crippled for life by torture under false accusations ;' 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 ad- ministered without more or less dislocation of the joints.^ There is indeed something very suggestive in the direction which Siraancas 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 ac- countable for it in not spontaneously confessing the truth, ^ 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.* Godelmann, in fact, sums up by declaring that the degree and number of applications of torture must be left to the discretion of the ' Not. ad p. 907 Zangeri op. cit. 2 Del Rio Magicar. Disquisit. Lib. V, sect. ix. 3 Simancse cle Cathol. Instit. Tit. LXV. No. 56. 4 De Usii^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. INFLUENCE ON THE JUDGE. 481 judge, who is to proportion it to the quality of the accused and the strength of the suspicions against him/ 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 all authorities to have acted through malice, and his office was no protection against reclamation for damages.^ 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 pre- liminary evidence, he is punishable at discretion.^ The secrecy of criminal trials, however, offered an almost im- penetrable 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.* According to Damhouder, indeed, the judge could clear himself by his own declaration that he had acted in accord- ance with the law, and without fraud or malice.^ We are therefore quite prepared to believe the assertion of Sencken- berg that the rules protecting the prisoner had become ob- solete, and that he had seen not a few instances of their violation without there being any idea of holding the judge to accountability,^ an assertion which is substantially con- firmed by Goetz.'^ Not the least of the evils of the system, indeed, was its inevitable influence upon the judge himself. He was re- quired by his office to be present during the infliction of torture, and to conduct the interrogatory personally. Cal- ' Godelmanni de Magis Lib, ill. cap. x. ^ 36. 2 Zangeri op. cit. cap. i. No. 42-44. 3 Ibid, cap. in. No. 20-22. * Godelmanni 1. c. § 54, ^ Ca.p. xxxviii. No, 18. 6 Zangeri cap. ill. No. 20-22. ^ 7 Goetzii Dissert, de TorUira p. 74. 41 482 TORTURE. lousness 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.^ 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 justifica- tion of the act by the extortion of a confession ;^ 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.^ 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 tor- ment, testifies how utterly humanity yielded to the thirst of wringing conviction from the weaker party to the unequal ' So thoroughly was this recognized, that in 1668 Racine represents a judge, desirous of ingratiating himself with a young girl, as offering to ex- hibit 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 I'envie. IsABELLE, He ! Monsieur, peut-on voir souffrir les malhereux ? Dandin. Bon! cela fait toujours passer une heure ou deux." Les Plaidetirs, Acte III. Sc. derniere. 2 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 ssevitise et poenarum quibus inno- centem aflflixit?" (De Laud, Legg. Angl. cap. xxii.) 3 Occurrit hie cautela Bruni dicentis, si judex indebite torserit aliquem, facit reum confiteri quod fuit legitime tortus, de qua confessione facial nota- rium rogatum. — Rosbach. Process. Crim. Tit. v. cap. xv. No. 6. INFLUENCE ON THE JUDGE. 483 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 au- thority in criminal law, that the torture of sleeplessness, in- vented by Marsigli, was most excellent, for out of a hun- dred martyrs exposed to it not two could endure it without becoming confessors as well.' 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, re- signed the office whose duties he could no longer conscien- tiously 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 1 Quoted by Nicolas, Diss. Mor. et Jurid. sur la Torture, p. 21. This mode of torture consisted in placing the accused betv/een 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, 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 melan. choly monuments of human error. Those who may be curious in such mat- ters will find ample material in Grupen Observat. Jur. Crim, de Applicat. Torment., 4to., Hanov. 1754; Zangeri op. cit. cap. IV. No. 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. No. 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. 484 TORTURE. which was told to Aiigustin Nicholas at Amsterdam in ex- planation 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 door-step 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 ciuarrel. 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 dis- covered 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.-^ 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 insuf- ficient; the production of fresh evidence authorized a second and even a third infliction; a failure to persevere in confes- sion after torture rendered a repetition requisite ; and even a variation in the confession required confirmation by the rack or strappado.^ 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,^ and Del Rio mentions a case occurring in West- • Aiigustin Nicholas, op, cit. pp. 169, 178. 2 Zangeri cap. v. No. 73-83. 3 Damhouder. op, cit. cap. xxxviii. No, 3, 4. — Roshach. Tit. v. cap. XV. No. 14. — Simancas, however, declares that only two applications of torture are allowable (De Cathol. Instit. Tit, Lxv. No. 76, 81). ESTIMATE PLACED ON CONFESSION. 485 phalia wherein a man accused of lycanthropy was tortured twenty times;\ while Damhouder finds it necessary to reprove the excessive zeal of some judges who were in the habit of exposing obstinate prisoners to prolonged and excessive hunger and thirst, in the determination to extract a confes- sion from thera.^ 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.^ 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 ob- tained, was estimated at its true worthlessness. It was insuf- ficient 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.* 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.^ Such a result however was so totally at variance with the determination to obtain a con- viction which marks the criminal jurisprudence of the period that it was not likely to be submitted to with patience. Ac- cordingly the general practice was that if the confession was retracted, the accused was again tortured, when a second ' Disquis, Magicar, Lib. v, sect. ix. 2 Cap. xxxviii. No, 13. 3 Louise, Sorcelierie et Justice Criminelle a Valenciennes. (Valenci- ennes, 1861, pp. 121-125.) 4 Goetzii Diss, de Tortura p. 71. 5 Bodin de Magor. Daemonom. (Basil. 1581, p. 325.) 486 TORTURE. 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 ;^ 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.^ 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 when asked by the judge why he retracted his confession 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.^ 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.* Others solved the knotty problem by judiciously advising that in the uncer- tainty of doubt as to his guilt, the prisoner should be soundly 1 Zangeri cap. v. No. 79-81. 2 Bernhardi Diss. Inaug, cap. I. § xi. 3 Emer. a Rosbach, op. cit. Tit. v. cap. xviii. No, 13. — Godelmanni de Magis L, III. cap. x. ^ 52. — Gerstlacheri Comment, de Qucest. per Tor- menta p. 35. So Beccaria (Delitt. e Pene, ^ xri.) — " 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 giu- dice." 4 This custom prevailed in Electoral Saxony until the abrogation of tor- ture (Goetzii Diss, de Tort. p. 2^), and was especially the case at Amster- dam. Meyer (Institutions Judiciaires, IV. 295) states that the registers there afford scarcely an instance of a prisoner discharged without convic- tion after enduring torture. ESTIMATE PLACED ON CONFESSION. 487 scourged and turned loose, after taking an oath not to bring an action for false imprisonment against his tormentors/ but, according to some authorities, this kind of oath, or urpheda as it was called, was of no legal value. "^ 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 sus- picion.^ 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 subsequenth', 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.^ 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 evi- dence, confession amounted legally to nothing, even though proof were subsequently discovered.^ If, on the other hand, absolute and incontrovertible proof of guilt were had, and the over-zealous judge tortured in surplusage without extract- ing a confession, there arose another of the knotty points to ' Zangeri loc. cit. 2 Bernhardi, cap. I. \ xii. — Goetzii op. cit. p. 74. — Cf. Caroli V. Const. Crim. cap. xx. \ I. — Goetz (p. 67) derives zirpJieda from tw before, and fede enmity. 3 Goetzii Dissert, de Tortura p. 31. * Werner Dissert, de Tortura pp. 91-2. 5 Zangeri cap. ii. No. 9-10; cap. v. Xo. 19-28.— Damhouder. op. cit. cap. xxxvi. No. 36. 488 TORTURE. 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. ^ 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.^ 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 con- fessed should receive some punishment different from that provided for the crime, while the accomplice was to be dis- charged on taking a purgatorial oath.^ Nothing more con- tradictory 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 unfortu- nate, at the place of execution, chanced to assert his inno- cence, he was often hurried from, the scaffold to the rack in obedience to the theory that the confession must remain un- 1 Zangeri cap. v. No. i-i8. — Goetzii Dissert, de Tortura pp. 67-9. 2 Damhouder. op. cit. cap. xl. No. 3. — Bigotry and superslition, espe- cially, did not allow their victims to escape so easily. In accusations of sorcery, if appearances were against ihe 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 con- fession could be wrung from him, but was to be kept for at least a year, "squaloribus carceris mancipandus et cruciandus, soepissime etiam exami- nandus, praecipue sacratioribus diebus." — Riclcii Defens Aq. Probee cap. I. No. 22. 3 Zangeri cap. v. No. 53-61. — Goetzii Dissert, de Tortura p. 57. ATROCITY OK THE SYSTEM. 489 retracted ;^ 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 retrac- tion.^ 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.^ It was a minor, yet none the less a flagrant injustice that when a man had endured the tor- ture without confession, and was therefore discharged as innocent, he or his heirs were obliged to defray the whole expenses of his prosecution.* 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 vic- J Boden op. cit. Th. v. vi. 2 Goetzii Dissert, de Tortura p. 72. 3 Boden op. cit. Th. v. vi. 4 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. 490 TORTURE. tims make of everything that may be charged against them are true."^ 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 confes- sion 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.^ If anything were wanting to show how completely the in- quisitorial 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.^ We have seen above how great was the part of the Inquisi- tion in introducing and moulding the whole system of torture on the ruins of the feudal law. Even so, in the reconstruc- tion of European jurisprudence, during the sixteenth and seventeenth centuries, the ardor of the inquisitorial proceed- ings 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 em- ployment to an extent which, now is almost inconceivable. From a very early period, torture was recognized as in- dispensable in all trials for sorcery and magic. In 358, an edict of Constantius decreed that no dignity of birth or sta- tion should protect those accused of such offences from its ' Dissert. Mor. et Jurid. sur la Torture, pp. 36-7. 2 Ibid. p. 169. 3 Damhoud, Rer. Criminal. Prax. cap. 34, ^ 7. WITCHCRAFT. 49 1 application in the severest form.^ How universal its employ- ment 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. ^ It was therefore natural that all such crimes should be regarded as peculiarly subjecting all suspected of them to the last ex- tremity 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 were to be observed.^ 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 recep- tion 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 Comte, in stating this rule relates a most pathetic case of his own in which a 1 Const. 7 Cod. IX. xviii, 2 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 w^as accused of sorcery, he caused her to be inclosed naked in a sack v^ath. a number of cats. The suffering, though severe, failed to extort a confession. — Georg. Pachymeri Hist. Mich. Palaeol. Lib. I. cap. xii. 3 Bodini de Magorum Doemonoman, Lib. iv. cap. 2. 492 TORTURE. 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. Louise 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.^ Even ad- vocates and counsel could be forced to give evidence against their clients.^ 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 procure conviction;* 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.^ Even the wide-spread belief that Satan aided his worship- pers in their extremity by rendering them insensible to pain did not serve to relax the efforts of the extirpators of witch- craft, though they could hardly avoid the conclusion that they were punishing only the innocent, and allowing the 1 Boguet, Discours des Sorciers, chap. Iv. (Lyon, 1610.) 2 Louise, La Sorcellerie et la Justice Criminelle h Valenciennes. (Va- lenciennes, 1 86 1, pp. 133-64.) — For other similar instances see Bodin, op. cit. Lib. IV, Cap. i, 2. 3 Bodin. Lib. I. cap. 2. 4 Per legales testes hujus rei ad convincenduni fides certa haberi non potest. — Rickii Defens. Aquae Prolxie cap. ill. No. 117. ^ Idque facilius in excepto et occulto difficilisque probationis crimine nostro sortilegii admiserim quam in aliis. — Disquisit. Magicar. Lib. V. Sect. iii. No. 8. WITCH-TRIALS. 493 guilty to escape. Bogiiet, indeed, seems to recognize this practical inconsistency, ard, though it is permissible to use torture even duririg church festivals, he advises the judge not to have recourse to it because of its inutility.^ How little his advice was heeded, and how little the courts deemed them- selves able to dispense with torture, is shown in the charter of Hainault of 1619 where in these cases the tribunal is author- ized to employ it to ascertain the truth of the charge, or to discover accomplices, ox for any other purpose} In this di- lemma, 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,^ a process which served as an excuse for ,the most indecent outrages upon femg.le prisoners. Yet notwithstand- ing 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.* Dam- houder relates at much length a curious case v/hich 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 ' Boguet, Instruction pour un juge en faict de Sorcelerie, art. xxxii. 2 Soit pour ne trouver les delitz suffisament verifiez, ou pour savoir tous les complices, ou autrenient. — Chart, nouv. du Haynau, chap. 135, art. xxvi. (Louise, p. 94). 3 Nicolas p. 145. The curious reader will find in Del Rio (Lib. v. Sect, ix.) ample details as to the aits of the Evil One to sustain his follow- ers against the pious efforts of the Inquisition. * " Q'apres qu'on eut lave ses jambes, qui avoient et§ dechires par la torture, et qu'on les eut presentees 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 serieux et pleins de railleries; qu'il mangea avec apetit et but avec plaisir trois ou quatre coups ; et qu'il ne repandit aucuns larmes en souffrant la question, ni apres 1' avoir souffert, lors meme qu'on I'exor- cisa de I'exorcisme des Magicians, et que I'Exorciste lui dit a plus de cinq- uanie reprises 'prsecipio ut si sis innocens effundas lachrymas.' " — Hist, des Diables de Loudon, pp. 157-8. 42 494 TORTURE. examinations, she bore the severest torture without shrinking, sometimes sleeping and sometimes defiantly snapping her fingers at her judges. At length, during the process of shaving, a slip of parchment covered with cabalistic charac- ters was found concealed in her person, and on its removal she was speedily brought to acknowledge her pact with the Evil One.^ The tender-hearted Rickius was so convinced of this source of uncertainty that he was accustomed to admin- ister the cold water ordeal to all the miserable old women brought before him on such charges, but he is careful to in- form 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.^ 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 tor- ture that it is not improbable that the unfortunates occasion- ally were able to strengthen their endurance with some anaesthetic. 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.^ 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 1 Rerum Crimin, Praxis Cap. xxxvii. No, 21, 22. Cf Bninnemann- de Inquisit. Process, cap. viii. Memb. v. No. 70. 2 Rickii op. cit. cap. I. No. 24. 3 Boguet, Instruction pour un juge, art. xxix. — Damhouderi Rer. Crim. Prax. cap. xxxviii. No. 19. WITCH-TRIALS. 495 at their mercy, they were even yet not wholly at fault. The primitive teachings of the Inquisition of the thirteenth cen- tury 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.^ 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.^ 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.^ Simancas also considers such artifices to be illegal, and that a confession thus procured could be retracted.* Del Rio, on the other hand, while loftily condemning the outspoken trickery recommended by Sprenger and Bodin, proceeds to draw a careful distinction between dobuii bonum and dolum malum. He forbids absolute lying, but advises equivocation and ambiguous promises, and then, if the prisoner is deceived, • Sprenger Mall. Maleficar. P. in. q. xvi. — This was directly in con- tradiction 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. 2>^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. 2 Bodin. Lib. iv, cap. I. 3 Boguet, Instruction, art. xxvii. * De Cathol, Instit. Tit. xiii. No. 12. 496 TORTURE. he has only himself to thank for it.^ In fact, these men con- ceived 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 unfortu- nates 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 delibe- rately made up their minds in advance that, if chance should expose them to suspicion, they would at once admit every- thing that the inquisitors might desire of them, preferring a speedy death to one more lingering and scarcely less certain.^ 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 f 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 dioces of Como alone as many as a thousand had been burnt in a twelvemonth, while the annual average was over a hundred.* 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. ' Disquisit. Magicar. Lib. v. Sect. x. 2 Father Tanner states that he had this from learned and experienced men. — Tanneri Tract, de Proc. adv. Veneficas, Quoest. 11. Assert, iii. | 2. 3 Ibid. Ice. cit. 4 Nicolas, p. 164. THE NORTHERN RACES. 497 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.^ 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 mediaeval 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 Gragas, which dates from 1 1 19, 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 ' Chabot, Encyclopedic Monastique, p. 426 (Paris, 1827). 42"^ 498 TORTURE. 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.^ The object of this was to enable the family to obtain the fine from the seducer, and to save themselves 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^ — a provision doubtless explicable by the important part occupied by out- lawry in all the schemes of Scandinavian legislation. These are the only instances in which it is permitted, while its oc- casional abuse is shown by a section providing punishment for its illegal employment.^ Slaves, moreover, under the Icelandic, as under other codes, had no protection at law, and were at the mercy of their masters.* These few indica- tions 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 tor- ture 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 Wal- demarlL, 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 ^ " Ita torquatur ut nee plagam referat nee eolor cutis liveseat." — Gragds, Festathattr eap. xxxiii. 2 Ibid. Vigslothi eap. cxi. 3 Ibid. Vigslothi eap. Ixxxviii. * Schlegel Comment, ad Gragiis \ xxix. THE SCANDINAVIAN RACES. 499 no part of judicial proceedings.^ 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, en- couraged one of its greatest abuses in permitting it on crimi- nals condemned to death. '-^ 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 ex- tortion of confession was not recognized as a judicial expe- dient.^ 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 jury- men, 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.* Into these distant regions the Roman jurisprudence penetrated ' Legg. Cimbric. Woldemari Lib. 11. cap i,, xl. (Ed. Ancher, Hafnise, 1783). _ 2 Christiani V. Jur. Danic. Lib. i. cap. xx. (Ed. Wegliorst, Hafnise, 1698.) Senckenberg (Corp. Jur. German. T. I. Prsef. p. Ixxxvi.) gives the chapter heads of a code in Danish, the Keyser Retenn, furnished to liim by Ancher, in which cap. iv. and v. contain directions as to the adminis- tration 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. 3 Legg. Opstalbomica; ann. 1323 [ap. Gartner, Saxonum Leges Tres. Lipsise 1730). 4 Raguald. Ingermund. Leg. Suecor., Stockholmioe, 1623. 500 TORTURE. 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 tor- ture 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 be- lieved with respect to that of another.^ Such a principle, combined with the gradual growth of the trial by jury, doubtless preserved the law from the contamination of in- quisitorial 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.^ A clause in Magna Charta, indeed, has been 1 LI. Henrici I. cap, v. ^ i6. 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 insei^arable 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. — Dimelian Code, Bk. ii. ch. v. ^ 9. (Owen I. 425). 2 Many interesting details on the influence of the Roman law upon that of England will be found in the learned work of Carl GUterbock, " Brac- ton and his Relation to the Roman Law," recently translated by Brinton Coxe (Philadelphia, 1866). The subject is one which well deserves a ENGLAND — THE COMMON LAW. 50I 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.^ 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 Avay to state anything but of his own free will.^ Men who could more thorough consideration than it is likely to receive at the hands of English writers. It is curious to observe that the crimen Iccsce niajestatis makes its appear- ance in Bracton (Lib. ill. Tract, ii. cap. 3, § i) about the middle of the thirteenth century, earlier than in France, where, as we have seen, the first allusion to it occurs in 13 15. This was hardly to be expected, when Ave consider the widely different influences exerted upon the jurisprudence of the two countries by the Roman law. ' The passage which has been relied on by lawyers is chap. xxx. : " Nullus liber homo capiatur, vel imprisonetur, aut dissaisiatur, aut utla- getur, aut aliquo modo destruatur; nee super eum ibimus, nee super eum mittemus, nisi per legale judicium parium suorum, vel per legem terroe." 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 im- agined 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 re- striciions. Moreover, Magna Charta was specially directed to curtail the royal prerogative, and at a later period was not held by any one to inter- fere with that prerogative whenever the king desired to test with the rack the endurance of his loving subjects. 2 Et come ascuns felons viendrount en Jugement respondre de lour fe- lonie, 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, issint 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. 502 TORTURE. 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 sys- tematically deprived of all support and assistance. To do so, in fact, is classed with homicide by a legal writer of the period/ but that it was occasionally practised is shown by his giving a form for the aj^peal of homicide against judges guilty of it.'^ Under the common law, therefore, torture had properly no existence in England, and in spite of occasional efforts on the part of the Plantagenets^ the character of the national institutions kept at bay the absorbing and centralizing influ- ences of the Roman law.* 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 1 Per volunte aussi se fait ceste pesche [homicide] si come per ceux qui painent home taut que il est gehist pur avouer pesche mortelment. — Home, The Myrror of Justice, cap. I. sect. viii. — See also Fleta, Lib. i. cap. XX vi. ^ 5. 2 Ou faussement judgea Raginald .... ouissint; tant luy penia pur luy faire conoistre, approver que il se conoist faussement aver pesche ou nient ne pescha. — Home, cap. II. sect. xv. 3 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. ■* See Fortescue de Laud. Legg. Angliee, 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 i-oyalme d'Engleterre n'estait devant ces heures, ne a I'entent du roy nostre dit seignior et seigniors du parlement unque ne serra rule ne governe par la leycivill." — Rot. Pari,, ii Ric. II. (Selden's Note to Fortescue, loc, cit.) ENGLAND THE ROYAL PREROGATIVE. 503 against the French law for its cruel procedures, and with much satisfaction contrasts it with the English practice/ 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;^ and in 1485, Innocent VIII. remonstrated with Henry VII. respecting some pro- ceedings against ecclesiastics who were scourged, tortured, and hanged.^ Under Henry VIII. and his children, the power of the crown was largely extended, and the doctrine became fash- ionable 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 con- cerned in transactions which they knew to be in contraven- tion of the laws of the land. Sir Thomas Smith, one of the ornaments of the Eliza- bethan bar, condemned the practice as not only illegal, but illogical. "Torment or question, which is used by order ' De Laudibus Legum Anglise, cap. xxii. 2 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. 3 Partim tormentis subjecti, partim crudelissime laniati, et partim etiam furca suspensi fuerant. — Wilkins Concil. IIL 617. 504 TORTURE. . 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 15 71, respecting two miserable wretches whom he was engaged in racking under a warrant from Queen Elizabeth.^ In like manner. Sir Edward Coke, in his Institutes, de- clares — ''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 ad- dressed 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 superin- tended the examination.^ Coke's great rival. Lord Bacon, was as subservient as his contemporaries. In 16 19, 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.^ 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. ' Jardine, op. cit. pp. 8-9, 24-5. It is due to Sir Thomas to add that he earnestly begs Lord Burgkley to release him from so uncongenial an employment. 2 Ibid. pp. 8, 47. 3 Bacon's Works, Philadelphia, 1846, III. 126. ENGLAND THE ROYAL PREROGATIVE. 505 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 11. , whose marriage with Queen Mary was then under contemplation.^ 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 dog- maS; might come under the comprehensive head of construc- tive treason, and be considered to justify the torture even of women, as in the instance of Ann Askew in 1546;^ and of monks guilty of no other crime than the endeavor to pre- serve their monasteries by pretended miracles;^ but numerous cases of its use are on record, which no ingenuity can remove from the sphere of the most ordinary criminal business. Suspicion of theft, murder, horse-stealing, embezzlement, and other similar offences was sufficient to consign the un- fortunate accused to the tender mercies of the rack, the Sca- venger's Daughter,* and the manacles, when the aggrieved 1 Strype's Eccles. Memorials, III. loi. 2 Burnet, Hist. Reform. Bk. iii. pp. 341-2. 3 According to Nicander Nucius (Travels, Camden Soc, 1841, pp. 58, 62) the investigation of these deceptions with the severest tortures, Sa^avoi^ a-popnToi?, was apparently the ordinary mode of procedure. '^ Sir William Skevington, a lieutenant of the Tower, under Henry VHI , 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 unmeixifuUy. It ob- tained the nickname of Skevington's Daughter,, corrupted in time to Sca- venger's Daughter. Among other sufferers from its embraces was an un- lucky Irishman, named Myagh, whose plaint, engraved on the wall 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. 43 5o6 TORTURE. 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 ap- pears 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.^ The royal prerogative had begun to be too severely questioned to render such manifesta- tions 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 im- munity 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 sub- ject to torture in causa criminis lessee- majestatis f and no in- stance is on record to disprove the assertion.^ In one class of offences, however, torture was frequently used to a later date, and without requiring the royal inter- vention. As on the Continent, sorcery and witchcraft were regarded as crimes of such peculiar atrocity, and the aversion 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 con- viction which in many cases could only be obtained by con- fession. We have seen that among the refinements of Italian torture, the deprivation of sleep for forty hours was consid- ered by the most experienced authorities on the subject to be ' Jardine, pp. 53, 57-8. 2 Qp. cit. p. 65. WITCH-TRIALS IN GREAT BRITAIN. 507 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 tor- ture was not infrequently resorted to, without the limitation of time to which it was restricted by the more experienced jurists of Italy. ^ Another form of torture used in Great Britain, which doubtless proved exceedingly efficacious, was the ''prick- ing" adopted to discover the insensible spot, which, accord- ing 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.^ 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."^ 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 ' 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." — Idt'd. p. 126, 2 Cobbett's State Trials, VL 686. — Although ostensibly not used to ex- tort confession, this pricking was practically regarded as a torture. Thus in 1677 the Privy Council of Scotland "found that they (z. lidarity of, 13,18 Father and son, rule as to torture of, 473 Fees payable to champions, 173/1., 3 74 for ordeals, 360 for administering torture, 485 Feini, responsibility of kindred among, IS tribal responsibility, 39ra. judicial duel among, 100 ordeal used by, 238 tortuie not used by, 392 Felouie-i, champions not allowed in, 170 to be tried by ordeal, 233 Females incompetent to prosecute, 18 incompetent as witnesses, 112 admitted as witnesses, 201 Fendilles and Des Guerres, duel of, 207 534 NDEX. Ferdinand and Isabella, their laws on torture, 409, 410 Ferri Judicium, 252 Fetishism respecting Eucharist, 31)4 Feudalism, j udicial processes of, 414, 451 resists abrogation of compurga- tion, 72 resists abrogation of duel, 192 resists introduction of torture, 435 destroyed by Roman law, 1S6 Feudal law, torture under, 411 Fian, Dr., tarture of, 509?i. Fiefs, disputed, decided by water or- deal, 285 Figeac, Abbey of, its advocates, 175 Fijodalgo, privileges of, 23 Fines for insults, 167 for defeat in duel, 150, 153, 192, 193 for default iu duel, 155 for defeated conjurators, B6ln. Fire, ordeal of, 266 in Greece, 236 use of, as torture, 409 Flamen Dialis relieved from oaths, 34ri. Flanders, compurgation in 16th century, 76 punishment for default m duel, 155 merchants exempted from duel, 180 duel legal in 16th century, 209 ordeal obligatory in second accu- sations, 340 evidence withheld from accused, 479n. Fleta, multiple oaths in, 27 conjurators in, 79 Fleurant de Saint-Leu, case of, 443 Fleury, Abbey of, vindicated by St. Benedict, 302 Floating of magicians and witches, 2S7 Flower-buds iu fire ordeal, 277 Foix and Armagnac, duel between, 195, 198 Fontaines, Pierre de, does not allude to compurgation, 70 use of torture unknown to, 430 Fontanelle, Abbey of, its ordeal iron, 253 Forchheim, Jews convicted by bier- right, 316 Forath, foreoath, 88 Forez, evasion of duel in, 13In. Formulas of compurgatorial oath, 53, 66 Fortescue on torture in England, 502 Fourteen the minimum age for tor- ture, 387 France, legislation as to oaths, 22n. compurgation in 9th century, 45 in 12th century, 61, 63 formula of compurg. oath, 53 cope of St. Martin used for oaths, 55 decline of compurgation, 70 witness liable to duel, 111, 112 women and clerks not allowed to testify, 112 women admitted to testify, 201 serfs admitted as witnesses, 113 witnesses held harmless by principal, 113 challenging of judges, 114, 116 limitations on judicial duel, 128, 134 liability of Jews to duel, 136 France — questions of rank in duel, 136 claims of churchmen to the duel, 143, 146 penalties of defeated combat- ants, 152 weapons allowed in duel, 157 kinsmen as champions, 159 general use of champions, 160, 171 penalty of defeated champions, 164 restriction on duel in communes, 179 decline of duel, 190-208 repression of cold water ordeal in 17th century, 291 ordeal of cross, 296, 298 ordeal of lot' 312 ordeal obligatory, 334 ordeal in absence of evidence, 335rt.. ordeal obligatoiy on convicts, 340 ordeals as punishment, 310 witnesses to be present at or- deal, 353 disappearance of ordeal, 365 introduction of torture, 428 development of torture, 432, 446 lese-majestii recognized, 437 inquisitorial process introduced, 451 perfected bv Francis I. 453 revised by Louis XIV. 456 nobles not exempt from torture, 465n. disuse of torture, 518 Francis, St., of Assisi, offers fire ordeal, 271 Francis I. challenges Charles V. 97 grants judicial duel, 206 perfects inquisitorial process, 453 Franconia, purgatorial oaths in, 23rJ. Frangens j'lyjurandum, 43 Franks, compurgation used by, 32 ordeal among, 210 compounding for ordeals, 347 torture of slaves, Sf'S torture of freemen introduced, 396 Fredegonda, case of, 37 use of torture by, 396 Frederic Barbarossa uses duel to destroy Henry the Lion, 124 exempts merchants from duel, ISO orders iron ordeal for slaves, 257 gives defendant choice of ordeal. 336n. uses torture as punishment, 417 Frederic II. omits compurgation in Sicilian Laws, 69 but admits it in Germany, 74 compels ecclesiastics to duel, 144 grants choice of weapons to de- fendant, 157 provides champions at public ex- peiise, 169 commands champions to use teeth and hands', 164 exempts towns from duel, 181 denounces the duel, 186 prohibits the ordeal, 364 uses torture as punishment, 417 commences use of judicial tor- ture, 423 his persecution of heresy, 425 Frederic of Mainz acquitted by Eu- charist, 308 INDEX. 535 Frederic the Great restricts use of torture, 51-1 Fre.dum, or public fine, 16». Free judges, accusatorial conjura- tors among, 91 Freemen not subject to torture in Greece, 374 nor in Eomau EeinTblic, 376 become subject under Empire, 377 independence of, among Barba- rians, 392 not tortured among Ostrogoths, 398 are tortured among Wisigoths, 401 torture of, in Spain, 406 obliged to attend the courts, 413 Freedmen not tortured against patron in Kome, 384 torture of, among Ostrogoths, 399 among Wisigoths, 400 Frese, Georg, on fire ordeal, 264 Frisia, ordeal prolonged in, 365 Frisians, compurgation among, 32 valuation of oaths among, 44 confidence felt in compurgation, 56 perjured conjurators, 59 judicial duel among, 105, 110 lituft entitled to dael, 135 hot water ordeal. 248 ordeal of lot, 313 ordeal prolonged, 365 torture not used by, 393, 499 Frithh'rr^n, 39%. Froissart's account of duel of Car- rouges, 202 Frotho III. introduces judicial duel, 101 Fuero Juzgo, 69 use of torture in, 403 Fnero of Madrid, compurgation in, 69n. Fuero Viejo de Castiella, 74 Fulk the inquisitor, cruelty of, 427 Fulk Nera of Anjou grants juris- diction of duel, 144 Furstenberg, Count of, permits iron ordeal, 264 G^TJM, ordeal used in, 236 Gnlnnna^ .51 Galbert, his explanation of the ordeal, 3.50 Gallius, Q., tortured by Augustus, 376 Gallows, fragment of, to detect witches, 333 Gaston IV. of B^arn grants the For de Morlaas, 175 Gaul, judicial duel not mentioned in, 100 torture of widows, 393 Geneva, ecclesiastical supervision of duel, 175 Gengulphus, St., miracles by, 2")1 Gentle blood, privilege of, in duel, 136 Gen.i, the Roman, 15 GeofFry of Vendome complains of monkish duellist. 141 George III., duel abrogated under, 216 George IV. abolishes torture in Han- over, 517 George Pachymere on iron ordeal, 263 Gerald, St., of Braga, case of, 330 Gerard of Cambrai on torture for heresy, 415 Gerberga drowned as a witch, 283 Germain, St., his rivalry with St. Martin, 331 Germans, ancient, judicial duel among, 103 Germany — see Alamanni, Angli, Ba- varians. Ripuarians, Laws of. Also, Sacksen.s-piegel, Sach- sische Weichbild and Schwa- henspiegel. purgatorial oaths, lln. purgatorial oath of father, 39w. number of compurgators, 37 jurnmentum stipermortuiim, 52 compurgation maintained, 75 inquisition in 13th century, 82 accusatorial conjurators, 89 appeals from judgment, 117 duel encouraged by Otho I., 119 restrictions on judicial duel, 129 questions of rank in duel, 137 cripples forced to present cham- pions, 139 duels fought by women, 139 penalties for defeat in duel, l.o3 for default, 155 equal advantage to combatants, 157 early use of champions, 169 right to employ champions, 160 disabilities of champions, 167 exemptions of towns from duel, 181 duels betweenkindred forbidden, 191 hot water ordeal universal, 249 red hot iron ordeal, 256 cold water ordeal in disputes about lands, 285 in witch-trials, 287 used till 19th century, 293 divination by lo% 313n. bahr-rechtin, 320 conditions of ordeal in, .334, 336 ordeal for slaves, 339 ordeal obligatory in second accu- sations, 341 persistence of ordeal, 366 extra-judicial use of torture, 417,418 introduction of torture, 421, 446 final torture system, 461 gradual abolition of torture, 515 revival of torture, 517 Gerode, Abbey of, employs iron or- deal, 25^ Geroldus converts Mecklenbergers, 243 Gerstlacher defends use of torture, 515 Gervaise Caussois, case of, 443 Getter's case of bier-right, .322 Ghee, boiling, ordeal of, in India, 2-49 Ghent, duel not legal in, 179 Giovanni Gualberto, St., authorizes fire ordeal, 268 Giraldus Cambrensis on study of Roman law, 67'm. Gladiators assimilated to champions, 166 subject to torture in Rome, 382 Glanville, jury trial attributed to him, 46n. Gloucester, Statute of, 212 Gloucester, Thomas of, code of duel, 212 Gobereen, ordeal of, in Rajmahal, 226 God, judgment of, 94 interposition of, 217 Godelmanu on cold water ordeal, 288, 289 536 INDEX. Godfrey, St., his charter to Amiens, 178 Godi, or Norse priest-jndge, 25 decides as to compurgation, 49 Godwin, Duke, his death by corsuaed, 301 Golden Bull, torture in, 446 Gothic liturgy preserved by duel, 123 by fire ordeal, 274 jurisprudence, 397 Goths — see Osir( goths and Wisigoths. compurgation not used by, 32 ordeal among, 241 use of torture by, 397 Gout, questions as to torture in, ■ 472 Graefe, Johann, denounces torture, 512 Grdgds — see Iceland. Grauiiuatico, Thomaso, on punishment for suspicion, 460 Gran, synod of, in 1099, on theordeal,356 Graudier, Urbain, his trial for sorcery,493 Gratiau on prohibition of ordeals, 35S on extorted confessions, 420 Grave, oaths taken over the, 52 Grease, anointing with, in duel, 206 detection of witches by, 468 Greeks, social organization among, 14 traces of wer-gild in, 15 oaths, form of, 24 use ot torture, 373 Greek Empire, ordeal used in, 236 red-hot iron ordeal, 263 ordeal of fire, 275 precautions used in ordeal, 354 Gregory I. on oaths as ordeals, 324 rejects extorted confession, 419 Gregory II. prescribes oaths for clerks, .34 Gregory III. penitential of, 28 Gregory VII. tried by cold water ordeal, 285 employs Eucharist ordeal, 309 ordeal improvised by, 310 Gregory IX, prescribes compurga- tion for heresy, 81 Gregory of Tours, purgatorial oath of, 27 accused of slander, 396 Grenoble, accused denied a hearing in, 457 Grillandus prescribes use of com- purgation, 85 Grimkel, Bishop, tests relics by fire, 278 Grimoald seeks to restrict judicial duel, 105 restricts right of slaves to the duel, 135 Grossolano of Milan, case of, 268 Guarantees of oaths required, 21 Guardians bound to present cham- pions for wards, 139 Gudrun, her triumph in ordeal, 335 Guelf, House of, founded on a duel, 123 Guibert of Nogent uses ordeal on heretics, 356 Guicciardini on Savonarola's ordeal, 274 Guido, Emperor, allows combat to ecclesiastics, 140 Guido of Fescara, miracle wrought by, 142 Guilds, responsibiliiy of members of, 39 Gulathingenses Leges — see Magnwf of Norway. Gundeberga, Queen, case of, lOi I Gundobald prescribes judicial duel, 103 urges it to repress perjury, 109 Gunner's case, 79 GUnther, 6. F., on abolition of tor- ture in Saxony, 515 Gushtashp converted by ordeal, 260 Gustavus Adolphus, compurgation in laws of, 77 Giiterbock on Bracton, 500m, Guy of Elanders forbids the duel in Bruges, ISO Gwentian Code— see Walts. HACO HACONSEN, his legislation, 18 selection of compurgator's, 46 relaxes forms of compurgatorial oath, 54 prohibits ordeal, 365 Hainault, penalty for default in duel, 155 use of torture in witch-trials, 493 Hair, floating of, in cold water or- deal, 280 Hair-relics tested by fire, 278 Hale, Sir Matthew, on law of duel, 214 Halle, cruel treatment of, by Lothair II., 417 punishment for suspicion in, 460 case of torture in, 472 Hamburg, ordeal in 1670, 264 Hand, loss of, penalty for perjury, 59 sealing of, in iron ordeal, 254 of champion benefited by ordeal, 259 Hanover, torture abolished in 1819, 517 Harold Blaatand converted by or- deal, - 260 Harold the Simple abolishes the duel, 177 Harry, slave, convicted by bier-right, 322 Haute Justice, marks of, 192 torture a prerogative of, 410, 441 Henry II., Emperor, accepts chal- . lenge of Hermann of suabia, 124 restricts use of champions, 168 allows duel to the guilty, 122 prescribes water ordeals for slaves, 284 Henry lil., Emperor, on selection of compurgators, 40, 50a. challenges Henry I. of France, 120 grants jurisdiction of duel to the church, 145 Henry IV., Emperor, accepts chal- lenge to duel, 123 his charter to Pisa, 177 declines the Eucharist ordeal, 310 Henry V., Emperor, his charter to Venice, 52 Henry 11. (England), bleeding of his corpse, 316 Henry III. (England) prohibits the ordeal, 363 Henry VIII., England, use of tor- ture under, 503 Henry II. (France) swears not to grant duel, 207 Henry III. (France) reforms Norman customs in 1583, 73 Henry IV. (France), his edicts against duels, 96n. his pardons for duels, 98 INDEX. 537 Henry II. (Navarre) revises Bear- nese code, 74 presides at a duel, 206 Henry of Liinbnrg, warning miracle, 303 Henry of Lorraine, his right to pre- side over duels, 208 Henry the Liou, case of, 124 Heresy, compurgation for, 81-85 torture in trials for, 408, 425 Heretics, conviction of, by the ordeal, 356, 357, 363 tortured for confession, in 1025, 415 tortured in Holland, 512 Herigarius proves the truth of Chris- tianity, 331 Herkiasuccumbs in ordeal, 335 Hermann of Slavonia prescribes com- purgation, 78 Hermann of Suabia challenges Hen- ry II., • 124 Hidulf, St., intercession by, 329 Hildebert of Le Mans on torture, 416 Hildebrand— see Gregory VII. Hincmar objects to compurgation, 44 on boiling water ordeal, 244, 247 on cold water ordeal, 280 the water ordeals plebeian, 283 on regulations of ordeal, 338 Hindu ordeals — see Indi r. Hinduism, family organization in, 14 Hiouen Thsang on iron ordeal, 234 on fire ordeal, 277 on cold water ordea.l, 281 on ordeal of balance, 295 •on poison ordeal, 328 Hired champions, 161,169,171 Hirpi, 252 Hoel Dda, laws of, 20, 43 juramentum /mpermot tuum in, 52 duel not mentioned in, 101 Holland, ordeal of balance in, 296 disuse of torture in, 513 Holm- gang, 101 abolition of, 176 Holy Ghost, ordeal of, 310 Holy wafer, legends concerning, 304 Homer, judicial duel in, 99 Homicide cases, duel requisite in, 130 Honorius III. prohibits the ordeal, 366 Honorius of Autun on functions of priests, 358 Horatii and Curiatii, 95 Home attributes jury trial to Glan- ville, 46w. attributes judicial duel to Al- fred, 106w . Host, superstitions concerning the, 304 Hot- water ordeal, 244 in Japan, 221 Hugh, Bishop of Die, 57 Hugh of Provence, duel of, 118 Hugues - le- Grand challenged by Louis d'Outremer, 120 Hungary, duel in, 142 duel restricted in 1492, 208 introduction of ordeal in, 243 ordeal of balance in, 296 witnesses to be present at or- deal, 354 ordeals administered by the church, 360 Hungary — fees for ordeals, 360 use of torture, 449 Husband and wife, rule as to torture of, 473 Hunger and thirst, torture of, 485 Hutchinson on African ordeals, 222 TARNSIDA, IS 1 torture not alluded to in, 498 Iceland, transferring of suits in, 17 responsibility of kindred, 18 compurgation, .33, 76 judges decide as to compurga- gation, 49 compurgation in default of evi- dence, 50n. form of compurgatorial oath, ,54 accusatorial conjurators, 90 judicial duel, 101 punishment for default, 155 abrogation of duel, 176 hot water ordeal, 248 red-hot iron ordeal, 257 conditions of oi'deal, 336«. early use of torture, 497 Ichis regis and cnpituli, 146 Idol-water in Indian ordeal, 304 lesnm^, or accusatorial oath, 27n. Illinois, bier-right in, 323 Imagination, power of, in ordeals, 344 Imbrico of Augsburg perishes by the Eucharist, 310 Impartiality in ordeals, rules for, 353 Imprecations, use of, ia Assyria, 227 Independence of the freeman, 16, 391 India, single combat in, 96 use of ordeals in, 234 hot water ordeal in, 249 red-hot iron ordeal, 254 fire ordeal in, 277 relics tested by, 277 ordeal of cold water, 281 of balance, 294 of endurance, 299 of consecrated rice, 303 of the lot, 311 conditions of, 334 as punishment, 339, 344 torture not used, 373 ordeals of pre-Aryan races, 225 Infamous men, ordeal compulsory on, 340 witnesses, torture of, 470 Infamy inflicted on champions, 16S Informers, liability of, in Roman law, 381, .387 in Wisigothic law, 401 Innocent, the, condemned for pre- vious misdeeds, 351 convicted by torture, 469, 478, 483 Innocent I. deprecates torture, 419 Innocent II. prescribes compurga- tion, 57 prohibits ecclesiastical duels, 141 Innocent III. modifies conjuratorial oath, 66 prescribes compurgation for heresy, 81 538 INDEX. Innocent III. — explains condemnation of the innocent, 127 prohibits ecclesiastical duels, 141 condemns hot water ordeal, 24S prohibits the ordeal, 363 Innocent IV. releases church of Notre Dame from duel, 143 prohibits ecclesiastical duels, 144 directs the use of torture, 425 Inquest, torture not used in, 441 procedure in, 452 Inquest of Fame, 65 Inquisition, compurgation used by, ' 81 use of ordeal on heretics, 363 its influence on Spanish law, 408 use of torture in, 425 secrecy of proceedings, 426 cruelty of, 427 used in trials of Templars, 427 denies counsel to accused, 428 influence of, on use of torture, 451 Inquisition of State, in Venice, 448 Inquisition-process, torture used in; 441 Inquisitorial process, not used in Spain, 410 development of, 4.51 unlawful in England, 500 introduced under Tudors, 503 still used in Germany, 518 Inscription of accusers in Rome, ■ 381, 387 Instruments of torture, number of, iS3n. International questions, duel in, pro- hibited by Charlemagne, 11 frequently employed subse- quently, 120 Inundation of 1219 caused by ordeal, 365 Invalids, questions as to their tor- ture, 472 Ireland, responsibility of kindred in, 18 tribal responsibility, 39n. judicial duel, 100 miraculous guidance of judg- ments, 238 ordeal of boiling water, 239 ordeal of lot, 312 ordeal of oath, 326 torture not used, 392 Iron bands, punishment of, 329 Iron, red-hot, ordeal of, 252 in Sweden, 89 among Arabs, 231 among Parsis, 233 in Greece, 236 Irregular ordeals, 328 Isidor of Seville, his theory of oath, 29«.. Islam, oaths and ordeals in, 229 Italy — see also Lumhard Law, Sicilian Gcnatitutions, etc. judicial duel imposed on all races, 121 use of champions in, 168 duel prohibited in 1505, 209 iron ordeal in 1329, 263 ordeal of cross in, 297 commencement of tortiire in, 423 nobles not exempt from torture, 465 «. Italy- abolition of torture, 522 Ivo of Chartres, his doubts as to compurgation, 57 refuses to order the duel, 145 his opinion as to ordeal, 349, 358 claims exemption for clerks, .358 on extorted confessions, 420 Ives, St., intercession by, 330». JACINTUS of Ravenna, his ordeal, 215 James I. approves cold water ordeal, 29] on bier-right, 318 superintends torture, 509n. Janssen, Hendrick, torture of, in 1803, 513 Japan, judicial duel in, 99ii. ordeal in, • 221 Jardine on torture in England, 503 Jarnac and Chastaigneraye, duel of, 98 Jayme I. of Aragon prohibits the duel, 187 prohibits the ordeal, 366 Jeanne de Bourgogne offers the duel, 200 Jfffaite.ed, 89 Jerome, St., miracle in a case of tor- ture, 381,390 Jerusalem, Assises de, 69 use of lawyers recommended, 65?i. rejection of negative proofs, 68 compurgation not alluded to, • 69 women and clerks not i-eceived as witnesses, 112 minimum limit on duel, 135 discriminations of race in duel, 138 regulations to procure cham- pions, 139 duel not irsed in admiralty court, 148 penalties of defeated combat, ants, 152 special penalty for women, 154 swearing of champions, 162 defeated champion hanged, 163 limitations on champions in criminal cases, 171 red-hot iron ordeal, 257, 262 conditions of ordeal, 337 torture introduced, 422 Jew, miraculous conviction of, 184 Jews should not be forced to com- purgation, 84 oaths among, 26 liable to duel, 136, 138 ordeals among, 228 ordeal used to convert, 260 belief in bleeding of murdered corpse, 316 convicted by bier-right, 316 torture not used by, 372 of England, torture of, by King John, 418 case of torture of, 433 cruel punishment of, 444n. Johanan ben Saccai, 229 John XII. declines the duel, 120 his crimes, 359/». INDEX, 539 John of France abrogates compur- gation in Lille, 73n. John of England tortures Jews, 41S John of Coldingham, 170 John of Avranches on the duel, 3.58 Johnson's case, in 1S24, 344 Jonah, use of lot, 229 Joscelin of Die, conviction of, 325 Jrvem Inpi'lfim jurare, 237 Judaism, oaths in, 26 Judges, challenging of, 113 penalty when vanquished, 116 inspiration of, in Islam, 230 among Feinl, 238 cruelty of, in Bohemia, 415 cannot he witnesses, 449 abuse of torture by, in Spain, 405, 407, 409 in Germany, 468, 475, 479 liability of, in Wisigothic law, 402 in France, " 454 in Germany, 462, 468, 481 discretion of, as to torture, 466, 480, 484, 486 as to torture of witnesses, 470 influence of torture system on, 481 exempt from torture in Naples, 465w. Judgment of God, 94, 217 Judgments, guarantee of, among Feini, 238 Judicialduel, 93 Judicdumftrri, 252 Jvdicinm aqhcefrigidcB, 279 Judicium crucis, 296 Judirinm offce, 299 Judith of Northumberland tests relic by fire, 278 J7tifie, 252, 262 Julius II., Pope, prohibits the duel, 209 Jura de juicio, 22w. Juramentuni supermrrtutim, 52 Jtiratnres — see Compurgators. Jury-trial originates in compurga- tion, 45 in Normandy, 133 obviates use of torture, 497, 498, 499, 500 Jus Provinciale Alamanuicum— see S'^'hwabenspitgd. Jus Provinciale Saxonicum — see Sachne n Spiegel. Jusiers, church of, privileges grant- ed to, 143 Jusjurandum necesssarium and in j^ire, 2\n. Justinian, his laws as to torture, 381 enforces the talin, 381 commands torture of witnesses, 382 KALABAKESE ordeals, 221 Kalabar-nut, ordeal of, 222 Kayser-Recht, limitations on duel, 181 denounces the duel, 186 torture not used in, 421 Keller, Friedrich, on torture, 512 Ktiure de Bruges, 180 Kfyser Retenn, torture used in, 499n.. Khonds, ordeals among, 225 Kilty, Chancellor, on duel in Mary- land, 216 Kinraid, witch-pricking by, 507 Kindred, solidarity of, 13, 18 evidence of, 36n. as compurgators, 36, 38, 42, 45, 47 as champi ms, 1.58 duels forbidden between, 129, 191 not received as witnesses in Spain, 407 witness not tortured against, 471 King V. Williams, ^ 80 Kinswoman, punishment of, 19 Kluntz, Peter, on Eucharist ordeal, 311 Kmetho, or Polish serf, 16n. Knighthood, championship required of, 165 Knipschild on privileges of nobility, 465 Knox, John, on challenges of Both- well, 211 Koran, multiple oaths in, 43». T A CHASTAIGNERAYE and Jar- Ij nac, duel of, 98 Ladislas of Hungary, laws of, 243 Lambert of Tuscany, case of, 118 Lambert of Redenberg, case of, 319 Lamoignon on counsel for accused, 456 Lance of St. Andrew, case of, 270 Lancellotti defines use of compurga- tion, 85 Lands acquired by judicial duel, 102 disputed, ordeal of cross in cases of, 296, 299 Lang, J. P., on cold water ordeal, 292 Languedoc, cruelty of Inquisition in, 427 charter of 1315, 436 Laon, robbery of church of, 126, 285, 416 Lard, use of, to detect witches, 468 Lascaris, Theod., torture invented by, 491n. La Seauve, Abbey of, fees for ordeals granted to, 360 Lateran, IV. Council, forbids the duel, 141, 184 prohibits the ordeal, 218, 363 Latins, ordeal among, 237 Lausanne, duels in ecclesiastical court, 145 Lawyers, advantage of employing, 65 influence of, in Germany, 463n. Laymen, sin of shaving by, 351 Leather, dress of, in duel, 206 Lecky on witcli-trials and torture, 507, .509 Legal questions settled by duel, 119, 121 procedure uselesin witch-trials, 492 Legitimacy, ordeal for, among Celts, 239 miraculous pi'oof of, 333 Le Gris and Carrouges, duel of, 202 Lemariuier, Jehan, case of, 456n. Lemgow, witch trials in, in 1583, 288 Length of rope in cold water ordeal, 280 Lent, ordeals allowed during, 356 Leo III. tried by Charlemagne, .33 cold water ordeal attributed to, 282 Leo IV. condemns the ordeal, 355 Leper, cure of, by St. Martin, 331 Lepers, battle not allowed to, 129 Lese-majestti, first allusion to in France, 437 in England, 50ln. 540 INDEX. Lessingon, case of church of, 110 Leudastes, case of, 396 Lex apparens ox paribilis, 13i Lex Oundebalda, 103 Lex M onachorum, 357 Lex Talionis, 150 . enforced in Rome, 381 even for slaves, 387 in Wisigothic lavF, 401 in Spanish law, 406 abandoned in torture-process, 452 Libo and Silanus, prosecution of, 384 Lie, the, not necessary in duel, 202 Liege, case of torture in, 447 Liege, Bishop of, claims the duel, 144 Liguaire, St., relics of, bestowed by- lot, 314 Lilburne and Claxton, case of, 218 Lille, responsibility of kindred in, 19 compurgation in, 72 torture not used in, 439 Lillebonne, synod of, on ecclesias- tical duellists, 140 Limitations on judicial duel, 128, 133 of torture disregarded, 480, 484 Lindenbruck on the corsnajd, 302 Lindisfarne, story of priest of, 305 Lioba, St., of Bistlioffsheim, 297 Lithuania, judicial duel in, 108 Litus can prove freedom by duel, 135 Liutgarda, case of, 119 Liutprand, his law as to conjurators, 5S seeks to abolish judicial duel, 105 Liutprand. Bishop, his recourse to the duel, 120 Liutprand of Milan undergoes fire ordeal, 268 Livingston, Dr., on African ordeals, 222 Livonia, ordeal introduced in, 366 Lombard law on compurgation, 45 selection of compurgators, 47 limitation of compurgation, 48 compurg. in default of evidence, 50n. form of oath-taking, b') foimula of compurgatorial oath, 53 perjury in compurgation, 58 witnesses compared with conju- rators, 58 duel in place of compurgation, 62 persistent use of duel, 104 punishment for refusing duel, 122 duel not used in cases of treason, 132 limitations on duel, 134 slaves entitled to duel, 135 oaths required of combatants, 149w. penalty of defeated combatants, 150 kinsmen as champions, 159 \ise of champions universal, 160 use of champions restricted, 168 freedmen as champions, 165 hot-water ordeal, 248 water ordeals for slaves, 284 duel in witch-trials, 2Sln. ordeal of cross, 298 no allusion to torture, 393 Lombardy, use of torture in, 425 nobles not exempt from torture, 465ra. Long Parliament fails to abrogate duel, ^ 214 Lorraine, dukes of, their right to pre- side over duel, 208 23n. 131W. 311 228 231 237 217 Lorris, purgatorial oaths in, evasion of duel in, Lot, ordeal of, among Hebrews, use of, in Islam, in Greece, Lothair and Teutberga, killed by Eucharist ordeal, 308 Lothair I., compurgation in default of evidence, 50w.. prescribes form of oath-taking, 55 condemns cold water ordeal, 283 prohibits ordeal of cross, 298 Lothair II., his treatment of Erfurt and Halle, 417 Loudon, ordeals as punishment in, .340 Louis-le-Dfcbonnaire, tries Pascal I., 34 on selection of compurgators, 47 compurg. in default of evidence, 50n,. condemns cold water ordeal, 283 on ordeal of cross, 297, 298 his laws on holding courts, 413 Louis II., Emperor, compurgation in default of evidence, 50n Louis IV., Emperor, exempts Dort- mund from duel, 182 punishes Ueberlingen, . 317 Louis d'Outremer offers duel to Hugh-le-Grand, 120 Louis VI. (France), his charters to serfs, 113n. Louis VII., his charter to Lorris, 23n.. exemptions from duel granted by, 143 Louis VIII. his charter to Crespy, 179 Louis IX., legislation as to oaths, 22n. on statements by advocates, 65n. does not recognize compurgation, 70 his legislation on the duel, 116, 129, 190 condemns Eng. de Coucy, ] gin- torture not used by, 429 on criminal procedure, 452 Louis X. struggles to abolish duel, 20O orders cold water ordeal for witches, 287 establishes use of torture, 436 Louis XIV. reforms the criminal pro- cedure, 456 Louis XVI. abolishes torture, .520 Lourdes, duel restricted in, 178 Louvain, buri^her of, challenged by Bishop of Liege, 144 Lower Empire, ordeals under, 213 iron ordeal in, 263 Lowes, torture used in trial of, 507w. Loy Gombette, 103 Lubeck, use of torture in, 424 Lucius III. pronounces ordeal void, 362 Luitzes and Saxons, quarrels of, 121 Lycanthrophy, torture in, 485 Lyons, Archbishop of, uses ordeal on heretics 357 MACPHERSON on ordeals in Orissa. 225 Madagascar, ordeal in, 224 Madrid, Fuero of, compurgation in, d^n. Magi test by fire the swaddling cloth of Christ, 278 INDEX. 541 Magicians, loss of weight by, 287 tortured in Rome, 3S0 Magna Charta, no reference to tor- ture in, 501 Magnus of Norway, on selection of compurgators, 46 form of compurgatorial oath, ot Mahomet's accusation of Ayesha, i3n. use of oaths by, 229 Mahuot and Plouvier, duel of, 20.5 Maine, Sir H., on social organiza- tion, lo Mainier of Paris, on Roman law, G7n. Mainz, Council of, in £48, on iron ordeal, 2o7 in S8S and 1028, prescribe the ordeal, 356 Mainz, Templars offer iron ordeal, 263 Majorca, duel prohibited in, 187 ordeal prohibited in, 366 Malliim, or judicial assembly, 16 held in public, 413 Manasses of Rheims, case of, 57 ' Manava Dharma Sastra — see Manu. Maudeure, ordeal of staff in, 315 Manicheans, ordeal used on, 357 JIanu, Laws of, village communi- ties in, 14 oaths prescribed in. 24 ordeals in, 234 character of evidence, 373 Mausuetus, St., intercession by, 32^n. Marc, value of, ' ]31n. Marcus Aurelius, exemptions from torture by, 379 Marculfus, selection of compurga- tors, 40 Maresca, Marc Antonio, case of, 459 Maritime law, its derivation from Roman, 148 Marmoutiers, case of Abbey of, 352 Marriages, cousangainity in, decid- ed by ordeal, 355 Marschalck, case of, 151 Marsigli on bier-right, 317 on abuse of torture, 468 his torture of sleeplessness, 483 condemns deceit to prisoners, 495». Mnrter-kainrncr, or toi'ture-cham- ber, 472 Martial, St., miracle wrought by, 321 Martin of Austrasia, his death, 28 Martin, St., his superiority to St. Germain, 331 his cope, used to swear on, o.> Mary, Empress, case of, 258 Marv of Scotland prevents Botli- well's duel, 211 Maryland, wager of law in, 81 appeal of death in, 216 Massachusetts, appeal of death in, 214, 216 Masters, slaves not tortured against, 383, 406 except in cases of majes- tatis, 385 other exceptions, 385 not allowed to offer slaves iu evidence, 386 Mathieu-le-Voyer, his suit with the king, 193 Matthew of Westminster on prohi- bition of ordeal in England, 364 Maubourguet. dnel i-estricted in, 180 Maur, St., relics of, 325 Maximilian 1. restricts compurga- tion, 75 1 Maximus on evidence of slaves, 385 I Mazdeism, responsibility of kindred in, * 14 ordeals in, 232 torture not prescribed in, 373 ' Mecklenburg, ordeal introduced in, 243 Men, red-hot iron ordeal for, , 257 Menelans and Paris, duel between, 99 \ Mercantile law, duel not used in, 117 i Mercantile cases, torture in, 477 ■ Merchants, multiple oaths by, 27 I exempted from duel, 180 Merida, Council of, iu 606, on tor- I ture, 491 I Meroviogia-n-s, torture under the, 396 ! Merseburg, robbers convicted by I Cham lions, 169 ' Metz, duel in ecclesiastical court, 147 : Michael Paleologus, iron ordeal for, 263 Milan, fire ordeal in, . 26S I thief convicted by oath on relics, 323 ; Miles the Stammerer, duel of, 127 Milhaud, use of torture in, 440 j Mindeu, bier-right in, 320 i Minimum limit in judicial dnel, 129, 133 I Mir, or Russian cammunal society, 1,5 Miracles— for perjury ou relics, 30,324 conviction of a Jew, ISt conviction of thief in China, 22S) acquittal of homicide in Islam, 231 wrought by Ponce of Audaone, 250 by St. Gengulphus, 251 i bv St. Bertfand of Commiu- ges, 251, 326 reversal of hot iron ordeal, 265 of Eucharist, 305 iu loosening bands of iron, 329 in proving Catholic orthodoxy, 330 wrought by St. Martin, 331 convicts saved bv St. Nicholas and St. Olaf, " 332 wrought by confession and re- pentance, 2t)l, 350 constantly to be expected, 368 Aroman accused of adultery pi-e- served by, 381 in a case of torture, 415 iModena, iron ordeal in 1329, 263 Modestinus ou evidence under tor- ture, 388 Mome d-i C'aP.n — a kind of t)rtare, 45-5 Monnchorum Lex, 357 Monasteries, torture in, 497 Monks as duellists, 141 ordeals claimed by, 357 torture of, in England, 505 Montaigne denounces torture, oil Moutafgis, story of dog of, 202 Monte Casino, monks of, test relic by fire, 278 Mouteil on professional champions, 171 Montesquieu, his error as to the Salic Law, 331, 347 on use of torture, 518 46 542 INDEX. Mont-Ogier, case of torture in, 433 Montpellier, consent of both parties requisite for duel, 138 for ordeal, 337 Moravia, judicial duel in, 108 Mosaic Law, oaths in, 26 ordeal in, 2'28 absence of torture in, 372 Moslem, oaths among, 277A., -iSn., 230 ordeal among, 231 Mozarabic liturgy preserved by duel, 123 triumphs in fire ordeal, 274 Mstislas Davidovichjhis treaty with Riga, 181 Muh-Wang on Divine government, 219 Multiple oaths, 27 Municipal champions, 174 Muntaner, his account of Pedro III. 97 Muratori on cold water ordeal, 293 Murder, appeal of, 212, 216 detected by bleeding of corpse, 315 Murray, James, challenges Both- well, 211 Mutilation of defeated champions, 164 Myagh, Thomas, torture of, uOon. Myrc, John, instructions to priests, 212 328 206 IKJAGA used as ordeal, J-V Nails pared in duel, Namur, State Council of, refuses to prohibit duel, 210 Naples — see Sicilian Oon.< Eed-hot iron ordeal, 2.52 Eed- water, ordeal of, 222 Eegiuger challenged by Hsnry IV. 123 Eeims, legislation as to oaths, 22n. liability of witnesses to duel. 111 duels in ecclesiastical court, 145 restrictions on use of champions, 172 Eeims, councils of, pi-escribe the or- deal, 357, 35S Eeinward of Minden, avenged by bier right, ^ .320 Eelics u.sed for oaths, 27 iu Wales, 29 not required at the gallows, .500 veneration for in Wales, 3l7i. tested by fire ordeal, 277 oaths on, as ordeals, 30, 324 Eeligion, misguided influence of, 523 Keligious rites in ordeal, 235, 245 Eemy of Dorchester, case of, 259 Eepentance condones crime, 276 etfect of, on ordeal, 350 annuls conviction by ordeal, 261 Eepetition of torture prohibited, 457 how justified, 484 Ee;iresentation in estates determined by duel, 119 Eepiisals allowed by law, 16 Resxrvfi desi preiive-f, torture with, 458 Eesponsibility of accusers, 1.50, 381, 3S7, 401, 406 of conjurators, 60 of judges, 402, 454, 462, 468, 481 Eestrictions on judicial duel, 128, 178 on torture, 406, 464 Eesults of ordeal doubtful, 353 Eetraction of confesion under tor- ture, 404, 433, 442, 462, 4S5 Eeversal of judgment by duel, 114 Ehodians, torture customary, 374 Eice, ordeal of, in India, 3 '3 Eichard I. at thefuneialof Henry II., 316 torture of his page, 416 Eichard 11. challenges Charles VI., 95 Eicharda, Empress, offers iron or- deal, 257 Eichstich Landrecht, on use of law- yers, 65 ordeal obligatory in 2d accusa- tions, .341 ordeal maintains its place in, 366 torture not used iu, 421 Eickius on hot water ordeal, 249 on cold water ordeal, 290 on ordeal of balance, 295 46 Eickius— on torture in witch trials, 492, 494 Eiculfus, case of torture of, o97 Eiea, merchants of, relieved from duel in Eussia, 181 Eipuariau Law, duel in, 104, 109 ordeal of fire in, 267 ordeal of lot, 312 ordeal in default of compurga- tion, 338 torture not alluded to, 392 Riom, restrictioa on duel in, 179 Eisbach, Council of, on iron ordeal, 256 Eites, sacred, in ordeals, 235, 245 Eobters not admitted as champions, 165 Eobert the Pious, his notion of per- j ury, 30 prohibits Eucharist ordeal, 309 Eobert Curthose and his children, 259 Eobert III. (Scotland) limits duel, 210 Eodolph I. limits the duel, 181, 187 objects to use of torture, 417 Eodolph 11. confirms privilege re- speccing duel, 208 Eodriguez, Juan, case of, 469 Eoger of Naples, his charter to Bari, 178 Eouie, social organization in, 15 oaths and ordeals in, 237 priests relieved from oaths in, 347i. influence of. over Goths, 106 belief in King Pyrrhus's extra toe, 277 Eome, Synod of, in 384, on use of tor- ture, 419 Eoman citizenship, privileges of, 381 Eoman Law, importance of oaths in, 21 evidence of kindred rejected, 36n. influence of, 67 its rapid spread in 12th century, 67n. its influence on feudalism, 185 it undermines the duel, 186 and the ordeals, 368 torture system in, 376 influence of, iu Spain, 405, 408 in Germany, 463 in Scotland, 508 not admitted in En:,'laud, i02 Eope, length of, in cold water or- deal, 280 Eopes requisite iu legal torture, 483n. Eosbach, J. E. von, his treatise on Criminal Law, 464n. Eotharis, his laws on compurgation, 45, 48 seeks to limit judicial duel, 104 Eotruda, St., her relics tested by fire, 279 Scturier, discrimination against, in duel, 137 Eoumania, recent use of torture, 622 Eoyal court, no appeal from, 116 R-ailLe, 1.50 Eumor justifies torture, 466 Euskaia Prawda — see Ruasia. Eussia, social organization in, 15 wer-gild in, 15 judicial duel in, 108 rules as to weapons in duel, 158 use of champions, 173 foreign merchants exempted from duel, 181 546 INDEX. Eussia — duel in 17tli century, 210 ordeal in, 240 hot water ordeal in, 248 red-hot iron ordeal, 257 converted by fire ordeal, 272 superstitious trials for theft, 2S^'4 ordeal in spite of evidence, 336 ordeal for accuser, 33S torture introduced in, 4o0 disuse of torture in, 516 SACHENTAGE, torture of, 418 Sachsenspiegel — purgatorial oaths in, 22%. purgatorial oath of father, 39n. advantage of lawyers, 65n. compurgation in, 7o accusatorial coujurators, 89 appeals from judgment, 117 restrictions on duel, 129, 13i questions of rank in duel, 137 penalty for defeat in duel, 153 for default, 155 regulation of weapons, 157 right to employ champions, 160 champions for the dead, 139 disabilities of champions, 167 hot water ordeal, 249 hot iron ordeal, 256 cold water ordeal for lands, 2S5 conditions of ordeal, 334 ordeal obligatory in second accusatious, 340 torture not used in, 421 Sachsische Weichbild — oath in reclaiming stolen horse, 25v . pui-gatorial oath of father, 39'?. juramentum snpermortuum, 52 compurgation in, 7o accusatorial conjurators, 89 restrictions on judicial duel, 129 questions of rank in duel, 137 penalty for defeat in duel, 153 right to employ champions, 160 duel only in criminal cases, 1 81 ordeals for the dead, 2')Sn. ordeal obligatory in second ac- cusations. 341 Sacmmentales — see Compurgators. Sacrifices to sauctify oaths, 25 Safeguards provided for ordeal, 353 Saga of Burnt Njal, 17 of Viga Glum, 26 of Egil Skallagrimsson, 102 St. Andrews, witch-pool of, 292 St. Aubin, Abbey of, case of, 142 St. Baseul, Council of, .344 St. Brieuc, Bishop of, claims juris- diction of duel, 147 St. Clement of Pescara, Abbey of, 142 St. Disier, torture not used in, 438 St. Martin-des-Champs, jurisdiction of, 440, 442, 458 Saint-Pe, Abbey of, fees for ordeals granted to, ' SevO St. Queutin, customs of, 114 St Remy, Abbey of, claims jurisdic- tion of duel, 146 St, Sergins, citsp of priory of, 127 St. Seuiin, altar of, 90 St. Vaast d'Arras, Abbey of, claims jurisdiction of duel, 146 Saints, their interposition in behalf of ci'iminals, 332 Salic Law, compux'gation in, 32 number of compurgators re- quired, 40 compurgation in default of evi- dence, 48 perjury of conjurators, 59 accusatorial conjurators, 86 judicial duel, 103, 109 ecclesiastical duels, 140 ordeal, 240, 334 hot-water ordeal, 248 additions to, oi-deal of cross in, 298 ordeal in default of compurga- tion, 338 compounding for ordeals, 347 torture only for slaves, 394 Salt, imprecation of, in Kajmahal, 303 Salvation, exclusive, deductions from, 523 Salzburg, Council of, in 799, pre- scribes the ordeal, 355 Samaritan legend of fire ordeal, 276 Sancar, case of, in 1783, 255 Sanche of G ascony uses water ordeal, 28 1 Sanctio of Orleans escapes by com- purgation, 57 Sanctorum sortes, 313 Sand-bag used in duels, 213 Sa7idf.mf.7id, or Danish jury, 498 Sanila and Bera, duel of, 108 Suiaad, 51 Sarnga, poison used in ordeals, 327 Sassy-bark, ordeal of, 222 Satan, his aid to witches in ordeal, 264, 288, 289, 293 in torture, 492 Satfinr, ordeal of, in Rajmahal, 226 Sathee, or Indian Rice, used in or- deal, 303 Savonarola offers the fire ordeal, 272 Saxo Grammaticus asserts antiquity of duel, 101 Saxon LaAV — see Sachftenfipiegel. Saxon Feudal Law, ordeal in, 337 Saxons, judicial duel among, 105 torture not used by, 393 Saxons and Luitzes, quarrels of, 121 Saxony, no defence allowed to ac- cused, 474 disuse of torture in, 516 Scales, ordeal of, 294 Scandinavian races, torture in, 498 Scavenger's Daughter, 505 >§ tikingnh.en, 322 Schwabenspiegel, purgatorial oaths in, 23 juramentum superm,ortuum, 52 compurgation in, 75 accusatorial conjurators, 89 Judgment of God, 94«. appeals from judgment, 117 distinctions as to guilt, 126 restrictions on judicial duel, 129 questions of rank in duel, 137 penalty for defeat in duel, 153 for de."ault. 155 N D E X , 547 Schwabenspieoel — cripples forced to present cham- pions, 189 disabilities of champions, 167 restrictions on champions, 169 duels forbidden between kins- men, 191 hot-water ordeal, 249 iron ordeal, 253 conditions of ordeal, 334, 337 ordeal obligatory in second accu- sations, 341 torture not used, 421 Schweinfurth, Dr., on African or- deals, 223 Schwerin, Synod of, denounces the duel, ]8.3?i. Scialoja on punishment for suspi- cion, 4")9 Scipio endeavors to prevent duels, 100 use of oath by, '237 Scober, James, a witch-pricker, 507 Scotland, selection of coinpurgatoi's, 41 compurgation in default of evi- dence, 50w. alternative compurgation, 53 compurgation in 14th century, 76 restriction on champions, 170 exemption from duel in towns, 180 persistence of duel, 210 water ordeals servile, 284 cold water ordeal in witch-trials, 291 bier-right, 318 bribes'forbidden in ordeal, 354 ordeal restricted, 364 use of torture, 508 torture a surplusage, 509 abolished in 1709, 510 Scott, Sir Walter, on bier-right, 318 Scourge, use of, as torture, 409 Scribonius on cold water ordeal, 288, 2S9 Scuz iarn, 25 5 Secrecy of inquisitorial process, 426, 452 forbidden by Philippe-le-Long, 438 evils of, 481 Seota, 78 Secular legislation against the ordeal, 363 Security required of combatants, 155 Sfffuidors, 48 Seignorial jurisdiction exercised by church, 147 courts, torture used by, 440 Sejanus, plot of, 376 Selection of defence allowed to ac- cused, 334 Selingenstadt, council of, in 1023, prescribes the ordeal, 356 Semites, use of ordeal among, 227 use of torture among, 372 Semperfri, privileges of, in duel, 137 Senchus Mor — see Feini. Senlis, case of torture in, 432 Sens, Archbishop of, employs Eu- charist ordeal, 309 Serfs allowed to act as witnesses, 113 cannot challenge a freeman, 129 enfranchised to serve as wit- nesses, 135 entitled to the duel, 136 torture of, 431 Serpent used as ordeal, 328 Servia, judicial duel in, 108 duel still legal in, 210 Severus, Sept., his law as to evidence of slaves, 385 Sexhendt^Tnan, iin. Seyne, Count of, case of, 82 Shadrach, Meshach, and Abednego, 267 Shakespeare on bleeding of mur- dered corpse, 316 Shaving, sin of, in laymen, 351 used in witch-trials, 493 Shaw, Lieut., on Hill-tribes of Raj- mahal, 14 Sheriff, his presence at ordeal re- quired, 354 Shower-bath as punishment, 450». as torture, 451 ?>. Shrewsbury, Countess of, case of, 506 Shrift of duelist, 212 Shrines of saints, oaths on, 325 Sicilian Constitutions, compurgation of not alluded to witnesses as champions, ordeals ridiculed in, introduction of torture in. Sierra Leone, ordeals in, Sigurd Thorlaksson, case of. Silence required of spectators duel, justifies torture, Silesia, judicial duel in, Simancason compurgation, on universal use of torture, condi-mns deceit, Simon de Montfort limits the duel Simony, trials for, compurgation in, ordeal denied in. Sin, expiation of, by confession, Single ordeals, Sita, trial of, by ordeal, Skevington's Daughter, Slcirfla, a Norse ofdeal, Skull of chimpanzee, ordeal of, Slavs, social oi'ganization among, persistence of compurgation, judicial duel used by, vitality of duel among, ordeal used by, ordeal introduced by the church, 243 Slaves can prove freedom by duel, 135 iron ordeal used for, 257 water ordeals for, 283 evidence of, in Eussia, 336«. ordeal for, 339 torture of, in Greece, .374 in Rome, 382 not tortured against masters, 383 except in cases of treason, 385 protected by inscription, 3S7 torture of, among Barbarians, 393 among Ostrogoths, 398 amoug Wisigoths, 400 in Spain, 405, 409 against masters, in Germany, 446 in Iceland, 498 Slavonia, use of compurgation in, 78 Sleeplessness, torture of, see Vigils. Smith, Sir Thomas, on torture, .503 Snake-fang, ordeal of, 221 Soaper"s case of appeal of death, 216 70 162 364 423 222 353 207 463 108 82 410 495 184 54, 57 85 33371. 350 244 234 505 w, 240 221 15 77 108 210 240 548 INDEX Soavo, municipal champion in, 174 Sobarnoie Ulogeuiti, duel in the, 210 torture in, 451 Soest, Laws of, accusatorial conju- rators in, 89 duel prohibited in, 179 Soissons, Bishop of, uses ordeal on heretics, 356 chapter of, claims jurisdiction of duel, 146, 198 synod of, prescribes the ordeal, 356 Soldier* exempted from torture by Diocletian, 379 Solidarity of the family and tribe, 14 Solidus, value of, 134w. Sorcery used by judges, 468 Sorcerers, challenge between, 203 loss of weight by, 287 tortured in Rome, 380 among Ostrogoths, 399 among Franks, 411 their confessions not evidence, 462 S'-rtes sa/nctorum, 313 Soto, or trial for adultery, 229 Souabe, Miroirde, ordeal maintained in, 3^6 South Carolina, wager of law in, SD duel legal in, 216 Spain, legislation as to oaths, 22- . episcopal oaths in, 34??.. compurgaion in lUh century, 62 in medieval codes, 69 in Castile, 74 negative proofs disallowed, 68 duel u.«ed in early times, 100 liturgical question settled by duel, 122 . by ordeal of fire, 274 distinctions of rank in duel, 138 restriction on use of champions, 173 limitations on duel, 188 shape of ordeal iron, 253 paternity decided by ordeal, 2')9 ordeal in 16th cent., 311, 3r>l, 367 use of lot, 314n. ordeal obligatory for abandoned women, 341 disappearance of ordeal, 366 us:e of torture, 403 torture used for extortion, 418 vigils off a torture, 4S9 torture abolished in 1812, 518 Spanish colonies, torture in, 468, 518 Speculum Saxonicuui — see Sachsen- spugel. Speculum Suevicum — see Schwaben- spiegef. Spectators of duel, silence required of, 207 Spiritual courts, duel in, 144 Spoon, ordeal of, among Arabs, 231 Spreuger on ordeals and duel, 187 on iron ordeal, 2f>4 cold water ordeal unknown to, 287 on bier-right, 320 recommends deceit, 495 Staff, ordeal of, 345 Standsfield, Philip, convicted by bier- right, 319 Stai'A-oken, 240 Staundford, Sir Wm. on the ordeal, 367 Stephen V., ordeal condemned by, 343 Stephen, St., laws of, 243 grant to Abbey of Zala, 142 Stocknfiffn, 46 Stonyng's case, use of torture in, 505 Strappado, torture of, 407, 455 Strasbourg, heretics of, 261 Style on compurgation, 79 Styria, duel limited in, ISV Suabia, accusatorial conjurators in, 90 Suabian Law — see Schwnben ,spii-gel. Suabian Feudal Law, ordeal in, 337 Subico of Speyer undergoes Euchar- ist ordeal, 308 Submergence, amount of, in cold water ordeal, 280 Substitutes ia ordeal, 346 for torture system, 515 Succession, law of, decided by duel, 119 Sudebtnick allows champions, 173 use of torture in, 451 Sudras, cold water ordeal for, 281 poison ordeals confined to, 328 Suidger of Munster, his power of ex- orcism, 266 Suits, speculation in, 17 Superstitiv>n, perpetuity of, 369 Surlet, Gilles, case of, 447 Suspicion of guilt purged by ordeal, 337 punishment for, 4.J8 Swaddling-cloth of Christ, 278 Swantopluck of Bohemia, use of tor- ture by, 417 Sweden, compurgation and jury trial, 46 compurgation used in 17th cen- tury, 77 accusatorial conjurators, 89 red-hot iron ordeal, 253, 262 paternity decided by ordeal, 259 prelates subjected to ordeal, .358 fees for ordeals, 361 orde.il prohibited, 365 torture not used, 499 SAvithin, iSt., intercession by, 3S0n. Switzerland, disuse of torture in, 51 6 recent case of torture, 522 Sylvester II., ordeal condemned by, 343, 355 Synagogue, sanctity of oath in, 26 'rACITUS makes no 1 Tacitus (Emp.) j mentionof duel, 103 torture of slaves, 385 Tahiti, divination in, 224 Tai-ki, or Supreme Power, in China, 219 Talio (the) — see Lex tnlioni.s. Tangena nut, ordeal of, 224 Tanner on witch trials, 490 Taoism, tendencies of, 220 Tarbes, church fees for ordeal, 360 Tassilo, ordeal alluded to by, 240 Teeth, loss of, in duel, 132 Templars offer the iron ordeal, 263 torture used in their trials, 427 Temple, the, oath taken in, 26 Territorial privileges in declining duel, 1.30 TffitimonU., 4S Testimony made known to accused, 415 INDEX, 549 Testimony — Avithheld from accused, 453 absence of, requisite for ordeal, 335 Teutlberga, CHse of, 247 Teutonic Kuights introduce the or- deal, 366 Texas, recent case of torture in, 522 Thanes required as compurgators, 44 Thangbrand, the apostle of Iceland, 176?i. Theodore, Penetential of, 28 Theodore Lascaiis orders iron or- deal, 263 Theodoric seeks to repress the duel, 106 torture in Edict of, 398 Theodosius the Great exempts priests from torture, 380 Thomas Aquinas on the ordeal, 184 Thomas of Gloucester, his rules for the duel, 152 Thomas, Christian, opposes torture, 513 Thornton aud Ashford, case of, 215 Thrace, ordeal in, 350 Thariugians, iron ordeal among, 256 Tiberius, his delight in torture, 376 eludes restriction as to slave tor- ture, 384 Tibet, ordeal in, 236 Tickling of soles, torture of, iSSn. Tiers-Etat, its influence iu abolish- ing duel, 177 Tiht-byxig man, ordeals for, 340 Tison, Marie, case of in 1788, 520 Tithes, case of, determined by ordeal, 356 Toads as evidence justifying torture, 467 Toe-relic of King Pyrrhus, 277 Toledo, 13th Council of, on torture, 403 Tooth-relic of Buddha tested bv fife, 277 Torture, ' 371 cold water ordeal a preparation for, 288, 290 aud ordeal are mutual substi- tutes, 371 ordeal supplanted by, 343 ordeal regarded as, 343 Toulouse, duel forbidden at, 197 officials exempt from torture, 436 Tournay, customs of, oOn. duel restricted in, 179 ordeals as punishment in, 340 Tours, Council of, in 923, prescribes the ordeal, 356 Tout Lieu de St. Disier, 438 Towns, champions of, 174 Townships, responsibility of, 39n. Trade, its influence adverse to duel, 180 Trajan protects masters against evi- dence of slaves, 3S5 Tralles, laws of, 15 Transylvania, cold water ordeal in 18th century, 293 Travaucore, ordeals iu, 250 Treachery a prerequisite for the duel, 188 of champions, provision against, 164 Treason, duel requisite in cases of, 132 legalizes torture in Rome, 380 no limitation on torture in trials for, in Spain, 409 toi'ture in, iu Germany, 446 in Corsica, 447 Treason — torture of witnesses in cases of, 470 toiture in England for, 505 ceases in 1610, 506 torture as punishment for, 417 Trent, Bishop of, tried by compurga- tion, 57 Trent, Council of, prohibits duel, 209 Tresteaux, grand et petit, 444 Treves, Council of, in 1227, pi-ohibits ordeal of hot iron, 363n. Tribur, Council of, in 895, prescribes the ordeal, 356 on iron ordeal, 257«. enjoins Eucharist ordeal, 307 ordeal for failure in compur- gation, 339 Trinity proved by miracle, 331 Triple" ordeals, 244 Triumviri capitales as official tor- turers, 386 Truth, symbols of, iu Egyptian courts, 372 Trvx iam, 253 Tucca the Vestal, case of, 238 Tuers, Nicholas, case of, 322 Turgau, story of priest of, 304 Turks, divination among, 232 refuse to try the fire ordeal, 272 Tuscany, use of torture iu, 425 abolition of torture in 1786, 522 Twflfhe.ndeman, 44w. Twins count as one man in Wales, 158 Twyhindufi , iin. Tylor, E. B., on ordeals in Borneo, 224 on Bible ordeal, 296 on ordeal of Bible and key, 315 Tyndareus, oath exacted by, 25 TTEBERLINGEN, Jews convicted U by bier-right, 317 Ugo of Tuscany, case of, 333 Ulpian asserts exemptions from tor- ture, -379 on evidence under torture, 388 Ulagenie Zakonof, torture in, 450 Ulric of Cosheim, case of, 123 Unchastity, punishment of, 305 United States, wager of law in, 80 appeal of death in, ■ 216 bier-right in, 322 divining rod in, 370 use of shower-bath in, 450%. recent case of torture, 522 Untersuchungschaft, or Inquisitorial process, 518 Upstallesboom, laws of, absence of ordeal in, 365 absence of torture in, 499 Upton prescribes equality between combatants, 158 on the duel in 15th century, 204 Urim and Thummim, 228 Urpheda, 487 Usury, questions as to torture in, 476 Uta, compurgation of, 37 Utrecht, disuse of torture iu, 513 VAISYAS, cold water ordeal for, 281 Valence, Council of, iu 855, 22 S50 INDEX. Valence, Council of— condemns the duel, 183 in 1248, refuses counsel to accused, 428?i. Valenciennes, privilege of duel in, 205 fees for torturing in, 485 urges abolition of torture, ,')20 Valeatinian I., exemptions from tor- ture by, 380 Valeutinian II., requires inscription for slaves, 387 Valerius Maximus on torture, 389 Valtelliue, use of torture in, 448 Value of extorted confession, 485, 487 Van Arckel, judicial duel of, 9t) Vannes, Council of, condemns tlie lot, 313%. Vai- niravg, or Pehlvi ordeal, 233 Varieties of ordeal, 243 of torture in Greece, .375 in Rome, 3^0 in Spain, 407, 409 in France, 453, 455 in Germany, 483 r?. in England, 505 in Scotland, 609 Vase of Soissoiis. story of, 3^1 Vatsa, Rishi, undergoes the ordeal, 234 Vehmgericht, accusatorial conju- rators in, 91 Vengeance, private, legalized, 13, 16 Venice, compurgation in, 52 use of torture in, 448 nobles not exempt, 465w. Vermandois, appeals in, 115 nobles of, demand the duel, 200 charter of 1315, 436 Verona. Council of, 122 duel at discretion of podesta, 133 institution of champions, 168 equalization of champions, 173 ordeal of cross in, 297 use of torture in, 423 Vestals, not required to take oaths, 34??. ordeals used by, 237 Vexilbim crtiris-, 29,9n. Vezelai, heretics condemned by or- deal, 357 Vidame, 175 Vienna exempted from duel, 181 case of bier-right in, 321 Viescher, his Treatise on the Duel, 91»-. Viga-Olum's oath, 26 Vigils of Florence, torture of, 483 severity of, in England, 507 in Scotland, 5()s in Spain, 489 Villadiego condemns compurgation, Sin. on torture, 408 Villein not allowed to challenge judge, 115 regulations concerning duel, 136 no rights accorded to, 431 Villeneuve, consuls of, exempt from torture, HO Villon, torture of, 453ri. Vincent, St., martyrdom of, 391 Virgin, the, image of, at Cardigan, 31) interposes to convict a Jew, 184 her interposition to save, 368 Virginia, bier-right in, 320, 323 VUhanaga, poison us'^d in ordeals, 328 Vives, Juan. Luis, deoounces tor- ture, 511 Vladislas II. restricts duel in Hun- gary, 208 Voltaire denounces use of torture, 519 Volterra, church of, jurisdiction of duel, 145 Vomere,9 igniti, 252 Vnrnge.ia or Russian sorceress, 291 Vuillermoz, Guillaume, case of, 492 WAGEXSEILontheSota, 229?i. Wager of Law, 13 Wager of Battle, 93 Waldemar II., Constitutions of, 39 stncknpffn, 46 ordeal prohibited, 31)5 torture not alluded to, 498 Wales, laws of — compensation for injuries, 17 legislation as to fines, 19 punishment of kinswoman, 19 responsibility of clerks, 20 purgatorial oaths, 23 multiple oaths, 27 relics lequired iu litigation, 29 veneration for relics, 31w. the raith, or compurgation, .36, 38 number of compurgators re- quired, 38, 41 selection of compurgators, 42 raith sets aside evidence, 51 Jurn.rnnntum .itipermo tuuw, 52 forms of compurgatoiial oath, 55 raiths taken iu churches, 55 duel originally not used, 101 questions of rank in duel, 138 twins cjunt as one combatant, 158 strangers as champions, 165 relics not required for confession at gallows, oOOn. Welsh and Saxons, ordeals between, 242 War, duels forbidden during, 196, 199 Warrantor lia.))le to duel, 112 Water of jeilousy, 229 Water, boiling, ordeal of, 244 used in Japan, 221 in Rajmahal, 226 in Mazdeism, 232 in Tibet, 233 among Fe:ni, 39 among Goths, 241 among Norsemen, 335 severity of, 3l3w.. Water, cold, ordeal of, 279 use of, as torture, 450 Watei'-torture, process of, 453 Wax, divination by, 232 Wealrefif, 4in. Weapons of witnesses blessed. 111 choice of, iu duel, 156 Weichbild — see SachftisrJie W. Wolf of Altorf subjected to ordeal, 284 Welf of Bavaria, 123 Wells, poisoning, cases of, 445 Weuceslas of Boliemia reforms cruelty of courts, 415 We.r-gHff, or blood-money, 14 Wer--;ild, nature of, J 7 INDEX 551 Wer-gild — traces of, in Greece and Eome, 15 in Rnssia, 15 in Poland, 16 of ecclesiastics, 20 Moslem, or Di4, 27n. connected with compurgation, 36 oath rated according to, 44 Werner, J. F., defends use of torture, 514 Westbury, Monastery of, 37 Westphalia, accusatorial conjura- tors in, 89 cold Avater ordeal in, 2SS, 289 West-1'russia, witch-trials in ISili century, 293 Whipping, torture in cases involv- ing, ^ 477 Widow not liable to dnel, 133 Wier on cold water ordeal, 287 Wife, torture of, in husband's pres- ence, 473 William Clito, his privileges to mer- chants, ISO William the Conqueror introduces judicial duel in England, 108 William of Ely, compurgation of, 65 William of Holland, his oath of knighthood, 165n. William of Utrecht perishes by the Eucharist, 310 AVilson, Christian, convicted by bier-right, 319n. Winterbottom, Dr., ou African or- deals, 222 Wirtemburg, torture used till 1836, 517 Wisigoths, their civilization, 398 their Romanizing tendencies, 107 value of oaths, 21 evidence of kinsmen rejected, 36?^. duel abandoned, 107 duel revived, 108 regulations of torture, 399 Witch-bridle, 508 Witchcraft, tests of, 333 unconscious, 490 Witch-Pool of St. Andrews, 292 prickers, 507 Witches, loss of weight by, 287, 295 aid of Satan for, 2b'4, 2>S, 289, 293, 492 insensibility to torture, 493 extent of persecution, 496 burned in 1722 in Scotland, 511 Witch-trials, ordeals not to be used in, 1 87 iron ordeal in, 256, 264, 355 cold water ordeal in, 286 falls into desuetude, 287 revived in 16th centnry, 288 influence of, on torture, 490 in England, 506 in Scotland, 508 torture used in Rome, 380 among the Franks, 411 in Russia, 450 confession is not evidence, 4fi2 evidence to justify tortrrre, 167 detection by greased boots, 468 retraction of confession, 485 imprisonment to extort confes- sion, 488 use of torture in, 490 difficulty in proving guilt, 491 Witch-trials — deceit to procure confession, 495 use of pricking, 507 severity of, in England, 506 in Scotland, 508, 510 Witikind and Charlemagne, duel be- tween, 121 Witnesses, kinsmen as, 36 compared with conjurators, 57 of defeated pleader fined, 10971. 149 liability of, to duel. 111 come armed to court, 111 their weapons blessed. 111 must be able to bear arms, 113 as champions, 161 penalty when defeated, 163 restricted in employing cham- pions, 172 women admitted as, 201 ordeal of cross for, 297 to be present at ordeal, 3 )3 slave, torture of, in Greece, 375 torture of, in Rome, 382 priests exempted, 380 not tortured among Barbarians, 395 except among Wisigoths, 401 tortured in Spain, 406 in Germany, 470 in bankruptcy cases, 477to. confrontation of, 456 confirmation of evidence by, 487 Witzendorff, case of, 264 Women received as conjurators, 43 not received as witnesses, 112 their evidence admitted, 201 entitled to duel in Germany, 139 ordeal as a substitute for dnel, 140». punishment of, when defeated in duel, 152 habitual cruelty to, in Middle Ages, 154, 4i4w. boiling water ordeal for, 257 tortured for poisoning, SSO pregnant, exempt from torture, 3«7, 405, 408, 463, 472 except in Iceland, 497 Worms, exemption from duel in, 182 Worms, Council of, in 829, con- demns cold water ordeal, 283 enjoins Eucharist ordeal, 307 Wurzburg, Council of, in 1298, pro- hibits ordeal, 366 Wurzbui'g, Diet of, case of Henry the Lion in, 124 \''AHVEH, appeals to judgment of, 228 Yajnavalkya, code of, ordeal in, 2357i., 246 red-hot iron ordeal, 251 cold water ordeal, 281 ordeal of balance, 294 poison ordeal, 327 conditions of ordeal, 334 ordeals as punishments, 339, 314 Yaroslav Vladomirovich, laws of, 15 Yazatas, or Mazdean angels, 232 Ypres, compurgation in, 45 duel abolished in, 178 torture not used in, 438 552 INDEX. ZABOLCS, Council of, in 1092, regu- lates fees for ordeal, 360n. Zadriiga, or Slav communal society, 16 Zala, monastery of, its privileges, 142 Zanger on exculpatory oaths, 28 on bier-right, 821 his treatise on torture, 464w. Zends, ordeals among, 232 Zerbst, efficacious torture iu, 614 Zerubbabel defeated in fire ordeal, 276 Zierkin von Tola, case of, lo3 Zoroaster, legend of, 233 uses ordeal to convert Gush- tashp, 260 Zoroastriaa Law, tortare not used in, 373 Zug, recent use of torture, 522 By the same Author, STUDIES IN CHURCH HISTORY: THE RISE OF THE TEMPORAL POWER— BENEFIT OF CLERGY- EXCOMMUNICATION. In one large royal 12mo. volume of 516 pages; extra cloth, $2 76. The story was never told more calmly or with greater learning or wiser thought. We doubt, indeed, if any other study of this field can be compared with this for clearness, accuracy, and power. — Chicago Examiner, Dec. 1870. Mr. Lea's latest work. "Sludies in Church History," fully sustains the promise of the first. It deals with three subjects — the Temporal Power, Benefit of Clergy, and Excommunication, the record of which has a peculiar importance for the English student, and is a chapter on Ancient Law likely to be regarded as final. We can hardly pass from our mention of such works as these— with which that on " Siicerdotal Celibacy" should be included — without noting the literary phenomenon that the head of one of the first American bouses is also the writer of some of its most original books. — London Athenaum, Jan. 7, 1871. His books, therefore, have it for the prime element of their value that they contain authentic history, drawn directly from its sources. The au- thor has, indeed, his historical theories; he marks with care the develop- ment of ideas and tendencies, and traces with delicate skill the filaments that bind seemingly isolated events and give unity to the collective move- ment of a race or an age ; yet he never generalizes till he has all the facts within his grasp — his conclusions never furnish him his premises, he never picks over his materials to select only such as will sustain his theories. In fine, these essays are models in their kind — the simple orderly presenta- tion of facts, events, and movements in their bearing on their respective subjects — each a complete and exhaustive monograph, containing, with ample means of verification in references and extracts, all that the reader needs to place himself at the point of view which the author has attained by the most painstaking and elaborate research. — North American Review, July, 1870. Preparing. SUPERNATURALISM; ARYAN AND SEMITIC. WITH SPECIAL REFERENCE TO THE THEORY OF EVIL AND THE PRACTICE OF MAGIC. HENEY 0. LEA-PhiladelpMa. By the same Author. AN HISTORICAL SKETCH OF SACl'RDOTAL CELIBACY IN THE CHRISTIAN CHURCH. In one handsome octavo volume of 600 pages; extra cloth, $3 75. This subject has recently been treated with very great learning and with admirable impnrtiality by an American author, Mr. Henry C. Lea, in his History of iSace.rdotal Celibacy, which is certainly one of the most valuable works that America has produced. Since the great history of Dean Milcnan, I know no work in English which has thrown more light on the moral con- dition of the Middle Ages, and none which is more fitted to dispel the gross illusions concerning that period which Positive writers and writers of a certain ecclesiastical school have conspired to sustain. — Lecky''s History of European Morals, Chap. V. Very instructive — not the less so because impartial, uncontroversial, and free from all exaggeration, on a subject which is naturally not unprovocative of it. It has the proper qualities of a history. — Westminster Review, Oct. 1867. Thus his chapter on the Anglican church is perhaps the most connected and most satisfactory account of our own Reformation as to the question of celibacy or marriage that could be found. — Quarterly Review, Oct. 1869, Mr. Lea has already distinguished himself by a scholarly and very elo- quent treatise on "Superstition and Force." That book was an excellent gathering of curious thought put together with enlightened liberality. This one is as full of careful research and intelligent observation, and far sur- passes it, inasmuch as it has for its theme one of the chief motive powers, whether the power was exercised for good or for ill, in the progress of Chris- tianity and of Christian civilization. — London Examiner, Oct. 26, 1867. J. B. LIPPINCOTT & CO.— Philadelphia.