SUPERSTITION 
 
 FORCE 
 
 ESSAYS ON 
 
 THE WAGER OF LAW-THE WAGER OF BATTLE- 
 THE ORDEAL-TORTURE. 
 
 BY 
 HENRY C. LEA. 
 
 "Antiquities, or remnants of history, are, as was said, ' tanquam tabula naufragii,' 
 when industrious persons, by an exact and scrupulous diligence and observation, out of 
 monuments, names, words, proverbs, traditions, private records and evidences, passages 
 of books that concern not story, and the like, do save and recover somewhat from the 
 deluge of time." 
 
 Bacon, Advancement of Learning, Book II, 
 
 PHILADELPHIA: 
 
 HENRY C. LEA 
 
 1806. 
 
H V 84-?7 
 
 7l 
 
 Entered according to the Act of Congress, in the year 1866, by 
 
 HENRY C. LEA, 
 
 in the Office of the Clerk of the District Court of the Unite 1 States in and 
 for the Eastern District of the State of Pennsylvania. 
 
 HENRY MORSE STETWMf 
 
 PHILADELPHIA : 
 CQLJ-mS, PRINTER, 705 JAYNE STREET 
 
PREFACE. 
 
 The aim of the following essays is simply to group 
 together facts so that, with a slender thread of com- 
 mentary, they may present certain phases of human 
 society and progress which are not without interest for 
 the student of history and of man. The authorities 
 for all statements have been scrupulously cited, and it 
 will be seen that, for the most part, they are drawn 
 from the original sources. The conclusions the reader 
 can verify for himself. 
 
 In a more condensed form, the first three essays 
 have already appeared in the "North American Ke- 
 view." 
 
 Philadelphia, July, 18GG. 
 
 ? Ji 2 
 
I. 
 
 THE WAGER OF LAW. 
 
 Apart from the exact sciences, there is no subject which 
 more fully repays the student than the history of juris- 
 prudence. To the reflecting mind few popular quotations 
 are so essentially false, or reveal so narrow a view of life 
 as the often cited lines 
 
 "How small, of all that human hearts endure, 
 That part which kings or laws can cause or cure !" 
 
 Since the origin of society, each unit of our race has 
 struggled on in his allotted path, through jo} r s and griefs, 
 fashioned, for the most part, by the invisible network of 
 habits, customs, and statutes, which surround him on every 
 side, and silently shape his daily actions. Thus the history 
 of jurisprudence becomes the history of the life of man, and 
 the society of distant ages is more distinctly presented to 
 us in the crabbed sentences of codes than in the flowing 
 rhetoric of the historian. Slender as may be the respect 
 with which we of to-day sometimes regard rotatory assem- 
 blymen and partisan judges, still are they none the less 
 noteworthy personages. The parts are more important 
 than the actors, and centuries hence it will be to our statute 
 books and reports that the curious student will resort to 
 find out what manner of men were the restless and ener- 
 getic race which found self-government a harder task than 
 the founding of a gigantic empire. 
 
 The law-giver and the law-dispenser are the custodians 
 of all that we hold dear on earth. Save the minister of 
 God, what human being can have interests so vital confided 
 2 
 
14 T i\ E WAG Ell OF LAW. 
 
 to him, or can exercise so momentous an influence over his 
 fellow-men ? Cyrus and Alexander, Tamerlane and Gen- 
 ghis Khan have passed away ; their names alone remain, and 
 the world is as though they had never been. The laws of 
 Confucius and Manu, of Mahomet and Justinian still live, 
 and will sway the destinies of races in the future as they 
 have in the almost illimitable past. When Arogast and 
 Bodogast, Salogast and Windagast assembled to draft into 
 shape the rude customs of a roving and predatory tribe, 
 they little thought that the Salique law w T hich they founded 
 w r ould leave its impress for centuries on nations to which 
 their very names would be unknown. Codes thus endowed 
 with vitality must necessarily reflect the nature and the 
 usages of the races for which they were compiled. The 
 man and his law exercise a mutual reaction, and in the 
 one we see an image of the other. The stern, resolute 
 brevity of the law of the Twelve Tables furnishes the best 
 corrective commentary on the easy credulity of Livy ; in 
 the code of Moses, the Hebrew character and polity are 
 portrayed in the strongest light and shade ; and, in general, 
 the historian, who wishes to obtain or to convey a definite 
 impression of a nation or a period, must have recourse to 
 the laws which regulated the daily life of the people, and 
 which. epitomize their actions and modes of thought. It 
 may be therefore not uninteresting to trace, through the 
 dim light of antiquity, some rude outlines of customs which 
 were the precursors of European civilization. 
 
 In the German forests, Tacitus dopicts an aggregation 
 of tribes living principally on the spoils of war or of the 
 chase, aided by the imperfect agriculture of their slaves. 
 Personal independence is carried to its extreme. The 
 authority of the ruler, except when commanding a military 
 expedition, is almost nominal and scarcely extends beyond 
 his immediate attendants, companions, or leudes. Each 
 petty chief is under the control of the assembly of his sept, 
 
Til I A N I BNT G BB M ANS. 15 
 
 t<> which nil the freemen gather in anna and decide, with- 
 out appeal on nil common Interests, nearest among their 
 privileges is the righl of private vengeance. The freeman 
 
 Who sustains an injury, and who disdains to summon his 
 enemy before the nuMum^ or judicial assembly of the tribe, 
 may call together his family and friends and exact what 
 
 satisfaction he can with sword and axe. The interminable 
 warfare of hostile families is, however, in most cases 
 averted by the principle of compensation for injuries, and 
 every crime is rated at its appropriate price, or wehrgild, 
 payable to the injured party. 1 As the relatives are bound 
 to aid in a quarrel settled by the strong hand, so are they 
 entitled to share in the compensation, if peaceful measures 
 are adopted. 2 On the other hand, when a criminal's poverty 
 renders him unable to pay the tine, his kindred are held 
 responsible for it, as they are also forced to defend him in 
 the feud. 3 In its relations to the community, each family 
 
 1 This system of private warfare as an alternative for refusal of redress) 
 is expressively condensed in an Anglo-Saxon proverb quoted approvingly in 
 the laws of Edward the Confessor, as collected by William the Conqueror. 
 " Bicge spere of side oer bere quod est dicere, lanceam eine de latere 
 aut fer earn." LI. Edwardi c. xii. (Thorpe's Ancient Laws, I. 4f>7.) 
 
 " In Iceland and Norway, it was not until about 1270 that King Haco, in 
 his unsuccessful effort at legislation, decreed that the blood-money for murder 
 should no longer be divided among the family of the victim, but should be 
 all paid to the heir. Jarnsida, Mannhelge, cap. xxix. Previously to this, 
 when the next of kin were females, and thus incompetent to prosecute on a 
 charge of murder, the person who undertook that office was entitled to one- 
 third of the fine. Gr;ig;'is, Sect. VIII. cap. lv. 
 
 Ecclesiastical ties dissolved those of the family. Thus, among the Welsh 
 of the tenth century, the laws of Hoel Dha specify that the clergy shall not 
 be counted among the relatives, either as payers or payees in cases of mur- 
 der. LI. Eccles. Hoeli Dha, cap. viii. 
 
 3 The most ancient barbarian code that has reached us that of the Feini, 
 or ancient Irish, in a fanciful quadripartite enumeration of the principles in 
 force in levying fines, thus alludes to the responsibility of kindred : " And 
 because there are four things for which it is levied : ' cin' (one's own crime), 
 and ' tobhach' (the crime of a near kinsman) , ' saighi' (the crime of a middle 
 kinsman), and the crime of a kinsman in general." Senchus Mor, I. 259. 
 (Hancock's edition, Dublin, 1865.) 
 
16 THE WAGER OF LAW. 
 
 is thus a unit for aggression or defence, and is responsible 
 for the character and actions of each of its members. This 
 peculiarity of the Teutonic tribes is important, as it ex- 
 plains much that is otherwise singular in their subsequent 
 legislation, leaving its traces late in the feudal and custom- 
 ary law. 
 
 The oldest known text of the Salique law is but little if 
 at all posterior to the conversion of Clovis to Christianity. 
 Four hundred years have therefore intervened between the 
 vigorous sketches of Tacitus and the less picturesque but 
 more detailed view afforded by the code. The changes 
 produced by the interval are wonderfully small. A some- 
 what more complex state of society has arisen ; government 
 has assumed some power and stability, under the iron 
 energy and resistless craft of Clovis ; fixed propert}^ and 
 possessions have acquired importance ; fields and orchards, 
 gardens and bee-hives, mills and boats appear as objects of 
 value alongside of the herds and weapons which were their 
 only wealth when the Roman historian condescended to 
 describe his barbarous neighbors. Yet the same funda- 
 mental principles are at work, and the relations of the in- 
 dividual to his fellows remain unchanged. The right of 
 private warfare still exists. The state is still an aggregate 
 
 The most complete arrangement that I have met with for carrying out 
 this principle occurs in the Icelandic legislation of the twelfth century, 
 where the fines provided diminish gradually, as far as the relations 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. Grag&s, Sect. IV. 
 cap. cxiv. 
 
 In Denmark, Eric VII., in 1269, relieved the kindred of a murderer from 
 being compelled to share the fine, although the relatives of the victim con- 
 tinued to divide the wehrgild. Constit. Eric. ann. 1269, vii. (Ludewig, 
 Iteliq. MSS. T. XII. p. 204.) But, even as late as the fourteenth century, 
 the statutes of the city of Lille gave the malefactor a right to collect from 
 his relatives a portion of the wehrgild which he had incurred ; and elaborate 
 tables were drawn up, showing the amount payable by each relation in pro- 
 portion to his grade of kinship, even to third cousins. Roisin, Franchises 
 &c. de la ville de Lille, pp. 106-7. 
 
VARIETIES OP EVIDENCE. IT 
 
 of families, rallying together for the field and for the court, 
 
 and ready tO Bnstain any of their members by force of arms, 
 
 or by the procedures of justice. The forms of these pro- 
 cedures are revealed to us, and we learn what efforts were 
 made to soften the native ferocity of the Frank, and the 
 modes by which he is tempted to forego the privilege of 
 revenge. Every offence against persons or property is rated 
 at its appropriate price) and a complete tariff of crime is 
 drawn up. from the theft of a sucking-pig to the armed occu- 
 pat [on of an estate, and from a wound of the little finger to 
 the most atrocious of parricides ; nor can the offender refuse 
 to appear when duly summoned before the mall am, or claim 
 the right of armed defence if the injured party has recourse 
 to peaceable proceedings. 
 
 But, between the commission of an offence and its proof 
 in a court of justice, there lies a wide field for the exercise 
 or perversion of human ingenuity. The subject of evidence 
 is one which has taxed man's powers of reasoning to the 
 utmost, and the subtle distinctions of the Roman law, with 
 its probatio, praesamptio juris, praesumptio juris tantum, 
 the endless refinement of the glossators, rating eyidence in 
 its different grades, as probatio optima, evidentissima, aper- 
 fis.<iut(/, legitiTna, sufficient, indubilata, dilucida, liquida, 
 <ri<h>ns,perspicua, and semiplena, and the complicated rules 
 which bewilder the student of the common law, all alike 
 show the importance of the subject, and its supreme diffi- 
 culty. The semi-barbarous Frank, impatient of such ex- 
 penditure of logic, arrived at results by a shorter and more 
 direct process. 
 
 Some writers have assumed that the unsupported oath 
 of the accused was originally sufficient to clear him of a 
 charge, and they present an attractive fancy sketch of the 
 heroic age, when a lie is cowardice, and the fierce warrior 
 disdains to shrink from the consequences of his act. All 
 this is pure invention, for which proof may be vainly sought 
 in any of the unadulterated " Leges Barbarorum." It was 
 
 2* 
 
18 THE WAGER OF LAW. 
 
 not, indeed, until long after they had declined from the 
 rude virtue of their native forests, that an unsupported 
 oath was receivable as evidence, and its introduction may- 
 be traced to the influence of the Roman law, in which its 
 importance was overwhelming. 1 The Wisigoths, who 
 adopted the Roman jurisprudence as their own, were the 
 only race of barbarians who permitted the accused, in the 
 absence of definite testimony, to escape on his single oath, 8 
 and this exception only tends to prove the rule. So great 
 was the abhorrence of the other races for practices of this 
 kind, that at the council of Yalence, in 855, the Wisigothic 
 custom was denounced in the strongest terms as an incen- 
 tive to perjury. 3 It was not until long after the primitive 
 customs of the wild tribes had become essentially modified 
 by contact with the remains of Roman civilization, that 
 such procedures were regarded as admissible ; and, indeed, 
 it required the revival. of the study of the civil law in the 
 twelfth century to give the practice a position entitled to 
 respect.* 
 
 1 The oath may be regarded as the foundation of Roman legal procedure. 
 " Dato jurejurando non aliud quseritur, quam an juratum sit; remissa 
 qusestione an debeatur ; quasi satis probatum sit jurejurando." L. 5, 2, D. 
 xu. ii. The jusjurandum uecessarium could always be administered by 
 the judge in cases of deficient evidence, and the jusjurandum injure prof- 
 fered by the plaintiff to the defendant was conclusive : " Manifestae turpitu- 
 dinis et confessionis est nolle nee jurare nee jusjurandum referre." Ibid. 
 1. 38. 
 
 2 LI. Wisigoth. Lib. n. Tit. ii. c. 5. 
 
 3 Concil. Valent. ann. 855, c. xi. Impia et Deo inimica et Christiana* 
 religioni nimis contraria, lex iniquissima. 
 
 4 Thus Alfonso the Wise endeavored to introduce into Spain the mutual 
 challenging of the parties involved in the Roman jusjurandum in jure, by 
 his jura dejuicio. (Las Siete Partidas, P. in. 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 jusju- 
 randum, et hoc super quovis debito, vel inter quasvis personas." 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. 
 
CLASS PB l V I L IG E8. T.) 
 
 It is true tliMt 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 commu- 
 nity, but these are special immunities bestowed on rank, 
 Mid are therefore also exceptions, which <;<) tO prove the 
 universality of the rule. Thus in one of the most primitive 
 
 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 
 least la teche de la beste, il en seroit pendus pour la recoignoissance." 
 1-Jt;ililissements, Liv. i. chap. exxi. 
 
 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. "Si quis aliquidagit extra judicium, et hoc maxime estnotorium, 
 id negare possit, praestito juramento, nee admittantur testes contra eum ; 
 hoc juris est." (Jur. Provin. Saxon. Lib. i. Art. 15, 18.) This irrational 
 abuse was long in vogue, and was denounced by the Council of Basel in the 
 fifteenth century. (Schilter. Thesaur. II. 291.) It only prevailed in the 
 North of Germany ; the Jus Provin. Alaman. (cap. ccclxxxi. 3), which 
 regulated Southern Germany, alludes to it as one of the distinguishing fea- 
 tures of the Saxon code. 
 
 So, also, at the same period a special privilege was claimed by the inhabi- 
 tants of Franconia, in virtue of which a murderer was allowed to rebut with 
 his single oath all testimony as to his guilt, unless he chanced to be caught 
 with the red hand. "Franconia? cives hoc juris habent, quod si aliquem 
 occidunt, nisi in ipso facto deprehendantur, purgare se possunt juramento, 
 si asserere volunt per illud se esse innocentes." Jur. Provin. Alaman. cap. 
 cvi. 7. 
 
 A charter granted to the commune of Lorris, in 1155, by Louis-le-Jeune, 
 gives to the burghers the privilege of rebutting by oath, without conjurators, 
 an accusation unsupported by testimony. " Et si aliquis hominum de Lor- 
 riaco accusatus de aliquo fuerit, et teste comprobari non poterit, contra pro- 
 bationem impetentis, per solam manum suam se disculpabit." Chart. 
 Ludovic. junior, ann. 1155, cap. xxxii. (Isambert, Anciennes Lois Fran- 
 caises I. 157.) And, in comparatively modern times, in Germany, the same 
 rule was followed. "Juramento rei, quod purgationis vocatur, sa?pe etiam 
 innocentia, utpote qua) in anima constitit, probatur et indicia diluuntur;" 
 and this oath was administered when the evidence was insufficient to justify 
 torture. (Zangeri Tract, de Qustionibus cap. iii. No. 46.) In 1592, Zanger 
 wrote an elaborate essay to prove the evils of the custom. 
 
20 THE WAGER OF LAW. 
 
 of the Anglo-Saxon codes, which dates from the seventh 
 century, the king and the bishop are- permitted to rebut 
 an accusation with their simple asseveration, and the thane 
 and the mass-priest with a simple oath, while the great 
 body both of clerks and laymen are forced to clear them- 
 selves by undergoing the regular form of canonical com- 
 purgation which will be hereafter described. 1 These in- 
 stances of class privileges are too numerous throughout 
 the whole period of the dark ages to afford any basis for 
 general deductions. 3 
 
 So far, indeed, were the barbarians from confiding in the 
 integrity of their fellows that, as they emerge into the light 
 of histoiy, their earliest records show how eagerly they 
 endeavored to obtain some additional guarantee for the 
 oaths of litigants. What these guarantees were during 
 the prevalence of paganism we can only guess. After their 
 conversion to Christianity, as soon as written documents 
 afford us the means of tracing their customs, we find many 
 expedients adopted. As the practice of invoking objects 
 of affection or veneration in witness of an oath has been 
 common to mankind in all ages, 3 so the forms of religion 
 
 1 Laws of Wihtrsed, cap. 16-21. Corap. LI. Henrici I. Tit. lxiv. $ 8. 
 
 3 Thus by the law of southern Germany in the thirteenth century, the 
 unsupported oath of the claimant was sufficient if he was a personage of sub- 
 stance and repute, while if otherwise, he was obliged to provide two conju- 
 rators. (Jur. Provin. Alaman. cap. ccxliv. 7, 8.) So in Spain, until the 
 middle of the fourteenth century, the fijodalgo or noble could rebut a claim 
 in civil cases by taking three solemn oaths, in which he invoked the ven- 
 geance of God in this world and the next. " Nuestro Seiior Dios, a quien lo 
 jurades, vos lo demande en estro mundo al cuerpo, e en il otro al animo." 
 (Fuero Viejo, Lib. m. Tit. ii.) 
 
 3 Thus, in the Roman law, oaths were frequently taken on the head of the 
 litigant, or on those of his children. (LI. 3, 4, D. xn. ii.) The code of 
 Manu, which regards oaths as a satisfactory mode of proof, endeavors to 
 secure their veracity by selecting for invocation those objects most likely to 
 impress the different castes into which society was divided. 
 
 "And in cases where there is no testimony, and the judge cannot decide 
 upon which side lies the truth, he can determine it fully by administering 
 the oath. 
 
MULTIPLE oaths. 21 
 
 were speedily culled in to lend Banctity to the imprecation, 
 by ingenious devices which were thought to give a dditiona l 
 solemnity to the awful ceremo ny. In the middle of the 
 sixth century, Pope Pelagius I. did not disdain to absolve 
 himself from the charge of having been concerned in the 
 troubles which drove his predecessor Vigilius into exile, by 
 taking :i disculpatory oath in the pulpit, holding over his 
 head a crucifix and the Gospels. 1 About the same period. 
 When the holy Gregory of Tours was accused of reproach In 1 
 words truly spoken of the infamous 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. 2 This plan of reduplicating oaths 
 on different altars was an established practice among the 
 Anglo-Saxons, who, in certain cases, allowed the plaintiff 
 to substantiate his assertion by swearing in four churches, 
 while the defendant could rebut the charge by taking an 
 oath of negation in twelve. 3 Seven altars are similarly 
 specified in the Welsh laws of Hoel Dha. 4 
 
 " Oaths were sworn by the seven great Richis, and by the gods, to make 
 doubtful things manifest, and even Vasichtha sware an oath before the 
 king Soudfim(\, son of Piyavana, when Viswamitra accused him of eating a 
 hundred children. 
 
 ,; Let not the wise man take an oath in vain, even for things of little 
 weight ; for he who takes an oath in vain is lost in this world and the next. 
 
 " Let the judge swear the Brahmin by his truth; the Kchatriya by his 
 horses, his elephants, or his arms ; the Vaisya by his cows, his corn, and his 
 gold; the Soudra by all crimes." Book TCI. v. 109-113. (After Delong- 
 champs' translation.) 
 
 A curious exception to this general principle is found in the legislation of 
 the ancient Egyptians, where the laws of Bocchoris received as conclusive 
 the simple oath of a debtor denying his indebtedness, in cases where there 
 were no writings. Diod. Sic. L. I. cap. lxxix. 
 
 1 Anastas. Biblioth. No. lxii. 
 
 " 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 LI. Hoeli Dha cap. 2C. According to the Fleta, as late as the thirteenth 
 century, a etutom was current among merchants, of proving the payment of 
 
22 THE WAGER OF LAW. 
 
 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- 
 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 the stronghold of Laon, in 
 which he had taken refuge, two bishops were sent to him 
 bearing the royal reliquaries, on which they swore that his 
 life should be safe. Ebroin, however, had astutely removed 
 the holy remains from their cases in advance, and when he 
 thus got his enemy in his power, he held it but a venial 
 indiscretion to expose Martin to a shameful death. 1 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. Contemporary with 
 Ebroin was Theodore, Archbishop of Canterbury, whose 
 Penitential is the oldest that has reached us, and this vene- 
 rable code of morality assumes that a perjury committed on 
 a consecrated cross requires, for absolution, three times the 
 penance necessary in cases where the oath had been taken on 
 an unconsecrated one, while, if the ministration of a priest 
 had not been emploj'ed, the oath was void, and no penalty 
 was inflicted for its violation. 3 Two centuries later, eccle- 
 
 a debt by swearing in nine cburcbes. (Thorpe, Ancient Laws, I. 82.) The 
 Moslem jurisprudence has a somewhat similar provision for accusatorial 
 oaths in the Iesame, 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.) 
 
 1 Fredegarii Chron. cap. xcvii. 
 
 2 Qui pejerat in manu episcopi aut in cruce consecrata III. annos poeni- 
 teat. Si vero in cruce non consecrata, annum unum poeniteat ; si autem 
 
ADJUNCTS k 8 8 i: N I I AL TO III OATH. 29 
 
 Biastical authority was even found to admit that a powerful 
 motive might extenuate the sin of perjury. It* committed 
 voluntarily, seven years of penitence were enjoined for its 
 
 absolution; if involuntarily, sixteen months, while if to 
 
 preserve Lift or Limb, the offence could be washed out with 
 
 four months. 1 When SUCh doctrines were received and 
 acted upon, Ave can hardly wonder at the ingenious device 
 which the sensitive. charity of King Robert the Pious imi- 
 tated from the duplicity of Ebroin, to save the souls of 
 his friends. He provided two reliquaries on which to re- 
 ceive their oaths one for his magnates, splendidly fabri- 
 cated of crystal and gold, but entirely empty, the other for 
 the common herd, plainer and enshrining a bird's egg. 
 Knowing in advance that his lieges would be forsworn, he 
 thus piously sought to save them from sin in spite of 
 themselves, and his monkish panegyrist is delighted in 
 recounting this holy deceit. 3 
 
 in raanu hominis laici juraverit, nihil est. Tbcodori Cantuar. Pocnit. cap. 
 xxiv. 2. 
 
 1 Regino. de Eccles. Discip. Lib. I. cap. ccc. Notwithstanding the 
 shocking laxity of these doctrines, it is not to be supposed that the true 
 theory of the oath was altogether lost. St. Isidor of Seville, who was but 
 little anterior to Theodore of Canterbury, well expresses it : " Quacunque 
 arte verborum quisque juret, Deus tamen, qui conscientia) testis est, ita hoc 
 accipit, sicut ille qui juratur intelligit," and this, being adopted in successive 
 coHections of canons, coexisted with the above as a maxim of ecclesiastical 
 law (Ivon. Decret. P. xn. c. 36. Gratian. caus. xxii. q. 2 can. 13.) 
 
 3 Helgaldi Vit. Roberti Regis. The profit which the church derived from 
 the administering of oaths on relics affords an easy explanation of her teach- 
 ings, and of the extension of such practices as those alluded to in the text. 
 These superstitions and 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, untill the tyme that one forsware 
 himselfe thereon, so then it extincted, and never burned after." At the 
 suppression of the house under Henry VIII., the prior, Thomas Hore, testi- 
 fied : " Item, that since the ceasynge of burnynge of the sayd taper, it was 
 enclosed and taken for a greate relyque, and so worshipped and kyssed of 
 pylgremes, and used of men to sweare by in difficill and harde matters, 
 
24 THE WAGER OP LAW. 
 
 It may readily be believed that the wild barbarian, who 
 was clamoring for the restoration of stolen cattle, or the 
 angry relatives, eager to share the wehrgild of some mur- 
 dered kinsman, would scarcely submit to be balked of their 
 rights at the cost of simple perjury on the part of the 
 criminal. While their Christianity was yet new, they would 
 not attach much value to the additional security afforded by 
 religious ceremonies or superstitious observances, and, as 
 we have seen, before they became old in the faith, craft and 
 trickery denied the most sacred solemnities. It was there- 
 fore natural that the}' should still have recourse to an an- 
 cestral custom, which had arisen from the structure of their 
 societ} r , and which derived its guarantee from the solidarity 
 of families alluded to above. This was the remarkable 
 custom which was subsequently known as canonical com- 
 purgation, and which long remained a part of English 
 jurisprudence, under the name of the "Wager of Law. The 
 defendant, when denying the allegation under oath, appeared 
 surrounded by a number of companions -juratores, conju- 
 ratores, sacramentales, collaudantes, compurgatores, as they 
 were variously termed who swore, not to their know- 
 ledge of the facts, but as sharers and partakers in 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 codes it occupies no place, and 
 they, as has already been remarked, at an early period 
 yielded themselves completely to the influence of the 
 
 whereof the advauntage admounted to greate sommes of money in tymes 
 passed, payenge yerely to the same XXti nohles for a pencion unto thabbott 
 of Chersey." (Suppression of Monasteries, p. 186. Camden Soc. Pub.) 
 The Priory of Cardigan was dependent upon the Abbey of Chertsey, and 
 the sum named was sippnrently the abbot's share of the annual spoils. 
 
A.NTIQ1 ! r v 01 COMPURGATION. 25 
 
 Roman oiyilization. On the other hand, the Salians, the 
 Ripuarians, the A.lamanni, the Baioarians, the Lombards, 
 the Frisians, the Saxons, tin- Angli and Werini, the Anglo- 
 Saxons, and the Welsh, races springing from origins 
 widely diverse, nil gave i<> this form of purgation a promi- 
 nent position in their jurisprudence, and it may be said 
 t<> have reigned from Southern Italy to Scotland. 
 
 That the custom was anterior to the settlement of the 
 barbarians in the Roman provinces is susceptible of rea- 
 sonable proof. The earliest text of the Salique law pre- 
 sents us with the usages of the Franks unaltered by any 
 allusions to Christianity, and it may therefore be presumed 
 to date from a period not later than the conversion of 
 Clovis. In this primaeval code there are directions for 
 the employment of conjurators, which show that the pro- 
 cedure was a settled and established form at that period. 1 
 So in the Frisian law, which, although compiled in the 
 eighth century, still reveals pagan customs and the primi- 
 tive condition of societ}^, the practice of compurgation 
 evidently forms the basis of judicial proceedings. The 
 other codes have only reached us in revisions subsequent 
 to the conversion of the several tribes, and their authority 
 
 1 First Text of Pardessus, Tit. xxxix. 2, and Tit. xlii. 5 (Loi Saline, 
 Paris, 1S43, pp. 21, 23). It is somewhat singular that in the subsequent re- 
 censions of the code the provision is omitted in these passages. One cannot 
 without hesitation accuse Montesquieu of ignorance, and yet it is difficult 
 under any other supposition to account for his assertion that canonical 
 compurgation was unknown to the Salique law (Esprit des Loix, Lib. 
 xxviii. chap. 13), an assumption from which he proceeds to draw the most ex- 
 tensive deductions. Although it is referred to but twice in the Lex Emen- 
 data of Charlemagne (Tit. 1., lv.), still those references are of a nature to 
 show that it was habitually practised ; while the earlier texts, of which that 
 of Herold and the Wolfenbuttel MS. were accessible to him in the well- 
 known edition of Eckhardt, contain precise directions for its use, designating 
 the conjurator under the title of Tliulapta. Even without these, however, 
 the Merovingian and Carlovingian Capitularies, the Formulary of Marculfus, 
 and the history of Gregory of Tours should have preserved him from so gross 
 an error. 
 3 
 
26 THE WAGER OF LAW. 
 
 on this point is, therefore, not so absolute. The univer- 
 sality of the practice, however, at a period when intercom- 
 munication was rare, and ancestral habits not easily 
 infringed upon, is a strong corroborative evidence that its 
 origin with all is traceable to prehistoric times. 1 
 
 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, eccle- 
 siastics 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 enabled 
 to resist the oppressors who invaded their rights on every 
 hand. How completely it became part and parcel of eccle- 
 siastical law is shown by Gregory II. in the earl}' part of the 
 eighth century, when he ordered its employment in cases 
 where husband and wife desired to deny the consummation 
 of marriage. 2 At last the final seal of approbation was 
 bestowed when Charlemagne, in the year 800, went to Rome 
 for the purpose of trying Pope Leo III. on a grave charge, 
 
 1 Among the Anglo-Saxons, for instance, the earliest written code is the 
 Dooms of iEthelbirht (Bedae Hist. Angl. II. 5), compiled shortly after his 
 conversion by Augustine in 597. It is scarcely more than a list of fines and 
 punishments, containing no instructions for judicial procedures, and there- 
 fore its silence on the subject of compurgation affords no indication on the 
 subject. The next in point of date, however, the Dooms of Hlothhsere and 
 Eadric, promulgated about A. D. 680, alludes to conjurators under the name 
 of cewdas (cap. 2, 4, 5, <fcc), after which they form a prominent feature in 
 Anglo-Saxon jurisprudence. 
 
 lb is somewhat remarkable that the custom should not have been indige- 
 nous among the inhabitants of Iceland, when it was universal among their 
 parent Scandinavian races. Their earliest code, the Gragds, which dates 
 from the twelfth century, contains no allusion to it (Schlegel, Comment, ad 
 Griigas p. Ixxxiv.). It was, however, introduced in the Jamsida, a code 
 which Haco of Norway endeavored, with indifferent success, to impose upon 
 them towards the close df the thirteenth century. 
 
 1 Uterque eorum septima manu propinquorum, tactis sacrosanctis reliquiis, 
 jurejurando dicat ut nunquam, etc. Can. Requisisti, caus. xxxiii. q. 1. 
 
ADOPTED BY THE C HURT ir. 27 
 
 :iiid in thai 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. 1 Three years afterwards, 
 the Emperor decreed that, In all doubtful cases, priests 
 
 should defend themselves with three, live, or seven ecclesi- 
 astical compurgators, and he announced that this de- 
 cision had been reached by the common consent of Pope, 
 patriarchs, bishops, and all the faithful. 3 It is true that a 
 few months later, on being shown a decretal of Gregory II. 3 
 
 1 Eginhart. 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 
 Capitulum Aquisgranense ann. 803, in a manner which admits of no dispute. 
 
 1 Consultu domini et patris nostri Leonis Apostolici ceterorumque Romamu 
 ecclesiae episcoporum et reliquorum sacerdotum sive Orientalium et Qrx- 
 corum patriarcharum et multorum sanctorum episcoporum et sacerdotum, 
 necnon et nostrorum episcoporum omnium ceterorumque sacerdotum ac 
 levitarum auctoritate et consensu, atque reliquorum fidelium et cunctorum 
 consiliariorum nostrorum consultu. Capit. Aquisgran. ann. 803, cap. vii. 
 
 3 De presbytero vero vel quolibet sacerdote a populo accusato, si certe 
 non fuerint testes, qui crimini illato approbent veritatem, jurejurando erit 
 in medio, et ilium testem proferat de innocentiae suae veritate, cui nuda et 
 aperta sunt omnia, sicque maneat in proprio gradu. Bonifacii Epist. cxxvi. 
 
 The subject of the oaths of priests was one of considerable perplexity 
 during the dark ages. Among the numerous privileges claimed by the sacer- 
 dotal body was exemption from the necessity of swearing, and their efforts 
 to this end date from an early period. That it was a disputed question even 
 in the time of St. Augustine is shown by his arguing that the responsibility 
 properly attaches to him who requires the oath, not to the oath-taker him- 
 self. "Non est contra Dei praeceptum juratio, qua? a malo est non jurantis 
 sed incredulitatis ejus a quo jurare cogitur. . . . Quantum ad me pertinet, 
 juro, sed quantum mihi videtur, magna necessitate compulsus. ' ' ( Apud Ivon. 
 Decret. P. XII. c. 3, 8.) In 456, the Emperor Marcian admitted that eccle- 
 siastics were forbidden by the canons to swear "quia ecclesiasticis regulis, 
 et canone a beatissimis episcopis antiquitus instituto, clerici jurare pro- 
 hibentur." (Const. 25 C. i. 3.) The Rule of St. Benedict contained a clause 
 "Non jurare, ne forte perjuret," on which his commentator Smaragdus, in 
 the ninth century, observes "non est contra Dei praeceptum jurare," but out 
 of abundant caution he adds "necesse est ergo ut nunquam juret, qui per- 
 jurare timet." (Comment, in Reg. S. Ben. cap. iv. 27.) Even Charlemagne 
 
28 THE WAGER OF LAW. 
 
 ordering the clergy to rebut all accusations with their 
 single oaths., he modified his previous command, and left. 
 
 in 801 yielded his assent to the rule, and forhade the clergy from taking 
 formal oaths "ut nullus sacerdos quicquam cum juramento juret." (Capit. 
 ann. 801.) 
 
 This, however, had no permanent effect. The hishops of Neustria, who 
 in 858 claimed exemption from taking oaths of allegiance, admitted that 
 judicial oaths could properly he exacted of them. (Cap. Car. Calvi Tit. xxvii. 
 c. 15.) As the line of demarcation hetween the clergy and the laity grew 
 wider and deeper, the effort was renewed, and the oath was regarded as a 
 degradation to those engaged in the sacred ministry of the altar. " Man us 
 enim per quam Corpus Christi conficitur juramento polluetur? Ahsit !" 
 The Emperor Henry II., whose devotion to the church earned for him the 
 honors of canonization, endeavored to reconcile the conflicting demands of 
 piety and common sense by releasing, in 1020, the priesthood from the neces- 
 sity of taking oaths, but allowing them to put forward substitutes, and thus 
 to take the oath by proxy. "Quapropter nos, utriusque, videlicet divinae et 
 humange, legis intentione servata, decernimus ut non episcopus, non abbas, 
 non presbyter, non cujuscunque ordinis clericus, non aliquis monachus vel 
 sanctimonialis, in quacunque controversia, sivi criminali sive civili, jusju- 
 randum compellatur qualibet ratione subire, sed suis idoneis advocatis hoc 
 ofiicium liceat delegare." Constit. Ariminens. S. Henrici. (Migne's Patro- 
 togia, T. 140, p. 232.) 
 
 Where legislation was so variable and conflicting, it is not easy to ascer- 
 tain positive results ; but in the eleventh century it would seem that before 
 lay judges ecclesiastics summoned as witnesses could not be forced to the 
 oath, but that when they themselves were parties it could be administered, 
 at the option of their superior, with the proviso that it should be employed 
 only in important cases. (Cf. Ivon. Panorm. Lib. v. c. 9, 10, 11.) Ivo of 
 Chartres, whose authority as a canonisfwas undoubted, classes the prohibi- 
 tion among the "prseceptiones mobiles," explaining that a necessary oath is 
 no sin, but that he who can avoid swearing is in less danger of committing 
 perjury than he who takes an oath. ''Non quod malum sit in contractibus 
 humanis ex necessitate jurare ; sed quod longius sit a perjurio qui nunquam 
 jurat, quam ille qui qualicunque occasione jurat." (Prolog, in Decretum.) 
 The struggle between the secular and ecclesiastical authorities 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 pre- 
 sented the complaint. Appeal was made to the Parlement of Paris, which 
 decided that the defendant's logic was correct, and that the personal oath of 
 the prelate was requisite. (Olim, I. 765.) 
 
 In Spain, a bishop appearing in a secular court, either as plaintiff or 
 
GENERALLY USED BY ECCLESIASTICS. 20 
 
 the matter to the discretion <>r bis prelates; 1 but this had 
 no practical result, in 823, Pope Pascal I. was more than 
 inspected of complicity In the murder of Theodore and 
 Leo, two high dignitaries of the papal court. Desirous to 
 avoid an Investigation by the commissioners of Louis-le- 
 'Pebonnaire. who were sent for that purpose, he hastily 
 
 purged himself of the crime in anticipation of their arrival) 
 
 by an oath taken with a number of bishops as his com- 
 purgators; 8 and it is a striking example of the weight 
 attaching to the system, that although the assumed fault 
 of the victims had been their devotion to the imperial 
 party) and though the Pope had by force of arms prevented 
 any pursuit of the murderers, the Emperor was powerless 
 to exact satisfaction, and there was nothing further to be 
 done. Pope Pascal stood before the world an innocent 
 man. 
 
 It is true that, in the tenth century, Atto of Vercelli 
 complains bitterly that a perverse generation refused to be 
 satisfied with the single oath of an accused priest, and re- 
 quired him to be surrounded b} r compurgators of his class, 3 
 which that indignant sacerdotalist regarded as a grievous 
 wrong. As the priesthood, however, failed in obtain inu- 
 tile entire immunity for which they strove during those 
 turbulent times, the unquestioned advantages which com- 
 purgation afforded recommended it to them with constantly 
 increasing force. Forbidden at length to employ the duel in 
 settling their differences, and endeavoring, in the eleventh 
 and twelfth centuries, to obtain exemption from the ordeal, 
 they finally accepted compurgation as the special mode of 
 
 defendant, was not exempted from the oath, hut had the singular privilege 
 of not being compelled to touch the Gospels on which he swore. Siete Par- 
 tidas, P. in. Tit. xl. I. 24. 
 
 1 Capit. de Purgat. Sacerd. ann. 803. 
 
 ' Eginhard. Annal. ann. 823. 
 
 3 Satisfactionem igitur accusati sacerdotis suh jurejurando minime dicunt 
 valere, nisi plures etiam sacerdotes secum compellat jurare. Atton. de Pres 
 suris Ecclesiast. P. I. 
 
 3* 
 
30 THE WAGER OF LAW. 
 
 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. 1 From this 
 fact it obtained its appellation of " purgatio canonica," or 
 canonical compurgation. 
 
 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. Accord- 
 ingly, we find that the service was usually performed by 
 the kindred, and in some codes this is even prescribed by 
 law, though not universally. 2 The practical working of the 
 
 1 Burchardus, Ivo, Gratianus, passim. Ivon. Epist. 74. 
 
 2 L. Longobard, Lib. n. Tit. xxi. 9, Tit. lv. 12. L. .Burgund, Tit. 
 via. L. Eccles. Hoeli Dha c. -26. Laws of Ethelred, Tit. ix. 23, 24. L. 
 Henrici I. cap. Ixxiv. 1. See also the decretal of Gregory II. alluded to 
 above. 
 
 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. xxn. v.). The Wisigoths not only adopted 
 this principle, but carried it so far as to exclude the evidence of a kinsman 
 in a cause between his relative and a stranger (L. Wisigoth. Lib. II. Tit. iv. 
 c. 12), which was adopted into the Carlovingian legislation (Benedict. Levit. 
 Capitul. Lib. VI. c. 348) under the strong Romanizing influence which then 
 prevailed. The rule, once established, retained its place through the vicissi- 
 tudes of the feudal and customary law (Beaumanoir, Coutumes du Beau- 
 voisis, cap. xxxix. 38. Cout. de Bretagne, Tit. viii. art. 161, 162). 
 
 On the other hand, the Teutonic custom is shown as still influential in the 
 eleventh century, by a law in which the Emperor Henry II. directs the em- 
 ployment of twelve of the nearest relations as conjurators, in default of three 
 peers of the accused "cum tribus paribus se expurget ; si autem pares 
 habere non potuerit, cum duodecim propinquioribus parentibus se defendat" 
 (Feudorum Lib. v. Tit. ii.). It was a settled principle in the Danish law to 
 a later period. A code of the thirteenth century directs " Factum autem si 
 negat, cognatorum jurejurando se tueatur" (Leg. Cimbric. Lib. II. c. 9) ; and 
 in another of the thirteenth and fourteenth centuries it is even more strongly 
 developed : " Si juramento cognatorum, quod dicitur neffn i kyn se non de- 
 fenderit, solvat bondoni XL. marcas, et regi ta^tum'' (Constit. Woldemari 
 Regis, \ ix. also 52, 56, etc.). He who had no relatives was obliged to 
 
NUMBER OF CONJUItATORS REQUIRED. 31 
 
 custom [g [airly illustrated by a case recounted lv Aimoin 
 :is oecurriug onder Chilperic I. in the latter hair of the 
 
 sixth century. A wile suspected by her husband offered 
 the oath of purgation <>u the altar of St. Denis with her 
 relatives, who were persuaded of her innocence; the hus- 
 band not yet satisfied, accused the Compurgators of per- 
 jury, and the fierce passions of both parties becoming ex- 
 cited, weapons were speedily drawn, and the sanctity of the 
 venerable church was profaned with blood. 1 
 
 It was manifestly impossible, how ever, 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 aii} r 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 
 so mewhat questionable reputation and secured the throne 
 to her offspring, by appearing at the altar with three bishops 
 and three hundred nobles, who all swore with her as to 
 the legitimac}- of the little prince, and no further doubts 
 were ventured on the delicate subject. 3 A similar case 
 occurred in Germany in 899, when Queen Uta cleared her- 
 
 take an oath to that effect, and then he was permitted to produce twelve 
 other men of proper character, lag fe.ste men. (Ibid. $ 86.) A relic of the 
 same principle is shown at the same period in a provision of the municipal 
 law of Southern Germany, by which a child under fourteen years of age, 
 when accused of any crime, could be cleared by the purgatorial oath of the 
 father (Jur. Provin. Alaman. cap clxix. \ 1). 
 
 1 Airaoini Lib. in. c. 29. 
 
 2 (Ireg. Turon. Lib. Till. c. 9. 
 
32 THE WAGER OF LAW. 
 
 self on an accusation of infidelity, by taking a purgatorial 
 oath with eighty-two nobles. 1 So in 824, a dispute between 
 Hubert, Bishop of Worcester, and the Abbey of Berkeley, 
 concerning the monastery of Westbury, was settled by the 
 oath of the bishop, supported by those of fifty mass-priests, 
 ten deacons, and a hundred and fifty other ecclesiastics. 8 
 These were, perhaps, exceptional cases, but in Wales, 
 where the custom was perpetuated until the fifteenth cen- 
 tury, a form of it was known under the name of assalh, in 
 which no less than three hundred conjurators were habitu- 
 ally required. 3 
 
 Under these circumstances, it is evidently impossible that 
 a kindred sufficiently large could have been assembled in the 
 most numerous families, and even when the requirements 
 were more reasonable, the same difficulty must frequently 
 have occurred. Among all tribes, therefore, 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 obtained. In* certain cases, no doubt, the 
 possibility of obtaining those not bound by kindred to 
 undertake the office is traceable to the liability which in 
 some instances rested upon a township for crime com- 
 mitted within its borders. 4 
 
 1 Herman. Contract, ann. 899. 
 
 3 Spelman. Concil. I. 335. 
 
 3 Ou que ils vourront se excuser (de la mort dez tiels rebellez ensy tuez) 
 per un assath selonque la custume de Gales, cest a, dire, per le serment du 
 ccc. homines, etc. I. Henry V. cap. vi. (Spelman. Gloss, s. v. Assath). 
 ' 4 This has been denied by those who assume that Ihefrithborgs of Edward 
 the Confessor are the earliest instance of such institutions, but traces of con 
 munal societies are to be found in the earliest text of the Salique law (First 
 text of Pardessus, Tit. xlv.), and both Childebert and Clotair II., in edicts 
 promulgated near the close of the sixth century, hold the hundreds or 
 townships responsible for robberies committed within tfieir limits (Decret. 
 Childeberti ann. 595, c. 10 Decret. Chlotarii II. c. 1). 
 
 It is not improbable that, as the family was liable for the misdeeds of its 
 members among all the barhnrinn races, so the tribe or clan of the offender was 
 
NUM11ER OP CONJURATORS. 83 
 
 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. A few 
 generalizations ma}', however, be deduced from among the 
 chaotic and conflicting mass of regulations which are to be 
 found in the laws of the numerous races who adhered to the 
 custom for so many centuries. Many elements entered into 
 this ; the nature of the crime or claim, the station of the par- 
 ties, the rank of the compurgators, and the mode by which 
 t hey were selected. Thus, in the simplest and most ancient 
 form, the Salique law merely specifies twenty-five compur- 
 gators to be equally chosen by both parties. 1 Some for- 
 mulas of Marculfus specify three freeholders and twelve 
 friends of the accused. 3 A Merovingian edict of 593 directs 
 the employment of three peers of the defendant, with three 
 others chosen for the purpose, probably by the court. 3 
 Alternative numbers, however, soon make their appearance, 
 depending upon the manner in which they were chosen. 
 Thus among the Alamanni, on a trial for murder, the 
 accused was obliged to secure the support of twenty chosen 
 men, or, if he brought such as he had selected himself, the 
 number was increased to eighty. 4 So in a capitulary of 
 
 liable when the offence was committed upon a member of another tribe, and 
 such edicts as those of Childebert and Clotair were merely adaptations of the 
 rule to the existing condition of society. The most perfect early code that 
 has reached us, that of the ancient Irish, expresses in detail the responsibility 
 of each sept for the actions not only of its members, but of those also who 
 were in any way connected with it. "And because the four nearest tribes 
 bear the 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. 
 
 1 First text of Pardessus, Tit. xlii. 5. 
 
 2 Insequentur vero post ipso tres aloarii et duodecim conlaudantes jura- 
 verunt. Marculf. App. xxxii. ; Ibid. xxix. 
 
 3 Pact, pro Tenore Pacis cap. vi. 
 
 4 L. Alaman. Tit. lxxvi. So in 922 the Council of Coblentz directed that 
 accusations of sacrilege could be rebutted with " XXIV totis nominate at<(ue 
 
34 THE WAGER OP LAW. 
 
 803 Charlemagne prescribes seven chosen conjivrators, or 
 twelve if taken at random, 1 a rule which is virtually the 
 same as that laid down by the Emperor Henry III. in the 
 middle of the eleventh century. 3 
 
 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, 3 while in a civil 
 case twelve were sufficient. 4 So in the burgher laws of 
 David I., ordinary cases between citizens were settled with 
 ten conjurators, but eleven were necessary if the king were 
 a party, or if the matter involved the life, limb, or lands of 
 one of the contestants. 5 Instances also occur in which the 
 character of the defendant regulated the number required. 
 Among the Welsh, the laws of Hoel Dha provide that a 
 wife accused of infidelity could disprove a first charge with 
 seven women ; if her conduct provoked a second investiga- ' 
 tion, she had to procure fourteen ; while, on a third trial, 
 fifty female conjurators were requisite for her escape. 8 In 
 
 electis viris . . . aut aliis non nominatis tamen ingenuis LXXIL" (Hartz- 
 heim Concil. German. II. 600.) 
 
 1 Capit. Car. Mag. IV. ann. 803, cap. x. 
 
 2 Et caeteris hominibus non plus debent quam septem personas, suis vero 
 sociis duodecim. Goldast. Constit. Imp. I. 231. 
 
 3 Quoniam Attachiamenta cap. xxiv. 1, 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. 
 
 4 Quoniam Attachiamenta cap. lxxv. 1, 4. 
 
 s Leg. Burgorum cap. xxiv. 3. In cases occurring between a citizen 
 and a countryman, each party had to provide conjurators of his own class. 
 Ibid. $ 1. 
 
 6 Leg. Eccles. Hoeli Dha cap. 14. It is worthy of remark that one of the 
 few directions for legal procedures contained in the Koran 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 
 
SELECTION Or ( < \ .1 U It A T It S . 
 
 tin- A n.eJo-Saxnn jurisprudence, the frangens jnsji/rtiinJii ///, 
 ms it was called, ejvw to lie an exceedingly complex system 
 in the rules by which the niiinlicr an<l quality of'the conju- 
 rators were regulated according to the nature of the crime 
 and the iank of the accused. Ill cases of peculiar atrocity, 
 such as a violation of the sanctity of the grave, only thanes 
 were esteemed competent to appeal. 1 In fact, among the 
 Anglo-Saxons, the value of a man's oath was rated accord- 
 in g to his rank, that of a thane, for instance, being equal 
 to those of seven yeomen. 2 The same peculiarity is ob- 
 servable among the Frisians, whose laws required that 
 compurgators should be of the same class as their principal, 
 and the lower his position in the State, the larger was the 
 number requisite. 3 
 
 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 his friends, whose oaths 
 
 malediction of God; while the wife was able to rebut the accusation by the 
 same process. As this chapter, however, was revealed to the Prophet after 
 he had writhed for a month under a charge brought against his favorite wife 
 Ayesha, which he could not disregard and did not wish to entertain, the 
 law is rather to be looked upon as ex jwst facto than as indicating any 
 peculiar tendency of the age or race. 
 
 1 Wealreaf, i.e. mortuum refere, est opus nithingi; si quis hoc negare 
 velit, faciet hoc cum xlviii. taynis plene nobilibus. Leg. iEthelstani, de Or- 
 dalio. 
 
 2 Sacramentum liberalis hominis, quem quidem vocant twelfhendeman t 
 debet stare et valere juramentuni septem villanorum. (Leg. Cnuti cap. 127.) 
 The ttvelfhendeman meant a thane (Twelfhindus est homo plene nobilis i. 
 Thainus. Leg. Henrici I. Tit. Ixxvi. 4), whose price was 1200 solidi. So 
 thoroughly did the structure of jurisprudence depend upon the system of 
 wehrgild or composition, that the various classes of society were named 
 according to the value of their heads. Thus the villein or cherleman was 
 also called twyhindus or twyhi?uleman, his wehrgild being 200 solidi ; the 
 radenicht (road-knight, or mounted follower) was a sex/ieudeman ; and the 
 comparative judicial weight of their oaths followed a similar scale of valua- 
 tion, which was in force even subsequently to the Conquest. (Leg. Henrici I. 
 Tit. lxiv. S 2 -) 
 
 3 L. Frision. Tit. I. 
 
36 THE WAGER OF LAW. 
 
 were sufficient for his discharge. Even to a comparatively 
 late period this prevailed extensively, and its evils were 
 forcibly pointed out by Hincmar in the ninth century. In 
 refusing 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- 
 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 or- 
 deal to prove their sincerity. 1 His expressions show that 
 the question 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 ques- 
 tion more decidedly. The original Lombard law of King 
 Ilotharis gave to the plaintiff the privilege of naming a 
 majority of the compurgators, the remainder being chosen 
 by the defendant, 3 but even in this the solidarity of the 
 family was recognized, since it was the duty of the plain- 
 tiff to select the nearest relatives of his adversary. 3 The 
 English law was the first to educe a rational mode of trial 
 from the absurdity of the barbaric traditions, and there it 
 finally assumed a form which occasionally bears a striking 
 resemblance to trial by jury in fact, it insensibly runs into 
 this 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 will- 
 ing to take the purgatorial oath with him. 4 The selection 
 
 1 Si autem denominatos a nobis sibi presbyteros ad famam suam purgan- 
 dam habere nequit, et alios ad secum jurandum conduxerit, quoniam experti 
 sumus quosdam ad invicem conspirasse, et repetiti mutuo in sua purgatione 
 jurent, etc. Hincmari Epist. xxxiv. So also in his Capit. Synod, ann. 852, 
 II. xxv. 
 
 2 L. Longobard. Lib. II. Tit, lv. 5. 
 
 3 Ibid. Tit. xxi. 9. The plaintiff, however, was prohibited from nomi- 
 nating any of the family who were personally hostile to the defendant. 
 
 4 Nominentur ei XIV.,. et adquirat XI., et ipse sit duodecimus. L. Cnuti 
 c. lxvi. 
 
SELECTION OF CONJURATORS. 37 
 
 of these virtual Jurors waa probably made by the g< 
 or sheriff; 1 they could be challenged for suspicion of par- 
 tiality or other com petenl cause,* and were liable to rejec- 
 tion unless unexceptionable In every particular. 1 Very sim- 
 ilar to tliis was the stock <'(/' of the ancient Danish [aw, by 
 Which, in cases where the relatives were not called upon, 
 thirteen men were chosen, a majority of whom could clear 
 the accused by taking the oath with him. They were nom- 
 inated by a person appointed for the purpose, and if the 
 court neglected this duty, the privilege enured to the plain- 
 tiff.* 
 
 The Northern nations were evidently less disposed to 
 favor the accused than the Southern. In Sweden and 
 Denmark, another regulation provides that although the 
 defendant had a right to demand this mode of purgation, 
 yet the plaintiff had the selection of the twelve men who 
 served as conjurators ; three of these the accused could 
 challenge for enmity, but their places were supplied by the 
 plaintiff. 5 The evanescent code compiled for Norway and 
 Iceland by r Haco Haconsen towards the close of the thir- 
 teenth century T is more equitable in its provisions. Though 
 it leaves the nomination of the conjurators to the defendant , 
 the choice is subject to limitations which placed it virtually 
 in the power of the court. They were required to be men 
 of the vicinage, of good repute, peers of the accused, and 
 in no way connected with him b}' blood or other ties. 8 
 
 Such care in the selection of those on whom duties 
 
 1 Laws ofEthelred, Tit. in. c. xiii. 
 
 2 L. Henrici I. Tit. xxxi. 8. 
 
 3 Ibid. Tit. lxvi. 10. 
 
 4 Constit. Woldemari Regis, lii. lxxii. 
 
 * L. Scania) Lib. vii. c. 8. Chart. Woldemari Regis, ann. 1163. (Da 
 Cange s. v. Juramentum.) 
 
 6 Ejusdem ac ipse dignitatis, proxume habitantes, et hujus rei maxirae 
 gnari, nee affinitatis nee intercedentium causarum vinculo cum reo conjuncti, 
 adultaj astatis ac judicii, nee in antecessum aut perjurii aut falsi testimonii 
 nota infaines. Jamsida, Thiofa-Balkr, cap. ix. x. 
 4 
 
38 THE WAGER OF LAW. 
 
 so responsible devolved did not prevail among the more 
 Southern races at an earlier age. Among the Lombards, 
 slaves and women in tutelage were often employed. 1 The 
 Burgundians required that the wife and children, or, in 
 their absence, the father and mother of the accused should 
 assist in making up the number of twelve, 2 and the idle 
 nature of the ceremony under such regulations is shown 
 by its prohibition under Charlemagne for the reason that 
 it led to the swearing of children of tender and irrespon- 
 sible age. 3 That legislator, however, contented himself 
 with forbidding those who had once been convicted of per- 
 jury from again appearing either as witnesses or conjura- 
 tors ; 4 and the little care that was deemed necessary in their 
 selection is shown by a law of Louis-le-Debonnaire ordering 
 that landless freemen should be allowed to serve as con- 
 jurators, though ineligible as witnesses. 5 A truer concep- 
 tion of the course of justice is manifested, some centuries 
 later, by the Bearnese legislation, which required that the 
 seguidors "or conjurators should be men able to pay the 
 amount at stake, together with the fine incurred by the 
 losing party, 6 or that they should be fair and loyal men, 
 not swayed by enmity. 7 
 
 Yariations 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 
 principal placed his hand over the others, repeating the 
 oath alone ; 8 while among the Lombards, a law of the Em- 
 peror Lothair directs that each shall take the oath sepa- 
 rately. 9 It was always, however, administered in a conse- 
 
 1 L. Longobard. i. xxxiii. 1, 3. 3 L. Burgund. Tit. viii. 
 
 3 Capit. Car. Mag. i. arm. 789 c. Ixii. 4 Ibid. 
 
 6 Capit. Ludov. Pii arm. 829 Tit. in. vi. 
 
 6 For de Morlaas, Rubr. xli. art. 146-7. The same capacity was required 
 of the testimonis or witnesses. 
 
 7 Que sien boos et loyaus, et que no sien enemicxs. Fors de Beam, Rubr. 
 
 XXX. 
 
 8 L. Alaman. Tit. vi. n L. -Longobard. Lib. II. Tit. lv. 6 28. 
 
VALUE OF COMPURGATION. 39 
 
 grated place, before dele gates a ppointed by the Judges 
 trying the cause, sometimes <>n the altar and sometimes on 
 relics. A formula of Marculfus specifies the Capella S. 
 Martini, or cope of St. ^lartin, 1 one of the most venerated 
 relics of the royal chapel, whence we may perhaps conclude 
 that it was habitually used for that purpose in the business 
 of the royal Court of Appeals. 
 
 There has been much discussion as to the exact nature 
 and legal weight of this mode of establishing innocence or 
 vindicating disputed rights. Some authors assume thai in 
 the early period, before the ferocious purity of the German 
 character had become adulterated with the remains of Ro- 
 man 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. 9 The only indication that I have met with 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. 3 A much more 
 powerful argument on the other side, however, is derivable 
 from the earliest text of the Salique law, to which reference 
 has already been made. In this, the formula shows clearly 
 that conjurators were only employed in default of other 
 testimony ; 4 and what lends additional force to the conclu- 
 
 1 Marculf. Lib. I. Formul. xxxviii. 
 
 " Kbnigswarter, Etudes Historiques, p. 167. 
 
 3 Nam nulli liceat, postquam manifestaverit, postea per sacramentum 
 negare, quod non sit culpabilis, postquam ille se culpabilem assignavit. 
 Quia multos cognovimus in regno nostro tales pravas opponentes intentiones, 
 et ba;c moverunt nos praesentem corrigere legem, et ad meliorem statum 
 revocare. L. Longobard. Lib. ir. Tit. It. 8. 
 
 * * Si quis hominem ingenuo plagiaverit et probatio certa non fuit, sicut 
 pro occiso juratore donet. Si juratores non potuerit invenire, VIII M dina- 
 rio.=, qui faciunt solidos CC, culpabilis judicetur. Tit. xxxix. 2. A simi- 
 lar provision "si tamen probatio certa non fuerit" occurs in Tit. xlii. 5. 
 
40 THE WAGER OF LAW. 
 
 sion is that this direction disappears in subsequent revisions 
 of the law, wherein the influences of Christianity and of 
 Roman civilization are fully apparent. No safe deduc- 
 tions, indeed, can be drawn from mere omissions to specify 
 that the absence of witnesses was necessary, for these ancient 
 codes are drawn up in the rudest possible manner, and 
 regulations which might safely be presumed to be familiar 
 to every one would not be repeated in their curt and bar- 
 barous sentences with the careful redundancy of verbiage 
 which marks our modern statutes. Thus there is a passage 
 in the code of the Alamanni which declares in the most 
 absolute form that if a man commits a murder and desires 
 to deny it, he can clear himself with twelve conjurators. 1 
 This, by itself, would authorize the assumption that com- 
 purgation 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. 2 
 
 It therefore seems to me evident that, even in the earliest 
 times, this mode of proof was only an expedient resorted 
 to in cases of doubt, and on the necessity of its use the 
 rachinborgs or judges probably decided. That it was so 
 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. 3 
 
 1 Si quis hominem occiderit et negare voluerit, cum duodecim nominatis 
 juret. L. Alaman. Tit. lxxxix. 
 
 2 Ibid. Tit. xlii. 
 
 3 For instance, in the Baioarian law "Nee facile ad sacramenta veniatur 
 ... In his vero causis sacramenta prscstentur in quibus nullam probationer 
 discussio judicantis invenerit." (L. Baioar. Tit. vm. c. 16.) In a Capitu- 
 lary of Louis-le-Debonnaire, " Si hujus facti testes non habuerit cum duo- 
 decim conjuratoribus legitimis per sacramentum adfirmet." (Capit. Ludov. 
 Pii ann. 819 1). In one of the Emperor Lothair, " Si testes habere non 
 poterit, concedimus ut cum XII. juratoribus juret." (L. Longobard. Lib. i. 
 
SEPULC II B A. L OATHS. 41 
 
 Confidence in its ability to supplement absent or deficient 
 testimony was manifested in a singular form the jura- 
 mentum supermortuum which was employed by various 
 races, a1 wide intervals of time, Thus, in the earliest Legis- 
 lation <>i' the Anglo-Saxons, we find t lint 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. 1 Two centuries later, the same custom 
 is alluded to in the Welsh laws of Hoel Dha, 2 and even as 
 lat i> as the thirteenth century it was still in force in Southern 
 Germany. 3 
 
 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 com- 
 purgators. (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 witnesses 
 might perhaps turn up " Et si hoc modo purgatus fuerit, absolvetur a pe- 
 titione Regis in posterum." (Regiam Majestatem, Lib. iv. c. 21.) So, in 
 the laws of Nieuport, granted by Philip of Alsace, Count of Flanders, in 
 1163. " Et si hoc scabini vel opidani non cognoverint, conquerens cum 
 juramento querelam suam sequetur, et alter se excusabit juramento quinque 
 hominum." (Leg. secundae Noviportus.) The legislation of Norway and Ice- 
 land in the next century is even more positive. " lis tantum concessis qu 
 legum codices sanciunt, juramenta nempe purgatoria et accusatoria, ubi 
 legitirai defuerint testes." (Jarnsida, Mannhelge, cap. xxxvii.) 
 
 On the other hand, an exception to this general principle is apparently 
 found in a constitution of the Emperor Henry III., issued about the middle 
 of the eleventh century " Si quem ex his dominus suus accusaverit de qua- 
 cunque re, licet illi juramento se cum suis coaequalibus absolvere, exceptis 
 tribus : hoc est si in vitam domini sui, autin camerara ejus consilium habuisse 
 arguitur, aut in munitiones ejus. Creteris vero hominibus de quacunque 
 objectione, absque advocato, cum suis coasqualibus juramento se poterit ab- 
 solvere." (Groldast. Constit. Imp. I. 231.) 
 
 1 Dooms of Ine, cap. liii. 2 Leg. Eccles. Hoeli Dha c. 27 
 
 3 Ea autem debita de quibus non constat, super mortuum probari debent, 
 septima manu. Jur. Provin. Alaman. cap. vii. 3. 
 
 4* 
 
42 THE WAGER OF LAW. 
 
 In such cases as these, there could be no doubt as to the 
 absence of testimoi^, but legal complications are too vari- 
 ous and perplexing to render all questions so easy of solu- 
 tion, nor can we expect to find, in the simplicity of primitive 
 laws, elaborate general directions that maj^ guide us in any 
 attempt to investigate thoroughly the principles which the 
 untutored barbarian may have applied to determine the ad- 
 missibility of this kind of evidence. That they were not 
 always such as would appear rational to us of the nineteenth 
 century may safely be assumed. The laws of Hoel Dha re- 
 quired, for instance, that compurgation should be allowed 
 only in cases of uncertainty, 1 yet how latitudinarian was the 
 definition of uncertainty, and how great was the benefit of 
 the doubt interpreted in favor of the criminal, is shown by 
 its application to parties taken in adultery, flagrante de- 
 licti^ who were allowed to escape on the production of fifty 
 men to take the oath with the male culprit, and fifty women 
 with the female, 2 though what was the verdict when the one 
 was successful and the other partner in guilt failed, does 
 not appear. 
 
 The employment of compurgators also depended fre- 
 quently 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 num- 
 bers increased with the magnitude of the matter in question. 
 This principle is fairly illustrated in a charter granted to 
 the Venetians in the year 1111 by Henry V. In suits which 
 amounted only to a silver pound, the oath of the party was 
 
 1 L. Eccles. c. 8. Et hoc tamen sit incertum. 
 
 2 The crudity of this regulation is almost incredible. "Et tribus de causis 
 datur tale juramentum. Si videatur mulier veniens de luco de una parte, 
 et vir veniens de altero parte ejusdem luci in eadem hora, vel si videantur 
 insimul jacentes sub uno pallio, vel si videatur vir inter femora mulieris." 
 (Ibid. cap. 17.) Perhaps this may be attributable to the looseness of the 
 marriage tie among the Welsh of the period* 
 
FORMULA OF OATH. ifl 
 
 rafficienl : but If the oUrim amounted to twelve pounds of 
 more, thru twelve ohoeea men wen requisite to substantiate 
 the oath of negation. 1 
 
 In Latex times, compurgation was also sometimes used ai 
 an alternative when circumstances prevented the employ- 
 nu'iit of other popular modes of deciding doubtful ease* 
 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 Dumber 
 of conjurators, when precluded by advanced age from ap- 
 pearing in the arena. The burgher law of Scotland affords 
 an example of this, 9 though elsewhere such cases were 
 usually settled by the substitution of champions. 
 
 The primitive law-givers were too chary of words in t heir 
 skeleton codes to embody the formula usually employed 
 for the eompurgatorial oath. . We have therefore no posi- 
 tive evidence of its nature in the earliest times; but as the 
 forms made use of by several races at a somewhat later 
 period have been preserved, and as they resemble each 
 other in all essential respects, we may reasonably assume 
 that little variation had previously occurred. The most 
 ancient that I have met with occurs in an Anglo-Saxon 
 formulary which is supposed to date from about A.I). 900: 
 "By the Lord, the oath is clean and unperjured which X. 
 has sworn." 3 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 
 Bearn, at a period somewhat subsequent, is curt and deei- 
 
 1 Lunig Cod. Ital. Diplom. II. 1955. 
 
 2 Si burgensis calumniatus praeteriit aetatem pugnandi, et hoe essoniaverit 
 in sua responsione, non pugnabit. Sed juramento duodecim talium qualis 
 ipse fuerit, se purgabit. L. Burgorum cap. 24 1, 2. 
 
 3 On bone Drihten se aS is claene and unmaene pe N. swor. Thorpe's An- 
 cient Laws, I. 180-1. 
 
 4 Hoc quod appellatus juravit, verum juravit. Sic Deus, etc. Formul. 
 Vet. in L. Langobard. (Georgisch, 1275-0.) 
 
44 THE WAGER OF LAW. 
 
 sive: "By these saints, he tells the truth;" 1 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." 3 It will be 
 observed that all these, while essentially distinct from the 
 oath of a witness, are still unqualified assertions of the 
 truth of the principal, and not mere asseverations of belief 
 or protestations of confidence. The earliest departure from 
 this positive affirmation, in secular jurisprudence, occurs 
 in the unsuccessful attempt at legislation for Norwa}^ 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. 3 
 
 We shall see that before the custom fell into total disuse, 
 the change which Haco vainly attempted for his subjects 
 came to be generally adopted, in consequence, principally, 
 of the example set by the church. Even before this was 
 formally promulgated by the Popes, however, ecclesiastics 
 occasionally showed that they were more careful as to what 
 they swore, and at a comparatively early period they intro- 
 duced the form of merely asserting their belief in the oath 
 taken by their principal. Thus, in 1101, we find two bishops 
 
 1 Per aquetz santz ver dits. Fors de Beam, Ruhr. LI. art. 165. 
 
 2 Du serment que Guillaurae a jure, sauf serment a jure, ainsi m'aist Dieu 
 et ses Sainctz. Ancienne Cout. de Normandic, chap, lxxxv. (Bourdot de 
 Richebourg, IV. 54.) 
 
 3 Nobis adhaec Deo coram periculosum esse videtur, ejus, cujus interest, 
 jusjurandum purgatorium edendo praeeunte, omnes (ab eo producti testes) 
 iisdem ac ille conceptis verbis jurare, incerti quamvis fuerint, vera ne an 
 falsa jurent. Nos legibus illatum volumus ut ille, cujus interest, jusjuran- 
 dum conceptis verbis solum prcestet, cseteri vero ejus firinent jusjurandum 
 adjicientes se nequid verius, Deo coram, scire, quain jurassent. Jarnsida, 
 Mannhelge, cap. xxxvii. The passage is curious, as showing how little con- 
 fidence was really felt in the purgation, notwithstanding the weight attaching 
 to it by law. * 
 
w.\ NT Off OON 1 1 D I WO I. US 
 
 endeavoring to relieve a brother prelate from a charge <>f 
 
 simony, :m<l their oompuTgatorial oath ventures no further 
 
 than u l believe that Norgaud, Bishop of Antnn. lias sworn 
 the truth. So help me God." 1 
 
 Notwithstanding the universality of the custom, and the 
 absolute character of the decisions reached by the process, 
 it is easy to discern that the confidence reposed in it was 
 of a very qualified character, even at an early period. The 
 primitive law of the Frisians describes some whimsical 
 proceedings, prescribed for the purpose of determining the 
 responsibilit} r 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 indivi- 
 dually subjected to the ordeal, which finally decided as to 
 his guilt or innocence. In this, the value of the com- 
 purgation was reduced to that of the merest technical cere- 
 mony, and yet a failure to procure the requisite number 
 of supporters was tantamount to a conviction, while, to 
 crown the absurdity of the whole, if any one succumbed in 
 the ordeal, his conjurators were punished as perjurers. 3 A 
 similar want of confidence in the principle involved is shown 
 by a reference in the Anglo-Saxon laws to the conjurators 
 of an accused party being outsworn (overcythed), when 
 recourse was likewise had to the ordeal. 3 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, 3-et we have already 
 seen that in the ninth century, Hincmar did not hesitate 
 to require that in certain cases it should be continued 
 by the ordeal; and two centuries later, a remark of Ivo 
 
 1 Credo Norigaudum istum Eduensem episcopum vera jurasse, sicut me 
 Deus adjuvet. Hugo, Flaviniac. Lib. n. 
 - L. Frisionum Tit. xiv. 
 * Dooms of King Edward,, cap. iii. 
 
46 THE WAGER OF LAW. 
 
 of Chartres implies a strong degree of doubt as to its 
 efficacy. In relating that Sanctio, Bishop elect of Orleans, 
 when accused of simony by a disappointed rival, took the 
 oath of negation with seven compurgators, he adds that 
 the accused thus cleared himself as far as he could in 
 the eyes of man. 1 That the advantages it offered to the 
 accused were duly appreciated, both by criminals and 
 judges, is evident from the case of Manasses, Archbishop 
 of 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 enormous sum of two hundred 
 ounces of gold and other presents in hand, besides equally 
 liberal prospective payments, if he could obtain the privi- 
 lege of compurgation with six suffragan bishops. Gregory 
 VII. was then waging too uncompromising a war with the 
 corroding abuse of simony for his lieutenant to yield to 
 any bribe, however dazzling; the proffer was spurned, 
 Manasses confessed his guilt by absence, and was accord- 
 ingly deposed. 3 
 
 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 
 considered to outweigh those of six conjurators f and 
 among the Lombards, an accusation of murder which could 
 be met with three witnesses required twelve conjurators as 
 a substitute. 4 
 
 It is thus evident that conjurators were in no sense wit- 
 nesses, that they were not expected to give testimony, and 
 that they merely expressed their confidence in the veracity 
 
 1 Quantum in conspectu hominum purgari poterat. Ivon. Epist. liv. 
 
 s Hugo. Flaviniac. Lib. II. 3 L. Baioar. Tit. xiv. cap i. 2. 
 
 4 L. Longobnrd. Lib. t. Tit. is. 37. 
 
LIABILITY OF CONJURATORS. 47 
 
 of their principal. It therefore al first sight appears some- 
 what unreasonable that they should have been held guilty 
 of perjury and subject to its penalties in case <>f unluckily 
 sustaining the irrong side of :i cause. It is probably ow- 
 ing to this inconsistency that sonic writers have denied 
 that they were involved in the guilt of their principal, and 
 among others the learned Meyer has fallen into this error. 1 
 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 that 
 would enable the compurgator to escape the charge of 
 false swearing, and one or two allusions have been made 
 to the punishments inflicted on them when subsequently 
 convicted of mistake. The code of the Alamanni recog- 
 nized the guilt involved in such cases when it denied the 
 privilege of compurgation to any one who had previously 
 been more than once convicted of crime, giving as a reason 
 the desire to save innocent persons from incurring the sin 
 of perjur3 T . 3 Similar evidence is derived from a regulation 
 promulgated by King Luitprand in the Lombard law, by 
 which a man nominated as a conjurator, and declining to 
 serve, was obliged to swear that he dared not take the oath 
 for fear of his soul. 3 A case in point occurs in the life of 
 St. Boniface, whose fellow-laborer Adalger left his property 
 to the church. His graceless brothers disputed the bequest, 
 and offered to make good their claim to the estate by the 
 requisite number of oaths. The holy man ordered them 
 to swear alone, in order not to be concerned in the destruc- 
 tion of their conjurators, and on their unsupported oaths 
 gave up the property. 4 
 
 1 Institutions Judiciaires, I. 317 (Pardessus). 
 
 " 2 Ut propter suam nequitiam alii qui volunt Dei esse non se perjurent, 
 nee propter culpam alienam semetipsos perdant. L. Alaman. Tit. xlii. 1. 
 
 3 Quod pro aniraa sua timendo, non praesumat sacramentalis esse. L. 
 Longobard. Lib. II. Tit. Iv. 14. 
 
 4 Othlon. Vit. S. Bonif. Lib. II. c. xxi. " Vos soli juratis, si vultis: nolo 
 ut omnes hos congregatos perdatis." Boniface, however, did not weakly 
 
48 THE WAGER OF LAW. 
 
 The law had no hesitation in visiting such cases with 
 the penalties reserved for perjury. B3' the Salique code 
 unlucky compurgators were heavily fined. 1 Among the 
 Frisians, they had to buy themselves off from punishment 
 "by the amount of their wehrgild the value set upon their 
 heads. 9 A slight relaxation of this severity is manifested 
 in a constitution of Pepin, King of Italy, by which they 
 were punished with the loss of a hand the immemorial 
 penalty of perjury unless they could establish, by under- 
 going the ordeal, that they had taken the oath in ignorance 
 of the facts. 3 This regulation is a tacit disavowal of the 
 fundamental idea upon which the whole system was erected, 
 but it was only a temporary edict, and had no permanent 
 effect. Even as late as the close of the twelfth century, we 
 find Celestin III. ordering the employment of conjurators 
 in a class of cases about the facts of which they could not 
 possibly know anything, and decreeing that if the event 
 proved them to be in error, they were to be punished for 
 perjury.* That such liability was fully recognized at this 
 period is shown by the argument of Aliprandus of Milan, 
 a celebrated contemporary legist, who, in maintaining the 
 position that an ordinary witness committing perjury must 
 always lose his hand, without the privilege of redeeming 
 it, adds that no witness can perjure himself unintentionally ; 
 but that conjurators may do so either knowingly or un- 
 knowingly, that they are therefore entitled to the benefit 
 of the doubt, and if not wittingly guilty, they should have 
 the privilege of redeeming their hands. 5 
 
 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. 
 
 1 L. Salic. Tit. 1. 3, 4. 
 
 3 L. Frisionum Tit. x. 
 
 3 Capit. Pippini ann. 793, 15. Capit. Car. Mag. incert. anni c. x. (Hartz- 
 heimConcil. German. I. 426.) 
 
 4 Celest. III. ad Brugnam Episc. (Baluz. et Mansi, III. 382.) 
 
 6 Cod. Vatican. No. 3845, Gloss, ad L. 2 Lombard, ii. 51, apud Savigny, 
 
SAFEGUARDS OF THE SYSTEM 49 
 
 All this seems in the highest degree i national, yet in 
 criticizing the hardships to which innocent conjurators 
 were thus exposed, it should be borne in mind that the 
 whole system was a solecism. In its origin, it was sim- 
 ply summoning the kinsmen together to bear the brunt of 
 the court, as they were bound to do 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 be- 
 came weakened or disused, and the progress of civilization 
 rendered the interests of society more complex, the custom 
 could only be retained by rendering 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 guaranties 
 that would carry conviction to the minds of impartial men. 
 As long as the practice existed, it was therefore necessary 
 to invest it with every solemnity, and to guard it with 
 penalties that would obviate some of its disadvantages. 
 
 Accordingly, we find that it was not always a matter of 
 course for a man to clear himself in this manner. The 
 ancient codes have frequent provisions for the fine incurred 
 by those unable to procure the requisite number of 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 
 
 Geschichte d. Rom. Recht. B. iv. I owe this reference to the kindness of 
 my friend J. G. Rosengarten, Esq. 
 
 5 
 
50 THE WAGER OF LAW. 
 
 Charlemagne, and, small as was the number, he was unable 
 to procure them. 1 So, in the year 1100, when the canons 
 of Autun, at the Council of Poitiers, accused their bishop, 
 Norgaud, of simony and other irregular practices, and he 
 proposed to absolve himself with the compurgatorial oaths 
 of the Archbishop of Tours and the Bishop of Redon, the 
 canons went privately to those prelates and threatened 
 that in such event they would bring an accusation of per- 
 jury and prove it by the ordeal of fire, whereupon the 
 would-be conjurators wisely abandoned their intention, and 
 Norgaud was suspended. 2 The most rigid compliance with 
 the requisitions of the law was exacted. Thus the laws of 
 Nieuport, in 1163, provide a heavy penalty, and, in addi- 
 tion, pronounce condemnation when a single one of the 
 conjurators declines the oath. 3 
 
 No regulations, however, could be more than a slight 
 palliation of a system so vicious in its fundamental prin- 
 ciples, and efforts were made for its abrogation or limitation 
 at a comparatively early period. 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. 4 In England, a more sweeping 
 denunciation, declaring its abolition and replacing it with 
 the vulgar ordeal, is found in the confused and contradic- 
 tory compilation known as the laws of Henry I. 5 
 
 f 
 
 1 Capit. Car. Mag. ann. 794 7. 
 
 3 Hugo. Flaviniac. Lib. II. ann. 1100. Norgaud, however, was reinstated 
 next year by quietly procuring, as we have already seen, two brother prelates 
 to take the oath with him, in the absence of his antagonists. 
 
 a Et si quis de quinque juvantibus defecerit, accusatus debet tres libras, 
 et percusso decern solidos. Leg. Secund. Noviportus (Oudegherst). 
 
 4 L. Longobard. Lib. II. Tit. lv. 34. Qua ex re mos detestabilis in 
 Italia, improbusque non imitandus inolevit, ut sub legum specie jurejurando 
 acquireret, qui Deum non timendo minime formidaret perjurare. 
 
 8 L. Henrici I. cap. lxiv. 1. " Malorum autem infestacionibus et perju- 
 rancium conspiracione, depositum est frangens jurainentum, ut inagis Dei 
 judicium ab accusatis eligatur; et unde accusatus cum una decima se pur- 
 
CONTINUED POIMLAR CONFIDENCE. 51 
 
 We have already seen, from inataneei of later date, how 
 little influence Iheee efforts had in eradicating a custom 
 so deeply rooted in the ancestral prejudices of nil the Euro- 
 pean races. The hold which it continued to enjov on the 
 
 popular confidence is well illustrated in a little ballad l>y 
 Audefroi-le-Batard, a renowned trouvere of the twelfth 
 
 century. 
 
 LA BELLE EREMBORS.' 
 
 " Quand vient en mai, que Ton dit as Ions 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 lovelorn 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." 
 
 garet per eleccionem et sortem, si ad judicium ferri calidi vadat." This can- 
 not be considered, however, as having abrogated it even temporarily in Eng- 
 land, since it is contradicted by many other laws in the same code, which 
 prescribe the use of compurgators. 
 
 1 Le Roux de Lincy, Chants Historiques Francois, I. 15. 
 
52 THE WAGER OF LAW. 
 
 "Your vows are broken, princes3, 
 
 Your faith is light as air, 
 Your love another's, and of mine 
 
 You have nor reck nor care." 
 
 Ah, dear Rinaldo ! 
 
 " Sir knight, my faith unbroken, 
 
 On relics I will swear ; 
 A hundred maids and thirty dames 
 
 With me the oath shall share. 
 I 've never loved another, 
 
 From stain my vows are free. 
 If this content your doubts and fears, 
 
 You shall have kisses three." 
 
 Ah, dear Rinaldo ! 
 
 Rinaldo mounts the staircase, 
 
 A goodly knight, I ween, 
 With shoulders broad, and slender waist, 
 
 Fair hair and blue eyes keen. 
 Earth holds no youth more gifted 
 
 In every knightly measure ; 
 When Erembors beholds him, 
 
 She weeps with very pleasure. 
 
 Ah, dear Rinaldo ! 
 
 Rinaldo in the turret 
 
 Upon a couch reposes, 
 Where deftly limned are mimic wreaths 
 
 Of violets and of roses. 
 Fair Erembors beside him 
 
 Sits clasped in loving hold, 
 And in their eyes and lips they find 
 
 The love they vowed of old ! 
 
 Ah, dear Rinaldo ! 
 
 In England, owing probably to the influence of the jury- 
 trial, the custom seems to have lost its importance earlier 
 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. Com- 
 
ENGLAND. 53 
 
 pletc as this is in nil the Conns of p TOae O llti oil :ui<l defence, 
 the allusions to conjuratnis are SO Blight as lo show thai, 
 already they constituted an Infinitesimal part of legal 
 machinery, and that they were employed rather on collat- 
 eral points than on main questions. Thus a defendant who 
 desired to deny the serving of a writ could swear to its non- 
 reccption with twelve conjurators ; l and a party to a suit, 
 who had made an unfortunate statement or admission in 
 court, could deny it by bringing forward two to swear with 
 him against the united recollections and records of the 
 whole court. 8 The custom, however, still continued in use. 
 In 1194, when Richard I. undertook, after his liberation, to 
 bring about a reconciliation between his chancellor, William 
 Bishop of E1} T , and the Archbishop of York, one of the con- 
 ditions was that the chancellor should swear with a hundred 
 priestly compurgators that he had neither caused nor de- 
 sired the arrest of the archbishop. 3 In the next century, 
 Practon alludes to the employment of conjurators in cases 
 of disputed feudal service between a lord and his vassal. 
 wherein the utmost exactness was rigidly required both as 
 
 1 Glanville, Lib. i. cap. ix. Also, Lib. i. c. xvi., Lib. ix. c. i., Lib. x. 
 c. v. 
 
 3 " Inaliisenimcuriissiquis aliquiddixeritundeeumpocnituerit, poterit id 
 negare contra totam curiam tertia manu cum sacramento, id se non dixisse 
 affirmando." (Ibid. Lib. vm. c. ix.) In some other systems of jurispru- 
 dence, this unsophisticated mode of avoiding justice was obtained by insist- 
 ing 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 porce il deit estre lavantparlier, car se lavantparlier dit parole quil ne 
 doit dire por celuy ci 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 puest torner 
 arieres puis quil la dite." The same caution is recommended in the German 
 procedure of the fourteenth century "verbis procuratoris non eris adstric- 
 tns, et sic vitabis damnum." (Richstich Landrecht, cap. n.) The same 
 abuse existed in France, but was restricted by St. Louis, who made the as- 
 pertion of the advocate binding on the principal, unless contradicted on the 
 spot. (Etablissements, Liv. If. chap, xiv.) 
 
 3 Roger de Hoveden, ann. 1194. 
 
 5* 
 
54 THE WAGER OP LAW. 
 
 to the number and fitness of the conjurators,' and we shall 
 see that no formal abrogation of it took place until the nine- 
 teenth century. 
 
 Soon after the time of Glanville, however, the system re- 
 ceived a severe shock from its most important patron, the 
 church. As stated above, in proceedings between ecclesias- 
 tics, 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 its use in cases of the highest moment 
 involving dignitaries of lofty station ; though, sensible of the 
 abuses to which it led, he was careful in demanding conjura- 
 tors of good character, whose intimacy with the accused 
 would give weight to their oaths. 3 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, 3 
 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 imme- 
 morially existed. To recognize it as a legal precept was to 
 deprive the proceeding of its solemnity and to render it no 
 longer a security worthy the confidence of the people or 
 sufficient to occupy the attention of a court of justice. 
 
 1 Tunc vadabit defendens legem se duodecima manu. Bracton. Lib. 
 in. Tract, iii. cap. 37 1. Et si ad diem legis faciendae defuerit aliquis de 
 XII. vel si contra praedictos excipi possit quod non sunt idonei ad legem 
 faciendam, eo quod villani sunt vel alias idonei minus, tunc dominus incidet 
 in misericordiam. Ibid. 3. So also in Lib. v. Tract, v. cap. xiii. 3. 
 
 3 Can. vii. Extra, v. 34. 
 
 3 Illi qui ad purgandam alicujus infamiam inducuntur, ad solum tenentur 
 juramento firmare quod veritatem 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. 
 
INFLUENCE OP ROMAN LAW. 55 
 
 Tn the confusion arising from the long and varying con- 
 test as to the boundaries of civil :m<! ecclesiastical Juris- 
 diction, it is not easy to determine the Sxaci authority 
 which this decretal may have exercised directly in secular 
 jurisprudence. We have seen above that the ancient form 
 of absolute oath was still employed without change, until 
 long niter this period, but the moral effect of so decided a 
 declaration from the head of the Christian church could not 
 but be great. Another influence, not less potential, was also 
 at work. The revival of the study of the Roman juris- 
 prudence, dating from about the middle of the twelfth cen- 
 tury, soon began to exhibit the results which were to work 
 so profound a change in the legal maxims and principles 
 of half of Europe. 1 The criminal procedure of the barba- 
 rians had rested to a great degree on the system of negative 
 proofs. In the absence of positive evidence of guilt, and 
 sometimes in despite of it, the accused was bound to clear 
 himself by compurgation or by the ordeal. The cooler and 
 less impassioned justice of the Roman law saw clearly the 
 
 1 The rapidity with which the study of the civil law diffused itself through- 
 out the schools and the eagerness with which it was welcomed are well illus- 
 trated by the complaints of Giraldus Cambrensis before the end of the twelfth 
 century. The highest of high churchmen, in deploring the decline of learn- 
 ing among the prelates and clergy of his age, he attributes it to the exclusive 
 attention bestowed on the jurisprudence of Justinian, which already offered 
 the surest prizes to cupidity and ambition, and he quotes in support of his 
 opinion the dictum of his teacher Mainier, a professor in the University of 
 Paris : M Episcopus autem ille, de quo nunc ultimo locuti sumus, inter super- 
 ficiales numerari potuit, cujusmodi hodie multos novimus propter leges Jus- 
 tinianas, qua; literaturam, urgente cupiditatis et ambitionis incommodo, 
 adeo in multis jam suffocarunt, quod magistrum Mainerium in auditorio 
 scholae suae Parisius dicentem et damna sui temporis plangentem, audivi, 
 vatieinium illud Sibillae vere nostris diebus esse completum, hoc scilicet 
 'Venient dies, et vae illis, quibus leges obliterabunt scientiam literarum.' " 
 (Gemm. Ecclesiast. Dist. II. cap. xxxvii.) This, like all other branches of 
 . learning, was as yet almost exclusively in the hands of the clergy, though 
 already were arising ihe precursors of those subtle and daring civil lawyers 
 who were destined to do such yeoman's service in abating the pretensions of 
 the church. 
 
56 THE WAGER OF LAW. 
 
 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 evi- 
 dence and thus the onus of proof was thrown upon the 
 accuser. 1 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 Alphonso 
 the Wise, in the middle of the thirteenth century," asserts 
 it in almost the same words as the Roman jurisconsult. 3 
 Not long before, the Assises de Jerusalem had unequivo- 
 cally declared that "nul ne peut faire preuve de non ;" and 
 Beaumanoir, in the "Coutumes du Beauvoisis," approv- 
 ingly 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 almost unchecked the most 
 monstrous of negative proofs the ordeal of battle and the 
 introduction of torture soon after exposed the accused to 
 the chances of the negative system in its most atrocious 
 form. Still these codes show a marked progress as relates 
 to the kindred procedure of compurgation. The Partidas, 
 promulgated about 1262, is of comparative unimportance 
 as an historical document, since it was of but uncertain 
 authority, and rather records the convictions of an enlight- 
 
 1 Actor quod adseverat, probare se non posse profitendo, reum necessitate 
 monstrandi contrarium non adstringit : cum per rerum naturam factum ne- 
 gantis probatio nulla sit. (Const, xxii. C. de Probat. iv. 19.) Cum inter eum, 
 qui factum adseverans, onus subit probationis, et negantem numerationem, 
 cujus naturali ratione probatio nulla est . . . magna sit differentia. (Const. 
 x. C. de non numerat. iv. 30.) 
 
 2 La cosa que non es non se puede probar nin mostrar segunt natura. Las 
 Siete Partidas, P. in. Tit. xiv. 1. 1. 
 
THE THIRTEENTH 0ENT1KY. 51 
 
 ened ruler as to what should be law than the existing insti- 
 tutions of a people. The absence of compurgation in Spain, 
 moreover, was a direct legacy from the Wisigothic code, 
 transmitted in regular descent through the Fuero Juzgo. 
 The Assises de Jerusalem is a more precious relic of rae- 
 dia'val jurisprudence. Constructed as a code for the gov- 
 ernment of the Latin kingdoms of the East, in 1099, by order 
 of Godfrey of Bouillon, it has reached us only in the form 
 assumed about the period under consideration, and as it 
 presents the combined experience of the warriors of many 
 Western races, its silence on the subject of conjurators is 
 not a little significant. The work of Beaumanoir, written 
 in 1283, is not only the most perfect embodiment of the 
 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 institution. All these legislators and 
 lawyers had been preceded by the Emperor Frederick II., 
 who, in 1231, promulgated his " Constitutiones Sicularum" 
 for the government of his Neapolitan provinces. Frederick 
 was Latin, and not Teutonic, both by education and predi- 
 lection, and his system of jurisprudence is greatly in ad- 
 vance of all that had preceded it. That conjurators should 
 find no place in his scheme of legal procedure is, therefore, 
 only w r hat might be expected. The collection of laws knowni 
 as the "Etablissements" of St. Louis is by no means a 
 complete code, but it is sufficiently copious to render the 
 absence of all allusion to compurgation significant. In 
 fact, the numerous references to the Digest show how strong 
 was the desire to substitute the Roman for the customary 
 law, and the efforts of the king to do away with all negative 
 proofs of course included the one under consideration. 
 The same may be said of the " Livres de Jostice et de Plet" 
 
58 THE WAGER OF LAW. 
 
 and the "Conseil" of Pierre de Fontaines, two unofficial 
 books of practice, which represent with tolerable fulness 
 the procedures in vogue during the latter half of the thir- 
 teenth century; while the "Olim," or records of the Parle- 
 ment 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 juris- 
 diction at the expense of the independence of the vainly 
 resisting feudatories. 1 
 
 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 at work to 
 overthrow the institutions bequeathed by the barbarians to 
 the Middle Ages, than to a general acceptance of the innova- 
 tions attempted. Their authority was still circumscribed 
 by the innumerable jurisdictions which yet defied their 
 gradual encroachments, and which resolutely maintained 
 ancestral customs. Even an occasional instance may be 
 found where the central power itself permitted the use of 
 compurgation, showing how difficult it was to eradicate 
 the prejudices transmitted through ages from father to son, 
 
 1 In the " Olim," or records of the Parlement of Paris from 1254 to 1318, 
 I can find but two instances in which compurgation was required one in 
 1279 at Noyon, and one in 1284 at 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 inference is fair that 
 some local custom rendered it impossible to refuse the privilege on these 
 special occasions. (Olim, II. 153, 237.) ^k 
 
 A noteworthy instance of its employment occurred in 1234 at the Diet of 
 Frankfort, in the presence of Henry VII., son of that Frederick II. whom 
 we have seen discountenance its use in his Neapolitan laws. When the fear- 
 ful persecutions instigated by the grand inquisitor, Conrad of Marburg, drew 
 to a close, the last of his intended victims, the Counts of Seyne and Solms, 
 cleared themselves before the king of the charge of heresy with compurga- 
 torial oaths in which each was supported by eight bishops, twelve Cistercian 
 abbots, twelve Franciscan and three Dominican friars, and a large number 
 of Benedictine abbots, clerks, and noble laymen. (Hartzheim Concil. Ger- 
 man. III. 549.) 
 
THE FOURTEENTH CENTURY. 59 
 
 and that the policy adopted by St. Louis and Philippe-Ie- 
 Ih'1. aided by the shrewd and energetic civil lawyers who 
 assisted them so ably, was aot in all cases adhered to. 
 
 Thus, in 1303, B powerful noble of the court of I'liilippe-le- 
 Bel was accused of a foul and treacherous murder, which a 
 brother of the victim ottered to prove by the wager of battle 
 Philippe was endeavoring to abolish the judicial duel, and 
 the accused desired strongly to escape the ordeal, lie was 
 accordingly condemned to clear himself of the imputed 
 crime, by a purgatorial oath with ninety-nine nobles, and 
 at the same time to satisfy the fraternal claim of vengeance 
 with an enormous fine 1 a decision which offers the best 
 practical commentary on the degree of faith reposed in this 
 system of purgation. Even the Parlement of Paris in 1353 
 and a rescript of Charles-le-Sage in 1357 allude to compur- 
 gation as still in use and of binding force. 3 
 
 It was in the provinces, however, that the system mani- 
 fested its greatest vitality, protected belli 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 local- 
 ized power. The principles were essentially oppugnant, 
 and the contest between them was prolonged and confused, 
 for neither party could in all cases recognize the ultimate 
 result of the minuter points involved, though each was 
 fully alive to the broad issue of the struggle. 
 
 How obstinate was the attachment to bygone forms 
 may be understood, when we see even the comparatively 
 
 1 Statuunt . . . pe manu centesima nobilium se purgare, et ad haec bene- 
 Pfcto juveni bis septem librarum milia pro sui rancoris satisfactione pree- 
 sentare. Wilelmi Egmond. Chron. 
 
 3 Is qui reus putatur tertia manu se purgablt, inter quos sint duo qui 
 dicentur denominate. Du Cange s. v. Juramentum. 
 
60 THE WAGER OF LAW. 
 
 precocious civilization of a city like Lille preserve the 
 compurgatorial oath as a regular procedure until the mid- 
 dle of the fourteenth century, even though the progress of 
 enlightenment had long rendered it a mere formality, with- 
 out 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. 1 
 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 exa- 
 mination of the case, 3 yet the slightest error committed by 
 either party lost him the case irrecoverably. 3 
 
 Normandy was even more faithful to the letter of the 
 ancient traditions. The Coutumier in use until the revi- 
 sion 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 wit- 
 nesses. The form of procedure was identical with that of 
 
 1 Et li deffendans, sour qui on a clamet se doit deffendre par lui tierche 
 main, se chou est hom II. hoinmes et lui, se chou est fame II. femmes et li 
 a tierche. ..." Tel sierment que Jehans chi jura boin sierment y jura au 
 mien ensient. Si m'ait Dius et chist Saint." Roisin, Franchises etc. de la 
 Ville de Lille, pp. 30, 35. 
 
 2 Ibid. p. 51. The system was abrogated by a municipal ordinance of 
 September, 1351, in accordance with a special ordonnance to that effect issued 
 by King John of France in March, 1350. 
 
 3 The royal ordonnance declares that the oath was "en Ian gage estraigne 
 et de mos divers et non de legier a retenir ou prononchier," and yet that if 
 either party " par quelconques maniere faloit en fourme ou en langage ou 
 que par fragilite de langhe, huirans eu, se parolle faulsist ou oubvliast, ou 
 eslevast se main plus que li dite maniere acoustumee en requeroit ou quelle 
 ne tenist fermement sen poch en se paulme ou ne wardast et maintenist 
 pluiseurs autres frivoles et vaines chozes et manieres appartenans au dit 
 sierment, selonc le loy de la dite ville, tant em parole comme en fait, il avoit 
 du tout sa cause perdue, ne depuis nestoit rechus sur che li demanderes a 
 claim ou complainte, ne li deffenderes a deffensce." Ibid. p. 390. 
 
B A It N SPAIN. 01 
 
 old, and the oath, as we have already seen (page 44), was 
 an unqualified assertion of the truth of that of the accused. 1 
 Practically, however, we may assume that the custom had 
 long grown obsolete, for the letters patent of Henry III., 
 
 ordering the revision in 1577, expressly state that the pro- 
 visions of the existing laws "estoient la pluspart hors 
 d'usage et pen ou point entendu des habitants du pays;" 
 and that compurgation was one of the forgotten formulas 
 may fairly be inferred from the fact that Pasquier, writing 
 previous to 1584, speaks of it as altogether a matter of the 
 past. 9 
 
 The fierce mountaineers of Beam were comparatively 
 inaccessible to the innovating spirit of the age, and pre- 
 served their feudal independence amid the progress and re- 
 form of the sixteenth century, long after it had become obso- 
 lete 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. 3 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. 4 
 
 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. 5 This, however, is 
 
 1 Anc. Coutume de Normandie, chap. Ixxxv. (Bourdot de Richebourg, IV. 
 53-4.) 
 
 " Recherches de la France, Liv. iv. chap. iii. Concerning the date of 
 this, see La Croix du Maine, s. v. Estienne Pasquier. 
 
 3 Fors et Cost, de Beam, Rubr. de Juramentz (Bourdot de Richebourg, 
 IV. 1082). 
 
 * Lo jurament deu seguido se fe, Juran per aquetz sanctz bertat ditz 
 exi que io crey. 
 
 5 E si gelo negare e non gelo quisier probar, devel' facer salvo con once 
 Fijosdalgo e el doceno, que non lo 690. (Fuero Viejo de Castilla, Lib. I. 
 6 
 
62 THE WAGER OF LAW. 
 
 so much in opposition to the efforts made a century earlier, 
 by Alfonso the Wise in the Particlas, to enforce the prin- 
 ciples 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 re- 
 garded as a tentative innovation, of mere temporary vali- 
 dity. 
 
 The Northern races resisted more obdurately the advances 
 of the resuscitated influence of Rome. Though we have seen 
 Frederick II. omitting all notice of compurgation in the code 
 prepared for his Neapolitan dominions in 1231, he did not 
 attempt to abrogate it among his German subjects, for it is 
 alluded to in a charter granted to the city of Regensburg in 
 1230. 1 The "Speculum Suevicum," which during the thir- 
 teenth 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. 2 How thoroughly it remained a portion of the 
 recognized system of legal procedures is evident from a 
 constitution issued by Charles V. in 1548, wherein its use 
 is enjoined in doubtful cases in a manner to show that it 
 was an existing resource of the law, and that it retained 
 its hold upon public confidence, although the conjurators 
 were only required to swear as to their belief in the oath 
 of their principal. 3 
 
 In Scotland, even as late as the middle of the fourteenth 
 century, its use is proved by a statute which provides that 
 
 Tit. v. 1. 12.) It will be observed that this is an unqualified recognition of 
 the system of negative proofs. 
 
 1 Du Cange, s. v. Juramentum. 
 
 2 Jur. Provin. Alaman. cap. xxiv. ; cccix. 4; cccxxix. $ 2, 3 ; cccxxxix. 
 3. 
 
 3 Sique accusatustanta ac tam gravi suspitione laboraret ut aliorum quoque 
 purgatione necesseesset, in arbitratu stet judicis, sibi earn velit injungere, nee 
 ne, qui nimirum compurgatores jurabunt, se credere quod ille illive qui se 
 per juramentum excusarunt, recte vereque juraverint. Constit. de Pace 
 Publica cap. xv. 1. (Goldast. Constit. Imp. I. 541.) 
 
D E N MARK BWBD1N POLAND. 
 
 if thief escaped firom confinement, the lord of the prison 
 
 should clear himself of coinplicit y with the evasion by t lit* 
 oaths of thirty conjurators, of whom three were required 
 to be noble*. 1 
 
 The Scandinavian nations adhered to the custom with 
 even greater tenacity. In the code of Haeo Haconsen, 
 issued towards the close of the thirteenth century, it ap- 
 pears as the basis of defensive procedure in almost all 
 criminal cases, and even in civil suits its employment is 
 not unfrequently directed, the number of conjurators being 
 proportioned to the nature of the crime or to the amount 
 at stake, and regulations for administering the oath being 
 given with much minuteness. 3 In Denmark, an allusion to 
 it is found in 1537 in the laws of Christiern III., 3 and its 
 vitality among the people is shown by the fact that even in 
 1683, Christiern V., in promulgating a new code, found it 
 necessary to formally prohibit accused persons from being 
 forced to provide conjurators. 4 In Sweden, its existence 
 was similarly prolonged. Directions for its use are con- 
 tained in the code which was in force until the seventeenth 
 century, 5 and it is even alluded to in an ordinance of Queen 
 Christina, issued in 1653. 8 
 
 It is not a little singular that the latest active existence of 
 a custom which appears so purely Teutonic should be found 
 among a portion of the Sclavonic race. In Poland, it is 
 described as being in full force as late as the eighteenth 
 century, the defendant being obliged to support his purga- 
 torial oath with conjurators, who swore as to its truth. 7 
 
 1 Statut. Davidi II. cap. i. $ 6. 
 
 3 Jarnsida, Mannhelge & Thiofa-Balkr passim ; Erfthatal cap. xxiv. ; 
 Landabrigtha-Balkr cap. xxviii. ; Kaupa-Balkr cap. v., ix., etc. 
 
 3 Quoted by Thorpe, Ancient Laws, <fcc, of England, I. 28. 
 
 4 Neraini in causa ulla injungendum est ut duodecim virorum juramento 
 se purgare debeat. Christiani V. Jur. Danic. Lib. i. c. xv. 8. 
 
 * Poteritque se tunc purgare cui crimen imponitur juramento XVIII. viro- 
 rum. Raguald. Ingermund. Leg. Suecorum Lib. i. c. xvi. 
 c Konigswarter, op. cit. p. 168. 
 
 1 Ludewig, Reliq. MSS. T. VII. p 401. 
 
64 THE WAGER OF LAW. 
 
 The constitutional reverence of the Englishman for estab- 
 lished forms and customs, however, preserved this relic of 
 barbarism in the common law to a period later by far than 
 its disappearance from the codes of nations regarded by 
 Great Britain as her inferiors in progress and enlighten- 
 ment. We have already seen from Glanville and Bracton 
 that even in the twelfth and thirteenth centuries the "wager 
 of law," as compurgation was called, was practically of 
 little importance, yet no effort was made to remove it by 
 statute, and it long remained as a solecism in the English 
 courts. The Fleta, which is about twenty-five years later 
 than Bracton's work, gives directions as to its use, by 
 which we learn that in actions of debt the defendant was 
 only required to produce conjurators double in number to 
 the witnesses of the plaintiff, 1 thus offering an immense 
 premium on dishonesty and perjury. In spite of this, it 
 remained an integral part of the law. 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." Style's 
 "Practical Register," published in 1651, 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 prac- 
 tice 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 
 occurred in IT 9 9 in which a defendant successfully eluded 
 the payment of a claim by producing compurgators who 
 "each held up his right hand, and then laid their hands 
 upon the book and swore that they believed what the de- 
 
 1 Ut si duos vel tres testes produxerit ad probandum, oportet quod de- 
 fensio fiat per quatuor veljaer sex; ita quod pro quolibet teste duos producat 
 juratores usque ad duodecira. Lib. II. c. lxiii. s. 10. 
 
THE ECCLESIASTICAL COURTS. Gfi 
 
 fendant swore was true." The court endeavored to prevent 
 this force, but law was law, and reason was forced to sub- 
 mit. Even this did not provoke a change. In 1824, in the 
 case of King v. Williams (2 Barnewall & Cresswell, 528), 
 some black-letter lawyer revived the forgotten iniquity for 
 the benefit of a client who could get no 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. 1 Still 
 the fine reverential spirit postponed the inevitable innova- 
 tion, and it was not until 1833 that the wager of law was 
 formally abrogated by 3 and 4 William IV., c. 42, s. 13.* 
 
 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 asser- 
 tion of belief in the innocence of the accused. That this 
 at once became the standard formula in ecclesiastical cases 
 is probable when we find it adopted for the oaths of the 
 compurgators who, during the Albigensian persecution, 
 were required by the nascent Inquisition in all cases to 
 assist in the purgation of such suspected heretics as were 
 allowed to escape so easily. 3 The practice thus commenced 
 
 1 I owe these various references to a curious 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." 
 
 3 Wharton's Law Lexicon, 2d ed., p. 758. 
 
 s Ego talis juro . . . me firmiter credere quod talis non fuit Insabbatus, 
 
 6* 
 
66 THE WAGER OF LAW. 
 
 at the foundation of the Inquisition was persevered in by 
 that terrible tribunal to the last. The accused against 
 whom nothing could be proved was called upon to produce 
 compurgators before he could be acquitted, and a failure 
 to procure the number designated by the judge was equiva- 
 lent to a condemnation. 1 This fearful system of the pre- 
 sumption of guilt, requiring the negative proof from the 
 unfortunate wretch whom suspicion had deprived of his 
 friends, was continued in force until the final abolition of 
 the Inquisition. 2 
 
 In the regular ecclesiastical courts, Lancelotti, at the end 
 of the sixteenth century, speaks of compurgation as the 
 only mode of defence then in use in doubtful cases, where 
 the evidence was unsatisfactory. 3 And amid certain orders 
 of monks within the last century, questions arising between 
 themselves were settled by this mode of trial. 4 
 
 Even 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. 5 
 
 Valdensis, vel Pauperum de Lugduno . . . et credo firmiter eum in hoc 
 jurasse verum. Doctrina de modo procedendi contra Hsereticos. (Mart, et 
 Durand. T. V. p. 1801.) 
 
 1 Si vero susciperet purgationem, et in ea deficeret, uti haereticus esset 
 censendus, et poena) hseretici subjaceret. (Villadiego, Fuero Juzgo, 318 b .) 
 Villadiego wrote in 1599, and even the terror of the Holy Office could not 
 prevent him from stigmatizing the system "ha>c purgatio fragilis est, peri- 
 culosa et caeca atque fallax." 
 
 8 Du Cange, s. v. Piirgatio. 
 
 3 Institut. Jur. Canon. Lib. IV. Tit. ii. 2. 
 
 4 Du Cange, loc. cit. 
 
 s Burnet, Reformation, Vol. I. p. 199 (Ed. 1681). 
 
ACCUSATORIAL CONJURATORS. Gt 
 
 Though not strictly a portion of onr subject, the question 
 is not without interest as to the power or obligation of the 
 plaint ill or accuser to fortify his case with conjurators. 
 Then 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 Salique 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 de- 
 fendant in reply; and it is presumable that the judges 
 weighed the probabilities on either side, and rendered a de- 
 cision accordingly. 1 As this is omitted in the later revi- 
 sions 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 re- 
 butted by the defendant with a single competent witness. 8 
 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 individuality 
 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 indi- 
 cate may be inferred from one of the false decretals which 
 Charlemagne was induced to adopt and promulgate. 
 According to this, no accusation against a bishop could be 
 successful unless supported by seventy-two witnesses, all 
 of whom were to be men of good repute ; forty-four were 
 required to substantiate a charge against a priest, thirty- 
 seven in the case of a deacon, and seven when a member of 
 the inferior grades was implicated. 3 Though styled wit- 
 
 1 Tit. lxxiv. of Herold's text. Cap. Extravagant. No. xvm. of Par- 
 dessus. 
 
 3 L. Baioar. Tit. xvi. cap. i. 2. 
 
 3 Capit. Car. Mag VI. ann. 806 c. xxiii. 
 
68 THE WAGER OF LAW. 
 
 nesses in the text, the number required is so large that 
 they could evidently 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. 
 
 In England, the Anglo-Saxon laws required, except in 
 trivial cases, a " fore-oath" from the accuser {forath, ante- 
 jur amentum, prsejur amentum), and William the Conqueror, 
 in his compilation of the laws of Edward the Confessor, 
 shows that this was sometimes strengthened by requiring 
 the addition of conjurators, who were in no sense witnesses, 
 since their oath had reference, not to the facts of the case, 
 but solely to the purity of intention on the part of the 
 accuser. 1 Indications of the same procedure are to be found 
 in the collection known as the Laws of Henry I. 2 
 
 In an age of comparative simplicity, it is natural that 
 men should turn rather to the guarantees of individual 
 character, or to the forms of venerable superstition, than to 
 the subtleties of legal procedure. Even as the defendant 
 was expected to produce vouchers of his truthfulness, so 
 might the plaintiff be equally required to give evidence that 
 his repute among his neighbors was such as to justify the 
 belief that he would not bring a false charge or advance an 
 unfounded claim. The two customs appear to arise from 
 the same process of reasoning and to be identical in spirit, 
 yet it is somewhat singular that, as the compurgatorial 
 oath declined, the practice of sustaining the plaintiff's case 
 with conjurators seems to have become more common. In 
 
 1 Et li apelur jurra sur lui par VII. humes nuraes, sei siste main, que 
 pur haur nel fait, ne pur auter chose, si pur sun dreit nun purchacer. L. 
 Guillel. I. cap. xiv. 
 
 Q Omnis tihla traetetur ante-juramento piano vel observato. L. Henrici 
 I. Tit. Ixiv. 1. Ante-juramento a compellante habeatur, et alter se 
 sexto decime sue purgetur ; sicut accusator precesserit. Ibid. Tit. lxvi. 
 8. 
 
ACCUSATulM a 1. C0NJURAT0R8. 69 
 
 Uenrn the laws of the thirteenth century provide that in 
 cases of debt under forty sous, where there was QO testi- 
 mony on either side, the claimant could substantiate his 
 case by bringing forward one conjurator, while the defend- 
 ant could rebut it with two. 1 In Germany, about the 
 same period, the principle was likewise admitted, as is evi- 
 dent from the u juramentum supermortuum" already re- 
 ferred to, and other provisions of the municipal law." So 
 thoroughly, indeed, was it established that, in some places, 
 in prosecutions for highway robbery, arson, and other 
 Crimes, the accuser had a right to require every individual 
 in court, from the judge to the spectator, to help him with 
 an oath or to swear that he knew nothing of the matter, and 
 even the attorney for the defendant was obliged to undergo 
 the ceremony. 3 In Sweden it was likewise in use under the 
 name of jeffniteed.* In Norway and Iceland, in 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 
 asseveration is shown by the fact that the accused only 
 required two conjurators to clear himself. 5 
 
 Perhaps the most careful valuation of the oath of a 
 plaintiff is to be found in the Coutumier of Bordeaux, which 
 provides that, in civil cases not exceeding four sols in 
 amount, the claimant should substantiate his case by an 
 oath on the Gospels in the Mayor's Court ; when from four 
 to twenty sols were at stake, he was sworn on the altar of 
 
 1 For de Morlaas, Rubr. xxxviii. art. 63. 
 
 2 Jur. Provin. Alaman. cap. cccix. 4. 
 
 3 Ibid. cap. cccxcviii. 19, 20. 
 * Du Cange sub voce. 
 
 s Ideo manus libro imponimus sacro, quod audivimus (crimen ruraore 
 sparsum), et nobis ignotum est verum sit nee ne. Jarnsida, Mannbelge 
 cap. xxiv. 
 
70 THE WAGER OF LAW. 
 
 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 snm it was administered on the " Fort" 
 or altar of St. Seurin himself. Persons whose want of vera- 
 city was notorious were obliged in all cases, however un- 
 important, 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. 1 
 
 The custom of supporting an accusatorial oath by con- 
 jurators was maintained in some portions of Europe to a 
 comparatively recent period. Wachter 3 prints a curious 
 account of a trial, occurring in a Swabian court in 1505, 
 which illustrates this, as well as the weight which was still 
 attached to the oath of a defendant. A woman accused 
 three men on suspicion of being concerned in the murder 
 of her husband. They denied the charge, but when the 
 oath of negation was tendered to them, with the assurance 
 that, if they were Swabians, it would acquit them, they 
 demanded time for consideration. Then the advocate of 
 the widow stepped forward to offer the oath of accusation, 
 and two conjurators being found willing to support him, 
 the accused were condemned without further examination 
 on either side. A similar process was observed in the 
 Fehmgericht, 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 com- 
 plainant was obliged to procure seven Frei-schoppen, or 
 free judges, to take the accusatorial oath with him. 3 
 
 The latest indication that I have met with of established 
 legal provisions of this nature occurs in the laws of Britanny, 
 as revised in 1539. By this, a man claiming compensation 
 
 1 Kabanis, Revue Hist, de Droit, 1861, p. 511. 
 
 5 Du Boys, Droit Criminel des Peuples Modernes, II. 595. 
 
 3 Freher. de Secret. Judic. cap. xvii. 26. 
 
BRITANNY. 71 
 
 for property taken away is to be believed on oath as to his 
 statement of its value, provided lie can procure companions 
 
 worthy of credence to depose ^qn'ils croyent que le joreur 
 
 ait fait bon et loyal serment." 1 Even this last vestige dis- 
 appears in the revision of the Coutumier made by order of 
 Henry III. in 1580. 
 
 1 Anc. Cout. de Bretngne, Tit. Till. art. 168. 
 
II. 
 
 THE WAGER OF BATTLE 
 
 When man is emerging from barbarism, the struggle 
 between the rising powers of reason and the waning forces 
 of credulity, prejudice, and custom, 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, pursuing its 
 irresistible course by almost imperceptible gradations. 
 When, therefore, in the dark ages, we find the elements 
 of pure justice so strangely intermingled with the arbi- 
 trament of force, and with the no less misleading appeals 
 to chance, dignified under the forms of Christianized super- 
 stition, we should remember that even this is an improve- 
 ment on the all-pervading first law of brute strength. 
 We should not wonder that barbarous tribes require to be 
 enticed towards the conceptions of abstract right, through 
 pathwa3 r s which, though devious, must reach the goal at 
 last. When the strong man is brought, by whatever means, 
 to yield to the weak, a great conquest is gained over human 
 nature ; and if the aid of superstition is invoked to decide 
 the struggle, we have no right, while enjoying the result, to 
 stigmatize the means by which Providence has seen fit to 
 bring it about. With uneducated nations, as with unedu- 
 cated men, sentiment is stronger than reason, and sacrifices 
 ay ill be made for the one which are refused to the other. 
 If, therefore, the fierce warrior, resolute to maintain tin 
 7 
 
74 THE WAGER OF BATTLE. 
 
 injustice or a usurpation, can be brought to submit his claim 
 to the chances of an equal combat or of an ordeal, he has 
 already taken a vast step towards acknowledging the em- 
 pire 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 
 individuals, each relying on his sword and right hand, have 
 been gradually led to endure regular forms of government, 
 and, thus becoming organized nations, to cherish the ab- 
 stract idea of justice as indispensable between man and 
 man. Viewed in this light, the ancient forms of procedure 
 lose their ludicrous aspect, and we contemplate their whim- 
 sical jumble of force, faith, and reason, as we might the 
 first rude engine of Watt, or the " Clermont" which pain- 
 fully 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 mystery the 
 solution of its difficulties. From the fetish worshippers 
 of Congo to 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 informa- 
 tion sought be of the past or of the future, the impulse is 
 the same. When, therefore, in the primitive mallum, the 
 wisdom of the rachinborgs was at fault, and the absence 
 or equal balance of testimony rendered a verdict difficult, 
 what was more natural than to seek a decision by appeal- 
 ing to the powers above, and to leave the matter to the 
 judgment of God? 1 Nor, with the warlike instincts of the 
 
 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 : u Hoc ideo statutum est, quod causa heec neraini cognita 
 est quam Deo, cujus est eandein juste decidere." Logical enough, if the 
 premises be granted ! Even as late as 1617, August Viescher, in an elabo 
 
DISTINCT rmOM I HI MODERN DUEL. 75 
 
 race, is it surprising thai this appeal should be made to 
 the God of battles, to whom, in the ardor of new and 
 Imperfect Christianity, they looked in every case for a spe- 
 cial interposition in favor of innocence and justice. The 
 curious mingling of procedure 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 wit- 
 ness, who must be a landholder of the vicinage. Tnc 
 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 false- 
 hood;" 1 and, according to the event of the duel, is the 
 decision as to the truthfulness of the witness, and the own- 
 ership of the property. 
 
 In discussing the judicial combat, it is important to keep 
 in view the wide distinction between the wager of battle 
 as a judicial institution, and the custom of duelling which 
 has obtained with more or less regularity among all races 
 and at all ages. When the Horatii met the Curiatii, or 
 when Antony challenged Octavius to decide the fate of the 
 empire of the world with their two swords, these were 
 isolated proposals to save the unnecessary effusion of blood, 
 or to gratify individual hate. When the raffine of the 
 
 rate treatise on the judicial duel, expressed the same reliance on the divine 
 interposition : "Dei enim hoc judicium dicitur, soli Deo causa terminanda 
 committitur, Deo igitur authore singulare hoc certamen suscipiendum, ut 
 justo judicio adjutor sit, omnisque spes ad solam suramaj providentiam 
 Trinitatis referenda est." (Vischer Tract. Juris Duellici Universi, p. 109.) 
 This work is a most curious anachronism. Viescher was a learned juriscon- 
 sult who endeavored to revive the judicial duel in the seventeenth century 
 by writing a treatise of 700 pages on its principles and practice. He exhibits 
 the wide range of his studies by citations from no less than six hundred and 
 seventy-one authors, and manages to convey an incredibly small amount of 
 information on the subject. 
 
 1 Mendacium jurasti contra me: sponde me pugna duorum, et manifestet 
 Deus si mendacium an veritatem jurasti. L. Baioar. Tit. xvi. c. i. 2. 
 
76 THE WAGER OF BATTLE. 
 
 times of Henri Quatre, or the modern fire-eater, wipes out 
 some imaginary stain in the blood of his antagonist, the 
 duel thus fought, though bearing a somewhat closer ana- 
 logy to the judicial combat, is not derived from it, but from 
 the right of private vengeance which was common to all 
 the Teutonic tribes, and from the cognate right of private 
 warfare which was the exclusive privilege of the gentry 
 during the feudal period. 1 The established euphuistic 
 formula of demanding "the satisfaction of a gentleman," 
 thus designates both the object of the custom and its 
 origin. The abolition of private wars gave a stimulus to 
 the duel at nearly the period when the judicial combat fell 
 gradually into desuetude. The one thus succeeded to the 
 other, and, being kindred in nature, it is not surprising that 
 for a time there was some confusion in the minds of men 
 respecting their distinctive characteristics. Yet it is not 
 difficult to draw the line between them. The object of the 
 one was vengeance and reparation ; the theory of the other 
 was the discovery of truth, and the impartial ministration 
 of justice. 
 
 It is easy to multiply examples illustrating this. John 
 Van Arckel, a knight of Holland, followed Godfrey of 
 Bouillon to the first crusade. When some German forces 
 joined the army, a Tyrolese noble, seeing Van Arckel's arms 
 displayed before his tent, and recognizing them as identi- 
 cal with his own, ordered them torn down. The insult was 
 flagrant, but the injured knight sought no satisfaction for 
 his honor. Laying the case before the chiefs of the crusade, 
 an examination was made and both parties proved their 
 ancestral right to the same bearings. To decide the con- 
 flicting and incompatible claims, the judges ordered the 
 
 1 The early edicts directed against the duel proper (Ordonn. Charles IX., 
 an. 1566; Henri IV., an. 1602 in Fontanon I. 665) refer exclusively to 
 the noblesse, and to those entitled to bear arms, as addicted to the practice, 
 while the judicial combat, as we shall see, was open to all ranks and was 
 enforced indiscriminately upon all. 
 
EXAMPLES OF THE JUDICIAL DUEL. 77 
 
 judicial combat, in which Tan Arckel deprived his antago- 
 nist ol* Life and quartering* together, and vindicated his 
 right to the argent 2 bars gules, which in gratitude to 
 Heaven he bore for eight long years in Palestine. This 
 was not a quarrel on a punctilio, nor a mode of obtaining 
 redress for an insult, but an examination into a legal ques- 
 tion which admitted of no other solution according to the 
 manners of the age. 1 When, after the Sicilian Vespers, 
 the wily Charles of Anjou was sorely pressed by his victo- 
 rious rival Don Pedro I. of Aragon, and desired to gain 
 time in order to repress a threatened insurrection among 
 his Neapolitan 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 question 
 by combat, a hundred on each side, in the neutral territory 
 of Bordeaux ; and Charles, having obtained the necessary 
 suspension of arms, easily found means to prevent the 
 hostile meeting. 3 Though practically this challenge may 
 differ little from that of Antony its object in reality being 
 the crown of the Two Sicilies still its form and purport 
 were those of the judicial duel, the accused offering to dis- 
 prove the charge of mala fides on the body of his accuser. 
 So, when Francis I., in idle bravado, flung down the gaunt- 
 let to Charles V., it was not to save half of Europe from v 
 fire and sword, but simply to absolve himself from the 
 well-grounded charge of perjury brought against him by 
 the Emperor for his non-observance of the treat}' of Mad- 
 rid. This again, therefore, wore the form of the judicial 
 
 1 Chron. Domin. de Arkel. (Matthaci Analect. VIII. 296). 
 
 3 Ramon Muntaner, cap. Ixxi. Nothing more romantic is to be found 
 in the annals of chivalry than Muntaner's account of Don Pedro's ride to 
 Bordeaux, and appearance in the lists, where the seneschal was unable to 
 guarantee him a fair field. 
 
 7* 
 
78 THE WAGER OF BATTLE. 
 
 combat, whatever might be the motives of personal hate 
 and craving of notoriety which influenced the last imitator 
 of the follies of chivalry. 1 The celebrated duel, fought in 
 1547, between Jarnac and La Chastaigneraye, so piteously 
 deplored by honest old Brantome, shows the distinction 
 maintained to the last. It was conducted with all judicial 
 ceremonies, in presence of Henry II., not to settle a point 
 of honor, but to justify Jarnac from a disgusting accusation 
 brought by his adversary. Resulting most unexpectedly 
 in the death of Chastaigneraye, who was a favorite of the 
 king, the monarch was induced to put an end to all legal- 
 ized combats, though the illegal practice of the private 
 duel not only continued to flourish, but increased beyond 
 all precedent during the succeeding half-century Henry 
 IY. having granted in twenty-two years no less than seven 
 thousand letters of pardon for duels fought in contraven- 
 tion of the royal edicts. The modern mode of obtaining 
 u satisfaction" is so repugnant to the spirit of our age that 
 it is perhaps not to be wondered at if its advocates should 
 endeavor to affiliate it upon the ancient wager of battle. 
 Both relics of barbarism, it is true, drew their origin from 
 the same habits and customs, yet they have coexisted as 
 separate institutions ; and, however much intermingled at 
 times by the passions of periods of violence, they were 
 practised for different ends, and were conducted with dif- 
 ferent forms of procedure. 
 
 Our theme is limited to the combat as a judicial process. 
 Leaving, therefore, untouched the vast harvest of curious 
 anecdote afforded by the monomachial propensities of 
 modern times, we will proceed to consider briefly the his- 
 tory of the legal duel from its origin to its abrogation. 
 Its mediaeval panegyrists sought to strengthen its title to 
 respect by affirming that it was as old as the human race, 
 and that Cain and Abel, unable to settle their conflicting 
 
 1 Du Bellay, Memoires, Lit. III. 
 
ITS ANTIQUITY. 70 
 
 claims in any other mode. Agreed to leave the decision to 
 the chanees of single eomhat j hut we will not enter into 
 speculations so recondite. I'nknown as was the Judicial 
 duel to the races of classical antiquity, or to the ancient 
 civilizations of the East, and confined to the nations of 
 modern Europe, it is not a little singular that the custom 
 should have prevailed with general unanimity from Sparti- 
 vento to the North Gape, and that, with but one or two 
 exceptions, all the tribes which founded the European 
 states should have adopted it with such common sponta- 
 neity that its origin cannot be assigned with certainty to 
 any one of them. It would seem to have been everywhere 
 autochthonic, and the theories which would attribute its 
 paternity especially to the Burgundians, to the Franks, or 
 to the Lombards, are equally destitute of foundation. 
 
 The earliest allusion to the practice occurs in Livy, who 
 describes how some Spaniards seized the opportunity of a 
 gladiatorial exhibition held by Scipio to settle various civil 
 suits by combat, when no other convenient mode of solu- 
 tion had presented itself; 1 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 general. 3 This could hardly 
 have been a prevailing custom, however, among the abo- 
 rigines, for Csesar makes no mention of it among the Gauls, 
 nor does Tacitus among the Germans; 3 and their silence on 
 
 1 Quidem lites quas disceptando finire nequierant aut noluerant, pacto inter 
 se ut victorem res sequeretur, ferro deereverunt. Lib. xxvn. cap. xxi. 
 
 a Nee alium deorum horainumve quam Martem se judiceni habituros esse. 
 Ibid. 
 
 9 A passage in the " De Moribus Germanise," cap. x., is commonly, but 
 erroneously, quoted as showing the existence of the duel as a means of evi- 
 dence among the Germans. When about to undertake an important war, 
 one of the enemy was captured and obliged to fight with a chosen champion, 
 an augury being drawn from the result as to the event of the war. There 
 is a vast difference, however, between a special omen of the future, and a 
 proof of the past in the daily affairs of life. 
 
 Du Cange quotes an expression from Paterculus to show that the judicial 
 
80 THE WAGER OF BATTLE. 
 
 the subject must be accepted as conclusive, since a system 
 so opposed to the principles of the Roman law could not 
 have failed to impress them, had it existed. Yet in the 
 fourth century, an allusion which occurs in Claudian would 
 seem to show that by that time the idea had become familiar 
 to the Roman mind. 1 
 
 If the fabulous antiquity attributed by the early his- 
 torians to the Danish monarchy be accepted as credible, a 
 statement may be quoted from Saxo Grammaticus to the 
 effect that about the Christian era Frotho III., or the Great, 
 ordered the employment of the duel to settle all contro- 
 versies, preferring that his subjects should learn to rely on 
 courage rather than on eloquence ; a and however apocryphal 
 the chronology may be, yet the tradition shows that even 
 in those ancient times the origin of the custom was already 
 lost in the night of ages. Among the Feini or ancient 
 Irish, the custom undoubtedly existed in the earliest periods, 
 for in the Senchus Mor, or code compiled under the super- 
 vision of St. Patrick, there is an allusion to a judicial 
 combat long previous, when Conch obar and Sencha, father 
 of Brigh, first decreed that a delay of five days should 
 take place in such affairs. 3 At the time of the conversion 
 
 appeal to the sword was customary among the Germans, hut, although I am 
 diffident in dissenting from so absolute an authority, I cannot see such mean- 
 ing in the passage. Paterculus merely says (Lib. n. cap. cxviii.), in describ- 
 ing the stratagems which led to the defeat of Varus, " et solita armis decerni 
 jure terminarentur." Taken with the context, this would appear to refer 
 merely to the law of the strongest which prevails among all savage tribes. 
 
 1 Qui male suspectam nobis impensius arsit 
 Vel leto purgare fidem : qui judice ferro 
 
 Diluit immeritum laudato sanguine crimen. De Bell. Getico V. 591. 
 
 2 De qualibet vero controversia ferro decerni sanxit, speciosius viribus 
 quam verbis confligendum existimans. Saxon. Grammat. Hist. Dan. Lib. v. 
 
 3 Senchus Mor I. 251. 
 
 " Why is the distress of five days always more usual than any other dis- 
 tress ? On account of the combat fought between two 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 to delay, 
 saying, 'If it were my husband that was there, I would compel you to delay.' 
 
THE FRANKS. 81 
 
 of Ireland, therefore, the duel vras in ancestral right (Irmly 
 established, and subject to precise Legal regulations. Bo 
 genera] was it. Indeed, that St. Patrick, in a council held 
 in 456, was obliged t<> forbid his clergy from appealing to 
 the sword, under a threat of expulsion from the church. 1 
 Towards the end of the same century, King Gundobald 
 caused the laws of the Burgundians to be collected, and 
 among them the wager of battle occupies so conspicuous 
 a place that it obtained in time the name of Lex Gundebalda 
 or Loy Gombette, giving rise to the belief that it originated 
 with that race. 
 
 In the ordinary texts of the Salique law, no mention is 
 made of it, but in one manuscript it is alluded to as a 
 regular form of procedure. 3 This silence, however, does 
 not justify the conclusion that the battle ordeal was not 
 practised among the Franks. Enough instances of it are 
 to be found in their early history to show that it was by 
 no means uncommon; 3 and, at a later period, the same 
 absence of reference to it is observable in the Lex Emen- 
 data of Charlemagne, though the capitularies of that 
 monarch frequently allude to it as a legal process in 
 general use. The off-shoots of the Salique law the Rip- 
 
 1 1 would delay,' said one of them, ' but it would be prejudicial to the man 
 who sues me ; it is his cause that would be delayed.' ' I will delay,' said 
 the other. The combat was then put off, but they did not know till when it 
 was put off, until Conchubhur and Sencha passed judgment respecting it ; 
 and Sencaa asked, 'What is the name of this woman?' ' Cuicthi' (five), 
 said she, ' is my name.' ' Let the combat be delajed,' said Sencha, in the 
 name of this woman, for five days.' From which is derived 'The truth of 
 the men of the Feini would have perished, had it not been for Cuicthi.' It 
 is Brigh that is here called Cuicthi." 
 
 1 Rebus suis clericus ille solvat debitura ; nam si armis compugnaverit 
 cum illo, merito extra ecclesiam computetur. Synod. S. Patricii, ann. 456, 
 can. viii. 
 
 9 Si tamen non potuerit adprobare . . . . et postea, si ausus fuerit, pugnet. 
 Leyden MS. Capit. Extravagant. No. xxviii. of Pardessus. 
 
 3 Gregor. Turon. Hist. Franc. Lib. vn. c. xiv. ; Lib. x. c. x. Aiuioini 
 Lib. iv. c. ii. 
 
82 THE WAGER OF BATTLE. 
 
 uarian, Allemannic, and Bavarian codes which were com- 
 piled by Thierry, the son of Clovis, revised successively 
 by Childebert and Clotair II., and put into final shape by 
 Dagobert I. about the year 630, in their frequent reference 
 to the " campus," show how thoroughly it pervaded the 
 entire system of Germanic jurisprudence. The Lombards 
 were, if possible, even more addicted to its use. Their 
 earliest laws, compiled by King Rotharis in 643, seventy- 
 six years after their occupation of Italy, make constant 
 reference to it, and the strong hold which it then had on 
 the veneration of the race, as an ancestral custom, is shown 
 by the fruitless efforts of that legislator and his successors 
 to restrict its employment and finally to abrogate it. Thus 
 Rotharis forbids its use in cases of importance, substituting 
 conjurators, with an expression of disbelief, which shows 
 how little confidence was felt in its results even then by 
 enlightened men. 1 The next law-giver, 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. 2 In the succeeding century, King Luit- 
 prand sought to abolish it entirely, but finding the preju- 
 dices 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 
 
 1 Quia absurdum et iuipossibile videtur esse ut tam grandis causa sub uno 
 scuto per pugnara dirimatur. (L. Longobard. Lib. II. Tit. Iv. 1, 2, 3.) 
 How completely this was at variance with the customs of the Lombards is 
 evident from a case which occurred under his immediate predecessor Ario- 
 valdus. That monarch imprisoned his queen Gundeberga, a Merovingian 
 princess, on an accusation of conspiracy brought against her by Adalulf, a 
 disappointed suitor. When Clotair the Great sent an embassy to rescue his 
 fair relative, the question was decided by a single combat between the accuser 
 and a champion named Pitto, and on the defeat of Adalulf, the queen was 
 pronounced innocent and restored to the throne after a confinement which 
 had lasted three years. Aimoini Lib. iv. c. x. 
 
 L. Longobard. Lib. Hi Tit. xxxv. 4, 5. 
 
I ii I a m; LO-I a I n SB. 83 
 
 extent of its application, and diminishing the penalties 
 incurred by the defeated party. 1 The laws of the Angles, 
 the Saxons, and the Frisians, likewise bear testimony to 
 
 tlu' universality of the custom. 8 Even among the Welsh 
 it prevailed to a oonsidsrabk extent, and though Unci 
 
 Dha, wheU In* revised their code in ^14, endeavored to put 
 an end to it, he was unable to do so effectually. 
 
 It is not a little singular that the duel appears to have 
 been unknown among the Anglo-Saxons. Employed so 
 extensively as legal evidence throughout their ancestral 
 regions, by the kindred tribes from which they sprang, by 
 the races among which they settled, and by the Danes and 
 Norwegians who became incorporated with them; harmon- 
 izing moreover with their general habits and principles of 
 action, it would seem impossible that they should not like- 
 wise have practised it. That such was the case is one of the 
 anomalies which defy speculation ; and the bare fact can 
 only be stated that it 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 juris- 
 prudence dates only from the time of William the Con- 
 queror. 3 
 
 1 Gravis causa nobis esse comparuit, ut sub uno scuto, per unam pugnam, 
 omnem suam substantiam homo amittat. . . . Quia incerti sumus de judicio 
 Dei ; et multos audivimus per pugnam sine justa causa suam causam perdere. 
 Sed propter consuetudinem gentis nostrae Longobardorum legem impiam 
 vetare non possumus. (L. Longobard. Lib. I. Tit. ix. 23.) Muratori, how- 
 ever, states that the older MSS. read " legem istam," in place of " impiam," 
 as given in the printed texts, which would somewhat weaken the force of 
 Luitprand's condemnation. 
 
 3 L. Anglior. et Werinor. Tit. i. cap. iii. and Tit. xv. L. Saxon. Tit. 
 xv. L. Frision. Tit. v. c. i. and Tit. xi. c. iii. 
 
 a A charter issued by William, which appears to date early in his reign, 
 give? the widest latitude to the duel both for his French and Saxon subjects. 
 (L. Guillelmi Conquest. II. $ 1, 2, 3. Thorpe, I. 488.) Another law, how- 
 ever, 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 An- 
 glus Francigcnam appellaverit et probare voluerit, judicio aut duello, volo 
 
84 THE WAGER OF BATTLE. 
 
 The only other barbarian race among whose laws the 
 battle trial found no place was the Gothic, and here the ex- 
 ception is susceptible of easy explanation. The effect upon 
 the invaders of the decaying but still majestic civilization 
 of Rome, the Byzantine education of Theodoric, the leader 
 of the Ostrogoths, and his settled policy of conciliating the 
 Italians by maintaining as far as possible the existing state 
 of society, preclude any surprise that no allusion to the 
 practice should occur in the short but sensible code known 
 as the " Edict of Theodoric," which shows how earnestly 
 that enlightened conqueror endeavored to fuse the invaders 
 and the vanquished into one body politic. 1 With regard 
 to the Wisigoths, we must remember that early conversion 
 to Christianity and long intercourse with civilization had 
 already worn off much of the primitive ferocity of a race 
 which could produce in the fourth century such a man as 
 Ulphilas. They were the earliest of the invaders who suc- 
 ceeded in forming a permanent occupation of the conquered 
 territories ; and settling, as they did, in Narbonensian Gaul 
 and Spain while the moral influence of Rome was yet all 
 powerful, the imperial institutions exercised a much greater 
 effect upon them than on the subsequent bands of Northern 
 barbarians. Accordingly, we find their codes based almost 
 entirely upon the Roman jurisprudence, with such modifi- 
 cations as were essential to adapt it to a ruder state of 
 society. Their nicely balanced provisions and careful dis- 
 tune Francigenam purgare se sacramento non fracto." (Ibid. in. 12. 
 Thorpe, I. 493.) Such immunity seems a singular privilege for the generous 
 Norman blood. 
 
 1 An epistle from Theodoric to the Gaulish provinces, which he had just 
 added to his empire, congratulates them on their return to Roman laws and 
 usages, which he orders them to adopt without delay. Its whole tenor shows 
 his thorough appreciation of the superiority of the Imperial codes over the 
 customs of the barbarians, and his anxiety for settled principles of juris- 
 prudence. "Jura publica certissima sunt humanaa vitae solatia, infirmorum 
 auxilia, potentum frena.-' (Cassiodor. Variar. Lib. III. Epist. xvii.) Various 
 other passages might be cited to the same effect " Jura veterum ad nostra m 
 cupimus reverentiam custodiri," " Delectamur jure Romano vivere," etc. 
 
T II | WISMiOTHS. 
 
 tiuetions offer a striking ciinl rast to the shapvlv^ legisla- 
 tion of the races thai followed, and neither On judicial 
 eombat nor canonical compurgation Pound a i>la</e in them. 
 Kvcn the vnlgar ordeal would appear to have been unknown 
 until a period long subsequent to the conquest of Aquitaine, 
 l>v Clovis, and hut little anterior to their overthrow m 
 Spain by the Saracens. That this apparent exception to 
 the prevailing customs of the barbarians was due, however, 
 to their acquiescence in the enlightened zeal of their Legis- 
 lators, Theodoric and Alaric II., is rendered evident by 
 passages in Cassiodorus, which show that the Gothic races 
 originally followed the same practices as the other savage 
 tribes. 1 Even as in Italy the Lombard domination destn^ed 
 the results of Theodoric's labors, so in France the introduc- 
 tion of the Frankish element revived the barbarian instincts, 
 and in the celebrated combat before Louis-le-Debonnaire, 
 between Counts Bera and Sanila, who were both Goths, we 
 find the "pugna duorum" claimed as an ancient privilege 
 of the race, with the distinction of its being equestrian, in 
 accordance with Gothic usages. 3 
 
 Nor was the 1 waiter of battle confined to races of Celtic 
 or Teutonic origin. The Slavonic tribes, as they success- 
 ively emerge into the light of history, show the same ten- 
 dency to refer doubtful points of civil and criminal law to 
 the arbitrament of the sword. The earliest records of 
 
 1 In sending Colosseus to govern the Pannonian Goths, Theodoric urges 
 strongly the abandonment of the duel, showing how firm a hold it still re- 
 tained in those portions of the race which had not been exposed to the full 
 civilizing influences of Rome " Cur ad monomachiam recurritisqui venalem 
 judicem non habetis ? Deponite ferrum qui non habetis inimicum. Pessime 
 contra parentes erigitis brachium, pro quibus constat gloriose moriendum. 
 Quid opus est homini lingua, si causam manus agat armata ? aut unde pax 
 esse creditur, si sub civilitate pugnatur?" Cassiodor. Variar. Lib. in. 
 Bpist. xxiii. xxiv. 
 
 " Ermold. Nigell. De Reb. Gest. Ludov. Pii Lib. III. Astron. Vit. Ludov. 
 Pii cap. xxxiii. So thoroughly was the guilt of Bera considered as proved 
 by his defeat in this combat, that his name became adopted in the Catalan 
 dialect as synonymous with traitor. Marca Hispanica, Lib. in. c. 21. 
 
 8 
 
86 THE WAGER OF BATTLE. 
 
 Hungary, Bohemia, Poland, Servia, Silesia, Moravia, Pom- 
 erania, Lithuania, and Russia present evidences of the pre- 
 valence of the system. 1 
 
 Arising thus spontaneously from the habits and character 
 of so many races, it is no wonder that the wager of battle, 
 adapting itself to their various usages, became a permanent 
 institution. Its roots lay deep among the recesses of popu- 
 lar prejudice and superstition, and its growth was corre- 
 spondingly strong and vigorous. In this it was greatly 
 assisted by the ubiquitous evils of the facility for perjury 
 afforded by the practice of sacramental purgation, and it 
 seems to have been regarded by legislators as the only 
 remedy for the crime of false swearing which was every- 
 where prevalent. Thus Gundobald assumes that its intro- 
 duction into the Burgundian code arose from this cause ; 2 
 Charlemagne urged its use as greatly preferable to the 
 shameless oaths which were taken with so much facility ; 3 
 while Otho II., in 983, ordered its employment in various 
 forms of procedure for the same reason. 4 It can hardly 
 be a source of surprise, in view of the manners of the 
 times and of the enormous evils for which a remedy was 
 sought, that the effort was made in this mode to impress upon 
 
 1 Konigswarter, op. cit. p. 224. 
 
 2 Multos in populo nostro et pervicatione causantium et cupiditatis in- 
 stinctu ita cognoscimus depravari, ut de rebus incertis sacramentum plerum- 
 que offere non dubitent, et de cognitis jugiter perjurare," etc. L. Burgund. 
 Tit. xlv. 
 
 The remedy, however, would seem to have proved insufficient, for a subse- 
 quent enactment provides an enormous fine (300 solidi) to be levied on the 
 witnesses of a losing party, by making them share in the punishment. "Quo 
 facilius in posterum ne quis audeat propria pravitate mentire." L. Bur- 
 gund. Tit. Ixxx. 2. The position of a witness in those unceremonious days 
 was indeed an unenviable one. 
 
 3 Ut palam apparet quod aut ille qui crimen ingerit, aut ille qui vult se 
 defendere, perjurare se debeat. Melius visum est ut in campo cum fustibus 
 pariter contendant, quam perjurium absconse perpetrent. Capit. Car. Mag. 
 ex Lege Longobard. c. xxxiv. (Baluze). 
 
 4 L. Longobard. Lib. n". Tit. Iv. $ 34. 
 
ITS UNIV1R8AL A II- LIC ATI ON. 81 
 
 principals and witnesses the awful sanctity of the oath, 1 1ms 
 
 subjecting them to :i liability t<> support their ji ^several ions 
 
 by an appeal to arms under imposing religious ceremonies. 
 
 Iii the primitive codes of the barbarians, there is no 
 
 distinction made between civil and criminal law. Bodily 
 punishment being almost unknown, except with regard to 
 slaves, and nearly all infractions of the law being visited 
 with tines, there was no necessity for such niceties, the 
 matter at stake in all cases being simply money or money's 
 worth. Accordingly, we find the wager of battle used in- 
 discriminately, both as a defence against accusations of 
 crime, and as a mode of settling cases of disputed property, 
 real and personal. This gave it a wide sphere of action, 
 which was speedily rendered almost illimitable by other 
 causes. 
 
 v In its origin, the judicial duel was doubtless merely an 
 expedient resorted to in the absence of direct or sufficient 
 testimony, and the judges or rachinborgs were probably 
 the arbiters of its necessity. Some of the early codes refer 
 to it but seldom, and allude to its employment in but few 
 cases. 1 In others, however, it is appealed to on almost 
 every occasion. Among the Burgundians, in fact, we may 
 assume, from a remark of St. Agobard, that it superseded 
 all evidence and rendered superfluous any attempt to bring 
 forward witnesses. 2 If any limits, indeed, were originally 
 imposed, they were not of long duration, 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- 
 
 1 Thus the Salique law, as has been said above, hardly recognizes the 
 existence of the practice. The Ripuarian code refers to it but four times, 
 that of the Alamanni but six times, while it fairly bristles throughout the 
 cognate legislation of the Baioarians. 
 
 2 Apud quorum legem non licet discussione aut veracium testimonio 
 causas terminare ; eo quod libuerit, armis comminari liceat, ne infirmior 
 sua retinere aut reposcere audeat, tanquam Veritas armis manifestari egeat. 
 
 Lib. Adversus Legem Gundobadi cap. x. 
 
88 THE WAGER OF BATTLE. 
 
 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. 1 
 x The mode, however, by which the duel gained its greatest 
 extension was the custom of challenging witnesses. It 
 was a favorite mode of determining questions of perjury, 
 and there was nothing to prevent a suitor, who saw his case 
 going adversely, from accusing an inconvenient witness of 
 false swearing, and demanding the " campus" to prove it 
 a proceeding which adjourned the main case, and likewise 
 decided its result. This summary process of course brought 
 every action within the jurisdiction of force, and deprived 
 the judges of all authority to control the abuse. That it 
 obtained at a very early period is shown by a form of pro- 
 cedure occurring in the Bavarian law, already referred to, 
 by which the claimant of an estate is directed to fight, not 
 the defendant, but his witness ; 3 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. 3 
 
 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 con- 
 demnation. 4 Even in the fourteenth century, the municipal 
 
 1 L. Frision. Tit. xiv. 4. s L. Baioar. Tit. xvi. cap. i. 2. 
 
 3 At si alia vice duo vel tres eum de f urto accusaverint, liceat ei unum ex his 
 cum scuto et fuste in campo contendere. (Capit. Ludov. Pii ann. 819, cap. 
 xv.) When such was the liability impending over witnesses, it is easy to under- 
 stand why they were required to come into court armed, and to have their 
 weapons blessed on the altar before giving testimony. If defeated, they were 
 fined and obliged to make good any damage which their evidence would 
 have caused the other side. L. Baioar. Tit. xvi. c. v. 
 
 4 Beaumanoir, Coutumos du Beauvoisis, chap. Ixi. \ 58. 
 
CHALLENGING 01 WITNESSES. 89 
 
 l:iw of Rheims, which allowed the doe] between principals 
 only in criminal cases, permitted witnesses to be Indiscrimi- 
 nately challenged and forced t<> fight, affording them the 
 privilege of employing champions only on the grounds of 
 physical Infirmity <>r advanced age. 1 A still more bizarre 
 extension of the practice, and one which was most ingeni- 
 ously adapted to defeat the ends of justice, is found in the 
 English law of the thirteenth century. By this, a man was 
 sometimes permitted to challenge his own witnesses. Thus 
 a thief on trial could always summon a "warrantor" from 
 whom he claimed to have legitimately received the stolen 
 property, and if this warrantor declined to give the 
 guarantee demanded of him, the accused was at liberty to 
 prove his assertion by the duel ; while, if the guarantee was 
 forthcoming, the accuser had the same right. 8 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 dis- 
 pose of the charge by fighting, either personally or by 
 champion, in order to get his evidence admitted. 3 
 
 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; 4 and when in the 
 
 1 Lib. Pract. de Consuetud. Remens. 14, 40 (Archives L6gislat. de 
 Reims, Pt. I. pp. 37, 40). 
 
 * Bracton. de Legibus Angl. Lib. in. Tract, n. cap. xxxvii. 5. 
 
 3 Beaumanoir, chap. vi. 16. 
 
 4 Ibid. chap, xxxix. 30, 31, 66. Assises de Jerusalem cap. 169. A 
 somewhat similar principle is in force in the modern jurisprudence of Clina. 
 Women, persons over eighty or under ten years of age, and cripples who have 
 lost an eye or a limb are entitled to buy themselves off from punishment, 
 except in a few cases of aggravated crime. They are, therefore, not allowed 
 to appear as accusers, because they are enabled by this privilege to escape 
 
 8* 
 
90 THE WAGER OF BATTLE. 
 
 twelfth century special privileges were granted by the kings 
 of France empowering serfs to bear testimony in court, the 
 disability which prevented a serf from fighting with a free- 
 man was declared annulled in such cases, as the evidence 
 was only admissible when the witness was capable of sup- 
 porting it by arms. 1 
 
 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; 2 though it is difficult to understand how 
 this could be satisfactorily arranged, since the penalties in- 
 flicted 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." 3 The only limit to this abuse was that wit- 
 nesses were not liable to challenge in cases concerning 
 matters of less value than five sous and one denier. 4 
 
 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 introducing it in 
 all cases was invented by which it became competent for 
 the defeated party in any suit to challenge the court itself, 
 and thus obtain a reversal of judgment at the sword's 
 point. Towards the end of the twelfth century in England, 
 we find Glanville acknowledging his uncertainty as to 
 whether the court could depute such a quarrel to a cham- 
 
 the penalties of false witness. Staunton, Penal Code of China, Sects. 20-22, 
 and 339. 
 
 1 The earliest of these charters is a grant from Louis-le-Gros in 1109 to the 
 serfs of the church of Paris, confirmed by Pope Pascal II. in 1113. (Baluz. 
 etMansi III. 12, 62.) 
 
 2 Beaumanoir, chap. Ixi. 59. 
 
 3 Ibid. chap. Ixi. 57. 
 
 4 Ibid. chap. xl. 21. 
 
CHALLENGING OF JUDGES. ( .H 
 
 pion, or whether the judge delivering tit** verdict was bound 
 to defend it personally ; :tn<l also as to what, in case of defeat, 
 
 was the legal position of the court thus convicted of injus- 
 tice. 1 These doubts would seem to indicate that the custom 
 
 was still of recent int roduet ion, sad not as yet practised to 
 an extent sufficient to afford a settled basis of precedents 
 for its details. If so, it was not long in firmly establishing 
 itself. In 1195, the customs of St. Quentin allow to the 
 disappointed pleader Unlimited recourse against his Judge.' 
 Towards the middle 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 rest ric- 
 tions appear to be imposed as to the cases in which appeal 
 by battle was permitted, except that it was not allowed to 
 override the customary law. 3 The suitor selected any one 
 of three judges agreeing in the verdict ; he could appeal at 
 any stage of the proceedings when a point was decided 
 
 1 "Curia . . . tenetur tamen judicium suum tueri per duellum . . . Sed 
 utrum curia ipsa teneatur per aliquem de curia se defendere, vel per alium 
 extraneum hoc fieri possit, quero." (De Leg. Anglia) Lib. viii. cap. ix.) 
 The result of a reversal of judgment must probably have been a heavy fine 
 and deprivation of the judicial function, such being the penalty provided for 
 injustice in the laws of Henry I. " Qui injuste judicabit, exx 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, as mentioned 
 below. 
 
 It must be borne in mind that, as the dispensing of justice was an attribute 
 of the feudal nobility, the judges were generally warriors (except the royal 
 judges in England, who were frequently ecclesiastics), and thus these pro- 
 ceedings were not as extraordinary as they may at first sight appear to us. 
 In Germany, where the judges of the lower courts were elective, they were 
 required to be active and vigorous of body "nee manibus nee pedibus 
 captus." (Jur. Provin. Alaman. cap. lxviii. 6.) 
 
 - Si ille contra quern fit judicium non concedit illud judicium, per campum 
 et duellum poterit illud contradicere intra villain S. Quintini, contra illos 
 qui judicium fecerint. Cited by Marnier in his edition of Pierre de Fon- 
 taines. 
 
 3 Car poi profiteroient les costumes el pais, s'il s'en covenoit combatre ; 
 ne depecier ne les puet-om par bataille. Kdition Marnier, chap. xxn. Tit. 
 xxxii. 
 
92 THE WAGER OP BATTLE. 
 
 against him ; if unsuccessful, he was only liable in a pecu- 
 niary penalty to the judges for the wrong done them, and 
 the judge, if vanquished, was exposed to no bodily punish- 
 ment. 1 The villein, however, was not entitled to the privi- 
 lege, except by special charter. 3 The universality of the 
 practice is shown by the fact that it was for a long time the 
 only mode of reversing a judgment, and an appeal in any 
 other form was an innovation introduced by the extension 
 of the royal jurisdiction under St. Louis, who labored so 
 strenuously and so effectually to modify the barbarism of 
 feudal institutions by subordinating them to the principles 
 of the Roman jurisprudence. De Fontaines, indeed, states 
 that he himself conducted the first case ever known in 
 Yermandois of an appeal without battle. 3 At the same 
 time, the progress of more rational ideas, is manifested by 
 his admission that the combat was not necessary to reverse 
 a judgment manifestly repugnant to the law, and that, on 
 the other hand, the law was not to be set aside by the 
 duel. 
 
 Twenty years later, we find in Beaumanoir abundant 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 
 
 1 Chap. xxn. Tit. i. vi. viii. x. xxvii. xxxi. "Et certes en fausement tie 
 gist ne vie ne membre de eels qui sont fause, en quelconque point que le fause- 
 ment soit faiz,et quele que laquerele soit" (Ibid. Tit. xiv.). If the judge was 
 accused of bribery, however, and was defeated, he was liable to confiscation 
 and banishment (Tit. xxvi.). The increasing severity meted out to careless, 
 ignorant, or corrupt judges, manifests the powerful influence of the Roman 
 law, which, aided by the active efforts of legists, was infiltrating the customary 
 jurisprudence and altering its character everywhere. Thus de Fontaines 
 quotes with approbation the Code, De poena judicis (Lib. VII. Tit. xlix. 1. 1) 
 as a thing rather to be desired than expected, while in Beaumanoir we 
 already find its provisions rather exceeded than otherwise. 
 
 3 De Fontaines, chap. XXII. Tit. iii. 
 Ibid. Tit xxiii. Et ce fu li premiers dont je oisse onques parler qui fust 
 rapelez en Verraandois sanz bataille. 
 
CHALLENGING OF JUDGES. 98 
 
 appeal did not lie; while to civil ad ions, the suzerain before 
 whom the appeal was made could refuse it when the justice 
 of the verdict was Belf-eviderit. 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 g entry , the result might be the confirmation 
 of the sentence in a manner more emphatic tban agreeable. 
 An important change is likewise observable in the severe 
 penalty imposed upon a judge vanquished in such an ap- 
 peal, being a heavy fine and deprivation of his functions in 
 civil eases, while in criminal ones it was death and confis- 
 cation "il pert le cors et quanques il a." 1 
 
 The king'sjpourt, however, was an exception to the gene- 
 ral rule. Xo appeal could be taken from its judgments, for 
 there was no tribunal before which they could be carried. 3 
 The judges of the royal court were therefore sale from the 
 necessity of vindicating their decisions in the field, and 
 they 7 even carried this immunity with them and communi- 
 cated it to those with whom they might be acting. De 
 Fontaines accordingly advises the seigneur justicier who 
 anticipates the appeal of battle in his court to obtain a royal 
 judge to sit with him, and mentions an instance in which 
 Philip (probably Philip Augustus) sent his whole council 
 to sit in the court of the Abbey of Corbie, when an appeal 
 was to be entered. 3 
 
 By the German law of the same period, the privilege of 
 
 1 Coutumes du Beauvoisis, chap. lxi. 36, 45, 47, 50, 62. It should be 
 borne in mind, however, that Beaumanoir was a royal bailli, and the differ- 
 ence between the "assise de bailli" and the "assises des chevaliers" is well 
 pointed out by Beugnot (Les Olira, T. II. pp. xxx. xxxi.). Beaumanoir in 
 many cases evidently describes the law as he would wish it to be. 
 
 2 Et pour ce ne Ten 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, lxxviii. 
 
 3 Cunseil, ch. xxn tit. xxi. 
 
94 THE WAGER OF BATTLE. 
 
 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 
 establish their claims in such manner. Thus, by the Swa- 
 bian law, it could only be done in the presence of the 
 sovereign himself, and not in that of the immediate feudal 
 superior j 1 while the Saxon code requires the extraordinary 
 expedient of. a pitched battle, with seven on each side. 2 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. 3 
 Apart from these side issues, the right of demanding the 
 wager of battle as between the principals varied much with 
 the age and race. When Beaumanoir composed his " Con- 
 tinues du Beauvoisis," in 1283, the practice may be con- 
 sidered 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 sub- 
 
 1 Si eontingat ut de justitia sententiae pugnandura sit, ilia pugna debet 
 institui coram rege (Jur. Provin. Alaman. cap. xcix. 5). In a French 
 version of this code, made probably towards the close of the fourteenth cen- 
 tury, 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 lo roi." Miroir de Souabe, P. I. c. cxiii. (Ed. Matile, Neuf- 
 chatel, 1843). We may hence conclude that by this period the custom of 
 armed appeal was disused, and the extension of the royal jurisdiction was 
 established. 
 
 2 Jur. Provin. Saxon. Lib. i. art. 18. This has been questioned by modern 
 critics, but there seems to be no good reason for doubting its authority. The 
 whole formula for the proceeding is given in the Richstich Landrecht (cap. 
 41), a manual of procedure of the fourteenth century, adapted to the Saxon 
 code. 
 
 3 Richstich Lehnrecht, cap. xxvii. 
 
RESTRICTIONS ON THE DUEL. 95 
 
 jects. When, therefore, we sec in I>eaumanoir\s treatise 
 how few restrictions existed in liis time, we may compre- 
 hend the previous universality of the custom. In criminal 
 cases, if an accuser offered battle, the defendant was forced 
 either to accept it or to confess his guilt, unless he could 
 prove an alibi, or unless the accuser was himself notoriously 
 guilty of the crime in question, and the accusation wms 
 evidently a mere device to shift the guilt to the shoulders 
 of another; or unless, in case of murder, the victim had 
 disculpated him, when dying, and had named the real 
 criminals.* If, on the other hand, the accused deman ded 
 to wage his battle, the judge could only refuse it when his 
 guilt was too notorious for question. 3 A serf could not 
 challenge a freeman, nor a bastard a man of legitimate 
 birth (though an appeal of battle might lie between two 
 bastards), nor a leper a sound man. 3 In civil actions, the 
 battle trial was not allowed in cases relating to dower, to 
 orphans under age, 4 to guardianships, or to the equity of 
 redemption afforded by the feudal laws to kinsmen in the 
 sale of heritable property, or where the matter at stake was 
 of less value than twelve deniers. 5 St. Louis also prohibited 
 the duel between brothers in civil cases, while permitting 
 it in criminal accusations. 6 The slenderness of these re- 
 strictions shows what ample opportunities were afforded 
 to belligerent pleaders. 
 
 In Germain, as a general rule, either party had a right to 
 demand the judicial combat, 7 subject, however, in practice 
 
 1 Coutumes du Beauvoisis, chap. lxi. 2 ; chap, xliii. 6. 
 - Ibid. chap. lxi. 2 ; chap, xxxix. 12. 
 
 3 Ibid. chap. Ixiii. 1, 2, 10. 
 
 4 Twenty-one years is the age mentioned by St. Louis as that at which a 
 man was liable to be called upon to fight. Etablissements, Liv. I. chap. 
 lxxiii.. cxlii. 
 
 s Coutumes du Beauvoisis, chap. Ixiii. 11, 13, 18. The denier was the 
 twelfth part of the solidus or sou. 
 
 c Etablissements, Liv. i. chap, clxvii. 
 
 1 Jur. Provin. Alaman. cap. clxvi. 13, 27; cap. clxxvii. 
 
96 THE WA^E It, OF BATTLE. ; 
 
 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. 1 Rela- 
 tionship between the contestants was also an impediment, 3 
 and even the fact that the defendant was not a native of 
 the territory- in which the action was brought gave him the 
 privilege of refusing the appeal. 3 Still, we find the principle 
 laid down even in the fourteenth century that cases of 
 homicide could not be determined in any other manner. 4 
 There, were circumstances, indeed, in which the complain- 
 ant, 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. 5 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. 6 
 
 By the English law of the thirteenth century, a man 
 accused of crime had the right of election between trial 
 Dv J ur y an( i the wager of battle in doubtful cases only. 
 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 con- 
 
 1 As early as the time of Frederic Barbarossa this rule was strictly laid 
 down. "Si miles adversus militem pro pace violata aut aliqua eapitali causa 
 duellum committere voluerit, facultas pugnandi ei non concedatur nisi pro- 
 bare possit quod antiquitus ipse cum parentibus suis natione legitimus miles 
 existat." Feudor. Lib. II. Tit. xxvii. 3. 
 
 3 Jur. Provin. Alaman. cap. ccclxxxvi. 2. 
 
 3 Ibid. cap. ccxcii. 2. 
 
 4 Sed scias si de perpetrato homicidio agitur, probationem sine duello non 
 procedere. Richstich Landrecht, cap. xlix. 
 
 s Jur. Provin. Alaman. cap. ccclxxxvi. 28, 29 (Ed. Schilteri). 
 
 G Hinc pervenit dispositio de duello. Quod enim homines non vident Deo 
 nihilominus notum est optime, unde in Deo confidere possumus, eum duellum 
 secundum jus diremturum. Jur. Provin. Alaman. cap. clxviii. 19 (Ed. 
 Senckenberg). 
 
RESTRICTIONS UN THE DUEL. 97 
 
 fession and the combat. 1 On t hi' other hand, when the 
 
 appellant demanded the duel, he was obliged to make out 
 a probable case before it was granted." When battle h:i<l 
 been gaged, however, no withdrawal was permitted, and 
 any composition bet ween the parties to avoid it was punish- 
 able by line and imprisonment' a regulation, no doubt, 
 intended to prevent pleaders from rashly undertaking it, 
 and to obviate its abuse as a means of extortion. Any 
 bodily injury on the part of the plaintiff, tending to render 
 him less capable of defence or aggression, likewise deprived 
 the defendant of the right to the wager of battle, and this 
 led to such nice (list tactions 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. 4 
 Thus the knight who demanded that his antagonist should 
 undergo the destruction of an e}^e to equalize the loss 
 of his own, extinguished in the fight of Otterbourne, was 
 strictly within the privileges accorded him by law. Not- 
 withstanding these various restrictions, cases of treason 
 Were almost alwa3 T s determined by the judicial duel, ac- 
 cording to both Glanville and Bracton. 5 This was in direct 
 
 1 Bracton. Lib. m. Tract, ii. cap. IS. 2 Ibid. cap. 23 1. 
 
 3 Si autem uterque defaltam fecerit, et testatum sit quod concordati 
 fuerunt, uterque capiatur, et ipsi et plegii sui in miser icordia. Ibid. 
 
 The custom with regard to this varied greatly according to local usage. 
 Thus a charter of the Count of Forez in 1270 concedes the right of avoiding 
 battle, even at the last moment, by satisfying the adversary, and paying a 
 fine of sixty sols. Chart. Itaynaldi Com. Forens. c. 4 (Bernard, Hist, du 
 Forez, T. I. Preuves, p. 25). According to the customs of Lorris, in 1155, 
 if a composition was effected after battle had been gaged and before security 
 was given, each party paid a fine of two sous and a half. If after security 
 was pledged, the fine was increased to seven sous and a half. Chart. Ludov. 
 Junior, ann. 1155, cap. xiv. (Isambert, Anciennes Lois Francaises, I. 155.) 
 
 1 Bracton. Lib. in. Tract, ii. cap. 24 4. Hujusmodi vero dentes mul- 
 tum adjuvant ad devincendum. 
 
 5 Glanvil. Lib. xiv. cap. i. Bracton. Lib.' III. Tract, ii. cap. 3 1. 
 Solet appellum istud per duellum terminari. 
 
 9 
 
98 THE WAGER OF BATTLE. 
 
 opposition to the custom of Lombardy, where such cases 
 were especially exempted from decision by the sword. 1 
 
 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. 3 That in such cases it was in 
 common use is shown by a treaty made, in the latter part of 
 the eleventh century, between Centulla I. of Beam and the 
 Yiscount of Soule, in which all doubtful questions arising 
 between their respective subjects are directed to be settled 
 by the combat, with the singular proviso that the com- 
 batants shall be men who have never taken part in war. 3 
 In the thirteenth century, however, a provision occurs 
 which must have greatly reduced the number of duels, as it 
 imposed a fine of only sixteen sous on the party who made 
 default, while if vanquished he was visited with a mulct of 
 sixty sous and the forfeiture of his arms. 4 
 
 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, 5 and a similar right was reserved 
 to the podesta in a code of laws enacted at Verona in 1228. 6 
 This must often have pre vented the injustice inherent in 
 the system, and an equally prudent reserve was exhibited in 
 a statute of Montpellier, which required the assent of both 
 parties. 7 On the other hand, in Normandy, at the com- 
 mencement of the thirteenth century, many cases relating 
 to real estate were examined in the first instance by a jury 
 
 1 Non est consuetudo Mediolani ut de felonia aut de infidelitate pugna 
 fiat; licet contrarium sit, quod prsccipit lex Longobardorum, ut de infideli- 
 tate pugna fiat. Feudor. Lib. n. Tit. xxxix. 
 
 3 For de Morlaas, Rubr. xxxviii. xxxix. 
 
 3 Marca, Hist, de Beam, p. 293 (Mazure et Hatoulet). 
 
 4 For de Morlaas, Rubr. iv. 
 
 ^ 5 Libell. Catalan. MS. (Du Cange.) 
 
 G Meo arbitrio determinabo duelluni, vel judicium judicabo. L. Munic. 
 Veronens. cap. 78 (Muratori*Antiq. Ital. Dissert. 39). 
 7 Statut. Montispess. ann. 1204 (Du Cange). 
 
M 1 \ I M I M \ \ I. I | AT ISSUE. 99 
 
 of twelve men, and if they foiled <>f an unanimous verdict, 
 the question was decided l\ t ho duel, whether the parties 
 were willing or not. 1 
 
 From a very early period, a minimum limit of value was 
 established, below which a pugnacious pleader was not 
 allowed to put the life or limb of his adversary in jeopardy. 
 This varied of course with the race and the period. Thus, 
 among the Angli and Werini, the lowest sum for which 
 the combat was permitted was two solidi, 9 while the Bai- 
 oarians established the limit at the value of a cow. 8 In 
 the tenth century, Otho II. decided that six solidi should 
 be the smallest sum worth fighting for. 4 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. 5 
 In France, Louis-le-Jeune, by an edict of 1168, forbade the 
 duel when the sum in debate was less than five sous, 8 and 
 this remained in force for at least a century. 7 The custom 
 
 1 Etablissements de Normandie, passim (Edition Marnier). 
 
 9 L. Anglior. et Werinor. Tit. xv. The variations in the coinage are so 
 numerous and uncertain, that to express the values of the solidus or sou, at 
 the different periods and among the different races enumerated, 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, according 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. 
 
 3 L. Baioar. Tit. vm. cap. ii. 5 ; cap. iii. 
 
 * L. Langobard. Lib. n. cap. lv. 37. 
 
 * L. Henrici I. cap. 59. 
 
 6 Isambert, Anciennes Lois Francaises, I. 162. This occurs in an edict 
 abolishing sundry vicious customs of the town of Orleans. It was probably 
 merely a local regulation, though it has been frequently cited as a general 
 law. 
 
 7 Livres de Jostice et de Plet, Liv. xix. Tit. xvii. 3, and Tit. xxii. 4. 
 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, Beauraanoir (cap. Ixiii. 11), 
 names twelve deniers, or one sou, as the minimum. 
 
100 THE WAGER OF BATTLE. 
 
 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, 1 and the same provi- 
 sion retains its place in the Coutumier in use until the 
 sixteenth century. 2 In the Frankish kingdom of Jerusalem, 
 the minimum was a silver marc. A law of Aragon, in 
 1247, places the limit at ten sous. 4 By the criminal pro- 
 cedure 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. 5 The con- 
 temporary law of Germany provides that in accusations 
 of personal violence, the duel was not to be allowed, unless 
 the injury inflicted on the complainant had been sufficiently 
 serious to cause permanent maiming, 6 thus showing how 
 thoroughly different in spirit was the judicial combat from 
 the modern code of honor which has been affiliated upon it. 
 No rank of life procured exemption from the duel be- 
 tween antagonists of equal station. When in 1002, on the 
 death of Otho III., the German throne was filled by the 
 election of Henry the Lame, Duke of Bavaria, one of his 
 . disappointed competitors, Hermann, Duke of Swabia, 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. 7 Thus the champion of England, who 
 
 1 Cost. Leg. Norman. P. n. cap. xxi. 7 (Ludewig, Reliq. MSS. VII. 307.) 
 The judgment of God was frequently styled " Lex apparens" or "paribilis." 
 
 2 Anc. Coutum. de Normandie, cap. 87 (Bourdot de Richebourg, IV. 55). 
 
 3 Assises de Jerusalem, cap. 149. 
 
 4 Laws of Huescar, by Don Jayme I. (Du Cange s. v. Torna). 
 
 s Poterit enim factum esse ita leve quod non jacebit appellum, ut si levis 
 transgressio sit, vel si simplex injuria. Bracton. Lib. III. Tract, ii. cap. 
 19 6, also cap. 23 2. 
 
 6 Ob alia autem vulnera haud ita gravia, duellum non permittitur. Jur. 
 Provin. Alaman. cap. clxxii. 20 (Ed. Senckenberg). 
 
 7 Dithmari Chron. Lib. v. 
 
NO CLASS 111 M 1"" I I.. 
 
 figures in the coronation pageant of Westminster Abbey , 
 
 is a relic of the times when it was not an idle invi iv 
 
 for the armed and mounted knight to fling the gauntlet, 
 and proclaim aloud that he was ready to do battle with 
 any one who challenged the right of the new monarch to 
 
 his crown. 1 A striking example of the liability attaching 
 to even the most exalted rank is allbrded by a declaration 
 of the privileges of the Dnchy of Austria, granted by 
 Frederic Harharossa in 1156, and confirmed by Frederic 
 II. in 1245. These privileges rendered the dukes virtually 
 independent sovereigns, and among them is enumerated 
 the right of employing a champion to represent the reign- 
 ing 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 Bdarn 
 about the year 1100. The privileges contained in it are 
 guaranteed by a clause providing that, should they be in- 
 fringed by the prince, the injured subject shall substantiate 
 his complaint by his simple oath, and shall not be com- 
 pelled to prove the illegality of the sovereign's acts by the 
 Judicial combat, 3 thus indicating a pre-existing custom of 
 the duel between the prince and his vassals. 
 
 International litigation, even, was subject to the same 
 arbitrament. Allusion has already been made to the chal- 
 lenge which passed between Charles of Anjou and Pedro 
 of Aragon, and other instances might readily be given, 
 such as that of the Emperor Henry III. and Henry I. of 
 France during their interview at Ipsch in 1056. 4 These may 
 perhaps be regarded rather as personal than national quar- 
 
 1 From the time of Henry I., the office of king's champion was one of 
 honor and dignity. (See Spelman's Glossary.) 
 
 " Insnper potest idem Dux Austria;, cum impugnatus fuerit ah aliquo de 
 duello, per unum idoneum non in enormitatis macula detentum vices suas 
 prorsus supplere. Constit. Frid. II. ann. 1245, cap 9. (Qoldast. Const. 
 Imp. I. 303.) 
 
 3 For de Morlaas, Ruhr. xxvi. 
 
 4 Lambert. Schaffnaburg. ann. 1056. 
 
 9* 
 
'18& :',''::., ;t h.e , w a g e r op battle. 
 
 rels, but that distinction does not apply to a case which 
 occurred in 1034, when the Emperor Conrad the Salique 
 endeavored to pacify the Saxon Marches. On inquiring 
 into the origin of the mutual devastation of the neighbor- 
 ing races, the Saxons, who were really in fault, offered to 
 prove by the duel that the Pagan Luitzes were the aggres- 
 sors, trusting that their Christianity would counterbalance 
 the injustice of their cause. The defeat of their champion 
 by his heathen adversary was, however, a memorable ex- 
 ample of the impartiality of God, and was received as a 
 strong confirmation of the value of the battle trial. 1 
 
 As regards the inferior classes of society, innumerable 
 documents attest the right of peasants to decide their 
 quarrels by the ordeal of battle. By the old Lombard law, 
 slaves were allowed to defend themselves in this manner ; 3 
 and they could even employ the duel to claim their liberty 
 from their masters, as we may infer from a law of King Grim- 
 oald denying this privilege to those who could be proved 
 to have served the same master for thirty continuous years. 3 
 Similarly, among the Frisians, a litus claiming his liberty 
 was allowed to prove it against his master with arms. 4 
 The institutions of feudalism widened the distance between 
 the different classes of society, and we have already seen 
 that, in the thirteenth century, serfs were enfranchised in 
 order to enable them to support their testimony by the 
 combat ; yet this was only the result of inequality of rank. 
 In the time of Beaumanoir (1283), though an appeal would 
 not lie from a serf to a freeman, it may be safely inferred 
 from the context that a combat could be legally decreed 
 between two serfs, if the consent of their masters were 
 obtained, 5 and other contemporary authorities show that a 
 
 1 Wippo. Vit. Chunradi Salici. 
 
 " L. Longobard. Lib. i. Tit. xxv. 49. Servus ejus tunc per pugnaui aut 
 per sacramentum se defendat si potuerit. 
 
 3 Ibid. Lib. i. Tit. ix. 38. 4 L. Fusion. Tit. xi. cnp. iii. 
 
 6 Coutumes du Beauvoisis, cap. lxiii 1. 
 
DIFFERENCE OF RANK. 108 
 
 man claimed as a serf could defend Wis freedom with the 
 sword against his would-iir master. 1 Even Jews irere 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 them, except in oases of flagrant murder, by 
 Philippe-le-Long, as a special favor, in 1317. 3 
 
 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 challenge the villein, they met on equal terms. 4 In Ger- 
 many, where the minute distinctions of birth were guarded 
 
 1 Livres de Jostice et de Plet, Liv. xix. Tit. 13. Abnegavit se esse servum 
 S. Martini, et de hoc arramivit bellum contra nos. Tabul. Vindocinens, 
 cap. 159 (Du Cange, s. v. adramire) . 
 
 51 Assises de l'Echiquier de Norraandie, p. 114 (Marnier). 
 
 3 Lauriere, Table Chron. des Ordonnances, p. 105. 
 
 4 Beaumanoir, op. cit. cap. lxi. 9, 10. Etablissements de S. Louis, 
 Liv. i. chap. Ixxxii. Pierre de Fontaines, however, repudiates this bar- 
 barous custom in cases of appeal, and directs that the combat shall take 
 place on foot between champions (Conseil, chap. xxi. Tit. xiv.). Beau- 
 manoir mentions a case which shows that practical justice was not un- 
 frequently enforced without ceremony. A gentleman challenged a roturier, 
 and presented himself in the arena on horseback with his knightly arms. 
 The defendant reclaimed against the injustice, and the judges decided that 
 the gentleman forfeited his horse and arms, and that if he desired to accom- 
 plish the combat he must do so in the condition in which he was left by the 
 disarmament in his shirt, without weapon or shield, while his adversary re- 
 tained his coat of mail, target, and club. (Cout. de Beauvoi. cap. ixiv. $ 3.) 
 
104 THE WAGER OF BATTLE. 
 
 with the most jealmis care fi'om a very early period, the 
 laws of the thirteenth century provide that a difference of 
 rank permitted the superior to decline the challenge of an 
 inferior, while the latter was obliged to accept the appeal of 
 the former. So thoroughly was this principle carried into 
 practice, that, to compel the appearance of a Semperfri, 
 or noble of sixteen quarterings, the appellant was obliged 
 to prove himself of equally untarnished descent. 1 In the 
 same spirit, a Jew could not decline the appeal of battle of- 
 fered by a Christian accuser, though we may safely infer 
 that the Jew could not challenge the Christian. 3 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. 3 In Aragon, no judicial duel was 
 permitted between a Christian and a Jew or a Saracen, 4 
 while in Castile both combatants had to be gentlemen, 
 quarrels between parties of different ranks being settled by 
 the courts. 5 
 
 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 wager of battle, 
 they were therefore allowed the privilege of substituting a 
 champion, who took their place and did battle for the jus- 
 
 1 Jur. Provin. Alamann. cap. ccclxxxv. 14, 15 (Ed. Schilter). Ac- 
 cording to some MSS., however, this privilege of declining the challenge 
 of an inferior was not allowed in cases of homicide. " Ibi enim corpus 
 corpori opponitur." cap. liii. 4. (Ed. Senckenberg.) On the other 
 hand, a constitution of Frederic Barbarossa, issued in 1168 and quoted above, 
 forbids the duel in capital cases, unless the adversaries are of eqOal birth. 
 
 2 Ibid. cap. cclviii. 20 (Ed. Schilter). We have already seen that 
 the converse of this rule was introduced in England, as regards questions 
 between Frenchmen and Englishmen, by William the Conqueror. 
 
 3 Quia surien et greci in omnibus suis causis, praeter quam in criminalibus 
 excusantur a duello Assises de Jerusalem, Baisse Court, cap. 269. 
 
 4 Laws of Huescar, ann. 1247. (Du Cange s. v. Toriia.) 
 1 Las Siete Partidas, P. vn. Tit. iii. 1. 3. 
 
WOMEN AS DUELLISTS. H>."> 
 
 tuv <>r their cause. So careful were legislators to prevent 
 any failure in the procedure prescribed by law, thai the 
 Assises de Jerusalem ordered the suzerain to supply the 
 expenses for fort} r days, when suitor unable to fight was 
 also too poor to pay for a champion to take his place ; and 
 when a murdered man left no relatives to prosecute the 
 murderer, the suzerain was likewise obliged to furnish the 
 champion in any trial that might arise. 1 Equally directed 
 to the same purpose was the German law which provided 
 that when a crippled defendant refused or neglected to 
 procure a substitute, the judge was to seize one-half of 
 his property with which to pay the services of a gladiator, 
 who could claim nothing more. 8 
 
 Women, however, did not always restrict themselves to 
 fighting thus vicariously. The Genu an laws refer to cases 
 in which a woman might demand justice of a man person- 
 ally in the lists, and not only are instances on record in 
 which this was done, but it was of sufficiently frequent oc- 
 currence to have an established mode of procedure, which 
 is preserved to us in all its details by illuminated MSS. of 
 the period. 3 The chances between such unequal adversa lies 
 were equalized by burying the man to his waist, tying his 
 left hand behind his back, and arming him only with a 
 mace, 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. 4 
 
 1 Assises de Jerusalem, cap. 266, 267. 
 
 3 Si hoc facere non vult paralyticus ille, tunc judex mediante pecunia 
 paralytici, campionem aliquem adsciscere debet, huic paralyticus semissem 
 bonorum dare debet, et nihil amplius. Jur. Provin. Alamann. cap. Ix. 5. 
 
 3 Jur. Provin. Alamann. cap. cexxix. 2. This chapter is omitted in 
 the French version of the Speculum Suevicum. 
 
 4 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 por fierro caliente ; e si varon 
 fuere legador . . salvese por lid." Fuero de Baega. (Villadiego, Fuero 
 Juzgo fol. 317 J .) 
 
106 THE WAGER OF BATTLE. 
 
 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 
 Salique law, directs that, in doubtful cases arising between 
 laymen and ecclesiastics, the duel between chosen witnesses 
 shall be employed, but that when both parties are clerical 
 it shall be forbidden. 1 This restriction was not long ob- 
 served. 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 f and about 
 the year 945, Atto of Vercelli complains that the tribunals 
 allowed to ecclesiastics no exemption from the prevailing 
 custom. 3 Yet so far was this from being deemed a hard- 
 ship by the turbulent spirits of the period, that clerks not 
 unfrequently disdained to sustain their rights by the inter- 
 vention of a champion, and, yielding to warlike aspirations, 
 boldly entered the lists themselves. In 1080 the Synod of 
 Lillebonne adopted a canon punishing by a fine such bel- 
 ligerent churchmen as indulged in the luxury of duels 
 without having first obtained from their bishops a special 
 license authorizing it. 4 About 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. 5 The practice continued, and 
 though forbidden by Pope Innocent II. in 1140, 6 Alexander 
 III. and Clement III. found it necessary to repeat the pro- 
 hibition before the close of the century, 7 and soon after- 
 
 1 Capit. Ludov. Pii I. aim. 819, cap. x. 
 
 2 Ughelli, T. II. p. 122 (Du Cange) . 
 
 3 Addunt insuper, quoniam si aliquis militum sacerdotes Dei in crimine 
 pulsaverit per pugnam sive singulari certamine esse decernendum. De Pres- 
 suris Eccles. 
 
 4 Clericus . . . si duellum sine episcopi licentiasusceperit . . . autassultum 
 feeerit, episcopis per pecuniam emendetur. Orderic. Vital. P. II. Lib. v. c. 5. 
 
 5 Goffrid. Vindocinens. Lib. III. Epist. 39. G Du Cange. 
 
 7 Ut clerici non pugnent in duello, nee pro se pugiles introducent. Chron. 
 S. iEgid. in Brunswig. Can. 1. Extra. Lib. v. Tit. xiv. 
 
ECCLESIASTICAL DUELS. 107 
 
 wards Celestin III. was forced to pronounce sentence of 
 deposition in a case of this nature submitted to him. 1 All 
 this was formally and peremptorily confirmed by Innocent 
 ill. at the great council of Lateran in 1215. 9 
 
 That the peaceful ministers of Christ should vindicate 
 their rights with the sword, either personally or by prow, 
 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. 8 The 
 utmost privilege accorded the clergy, however, was the 
 right of presenting a champion in the lists, which zealous 
 churchmen naturally resented as an arbitrary injustice. 4 
 How thoroughly it was carried out in practice, notwith- 
 standing all remonstrances, is shown by a charter granted 
 in 1024 by St. Stephen of Hungary to the monastery of 
 St. Adrian of Zala, by which, among other privileges, the 
 pious king bound himself to supply a champion in all suits 
 against the abbey, in order that the holy meditations of 
 the monks might not be interrupted. 5 It was long before 
 the abuse w r as removed. In 1112 we find a certain Guil- 
 laume 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 pur- 
 pose of settling the question by the duel, and though the 
 matter was finally compromised without combat, there does 
 
 1 Can. 2 Extra. Lib. v. Tit. xiv. 2 Concil. Lateran. IV. can. 18. 
 
 3 Monomachiam in legem non aseumiraus, quam antecessores nostros 
 minime accepisse cognovimus. Cap. Monomachiam cans. n. q. 5. Nicolai 
 PP. I. Epist. 148. 
 
 4 Ad pugnam sacerdotes impingere qurerunt, nullam amplius reverentiam 
 ipsis observantes, nisi quod non propriis manibus, sed per submissos- illis in 
 tali discrimine judicant dimicare. Atton. Vercell. De Pressuris Eccles. 
 Pt. I. 
 
 s Chart. S. Stephani (Batthyani, Legg. Eccles. Hung. T. I. p. 384). 
 
108 THE WAGER OF BATTLE. 
 
 not seem to have been anything irregular in his proceeding/ 1 
 So, about the same period, in a case of disputed property 
 between the abbey of St. Aubin in Anjou and a neighboring 
 knight, the monks not only challenged their adversary, 
 but the duel was held in the seignorial court of another 
 monastery; 3 and in 1164, we find a duel decreed at Monza, 
 by the Archbishop of Cologne as chancellor of Italy, be- 
 tween an abbey and a layman of the vicinity. 3 That such 
 cases, indeed, were by no means uncommon is shown by 
 their special prohibition in 1195 by Celestin III. 4 Yet, not- 
 withstanding the repeated efforts of the Holy See, it was 
 almost impossible for the church to exempt itself from the 
 universal liability. Though in 1174 Louis VII. granted a 
 special privilege of exemption to the church of Jusiers and 
 its men, on the ground that he was bound to abrogate all 
 improper customs, 5 still no general reform appears to have 
 been practicable. 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 witnesses, deeds, and other legitimate proofs, 
 notwithstanding the custom existing to the contrary. 6 
 
 1 Cartulaire de l'Eglise de Paris, I. 378. 
 
 3 The charter relating to the suit and its results is given hy Baluze and 
 Mansi, Miscell. III. 59. 
 
 3 Ibid. p. 134. * Can. 1 Extra, Lib. v. Tit. xxxv. 
 
 s Tenemur pravas consuetudines funditus extirpare. (Du Boys, Droit 
 Criminel des Peuples Modernes, II. 187.) 
 
 6 Contraria consuetudine non obstante. Cart, de l'Eglise de Paris, II. 
 393-4. 
 
ECCLESIASTICAL JURISDICTION. 109 
 
 These individual exceptions only prere the universality 
 
 of the rule. It is therefore not surprising to find that 
 prelates, acting in their capacity of temporal seigne ur^ 
 should have been secaatomed bo award the duel aa (reels 
 
 as any other form of legal procedure. To do this was not 
 only one of t ho privileges which marked the feudal supe- 
 rior, but 'was also a source of revenue from the fees and 
 
 penalties thence accruing, and these rights were as eagerly 
 
 Sought and as jealously guarded by the spiritual lords as 
 by the warlike barons. It would scarce be necessary to 
 multiply instances, but I may mention a charter granted 
 by Fulk Nera, Count of Anjou, about the year 1010, be- 
 stowing these rights oii the abbey of Beaulieu in Touraiiie, 1 
 and one by the Emperor Henry III., in 1052, to the bishop 
 and church of Volaterra in Italy. 2 Some conscientious 
 churchmen objected to a practice so antagonistic to all the 
 teachings of the religion of which they were professors, 
 and lifted up their voices to check the abuse. Thus, about 
 the close of the eleventh century, we find the celebrated 
 canonist, St. Ivo of Chartres, rebuking the Bishop of Or- 
 leans for ordering the combat to decide an important suit 
 in his court. 3 Ivo even carried out his principles to the sacri- 
 fice of the jurisdiction usually so dear to the prelates of 
 his day, for in another case he refused to give judgment be- 
 cause it necessarily involved a trial by battle, and he eluded 
 the responsibility by transferring the cause to the court of 
 the Countess of Chartres. 4 His precept and example were 
 equally unavailing. Churchmen continued to award the 
 wager of battle, and resolutely resisted any invasion of 
 their privileges. In 1150 the statutes of the chapter of 
 
 1 Du Cange, s. v. Bellum. 
 
 2 Muratori, Antiq. Ital. Dissert. 39. Among various other examples given 
 by the same author is one of the year 1010, in which the court of the bishop 
 of Aretino grants the combat to decide a case between a monastery and % 
 layman. 
 
 a Ivon. Epist. cxlviii. * * Ibid. Epist. ccxlvii. 
 
 10 
 
110 THE WAGER OF BATTLE. 
 
 Lausanne direct that all duels shall be fought before the 
 provost, and the provost was Arducius, Bishop of Geneva. 1 
 Even in the thirteenth century, in the archbishop's court 
 or officiality of Rheims the duel was a matter of course ; 
 and in a judgment rendered in 1269, concerning a combat 
 waged within the jurisdiction 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." 3 How eagerly these rights were main- 
 tained is apparent from numerous decisions concerning 
 contested cases. Thus an agreement 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 supervision of both par- 
 ties, and divides the spoils equally between each. 4 A 
 charter of 1199, concerning the village of Marne, shows 
 that the sergeant, or officer of the chapter, had the cogni- 
 zance of causes up to the gaging of battle, after which 
 further proceedings were reserved for the court of the 
 bishop himself. 5 In 125*7, while St. Louis was exerting 
 himself with so much energy to restrict the custom, an 
 abbey is found engaged in a suit with the crown to prove 
 its right to decree the duel, and to enjoy the fees and 
 mulcts thence arising. 8 Even more significant is a declara- 
 tion of the authorities of Metz, as late as 1299, by which 
 the granting of all wagers of battle is expressly admitted 
 to appertain to the court of the archbishop by the civil 
 magistrates of the city; 7 and even in 1311 a bishop of 
 
 1 Migne's Patrologia, T. 188, p. 1287. 
 
 3 Lib. Pract. de Consuetud. Hemens. passim (Archives Legisl. de Rheims). 
 
 3 Cartulaire de l'Eglise de Paris, III. 433. After the first blows, the par- 
 ties could be separated on payment of a fine to the court, from the recipient 
 of which the name is evidently derived. 
 
 4 Cartulaire de l'Eglise de Paris, I. 234. s Ibid., I. 79-80. 
 6 Les Olim, I. 24.. 
 
 1 Faisons cognuseant a tous que des arramies des champs et des batailles 
 
MERCANTILE LAW. Ill 
 
 St. Brieuc ordered a duel between two squires pleading In 
 his court, in consequence of high words between them. 
 From some cause, the combat did n<>t take place, and the 
 
 Christian prelate Beiied the arms and horses of the parties 
 as his mulct. They appealed to the Parlement of Paris, 
 Which ordered the restoration of the confiscated articles, 
 and fined the bishop for his disregard of the royal edicts 
 prohibiting the single combat. 1 By this time, probably, the 
 dictum of Beanmanoir had become generally acknowledged, 
 that the church could not be concerned in cases which 
 involved the wage* of battle, or of death or mutilation. 8 
 
 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- 
 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 jurisprudence. These codes, though compiled 
 at a period when the wager of battle flourished in full lux- 
 uriance, have no reference to it whatever, and the Assises 
 de Jerusalem expressly allude to the Admiralty Courts 
 as not admitting the judicial duel in proof, 11 while an Eng- 
 lish document of 12 Edward III. attests the same prin- 
 ciple. 4 When, however, the case was one implying an 
 accusation of theft or deception, as in denying the receipt 
 
 nous avons recogneut et recognissons c'on ne les doit faire aillors, maiques 
 en la court de l'ostel nostre signour l'evesque de Metz. Du Cange, s. v. Ar- 
 ramiatio 
 
 1 Les Olim, III. 679. 
 
 a Voirs est que tuit li cas oa il pot avoir gages de bataille ou peril <le 
 perdre vie ou merabre, doivent estre justicie par le laie justice ; ne ne s'en 
 doit sainte Eglise meller. Coutumes du Beauvoisis, cap. xi. art. 30. 
 
 3 En la cort de la mer na point de bataille por prueve ne por deraande 
 de celuy veage. Assises de Jerusalem, cap. xliii. 
 
 4 Pardessus, Us et Coutumes de la Mer. 
 
112 THE WAGER OP BATTLE. 
 
 of cargo, the matter entered into the province of criminal 
 law, and the battle trial might be legitimately ordered. 1 
 
 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 are merely interesting to the pure ar- 
 chaeologist. 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 therefore hardly be worth the space which would 
 be required to accomplish the task with any fulness. Suf- 
 fice it to say that the general principle on which the combat 
 was conducted was the absolute assertion by each party 
 of the justice of his cause, to which end a solemn oath on 
 the Gospels, or on a relic of approved sanctity, was admin- 
 istered to each before the conflict commenced. 3 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 prose- 
 cution on the part of a worsted appellant. Accordingly, 
 we find . the vanquished party, whether plaintiff or defend- 
 ant, 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 defeated champion suffering the usual pen- 
 alty of perjury the loss of a hand ; while the remaining 
 
 1 Livres de Jostice et de Plet, Liv. vn. Tit. iv. 2. 
 
 2 According to Bracton, the appellant in criminal cases appears always 
 obliged to swear to his own personal knowledge, visit ac auditu, of the 
 crime alleged. This, however, was not the case elsewhere. Among the 
 glossators on the Lombard law, there were warm disputes as to the propriety, 
 in certain cases, of forcing one of the contestants to commit perjury. The 
 matter will be found treated at some length in Savigny's Geschichte d. 
 Rom. Recht, B. iv. p. 159 sqq. 
 
PUNISHMENT FOR DEFEAT. L18 
 
 witnesses on the losing side were allowed the privilege of 
 redeeming their forfeited members at the regular legal 
 rate. 1 William the Conqueror imposed :i fine of forty sous 
 on the [osing Bide impartially ;' this was increased to sixty 
 
 sous by the compilation known as the laws of Henry I.; 8 
 and the same regulation is stated by Glanville, with the 
 addition that the defeated person was forever disqualified 
 as a witness or champion. 4 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 ad- 
 dition to the penalties of the crime of which he was proved 
 guilty. 5 About the same time, the Bearnese legislation 
 embodies a similar principle in a milder form, a fine of 
 sixty-six sous Morlaas being imposed impartially on the 
 
 1 Capit. Ludov. Pii ann. 819, cap. x. A somewhat similar provision oc- 
 curs in the L. Burgund. Tit. xlv. and Ixxx. 
 
 3 L. Guillelmi Conquest, in. xii. (Thorpe I. 493) "Si quis eorum victus 
 fuerit emendet regi XL. solidos. " A previous law, however, had assessed a 
 Norman appellant sixty sous when defeated (Ibid. II. ii.). 
 
 3 Qui helium vadiaverit, et per judicium defecerit, LX. sol. emendet. 
 L. Henrici I. cap. lix. 15. 
 
 * Finito autem duello, poena sexaginta solidorum imminebit victo, nomine 
 recreantis. Et praeterea legem terra? amittet. Glanvil. de Leg. Angl. Lib. 
 n. cap. iii. 
 
 That defeat in the combat was regarded as much more damaging than the 
 simple loss of a suit is shown by some provisions in the custom of Normandy, 
 by which a vanquished combatant was classed with perjurers, false witnesses, 
 and other infamous persons, as incapable thenceforth of giving testimony in 
 court (Cod. Leg. Normann. P. I. cap. Ixiv. Ludewig Reliq. MSS. T. 
 VII. p. 270), or of serving on a jury (Anc. Coutume de Normandie 
 Bourdot de Richebourg, T. IV. p. 29), "Ne doibvent estre receuz a la juree, 
 ne ceulx qui sont reprins de parjure, ou de porter faulx tesmoing, ou vaincu 
 en champ de bataille, ou ceulx qui sont infames." This clause, however, 
 does not occur in the corresponding passage of the ancient Latin version 
 above alluded to. (Ludewig, T. VII. p. 282.) 
 
 * Poena vero utrisque imminet. Appellatori vero, si victus fuerit, ut 
 manum perdat aut redimat. Appellato ut bannum solvat, manum perdat, et 
 homicidiuin secundum legem emendat. Formul. Vetus in L. Longobard. 
 (Georgisch, p 1276.) 
 
 10* 
 
114 THE WAGER OF BATTLE. 
 
 losing party. 1 In process of time, this system was aban- 
 doned in some countries. The English law of the thir- 
 teenth century, admitted the justice of the lex talionis in 
 principle, but did not put it in practice, a vanquished 
 appellant in capital cases being merely imprisoned as a 
 calumniator, while the defendant, if defeated, was executed, 
 and his property confiscated. 3 The same distinction is to 
 be found in the contemporary custom of Normandy. 3 
 
 The application of the lex talionis to the man who brought 
 a false charge, thus adjudging to him the penalty which 
 was incurred by the defendant if convicted, was widely 
 current during the Middle Ages. This principle is to be 
 found enunciated in the broadest and most decided manner 
 in the ecclesiastical law, 4 and it was naturally brought into 
 play in regulating the fate of those engaged in the wager 
 of battle. Thus Guillaume-le-Breton states that when 
 Philip Augustus, in 1203, wrested Normandy from the 
 feeble grasp of John Lackland, one of the few changes 
 which he ventured to introduce in the local laws of the 
 duchy was to substitute this rule of confiscation, mutilation, 
 or death, according to the degree of criminality involved 
 in the accusation, for the comparatively light pecuniary 
 mulct and loss of legal status previously incurred by a 
 worsted appellant. 5 The same system is followed through- 
 
 1 For d'Oloron, Art. 21. 
 
 a Si autem appellans victus fuerit, gaolae committatur tanquam calumni- 
 ator puniendus, sed nee vitam amittat nee membruui, licet secundum leges 
 ad talionis teneretur (Bracton, Lib. m. Tract, ii. cap. 18 6). In another 
 passage, Bracton gives a reason for this clemency " Si autem victus sit in 
 campo . . . quamvis ad gaolam mittendus sit, tamen sit ei aliquando gratia 
 de misericord ia, quia pugnat pro pace." (Ibid. cap. 21 7.) 
 
 3 Etab. de Normandie, Tit. "De prandre fame a force" (Marnier). 
 
 4 Qui calumniam illatam non probat, poenam debet incurrere quam si pro- 
 basset reus utique sustineret. Can. Qui calumniam Caus. v. q. vi. (Decreti 
 P. II.) 
 
 s ... ad poenas exigat aequas, 
 Victus ut appellans sive appellatus, eadem 
 
PUNISHMENT FOR DEFEAT. 11") 
 
 out the legislation or St. Louis, whether, the punishment 
 be Light or capital, of an equal responsibility <>u both 
 parties. 1 It prevailed throughout the Frankish kingdom! 
 of the East, where, in an appeal of murder, whichever party 
 
 was defected was hanged in his spurs; 9 ami it finally esta- 
 blished itself in England, where, in the fourteenth century, 
 we find it positively declared as an imperative regulation 
 by Thomas, Duke of Gloucester, in an elaborate treatise on 
 the rules of single combat printed by Spelman. 8 
 
 In Germany, however, the custom was not uniform. In 
 one text of the Swabian code, the principle is laid down 
 that a defeated appellant escaped with a line to the judge 
 and to his adversary, while the defendant if vanquished was 
 visited with the punishment due to his crime ; 4 while ano- 
 ther text directs that whichever party be defeated should 
 lose a hand, 5 or be executed, according to the gravity of 
 
 Lege ligaretur mutilari aut perdere vitara. 
 Moris enim extiterit apud illos hactenus, ut si 
 Appellans victus in causa sanguinis esset, 
 Sex solidos decies cum nummo solveret uno 
 Et sic impunis, amissa lege, maneret: 
 Quod si appellatum vinci contigeret, omni 
 Re privaretur et turpi morte periret. 
 
 Guillielmi Brito. Philippidos Lib. vni. 
 It will be observed that the preexisting Norman custom here described is 
 precisely that indicated above by Glanville. 
 
 1 E. g. Etablissements Lib. i. cap. 27 and 91. "Cil qui seroit vaincus 
 seroitpendus" (cap. 82). 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. If one was a woman, for the cord 
 was substituted the spade wherewith she was to be buried alive. (Beauma- 
 noir, chap. lxiv. 10.) These customs were not calculated to encourage 
 duelling. 
 3 Assises de Jerusalem, cap. 317. 
 
 3 Recta fides et sequitas et jus armorum volunt ut appellans eandem incur- 
 rat poenam quam defendens, si is victus fuerit et subactus. Formula Duelli, 
 apud Spelman. Glossar. s. v. Campus. 
 
 * Jur. Provfh. Alamann. cap. ccclxxxvi. 19, 20 (Ed. Schilter.). 
 s Quique succumbit ei manus amputetur. Ibid. cap. clxviii. $ 20 (Ed. 
 Senckenberg). 
 
116 THE WAGER OF BATTLE. 
 
 the crime alleged. 1 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. 3 
 In the Veronese code of 1228, a distinction was established 
 between the prosecutor and the accused, as a defeated 
 appellant was punishable at the pleasure of the magistrate. 3 
 It was customary to require the parties to give security 
 for their due appearance at the appointed time, various 
 fines and punishments being inflicted on defaulters. By 
 the old German law, the defendant under such circum- 
 stances was held guilty of the crime charged upon him ; 
 and both defendant and appellant were declared infamous. 
 According to some MSS., indeed, all the possessions of a 
 defaulter were forfeited, either to his heirs, or to his feudal 
 superior. 4 Among the Bearnese, on the contrary, the 
 forfeiture for a default was only sixteen sous Morlaas. 5 
 The Scandinavians punished it popularly by erecting a 
 "nithstong" pertica execrationis a post inscribed with 
 defamatory runes, and so flagrant was this insult con- 
 sidered, that finally it was prohibited by law under pain 
 of exile. 8 The bail, of course, was liable for all legal 
 penalties incurred by a defaulter, and occasionally, indeed, 
 would seem to be made to share the fate of the principal, 
 who appeared and was defeated. Thus, in a miracle play 
 
 1 Jur. Provin. Alamann. cap. clxxii. 18 (Ed. Senckenberg). 
 8 Ibid. cap. ccxix. 6 (Ed. Schilter.). 
 
 3 Et si actor amiserat pugnam, ipsum meo arbitrio puniam L. Municip. 
 Veron. cap. 78. 
 
 4 Jur. Provin. Alamann. cap. ccclxxxvi. 31 (Ed. Scbilter.). Cap. clxxiii. 
 7, 8. (Ed. Senckenb.). 
 
 6 For de Morlaas, Rubr. iv. art. 5. 
 
 6 Scblegel Comment, ad Grag&s 31. Grag&s Sect, vm cap. 105. A 
 fanciful etymologist might trace to this custom the modern pbrase of " post- 
 ing a coward." 
 
c n I C E 01 WKAP0N8. 117 
 
 of the fourteenth century. a stranger knighl at the court of 
 Paris, compelled to fight m defence of the honor of the 
 king's daughter, is unable to And security. The queen and 
 princess offer themselves as hostages and are accepted, but 
 the king warns them 
 
 Dame, par Dieu le roy celestro ! 
 Bien vou8 recevray pour hostage ; 
 Mais de tant vous fas-je bien sage, 
 Se le dessus en peut avoir 
 Ardre, 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 emploj^ed on both sides, the law 
 appears generally to have restricted them to the club and 
 buckler, and to have prescribed perfect equality between 
 the combatants. 8 An ordonnance of Philip Augustus, in 
 1215, directs that the club shall not exceed three feet in 
 length. 3 When the principals appeared personally, it would 
 seem that in early times the appellant had the choice of wea- 
 pons, 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 
 
 1 Un Miracle de Notre-Dame d'Amis et d'Amille (Monmerqud et Michel, 
 Theat. Francais au Moyen-Age, p. 238). 
 
 Another passage in the same play signalizes the equality of punishment 
 for appellant and defendant in case of defeat : 
 
 Mais quant il seront 
 En champ, jamais n'en ysteront 
 Sanz combatre, soiez-en fls, 
 Tant que l'un en soit desconfis ; 
 Et celui qui vaincu sera, 
 Je vous promet, pendu sera ; 
 N'en doubte nulz. 
 
 2 E. g. Constit. Sicular. Lib. II. Tit. xxxvii. 1. 
 
 3 Lauriere, Table des Ordonn. p. 10. 
 
118 THE WAGER OF BATTLE. 
 
 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. 1 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 
 unreasonable. 2 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. 3 According to Upton, in the fifteenth century, 
 the judges were bound to see that the arms were equal, but 
 he admits that on many points there was no settled or defi- 
 nite rule. 4 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 them- 
 selves with defensive armor to an extent which rendered 
 them almost helpless, so that in combats with Poles, 
 Lithuanians, and Germans they were habitually worsted, 
 until judicial duels between natives and foreigners were at 
 length prohibited on this account. 5 
 
 Allusions have occurred above to a peculiarity of these 
 combats the employment of champions which received 
 an application sufficiently extended to deserve some special 
 
 1 Revue Historique de Droit, 1861, p. 514. 
 
 3 Constit. Sicular. Lib. II. Tit. xxxvii. 4. Consuetudinem pravara et a 
 tramite rationis cujuslibet alienam. 
 
 3 This, however, was not permitted by Frederic, (ubi sup.) 
 
 4 De Militari Officio Lib. n. cap. viii. b Du Boys, op. cit. I. 611. 
 
EMPLOYMENT OF CHAMPIONS 119 
 
 notice. It has been seen that those unable to wield the 
 sword or clui> were not therefore exempted from the 
 
 duel, and even the scantiest measure <>f justice would 
 require that they should have the right to delegate their 
 vindication to some more potential vehicle of the Divine 
 decision. This would seem originally to have been the 
 Office of some member of the family, as in the cognate 
 procedure of sacramental purgation. Among the Alainanni, 
 for instance, a woman when accused could be defended 1 v 
 a kinsman "cum tract a spata;" 1 the same rule is prescribed 
 by the Lombard law, 3 and by that of the Angli and Werini ; 3 
 while the far pervading principle of family unity renders 
 the presumption fair that it prevailed throughout the other 
 races in whose codes it is not specifically indicated. Re- 
 stricted to cases of disability, the use of champions was 
 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 judi- 
 cial duel, in permitting able-bodied antagonists to put for- 
 ward substitutes who fought the battle for their principals. 
 With regard to this there appears to have been a consider- 
 able diversity of practice among the races of primitive 
 barbarians. The laws of the Franks, of the Alamanni, and 
 of the Saxons make no allusion to such a privilege, and 
 apparently expect the principal to defend his rights himself, 
 and }*et 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. 4 From some expressions made use of 
 
 1 L. Alamann. Add. cap. xxi. 
 
 2 L. Longobard. Lib. i. Tit. iii. 6, and Lib. n. Tit. Iv. 12. 
 
 3 L. Anglior. et Werinor. Tit. xiv. 
 
 * Greg. Turon. Hist. Lib. x. cap. x. In this case, both combatants per- 
 ished, when the accused was promptly put to death, showing that such a 
 result was regarded as proving the truth of the offence alleged. 
 
120 THE WAGER OP BATTLE. 
 
 by St. Agobard, in his onslaught on the ordeal of battle, 
 we may fairly presume that under Louis-le-Debonnaire 
 the employment of champions, in the Burgundian law, 
 was, if not forbidden, at least unusual as respects the de- 
 fendant, even in cases where age or debility unfitted him 
 for the combat, while it was allowed to the appellant. 1 
 On the other hand, the Baioarian law, which favored the 
 duel more than any of the other cognate codes, alludes to 
 the employment of champions in every reference to it, and 
 with the Lombards the judicial combat and the champion 
 seem to have been likewise convertible terms. 3 There is in 
 this something so repugnant to the fierce and self-relying 
 spirit in which the wager of battle found its origin, and the 
 use of a professional gladiator is so inconsistent with the 
 pious reference to the judgment of God, which formed the 
 only excuse for the whole system, that some external reason 
 is required to account for its introduction. This reason is 
 probably to be found in the liberty allowed of challenging 
 witnesses, to which allusion has already been made. The pre- 
 valence of this throughout Western Europe readily enabled 
 parties, unwilling themselves to encounter the risks of a 
 mortal struggle, to put forward some truculent bravo who 
 swore point-blank, and whose evidence would require him to 
 be forced out of court at the sword's point. That this, indeed, 
 was frequently done is proved at a subsequent period by a 
 remark of Bracton, who states that a witness suspected of 
 being a hired gladiator was not allowed to proceed to the 
 combat, but was tried for the attempt by a jury, and if con- 
 victed was punished by the loss of a foot and hand. 3 
 
 1 Horum enim causa accidit ut non solum valentes viribus, sed etiara in- 
 firmi et senes lacessantur ad certamen et pugnam etiain pro vilissimis rebus. 
 (Lib. adv. Legem Gundobadi cap. vii.) Mitte unuin de tuis, qui congre- 
 diatur mecum singulari certamine, ut probat me reum tibi esse, si occiderit. 
 (Lib. contra Judicium Dei cap. i.) 
 
 2 Liceat ei per campionem, id est per pugnam, crimen ipsum de super se 
 si potuerit ejicere. L. Longobard. Lib. I. Tit. i. 8. 
 
 3 Iutrat quandoque in defensionem et warrantum aliquis malitiose et per 
 
WITNESSES AS CHAMPIONS. 121 
 
 Although the custom of hiring champions existed from 
 very early period, since the Frisian laws give the fullesl 
 license for employing and paying them, 1 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 
 end 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 con- 
 cerning real estate was obliged to assume the position of 
 a witness, by swearing that he had been personally present 
 and had seen seizin given of the land, or that his father 
 when dying had enjoined him by his filial duty to maintain 
 the defendant's title as though he had been present. 9 This 
 curious legal fiction was common also to the Norman juris- 
 prudence of the period, where in such cases the champion 
 of the plaintiff was obliged to sw r ear that he had heard and 
 seen the matters alleged in support of the claim, while the 
 opposing champion swore that they were false. 3 In a simi- 
 lar spirit, an earlier code of Normandy prescribes that 
 champions shall be taken to see the lands and buildings in 
 dispute, before receiving the oath of battle, in the same 
 manner as a jury of view. 4 A more distant indication of 
 the same origin is observable in the Neapolitan regulation 
 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. 5 
 
 fraudem et pro mercede, sicut campio et conductitius, quod quidem si fuerit 
 coram justitiariis detectum, non procedatur ad duellum, sed per patriam in- 
 quiratur Veritas si mercedem acceperit vel non ; et si constiterit quod sic, 
 pedem amittat et pugnura. Lib. in. Tract, ii. cap. 32 7. 
 
 1 Licet unicuique pro se canipionem inercede conducere, si eum invenire 
 potuerit. L. Frision. Tit. xiv. cap. iv. 
 
 ' Glanvil. de Leg. Angl. Lib. II. cap. iii. 
 
 3 Cod. Leg. Norman. P. n. cap. Ixiv. (Ludewig Reliq. MSS. VII. 416.) 
 
 4 Etab. de Normandie, p. 21 (Marnier). 
 
 s Constit. Sicular. Lib. n. Tit. xxxvii. 2. 
 11 
 
122 THE WAGER OF BATTLE. 
 
 Looking on the profession of a champion in this light, 
 as that of a false witness, we can understand the heavy 
 penalties 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 thence- 
 forth incapable of appearing in court either as plaintiff or 
 as witness, while the penalty of the principal was merely 
 the loss of the property in dispute. 1 In criminal cases, 
 from a very early period, while the principal perhaps 
 escaped with fine or imprisonment, the hired ruffian was 
 hanged, or at best lost a hand or foot, the immemorial 
 punishment for perjury. 2 In later times, when the origin 
 of 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 neces- 
 sary, 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. 3 
 Beaumanoir thus defends it on the ground of the liability 
 of champions to be bought over by the adverse party, and 
 he therefore commends the gentle stimulus of prospective 
 mutilation as necessary to prevent them from betraying 
 
 1 Cod. Leg. Norman. P. II. cap. Ixiv. 18 (Ludewig, VII. 417). 
 
 2 Et campioni qui victus fuerit, propter perjuriam quod ante pugnam com- 
 misit, dextra manus amputetur. (Capit. Ludov. Pii ann. 819 x.) Victus 
 vero in duello centum solidos et obolum reddere tenebitur. Pugil vero con- 
 ductitius, si victus fuerit, pugno vel pede privabitur. (Charta ann. 1203 
 Du Cange). Also Beaumanoir, Cout. du Beauv., cap. lxvii. 10 (Du Cange 
 seems to me to have misinterpreted this passage). See also Monteil's ad- 
 mirable " Histoire des Francais des Divers Etats," XVe Siecle, Hist. xiii. 
 
 3 Cod. Leg. Norman. P. n. cap. lxiv. 19 (Ludewig, VII. 417). 
 
PROFESSIONAL CHAMPIONS. 123 
 
 their employers. 1 In the same spirit, the Emperor Frederic 
 II. prohibited champions from bargaining with cadi 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 chanipion offered few attractions to honest 
 men, who could keep body and soul together in any other 
 way. In primitive times, the solidarity of the family no 
 doubt caused the champion in most cases to be drawn from 
 among the kindred ; at a later period he might generally 
 be procured from among the freedmen or clients of the 
 principal, and an expression in the Lombard law justifies 
 the assumption that this was habitual, among that race at 
 least. 3 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 inno- 
 cence, as he was bound to do by the tenor of his oath of 
 knighthood. 4 A vast class of pleaders however would neces- 
 sarily be destitute of these resources to avoid the personal 
 appearance in the arena for which they might be unfitted 
 or disinclined, and thus there gradually arose the regular 
 
 1 Et li campions vaincus a le poing cope ; car se n'estait por le mehaing 
 qu'il emporte, aucuns, par barat, se porroit faindre par loier et se clameroit 
 vaincus, par quoi ses mestres emporteroit le damace et le vilonie, et cil em- 
 porteroit l'argent ; et por ce est bons li jugemens du mehaing. (Cout. du 
 Beauv. cap. lxi. 14.) A charter of 1372 shows that the mutilation of de- 
 feated champions was practised even at that late date. (Isambert, V. 387.) 
 
 9 Constit. Sicular. Lib. n. Tit. xxxvii. 3. 
 
 3 Et post illam inquisitionera, tradat manum ipse camphio in manu pa- 
 rentis aut conliberti sui ante judicem. L. Longobard. Lib. IX. Tit. lv. 11. 
 
 4 Thus the oath administered by the papal legate to William of Holland, 
 on his receiving knighthood previous to his coronation as King of the Ro- 
 mans in 1247, contains the clause "pro liberatione cujuslibet innocentis 
 duellum inire." Ooblast. Constit. Imp. T. III. p. 400. 
 
124 THE WAGER OP BATTLE. 
 
 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 be- 
 yond what they habitually incurred, and of such was the 
 profession generally composed. This evil must have made 
 itself apparent early, for we find Charlemagne endeavoring 
 to oppose it by decreeing that no robber should be allowed 
 to appear in the lists as a champion ; l and the order needed 
 to be frequently repeated. 
 
 It is therefore easy to understand, 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, that the contempt and the civil disabilities lavished 
 by the Imperial jurisprudence on the gladiator of antiquity 
 should be transferred 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. 3 By the thir- 
 teenth century, therefore, the occupation of champion had 
 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 
 
 1 Ut nemo furem camphium de mancipiis aut de qualibet causa recipere 
 prsesumat, sicut saepius dominus imperator commendavit. Capit. Carol. 
 Mag. ex L. Longobard. cap. xxxv. (Baluze.) 
 
 3 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 (Novel, cxv. cap. iii. 10), more fully set forth in Cod. 
 Lib. in. Tit. xxvii. 1. 11, de arenariis. This latter is translated bodily by 
 de Fontaines (Conseil, chap, xxxiii. Tit. 32), the "arenarius" of the Roman 
 becoming the "champions" of the Frenchman. So, chap. xv. Tit. 87 of the 
 Conseil is a translation of Dig. Lib. iv. Tit. ii. 1. 23 2, in which the " ath- 
 leta" of the original is transformed into a "chanpion." 
 
DEGRADATION OF (MI AM PI ON 8. 125 
 
 courage. 1 They were held incapable of appearing aa wit- 
 nesses, and the extraordinary anomaly was exhibited of 
 seeking t<> Learn the truth in affairs of the highest moment, 
 by u solemn appeal t<> God, through the instrumentality of 
 those who were already considered as convicts of the worst 
 kind, or who, by the very act, were branded with infamy if 
 Successful in justifying innocence, and if defeated were 
 mutilated or hanged. 8 By the codes in force throughout 
 Germany in the thirteenth and fourteenth centuries, they 
 were not only deprived of all legal privileges, such as suc- 
 ceeding to property, bearing witness, &c, but even their 
 children were visited with the same disabilities. 3 The 
 utter contempt in which they were held was moreover 
 quaintly symbolized in the same code by the provisions of 
 a tariff of damages to be assessed for blows and other per- 
 sonal injuries. A graduated list of fines is given for such 
 insults offered to nobles, merchants, peasants, <fec, in com- 
 pensation of their wounded honor ; below the serf come 
 the mountebank and juggler, who could only cuff the assail- 
 ant's shadow projected on a wall ; and last of all are rated 
 the champion and his children, whose only redress was a 
 glance of sunshine cast upon them by the offender from 
 a polished shield. Deemed by law incapable of receiving 
 an insult, the satisfaction awarded was as illusory as the 
 
 1 Percutiat si quis hominem infamem, hoc est lusorem vel pugilem, aut 
 mulierem publicam, Ac. Wichbild Magdeburg. Art. 129 (Du Cange). " PIu- 
 sieurs larrons, ravisseurs de femmes, violleurs d'eglises, batteurs a loyer," 
 etc. Ordonn. de Charles VII. ann. 1447, also Anciennes Coutumes de Bre- 
 tagne. (Monteil, ubi sup.) 
 
 ' Johen de Beaumont dit que chanpions loiez, prove de tel chose, ne puet 
 home apelier a gage de bataille an nul quas, si n'est por chanpion loiez por sa 
 deffanse ; car la poine de sa mauvaise vie le doit bien en ce punir. Livres 
 de Jostice et de Plet. Liv. xix. Tit. ii. 4. 
 
 3 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. Alamann. cap. 
 xxx vi. $ 2. (Ed. Schilter.) 
 
 11* 
 
126 THE WAGER OF BATTLE. 
 
 honor to be repaired. 1 That this poetical justice was long 
 in vogue is proved by the commentary upon it in the Rich- 
 stich Landrecht, of which the date is shown to be not 
 earlier than the close of the fourteenth century by an allu- 
 sion in the same chapter to accidental deaths arising from 
 the use of firearms. 2 
 
 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 ele- 
 vate than degrade the profession. In the Veronese code 
 of 1228, they appear as an established institution, consist- 
 ing of individuals selected and appointed by the magis- 
 trates, who did not allow them to receive more than one 
 hundred sous for the performance of their office. 3 
 
 It is evident that the evils attendant upon the employ- 
 ment of champions were generally recognized, and it is not 
 singular that efforts were occasionally made to abrogate or 
 limit the practice. Otho II., whose laws did so much to 
 give respectability to the duel, decreed that champions 
 should be permitted only to counts, ecclesiastics, women, 
 boys, old men, and cripples. 4 That this rule was strictly 
 enforced in some places we may infer from the pleadings 
 of a case occurring in 1010 before the Bishop of Aretino, 
 concerning a disputed property, wherein a crippled right 
 hand is alleged as the reason for allowing a champion to 
 
 1 Carapionibus et eorum liberis emendae loco datur fulgur ex clypeo nitido, 
 qui soli obvertitur, ortum ; hoc is qui eis satisfactionem debet loco emendae 
 praestare tenetur. (Ibid. cap. cccv. 15. Jur. Provin. Saxon. Lib. in. art. 
 xlv.) In the French version of the Speculum Suevicum, these emblematic 
 measures of damage are followed by the remark " cestes emandes furent 
 estrablies an la vieillie loy per les roys," (P. II. c. lxxxvi.) which would 
 appear to show that they were disused in the territories for which the trans- 
 lation was made. 
 
 2 Richstich Landrecht, Lib. II. cap. xxv. This gives additional point to 
 the insult by prescribing the use of a duelling shield for the reflection of the 
 sunbeam. 
 
 3 L. Municip. Veron. cap. 125, 126. 
 
 4 L. Longobard. Lib. n. Tit. Iv. 38, 40. 
 
RESTRICTIONS ON USE OP CHAMPIONS. 127 
 
 one of the parties. 1 In other parts &f Hah. however, the 
 regulation must have bees speedily disregarded. Tor about 
 
 the same time Henry II. found it necessary to promulgate 
 
 I law forbidding the employment of substitutes to able- 
 bodied defendants in cases of parrieide or of aggravated 
 murder ; 9 and when, two hundred years later, Frederic II. 
 almost abolished the judicial combat in his Neapolitan 
 dominions, we may fairly presume from one of his remarks 
 that champions were almost universally employed. 3 In- 
 deed, 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. 4 In Ger- 
 many, early in the eleventh century, it would seem that 
 champions were a matter of course, from the expressions 
 made use of in describing the execution of a number of 
 robbers convicted in this manner at Merseburg in 101*7.* 
 At a later period, it seems probable, from a comparison of 
 two chapters of the Swabian laws, that efforts were made 
 to prevent the hiring of professional gladiators, 6 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 Enolish 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 Norman territories, 7 and we learn from Glanville 
 
 1 Muratori, Antiq. Ital. Dissert. 39. 
 
 3 L. Longobard. Lib. i. Tit. ix. 37; Tit. x. 4. 
 
 3 Vix enim aut nunquam duo pugiles inveniri poterunt sic aequales, etc. 
 Constit. Sicular. Lib. II. Tit. xxxiii. 
 
 4 Ibid. Lib. i. Tit. xxxiii. 
 
 * Ibi tunc multi latrones a gladiatoribus singulari certamine devicti, sus- 
 pendio perierunt. Dithmari. Chron. Lib. vn. 
 
 6 Jur. Provin. Alamann. cap. xxxvi. 2; cap. Ix. 1. 
 
 1 Nullus eorum duellum faciat contra aliquem qui testificatus sit pugil 
 conductitius per sacramentum decern legaliura civium. Concil. Eccles. Roto- 
 mag. p. 128 (Du Cange). 
 
128 THE WAGER OF BATTLE. 
 
 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. 1 It is 
 evident from this that mercenary champions were not re- 
 cognized as legal in England, a principle likewise deducible 
 from an expression of Bracton's in the succeeding century. 3 
 Yet eventually, in civil cases, both parties were compelled by 
 law to employ champions, which presupposes, as a matter 
 of course, that, in a great majority of instances, the substi- 
 tutes must have been hired. 3 In criminal cases, however, 
 the rule was reversed, and when the appellant, from sex or 
 other disability, or the defendant from age, was unable to 
 undergo the combat personally, it was forbidden, and the 
 case was decided by a jury.* By the Scottish law of the 
 twelfth century, it is evident that champions were not 
 allowed in any case, since those disabled by age or wounds 
 were forced to undergo the ordeal in order to escape the 
 duel. 5 This strictness became relaxed in time, though the 
 practice seems never to have received much encouragement. 
 By a law of David II., about the year 1350, it appears that 
 a noble had the privilege of putting forward a substitute ; 
 but if a peasant challenged a noble, he was obliged to appear 
 personally, unless his lord undertook the quarrel for him 
 and presented the champion as from himself. 8 
 
 1 De Leg. Angliae Lib. II, cap. iii. 
 
 2 Ita posset quilibet in tali facto alium appellare per campionem conduc- 
 tivum, quod non est sustinendum. Bracton. Lib. III. Tract, ii. cap. 18 4. 
 
 3 Lord Eldon, in his speech advocating the abolition of trial by battle in 
 1819, stated, "In these the parties were not suffered to fight in propria 
 persona they were compelled to confide their interests to champions, on the 
 principle that if one of the parties were slain, the suit would abate." 
 Campbell's Lives of the Chancellors, VII. 279. 
 
 4 Bracton, Lib. in. Tract, ii. cap. 21, 11, 12. Ibid. cap. 24. 
 
 5 Regiam Majestatem Lib. iv. cap. iii. 
 
 6 Statut. David II. cap. xxviii. 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. 
 H 1, 2. 
 
RESTRICTIONS ON USE OP CHAMPIONS. 129 
 
 The tendency exhibited by the BnglM law in distin- 
 guishing between civil and criminal cases is manifested 
 elsewhere. Tims in France and the Prankish kingdoms 
 of the East, there were limitations placed on the employ- 
 ment of champions in prosecutions for crime, 1 while in 
 civil actions there appear to have been, at least in France, 
 no restrictions whatever. 9 The hiring of champions, more- 
 over, was legally recognized as a necessity attendant upon 
 the privilege. 3 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. 4 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 incapacit ate the 
 principals from personally taking part in the combat, but 
 also require the accused to swear that the impediment has 
 supervened since the commission of the alleged offence, 
 thus in fact assuming his guilt ; and even this was of no 
 
 1 Assises de Jerusalem, cap. 145, 146. Beaumanoir, cap. lxi. 6 | cap. 
 Ixiii. 4. 
 
 2 Beaumanoir cap. lxi. 14. The distinction between civil and criminal 
 practice is very clearly drawn by Pierre de Fontaines, who states that in 
 appeal of judgment the appellant in criminal cases is bound to show satis- 
 factory cause for employing a champion, while in civil affairs the right to do 
 so requires no argument. "Quant aucuns fause jugement, par lui et par 
 son avoee, come horn qui a essoine, mostrer doit son essoine, se l'en li re- 
 quiert, puisque li fausemenz est faiz en point qu'il ipeustvie perdre ; mes se 
 vie n'i cort, il n'est mie tenuz de mostrer essoine ; car toz sanz essoine peut- 
 il metre avoe la ou vie ne gist ou menbres." Conseil, chap. xxn. Tit. xiii. 
 
 3 II est usage que se aucun demende la cort de bataille qui est juege par 
 champions loees, il la tendra le jor maimes, et si ele est par le cors des que- 
 releors il metra jor avenant a la tenir autre que celui. Coutumes d'Anjou, 
 XHI.e Siecle, $ 74. 
 
 * Kar haute personedoit bien metre por lui, a deffendre soi, home, honeste 
 persone, se l'an l'apele, ou s'il apele autre. Livres de Jostice et de Plet, Liv. 
 II. Tit. xviii. 
 
SI 
 
 130 THE WAGER OP BATTLE. 
 
 avail if the prosecutor had included in his appeal of battle 
 an assertion that such disability had existed at the time 
 specified. 1 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 voluntarily assume the office. 2 The whole tenor of these 
 provisions, indeed, manifests a decided intention to surround 
 the employment of champions with every practicable impe- 
 diment. 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 expres- 
 sions 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. 3 This equalization of chances was 
 thoroughly carried out in the Veronese code of 1228, where, 
 as has been seen, the champions were a recognized body, 
 regulated and controlled by the state. The magistrate 
 was bound to choose gladiators of equal prowess, and the 
 choice between them was then given to the defendant : 
 an arrangement which rendered the mutilation inflicted on 
 the vanquished combatant only justifiable on the score of 
 suspected treachery. 4 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 
 
 1 Nee potest alter eorum campionem ponere, nisi propter statum, vel cor- 
 poris infirmitatem ; nee auditur reus de morbo tempore quo dicitur crimen 
 commisisse ; quod si velit jurare impedimentum post illud tempus super eum 
 venisse, audietur, nisi actor in vadio belli addiderit, scilicet quod cum tali 
 morbo crimen commiserit Lib. Pract. de Consuet. Remens. 40. (Archives 
 Legisl. de Reims, Pt. I. p. 40.) 
 
 3 Etiam antequam campionem possit quis ponere, jurare debet quod bona 
 fide amico3 suos requisivit quod pro ipso bellum facerent. Ibid. 14, p. 37. 
 
 3 For de Morlaas, Rubr. liii. art. 188. 
 
 4 Omnes camphiones . . . per me vel per judices communis Veronae, sive 
 consules, bona fide cocoquabo : facta cosequatione, defendenti electionem 
 dabo. L. Municip. Veronens. cap. 126. 
 
CHAMPIONS FOR COMMUNITIES. 131 
 
 discourage it as far as possible. The defendant had the 
 right to send a substitute Into the field, but the appellant 
 
 Could do so only by consent of his adversary. The cham- 
 pion was required to be of birth equal to his principal, 
 which rendered the hiring of champions almost impossible, 
 and not superior to him in force and vigor. Women arid 
 minors appeared by their next of kin, and ecclesiastics by 
 their advocates. 1 In Russia, until the sixteenth century, 
 champions were never employed, contestants being alwa}^s 
 obliged to appear in person. In 1550, the code known as 
 the Soudebtnick at length permitted the employment of 
 champions in certain cases. 8 
 
 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 liti- 
 gants. While the sexagenary, the infant, and the crippled 
 might possibly find a representative among their kindred, 
 and while the woman might appear by her husband or next 
 of kin, the ecclesiastical foundations and chartered towns 
 Bad no such resource. Their frequent occasion for this 
 species of service, therefore, led to the employment of regu- 
 larly appointed champions, who fought their battles for an 
 annual stipend, or for some other advantages bestowed in 
 payment. Du Cange, for instance, gives the text of an agree- 
 ment 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, wuth 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, which he had only heard of 
 
 1 Las Siete Partidas, Pt. TO. Tit. iv. 1. 3. 
 
 - Du Boys, Droit Criminel des Peuples Modernes, I. 611-13. 
 
132 THE WAGER OF BATTLE. 
 
 through tradition. 1 That it continued to be in vogue until 
 long after, is shown by Monteil, who alludes to several 
 documents of the kind, bearing date as late as the fifteenth 
 century. 3 
 
 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 ag- 
 grandizement which it afforded; and many a noble family 
 traced its prosperity to the increase of ancestral property 
 thus obtained, directly or indirectly, by espousing the 
 cause of fat abbeys and wealthy bishoprics. 3 The influence 
 of feudalism early made itself felt, and the office of Vidame 
 or Avoue became generally hereditary. In many instances, 
 it was a consideration obtained for donations bestowed 
 upon churches, so that in some countries, and particularly 
 
 1 Une malvese coustume souloit courre aneiemment, si comrae nos avons 
 entendu des seigneurs de lois. Cout. du Beauvoisis, cap. xxxviii. 15. 
 
 s Hist, des Francais, XV C Siccle, 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 upon the fundamental princi- 
 ple on which the whole system of appeals to the judgment of God was based 
 that success was an evidence of right. 
 
 3 Thus, 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, "cum necessitas posceret, solo 
 jussu, absque lucro alio temporali, bella abbatis et suorum pracliaretur." 
 Hist. Monast. Figeacens. (Baluz. et Mansi IV. p. 1.) When feudalism 
 fixed these chieftains firmly in possession, they rendered themselves inde- 
 pendent of their benefactors. This process is graphically described by St. 
 Abbq of Fleury, about the year 996 " Defensores ecclesiarum qui dicuntur 
 hodie, contra auctoritatem legum et canonum sibi defendunt quod fuerat 
 juris ecclesiarum, sicque violentiam clericis et monachis ingerendo, res ec- 
 clesiarum seu monasteriorum usufructuario diripiunt, colonosin paupertatem 
 redigunt, possessiones ecclesiarum non augent sed minuunt, et quorum 
 defensores esse debuerant, eos vastant." Collect. Canonum, can. ii. 
 
OPPOSITION OP Tin: OHUBCH. 181 
 
 in England, the title of mdvooatu* became gradually recog- 
 nised as By nonymous with patron. Thus, one of the worst 
 abuses of the Anglican church is derived from this source, 
 
 and the forgotten wrongs of the Middle Ages are perpetu- 
 ated, etymologically si least. In the advowson which ren- 
 der- the cure of souls too often a matter of bargain and 
 
 salt'. 
 
 The elasticity with which the duel lent itself to the ad- 
 vantage of the turbulent and unscrupulous is well illus- 
 trated in a document containing the proceedings of an 
 assembly of local magnates in 888, to decide a contention 
 Concerning the patronage of the Church of Lessingon. 
 Alter the testimony on one side had been given, the oppo- 
 site party commenced in reply, when the leaders of the 
 liiMy, seizing their swords, vowed that they would 
 affirm the truth of the first pleader's evidence with t*heir 
 blood before King Arnoul and his court and the case was 
 decided. 1 The strong and the bold are apt to be the ruling 
 classes in all times, and were emphatically so in those rude 
 - of scarcely curbed violence when the jurisprudence of 
 the European commonwealths was forming itself, and to 
 the immense advantages which the wager of battle afforded 
 to those classes may be attributed the wide-spread influence 
 which it enjoyed. 
 
 Its only consistent opponents were found among eccle- V 
 siasi ics. When King Gundobald gave it form and shape 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 
 reference has been made as an important event in the 
 reign of Louis-le-Debonnaire. St. Agobard, Archbishop 
 
 1 Optimates ejusdem concilii, apprehensis epatis suis, devotaverunt se haec 
 ita affirmaturos esse coram regibus et cunctis principibus usque ad sanguinis 
 effusionem. Goldast. Antiq. A lam an n. chart. Ixxxv. 
 12 
 
134 THE WAGER OF BATTLE. 
 
 of Lyons, took advantage of the occasion to address to 
 the Emperor a treatise, in which he strongly deprecated 
 the appeal to arms, as well as the employment of ordeals, 
 in settling judicial questions, and he subsequently wrote 
 another, consisting principally of scriptural texts with a 
 running commentary, proving their incompatibility with 
 so unchristian a practice. 1 Some thirty-five years after- 
 wards, the Council of Valence, in 855, denounced the battle 
 trial in the most decided terms, praying the Emperor Lo- 
 thair to abolish it throughout his dominions, and adopting 
 a canon which excommunicated the victor in such contests, 
 and refused the rites of Christian sepulture to the victim. 2 
 Pope Nicholas I. 3 and other pontiffs protested against it, and 
 exerted themselves energetically, to procure its abandon- 
 ment. All this was totally without effect. If Charlemagne, 
 in dividing his vast empire, forbade the employment of the 
 wager of battle in settling the territorial questions which 
 might arise between his heirs, 4 the prohibition merely shows 
 that it was habitually used in affairs of the highest mo- 
 ment, and the constant reference to it in his laws proves 
 that it was in no way repugnant to his general sense of 
 justice and propriety. 
 
 The next century affords ample evidence of the growing 
 favor in which the judicial combat was held. About the 
 year 930, Hugh, King of Provence and Italy, becoming 
 jealous of his uterine brother, Lambert, Duke of Tuscany, 
 asserted him to be a supposititious child, and ordered him 
 
 1 "Liber ad versus Legem Gundobadi" and "Liber contra Judicium Dei." 
 (Agobardi Opera, ed. Baluzii, I. 107, 301.) Both these works display marked 
 ability and a spirit of enlightened piety, mingled with frequent absurdities, 
 which show that Agobard could not, in all things, rise superior to the preju- 
 dices of 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 haereticus Gundobadus Burgundionum rex." 
 
 2 Concil. Valentin, ann. 855 can. 12. 
 
 3 Can. Monomachiam Caus. n. q. v. 
 
 4 Nee unquam pro tali caussa cujuslibet generis pugna vel campus ad 
 examinationem judicetur. Carol. Mag. Chart. Divisionis ann. 806 cap. xiv. 
 
OTHO THE GREAT. 1 ."."> 
 
 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 
 Temlinus as his champion; Lambert was victor in the 
 ensuing combat, and was universally received as the un- 
 doubted son of his mother. His triumph, however, was 
 illegally brought to a sudden close, for Hugh soon after 
 succeeded in making him prisoner and deprived him of eye- 
 sight. 1 Still, some enlightened ecclesiastics continued to 
 denounce the practice, represented by Atto, Bishop of Ver- 
 celli, who declared it to be totally inapplicable to church- 
 men and not to be approved for laymen on account of the 
 uncertainty of its results ; 9 but representations of this kind 
 were useless. About the middle of the century, Otho the" 
 Oreat appears, throwing the enormous weight of his influ- 
 ence in its favor. As a magnanimous and warlike prince, 
 the wager of battle appears to have possessed peculiar attrac- 
 tions for his chivalrous instincts, and he extended its appli- 
 cation as far as lay in his power. Not only did he force his 
 daughter Liutgarda, in defending herself from a villanous 
 accusation, to forego the safer modes of purgation, and to 
 submit herself to the perilous decision of a combat, 3 but he 
 also caused the abstract question of representation in the 
 succession of estates to be settled in the same manner ; and 
 to this day in Germany the division of a patrimony among 
 children and grandchildren is regulated in accordance with 
 the law enacted by the doughty arms of the champions who 
 fought together nine hundred years ago at Steil. 4 There was 
 
 1 Luitprandi Antapodos. Lib. ill. cap. 46. 
 
 2 Sed istud judicium quorundnm laicorum solummodo est, quod nee ipsis 
 etiam omnino approbatur. Nam ssepe innocentes victi, nocentes vero 
 yictores in tali judicio esse videntur. (De Pressuris Eccles. Pt. II.) This 
 was written about 945. 
 
 3 Dithmari Chron. Lib. II. ann. 950. 
 
 4 Widukind. Rer. Saxon. Lib. n. cap. x. The honest chronicler con- 
 
136 THE WAGER OP BATTLE. 
 
 no question, indeed, which according to Otho could not be 
 satisfactorily settled in this manner. Thus when, in 963, he 
 was indulging in the bitter recriminations with Pope John 
 XII. which preceded the subjugation of the papacy under 
 the Saxon emperors, in sending Bishop Liutprand to Rome 
 to repel certain accusations brought against him, he ordered 
 the armed followers of his ambassador to sustain his asser- 
 tions by the duel: a proposition promptly declined by the 
 pontiff, skilled though he was in the use of weapons. 1 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 matri- 
 monial 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. 8 
 
 Nor was the readiness to commit the mightiest interests 
 to the decision of the judicial duel confined to Germany 
 and Lombardy. When, in 948, at the Synod of Ingelheim, 
 Louis d'Outremer invoked the aid of the church in his 
 death-struggle with the rising race of Capet, he closed the 
 recital of the wrongs endured at the hands of Hugh-le- 
 Grand by offering to prove the justice of his complaints in 
 single combat with the aggressor. 3 When the battle ordeal 
 was thus thoroughly incorporated in the manners of the 
 age, we need scarcely be surprised that, in a life of St. 
 
 siders that it would have heen disgraceful to the nobility to treat questions 
 relating to them in a plebeian manner. " Rex autem meliori consilio usus, 
 noluit viros nobiles ae 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. xxn. 
 
 1 Liutprandi Hist. Otton. cap. vii. 
 
 2 Liutprandi Legat. cap. vi. 
 
 3 His si dux contraire audeat, nobis tantum singulariter congrediendum 
 sit. Conquest. Ludov. in Synod. Ingilheim. ann. 948. 
 
otiio ii. 13t 
 
 Matilda, written by command of her son Otho the Great, 
 tin* author, after describing the desperate struggles of the 
 Saxons against Charlemagne, should gravely inform us 
 that the war was at last concluded by a duel between the 
 Christian hero and his great antagonist Witikind, religion 
 and empire being both staked on the issue as 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. 1 
 
 The second Otho was fully imbued with his father's 
 views, and so completely did he carry them out, that in 
 the Lombard law he is actually credited with the intro- 
 duction of the duel. 3 In the preceding essay, allusion has 
 been made to his substitution of the judicial combat for 
 the sacramental oath in 983, and about the same period, he 
 made an exception, in favor of the battle ordeal, to the im- 
 memorial policy of the barbarians which permitted to all 
 subject races the enjo3 r ment of their ancestral usages. At 
 the council of Yerona, where all the nobles of Italy, secular 
 and ecclesiastical, were assembled, he causecl the adoption 
 of a law which forced the Italians in this respect to follow 
 the customs of their conquerors. 3 Even the church was 
 deprived of any exemption which she might previously 
 have enjoyed, and was only allowed the privilege of ap- 
 pearing by her "advocati" or champions. 4 There were 
 small chances of escape from the stringency of these regu- 
 lations, for an edict of Otho I. in 91 1 had decreed the 
 
 1 Utrisque placuit principibus, ut ipsi singuli invicem dimicaturi consur- 
 gerent, et cui sors victoriam contulisset, ipsi totus exercitus sine dubio 
 pareret. S. Mathild. Regin. Vit. c. 1. 
 
 3 Nos belli dono ditat rex maximus Otto. 
 
 3 Quacunque lege, sive etiam Romana, in omni regno Italico homo vixeret, 
 haec omnia ut in his capitulis per pugnam decernimus observare. L. Longo- 
 bard. Lib. n. Tit. lv. 38. 
 
 * De ecclesiarum rebus ut per advocatos fiat similiter jubemus. Ibid. 
 $ 34. 
 
 12* 
 
v 
 
 138 THE WAGER OP BATTLE. 
 
 punishment of confiscation against any one who should 
 refuse to undergo the chances of the combat. 1 
 
 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. 3 
 
 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 Oth o the Great em- 
 ployed champions to legislate respecting a disputed point 
 of law, he was not more eccentric than the Spaniards, 
 who settled in the same manner a controversy regarding 
 the canonical observances of religion when the fiery and 
 indomitable Hildebrand endeavored to force the introduc- 
 tion of the Roman liturgy into Castile and Leon, in lieu of 
 the national Gothic or Mozarabic rite. With considerable 
 difficulty, some years before, Navarre and Aragon had been 
 led to consent to the change, but the Castilians were dog- 
 gedly attached to the observances of their ancestors, and 
 stoutly refused compliance. In 1077, Alfonso I. procured 
 the assent of a national council, but the people rebelled, 
 and after repeated negotiations the matter was finally 
 referred to the umpirage of the sword. The champion of 
 the Gothic ritual was ^victorious, and tradition adds that 
 a second trial was made by the ordeal of fire ; a missal of 
 
 1 Si non audeat, res suae infiscentur. Convent. Papiens. ann. 971. 
 
 9 Qui vero infra treugam, post datum osculum pacis, alium hominem in- 
 terfecerit, et negare voluerit, pugnam pro se faciat. L. Longobard. Lib. i. 
 Tit. ix. 38. 
 
OHIO OP BAVARIA. 189 
 
 caeh Idnd was thrown into the Jlames, and the national 
 liturgy emerged (triumphantly unscathed* 1 
 
 Nearly contemporary with this was the celebrated case 
 of Otho, Duke of Havana, perhaps the most noteworthy 
 CCample of a judicial appeal to the sword, as it proved 
 the commencement of the terrible Saxon war, and of the 
 troubles wliieh, aggravated by the skilful hand of Hihle- 
 brand, pursued the unfortunate Emperor Henry IV. to the 
 grave, and did so much to establish the temporal supremacy 
 of the papacy. A worthless adventurer, named Egeno, 
 accused the proud and powerful Otho of conspiring against 
 the Emperor's life. In a diet held at Mainz, the duke was 
 commanded to disprove the charge by doing battle with his 
 accuser within six weeks. According to some authorities, 
 his pride revolted at meeting an adversary so far his infe- 
 rior ; 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 confiscated accord- 
 ingly. It was bestowed on Welf, son of Azo d'Este and of 
 Cunigunda, descendant and heiress of the ancient Guelfic 
 Agilolfings; and thus, on the basis of a judicial duel, was 
 founded the second Bavarian house of Guelf, from which 
 have sprung so many royal and noble lines, including their 
 Guelfic Majesties of Britain. Some years later, the Em- 
 peror himself offered to disprove by the same means a 
 similar accusation brought against him by Duke Reginger, 
 of endeavoring to assassinate his rival, Rodolph of Swabia. 
 A day was appointed for the combat, which was prevented 
 only by the opportune death of Reginger. 9 
 
 Scarcely less impressive in its results, and even more 
 remarkable in itself, as exhibiting the duel invested with 
 
 1 Ferreras, Hist. Gen. d'Espagne, Trad. d'Hermilly, III. 245. 
 Lambert. Schaffnab. ann. 1070, 1073, 1074. Conrad. Ursperg. ann. 1071. 
 Bruno de Bello Saxonico. 
 
140 THE WAGER OF BATTLE. 
 
 legislative as well as judicial functions, is the case wherein 
 the wager of battle was employed in 1180 to break the 
 overgrown power of Henry the Lion. That puissant 
 Duke of Saxony and Bavaria had long divided the power 
 of the Empire, and defied the repeated efforts of Frederic 
 Barbarossa to punish his constantly recurring rebellions. 
 Cited to appear and answer for his crimes 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 Wurtzburg, 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 em- 
 pire. 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. 1 
 
 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 only excuse for the absurdity being that it was only 
 allowed in matters which could not injure the other side; 3 
 and a malefactor turning king's evidence was obliged, be- 
 fore receiving his pardon, to pledge himself to convict all 
 his accomplices, if required, by the duel. 3 The implicit 
 
 1 Conrad. Ursperg. ann. 1175. Cumque nullus isti se offerret ad pugnam 
 edicto Imperatoris praefata sententia pro jure perpetuo statuta est, quain non 
 dubium est autoritate et ratione firmari. 
 
 3 Et statim hoc probareper unum audientem et intelligentem, qui ineonti- 
 nenti paratus sit hoc probare per corpus suum, si curia consideraverit. Et 
 sic poterit quis recordum suum mutare, augere, et minuere, quia ex hoc 
 nullum damnum habebit adversarius. Bracton. Lib. HI. Tract, ii. cap. 
 37 5. 
 
 3 Ibid. cap. 33 2, and 34 2. 
 
EXPLANATION OF DOUBTFUL CASES. 141 
 
 confidence inspired by the duel is well illustrated by a case 
 which occurred about the year lino. A. sacrilegious thief 
 named Anselm stole the sacred vessels from the church of 
 toon and sold them to a merchant, from whom he exacted 
 an oath of secrecy. Frightened at the excommunications 
 fulminated by the authorities of the plundered church, the 
 unhappy traitor revealed the name of the robber. Anselm 
 denied the accusation, offered the wager of battle, defeated 
 the unfortunate receiver of stolen goods, and was proclaimed 
 innocent. Encouraged by impunity, he repeated the 
 offence, and after his conviction by the ordeal of cold water, 
 he confessed the previous crime. The doubts cast by this 
 event on the efficacy of the judicial combat were, however, 
 happily removed by the suggestion that the merchant had 
 suffered for the violation of the oath which he had sworn to 
 Anselm ; and the reputation of the du$l remained intact. 1 
 
 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 ; a 
 and men contented themselves then, as they do still, with 
 predicting future misfortunes and an eternity of punish- 
 ment. The more direct solution, in cases of unjust con- 
 
 1 Guibert. Noviogent. de Vita sua Lib. in. cap. xvi. Hermann, de 
 Mirac. S. Maria; Laudun. Lib. iv. cap. 28. Forsitan ut multi putarunt, pro 
 fidei violatae reatu, qua promiserat fidem Anselmo, quod earn non detegeret. 
 (Du Cange.) 
 
 3 Und diser vor Got scbuldig, und vor den luten nit. (Jur. Provin. Ala- 
 mann. cap. ccxix. 8.) This is a provision for oases in which a thief accuses 
 a receiver of having suggested and assisted the crime. They are made to 
 fight, when, if the receiver is worsted, both are hanged ; if the thief, he alone, 
 and the receiver escapes though criminal. The French version enlarges 
 somewhat on the principle involved : " Se il puet vancre lautre il est quites 
 et li autre sera panduz. et sera an colpe anver lo munde et anver dex andui. 
 ce avient a assez de genz, que aucons sunt an colpe anver dex et ne mie anver 
 le seigle." (Miroir. de Souabe, P. II. c. vi.) 
 
142 THE WAGER OP BATTLE. 
 
 demnation, 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 sup- 
 ported by the infallible authority of the papacy, as enun- 
 ciated 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 seized in consequence 
 by the authorities of Spoleto. 1 That the combatants them- 
 selves did not always feel implicit confidence in the justice 
 of the event, or rely solely upon the righteousness of their 
 cause, is shown by the custom of occasionally bribing 
 Heaven either to assist the right or to defend the wrong. 
 Thus, in the eleventh century, we find the monastery of St. 
 Peter at Beze in the enjoyment of certain lands bestowed 
 on the Saint by Sir, Miles the Stammerer, who thus en- 
 deavored to purchase his assistance in a combat about to 
 take place a bargain no doubt highly appreciated by the 
 worthy friars. 2 
 
 Notwithstanding the wrong and injustice wrought by the 
 indiscriminate and universal application of so senseless a 
 custom, 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 for- 
 mally interdicted as a judicial proceeding in 1011 ; 3 and 
 though the assumption that this was owing to the intro- 
 duction of Christianity has been disproved, still the fact 
 that both events were contemporaneous allows us to con- 
 clude that the teachings of the true religion had a powerful 
 
 1 Can. Significantibus, Extra, De Purgatione Vulgari. " Duellum in quo 
 aliis peccatis suis praepedientibus, ceciderunt." 
 
 3 Isdem quoque Milo . . . monomachi certaturus pugna, attribuit sancto 
 Petro terram quam habebat in Lueo, prope atrium ecclesiae, quo sibi adjutor 
 in disposito bello existerit. Chron. Besuense, Chart, de Luco. 
 
 3 Schlegel, Comment, ad Grag&s, p. xxii. 
 
INFLUENCE OP THE COMMUNES. 143 
 
 influence in leading the inhabitants to abandon their an- 
 cestral custom. The Danes were the first to follow the 
 example, Indeed, Saxo Grammaticns in one passage 
 attributes to them the priority, asserting that when Poppo 
 in 965 converted Harold Blaatand by the ordeal of red- 
 hot iron, it produced so powerful an effect as to induce 
 the substitution of that mode of trial for the previously 
 existing wager of battle. 1 Yet it evidently was not abro- 
 gated 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, 
 Saxo specifically states, put an end to the wager of battle, 
 and opened the door to great abuses. 8 
 
 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 
 prejudice. 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, 
 enjo}ing the advantage of settled and permanent tribunals, 
 and exposed to all the humanizing and civilizing influences 
 
 1 Quo even it utDani, abrogata duellorum consuetudine, pleraque causarum 
 judicia eo experimenti genere constatura decernerent, controversiarum exa- 
 men rectius ad arbitrium divinum quam ad humanam rixam religandum 
 putantes. Saxon. Granimat. Hist. Dan. Lib. x. 
 
 - Ipsa nanque defendendi potestas non armoruin non testium usu, sed sola 
 saeramenti fide subnixa, multorum conatus votorum cupiditate perjurio 
 polluit, sed et funditus singularium congressionum usum evertit. Posteris 
 nanque susceptas causarum controversial satius jurejurando visum est ex- 
 pedire quam ferro. Ibid. Lib. xi. 
 
144 THE WAGER OF BATTLE. 
 
 of close association in communities, they speedily acquired 
 ideas of progress very different from those of the savage 
 feudal nobles living isolated in their fastnesses, or of the 
 wretched serfs who crouched for protection around the 
 castles of their masters and oppressors. 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 the kind 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 accusa- 
 tions which he may bring against citizens can be tried 
 without battle by the oaths of twelve compurgators, except 
 when the penalties of death or mutilation are involved; 
 and in questions concerning land, the duel is forbidden 
 when competent testimony can be procured. 1 Limited as 
 these concessions may seem, they were an immense inno- 
 vation on the prejudices 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 1105, the citizens of Amiens received a charter from 
 their bishop, St. Godfrey, in which the duel is subjected to 
 some restriction not enough in itself, perhaps, to effect 
 much reform, yet clearly showing the tendency which ex- 
 isted. 3 Perhaps the earliest instance of absolute freedom 
 from the judicial combat occurs in a charter granted to the 
 inhabitants of Bari by Roger, King of Naples, in 1132. 3 In 
 that of Nieuport, bestowed in 1163, by Philip of Alsace, 
 
 1 Liinig Cod. Diplom. Ital. I. 2455. The liberal terms of this charter show 
 the enlightenment of the Emperor, and explain the fidelity manifested for him 
 by the imperial cities in his desperate struggles with his rebellious nobles 
 and an implacable papacy. 
 
 3 Si conventio aliqua facta fuerit ante duos vel plures scabinos, de con- 
 ventione ilia amplius non surget campus vel duellum, si scabini qui conven- 
 tioni interfuerint, hoc testificati fuerint. Chart. Commun. Ambianens. c. 
 44. (Migne's Patrolog. T. 162, p. 750). 
 
 3 Ferrum, cacavum, pugnam, aquam, vobis non judicabit vel judicari 
 faciet. (Muratori, Antiq. Ital. Dissert. 38.) 
 
INFLUENCE OP COMMERCE. 145 
 
 while the ordeal of red-hoi iron and pompnrgatorW <>.-it lis 
 are freely alluded to as means of rebutting accusal ions, t here 
 
 is no reference whatever to the battle trial. showing that 
 it was by that time no longer in use. 1 Even in Scotland, 
 partial exemptions of the same kind in favor of towns are 
 found as early as the twelfth century. A stranger could 
 not force a burgher to fight, except on an accusation of 
 treachery or theft, while, if a burgher desired to compel a 
 stranger to the duel, he was obliged to go beyond the con- 
 fines of the town. A special privilege was granted to the 
 roj'al burghs, for their citizens could not be challenged by 
 the burghers of nobles or prelates, while they had the right 
 to offer battle to the latter. 3 
 
 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. 3 
 In a similar spirit, when Frederic Barbarossa, in 1173, was 
 desirous of attracting to the markets of Aix-la-Chapelle 
 and Duisbourg the traders of Flanders, in the code which 
 he established for the protection of such as might come, he 
 Specially enacted that they should enjoy immunity from the 
 duel. 4 Even Russia found it advantageous to extend the 
 same exemption to foreign merchants, and in the treaty 
 which Mstislas Davidovitch made in 1228 with the Hanse- 
 town of Riga, he granted to the Germans who might seek 
 
 1 Oudegherst, Annales de Flandre ed. Lesbroussart. T. II, note ad fin. 
 The laws bestowed by Philippe on the city of Ghent in 1178 have no allu- 
 sion to any species of ordeal, and appear to rest altogether on ordinary legal 
 processes. Ibid. T. i. p. 426 sqq. 
 
 2 L. Burgorum c. 14, 15. (Skene.) 
 
 3 In omni mercato Flandrire si quis clamorem adversus eos suscitaverit, 
 judicium scabinorum de omni clamore sine duello subeant ; ab duello vero 
 altering liberi sint (Warnkonig, Hist, de la Flandre, II. 411.) 
 
 * Nemo mercatorem de Flandria duello provocabit. (Ibid., II. 426.) 
 
 13 
 
146 THE WAGER OF BATTLE. 
 
 his dominions immunity from liability to the red-hot iron 
 ordeal and wager of battle. 1 
 
 Germany seems to have been somewhat later than France 
 or Italy in the movement, yet her burghers evidently re- 
 garded it with favor. In 1219, the charter granted to Niirn- 
 berg by Frederic II. expressly exempts the citizens from 
 the appeal of battle throughout the Empire. 3 The statutes 
 of Eisenach, in 1283, provide that no duel shall be ad- 
 judged in the town, except in cases of homicide, and then 
 only when the hand of the murdered man shall be pro- 
 duced in court at the trial. 3 In 1291, Rodolph of Haps- 
 burg issued a constitution declaring that the burghers of 
 the free imperial cities should not be liable to the duel out- 
 side of the limits of their individual towns, 4 and in the 
 Kayser-Recht this privilege is extended by declaring the 
 burghers exempt from all challenge to combat, except in a 
 suit brought by a fellow-citizen. 5 
 
 All these, however, were special privileges for a limited 
 class of men, and their local regulations had no direct 
 bearing on general legislation, except in so far as they 
 might assist in softening the manners of their generation 
 and aiding in the general spread of civilization. A more 
 efficient cause was to be found in the opposition of the 
 
 1 Esneaux, Hist, de Russie, II. 273 (Du Boys, Droit Criminel des Peup. 
 Mod. I. 603). 
 
 2 Item, nemo aliquem civem loci illius duello impetere debet in toto Ro- 
 mano imperio. Constit. Frid. II. de Jur. Norinib. 4 (Goldast. Constit. 
 Imp. I. 291). 
 
 3 Henke, Gesch. des Deut. Peinlichen Rechts I. 192 (Du Boys, op. cit. 
 II. 590). 
 
 4 Nullus vos vel vestrum aliquem modo duellico vel per viam duelli extra 
 civitatem citare possit vel debeat evocare. (Goldast. Op. cit. I. 314.) 
 
 5 Imperator eos immunes declaravit a duello, . . . ut non possint con- 
 veniri nisi civibus in eadem civitate habitantibus, ubi vir ille moratur cui 
 lis movetur. Jur. Caesar. P. iv. cap. i. (Senckenberg. Corp. Jur. German. 
 I. 118). This portion of the Kayser-Recht is probably therefore posterior to 
 the rise of the Hapsburg dynasty. 
 
OPPOSITION OF THE CHURCH. 147 
 
 church, which, afl h:is been seen, never looked upon the 
 duel with favor, mid constantly endeavored to discredit it. 
 Hen the close of the twelfth century, Celestin III. pro- 
 hibited it in general terms, 1 and lie farther pronounced that 
 champions in such contests, together with principals, were 
 guilty of homicide, and liable to all the ecclesiastical penal- 
 ties of that crime. 9 Innocent III., moreover, took care that 
 the great council of Lateran in 1215 should confirm all the 
 previous prohibitions of the practice. 3 How difficult it was 
 to enforce respect for these precepts, even among church- 
 men, has been shown above, and the persistence of ecclesias- 
 tical belief in the divine interposition is fairly illustrated 
 by a case, related with great triumph by monkish chroni- 
 clers, as late as the fourteenth century, where a duel was 
 undertaken by direction of the Virgin Mary herself. In 
 1325, a French Jew feigned conversion to Christianity in 
 order to gratify his spleen by mutilating the images in the 
 churches, and at length he committed the sacrilege of car- 
 rying off the holy wafer to aid in the unknown and hideous 
 rites of his fellows. The patience of the Yirgin being at 
 last exhausted, she appeared in a vision to a certain smith, 
 commanding him to summon the unlucky Israelite to the 
 field. A second and a third time was the vision repeated 
 without effect, till at last the smith, on entering a church, 
 was confronted by the Yirgin 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 
 
 1 " In eo casu, vel aliis etiam, hoc non debes aliquatenus tolerare" (Can. 
 1, Extra, Lib. v. Tit. xxxv.). The rubric of this canon is even more de- 
 cided. "Duella et alia; purgationes vulgares prohibitae sunt, quia per eas 
 multoties condemnatur absolvendus, et Deus tentari videtur." 
 
 2 Quod tales pugiles hoinicidae veri existunt. . . . Homicidium autem, 
 tarn facto quam praecepto, sive consilio, aut defensione, non est dubium per- 
 petrari. Can. 2, Extra, Lib. v. Tit. xv. 
 
 3 Concil. Lateranens. IV. Can. 18. 
 
148 THE WAGER OF BATTLE. 
 
 the lists, yielded without a blow, falling on his knees, con- 
 fessing his unpardonable sins, and crying that he could 
 not resist the thousands of armed men who appeared 
 around his adversary with threatening weapons. He was 
 accordingly promptly burned, to the great satisfaction of 
 all believers. 1 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 cruelty and injustice of the custom. 3 
 
 But perhaps the most potential 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 privileges of ecclesiastical, feudal, and customary 
 law. Thus recommended, its progress was rapid. Monarchs 
 lost no opportunity of inculcating respect for that which 
 served their purpose so well, and the civil lawyers, who 
 were their most useful instruments, speedily rose to be a 
 power in the state. Of course the struggle was long, for 
 feudalism had arisen from the necessities of the age, and a 
 system on which were based all the existing institutions of 
 Europe could only be attacked in detail, and could only be 
 destroyed when the advance of civilization and the general 
 diffusion of enlightenment had finally rendered it obsolete. 
 The French Revolution was the final battle-field, and that 
 terrible upheaval was requisite to obliterate a form of 
 society whose existence had numbered nine hundred years. 
 
 1 Willelmi Egmond. Chron. (Matthaei Analect. IV. 231.) 
 
 3 As late as 1492, the Synod of Schwerin promulgated a canon prohibiting 
 
 Christian burial to those who fell in the duel or in tournaments. Synod. 
 
 Svverin. ann. 1492 Can. xxiv. (Hartzheim Concil. German. V. 647.) 
 
EFFORTS TO RKSTIIK'T THE DU1L. 110 
 
 The wager of battle waa not lon<r In experiencing the 
 
 first assaults oft lu- new power. The earliest efficient steps 
 towards its abolition were taken in 1231 by the Emperor 
 Frederic II. in hie Neapolitan code. He pronounces it to 
 be iii 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. 1 The German 
 Imperial code, known as the Kayser-llecht, which was pro- 
 bably compiled about the same time, contains a similar 
 denunciation of the uncertainty of the duel, but does not 
 venture on a prohibition, merely renouncing all responsi- 
 bility for it, while recognizing it as a settled custom. 9 In 
 the portion, however, devoted to municipal law, which is 
 probably somewhat later in date, the prohibition is much 
 more stringently expressed, manifesting the influences at 
 work ; 3 but even this is contradicted by a passage almost 
 immediately preceding it. How little influence these wise 
 counsels had, in a state so intensely feudal and aristocratic, 
 is exemplified in the Swabian and Saxon codes, where the 
 duel plays so important a part. Yet the desire to escape 
 it was not altogether confined to the honest burghers of the 
 cities, for in 1277, Rodolph of Hapsburg, even before he 
 granted the immunity to the imperial towns, gave a charter 
 to the duchy of Styria, securing to the Styrians their privi- 
 
 1 Constit. Sicular. Lib. n. Tit. xxxii. xxxiii. " Non tam vera probatio 
 quam quaedam divinatio . . . quae naturae non consonans, a jure communi 
 deviat, aequitatis rationibus non consentit." 
 
 9 Cum viderit innocentes in duello succubuisse, et sontes contra in sua 
 iniustitia nihilominus victoriam obtinuisse. Et ideo in jura imperii scrip- 
 turn est, ubi duo ex more in duellum procedunt, hoc non pertinet ad imperium. 
 Jur. Ca;sar. P. n. c. 70. (Senckenberg I. 54.) 
 
 3 Quilibet sciat imperatorera jussisse ut nemo alterum ad duellum provocet. 
 . . . Nemo enim unquam fortiores provocari vidit, sed semper debilioreK, 
 et fortiores semper triumpharunt. Ibid. P. iv. cap. 19. 
 
 13* 
 
150 THE WAGER OF BATTLE. 
 
 leges 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. 1 
 
 In 1248, Don Jayme I. of Aragon, in revising the fran- 
 chises of Majorca, prohibited the judicial combat in both civil 
 and criminal cases. 3 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 pe- 
 culiar to the military class (por lid de caballeros 6 de 
 peones), and as reprehensible both as a tempting of God 
 and as a source of perpetual injustice. 3 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, 5 and in personal actions 
 alone which savored of treachery, such as murder, blows, 
 or other dishonor, inflicted without warning or by sur- 
 prise. Offences committed against property, burning, 
 forcible seizure, and other wrongs, even without defiance, 
 were specifically declared not subject to its decision, the 
 body of the plaintiff being its only recognized justifica- 
 tion. 6 Even in this limited sphere, the consent of both 
 
 1 Si inter Stirienses qusestionem contingat oriri, duellum locum tion 
 habeat, vel probatio per campionera, ubi testes idonei producentur, secundum 
 quorum testimonium quaestio dirimatur. Rudolphi I. Privileg. (Ludewig 
 Reliq. MSS. T. IV. p. 260.) 
 
 * 2 Du Cange, s. v. Batalia. 
 
 3 Los sabios antiguos que ficieron los leyes non la tovieron por derecha 
 prueba : ed esto por dos razones ; la una porque muchas vegadas acaesce 
 que en tales lides pierde la verdat e vence la mentira : la otra porque aquel 
 que ha voluntad de se aventurar a esta prueba semeja que quiere tentar a 
 Dios nuestro senor. Partidas, P. Ill, Tit. xiv. 1. 8. 
 
 4 Ibid. P. vii. Tit. iii. 1. 2. 
 6 Ibid. P. vn. Tit. iii. 1. 3. 
 
 6 Et sobre todo decimos que non se puede facer riepto sinon sobre cosa 6 
 fecho en que caya traycion 6 aleve ; et por ende si un fidalgo a otro quemare 
 6 derribare casas, 6 cortare vinas 6 arboles, 6 forzare haber oheridat, 6 ficiere 
 
SPAIN. 151 
 
 parties was requisite, for the appellant could prosecute in 
 the ordinary Legal manner, am I the defendant, if challenged 
 
 to 1 >attle, could elect to have the case tried 1>\ witnesses or 
 inquest, nor could the king himself refuse aim the right to 
 
 do so. 1 When to this is added that a preliminary trial was 
 requisite to decide whether the alleged offence was treach- 
 erous in its character or not, it will be seen that the com hat 
 Mas hedged around with such difficulties as rendered its 
 presence on the statute book scarcely more than an unmean- 
 ing concession to popular prejudice ; and if anything were 
 wanting to prove the utter contempt of the legislator for 
 the decisions of the battle-trial, it is to be found in the reg- 
 ulation that if the accused was killed on the field, without 
 confessing the truth of the crime imputed, he was to be 
 pronounced innocent, as one who had fallen in vindicating 
 the truth. 3 The same desire to restrict the duel within the 
 narrowest possible limits is shown in the rules concerning 
 the employment of champions, as has already been seen. 
 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 provisions were lasting, and 
 produced the effect designed. The Ordenamiento de Alcala, 
 issued by Alfonso XI. in 1348, which remained in force 
 for nearly two centuries, repeats the restrictions of the 
 Partidas, but in a very cursory manner, and rather in- 
 cidentally 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 
 
 otro mal que non tanga en su cuerpo, maguer non le haya ante desafido, non 
 es por ende alevoso, nil puede reptar por ello. Partidas, P. VII. Tit. iii. 
 1. 3. 
 
 1 Tree dias debese acordarel reptado para escogeruna de las tres maneras 
 que desuso dixiemos, qual mas quisiere porque se libre el pleyto. . . . ca el 
 re nin su corte non han de mandar lidian por riepto. Ibid. P. vn. Tit. iii. 
 1. 4. 
 
 2 Muera quito del riepto ; ca razon es que sea quito quien defend iendo la 
 verdad recibio miierte. Ibid. P. vn. Tit. iv. 1. 4. 
 
152 THE WAGER OF BATTLE. 
 
 national law, to be received as a matter of course. 1 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. 
 
 The varying phases of the struggle between progress and 
 centralization on the one side, and feudalism and chivalry 
 on the other, were exceedingly well marked in France, and 
 as the materials for tracing them are abundant, a more 
 detailed account of the gradual reform may perhaps have 
 interest, as illustrating the long and painful strife which 
 has been necessary to evoke order and civilization out of 
 the incongruous elements from which modern European 
 society has sprung. The sagacity of St. Louis, so rarely 
 at fault in the details of civil administration, saw in the 
 duel not only an unchristian and unrighteous practice, but 
 a symbol of the disorganizing feudalism which he so ener- 
 getically 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 his period advanced to a point 
 where the gradual extension of the judicial prerogatives of 
 the crown might prove the surest mode of humbling in time 
 the haughty vassals who had so often bearded the sovereign. 
 No legal procedure was more closely connected with feudal- 
 ism, 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 cele- 
 
 1 Ordenamiento de Alcala, Tit. xxxn. ll.vii. xi. 
 
LEGISLATION OP ST. LOUIS. 153 
 
 brated Ordonnanoe of 1260, he formally prohibited the 
 battle trial In the territory subject to his jurisdiction^ Jhe 
 
 was obliged to admit that he had 00 PJ2X6X to control the 
 courts of his barons beyond the domains of the crown. a 
 Even within this comparatively limited sphere, we may fa i rly 
 assume from some passages in the Etablissements, compiled 
 about the year 12*70, that he w r as 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. 3 It seems, indeed, 
 remarkable that he should have authorized it even between 
 brothers, on criminal accusations, only restricting them in 
 civil suits to fighting by champions, 4 when the German law 
 of nearly the same period forbids the duel, like marriage, 
 between relations in the fifth degree, and states that pre- 
 viously it had been prohibited to those connected in the 
 seventh degree. 5 
 
 1 Nous deffendons a tous les batailles par tout nostre demengne, mes nous 
 n'ostons mie les clains, les respons, les convenants, etc. . . . fors que nous 
 ostons les batailles, et en lieu des batailles nous meton prueves de tesmoins, 
 et si n'oston pas les autres bones preuves et loyaux, qui ont este en court 
 laye siques a ore. Isarabert, I. 284. 
 
 Lauriere (Tabl. desOrdonn. p. 17) alludes to an edict to the same purport 
 under date of 1240, of which I can nowhere else find a trace. 
 
 a Se ce est en l'obeissance le Roy ; et se ce est hors l'obeissance le Roy, 
 gage de bataille. (Etab. de St. Louis, Liv. IX. chap, xi., xxix., xxxviii.) 
 Beaurnanoir repeats it, a quarter of a century later, in the most precise 
 terms, " Car tout cil qui ont justice en la conte poent maintenir lor cort, s'il 
 lor plest, selonc l'ancienne coustume ; et s'il lor plest il le poent tenir selonc 
 l'establissement le Roy." (Cout. du Beauv. cap. xxxix. 21.) And again, 
 " Car quant li rois Lois les osta de sa cort il ne les osta pas des cours a, ses 
 barons." (Cap. lxi. 15.) 
 
 3 Liv. i. chap, xxvii., xci., cxiii. etc. This is so entirely at variance 
 with the general belief, and militates so strongly with the opening assertion 
 of the 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 practice prevailing 
 in the royal courts and in those of the barons, such as may be seen in other 
 passages. (Liv. i. chap, xxxviii., lxxxi., cxi., etc.) 
 
 4 Ibid. Liv. I. chap, clxvii. 
 
 4 Jur. Provin. Alamann. cap. clxxi. 10, 11, 12. 
 
154 THE WAGER OF BATTLE. 
 
 Even this qualified reform provoked determined opposi- 
 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 em- 
 blems of their prerogatives ; Loysel, indeed, deduces from 
 it a maxim, " The pillorj^, the gibbet, the iron collar, and 
 paintings of champions engaged, are marks of high juris- 
 diction." 1 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. 2 Nor was this 
 all, for during the centuries of its existence there had 
 grown and clustered around the custom an immeasurable 
 mass of rights and privileges which struggled lustily against 
 destruction. Thus hardly had the ordonnance of prohibi- 
 tion been issued when, in 1260, a knight named Mathieu-le- 
 
 1 Pilori, echelle, carquant, et peintures de champions combattans sont 
 marques de haute justice. Instit. Coutum. Liv. n. Tit. ii. Regie 47. 
 
 3 Beaumanoir, op. cit. chap. lxi. 11, 12, 13. 
 
 In Normandy, these advantages were enjoyed by all seigneurs justiciers. 
 " Tuit chevalier et tuit sergent ont en leurs terres leur justice de bataille en 
 cause citeaine ; et quant li champions sera vaincuz, il auront LX. sols et I 
 denier de la 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 these rights is 
 well manifested by the decision of an inquest held during the reign of Philip 
 Augustus to determine the conflicting jurisdictions of the ducal court of Nor- 
 mandy 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. 
 
RESISTANCE OP FEUDALISM. 155 
 
 Voyer actually brought suit against Che king for the loss 
 It inflicted upon him. He dolefully set forth that he en- 
 Joyed the privilege of guarding the lists iu all duds adjudged 
 
 in tin 1 royal court at Corbon, for which he was entitled to 
 receive a fee of five sous in each case ; and, as his occupation 
 thus was gone, he claimed compensation, modestly suggest- 
 in g that he be allowed the same tax on all inquests held 
 under the new law. 1 
 
 But the loss of money was less important than the cur- 
 tailment of privilege and the threatened absorption of 
 power of which this reform was the precursor. Every step 
 in advancing the influence of peaceful justice, as expounded 
 by the jurists of the royal courts, was a heavy blow to the 
 independence of the feudatories. They felt their ancestral 
 rights assailed at the weakest point, and they instinctively 
 recognized that, as the jurisdiction of the ro}*al bailiffs 
 became extended, and as appeals to the court of the Parle- 
 ment of Parfs. became more frequent, their importance was 
 diminished, and their means of exercising^ a petty tyranny 
 over those around them were abridged. Entangled in the 
 mazes of a code in which the unwonted maxims of Roman 
 law were daily quoted with increasing veneration, the im- 
 petuous seigneur found himself the prey of those whom he 
 despised, and he saw that subtle lawj^ers were busily undo- 
 ing the work at which his ancestors had labored for cen- 
 turies. These feelings are well portrayed in a song of the 
 period, exhumed not long since by Le Roux de Lincy. 
 Written apparently by one of the sufferers, it gives so 
 truthful a view of the conservative ideas of the thirteenth 
 century that a translation of the. first stanza ma}' not be 
 amiss : 
 
 1 Les OHm, I. 491. It is perhaps needless to add that Mathieu's suit was 
 rejected. 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. 
 
156 THE WAGER OF BATTLE. 
 
 Gent de France, mult estes esbahis ! 
 
 Je di a touz ceus qui sont nez des fiez, etc. 1 
 
 Ye men of France, dismayed and sore 
 
 Ye well may be. In' sooth, I swear, 
 Gentles, so help me God, no more 
 
 Are ye the freemen that ye were ! 
 Where is your freedom ? ye are brought 
 
 To trust your rights to inquest-law, 
 Where tricks and quibbles set at naught 
 
 The sword your fathers wont to draw. 
 Land of the Franks ! no more that name 
 
 Is thine a land of slaves art thou, 
 Of bondsmen, wittols, who to shame 
 
 And wrong must bend submissive now ! 
 
 Even legists de Fontaines, whose admiration of the Di- 
 gest led him on all occasions to seek an incongruous alliance 
 between the customary and imperial law, and Beaumanoir, 
 who in most things was far in advance of his age, and who 
 assisted so energetically in the work of centralisation 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. 3 
 
 1 Recueil de Chants Historiques Francais, I. 218. It is not unreasonable 
 to conjecture that these lines may have been occasioned by the celebrated 
 trial of Enguerrand de Coucy in 1256. On the plea of baronage, he demanded 
 trial by the Court of Peers, and claimed to defend himself by the wager of 
 battle. St. Louis proved that the lands held by Enguerrand were not 
 baronial, and resisted with the utmost firmness the pressure of the nobles 
 who made common cause with the culprit. On the condemnation of de 
 Coucy, the Count of Britanny bitterly reproached the king with the degrada- 
 tion inflicted on his order by subjecting its members to inquests. Beugnot, 
 Olim I. 954. Grandes Chroniques ann. 1256. 
 
 3 Et se li uns et li autres est si enreues, qu'il n'en demandent nul amesure- 
 ment entrer pueent par folie en perill de gages. (Conseil, chap. xv. Tit. 
 xxvii.) Car bataille n'a mie leu ofr justise a mesure. (Ibid. Tit. xxvii.) 
 Mult a de perix en plet qui est de gages de bataille, et mult est grans mestiers 
 c'on voist sagement avant en tel cas. (Cout. du Beauv. chap. lxiv. 1.) 
 
P II I I, 1 I' 1' K-LE-BEL. 16? 
 
 How powerful were the influences thus brought (<> i>o:n- 
 against the Innovation is shown i.v the i:ut that when the 
 
 mild luit linn band of St. Louis no Longer grasped the 
 sceptre, his sou and sneeessor could not maintain his 
 father's laws, and allowed himself to preside at a Judi cial 
 duel about the year 1283, Bcarcely more than twenty years 
 
 after the promulgation of the ordonnance of prohibition. 1 
 The next monarch, Philippe-le-Bel, was at first guilty of 
 the same weakness, for when in 1293 the Count of Armagnae 
 accused Raymond Bernard of Foix of treason, a duel 
 bet ween them was decreed, and they were compelled to fight 
 before the King at Gisors ; though Robert d'Artois inter- 
 fered after the eonibat had commenced, and induce* I Philippe 
 to separate the antagonists. 2 Philippe, however, was too 
 astute not to see that his i nterest lav in humbling feudalism 
 in all its forms; while the rapid extension of the jurisdic- 
 tion of the crown, and the limitations on the seignorial 
 courts, so successfully invented and asserted by the lawyers, 
 acting by means of the Parlement through the royal 
 1 >ail ill's, gave him power to carry his views into effect such 
 as had been enjoyed by none of his predecessors. Able and 
 unscrupulous, he took full advantage of his opportunities 
 iu every way. and the wager of battle was not long in ex- 
 periencing the effect of his encroachments. Still he pro- 
 ceeded 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, 3 and in 1303 he was obliged to repeat the prohibition. 4 
 
 Car ce n'est pas coze selonc Diu de soufrir gages en petite querele de meubles 
 ou d'eritages ; mais coustume les suefre es vilains cas de crieme. Ibid, 
 chap. vi. 31. 
 
 1 Beaumanoir, op. cit. chap. Ixi. 63. 
 
 2 Grandes Chroniques, T. IV. p. 104. 
 
 3 Quod durante guerra regis, inter aliquos gagia duelli nullatenus admit- 
 tantur, sed quilibet in curiis regis et subditorum suorum jus suum via ordi- 
 naria prosequatur. Isambert, II. 702. 
 
 4 Ibid. II. 806. 
 
 14 
 
158 THE WAGER OF BATTLE. 
 
 It was probably not long after this that he interdicted the 
 duel wholly 1 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. 3 
 
 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 en- 
 couragement for crime and villany, 3 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. 4 In thus legalizing it by the Ordonnance of 1306, 
 
 1 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 a prohibition of tournaments. The collection of Isambert contains 
 nothing of the kind, but that some legislation of this nature actually oc- 
 curred is evident from the preamble to the Ordonnance of 1306 " Savoir 
 faisons que comme ca en arriere, pour le commun prouffit de nostre roy- 
 aume, nous eussions deffendu generaument a tous noz subgez toutes manieres 
 de guerres et tous gaiges de batailles, etc." It is worthy of note that these 
 ordonnances of Philippe were no longer confined to the domain of the crown, 
 but purported to regulate the customs of the whole kingdom. 
 
 2 Willelmi Egmond. Chron. (Matthaei Analect. IV. 135-7.) 
 
 3 Dont pluseurs malfaicteurs se sont avancez par la force de leurs corps et 
 faulx engins a faire homicides, traysons et tous autres malcfices, griefz et 
 excez, pource que quant ilz les avoient fais couvertement et en repost, ilz ne 
 povoient estre convaincuz par aucuns tesmoings dont par ainsi le malefice se 
 tenoit. Ordonnance de 1306 (Ed. Crapelet, p. 2). 
 
 4 Car entre tous les perilz qui sont, est celui que on doit plus craindre et 
 doubter, dont maint noble s'est trouve deceu ayant bon droit ou non, par 
 tropconfier en leurs engins et en leurs forces ou par leurs ire? oultrecuidees. 
 Ibid. p. 34. A few lines further on, however, the Ordonnance makes a con- 
 cession to the popular superstition of the time in expressing a conviction that 
 those who address themselves to the combat simply to obtain justice may ex- 
 pect a special interposition of Providence in their favor. " Et se 1' interesse, 
 sans orgueil ne maltalent, pour son bon droit seulement, requiert bataille, ne 
 doit doubter engin ne force, car le vray juge sera pour luy. " 
 
PHI LIPPE-LE-BEL. 159 
 
 however, he by no mean* replaced ii on its former footing. 
 It was restricted to criminal eases involving the death 
 penalty, excepting theft, and it was only permitted \x\wu 
 the crime was notorious, the guilt of the accused probable, 
 and no other evidence attainable. 1 The ceremonies pre- 
 sc Bribed, moreover, were fearfully expensive, and put it out 
 of the reach of all except the wealthiest pleaders. As the 
 Ordonnance, which is very carefully drawn, only refers to 
 appeals made by the prosecutor, it may fairly be assumed 
 that the defendant could merely accept the challenge and 
 had no right to offer it. 
 
 Even with these limitations, Philippe was not disposed 
 t<> sanction the practice within the domains of the crown, 
 for, the next year (1301), 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. 3 This was 
 equivalent to a formal prohibition. During the whole of 
 the period under consideration, numerous causes came before 
 the Parlement concerning challenges to battle, on appeals 
 from various jurisdictions throughout the country, and it 
 is interesting to observe how uniformly some valid reason 
 was found for its refusal. In the public register of deci- 
 sions, extending from 1254 to 1318, no single instance of 
 its permission is to be found. 3 The civil lawyers compos- 
 
 1 Ordonnance de 1306, cap. i. 2 Isambert, II. 850. 
 
 3 See Les OWm, passt?n. Two judgments of the Parlement in 1309 show the 
 observance of the Ordonnance of 1306, for, while admitting that the duel 
 could take place, the cases are settled by inquest, as capable of proof by in- 
 vestigation. In another instance, however, the appellant is fined at the 
 pleasure of the king, for challenging his opponent without due grounds. 
 (Olim, III. 381-7.) Considerable ingenuity was manifested by the Parle- 
 ment in thus uniformly finding some sufficient excuse for refusing the duel 
 in the vast variety of cases brought before it. This is sometimes effected 
 by denying the jurisdiction of the court which had granted it, and sometimes 
 for other reasons more or less frivolous, the evident intention discernible in 
 all the arrets being to restrict the custom within limits so narrow as to 
 render it practically a nullity. 
 
1G0 THE WAGER OF BATTLE. 
 
 ing that powerful body knew too well the work for which 
 they were destined. 
 
 In spite of these efforts, the progress of reform was 
 slow. On the breaking out afresh of the perennial contest 
 with Flanders, Philippe found himself, in 1314, obliged to 
 repeat his order of 1296, forbidding all judicial combats 
 during the war, and holding suspended such as were in pro- 
 gress. 1 As these duels could have little real importance 
 in crippling his military resources, it is evident that he 
 seized such occasions to accomplish under the war power 
 what his peaceful prerogative was unable to effect, and it 
 is a striking manifestation of his zeal in the cause, that he 
 could turn aside to give attention to it amid the preoccu- 
 pations of the exhausting struggle with the Flemings. 
 Yet how little impression he made, and how instinctively 
 the popular mind still turned to the battle ordeal, as the 
 surest resource in all cases of doubt, is well" illustrated by 
 a passage in a rhyming chronicle of the day. When the 
 close of Philippe's rong and prosperous reign was dark- 
 ened by the terrible scandal of his three daughters-in-law, 
 and two of them were convicted of adultery, Godefroy de 
 Paris makes the third, Jeanne, wife of Philippe-le-Long, 
 offer at once to prove her innocence by the combat : 
 
 Grentil roy,je vous requier, sire, 
 Que vous m'oyez en deffendant. 
 Se nul ou nule demandant 
 Me vait choss 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. 2 
 
 The iron hand of Philippe was no sooner withdrawn 
 than the nobles made desperate efforts to throw off the 
 
 1 Isambert, III. 40. 
 
 2 Chronique Metrique, 1. 6375. 
 
REACTION UNHI'i: I. oil IS X. 1 (', 1 
 
 yoke which he had so skilfully and relentlessly imposed 
 on them. His son, Louis-K -Hut in, not yet firmly seated 
 on the throne, was constrained to yield a portion of the 
 aewly-aoquired 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. 1 Those 
 of Amiens and Vermandois were equally clamorous, and 
 for their benefit he re-enacted the ordonnance of 1306, per- 
 mitting the duel in criminal prosecutions, where other 
 evidence was deficient, with an important extension autho- 
 rizing its application to cases of theft, in opposition to 
 previous usage. 9 The nobles of Champagne made the 
 same demand, but Louis, by right of his mother, Jeanne 
 de Champagne, was Count of Champagne, and his autho- 
 rity was less open to dispute.' He did not venture on a 
 decided refusal, but an evasive answer, which was tanta- 
 mount to a denial of the request, 3 showed that his previous 
 concessions were extorted, 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. 4 
 
 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 evi- 
 dence of the successful working of the plans of St. Louis 
 and Philippe-le-Bel that several ordonnances and charters 
 granted by Philippe-le-Long in 1318 and 1319, while pro- 
 
 1 Et quant au gage de bataille, nous voullons que il en usent, si comnie 
 Ten fesoit anciennement. Ordonn. Avril 1315, cap. 1. (Isambert, III. 62.) 
 
 2 Nous voullons et octroions que en cas de murtre, de larrecin, de rapt, de 
 trahison et de roberie, gage de bataille soit ouvert, se les cas ne pouvoient 
 estre prouvez par tesmoings Ordonn. 15 Mai 1315. (Isambert III. 74.) 
 
 3 Ordonn. Mai 1315, P. I. cbap. 13. (Isambert III. 90.) 
 
 4 Ibid. P. it. chap. 8. (Isambert III. 95.) 
 
 14* 
 
 
162 THE WAGER OF BATTLE. 
 
 mising reforms in the procedures of the bailiffs and senes- 
 chnls. 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. 1 Phi- 
 lippe of Yalois was especially energetic in maintaining the 
 royal jurisdiction, and when in 1330 he was obliged to re- 
 strict the abusive use of appeals from the local courts to the 
 Parlement, 3 it is evident that the question of granting or 
 withholding the wager of battle had become practically a 
 prerogative of the crown. That the challenging of witnesses 
 must ere long have fallen into desuetude is shown by an 
 edict of Charles VI., issued in 1396, by which he ordered 
 that the testimony of women should be received in evidence 
 in all the courts throughout his kingdom. 3 
 
 Though the duel was thus deprived, in France, of its 
 importance as an ordinary legal procedure, yet it was by 
 no means extinguished, nor had it lost its hold upon the 
 confidence of the people. An instructive illustration of 
 this is afforded by the well-know T n story of the Dog of 
 Montargis. Though the learned Bullet 4 has demonstrated 
 the fabulous nature of this legend, and has traced its pa- 
 ternity up to the Carlovingian romances, still the fact is 
 indubitable that it was long believed to have occurred in 
 13 tl, 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, ad- 
 miring greatly the sagacity of the animal, and regarding 
 as a matter of course both the extraordinary judicial pro- 
 ceedings 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 
 
 1 Isambert, III. 196-221. 
 
 2 Ordonn. 9 Mai 1330 (Isambert, IV. 369). 
 
 3 Neron, Recueil d'Edits, I. 16. 
 
 4 Dissertations sur la Mythologie Frnncaise. 
 
I I .1 \ c(i r | s i, | (i it i s. 103 
 
 appellant, under pain <>f being considered <> uuuAjm the 
 crime charged, and itfjras decided that the He was net 
 
 eeeential. 1 The same year occurml the celebrated duel 
 between the chevalier de Carronges and Jacques le (JHs, 
 so picturesquely described by Froissart, to witness which 
 the King shortened i campaign, and in which the appellant 
 was seconded by W alo f an , Count of St. Pol, son-in-law of 
 tin' Black Prince. Nothing can well be more impressive 
 than the scene presented by the chronicler. 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 adversary; with the fearful certainty that, 
 if might 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 Carronges 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. 8 Froissart, however, 
 was rather an artist than an historian ; he would not risk 
 the effect of his picture by too rigid an adherence to facts, 
 and he omits to mention, what is told by the cooler Juvenal 
 des Ursins, that Le Gris was subsequently proved innocent 
 by the death-bed confession of the real offender. 8 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 
 
 1 De Lauriere, note on Loysel, Instit. Coutum. Lib. vi. Tit. i. Regie 22. 
 a Froissart, Liv. in. chap. xlix. (Ed. Buchon, 1840.) 
 
 3 Hist, de Charles VI. ann. 1386. 
 
 4 Hist, de Charles VI. Liv. vi. chap. ix. 
 
1G4 THE WAGER OF BATTLE. 
 
 further trace of the combat as a judicial procedure is to be 
 found on the registers of the Parlenlent of Paris. 1 
 
 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 ; 3 
 and though the latter body may never have exercised the 
 privilege thus conferred upon it, the King occasionally did, 
 as we find him during the same year presiding at a judicial 
 duel between Guillaume Bariller, a Breton knight, and John 
 Carrington, an Englishman. 3 The English occupation of 
 France, under Henry V. and the Regent Bedford, revived 
 the practice, and removed for a time the obstacles to its 
 employment. Nicholas Upton, writing in the middle of 
 the fifteenth century, repeatedly alludes to the numerous 
 cases in which he assisted as officer of the Earl of Salis- 
 bury, Lieutenant of the King of England; and in his 
 chapters devoted to defining the different species of duel, 
 he betrays a singular confusion between the modern ideas 
 of reparation of honor and the original object of judicial 
 investigation, thus fairly illustrating the transitional cha- 
 racter of the period. 4 
 
 It was about this time that Philippe-le-Bon, Duke of 
 Burgundy, formally abolished the wager of battle, as far 
 as lay in his power, throughout the extensive dominions of 
 which he was sovereign, and in the Coutumier of Bur- 
 gundy, as revised by him in 1459, there is no trace of it to 
 be found. The code in force in Britanny until 1539 per- 
 mitted it in cases of treason, theft, and perjury, the latter, 
 as usual, extending it over a considerable range of civil 
 
 1 Buchon, Notes to Froissart, II. 537. 
 
 2 Que jamais nuls ne fussent receus au royaume de France a faire gages 
 de bataille ou faict d'armes, sin on qu'il y eust gage juge par le roy, ou la 
 cour de parlement. Juvenal des Ursins, ann. 1409. 
 
 3 Monstrelet, Liv. i. chap. lv. 
 
 4 Nic. Uptoni de Militari Officio Lib. II. cap. iii. iv. (p. 72-73). 
 
TIIE PIPTKF.NTIF CENTURY. 1 65 
 
 actions. 1 In Normandy, the legal existence of the Judicial 
 
 duel was lYrii MN prolonged, for it was not until the 
 revision of the eout under in 15S.J, under Henry III., that, 
 the privilege of deciding in this way numerous eases, both 
 civil and eriniinal, was formally abolished. 3 Still it may 
 be assumed that praetieally the eustom had long been ob- 
 solete, though the tardy process of the revision of the local 
 customs allowed it to remain 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, it retains its place as a legitimate means of 
 proof, in default of other testimony, with a heavy penalty 
 on .the party who did not appear upon the field at the 
 appointed time. 3 
 
 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 en- 
 forced by competent judicial authority. In 1455, the tri- 
 bunals at Valenciennes ordered the duel between two 
 bourgeois, of whom one had appealed the other for the 
 murder of a kinsman. Neither party desired the battle, 
 but the municipal government insisted upon it, and fur- 
 nished them with instructors to teach the use of the staff 
 and buckler, allowed as arms. The Count de Charolois, 
 Charles-le-Temeraire, endeavored to prevent the useless 
 cruelty, but the city held any interference as an infringe- 
 ment of its chartered rights ; and, after long negotiations, 
 Philippe-le-Bon, the suzerain, authorized the combat, and 
 was present at it, when the appellant literally tore out the 
 
 1 Tres Ancienne Cout. de Bretagne, chap. 132, 134 (Bourdot de Riche- 
 bourg). 
 
 3 Ancienne Cout. de Normandie, chap. 53, 68, 70, 71, 73 etc. (Bourdot 
 de Richebourg). 
 
 3 Fors et Cost, de Beam, Rubr. de Batalha (Bourdot de Richebourg, IV. 
 1093). 
 
166 TIFE WAGER OF BATTLE. 
 
 heart of his antagonist. 1 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 vic- 
 tor's court, quarrelling over the spoils of the battle-field, 
 demanded the champ-cloh ; it was duly granted, and on 
 the appointed day the appellant was missing, to the great 
 discomfiture and no little loss of his bail. 3 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 Castelnau, whom* he 
 accused of having poisoned his mother, the Countess 
 d'Armagnac, appeared before the assembly, and his advocate 
 denying the charge, presented his offer to prove his inno- 
 cence by single combat. 3 In 1518, Henry II. of Navarre 
 ordered a judicial duel at Pau between two contestants, of 
 whom the appellant made default ; the defendant was ac- 
 cordingly 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 ad- 
 versary, who was further punished by the prohibition 
 thenceforth to wear arms or knightly bearings. 4 In 1538, 
 Francis I. granted the combat between Jean du Plessis 
 
 1 Mathieu de Coussy, chap. cxii. 
 
 3 D. Calmet, Hist, de Lorraine. By the old German law, the hail of a 
 defaulting combatant was condemned to lose a hand, which, however, he 
 had the privilege of redeeming at its legal value (Jur. Provin. Alaman. cap. 
 ccclxxxvi. 32 Ed. Schilter.), or, according to another text, he was liable 
 to the punishment incurred by his principal if convicted. (Ibid. cap. clxxiii. 
 13 Ed. Senckenberg.) 
 
 3 Jehan Masselin, Journal des Etats de Tours, p. 320. 
 
 . V4i.rchives de Pau, apud Mazure et Hatoulet, Fors de Beam, 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, Bubr. IV.) 
 
 ^ 
 
THE SIXTKKNTH CENTURY. 167 
 
 and Gauticr de Dintcvillc, which would appear to have 
 been essentially a judicial proceeding, since the defendant 
 
 not appearing at the appointed time, was condemned to 
 death by sentence of the high council, Feb. 20, 1538.* 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 com- 
 bat between Chastaigneraye and Jarnac, in 154 T, 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 Yienne-le-Chatel, desired to settle 
 in this manner a disgusting accusation brought against the 
 latter by the former. The king being unable to grant 
 the appeal, arranged the matter by allowing Robert de la 
 Marck, Marshal of France and sovereign prince of Sedan, 
 to permit it in the territory of which he was suzerain. 
 Fendilles was so sure of success that he refused to enter 
 the lists until a gallows was erected and a stake lighted, 
 where his adversary after defeat was to be gibbeted and 
 burned. Their only weapons were broadswords, and at 
 the first pass Fendilles inflicted on his opponent a fearful 
 gash in the thigh. . Des Guerres, seeing that loss of blood 
 would soon reduce him to extremity, closed with his an- 
 tagonist, and being a skilful wrestler, speedily threw him. 
 Reduced to his natural weapons, he could only inflict 
 blows with the fist, which failing strength rendered less 
 and less effective, when a scaffold crowded with ladies and 
 gentlemen gave way, throwing down the spectators in a 
 shrieking mass. Taking advantage of the confusion, the 
 friends of des Guerres violated the law which imposed ab- 
 solute silence and neutrality on all, and called to him to 
 
 1 D. Calmet, Hist de Lorraine 
 
1G8 THE WAGER OP BATTLE. 
 
 blind and suffocate his adversary with sand. Pes Guerres 
 promptly took the hint, and Fendilles succumbed to this 
 unknightly weapon. Whether he formally yielded or not 
 was disputed. Des Guerres claimed that he should un- 
 dergo 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. 1 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 156G, Charles IX. 
 issued an edict prohibiting duels, no allusion was made to 
 the judicial combat. The encounters which he sought to 
 prevent were solely those which arose from points of honor 
 between gentlemen, and the offended party was ordered 
 not to appeal to the courts, but to lay his case before the 
 Marshals of France, or the governor of his province. 3 The 
 custom had died a natural death. No ordonnance was 
 necessary to abrogate it ; and, seemingly from forgetful- 
 ness, the crown appears never to have been divested of the 
 right to adjudge the wager of battle. 
 
 In Hungary, it was not until 1492 that any attempt was 
 made to restrict the judicial duel. In that year, Yladislas 
 II. prohibited it in cases where direct testimony was pro- 
 curable ; where such evidence was unattainable, he still 
 permitted it, both in civil and criminal matters, and he 
 alleged as his reason for the restriction, the frauds occa- 
 sioned by the almost universal employment of champions. 
 The terms of the decree show that previously its use was 
 general, though he declared it to be a custom unknown 
 
 1 Brantome, Discours sur les Duels. An account of this duel, published 
 at Sedan, in 1620, represents it as resulting less honorably to Fendilles. He 
 is there asserted to have formally submitted, and to have been contempt- 
 uously tossed out of the lists like a sack of corn, des Guerres marching off 
 triumphantly, escorted with trumpets. 
 
 2 Foutanon, I. C65. 
 
HUNGARY ITALY RUSSIA. 169 
 
 elsewhere. 1 Even the precocious civilization of Itaty, which 
 usumIIv preferred astuteness to force, could not shake <>ir 
 the traditions of the Lombard law until the sixteenth een- 
 turv. In 1505, Julius II. forbade the duel under the seve- 
 rest penalties, both civil and ecclesiastical, in a decretal, 
 of whieh 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 Russia, under the code known as the Oulogenie' Za- 
 konof, 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 Soudebtnick, is- 
 sued 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 Mikhailo- 
 witch, in the code known as the Sobornoid Oulogenie\ The 
 more enlightened branch of the Sclavonic race, however, 
 the Poles, abolished it in the fourteenth century; but 
 Macieiowski states that in Servia and Bulgaria the custom 
 has been preserved teethe present day. 3 
 
 In other countries, the custom likewise lingered to a 
 comparatively late period. Scotland, indeed, was some- 
 what in advance of her neighbors ; for in the year 1400, 
 the Parliament showed the influence of advancing civiliza- 
 
 1 Quia in duellorum dimicatione plurimre hinc inde fraudes committi pos- 
 sunt; raro enim illi inter quos illud fit judicium per se decertant, sed pugi- 
 les conducunt, qui nonnunquam dc-no, favore, et promissis corrumpuntur. 
 L. Uladis. II. c. ix. (Batthyani, I. 531). 
 
 Duellorum et glndiatorum hujusmodi usum damnamus et improbamus, 
 et in terrisRom. Ecclesise mediate vel immediate subjectis . . . . e quacunque 
 causa, etiam a legibus permissa, fieri omnino prohibeinus. Can. Regis 
 Pacifici, De Duello, in Septimo. 
 
 3 For these details I am indebted to Du Boys, Droit Criminel des Peuples 
 Modernes, I. 611-17, 650. 
 
 15 
 
 
110 THE WAGER OF BATTLE. 
 
 tion by limiting the practice in several important particu- 
 lars, which, if strictly observed, must have almost rendered 
 it obsolete. Four conditions were pronounced essential 
 prerequisites: the accusation must be for a capital crime; 
 the offence must have been committed secretly and by 
 treachery ; reasonable cause of suspicion must be shown 
 against the accused, and direct testimony both of witnesess 
 and documents must be wanting. 1 
 
 Still the " perfervida ingenium Scot orum" 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 156?, 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 II., 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, Both- 
 well again came forward and renewed his challenge. James 
 Murray, who had already offered to accept it, took it up 
 at once, but Bothwell refused to meet him on account of 
 the inequality in their rank. Murray's brother, William 
 of Tullibardin, then offered himself, and Bothwell again 
 declined, as the Laird of Tullibardin was not a peer of the 
 realm. Many nobles then eagerly proposed to take his 
 place, and Lord Lindsay especially insisted on being al- 
 lowed the privilege of proving the charge on Both well's 
 
 1 Statut. Roberti III. cap. iii. 
 
ENGLAND. 171 
 
 body, but the Litter delayed on various pretexts) until 
 Queen Mary was able to prohibit the combat. 1 
 
 In England, the resolute conservatism, Which resists 
 innovation to the last, prolonged the existence of the wager 
 Of battle until a period unknown in other 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. 8 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 murder a privilege allowed 
 the 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 1488, however, the Act 3 
 Henry VII. cap. 1, ordered that all indictments should be 
 prosecuted forthwith, and that the appellee should not be 
 permitted in appeals to plead his previous acquittal. 3 
 
 With the advance of civilization and refinement, the cus- 
 tom gradually declined, but it was not until the time of 
 Elizabeth that it was even abolished in civil cases. In 1511 
 this was brought about, as Spelman says, u non sine magna 
 jurisconsultorum perturbatione," in consequence of its em- 
 ployment in the case of Low et al. vs. Paramore. To de- 
 termine the title to an estate in Kent, Westminster Hall 
 j was forced to adjourn to Tothill Fields, and all the forms 
 of a combat were literally enacted, though an accommoda- 
 
 i l Knox's Hist, of Reform, in Scotland, pp. 332, 446-7. 
 3 Spelman (Gloss, s. v. Campus) gives a Latin translation of this interest- 
 ing document, from a MS. of the period. 
 
172 THE WAGER OF BATTLE. 
 
 tion between the parties saved the skulls of their cham- 
 pions. 1 
 
 Yet even then it was not thought advisable to extend 
 the reform to the criminal law. A curious custom, peculiar 
 to the English jurisprudence, allowed a man indicted for a 
 capital offence to turn u approver," by confessing the crime 
 and charging or appealing any one he chose as an accom- 
 plice, and this appeal was usually settled by the single 
 combat. This was sufficiently frequent to require legisla- 
 tion as late as the year 1599, when the Act 41 Eliz. chap. 
 3 was passed to regulate the nice questions which attended 
 appeals of several persons against one, or of one person 
 against several. In the former case, the appellee if victori- 
 ous in the first duel was acquitted ; in the latter, the appel- 
 lor was obliged to fight successively with all the appellees. 3 
 Even in the seventeenth century, instances of the battle 
 ordeal between persons of high station are on record, and 
 Sir Matthew Hale, writing towards the close of the century, 
 feels obliged to describe with considerable minuteness the 
 various niceties of the law, though he is able to speak of 
 the combat as " an unusual trial at this day." 3 
 
 In lit 4, the subject incidentally attracted attention in a 
 manner not very creditable to the enlightenment of English 
 legislation. When, to punish the rebellious Bostonians for 
 destroying the obnoxious tea, a "Bill for the improved 
 administration of justice in the Province of Massachusetts 
 Bay" was passed, it originally contained a clause depriving 
 the New Englanders of the appeal of murder, 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 ques- 
 tion could be determined by the wager of battle. The 
 denial of this ancestral right aroused the indignation of 
 the liberal party in the House of Commons, and the point 
 
 1 Spelman. Gloss, p. 103. 
 
 2 Hale, Pleas of the Crown, II. chap. xxix. 
 
 3 Loc. cit. 
 
THE NINETEENTH CENTURY. 173 
 
 was warmly contested She Learned ami eloquent Dunning, 
 afterwards Lord aahburton, one of the leaders of opposi- 
 tion, defended the ancient custom in the strongest terms. 
 " I rise," said he, M to support that great pillar of the con- 
 stitution, the appeal for murder ; I fear there is a wish to 
 establish a precedent for taking it away in England as well 
 as in the colonies. It is called a remnant of barbarism and 
 gothicism. The whole of our constitution, for aught I 
 
 know, is gothic I wish, sir, that gentlemen would 
 
 be a little more cautious, and consider that the yoke we 
 are framing for the despised colonists may be tied round 
 our own necks !" Even Burke was heard to lift a warning 
 voice against the proposed innovation, and the obnoxious 
 clause had to be struck out before the ministerial majority 
 could pass the bill. 1 Something was said about reforming 
 the law throughout the empire, but it was not done, and 
 the beauty of the "great pillar of the constitution," the 
 appeal of murder, was shown when the nineteenth century 
 was disgraced by the resurrection of all tjie barbaric 
 elements of criminal jurisprudence. In 1818, the case of 
 Ashford vs. Thornton created much excitement. Ashford 
 was the brother of a murdered girl, whose death, under 
 circumstances of peculiar atrocity, was charged upon 
 Thornton, with every appearance of probability. Acquitted 
 on a jury trial, Thornton was appealed by Ashford, when 
 he pleaded "Not guilty, and I am ready to defend the 
 same by my body." After elaborate argument, Lord 
 Ellenborough, with the unanimous assent of his brother 
 justices, sustained the appellee's right to this as "the 
 usual and constitutional mode of trial," expounding the 
 law in almost the same terms as those which we read 
 in Bracton and Beaumanoir. 3 The curious crowd was 
 sorely disappointed when the appellant withdrew, and the 
 
 1 Campbell's Lives of the Chancellors of England, VI. 112. 
 3 I. Barnewall & Alderson, 457. 
 15* 
 
174 THE WAGER OF BATTLE. 
 
 chief justice was relieved from the necessity of presiding 
 over a gladiatorial exhibition. A similar case occurred 
 almost simultaneously in Ireland, and the next year the 
 act 59 Geo. III. chap. 46, at length put an end for ever to 
 this last remnant of the age of chivalry. 1 
 
 1 Campbell, Chief Justices, III 169. 
 
III. 
 
 THE ORDEAL 
 
 It is only in an age of high and refined mental culture 
 that man, unassisted by direct inspiration, can entertain an 
 adequate conception of the Supreme Being. An Omnipo- 
 tence that can work out its destined ends, and yet allow 
 its mortal creatures free scope to mould their own fragmen- 
 tary portions of the great whole ; a Power so infinitely great 
 that its goodness, mercy, and justice are compatible with 
 the existence of evil in the world which it has formed, so 
 that man has full liberty to obey the dictates of his baser 
 passions, without being released from responsibility, and, 
 at the same time, without disturbing the preordained re- 
 sults of Divine wisdom and beneficence these are not the 
 ideas which prevail in the formative periods of society. 
 Accordingly, in the earlier epochs of almost all races, a 
 belief in a Divine Being is accompanied with the expecta- 
 tion that special manifestations of power will be made on 
 all occasions, and that the interposition of Providence may 
 be had for the asking, whenever man, in the pride of his 
 littleness, condescends to waive his own judgment, and 
 undertakes to test the inscrutable ways of his Creator by 
 the touchstone of his own limited reason. Thus miracles; 
 come to be expected as matters of every-day occurrence, 
 and the laws of nature are to be suspended whenever man 
 chooses to tempt his God with the promise of right and the 
 threat of injustice to be committed in His name. 
 
 To these elements of the human mind is attributable the 
 
176 THE ORDEAL. 
 
 almost universal adoption of the so-called Judgment of 
 God, by which men, oppressed with doubt, have essayed 
 in all ages to relieve themselves from responsibility by 
 calling in the assistance of Heaven. Nor, in so doing, 
 have they seemed to appreciate the self-exaltation implied 
 in the act itself, but, in all humility, have cast themselves 
 and their sorrows at the feet of the Great Judge, making a 
 merit of abnegating the reason which, however limited, has 
 been bestowed to be used and not rejected. In the Car- 
 lovingian Capitularies there occurs a passage, dictated 
 doubtless by the spirit of genuine trust in God, which well 
 expresses the pious sentiments presiding over acts of the 
 grossest practical impiety. " Let doubtful cases be deter- 
 mined by the judgment of God. The judges may decide 
 that which they clearly know, but that which they cannot 
 know shall be reserved for Divine judgment. Whom God 
 hath kept for his own judgment may not be condemned by 
 human means. 'Therefore judge nothing before the time, 
 until the Lord come, who both will bring to light the hidden 
 things of darkness, and will make manifest the counsels of 
 the hearts.' m (1 Cor. iv. 5.) 
 
 With but one exception, the earliest records of the human 
 race bear witness to the existence of the superstition thus 
 dignified with the forms of Christian faith, and this excep- 
 tion, as might be anticipated, is furnished by China. Her 
 strange civilization presents itself, in the Sacred Books 
 collected by Confucius five hundred years before the Chris- 
 tian era, in nearly the same form as it exists to this day, 
 guided by a religion destitute of life, and consisting of a 
 system of cold morality, which avoids the virtues as well 
 
 1 "Inambiguis, Dei judicio reservetur sententia. Quod certe agnoseunt 
 suo, quod nesciunt divino reservent judicio. Quoniam non potest humano 
 condemnari examine quern Deus suo judicio reservavit. Incerta narnque 
 non debemus judicare quoadusque veniat Dominus, qui latentia producet in 
 lucem, et inluminabit abscondita tenebrarum, et manifestabit consilia cor- 
 diuui.'' Capit. Lib. vu. cap. 259. 
 
CHINA INDIA. 177 
 
 ms the errors of more Imaginative and generous (kith. In 
 the most revered and authoritative of the Chinese scrip- 
 tares, the Chou-Kingi or Holy Book, of which the origin 
 is lost in fabulous antiquity, we find a theo-philosophy 
 recognizing a Supreme Power (Tai-Ki) or Beaven, which 
 is pure reason, or the embodiment of the laws and forces 
 of Nature, acting under the pressure of blind destiny. 
 Trace back the Chinese belief as far as we may, we cannot 
 gel behind this refined and philosophical scepticism. The 
 flowery kingdom starts from the night of Chaos intellec- 
 tually full-grown, like Minerva, and from first to last there 
 is no semblance of a creed which would admit of the direct 
 practical intervention of a higher power. The fullest ad- 
 mission which this prudent reserve will allow is expressed 
 by the legislator Mou-Vang (about 1000 B. C.) in his in- 
 structions to his judges in criminal cases: "Say not that 
 Heaven is unjust it is that man brings these evils on hi in- 
 self. If it were not that Heaven inflicts these severe pun- 
 ishments, the world would be ungoverned." 1 In the modern 
 penal code of China there is accordingly no allusion to 
 evidence other than that of witnesses, and even oaths are 
 neither required nor admitted in judicial proceedings. 9 
 
 When we turn, however, to the other great source ox 
 Asiatic jurisprudence, whose fantastic intricacy forms so 
 strange a contrast to the coeval sober realism of China, we 
 find in the laws of Manu abundant proof of our general 
 proposition. There is no work of the human intellect 
 which offers so curious a field of speculation to the stu- 
 dent of human nature ; none in which the transitions are 
 so abrupt, or the contradictions so startling, between the 
 most sublime doctrines of spiritual morality, and the 
 grossest forms of puerile superstition ; between elevated 
 precepts of universal justice, and the foulest partialitj- in 
 
 1 Chou-King, Partiv. chap. 27 21 (after Goubil's translation). 
 1 Staunton, Penal Code of China, p. 364. 
 
1T8 THE ORDEAL. 
 
 specific cases. Its very complexity reveals a highly civi- 
 lized state of societ} r , and the customs and observances 
 which it embodies are evidently not innovations on an 
 established order of things, but merely a compilation of 
 regulations and procedures established through previous 
 ages, whose origin is lost in the trackless depths of remote 
 antiquity. When, therefore, we see in the Hindoo code 
 the same strange and unnatural modes of purgation which 
 two thousand years later 1 greet us on the threshold of 
 European civilization, adorned but not concealed by a thin 
 veil of Christianized superstition, the coincidence seems 
 more than accidental. That the same principle should be 
 at work in each, we can account for by the general tenden- 
 cies of the human mind; but that this principle should 
 manifest itself under identical forms in races so far re- 
 moved by time and space, offers a remarkable confirmation 
 of the community of origin of the great Aryan or Indo- 
 Germanic family of mankind. In the following texts, the 
 principal forms of Ordeal prescribed are precisely simi- 
 lar to the most popular of the mediaeval judgments of 
 God: 
 
 "Or, according to the nature of the case, let the judge cause him 
 who is under trial to take fire in his hand, or to plunge in water, or 
 to touch separately the heads of his children and of his wife. 
 
 "Whom the flame burneth not, whom the water rejects not from 
 its depths, whom misfortune overtakes not speedily, his oath shall be 
 received as undoubted. 
 
 " When the Richi Vatsa was accused by his young half-brother, 
 who stigmatized him as the son of a Soudra, he sware 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." 2 
 
 1 Sir William Jones places the composition of the Laws of Manu about 
 880 B. C. More recent investigators, however, have arrived at the conclu- 
 sion, that they are anterior to the Christian era by at least thirteen cen- 
 turies. 
 
 Laws of Manu, Book viii. v. 114-116 (after Delongchamp's translation). 
 
INDIA EGYPT. H9 
 
 That this was not merely a theoretical injunction is 
 shown by a subsequent provision (Book VIII. v. 190), 
 enjoining the ordeal on both plaintiff and defendant, even 
 in certain civil cases. From the immutable character of 
 Eastern institutions, we need not be surprised to see the 
 custom flourishing in India to the present day, and to find 
 that, in the popular estimation, the right of plaintiff or 
 defendant, or the guilt or innocence of the accused is to be 
 tested by his ability to carry red-hot iron, to plunge his 
 hand unhurt in boiling oil, to pass through fire, to remain 
 under water, to swallow consecrated rice, to drink water 
 in which an idol has been immersed, and by various other 
 forms which still preserve their hold on public veneration, 1 
 as many of them did within five or six centuries among 
 our own forefathers. 
 
 The numerous points of resemblance existing between 
 the Indian and Egyptian civilizations, which render it pro- 
 bable that the one was derived from the other, lead us also 
 to presume that these superstitions were common to both 
 races. Detailed evidence, such as we possess in the case 
 of Hindostan, is, however, not to be expected with regard 
 to Egypt, of which the literature has so utterly perished ; 
 but an incident related by Herodotus shows us that the 
 same belief existed in the land of the Pharaohs, in at least 
 one form, and that in judicial proceedings an appeal was 
 occasionally made to some deity, whose response had all the 
 weight of a legal judgment, a direct interposition of the 
 divinity being expected as a matter of course by all parties. 
 King Amasis, whose reign immediately preceded the inva- 
 sion of Cambyses, "is said to have been, even when a 
 
 1 The purrikeh or ordeal is prescribed in the modern Hindoo law in all 
 cases, civil and criminal, which cannot be settled by written or oral evidence 
 or by oath. It is sometimes indicated for the plaintiff and sometimes for the 
 defendant. Qentoo Code, Halhed ? s Translation, chap. iii. 5, 6, 9, 10; 
 chap, xviii. (E. I. Company, London, 1776.) The different forms of ordeal 
 will be found described in Gladwin's Translation of the Ayeen Akbery, or 
 Institutes of the Sultan Akbar, Vol. II. pp. 496 sqq. (London, 1800.) 
 
180 THE ORDEAL. 
 
 private person, fond of drinking and jesting, and by no 
 means inclined to serious business ; and when the means 
 failed him for the indulgence of his appetites, he used to go 
 about pilfering. Such persons as accused him of having 
 their property, on his denying it, used to take him to the 
 oracle of the place, and he was oftentimes convicted by the 
 oracles, and oftentimes acquitted. When, therefore, he had 
 come to the throne, he acted as follows : Whatever gods 
 had absolved him from the charge of theft, of their temples 
 he neither took any heed, nor contributed anything toward 
 their repair ; neither did he frequent them nor offer sacri- 
 fices, considering them of no consequence at all, and as 
 having only lying responses to give. But as many as had 
 convicted him of the charge of theft, to them he paid the 
 highest respect, considering them as truly gods, and deli- 
 vering authentic responses." 1 
 
 A passing allusion only is necessary to the instances, 
 which will readily occur to the Biblical student, in the 
 Hebrew legislation and history. The bitter water by which 
 conjugal infidelity was revealed (Numbers v. 11-31), was 
 an ordeal pure and simple, as were likewise the special 
 cases of determining criminals by lot, such as that of Achan 
 (Joshua vii. 16-18) and of Jonathan (I Samuel xiv. 41, 42), 
 precedents which were duly put forward by the monkish 
 defenders of the practice, when battling against the efforts 
 of the Papacy to abolish it. 
 
 Looking to the farthest East, we find the belief in full 
 force in Japan. Fire is there considered, as in India, to be 
 the touchstone of innocence, 3 and other superstitions, less 
 dignified, have equal currency. The goo, a paper inscribed 
 with certain cabalistic characters, and rolled up into a 
 bolus, when swallowed by an accused person, is believed 
 to afford him no internal rest, if guilty, until he is relieved 
 
 1 Euterpe, 174 (Cary's translation). 
 
 2 Kb'nigswarter, Etudes Historiques sur le Developpeinent de la Societc 
 Huuiaine, p. 203. 
 
.TAP AN TIIIIIET T II K QUEBBES. 181 
 
 by confession ; and :i beverage of water in which t lie goo 
 has been Boaked is attended with like happy effects. 1 The 
 Immobility of Japanese customs authorizes us to con- 
 clude that these practices have been observed from time 
 immemorial. 1 
 
 In Pegu, the same ordeals are employed as in India, and 
 Java and Malacca are equally well supplied. 3 Thibetan 
 justice has a custom of its own, which is literally even- 
 handed, and which, if generally used, must exert a powerful 
 influence in repressing litigation. Both plaintiff and de- 
 fendant thrust their arms into a caldron of boiling water 
 containing a black and a white stone, victory being assigned 
 to the one who succeeds in obtaining the white. 4 
 
 Among the crowd of fantastic legends concerning Zoro- 
 aster is one which, from its resemblance to the ordeal of 
 fire, may be regarded as indicating a tendency to the same 
 form of superstition among the Guebres. They relate that, 
 when an infant, he was seized by the magicians, who pre- 
 dicted his future supremacy over them, and was thrown 
 upon a blazing fire. The pure element refused to perform 
 its office, and was changed into a bath of rose-water for 
 the wonderful child. 5 
 
 1 Collin de Plancy, Dictionnaire Infernal, pp. 255 and 305. 
 
 - The preservation of the status in quo is amply provided for in Japan. 
 Any functionary of the government, however exalted, who attempts an inno- 
 vation, is forthwith reported to headquarters and capitally sentenced. Even 
 in the supreme council, a member who proposes an alteration in the existing 
 state of affairs loses his life if it is not adopted ; while, on the other hand, 
 the Ziogoon or Emperor is put to death if he rejects such an alteration after 
 it has passed the council, on his rejection being disapproved by an interior 
 committee, consisting of his relatives. If his action be sustained by this com- 
 mittee, then all who voted for the unsuccessful measure in the supreme 
 council are liable to the same fate. (Perry's Japan Expedition, I. 16, 17.) 
 Under these regulations, existing institutions may be regarded as almost 
 imperishable. 
 
 3 Konigswarter, op. cit. p. 202. 
 
 * Duclos, Mem. sur les Epreuves. 
 
 1 Collin de Plancy, op. cit. p. 555. 
 
 16 
 
182 THE ORDEAL. 
 
 To some extent, the Moslems are an exception to the 
 general rule ; and this may be attributed to the doctrine of 
 predestination which forms the basis of their creed, as well 
 as to the elevated ideas of the Supreme Being which Ma- 
 homet drew from the Bible, and which are so greatly in 
 advance of all the Pagan forms of belief. There is accord- 
 ingly no authority in the Koran for any description of 
 ordeal; but yet it is occasionally found among the true 
 believers. Among some tribes of Arabs, for instance, the 
 ordeal of red-hot iron appears in the shape of a gigantic 
 spoon, to which, when duly heated, the accused applies his 
 tongue, his guilt or innocence being apparent from his 
 undergoing or escaping injury. 1 The tendency of the mind 
 towards superstitions of this nature, in spite of the opposite 
 teaching of religious dogmas, is likewise shown by a species 
 of divination employed among the Turks, through which 
 thieves are discovered by observing the marks on wax 
 slowly melted while certain cabalistic sentences are repeated 
 over it. 3 
 
 Somewhat similar is a custom prevalent in Tahiti, where 
 in cases of theft, when the priest is applied to for the dis- 
 covery of the criminal, he digs a hole in the clay floor of 
 the house, fills it with water, and, invoking his god, stands 
 over it with a young plantain in his hand. The god to 
 whom he prays is supposed to conduct the spirit of the 
 thief over the water, and the priest recognizes the image by 
 looking in the pool. 3 
 
 The gross and clumsy superstitions of Africa have this 
 element in common with the more refined religions of other 
 races, modified only in its externals. Thus, among the 
 Kalabarese, various ordeals are in use, of a character which 
 reveals the rude nature of the savage. The " afia-edet-ibom" 
 is administered with the curved fang of a snake, which is 
 
 1 Konigswarter, op. cit. p. 203. 
 
 2 Collin de Plancy, s. v. Ceromancie. 
 
 3 Ellis, Polynesian Researches, Vol. I. chap. 14. 
 
AFRICAN SUPERSTITIONS. 183 
 
 cunningly Inserted under the Lid and round the ball of the 
 defendant's e3*e; if innocent, he is expected to eject it by 
 rolling the eye, while, If unable to perform this feat, it is 
 removed with a leopard's tooth, and he is condemned. The 
 ceremony of the " afia-ibnot-idiok" is even more childish. 
 A wliite and a black line are drawn on the skull of a chim- 
 panzee, which is then held up before the accused, when an 
 apparent attraction of the white line towards him indicates 
 his innocence, or an inclination of the black towards him 
 pronounces his guilt. The use of the ordeal-nut is more 
 formidable, as it contains an active principle which is a 
 deadly poison, manifesting its effects by frothing at the 
 mouth, convulsions, paralysis, and speedy death. In capi- 
 tal cases, or even when sickness is attributed to unfriendly 
 machinations, the "abiadiong," or sorcerer, decides who 
 shall undergo the trial, and as the poisonous properties of 
 the nut can be eliminated by preliminary boiling, liberality 
 on the part of the accused is supposed to be an unfailing 
 mode of rendering the ordeal harmless. 1 
 
 The ordeal of red water, or infusion of " sassy bark," also 
 prevails throughout a wide region in Western Africa. As 
 described by Dr. Winterbottom, it is administered in the 
 neighborhood of Sierra Leone, by requiring the accused to 
 fast for the previous twelve hours, and to swallow a small 
 quantity of rice previous to the trial. The infusion is 
 then 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 con- 
 demned. It has narcotic properties also, a manifestation 
 of which is likewise fatal to the sufferer. Among some of 
 the tribes this is determined, as described by the Rev. Mr. 
 Wilson, by placing small sticks on the ground at distances 
 of about eighteen inches apart, among which the patient is 
 
 1 Hutchinson's Impressions of Western Africa. London, 1858. 
 
184 THE ORDEAL. 
 
 required to walk, a task rendered difficult by the vertigi- 
 nous effects of the poison. Although death not infre- 
 quently results from the ordeal itself, without the subse- 
 quent punishment, 3 T et the faith reposed in these trials is 
 well expressed by Dr. Livingstone, who describes the 
 eagerness with which they are demanded by those accused 
 of witchcraft, confiding in their innocence, and believing 
 that the guilty alone can suffer. When the emetic effects 
 are depended on, the popular explanation is that the fetish 
 enters with the draught, examines the heart of the accused, 
 and, in cases of innocence, returns with the rice as evi- 
 dence. 1 
 
 In Madagascar, the ordeal is administered with the nut 
 of the Tangena, the decoction of which is a deadly poison. 
 In the persecution of the Malagasy Christians, in 1836, 
 many of the converts were tried in this manner, and num- 
 bers of them died. It was repeated with the same effect in 
 the persecution of 1849. 3 
 
 Although the classical nations of antiquity were not in 
 the habit of employing ordeals as a judicial process, during 
 the periods in which their laws have become known to us, 
 still there is sufficient evidence that a belief in their efficacy 
 existed before philosophical skepticism had reduced religion 
 to a system of hollow observances. The various modes of 
 divination by oracles and omens, which occupy so promi- 
 nent a position in history, manifest a kindred tendency of 
 mind, in demanding of the gods a continual interference in 
 human affairs, at the call of any suppliant, and we are 
 therefore prepared to recognize among the Greeks the 
 relics of pre-existing judicial ordeals in various forms of 
 solemn oaths, by which, under impressive ceremonies, 
 actions were occasionally terminated, the party swearing 
 
 1 See an elaborate " Examination of the Toxicological Effects of Sassy- 
 Bark," by Drs. Mitchell and Hammond, Proceedings of the Biological Dep. 
 of the Acad, of Nat. Sciences, Philadelphia, 1859. 
 
 - Ellis's Three Visits to Madagascar, chap. i. vi. 
 
GtBISOE. l#8 
 
 being obliged to take the oath on the heads of his children 
 
 (xata t-wi/ nou'6w), with curses <n himself and his family 
 (xar JJwXuaf), or passing through lire (5ia tov rtvpo?)- 1 The 
 secret meaning of these rites becomes fully elucidated <>u 
 comparing them with a passage from the Antigone of 
 Sophocles, in which, the body of Polynices having been 
 secretly carried off for burial against the commands of 
 Creon, the guard endeavor to repel the accusation of com- 
 plicity by offering to vindicate their innocence in various 
 forms of ordeal, which bear a striking similarity to those 
 in use throughout India, and long afterwards in mediaeval 
 Europe. 
 
 "Ready with hands to bear the red-hot iron, 
 To pass through fire, and hy the gods to swear, 
 That we nor did the deed, nor do we know 
 Who counselled it, nor who performed it." 2 
 
 The water ordeal, which is not alluded to here, may, 
 nevertheless, be considered as having its prototype in seve- 
 ral fountains, which were held to possess special power in 
 cases of suspected female virtue. One at Artecomium, 
 mentioned by Eustathius, became turbid as soon as en- 
 tered by a guilty woman. Another, near Ephesus, alluded 
 to by Achilles Tatius, was even more miraculous. The 
 accused sw r ore to her innocence, and entered the water, 
 bearing suspended to her neck a tablet inscribed with the 
 oath. If she were innocent, the water remained stationary, 
 at the depth of the midleg ; while, if she were guilty, it rose 
 until the tablet floated. Somewhat similar to this was the 
 Lake of Palica in Sicily, commemorated by Stephanas 
 Byzantinus, where the party inscribed his oath on a tablet, 
 
 1 Smith, Diet. Greek and Roman Antiq. s. v. Martyria. 
 
 KAl TTvp foifTTUV, JCJU 6jif lpX.dOUO t7v, 
 
 to fxvnt fpantt, y.miT(f> Puvtrf'tvcu 
 
 tb vrpaJfA*. !?cukij7etvTi, /j.yit'' U/ytWfUW. 
 
 Antigone, ver. 2G4 2G7. 
 1G* 
 
1S6 THE ORDEAL. 
 
 and committed it to the water, when if the oath were true 
 it floated, and if false it sank. 1 
 
 The Roman nature, sterner and less impressible than the 
 Greek, offers less evidence of weakness in this respect ; but 
 traces of it are nevertheless to be found. The mediaeval 
 corsnaed, or ordeal of bread, finds a prototype in a species 
 of alphitomancy practised near Lavinium, where a sacred 
 serpent was kept in a cave under priestly care. Women 
 whose virtue was impeached offered to the animal cakes 
 made by themselves, of barley and honey, and were con- 
 demned or acquitted according as the cakes were eaten or 
 rejected. 3 The fabled powers of the settles, or eagle-stone, 
 mentioned by Dioscorides, 3 likewise remind us of the 
 corsnaed, as. bread in which it was placed, or food with 
 which it was cooked, became a sure test for thieves, from 
 their being unable to swallow it. Special instances of 
 miraculous interposition to save the innocent from unjust 
 condemnation may also be quoted as manifesting the same 
 general tendency of belief. Such was the case of the vestal 
 Tucca, accused of incest, who demonstrated her purity by 
 carrying water in a sieve, 4 and that of Claudia Quinta, 
 who, under a similar charge, made good her defence by 
 dragging a ship against the current of the Tiber, after it 
 had run aground, and had resisted all other efforts to move 
 it. 5 As somewhat connected with the same ideas, we may 
 
 1 Eustathii de Amor. Ismenii, Lib. vn., xi. ; Achill. Tatii de Amor. 
 Clitoph. Lib. vm. ; Stepb. Byzant. s. v. no.xiy.ri (apud Spelman, Gloss, p. 
 324). Superstitions of this nature have obtained in all ages, and these par- 
 ticular instances find their special modern counterpart in the fountain of 
 Bodilis, near Landivisiau in Britanny, in which a girl when accused places 
 the pin of her collar, her innocence or guilt being demonstrated by its float- 
 ing or sinking. 
 
 2 Collin de Plancy, op. cit. p. 31. 
 
 3 Lib. v. cap. 161 (ap. Lindenbrog.). 
 
 4 Valer. Maxim. Lib. vm. cap. 1. 
 
 5 "Supplicie, alma, tuae, genetrix foecunda Deorum, 
 Accipe sub certa conditione preces. 
 
aoMi. \xl 
 
 Allude to llic imprecations accompanying the most solemn 
 form <>r oath among the Romans, known aci w Jovem 
 lapidem jurare," 1 whether we take Ike ceremony, men- 
 tioned by Festus, of casting a stone from the hand, and 
 Invoking Jupiter to reject in like manner the swearer if 
 guilty of perjury, or that described by Livy as preceding 
 the combat between the Horatii and Curiatii, in which an 
 animal was knocked on the head with a stone, under a 
 somewhat similar adjuration. 9 There is no trace of the 
 system, however, in the Roman jurisprudence, which, with 
 the exception of the use of torture at the later periods, is 
 totally in opposition to its theory. Nothing can be mope 
 contrary to the spirit in which the ordeal is conceived than 
 the maxim of the civil law "Accusatore non probante, 
 reus absolvitor." 
 
 In turning to the Barbarian races from which the nations 
 of modern Europe are descended, we are met by the ques- 
 tion, which has been variously mooted, whether the ordeals 
 that form so prominent a part of their jurisprudence were 
 customs derived from remote Pagan antiquity, or whether 
 they were inventions of the priests in the early periods of 
 
 Casta negor ; si tu damnas, meruisse fatebor. 
 
 Morte luam poenas, judice victa Dea. 
 Sed si crimen abest, tu nostrae pignora vita) 
 
 Re dabis ; et castas casta sequere manus. 
 Dixit, et exiguo funem conanrine traxit," etc. 
 
 Ovid. Fastorum Lib. iv. 1. 305 sqq. 
 
 This invocation to the goddess to absolve or condemn, and the manner in 
 which the entire responsibility is thrown upon the supernal judge, give the 
 whole transaction a striking resemblance to an established judicial form of 
 ordeal. 
 
 1 Quod sanctissimum jusjurandum est habitum. (Aulus Gellius, i. 21.) 
 3 "Si sciens fallo, turn me Diespiter salva urbe arceque bonis ejiciat, ut 
 ego hunc lapidem." (Festus, Lib. x. ; Livy, I. 24.) If we can receive as 
 undoubted Livy's account of a similar ceremony performed by Hannibal to 
 encourage his soldiers before the battle of Ticinus (Lib. xxi. cap. 45), we 
 must conclude that the custom hnd obtained a very extended influence. 
 
188 THE ORDEAL. 
 
 rude Christianity, to enhance their own authority, and to 
 lead their reluctant flocks to peace and order under the in- 
 fluence of superstition. There would seem to be no doubt 
 that the former is the correct opinion, and that the religious 
 ceremonies surrounding the ordeal, as we find it judicially 
 employed, were introduced by the Church to Christianize 
 the Pagan observances, which in this instance, as in so 
 many others, it was judged impolitic, if not impossible, to 
 eradicate. Yarious traces of such institutions are faintly 
 discernible in the darkness from which the wild tribes 
 emerge into the twilight of history ; and, as they had no 
 written language, it is impossible to ask more. 1 Thus an 
 
 1 There has heen much discussion among the learned as to whether the 
 barbarian dialects were written, and especially whether the Salique Law was 
 reduced to writing before its translation into Latin. In the dearth of testi- 
 mony, it is not easy to arrive at a positive conclusion, but the weight of 
 evidence decidedly inclines to the negative of the question. Had the Sa- 
 lique Law been written, it would not have been left for Charlemagne, three 
 hundred years later, to put into writing the heroic poems of his race, which 
 form so important a portion of the literature of a barbaric and warlike 
 people. " Barbara et antiquissima carmina, quibus veterum regum acta et 
 bella canebantur, et scripsisse et memoriae mandasse. Inchoavit et gram- 
 maticam patriae sermonis." (Eginh. Vit. Carol. Mag. cap. xxix.) Even 
 Charlemagne, with all his culture, could not write, and when, in advanced 
 life, he sought to learn the art, it was too late (Ibid. cap. xxv.) which 
 shows how little the wild Saliens and Ripuarians could have thought of 
 converting their language into written characters. Charlemagne's efforts 
 accomplished nothing, for though in 842 the contemporary Count Nithard 
 gives us the earliest specimen of written Tudesque in the celebrated oath of 
 Charles-le-Chauveat Strasburg, yet, not long afterwards, Otfrid, in the preface 
 to his version of the Gospels, details the difficulties of his task in a manner 
 which shows that it was without precedent, and that he was himself obliged to 
 adapt the language to the exigencies of writing. Indeed, he asserts positively 
 that writing was not used and that no written documents existed, and he 
 expresses surprise that the annals of the race should have been entrusted 
 exclusively to foreign tongues. " Hujus enim linguae barbaries ut est inculta 
 et indisciplinabilis, atque insueta capi regulari fraeno grammaticae artis, sic 
 etiam in multis dictis scriptu est propter literarum aut congeriem aut incog- 
 nitam sonoritatem difficilis. Nam, interdum tria nuu, ut puto, quaerit in 
 sono, priores duo consonantes, ut mihi videtur, tertium vocali sono manente. 
 Interdum vero nee a nee e nee i nee u vocalium sonos praecanere potui, ibi 
 
THE BARBARIANS. 189 
 
 anonymous epigram proseiTod m the Grreek Anthology 
 Informs us of a singular custom cxi^t Ing in i he Rhine-land, 
 anterior to the conrersioE of the inhabitants) by which the 
 legitimacy of children was established by exposure to an 
 rdeaJ of the purest chance, 
 
 apsax/ot KfXfot rtotaficp %7]\r t fiovt. Pjicj, x. t. X. 1 
 
 " 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 hreathed 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-judgiug stream the infant save, 
 
 y Gracum mihi videbatur adscribi etc. . . Lingua enim haec agrestis habe- 
 tur ; dum a propriis nee scriptura, nee arte aliqua ullis est temporibus expo- 
 lita, quippe qui nee historias suorum antecessorum, ut multae gentes caeterae, 
 commendant memoriae, nee eorum gesta vel vitam ornant dignitatis amore. 
 Quodsi raro contigit, aliarum gentium lingua, id est, Latinorum vel Graeco- 
 rum potius explanant. . . . Res mira . . . cuncta haec in alien ae lingua? gloriam 
 transferre, et usiim scriptures in propria lingua noil Jiabere " (Otfrid. Liut- 
 berto Mogunt. in Schilt. Thesaur. Antiq. Teuton. I. 10-11.) Otfrid's par- 
 tiality for his native tongue is sufficiently proved by his labors as a translator, 
 and the scope of his general learning is shown by his references to Greek and 
 Hebrew, and his quotations from the Latin poets, such as Virgil, Ovid, and 
 Lucan. His testimony is therefore irreproachable. 
 
 It is true that the Gothic language was employed in writing by Ulphilas in 
 the fourth century, and that the Malbergian glosses in Herold : s text of the 
 Saliqne law preserve some fragmentary words of the ancient Frankish 
 speech. It is also true that on doubtful authority there has been high an- 
 tiquity claimed for the Scandinavian runio letters, but the balance of testi- 
 mony is decidedly in favor of the opinion that the Germanic tribes were 
 innocent of any rudiments of a written language. 
 
 ' Anthol. Lib. ix. Ep. 125. This charming trait of Celtic domestic man- 
 ners has been called in question by some writers, but it rests on good 
 authority. Claudian evidently alludes to it as a well-known fact in the lines 
 
 "Galli 
 
 Quos Rhodanus velox, Araris quos tardior ambit, 
 
 Et quos nascentes explorat gurgite Rhenus.'' In Rufinura, Lib. n 1. 110. 
 
190 THE ORDEAL. 
 
 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 water's reckless swell." 
 
 We learn from Cassiodorus that Theodoric, towards the 
 close of the fifth century, sought to abolish the battle ordeal 
 among the Ostrogoths, whence we may conclude that the 
 appeal to the judgment of God was an ancestral custom 
 of the race. 1 At an even earlier period, the Senchus Mor, 
 or Irish law, compiled for the Brehons at the request of 
 St. Patrick, contains unequivocal evidence of the existence 
 of the ordeal, in a provision which grants a delay of ten 
 days to a man condemned to undergo the test of hot 
 water. 8 Equally convincing proof is found in the Salique 
 Law, of which the earliest known text may safely be as- 
 sumed to be coeval with the conversion of Clovis, as it 
 contains no allusion to Christian rules such as appear in 
 
 1 Variarum. Lib. in. Epist. 23, 24. 
 
 a Senchus Mor I. 195. Compare Gloss, p. 199. In an ancient Gloss on 
 the Senchus, there is preserved a curious tradition which illustrates the 
 belief in divine interposition, though manifested upon the judge and not on 
 the culprit. 
 
 " However, before the coming of Patrick there had been remarkable reve- 
 lations. When the Brehons deviated from the truth of nature, there appeared 
 blotches upon their cheeks ; as first of all on the right cheek of Sen Mac Aige, 
 whenever he pronounced a false judgment, but they disappeared again when- 
 ever he had pronounced a true judgment, &c. 
 
 ** Sencha Mac Col Cluin was not wont to pass judgment until he had pon- 
 dered upon it in his breast the night before. When Fachtna, his son, had 
 passed a false judgment, if in the time of fruit, all the fruit in the territory 
 in which it happened fell off in one night, Ac. ; if in time of milk, the cows 
 refused their calves ; but if he passed a true judgment, the fruit was perfect 
 on the trees ; hence he received the name of Fachtna Tulbrethach. 
 
 " Sencha Mac Aillila never pronounced a false judgment without getting 
 three permanent blotches on his face for each judgment. Fithel had the 
 truth of nature, so that he pronounced no false judgment. Morann never 
 pronounced a judgment without having a chain around his neck. When he 
 pronounced a false judgment, the chain tightened around his neck. If he 
 pronounced a true one, it expanded down upon him." Ibid. p. 25. 
 
Til | B A B It A RI ANS. 191 
 
 revisions made somewhat later. In this text, the ordeal of 
 boiling water finds its place as a judicial process in regular 
 use. as fully as in the subsequent revisions of the code. 1 
 In the Decree of Tassilo, Duke of the Baioarians, issued 
 in 7T2, there is a reference to a pre-existing custom, named 
 Stapfsaken^ used in cases of disputed debt, which is de- 
 nounced as a relic of Pagan rites, " in verbis quibus ex 
 vet usta consuetudine paganorum, idolatriam reperimus," 
 and which is there altered to suit the new order of ideas, 
 affording an instructive example of the process to which 
 1 have alluded. It is evidently a kind of ordeal, as is 
 manifested by the expression, "Let us stretch forth our 
 right hands to the just judgment of God." a These proofs 
 would seem amply sufficient to demonstrate the existence 
 of the practice as a primitive custom of some of the Barba- 
 rian races, prior to their occupation of the Roman empire. 
 If more be required, it must be remembered that the records 
 of those wild tribes do not extend beyond the period of 
 their permanent settlement, when baptism and civilization 
 fere received together, so that we cannot reasonably ask 
 for codes and annals at a time when each sept was rather 
 a tumultuous horde of freebooters than a people living 
 under a settled form of organized society. Tacitus, it is 
 true, makes no mention of anything approaching nearer 
 to the Judgment of God than the various forms of rude 
 divination common to all superstitious savages. It is 
 highly probable that to many tribes the ordeal was un- 
 known, and that it had nowhere assumed the authority 
 which it afterwards acquired, when the Church found in 
 it a powerful instrument to enforce her authority, and to 
 acquire influence over the rugged nature of her indocile 
 converts. 3 Indeed, we have evidence that in some cases it 
 
 1 Tit. liii. lvi. (First Text of Pardessus.) 
 
 3 " Extendamus dextera nostra ad justum judicium Dei." Decret. Tassi- 
 lonis Tit. ii. 7. 
 
 3 Thus, in the laws of St. Stephen, King of Hungary, promulgated soon 
 
192 THE ORDEAL. 
 
 was introduced, and its employment enforced, for the pur- 
 pose of eradicating earlier Pagan observances ; as, for 
 instance, when Bishop Geroldus, about the middle of the 
 twelfth century, converted the Sclavonians of Mecklem- 
 burg. 1 
 
 Be this as it may, the custom was not long in extending 
 itself throughout Europe. The laws of the Salien Franks 
 we have already alluded to, and the annals of Gregory of 
 Tours and of Fredegarius, the Merovingian Capitularies, 
 and the various collections of Formularies, show that it 
 was not merely a theoretical prescription, but an every-day 
 practice among them. The Ripuarian Franks were some- 
 what more cautious, and the few references to its employ- 
 ment which occur in their code would seem to confine its 
 application to slaves and strangers. 8 The code of the Ala- 
 manni makes no allusion to any form except that of the 
 "tracta spata," or judicial duel. The code of the Baioa- 
 rians, in its original shape, while referring constantly to the 
 combat, seems ignorant of any other mode. The supple- 
 mentary Decree of Tassilo, however, affords an instance, 
 quoted above, and another which seems to show that force 
 was sometimes necessary to carry out the decision to em- 
 ploy it. 3 The Wisigoths, who, like their kinsmen the Ostro- 
 goths, immediately on their settlement adapted themselves 
 in a great degree to Roman laws and customs, for nearly 
 two centuries had no allusion in their body of laws to any 
 form of ordeal. It was not until 693, long after the destruc- 
 
 after his conversion, in 1016, there is no allusion to the ordeal, while in 
 those of King Coloman, issued about a century later, it is freely directed as 
 a means of legal proof. 
 
 1 "Et vetavit Comes ne Sclavi de cetero jurarent in arboribus, fontibus, 
 et lapidibus ; sed offerrent crirainibus pulsatos sacerdoti, ferro ac vomeribus 
 examinandos." Anon. Chron. Sclavic. cap. xxv. (Script. Iter. German. 
 Septent. Lindenbrog. p. 215.) 
 
 L. Ripuar. Tit. xxx. 1, 2; Tit. xxxi. 5. 
 
 3 " Ut liberi ad eadem cogantur judicia quae Baioarii 
 
 TJrtella dicunt." Decret. Tassilon. Tit. ii. 9. 
 
THE BARBARIANS. 193 
 
 tion of their independence in the South of France, and but 
 little prior to their overthrow in Spain by the Saracens, 
 that their king, Bgiza, with the sanction of the Council of 
 Toledo, issued an edict commandi ng the employme nt of t In* 
 
 teneum, or ordeal of boiling water. The expressions of the 
 law, however, warrant the conclusion, that this was only 
 the extension of a custom previously existing, by removing 
 the restrictions whichhad prevented its application to all 
 questions, irrespective of their importance. 1 The Burgun- 
 dian code refers more particularly to the duel, which was 
 the favorite form of ordeal with that race, but from the 
 writings of St. Agobard we may safety assume that the 
 trials by hot water and by iron were in frequent use. The 
 primitive Saxon jurisprudence also prefers the battle ordeal ; 
 but the other kinds are met with in the codes of the Frisians 3 
 and of the Thuringians. 3 The earliest Lombard law, as 
 compiled by Rotharis, refers only to the wager of battle ; 
 but the additions of Liutprand, made in the eighth centuiy, 
 allude to the employment of the hot-water ordeal .as a 
 recognized procedure. 4 In England, the Britons appear to 
 have regarded the ordeal with much favor, as a treaty 
 between the Welsh and the Saxons, about the year 1000, 
 provides that all questions between individuals of the two 
 races should be settled in this manner, in the absence of a 
 special agreement between the parties. 5 The Anglo-Saxons 
 seem to have been somewhat late in adopting it ; for the 
 
 1 "Multas cognovimus querelas, et ab ingenuis multamala pati, credentes 
 in ccc. solidis quajstionem agitari. Quod nos modo per salubrem ordina- 
 tionera censemus, ut quamvis parva sit actio rei facti ab aliquocriminis, eum 
 per examinationem aquae ferventis a judice distringendum ordinamus." L. 
 Wisigoth. Lib. vi. Tit. i. 3. 
 
 2 L. Frision. Tit. iii. 4, 5, 6. 
 
 3 L. Anglior. et Werinor. Tit. xiv. 
 
 4 L. Longobard. Lib. I. Tit. xxxiii. 1. 
 
 * "Non sit alia lada (t. e. purgatio) de tyhla (i. e. compellatione) nisi orda- 
 liuni, inter Walos et Anglos." Senatus-Oonsult. de Monticolis Waliae cap. 
 ii. 
 
 17 
 
194 THE ORDEAL. 
 
 dooms of the earlier princes refer exclusively to the refuta- 
 tion of accusations by oath with compurgators, and we 
 find no allusion made to the ordeal until the time of Ed- 
 ward the Elder, at the commencement of the tenth century, 
 that allusion, however, being of a nature to show that it 
 was then a settled custom, and not an innovation. 1 Among 
 the northern races it was probably indigenous, the earliest 
 records of Iceland, Denmark, and ^Sweden exhibiting its 
 vigorous existence at a period anterior to their conversion 
 to Christianity ; a and the same may be said of the Scla- 
 vonic tribes in Eastern Europe. In Bohemia, the laws of 
 Brzetislas, promulgated in 1039, make no allusion to any 
 other form of evidence in contested cases, 3 while it was 
 likewise in force to the farthest confines of Russia. 4 The 
 Majjars placed equal reliance on this mode of proof, as is 
 shown by the statutes of King Ladislas and Coloman, 
 towards the end of the eleventh century, which allude to 
 various forms of ordeal as in common use. 5 Scotland like- 
 wise employed it in her jurisprudence, as developed in the 
 code known as " Regiam Majestatem Scotise," attributed 
 to David I., in the first half of the twelfth century. 6 Even 
 the Byzantine civilization became contaminated with the 
 prevailing custom, and various instances of its use are 
 related by the historians of the Lower Empire, to a period 
 as late as the middle of the fourteenth century. 
 
 One cause of the general prevalence of the ordeal among 
 the barbarian tribes settled in the Roman provinces may 
 perhaps be traced to the custom, which prevailed univer- 
 sally, of allowing all races to retain their own jurispru- 
 
 1 Dooms of King Edward, cap. iii. ; Laws of Edward and Guthrum, cap. ix. 
 3 Saxo. Grammat. Hist. Danic. Lib. v. ; Widukindi Lib. ill. c. 65. 
 Gragas, Sect. vi. c. 55. 
 
 3 Similiter de his qui homicidiis infamantur .... si negant, ignito ferro 
 sive adjurata aqua examinentur. Annalista Saxo, ann. 1039. 
 
 4 Konigswarter, op. cit. pp. 211, 224. 
 
 8 Batthyani Legg. Eccles. Hung. T. L, p. 439, 454. 
 For instance, Lib. iv. cap. iii. 4. 
 
PURGATORIAL <>ATIIS. Lftfl 
 
 dence, however socially Intermingled the Individuals might 
 be* The confusion thus produced is well set forth by St. 
 Agobanl. when lie remarks that frequently five men shall 
 be in close companionship, each owning obedience to a 
 different law. 1 He further states, that, under the Bur<z;iin- 
 dian rules of procedure, no one was admitted to bear wit- 
 ness against a man of different race ; 8 so that in a large 
 proportion of cases there could be no legal evidence attain- 
 able, and recourse was had of necessity to the judgment of 
 God. No doubt a similar tendency existed generally, and 
 the man who appealed to Heaven against the positive testi- 
 mony of witnesses of different origin, would be very apt to 
 find the court disposed to grant his request. 
 
 During the full fervor of the belief that the Divine inter- 
 position could at all times be had for the asking, almost 
 any form of procedure, conducted under priestly obser- 
 vances, could assume the position and influence of an 
 ordeal. As early as 592, we find Gregory the Great allud- 
 ing to a simple purgatorial oath, taken by a Bishop on 
 the relics of St. Peter, in terms which convey evidently 
 the idea that the accused, if guilty, had exposed himself to 
 imminent danger, and that by performing the ceremony 
 unharmed he had sufficiently proved his innocence." But 
 such unsubstantial refinements were not sufficient for the 
 vulgar, who craved the evidence of their senses, and 
 desired material proof to rebut material accusations. In 
 ordinary practice, therefore, the principal modes by which 
 the will of Heaven was ascertained were the ordeal of fire, 
 
 1 "Nam plerunque contingit ut simul eant aut sedeant quinque homines, 
 et nullus eorum communem legem cum altero habeat." Lib. adv. Legem 
 Gundobadi, cap. iv. 
 
 3 "Ex qua re oritur res valde absurda, ut si aliquis eorum in coetu populi, 
 aut etiam in mercato publico commiserat aliquam pravitatem, non coar- 
 guatur testibus." Ibid. cap. vi. 
 
 3 "Quibus (sacramentis) praestitis, magna sumus exultatione gavisi, quod 
 hujuscemodi experimento innocentia ejus evidenter enituit." Can. Ilabet 
 hoc proprium, caus. n. quajst. 5. 
 
196 THE ORDEAL. 
 
 whether administered directly, or through the agency of 
 boiling water or red-hot iron ; that of cold water ; of bread 
 or cheese ; of the Eucharist ; of the cross ; the lot ; and the 
 touching of the body of the victim in cases of murder. 
 Some of these, it will be seen, required a miraculous inter- 
 position to save the accused, others to condemn; some 
 depended altogether on volition, others on the purest 
 chance ; while others, again, derived their power from the 
 influence exerted on the mind of the patient. They were 
 all accompanied with solemn religious observances, and 
 the most impressive ceremonies of the Church were lavishly 
 employed to give authority to the resultant decisions, and 
 to impress on the minds of all the directness of the inter- 
 ference which was expected from the Creator. 
 
 The ordeal of boiling water (aeneum, judicium aquae fer- 
 ventis, cacabus, caldaria) is probably the oldest form in 
 which the application of fire was judicially administered in 
 Europe as a mode of proof. It is the one usually referred 
 to in the most ancient texts of laws, and its universal 
 adoption denotes a very high antiquity. It is particularly 
 recommended by Hincmar as combining the elements of 
 water and of fire: the one representing the deluge the 
 judgment inflicted on the wicked of old ; the other author- 
 ized by the fiery doom of the future the day of judgment. 1 
 A caldron of water was brought to the boiling point, and 
 the accused was obliged wfth 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 
 
 1 Quapropter fieri aquam ignitam ad haec duocopulata in unura indaganda 
 judicia, illud videlicet quod jam per aquam factum est, et illud quod per 
 ignem fiendum est .... in quibus sancti liberantur illoesi, et reprobi puni- 
 entur addicti. Hincmar de Divort. Lothar. Interrog. vi. 
 
 
OR PEAL OF UOTLTNO WATER. 107 
 
 triple ordeal ;' or, again, the stone wm employed, suspended 
 i>v a string, and the severity of the ferial was regnlated 
 
 by the Length of the line, a palm's breadth being counted 
 
 as single, and the distance to the elbow as triple. 9 A good 
 example of the process, in all its details, is furnished us by 
 Gregory <>f 'Pours, who relates that, an Arian priest and 
 a OathoBe deacon disputing about their respective tenets, 
 and being unable to convince each other, the latter pro- 
 posed to refer the subject to the decision of the seneum^ 
 and the offer was accepted. Next morning the deacon's 
 enthusiasm cooled, and he mingled his matins with precau- 
 tions of a less spiritual nature, by bathing his arm in oil, 
 and anointing it with protective unguents. The populace 
 assembled to witness the exhibition, the fire was lighted, 
 the caldron boiled furiously, and a little ring thrown into 
 it was whirled round 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 admiring spectators, he declared that the water felt 
 cold at the bottom, with an agreeable warmth at the top. 
 Fired by the example, the unhappy Arian boldly thrust 
 in his arm ; but the falseness of his cause belied the confi- 
 
 1 Dooms of King JEthelstan, iv. cap. 7. 
 
 3 Adjuratio ferri vel aqua? ferventis (Baluz. II. 655) 
 
 17* 
 
X 
 
 198 THE ORDEAL. 
 
 dence of its rash supporter, and in a moment the flesh was 
 boiled off the bones up to the elbow. 1 
 
 This was a volunteer experiment. As a means of judicial 
 investigation, the process was surrounded with all the solem- 
 nity which the most venerated rites of the Church could 
 impart. Fasting and pra}^er were enjoined for three days 
 previous, and the ceremony commenced with special prayers 
 and adjurations, introduced for the purpose into the litany, 
 and recited by the officiating priests ; mass was celebrated, 
 and the accused was required to partake of the sacrament 
 under the fearful adjuration, "This body and blood of our 
 Lord Jesus Christ be to thee this day a manifestation!" 
 This was followed by an exorcism of the water, of which 
 numerous formulas are on record, varying in detail, but all 
 presenting the quaintest superstition mingled with the most 
 audacious presumption, as though all the powers of the 
 Creator were intrusted to his servant, the whole furnishing 
 a vivid picture of robust faith and self-confident ignorance. 
 A single specimen will suffice. 
 
 " 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, holy water, 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 
 
 1 De Gloria Martyrum Lib. i. cap. 81. Injecta mami, protinus usque ad 
 ipsa ossium intern odia caro liquefacta defluxit. 
 
ORDEAL OP HOT WATIB. 199 
 
 Lord Jesm Christ, who will como, with Um Holy (!liost, to judge with 
 tiif the <iui<k and the (load, and the world ! Ament"! 
 
 After the experiment had taken place, the hand was 
 carefully enveloped in a cloth, sealed with the signet of the 
 judge, and three days afterwards it was unwrapped, when 
 
 the guilt <>r innocence of the party was announced by the 
 condition of the member. 9 
 
 The justification of this mode of procedure by its most 
 able defender, Hincmar, Archbishop of Kheims, is similar 
 in spirit to this form of adjuration. King Lothair, great- 
 grandson of Charlemagne, desiring to get rid of his wile, 
 Te utberga , accused her of the foulest incest, and forced 
 her to a confession, which she afterwards recanted, prov- 
 ing her innocence by undergoing the ordeal of hot water 
 l>v proxy . Lothair, nevertheless, married his concubine, 
 Waldrada, and for ten years the whole of Europe was oc- 
 cupied with the disgusting details of the quarrel, council 
 after council assembling to consider the subject, and the 
 thunders of Rome being freely employed. Hincmar, the 
 most conspicuous ecclesiastic of his day, stood boldly forth 
 in defence of the unhappy queen, and in his treatise " De 
 Divortio Lotharii et Teutbergae," he was led to justify the 
 use of ordeals of all kinds. The species of reasoning which 
 was deemed conclusive in the ninth century may be appre- 
 ciated from his arguments in favor of the aeneum, " Be- 
 cause in boiling water the guilty are scalded and the inno- 
 cent are unhurt, because Lot escaped unharmed from the 
 fire of Sodom, and the future fire which "will precede the 
 terrible Judge will be harmless to the Saints, and will 
 burn the wicked as in the Babylonian furnace of old." J 
 
 1 Formulae Exorcismoruin, Baluz. II. 639 sqq. Various other formu- 
 las are given by Baluze, Spelman, Muratori, and other collectors, all mani- 
 festing the same unconscious irreverence. 
 
 3 Doom concerning hot iron and water (Laws of iEthelstan, Thorpe, I. 
 226) ; Baluze, II. 644. 
 
 3 "Quia in aqua ignita coquuntur culpabiles et innoxii liberantur incocti, 
 quia de igne Sodomitico Lot Justus evasit iuuotus, et futurus ignis qui pnei 
 
 ") 
 
200 TIIE ORDEAL. 
 
 Iii the Life of St. Athelwold is recorded a miracle, which, 
 though not judicial, yet, from its description by a contem- 
 porary, affords an insight into the credulous faith which 
 intrusted the most important interests to decisions of this 
 nature. The holy saint, while Abbot of Abingdon, to test 
 the obedience of Elfstan the cook of the Monastery, ordered 
 him to extract with his hand a piece of meat from the bot- 
 tom of a caldron in which the conventual dinner was boil- 
 ing. 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. 1 
 
 This form of trial was in use among all the races in 
 whose legislation the purgatio vulgaris found place. It is 
 the 011I3' mode alluded to in the Salique Law, from the 
 primitive text to the amended code of Charlemagne. 2 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. 3 In Ice- 
 land, it was employed from the earliest times, 4 and it con- 
 tinued in vogue throughout Europe until the general 
 discredit attached to this mode of judgment led to the 
 gradual abandonment of the ordeal as a legal process. It 
 is among the forms enumerated in the sweeping condemna- 
 tion of the whole system, in 1215, by Innocent III. in the 
 Fourth Council of Lateran ; but even subsequently we find 
 it prescribed in certain cases by the municipal laws in force 
 
 bit terribilem judicem, Sanctis erit innocuus et scelestos aduret, ut olim 
 Babylonica fornax, quaa pueros omnino non contigit." Interrog. vi. 
 
 1 Vit. S. Athelwoldi c. x. (Chron. Abingd. II. 259.) 
 
 "' First Text of Pardessus, Tit. liii., lvi. ; MS. Guelferbyt. Tit. xiv , xvi. ; 
 L. Emend. Tit. lv., lix. 
 
 3 L. Frision. Tit. iii.; L. ^thelredi iv. 6; L. Lombard. Lib. 1. Tit. 
 xxxiii. 1. 
 
 * Gragds, Sect. vi. cap. 55. 
 
ORDEAL OP RED-HOT IRON. 201 
 
 throughout the whole of Northern Bad Southern Germany, 1 
 and as Late as L 282 it la specified in a charter of Gaston 
 of E&arn, conferring <>n a ehoroh the privilege of holding 
 
 ordeals. 8 At a later date, indeed, it was sometimes admin-; 
 istiivd iu a different and more serious form, the accused 
 being expected to swallow the boiling water. I have 
 nut with no instances recorded of this, but repealed allu- 
 sions to it by Kiekius show that it could not have been 
 unusual. 3 
 
 The modern Hindoo variety of this ordeal consists in 
 casting a piece of gold into a vessel of boiling ghee or 
 sesame oil, of a specified size and depth. If the person to 
 be tried can extract it between his finger and thumb, with- 
 out scalding himself, he is pronounced victorious. 4 
 
 The trial by red-hot iron {judicium ferri, juise) was in 
 use from a very early period, and became one of the favorite 
 modes of determining disputed questions. It was admin- 
 istered in two essentially different forms. The one (vomeres 
 igniti, examen pedale) consisted in laying on the ground at 
 certain distances six, nine, or in some cases twelve, red-hot 
 ploughshares, among which the accused walked barefooted, 
 sometimes blindfolded, when it became an ordeal of pure 
 chance, and sometimes compelled to press each iron with 
 his naked feet. 5 The other and more usual form obliged 
 the patient to carry in his hand for a certain distance, 
 usually nine feet, a piece of red-hot iron, the weight of 
 
 ' Jur. Prov. Saxon. Lib. i. Art. 39 ; Jur. Provin. Alaman. cap. xxxvii. 
 $ 15, 16. 
 2 Du Cange. 3 Defens. Probse Aquae Frigid. $ 167, 169, &o. 
 
 * Ayeen Akbery, II. 498. This work was written about the year 1600 by 
 Abulfazel, vizier of the Emperor Akbar. Gladwin's Translation was pub- 
 lished under the auspices of the East India Company in 1800. 
 
 * " Si titubaverit, si singulos vomeres pleno pedenon presserit, si quantu- 
 lumcunque laesa fuerit, sententia proferatur. " Annal. Winton. Eccles. 
 (Du Cange, s. v. Vomeres ) Six is the number of ploughshares specified in 
 the celebrated trial of St. Cunigunda, wife of the Emperor St. Henry II. 
 Mag. Chron. Belgic. 
 
202 THE ORDEAL. 
 
 which was determined by law and varied with the impor- 
 tance of the question at issue or the magnitude of the 
 alleged crime. 1 The hand was then wrapped up and sealed, 
 and three days afterwards the decision was rendered in 
 accordance with its condition. 2 These proceedings were 
 accompanied by the same solemn observances which have 
 been already described, the iron itself was duly exorcised, 
 and the intervention of God was invoked in the name of 
 all the manifestations of Divine clemency or wrath by the 
 agency of fire Shadrach, Meshach, and Abednego, the 
 burning bush of Horeb, the destruction of Sodom, and the 
 day of judgment. 3 
 
 So, in the form ordinarily in use throughout modern 
 India, the patient bathes and performs certain religious 
 ceremonies. After rubbing his hands with rice bran, seven 
 green Peepul leaves are placed on the extended palms and 
 
 1 Thus, among the Anglo-Saxons, in the " simple ordeal" the iron weighed 
 one pound, in the " triple ordeal" three pounds. The latter is prescribed 
 for incendiaries and " morth-slayers" (secret murderers), ^thelstan, iv. 6 ; 
 for false coining, Ethelred, iii. 7; for plotting against the king's life, 
 Ethelred, v. 30, and Cnut, Secular. 58 while at a later period, in the 
 collection known as the Laws of Henry I., we find it extended to cases of 
 theft, robbery, arson, and felonies in general, Cap. lxvi. 9. In Spain, the 
 iron had no definite weight, but was a palm and two fingers in length, with 
 four feet high enough to enable the criminal to lift it conveniently (Fuero 
 de Baeca, ap. Villadiego, Fuero Juzgo, fol. 317). The episcopal benedic- 
 tion was necessary to consecrate the iron to its judicial use. A charter of 
 1082 shows that the Abbey of Fontanelle in Normandy had one of approved 
 sanctity, which, through the ignorance of a monk, was applied to other pur- 
 poses. The Abbot thereupon asked the Archbishop of Rouen to consecrate 
 another, and before he would consent, the institution had to prove its right 
 to administer the ordeal. Du Cange, s. v., Ferr?im candens. 
 
 3 Laws of iEthelstan, iv. 7. Adjuratio ferri vel aquae ferventis, Baluz. 
 II. 656. Fuero de Baeca (ubi sup.) Even in this minute particular we see 
 the mysterious connection between the superstitions of Europe and those of 
 India. In Malabar, the ordeal of red-hot iron was followed by a similar 
 ceremony ; the hand was wrapped up with linen soaked in rice-water, sealed 
 by the king, and opened three days afterward for examination. (Collin de 
 Plancy, op. cit. 228.) 
 
 s For instance, see various forms of exorcism given by Baluze, II. 651-654. 
 Also Dom Gerbert (Patrologiae, T. 138, p. 1127.) 
 
ORDEAL Off RED- HOT I HON. 203 
 
 bound round seven times with raw silk. A red-hot iron of 
 a certain weight is then placed on his hands. :ind with 
 this he has to walk across seven eoneentrie eireles, each 
 with a radius sixteen fingers' hrcadth Larger than the pre- 
 
 eeding. [f this be accomplished without burning the hands, 
 he gains his cause. 1 
 
 Ill the earlier periods, the burning iron was reserved for 
 eases of peculiar atrocity. Thus we find it prescribed by 
 Charlemagne in accusations of parricide; 8 the Council of 
 Kishach in 799 directed its use in cases of sorcery and 
 witchcraft; 3 and among- the Thuringians it was ordered for 
 women suspected of poisoning or otherwise murdering 
 their husbands, 4 a crime visited with peculiar severity in 
 almost all codes. Subsequently, however, it became rat her 
 an aristocratic procedure, as contradistinguished from 
 the water ordeals. This nevertheless was not universal, 
 for both kinds were employed indiscriminately by the 
 Anglo-Saxons, 5 and at a later period throughout Germany ; (i 
 while in the Assises de Jerusalem the hot iron is the only 
 form alluded to as emplo3*ed in the roturier courts; 7 in the 
 laws of Nieuport, granted by Philip of Alsace in 1163 it is 
 prescribed as a plebeian ordeal ; 8 about the same period, in 
 the military laws enacted by Frederic Barbarossa during his 
 second Italian expedition, it appears as a servile ordeal, 9 
 and as early as 888 the Council of Mainz indicates it espe- 
 
 1 Ayeen Akbery, II. 497. 
 
 9 Capit. Carol. Mag. n. Ann. 803, cap. 5. 
 
 a Concil. Risbach. can. ix. (Hartzheim Concil. German. II. 692.) 
 
 4 L. Anglior. et Werinor. Tit. xiv. 
 
 * Laws of jEthelred, iv. 6 where the accuser had the right to select the 
 mode in which the ordeal should be administered. 
 
 c The Jus Provin. Alaman. (Cap. xxxvii. 15, 16; Cap. clxxxvi. 4, 
 6, 7 ; Cap. ccclxxiv.) allows thieves and other malefactors to select the ordeal 
 they prefer. The Jus Provin. Saxon. (Lib. i. Art. 39) affords them in ad- 
 dition the privilege of the duel. 
 
 1 Baisse Court, Cap. 132, 261, 279, 280, etc. 
 
 8 Lesbroussart's Oudegherst, II. 707. 
 
 9 Radevic. de Ileb. Frid. Lib. I. cap. xxvi. 
 
204 THE ORDEAL. 
 
 cially for slaves. 1 Notwithstanding this, we find it to have 
 been the mode usually selected by persons of rank when 
 compelled to throw themselves upon the judgment of God. 
 The Empress Richarda, wife of Charles-le-Gros, accused in 
 88T of adultery with Bishop Liutward, offered to prove her 
 innocence either by the judicial combat or the red-hot iron. 3 
 The tragical tradition of Mary, wife of the Third Otho, 
 contains a similar example, with the somewhat unusual 
 variation of an accuser undergoing an ordeal to prove a 
 charge. The empress, hurried away by a sudden and un- 
 conquerable passion for Amula, Count of Modena, in 996, 
 repeated in all its details the story of Potiphar's wife. The 
 unhappy count, unceremoniously condemned to lose his 
 head, asserted his innocence to his wife, and entreated her 
 to clear his reputation. He was executed, and the countess, 
 seeking an audience of the emperor, disproved the calumny 
 by carrying unharmed the red-hot iron, when Otho, con- 
 vinced of his rashness by this triumphant vindication, 
 immediately repaired his injustice by consigning his empress 
 to the stake. 3 When Edward the Confessor, who entertained 
 a not unreasonable dislike to his mother Emma, listened 
 eagerly to the accusation of her criminal intimacy with 
 
 1 "Si Presbyterum occidit ... si liber est, cum xn. juret ; si autem 
 servus, per XII. vomeres ferventes se expurget." Concil. Mogunt. ann. 847, 
 can. xxiv. That of Tribur, however, in 895, prescribes it for men of rank, 
 "fidelis libertate notabilis." Concil. Tribur. c. xxii. 
 
 2 Regino. ann. 887. Annales Metenses. 
 
 3 Gotfridi Viterbiensis Pars xvn., " De Tertio Othone Imperatore." Siff- 
 ridi Epit. Lib. i. ann. 998. Ricobaldi Hist. Impp. sub Ottone III. The 
 story is not mentioned by any contemporary authorities, and Muratori has 
 well exposed its improbability (Annali d'ltalia, ann. 996) ; although he 
 had on a previous occasion argued in favor of its authenticity (Antiq. Ital. 
 Dissert. 38). In convicting the empress of calumny, the Countess of Modena 
 appeared as an accuser, making good the charge by the ordeal ; but if we 
 look upon her as simply vindicating her husband's character, the case enters 
 into the ordinary course of such affairs. Indeed, among the Anglo-Saxons, 
 there was a special provision by which the friends of an executed criminal 
 might clear his reputation by undergoing the triple ordeal, after depositing 
 pledges, to be forfeited in case of defeat. Etbelred, iii. 6. 
 
ORDEAL 01 ftED-flOT [BON. 205 
 
 Alwyn, Bishop of Winchester, she was condemned t< 
 undergo the ordeal of the burning shares, and walking over 
 them barefooted and unharmed, slu> established beyond per- 
 adventure the falsehood <>f the charge. 1 Robert Curthose, 
 son of \\" i 1 1 i:i in the Conqueror, while in exile daring his 
 youthful rebellion against his father, formed an intimacy 
 with a pretty girL Years afterwards, when he was Duke of 
 Normandy, she presented herself before him with two likely 
 youths, whom she asserted to be pledges of his former affec- 
 tion. Robert was incredulous | but the mother, carrying 
 unhurt the r ed-hot iron, forced him to forego his doubts, 
 and to acknowledge the paternity of the boys, whom lie 
 thenceforth adopted. 4 Indeed this was the legal form of 
 proof in cases of disputed paternity established by the 
 Legislation of Iceland at this period," and in that of Spain 
 a century later.* Remy, Bishop of Dorchester, when ac- 
 oused of treason against William the Conqueror, was cleared 
 
 1 Rapin, Hist. d'Angleterre, I. 123. Giles states (note to William of Mal- 
 mesbury, aim. 1043) that Richard of Devizes is the earliest authority for this 
 story. 
 
 3 Order. Vitalis Lib. x. cap. 13. 3 Gragas, Sect. vi. cap. 45. 
 
 4 " E si alguna dixiere que preriada es dalguno, y el varon no la creyere, 
 prendo fierro caliente ; e si quemada fuere, non sea creyda, mas si sana esca- 
 pare del fierro, de el fijo al padre, e criel assi como fuero es." Fuero de 
 Baeca (Villadiego, Fuero Juzgo, fol. 317 a). 
 
 An important question of the same kind was settled in the tenth century 
 by a direct appeal to Heaven, through which the rights of Ugo, Marquis 
 of Tuscany, were determined. His father Uberto, incurring the enmity of 
 Otho the Great, fled to Pannonia, whence returning after a long exile, 
 he found his wife Willa with a boy, whom he refused to acknowledge. 
 After much parleying, the delicate question was thus settled : A large 
 assembly, principally of ecclesiastics, was convened ; Uberto sat undistin- 
 guished among the crowd ; the boy, who had never seen him, was placed in 
 the centre, and prayers were offered by all present that be should be led by 
 Divine instinct to his father. Either the prayers were answered, or his 
 training had been good, for he singled out Uberto without hesitation, and 
 rushed to his arms ; the cautious parent could indulge no longer in unworthy 
 doubts, and Ugo became the most powerful prince of Italy (Pet. Damian. 
 Opusc. lvii. Diss. ii. c. 3, 4). 
 18 
 
206 THE ORDEAL. 
 
 by the devotion of a follower, who underwent the ordeal 
 of hot iron. 1 In 1143 Henry I., Archbishop of Mainz, ordered 
 its employment, and administered it himself, in a contro- 
 versy between the Abbey of Gerode and the Counts of 
 Hirschberg. In the special charter issued to the abbey 
 attesting the decision of the trial, it is recorded that the 
 hand of the ecclesiastical champion was not only uninjured 
 by the fiery metal, but was positively benefited by it. 3 
 About the same period, Centulla IV. of Beam caused it to 
 be employed in a dispute with the Bishop of Lescar concern- 
 ing the fine paid for the murder of a priest, the ecclesiastic, 
 as usual, being victorious. 3 But perhaps the instance of 
 this ordeal most notable in its results was that by which 
 Bishop Poppo, in 962, succeeded in convincing and convert- 
 ing the Pagan Danes. The worthy missionary, dining with 
 King Harold Blaatand, denounced, with more zeal than 
 discretion, the indigenous deities as lying devils. The king 
 dared him to prove his faith in his God, and on his assent- 
 ing, caused next morning an immense piece of iron to be 
 duly heated, which the undaunted Poppo grasped and car- 
 ried round to the satisfaction of the royal circle, displaying 
 his hand unscathed by the glowing mass. The miracle was 
 sufficient, and Denmark thenceforth becomes an integral por- 
 tion of Christendom. 4 The most miraculous example of this 
 form of ordeal, however, was one by which the holy Suidger, 
 Bishop of Munster, reversed the usual process. Suspecting 
 his chamberlain of the theft of a cap, which was stoutly 
 denied, he ordered the man to pick up a knife lying on the 
 table, having mentally exorcised it. The cold metal burned 
 
 1 Roger of Wendover. Ann. 1085. 
 
 2 Quod ferrum manum portantis non solum non combussit, sed, ut videba- 
 tur, postmodum saniorem reddidit. Gudeni Cod. Diplom. Mogunt. T. I. 
 No. liii. 
 
 3 Mazure et Hatoulet, Fors de Beam, p. xxxviii. 
 
 4 Widukindi Lib. in. cap. 65. Sigebert. Gemblac. Ann. 966. Dithmari 
 Chron. Lib. u. cap. viii. Saxo. Grammat. Hist. Danic. Lib. x. 
 
ORD 1: A I Of It I I - 1 1 <>T I BO \ . 201 
 
 the culprit's hands, ms thoiiLi.li it were red hot, and he 
 forthwith confessed his gtiilt. 1 
 
 No form of ordeal was more thoroughly introduced 
 throughout the whole extent of Europe. From Spain to 
 Constantinople, and fifom Scandinavia to Naples, it was 
 appealed to with confidence as an unfailing mode of ascer- 
 taining the will of Heaven. The term "judicium," indeed, 
 was at Length understood to mean an ordeal, and generally 
 that of hot iron, and in its barbarized form, "juise," may 
 almost always be considered to indicate this particular 
 kind. In the code of the Frankish kingdoms of the East, it 
 is the only mode alluded to, except the duel, and it there 
 retained its legal authority long after it had become obso- 
 lete elsewhere. The Assises de Jerusalem were in force in 
 the Venetian colonies until the sixteenth century, and the 
 manuscript, preserved officially in the archives of Yenice, 
 described by Morelli as written in 1436, retains the primi- 
 tive directions for the emplo3 T ment of the juise. 9 Even the 
 Venetian translation, commenced in 1531, and finished in 
 1536, is equally scrupulous, although an act of the Council 
 of Ten, April 10, 1535, shows that these customs had fallen 
 into desuetude and had been formally abolished. 3 
 
 This ordeal even became partially naturalized among the 
 Greeks. In the middle of the thirteenth century, the Empe- 
 ror Theodore Lascaris demanded that Michael Paleologus, 
 who afterwards wore the imperial crown, should clear him- 
 self of an accusation in this manner ; but the Archbishop 
 of Philadelphia, on being appealed to, pronounced that it 
 was a custom of the barbarians, condemned by the canons, 
 and not to be employed except by the special order of the 
 emperor.* 
 
 1 Annalista Saxo, aim. 993. 
 
 a This text is given by Kausler, Stuttgard, 1839, together with an older 
 one compiled for the lower court of Nicosia. It is to this edition that all 
 references are made. 
 
 3 Pardessus, Us et Coutumes de la Mer, I. 268 sqq. 
 
 4 Du Cange, s. v. Ferrum caiulens. 
 
208 THE ORDEAL. 
 
 In Europe, even as late as 1310, in the proceedings 
 against the Order of the Templars, at Mainz, Count Frede- 
 ric, the master preceptor of the Rhenish provinces, offered 
 to substantiate his denial of the accusations by carrying 
 the red-hot iron. 1 Perhaps one of the latest instances 
 of its actual employment was that which occurred in 
 Modena in 1329, in a dispute between the German soldiers 
 of Louis of Bavaria and the citizens. The Germans 
 offered to settle the question by carrying a red-hot bar ; 
 but when the townsfolks themselves accomplished the feat, 
 and triumphantly showed that no burn had been inflicted, 
 the Germans denied the proof, and asserted that magic had 
 been employed. 3 
 
 The ordeal of fire was sometimes administered directly, 
 without the intervention of water or of iron ; and in this, 
 its simplest form, it may be considered the origin of the 
 proverbial expression, " J'en mettrois la main au feu," as 
 an affirmation of positive belief, 3 showing how thoroughly 
 the whole system engrained itself in the popular mind. 
 The earliest legal allusion to it occurs in the code of the 
 Ripuarian Franks, where it is prescribed as applicable to 
 slaves and strangers, in some cases of doubt. 4 From the 
 
 1 Et super hoc paratus esset experientiam subire et ferrum ardens portare. 
 Raynouard, Monuments relatifs a la Condamn. des Chev. du Temple, 
 p. 269. 
 
 2 Bonif. de Morano Chron. Mutinense. ap. Muratori Antiq. Ital. Diss. 38. 
 
 3 Thus Rabelais, " en mon aduiz elle est pucelle, toutesfoys ie nen vould- 
 roys mettre mon doigt on feu" (Pantagruel, Lib. II. chap, xv.) ; and the 
 Epist. Obscur. Virorum (P. II. Epist. 1) " Quamvis M. Bernhardus diceret, 
 quod vellet disputare ad ignem quod ha3c est opinio vestra. " 
 
 4 Quodsi servus in ignem manum miserit, et lassam tulerit, etc. Tit. 
 xxx. Cap. i. ; also Tit. xxxi. If we may credit Cedrenus (Compend. 
 Histor. Ann. 16 Anastasii), as early as the year 507, under the Emperor 
 Anastasius, a Catholic bishop, who had been worsted in a theological dispute 
 with an Arian, vindicated his tenets by standing in the midst of a blazing 
 bonfire, and thence addressing an admiring crowd ; but Cedrenus being a 
 compiler of the eleventh century, and zealous in his orthodoxy, the incident 
 can hardiy be thought to possess much importance except as illustrating the 
 age of the writer, not that attributed to the occurrence. 
 
OR DMA I. K ri I k. 209 
 
 phraseology of the . we may conclude that it 
 
 was thru administered by placing the band of the accused 
 in a fire. Subsequently, however, it was conducted on a 
 
 larger and more impressive scale; huge pyres were built, 
 and the Individual undergoing the trial literally walked 
 through the (lames. The celebrated Petrua [gnens gained 
 
 his surname and reputation by an exploit of this kind, 
 which attracted great attention in its day. Pietro di 
 Pavia, Bishop of Florence, unpopular with the citizens, 
 but protected by Godfrey, Duke of Tuscany, was accused 
 of simony and heresy. Being acquitted by the Council of 
 Home, in 10G3, and the offer of his accusers to prove his 
 guilt by the ordeal of fire being refused, he endeavored to 
 put down his adversaries by tyranny and oppression. 
 Great disturbances resulted, and at length, in 1067, the 
 monks of Yallombrosa, who had borne a leading part in 
 denouncing the bishop, and who had suffered severely in * 
 consequence (the episcopal troops having burned the mon- 
 astery ofS. Salvio and slaughtered the cenobites), resolved 
 to decide the question by the ordeal, incited thereto by no 
 less than three thousand enthusiastic Florentines, who 
 assembled there for the purpose. Pietro Aldobrandini, a 
 monk of Yallombrosa, urged by T his superior, the holy S. 
 Giovanni Gualberto, offered himself to undergo the trial. 
 After imposing religious ceremonies, he walked slowly be- 
 tween two piles of blazing wood, ten feet long, five feet wide, 
 and four and a half feet high, the passage between them 
 being six feet wide and covered with an inch or two of 
 glowing coals. The violence of the flames agitated his 
 dress and hair, but he emerged without hurt, even the hair 
 on his legs being unsinged, barelegged and barefooted 
 though he was. Desiring to return through the pyre, he 
 was prevented by the admiring crowd, who rushed around 
 him in triumph, kissing his feet and garments, and endan- 
 gering his life in their transports, until he was rescued by 
 his fellow monks. A formal statement of the facts was sent 
 
 18* 
 
210 THE ORDEAL. 
 
 to Rome by the Florentines, the Papal court gave way, and 
 the bishop was deposed; while the monk who had given so 
 striking a proof of his steadfast faith Avas marked for promo- 
 tion, and eventually died Cardinal of Albano. 1 An example 
 of a similar nature occurred in Milan, in 1103, when the 
 Archbishop Grossolano was accused of simony by a priest 
 named Liutprand, who, having no proof to sustain his 
 charge, offered the ordeal of fire. All the money he could 
 raise, he expended in procuring fuel, and when all was ready 
 the partisans of the archbishop attacked the preparations 
 and carried off the wood. The populace, deprived of the 
 promised exhibition, grew turbulent, and Grossolano was 
 obliged not only to assent to the trial, but to join the authori- 
 ties in providing the necessary materials. In the Piazza di 
 S. Ambrosio two piles were accordingly built, each ten cubits 
 long, by four cubUs in height and width, with a gangway 
 between them of a cubit and a half. As the undaunted 
 priest entered the blazing mass, the flames divided before 
 him, and closed as he passed, allowing him to emerge in 
 safety although with two slight injuries, one a burn on 
 the hand, received while sprinkling the fire before entering, 
 the other on the foot, which he attributed to a kick from a 
 horse in the crowd that awaited his exit. The evidence 
 was accepted as conclusive by the people, and Grossolano 
 was obliged to retire to Rome. Pascal II., however, re- 
 ceived him graciously, and the Milanese suffragans disap- 
 proved of the summary conviction of their rhetropolitan, 
 to which they were probably all equally liable. The inju- 
 ries received by Liutprand were exaggerated, a tumult was 
 excited in Milan, the priest was forced to seek safety in 
 flight, and Grossolano was restored. 2 
 
 But the experiment was not always so successful for the 
 rash enthusiast. In 1098, during the first crusade, after 
 
 1 Vit. S. Johannis Gualberti c. lx -lxiv. 
 
 a Lnndulph. Jun. Hist. Mediol. cap. ix , x., xi. (Rer. Ital. Script. T. V.)- 
 Muratori, Anna!. Ann. 1103. 
 
OBDli i- v 9 l uk. 211 
 
 the capture of A.ntiooh, when the Christians were In turn 
 besieged In that fit v. and, sorely pressed and famm&etruek, 
 were vrell-nigh reduced to despair . an Ignorant peasant named 
 Peter Bartholomew) a follower of Raymond of Toulouse, 
 
 announced a series of visions in which St. Andrew :ml the 
 
 Saviour had revealed to him that the lance which pierced 
 the side of Christ lav hidden in the church of St. Peter. 
 Alter several men had dug in the spot indicated, from 
 morning until night, without success, Peter leaped into the 
 trench, and by a few well-directed strokes of his mattock 
 exhumed the priceless relic, which he presented to Count 
 Raymond. Cheered by this, and by various other mani- 
 festations of Divine assistance, the Christians gained heart, 
 and defeated the Infidels with immense slaughter. Peter 
 became a man of mark, and had fresh visions on all import- 
 ant conjunctures. Amid the jealousies and dissensions 
 which raged among the Frankish chiefs, the possession of 
 the holy lance vastly increased Raymond's importance, and 
 rival princes were found to assert that it was merely a rusty 
 Arab weapon, hidden for the occasion, and wholly unde- 
 serving the veneration of which it was the object. At 
 length, after some months, during the leisure of the siege 
 of Arenas, the principal ecclesiastics in the camp investi- 
 gated the matter, and Peter, to silence the doubts ex- 
 pressed as to his veracity, offered to vindicate the identity' 
 of the relic by the fiery ordeal. He was taken at his word, 
 and after three days allowed for fasting and prayer, a pile 
 of dry olive-branches was made, fourteen feet long and four 
 feet high, with a passage-way one foot wide. In the pre- 
 sence of forty thousand men all eagerly awaiting the result, 
 Peter, bearing the object in dispute, and clothed only in a 
 tunic, boldly rushed through the flames, amid the anxious 
 ] >ravers and adjurations of the multitude. As the chroni- 
 clers lean to the side of the Neapolitan Princes or of the 
 Count of Toulouse, so do their accounts of the event differ ; 
 the former asserting that Peter sustained mortal injury in 
 
212 THE ORDEAL. 
 
 the fire ; the latter assuring us that he emerged safely, with 
 but one or two slight burns, and that, the crowd enthusias- 
 tically pressing round him in triumph, he was thrown down, 
 trampled on, and injured so severely that he died in a few 
 days, asseverating with his latest breath the truth of his 
 revelations. Raymond persisted in upholding the sanctity 
 of his relic, but it was subsequently lost. 1 
 
 Even after the efforts of Innocent III. to abolish the 
 ordeal, and while the canons of the Council of Lateran were 
 still fresh, St. Francis of Assisi, in 1219, offered himself to the 
 flames for the propagation of the faith. In his missionary 
 trip to the East, finding the Sultan deaf to his proselyting 
 eloquence, he proposed to test the truth of their respective 
 religions by entering a blazing pile in company with some 
 imams, who naturally declined the perilous experiment. 
 Nothing daunted, the enthusiastic Saint then said that he 
 would traverse the flames alone if the Sultan would bind 
 himself, in the event of a triumphant result, to embrace the 
 Christian religion and to force his subjects to follow the 
 example. The Turk, more wary than the Dane whom 
 Poppo converted, declined the proposition, and St. Francis 
 returned from his useless voyage unharmed. 2 The honors 
 
 1 Fulcher. Carnot. cap. x. ; Radulf. Cadouiensis cap. c, ci., cii., cviii. ; 
 Raimond. de Agiles (Bongars, I. 150-168). The latter was chaplain of the 
 Count of Toulouse, and a firm asserter of the authenticity of the lance. He 
 relates with pride, that on its discovery he threw himself into the trench and 
 kissed it while the point only had as yet been uncovered. He likewise 
 officiated at the ordeal, and delivered the adjuration as Peter entered the 
 flames : "Si Deus omnipotens huic homini loquutus est facie ad faciem, et 
 beatus Andreas Lanceam Dominicam ostendit ei, cum ipse vigilaret, transeat 
 iste illaesus per ignem. Sin autem aliter est, et mendacium est, comburatur 
 iste cum lancea quam portabit in manibus suis." Raoul de Caen, on the 
 other hand, in 1107 became secretary to the chivalrous Tancred, and thus 
 obtained his information from the opposite party. He is very decided in 
 his animad versions on the discoverers. Fulcher de Chartres was chaplain 
 to Baldwin I. of Jerusalem, and seems impartial, though sceptical. 
 
 2 Raynaldi Annal. Eccles. ann. 1219, c. 56. In this, St. Francis en- 
 deavored unsuccessfully to emulate the glorious achievement of St. Boniface 
 the Apostle of Russia, who converted the King of Russia and his court by 
 
ORDEAL OF FIRE. 213 
 
 which the unbelievers rendered to their self-sacrificing 
 mav perhaps be explained by the reverence with which they 
 Mic accustomed to regard madmen* 
 
 A still more remarkable attempt at this kind of ordeal 
 occurred at a orach later period, irhen the whole system bad 
 Long become obsolete, and though not carried into execution, 
 it is worthy of passing notice, as it may be said to have 
 produced results affecting the destinies of civilization to 
 our own day. When, at the close of the fifteenth century, 
 Savonarola, the precursor of the Reformation, was com- 
 mencing at Florence the career which Luther afterwards 
 accomplished, and was gradually throwing off all reverence 
 for the infamous Borgia, who then occupied the chair of St. 
 Peter, he challenged any of his adversaries to undergo with 
 him the ordeal of fire, to test the truth of his propositions 
 that the Church needed a thorough reformation, and that 
 the excommunication pronounced against him by the Pope 
 was null and void. In 149t, the Franciscan Francesco di 
 Puglia, an ardent opponent, accepted the challenge, but left 
 Florence before the preliminaries were arranged. On his 
 return, in the following year, the affair was again taken up ; 
 but the principals readily found excuses to devolve the dan- 
 gerous office on enthusiastic followers. Giuliano Rondi- 
 ndli, another Franciscan, agreed to replace his companion, 
 declaring that he expected to be burned alive ; while on the 
 other side the ardor w r as so great that two hundred and 
 thirty-eight Dominicans and numberless laymen subscribed 
 a request to be permitted to vindicate their cause b}^ tri- 
 umphantly undergoing the trial unhurt, in place of Do- 
 menico da Peschia, who had been selected as Savonarola's 
 champion. At length, after many preliminaries, the Signiory 
 of Florence assigned the 7th of April, 1498, for the experi- 
 ment. An immense platform was erected, on which a huge 
 pile of wood was built, charged with gunpowder and other 
 
 means of a similar bargain and ordeal at least according to the current 
 martyrologies (Martyrol. Roman. 19 Jun), on the authority of St. Peter Da- 
 niian (Vit. S. Ilomuald. c. 27). 
 
214 THE ORDEAL. 
 
 combustibles, and traversed hy a narrow passage, through 
 which the champions were to walk. All Florence assembled 
 to see the show ; but, when everything was ready, quibbles 
 arose about permitting the champions to carry crucifixes, 
 and to have the sacrament with them, about the nature of 
 their garments, and other like details, in disputing over 
 which the day wore away, and at vespers the assemblage 
 broke up without result. Each party, of course, accused 
 the other of having raised the difficulties in order to escape 
 the ordeal ; and the people, enraged at being cheated of the 
 promised exhibition, and determined to have compensation 
 for it, easily gave credit to the assertions of the Franciscans, 
 who stimulated their ardor by affirming that Savonarola 
 had endeavored to commit the sacrilege of burning the 
 sacrament. In two days they thus succeeded in raising a 
 tumult, during which Savonarola's convent of San Marco 
 was attacked. Notwithstanding a gallant resistance by the 
 friars, he was taken prisoner, and, after undergoing frightful 
 tortures, was hanged and burned. Thus was repressed a 
 movement which at one time promised to regenerate Italy, 
 and to restore purity to a corrupted Church. The mind 
 loses itself in conjecturing what would have been the result 
 if the career of Savonarola had not thus been brought to 
 an untimely end; though, while fully acknowledging Ms 
 genius and fervor, we must admit that he was not of the 
 stuff of which the leaders of mankind are fashioned. 1 
 
 It will be observed that the ordeal of fire was principally 
 
 1 I have principally followed a very curious and characteristic account of 
 the " Sperimento del Fuoco," contained in a Life of Savonarola by the P. 
 Pacifico Burlaniacchi, given by Mansi in his edition of the Miscellanea of 
 Baluze, I. 530 sqq. Burlamacchi, as a friend and ardent follower of the 
 reformer, of course throws all the blame of defeating the ordeal on the 
 quibbles raised by the Franciscans, while the Diary of Burchard, master of 
 ceremonies of the Papal Chapel to Borgia (Diarium Curiae Bomanae, ann. 
 1498), roundly asserts the. contrary. Guicciardini (Lib. in. cap. vi.) briefly 
 states the facts, without venturing an opinion, except that the result utterly 
 destroyed the credit of Savonarola, and enabled his enemies to make short 
 work with him. 
 
ORDEAL OP FIRE. 215 
 
 Acted by ecclesiastics in church affairs, perhaps because 
 it was of a nature t<> produce a powerful impression on the 
 spectators, while at the same time it could no doubt in many 
 Instances be so managed as to secure the desired results 
 by those who controlled the details. In like manner, it was 
 occasionally employed on inanimate matter to decide points 
 of faith or polity. Thus, in the question which excited 
 great commotions in Spain in 10 1 7, as to the substitution of 
 the Roman for the Gothic or Mozarabic rite, after a judicial 
 combat had been fought and determined in favor of the 
 national ritual, the partisans of the Roman offices continued 
 to urge their cause, and the ordeal of fire was appealed to. 
 A missal of each kind was committed to the flames, and, to 
 the great joy of all patriotic Castilians, the Gothic offices 
 were unconsumed. 1 A somewhat similar instance occurred 
 in Constantinople, as late as the close of the thirteenth 
 century, when Andronicus II., on his accession, found 
 the city torn into factions relative to the patriarchate, 
 arising from the expulsion of Arsenius, a former patriarch. 
 All attempts to soothe the dissensions proving vain, at 
 length both parties agreed to write out their respective 
 statements and arguments, and, committing both books to 
 the flames, to abide by the result, each side hoping that its 
 manuscript would be preserved by the special interposition 
 of Heaven. The ceremony was conducted with imposing 
 state, and, to the general surprise, both books were reduced 
 to ashes. Singularly enough, all parties united in the 
 sensible conclusion that God had thereby commanded them 
 to forget their differences, and to live in peace. 2 
 
 The genuineness of relics was often tested in this manner 
 
 1 Ferreras, Hist. Gen. d'Espagne, trad. d'Hermilly, III. 245. Tho au- 
 thenticity of this miracle has somewhat exercised orthodox writers, and 
 Mabillon states that the earliest authority for it is Roderic, Archbishop of 
 Toledo, who flourished in the middle of the thirteenth century (Prooem. ad 
 Vit. Greg. VII. No. 10). If this be so, it only shows to how late a period 
 the superstition extended. 
 
 - Niceph. Gregor. Lib. vi. 
 
216 THE ORDEAL. 
 
 by exposing them to the action of fire. When, in 10G5, the 
 pious iEgelwin, Bishop of Durham, miraculously discovered 
 the relics of the holy martyr King Oswyn, he gave the hair 
 to Judith, wife of Tosti, Earl of Northumberland, and she 
 with all reverence placed it on a raging fire, whence it was 
 withdrawn, not only uninjured, but marvellously increased 
 in lustre, to the great edification of all beholders. 1 Guibert 
 de Nogent likewise relates that, when his native town be- 
 came honored with the possession of an arm of St. Arnoul, 
 the inhabitants, at first doubting the genuineness of the 
 precious relic, cast it into the flames ; when it vindicated 
 its sanctity, not only by being fire-proof, but also by leaping 
 briskly away from the coals, testimony which was held to 
 be incontrovertible. 3 
 
 The cold-water ordeal (judicium aquae frigidee) differed 
 from most of its congeners in requiring a miracle to convict 
 the accused, as in the natural order of things he escaped. 
 The preliminary solemnities, fasting, prayer, and religious 
 rites, were similar to those already described ; the reservoir 
 of water, or pond, was then exorcised with formulas exhi- 
 biting the same combination of faith and impiety, and the 
 accused, bound with cords, was lowered into it with a rope, 
 to prevent fraud if guilty, and to save him from drowning 
 if innocent ; 3 the length of rope allowed under water being 
 an ell and a half, according to the Anglo-Saxon rule. 4 
 
 The basis of this ordeal was the superstitious belief that 
 the pure element would not receive into its bosom any one 
 stained with the crime of a false oath, a belief which, as we 
 
 1 Matthew of Westminster, Ann. 1065. 
 
 2 Guibert. Noviogent. de Vita sua Lib. III. cap. xxi. 
 
 3 Ne aut aliquem possit fraudem in judicio facere, aut si aqua ilium velut 
 innoxium reciperit, ne in aqua pericletetur, ad tempus valeat retrahi. 
 Hincmar. de Divert. Lothar. Interrog. vi. It may readily be supposed that 
 a skilful management of the rope might easily produce the appearance of 
 floating, when a conviction was desired by the priestly operators. 
 
 4 Et si judicium aque frigide sit, tunc immergatur una ulna et dimidia 
 in fune. L. iEthelstani, i. cap. xxiii. 
 
ORDEAL OF COLD W ATI: i:. 211 
 
 have seen, w.ms entertained in primeval India, and which 
 bears considerable resemblance to the kindred superstition 
 of old, that the earth would eject the corpse of :> criminal) 
 
 and not allow it to remain quietly interred. The ecclesi- 
 astical doctrines on the subject are clearly enunciated by 
 Hincmar: k * He who seeks to conceal the truth by a lie will 
 not sink in the waters over which the voice of the Lord 
 hath thundered; for the pure nature of water recognizes as 
 impure, and rejects as incompatible, human nature which, 
 released from falsehood by the waters of baptism, becomes 
 again infected with untruth." 1 The baptism in the Jordan, 
 the passage of the Red Sea, and the crowning judgment of 
 the Deluge, were freely adduced in support of this theory, 
 though these latter were in direct contradiction to it, and 
 the most figurative language was boldly employed to give 
 some show of probability to the results expected. Thus, in 
 St. Dunstan's elaborate formula, the prayer offered over the 
 water metaphorically adjures the Supreme Being "Let not 
 the water receive the body of him who, released from the 
 weight of goodness, is upborne by the wind of iniquity!" 3 
 As practised in modern India, however, the trial is rather 
 one of endurance. The patient stands in water up to his 
 middle, facing the East. He dives under, while simulta- 
 neously an arrow of reed without a head is shot from a bow, 
 106 fingers' breadth in length, and if he can remain under 
 water until the arrow is picked up and brought back, he 
 gains his cause. 3 
 
 1 Qui veritatem mendacio cupit obtegere, in aquis, super quas vox Do- 
 mini Dei majestatis intonuit, non potest mergi, quia pura natura aquae natu- 
 rainhuruanam per aquam baptismatis ab omni mendacii figmento purgatara, 
 iterum mendacio infectam, non recognoscit puram, et ideo earn non recipit, 
 sed rejicit ut alienam. De Divort. Lothar. Interrog. vi. 
 
 3 Nee patiantur recipere corpus, quod ab onere bonitatis evaeu:itiitn, 
 ventus iniquitatis allevavit ac inane constituit. Ordo S. Dunstani Doro- 
 bern. (Baluze, II. 650.) 
 
 3 Ayeen Akbery, II. 407. The use of this ordeal was confined to the 
 Vaisya or caste of husbandmen and merchants. 
 
 19 
 
218 THE ORDEAL. 
 
 Although the use of this form of ordeal prevailed wher- 
 ever the judgment of God was appealed to, and although it 
 enjoyed a later existence than any of its kindred practices, 
 it was the last to make its appearance in Europe. There 
 seems to be good reason for attributing its introduction as 
 a Christian mode of trial to Pope Eugenius II., who occu- 
 pied the pontifical throne from 824 to 827, although some 
 critics have denied to* it this paternity, on what would seem 
 to be insufficient grounds. Baluze gives a formula for con- 
 ducting it which is thought to be of the ninth century, and 
 which expressly states that Eugenius invented it at the 
 request of Louis-le-Debonnaire, as a means of repressing 
 the prevalent vice of perjury ; and another manuscript to 
 which Mabillon attributes the same date makes a similar 
 assertion. 1 All this derives additional probability from 
 the fact that the cold-water ordeal is not alluded to in any 
 of the codes or laws anterior to the ninth century, while it 
 is continually referred to in subsequent ones ; and another 
 evidence of weight is afforded by St. Agobard, Archbishop 
 of Lyons, who, in his celebrated treatise against the judg- 
 ment of God, written a few years before the accession of 
 Eugenius, while enumerating and describing the various 
 modes in use, says nothing about that of cold water. 8 The 
 
 1 Hoc judicium autem, petente Domno Hludovico Imperatore, constituit 
 beatus Eugenius, . . . . ne perjuri super reliquias sanctorum perdant suas 
 animas in malum consentientes (Baluze, II. 646). Hoc autem judicium 
 creavit omnipotens Deus, et verum est ; et per Domnum Eugenium Apostoli- 
 cum inventum est (Mabillon, Analecta, pp. 161, 162, ap. Cangium.). The 
 same assertion is made in several other rituals which are given at length 
 by Muratori (Antiq. Ital. Dissert. 38) ; and by Juretus (Observat. ad Ivon. 
 Epist. 74). Some ancient MSS. also attribute it to Leo III., a quarter of a 
 century earlier, stating that when in 799 the Romans revolted against him, 
 he fled to Charlemagne, and that, on the Emperor's bringing him back to 
 Rome, this form of ordeal was introduced to try the authors of the disturb- 
 ance. (Muratori, loc. cit.) 
 
 2 Non oportet . . . suspicari quod omnipotens Deus occulta hominum in 
 praesenti vita per aquam calidam aut ferrum revelari velit ; quanto minus per 
 crudelia certamina? (Lib. adv. L. Gundobadi cap. ix.) And again, in the 
 
ORDEAL OP COLD WATER. 811 
 
 only arguments alleged In favor of an earlier date are ccr- 
 t:iin passages in Gregory of Tours, describing miracles in 
 
 which saintly personages condemned to be drowned floated 
 triumphantly ashore cases which have evidently nothing 
 to do with the question, as they were interpositions of 
 Providence to save, not to condemn, and were inflictions 
 of punishment, not legal investigations. 1 
 
 The new process had a hard struggle for existence. But 
 a few years after its introduction, it was condemned by 
 Louis-le-Pebonnaire at the Council of Worms, in 829 ; its 
 use was strictly prohibited, and the "missi dominici" were 
 instructed to see that the order was carried into effect, 
 regulations which were repeated by the Emperor Lothair, 
 son of Louis. 8 Notwithstanding this, it seemed to adapt 
 itself to popular prejudices, and the interdiction was of 
 little avail ; Hincmar, indeed, dismissing it with the remark 
 that the prohibition was not confirmed by the canons of 
 authoritative councils. 3 The trial by cold water spread 
 throughout Europe, and among all the Continental races 
 it was placed on an equal footing with the other forms of 
 ordeal. Among the Anglo-Saxons, indeed, its employment 
 has been called in question by some modern writers ; but 
 the Dooms of JEthelstan, and the formula of St. Dunstan 
 
 Liber contra Judicium Dei, cap. i. : " Mitte unura de tuis, qui congrediatur 
 mecum singulari certamine, ut probet me reum tibi esse, si occiderit ; aut 
 certe, jube ferrum vel aquas calefieri, quas manibus illaesus attrectem ; aut 
 constitue cruces. ad quas stans immobilis perseverem." 
 
 1 Qregor. Turon. Miracul. Lib. i. c. 69, 70. The Epistle given in Gratian 
 (C Mennam caus. 2. q. 5) as written by St. Gregory to Queen Brunhilda, 
 scarcely needs a reference, its allusions to the ordeal having long since been 
 restored to their true author, Alexander II. (Epist. 122). 
 
 9 Ut examen aquae frigid, quae hactenus fiebat, a missis nostris omnibus 
 modis interdicatur, ut non ulterius fiat. Capit. Wormat. Ann. 829, Tit. II. 
 cap 12 ; L. Longobard. Lib. IX. Tit. Iv. 31. 
 
 3 Nee praatereundum quia legimus in capitulis Augustorum fuisse vetitum 
 frigidce aqua) judicium ; sed non in illis synodalibus quao de certis accepimus 
 eynodis. De Divort. Lothar. Interrog. vi. 
 
220 THE ORDEAL. 
 
 of Canterbury, already quoted, sufficiently manifest its 
 existence in England before the Conquest. 
 
 The ordeals of both hot and cold water were stigmatized 
 as plebeian from an early period, as the red-hot iron and the 
 duel were patrician. Thus Hincmar, in the ninth century, 
 alludes to the former as applicable to persons of servile 
 condition ;* a constitution of the Emperor St. Henry II., 
 about A. D. 1000, in the Lombard law, has a similar bear- 
 ing ; a an Alsatian document in the eleventh, 3 and the laws 
 of Scotland in the twelfth century, assume the same po- 
 sition ;* and Glanville at the end of the twelfth century 
 expressly asserts it. 5 This, however, was an innovation ; 
 for in the earliest codes there is no such distinction, a pro- 
 vision in the Salique law even prescribing the seneum, or 
 hot-water ordeal, for the Antrustions, who constituted the 
 most favored class in the state. 8 Nor even in later times 
 was the rule by any means absolute. In the tenth century, 
 Sanche, Duke of Gascony, desirous of founding the monas- 
 tery of Saint Sever, claimed some land which was necessary 
 for the purpose, and being resisted by the possessor, the 
 title was decided by reference to the cold-water ordeal. 7 
 In 1021, Guelf II., Count of Altorf, ancestor of the great 
 
 1 Ut si praefati sui homines quia non liberae conditionis sunt, aut cum 
 aqua frigida, aut cum aqua calida, inde ad judicium Dei exirent, quid inde 
 Deus ostenderet mihi sufficeret. Opusc. adv. Hincmar. Laudun. cap. xliii. 
 
 2 Si quis . . . accusatus negare voluerit, aut per duellum si liber est ; si 
 vero servus, per judicium ferventis aquae defendat se. L. Longobard. Lib. 
 I. Tit. ix. 39. 
 
 3 Et si . . . ipse innocentiae suae expurgationem appellaverit, liber vel 
 personatus serviens, si infra patriam est, post septem dierum inducias cum 
 totidem suae comparitatis testibus ; plebejus autem et minoris testimonii 
 rusticus, aquae frigidae se expurget judicio. Recess. Convent. Alsat. Anno 
 1051, 6. (Goldast. Constit. Imp. II. 48.) 
 
 4 Regiam Majestatem Lib. IV. cap. iii. 4. 
 
 * In tali autem causa tenetur se purgare is qui accusatur per dei judicium 
 .... scilicet per ferrum calidum si fuerit homo liber, per aquam si fuerit 
 rusticus. De Legg. Angliae Lib. xiv. cap. i. 
 
 6 Text. Herold. Tit. lxxvi. 
 
 7 Mazure et Hatoulet, Fors de Beam, p. xxxi. 
 
ORDEAL OP COLD WATER. 2\ 
 
 
 bftiwefl of Guelf in Italy and Knglnnd. having taken part 
 
 in the revolt of Conrad the lounger Bud ESrneat of Snabia, 
 
 was forced by the Bmperor Conrad the Salique to prove his 
 lanoeenoe in this manner. 1 This may have been, perhaps, 
 intended rather as an humiliation than as a judicial proeeed- 
 Ing, for Guelf had been guilty of great excesses in the con- 
 duct of the rebellion ; but about the same period Othlonus 
 relates an incident in which a man of noble birth accused 
 of theft submitted himself to the cold water ordeal as a 
 matter of course ; 3 and we find, nearly two centuries later, 
 when all the vulgar ordeals were falling into disuse, that the 
 water ordeal was established among the nobles of Southern 
 Germany, as the mode of deciding doubtful claims on fiefs. 8 
 
 In 1083, during the deadly struggle between the Empire 
 and the Papacy, as personified in Henry IV. and Hildebrand, 
 the imperialists related with great delight that some of the 
 leading prelates of the Papal court submitted the cause of 
 their chief to this ordeal. After a three days' fast, and 
 proper benediction of the water, they placed in it a boy to 
 represent the Emperor, when to their horror he sank like a 
 stone. On referring the result to Hildebrand, he ordered 
 a repetition of the experiment, which was attended with the 
 same result. Then, throwing him in as a representative of 
 the Pope, he obstinately floated during two trials, in spite 
 of all efforts to force him under the surface, and an oath 
 was exacted from them to maintain inviolable secrecy as to 
 the unexpected result.* 
 
 Perhaps the most extensive instance of the application 
 of this form of ordeal was that proposed when the sacred 
 vessels were stolen from the cathedral church of Laon, as 
 related by a contemporary in. a MS. of Laon quoted by 
 
 1 Conrad. Ursperg. sub Lothar. Saxon. 
 
 a Quidam illustris vir. Othlon. de Mirac. quod nuper accidit etc. (Pa- 
 trol. T. 140, p. 242.) 
 
 3 Juris Feud. Alaman. cap. Ixxvii. 2. 
 
 4 MS Brit. Mus. inserted by Pertz in Ilugo. Flaviniac. Lib. II. 
 
 19* 
 
222 THE ORDEAL. 
 
 
 
 Juretus. 1 At a council convened on the subject, Master 
 Anselm, the most learned doctor of the diocese, suggested 
 that, in imitation of the plan adopted by Joshua at Jericho, 
 a young child should be taken from each parish of the 
 town and tried by immersion in consecrated water. From 
 each house of the parish which should be found guilty, 
 another child should be chosen to undergo the same pro- 
 cess. When the house of the criminal should thus be dis- 
 covered, all its inmates should be submitted to the ordeal, 
 and the author of the sacrilege would thus be revealed. 
 This plan would have been adopted had not the frightened 
 inhabitants rushed to the Bishop and insisted that the 
 experiment should commence with those whose access to 
 the church gave them the best opportunity to perpetrate 
 the theft. Six of these latter were accordingly selected, 
 among whom was Anselm himself. While in prison await- 
 ing his trial, he caused himself to be bound hand and foot 
 and placed in a tub full of water, in which he sank satisfac- 
 torily to the bottom, and assured himself that he should 
 escape. On the day of trial, in the presence of an immense 
 crowd, in the cathedral which was chosen as the place of 
 judgment, the first prisoner sank, the second floated, the 
 third sank, the fourth floated, the fifth sank, and Anselm, 
 who was the sixth, notwithstanding his previous experi- 
 ment, obstinately floated, and was condemned with his ac- 
 complices, in spite of his earnest protestations of innocence. 
 Although the cold-water ordeal disappears from the 
 statute-book in civil and in ordinary criminal actions at 
 the same time that the other similar modes of purgation 
 were abandoned, there is one class of cases in which it 
 maintained its hold upon the popular faith to a much later 
 period. These were the accusations of sorcery and witch- 
 craft which form so strange and prominent a feature of me- 
 diaeval society, and its use for this purpose may apparently 
 
 1 Observat. in Ivon. Carnot. Epist. 74. 
 
ORDEAL OP COLD WATER. 223 
 
 | traced to various causes. For such crimes, drowning 
 was the punishment Inflicted by the customs of tin- Franks; 
 as soon as fchey had lost the respect for Individual liberty 
 of action which excluded personal punishments from their 
 original code; 1 and in addition to the general belief that 
 
 1 Lodharius . . . Gerbergam, more rnaleficomm, in Arari mergi prn>- 
 cepit. Nithardi Hist. Lib. I. Ann. 834. 
 
 The Salique law merely inflicts fines in cases of witchcraft, even when the 
 offender had, according to a widely spread superstition of the times, eaten 
 the victim bodily (L. Emendat. cap. xxi. $ 3 ; cap. lxvii. 3). So also the 
 L. Ripuarior. (Tit. lxxxiii.). Charlemagne allowed suspected persons to be 
 tortured for confession, provided the process was not carried to the point of 
 death, and after conviction they were to be imprisoned until amendment 
 (Capit. ii. Ann. 805, xxv.). The legislation of other races was very various 
 in this respect. The Ostrogoths visited all such practices with death (Cod. 
 Theoderici cap. cvm.), relaxing somewhat on the laws of Constantine, who 
 sought to extirpate them with fire and torments (Const. 3, 6, 7, C. De Male- 
 ficis ix. 18). The Wisigoths more humanely contented themselves with 
 stripes, shaving the head, and exposure (L. Wisigoth. Lib. vi. Tit. ii. cap. 3). 
 The Lombard law (Lib. II. Tit. xxxviii. 2) ordered them to be sold as slaves 
 beyond the boundaries of the province, and the earliest legislator, King 
 Rotharis, denounced severe penalties against those who put women to death 
 under the absurd belief that they could eat living men "Quod Christianis 
 mentibus nullatenus est credendum, nee possibile est, ut hominem mulier 
 vivum intrinsecus possit comedere" (L. Longobard. Lib. i. Tit. xi. 9). 
 The Pagan Saxons entertained a similar superstition, for which they were in 
 the habit of burning witches and sorcerers, and even of eating them in turn, 
 as we learn from the civilizing and Christianizing capitulary of Charlemagne : 
 " Si qui?, a diabolo deceptus, crediderit, secundum morem paganorum, virum 
 aliquem aut feminam strigam esse et homines comedere, et propter hoc ipsam 
 incenderit, vel carnem ejus ad comedendum dederit, vel ipsam comederit, 
 capitis sententia punietur etc." (Capit. de Partibus Saxonia), Ann. 789, 
 vi.) The Anglo-Saxons merely banished the witch who would not reform, 
 with the penalty of death for disobedience (Laws of Edward and Guthrum, 
 Tit. xi. ; Ethelred, vi. 7; Cnut. Secular, cap. iv.) ; unless the death of a 
 victim had been compassed, when the offender was executed (iEthelstan, I. 
 6), or delivered to the kindred to be punished at their pleasure (Henrici I. 
 Tit. lxxi. 1). The primitive law of Scotland, as given by Boetius, was 
 more severe, condemning to the stake all engaged in such practices (Kenethi 
 Leg. Civil, cap. 18 Spelman. Concil. I. 341) ; while in Hungary, for ordi- 
 nary witchcraft, on a first offence the criminal was only handed to the Bishop 
 to be reformed by fasting and the catechism ; a second offence was visited 
 with branding on the forehead, head, and back, in the form of a cross with a 
 
224 THE ORDEAL. 
 
 the pure element refused to receive those who were tainted 
 with crime, there was in this special class of cases a 
 widely spread superstition that adepts in sorcery and 
 magic lost their specific gravity. Pliny mentions a race of 
 enchanters on the Euxine who were lighter than water 
 " eosdem non posse mergi . . . ne veste quidam degravatos ;" 
 and Stephanus Byzantinus describes the inhabitants of 
 Thebe as magicians who could kill with their breath, and 
 floated when thrown into the sea. 1 This whimsical opinion 
 was perpetuated to a comparatively late period, and gave 
 rise to a species of ordeal known as the trial by balance, 
 in which the suspected sorcerer was weighed to ascertain 
 his guilt, enabling him, we may presume, to escape, except 
 when the judges, determined to procure a conviction, man- 
 church key : hut when life was attempted in such practices, the sorcerer was 
 delivered to the sufferer or his friends to he treated at their discretion (Legg. 
 S. Stephani, c. xxxi. xxxii). The progress of enlightenment in Hungary 
 was rapid, for, hy the end of the century, we find King Coloman contenting 
 himself with the brief remark, " De strigis vero quae non sunt, nulla quaestio 
 fiat" (Decret. Coloman. c. 20 Batthyani, Legg. Eccles. Hung. T. I.p. 455). 
 
 The cause of humanity gained but little when, all such accusations being 
 included in the convenient general charge of heresy, for five hundred years 
 luckless sharpers and dupes were committed pitilessly to the flames. King 
 James I. briefly dismisses the question of their punishment with the appro- 
 priate remark, "Passim obtinuit ut crementur. Quanquam in hac re sua 
 cuique genti permittenda est consuetude" (Demonologias Lib. III. c. vi.) 
 Even in the enlightenment of the seventeenth century, who can read without 
 grim disgust and wonder the terrible farce of the trial of Urbain Grandier, 
 hurrying, amid details ludicrously revolting, its unfortunate victim through 
 torture to the stake, to gratify the quenchless malice of Cardinal Riche- 
 lieu ? Nor did the tragedy cease for yet a hundred years. In the middle 
 of the eighteenth century, Muratori could still write " Novimus etiam inno- 
 centes praesertim mulieres interdum in veneficii suspicionem adductas fuisse 
 in quibusdam Christiani orbis partibus, et aut igni datas, aut mortis pericu- 
 lum vix evasisse : neque alia de caussa reas vulgo creditas quam quod sub 
 fasce annorum illarum. humeri jam curvarentur." (Antiq. Ital. Dissert. 59.) 
 
 Perhaps the superstition of the devouring of living men by witches may 
 find its last lingering remnants in the vampirism of Eastern Europe. 
 
 1 Ameilhon, de l'Epreuve de l'Eau Froide. 
 
ORDEAL OP COLD WATER. 225 
 
 aged to clinic the vigilance of the inspectors. 1 To the 
 
 Concurrence of these notions we may attribute the fact 
 that when the cold-water ordeal was abandoned, in the 
 
 thirteenth century, as a judicial practice ill ordinary C 
 it still maintained its place as a special mode of trying 
 those unfortunate persona whom their own folly, or the 
 malice and tears of their neighbors, pointed, out as witches 
 and sorcerers. 9 No less than a hundred years after the 
 efforts of Innocent III. had virtually put an end to all the 
 other forms of vulgar ordeals, we find Louis Hutin ordering 
 its emplo3'ment in these cases. 3 At length, however, it fell 
 into desuetude, until the superstitious panic of witchcraft, 
 which took possession of the popular mind in the second 
 half of the sixteenth century caused its revival. 4 The 
 
 1 Kickius (Defens. Probae Aq. Frigid. 41), writing in 1594, speaks of this 
 as a common practice in many places, and gravely assures us that very large 
 and fat women had been found to weigh only thirteen or fifteen pounds. 
 Konigswarter (op. cit. p. 186) states that as late as 1728, at Szegedin in 
 Hungary, thirteen persons suspected of sorcery were, by order of court, 
 subjected to the ordeal of cold water, and then to that of the balance. At 
 Oudewater in Holland, according to the same authority, the scales used on 
 these occasions are still to be seen. A modification of the trial by balance 
 consisted in putting the accused into one scale and a Bible into the other. 
 (Collin de Plancy, s. v. Bibliomancie.) 
 
 As the simplest, least painful, and perhaps most easily manipulated form 
 of ordeal, this was monopolized in India by the Brahmins. As practised by 
 them, the suitor was weighed, and then, after certain religious ceremonies, 
 he was weighed again. If he had lost weight meanwhile, he was pronounced 
 victorious, but if his density remained stationary, he was condemned. 
 (Ayeen Akbery, II. 496.) 
 
 * J In earlier times, various other modes of proof were habitually practised. 
 Among the Lombards, King Rotharis prescribed the judicial combat (L. 
 Longobard. Lib. i. Tit. xvi. 2). The Anglo-Saxons (iEthelstan, cap. vi.) 
 direct the triple ordeal, which was either red-hot iron or boiling water. 
 
 3 Hie adversus quern maleficium factum fuerit vel proditio, si alium accu- 
 saverit, de quo aliqua suspicio sit curia;, accusatus recipiet judicium aqua? 
 frigidae. Regest. Ludovici Hutini (ap. Cangium). 
 
 4 Scribonius, writing in 1583, speaks of it as a novelty "utpote qua? in 
 aliis Germania? partibus vix audita esset;" but Neuwald assures us that it 
 had been universally employed for eighteen years previous " sed in West- 
 phalia ferme ante annos octodecim est passim observata." 
 
226 THE ORDEAL. 
 
 crime was one so difficult to prove judicially, and the 
 ordeal offered so ready and so satisfactory a solution to 
 the doubts of timid and conscientious judges, that its 
 extensive use is not to be wondered at. The professed 
 Daemonographers, Bodin, Binsfeld, Godelmann, and others, 
 either openly rejected it, or omitted all reference to it, but 
 still it did not want defenders. In 1583, a certain Scribo- 
 nius, on a visit to Lemgow, saw three unfortunates burnt 
 as witches, and three other women, the same day, exposed 
 to the ordeal on the accusation of those executed. He 
 describes them as stripped naked, hands and feet bound 
 together, right to left, and then cast upon the river, where 
 they floated like logs of wood. Profoundly impressed with 
 the miracle, in a letter to the magistrates of Lemgow, he 
 expresses his warm approbation of the proceeding and 
 endeavors to explain its rationale, and to defend it against 
 unbelievers. Sorcerers, from their intercourse with Satan, 
 partake of his nature ; he resides within them, and their 
 human attributes become altered to his ; he is an imponder- 
 able spirit of air, and therefore they likewise become lighter 
 than water. Two 3-ears later, Hermann Neuwald published 
 a tract in answer to this, gravely confuting the arguments 
 advanced by Scribonius, who, in 1588, returned to the 
 attack with a larger and more elaborate treatise in favor 
 of the ordeal. In 1594, a more authoritative combatant 
 entered the arena Jacob Rickius, a learned jurisconsult 
 of Cologne, who, as judge in the court of Bonn, had ample 
 opportunity of considering the question, and of putting 
 his convictions into practice. 1 He describes vividly the 
 
 1 These various tracts were collected together and reprinted in 1686 at 
 Leipsic, in 1 vol. 4to. It contains Rickius's " Compendiosa certisque modis 
 astricta defensio Probae Aqua? Frigidse, quae in examinatione raaleficarum 
 plerique judices hodie utuntur;" the " Epistola de Purgatione Sagarum 
 super Aquam frigidam projectarum" of Scribonius; and Neuwald's "Exe- 
 gesis Purgationis sive Examinis Sagarum, &c." There are few more curious 
 pictures of the age to be found by the student of the mysteries of human 
 intelligence. 
 
ORDEAL OF COLD WATER. 227 
 
 perplexities of the judges hesitating between the enormity 
 of the crime and the worthlessness of the evidence, and 
 his elaborate diseussions of all the argument! in its favor 
 may be condensed into this: that the offence is so difficult 
 
 of proof that there is no other certain evidence than the 
 ordeal ; that without it we should be destitute of absolute 
 proof, which w r ould be an admission of the superiority of 
 the Devil over God, and that anything would be preferable 
 to such a conclusion. He states that he never administered 
 it when the evidence without it was sufficient for conviction, 
 nor when there was not enough other proof to justify the 
 use of torture ; and that in all cases it was employed as a 
 prelude to torture " praeparandum et muniendum torturae 
 via m" the latter being frequently powerless in consequence 
 of diabolical influences. The sickening instances which he 
 details with much complacency as irrefragable proofs of 
 his positions show how frequent and how murderous were 
 the cases of its employment, but w r ould occupy too much 
 space for recapitulation here ; while the learning displayed 
 in his constant citations from the Scriptures, the Fathers, 
 the Roman and the Canon Law, is in curious contrast with 
 the superstitious cruelty of his acts and doctrines. 
 
 In France, the central pow r er had to be invoked to put 
 an end to the atrocity of such proceedings. In 1588, an 
 appeal was taken to the supreme tribunal from a sentence 
 pronounced by a Champenois court, ordering a prisoner to 
 undergo the experiment, and the Parlement in December, 
 1G01, registered a formal decree against the practice; an 
 order which it found necessary to repeat, August 10th, 1641. 1 
 That this latter was not uncalled for, we may assume from 
 the testimony of the celebrated Jerome Bignon, who, writing 
 nearly at the same time, sa}^s that, to his own knowledge, 
 within a few years, judges were in the habit of elucidating 
 
 1 Konigswarter, op. cit. p. 176. 
 
22S TIIE ORDEAL. 
 
 doubtful cases in this manner. 1 In England, James I. grati- 
 fied at once his conceit and his superstition by eulogizing 
 the ordeal as an infallible proof in such cases. His argu- 
 ment was the old one, which pronounced that the pure 
 element would not receive those who had renounced the 
 privileges of their baptism, 3 and his authority no doubt 
 gave encouragement to innumerable instances of cruelty 
 and oppression. How slowly the belief was eradicated 
 from the minds of even the educated and enlightened may 
 be seen in a learned inaugural thesis presented by J. P. 
 Lang, in 1661, for the Licentiate of Laws in the University 
 of Basel, in which, discussing incidentally the question of 
 the cold-water ordeal for witches, he concludes that perhaps 
 it is better to abstain from it, though he cannot question 
 its efficaciousness as a means of investigation. 3 Even in 
 the middle of the eighteenth century, the learned and pious 
 Muratori affirms his reverent belief in the miraculous con- 
 victions recorded by the mediaeval writers as wrought in this 
 manner by the judgment of God, 4 and he further informs us 
 that it was common throughout Transylvania in his time ; 5 
 while in West Prussia, as late as 1745, the Synod of Culm de- 
 scribes it as a popular abuse in common use, and stringently 
 forbids it for the future. 6 We have already alluded to the 
 
 1 " Porro, nostra memoria, paucis abhinc annis, solebant judices reos 
 maleficii accusatos mergere, pro certo habentes incertum crimen hac ratione 
 patefieri." Notae ad Legem Salicam. 
 
 " Tanquam aqua suum in sinum eos non admitteret, qui excussa baptismi 
 aqua, se omni illius sacramenti beneficio ultro orbarunt. Demonologiae Lib. 
 in. cap. vi. 
 
 3 Tutius erit ab eo abstinere, neque refragatur quod saepe per hoc tentamen 
 Veritas explorata fuit. Dissert. Inaug. de Torturis Th. xvm. xi. Basil. 
 1661. 
 
 * Quibus in exemplis vides, sese Deum accommodasse interdum ad homi- 
 num piam fidem et preces. Antiq. Ital. Dissert. 38. 
 
 5 Si vera sunt etiam quas interdum audivi, in Transylvania, perdurat adhuc 
 experimentum aquae ad dignoscendas sagas, sive incantatriees maleficas, 
 quarum ingens copia ibi traditur esse. Ibid. 
 
 6 Qui ex levi suspicione, in tali crimine delatas, nee confessas, nee con- 
 
oh D i: a i, 01 00 LD W \ t KB. 299 
 
 employment <r the water ordeal by an Hungarian tribunal 
 ms late ms the eighteenth century. Although, witliin the 
 hist hundred years, it Iims disappeared from the authorized 
 kegal procedures of Europe, still the popular mind has not 
 as yet altogether overcome the superstitions and prejudices 
 of so many ages, and occasionally in some benighted spot 
 mii outrage occurs to show us that mediceva] ignorance and 
 brutality still linger amid the triumphs of modern civiliza- 
 t ion. I n 1 8 1 ."). Belgium was disgraced by a trial of the kind 
 performed on an unfortunate person suspected of witch- 
 OTafl ; mihI in 1886, the populace of Hela, near Dantzic, 
 twice plunged into the sea an old woman reputed to be a 
 Borceress, and as the miserable creature persisted in rising 
 to the surface, she was pronounced guilty, and beaten to 
 death. 1 
 
 Perhaps we may class as a remnant of this superstition 
 a custom described by a modern traveller as universal in 
 Southern Russia. When a theft is committed in a house- 
 hold, the servants are assembled, and a sorceress, or vorogeia, 
 is sent for. Dread of what is to follow generally extorts a 
 confession from the guilty party without further proceed- 
 ings, but if not, the vorogeia places on the table a vase of 
 water and rolls upas many little balls of bread as there are 
 suspected persons present. Then, taking one of the balls, 
 she addresses the nearest servant " If you have committed 
 the theft, this ball will sink to the bottom of the vase, as 
 will your soul in Hell ; but if you are innocent, it will float 
 on the water." The truth or falsehood of this assertion is 
 never tested, for the criminal invariably confesses before 
 his turn arrives to undergo the ordeal. 3 
 
 victas, ad torturap, supernatationem aquarum, et alia eruendae veritatis 
 media, tandem ad ipsam mortem condemnare . . . non verentur, exempla 
 proh dolor ! pluriraa testantur. Synod. Cuhnens. et Pomesan. ann. 1745, 
 c. v. (Hartzheim. Concil. German. X. 510.) 
 
 1 Konigswartcr, op. cit. p. 177. 
 
 - Ilartausen, Etudes sur la Russie. (Du Boy?, Droit Criminel des Peuplea 
 Modernes, I. 256.) 
 20 
 
230 THE ORDEAL. 
 
 The ordeal of the cross (judicium cruris, stare ad crucem) 
 was one of simple endurance. The plaintiff and defendant, 
 after appropriate religious ceremonies and preparation, 
 stood with uplifted arms before a cross, while divine service 
 was performed, victory being adjudged to the one who was 
 able longest to maintain his position. 1 The earliest allu- 
 sion to it which I have observed occurs in a Capitulary of 
 Pepin-le-Bref, in 152, where it is prescribed in cases of 
 application by a wife for dissolution of marriage. 3 Char- 
 lemagne appears to have regarded it with much favor ; for 
 he not only frequently refers to it in his edicts, but, when 
 dividing his mighty empire, in 806, he directs that all terri- 
 torial disputes which may arise in the future between his 
 sons shall be settled in this manner. 3 An example occur- 
 ring during his reign shows the details' of the process. A 
 controversy between the Bishop and citizens of Verona, 
 relative to the building of certain walls, was referred to the 
 decision of the cross. Two young ecclesiastics, selected as 
 champions, stood before the sacred emblem from the com- 
 mencement of mass ; at the middle of the Passion, Aregaus, 
 who represented the citizens, fell lifeless to the ground, 
 while his antagonist, Pacificus, held out triumphantly to 
 the end, and the Bishop gained his cause, as ecclesiastics 
 were wont to do. 4 
 
 When a person desired to discredit the compurgators of 
 
 1 A formula for judgments obtained in this manner by order of court, in 
 cases of disputed title to land, occurs in the Formula) Bignonianae, No. xii. 
 
 1 Si qua mulier se reclamaverit quod vir suus nunquam cum ea mansisset, 
 exeant inde ad crucem, et si verum fuerit, separentur, et ilia faciat quod 
 vult. Capit. Pippini ann. 752, xvii. 
 
 3 Si caussa vel intentio sive controversia talis inter partes propter ter- 
 minos aut confinia regnorum orta fuerit quae hominum testimonio declarari 
 vel definiri non possit, tunc volumus ut ad declarationem rei dubiao, judicio 
 crucis, Dei voluntas et rerum Veritas inquiratur. Chart. Division, cap. xiv. 
 The allusions to it throughout the Capitularies of this monarch are very 
 frequent ; for instance, Capit. ann. 779, x. ; Capit. iv. ann. 803, iii. vi. ; 
 in L. Longobard. Lib. n. Tit. xxviii. 3; Tit. Iv. 25, etc. 
 
 4 Ughelli, Italia Sacra, T. V. p. 610 {ap. Baluz. Not. ad Libb. Capit.). 
 
ORH K A L Of T UK CROSS. 281 
 
 mi adversary he had tin 1 right to accuse them of perjury, 
 and the main question *ras then adjourned until this second- 
 ary point was decided by this process. 1 In a similar spirit, 
 Witnesses too infirm to undergo the battle-trial, by which in 
 the regular process of law they were bound to substantiate 
 their testimony, were allowed, by a Capitulary of 816, to 
 select the ordeal of the cross, with the further privilege, in 
 cases of extreme debility, of substituting a relative or other 
 champion, whose robustness promised an easier task for 
 the Divine interference." 
 
 A slight variation of this form of ordeal consisted in 
 Standing with the arms extended in the form of a cross, 
 While certain portions of the service were recited. In this 
 manner, St. Lioba, Abbess of Bischoffsheim, triumphantly 
 vindicated the purity of her flock, and traced out the 
 offender, when the reputation of her convent was imperilled 
 by the discovery of a new-born child drowned in a neigh- 
 boring pond. 3 
 
 The sensitive piety of Louis-le-Debonnaire was shocked 
 at this use of the cross, as tending to bring the Christian 
 symbol into contempt, and in 816, soon after the death of 
 Charlemagne, he prohibited its continuance, at the Council 
 of Aix-la-Chapelle ; 4 an order which was repeated by his son, 
 the Emperor Lothair. 5 Baluze, however, considers, with 
 apparent reason, that this command was respected only in 
 
 1 Si ille homo cujus causa jurata fuerit, dicere voluerit quod ille qui juravit 
 se sciens perjurasset, stent ad crucem. Capit. Car. Mag. incerti anni c. x. 
 (Hartzheim Concil. German. I. 426.) 
 
 2 Namque si debiliores ipsi testes fuerint, tunc ad crucem examinentur. 
 Nam si majoris aetatis, et non possint ad crucem stare, tunc mittant aut filios 
 aut parentes, aut qualescunque homines possint, qui pro eis hoc tendunt. 
 Capit. Lud. Pii ann. 816, i. (Eccardi L. Francorum, pp. 183, 184.) 
 
 3 Rudolph. Fuldens. Vitae S. Liobae cap. xv. (Du Cange, s. v. Cruris 
 Judicium.) 
 
 * Sancitum est ut nullus deinceps quamlibet examinationem crucis facere 
 praesumat, ne quae Christi passione glorificata est, cujuslibet temeritate con- 
 teraptui habeatur. Concil. Aquisgran. cap. xvii. 
 
 * L. Longobard. Lib. It. Tit. lv. 32. 
 
232 THE ORDEAL. 
 
 the Rhenish provinces and in Italy, -from the fact that the 
 manuscripts of the Capitularies belonging to those regions 
 omit the references to the ordeal of the cross, which are 
 retained in the copies used in the other territories of the 
 Prankish empire. 1 Louis himself would seem at length to 
 have changed his opinion ; for, in the final division of his 
 succession between his sons, he repeats the direction of 
 Charlemagne as regards the settlement of disputed bound- 
 aries. 3 ' The procedure, however, appears to have soon lost 
 its popularity, and indeed never to have obtained the wide 
 and deeply-seated hold on the veneration of the people 
 enjoyed by the other forms of ordeal. We see little of it at 
 later periods, except the trace it has left in the proverbial 
 allusion to an experimentum cruris. 
 
 The ordeal of consecrated bread or cheese {judicium 
 offae, panis conjuratio, the corsnsed of the Anglo-Saxons) 
 was administered by presenting to the accused a piece of 
 
 1 Not. ad Libb. Capit. Lib. I. cap. 103. Tbis derives additional proba- 
 bility from the text cited immediately above, relative to the substitution of 
 this ordeal for the duel, -which is given by Eckhardt from an apparently 
 contemporary manuscript, and which, as we have seen, is attributed to 
 Louis-le-Debonnaire in the very year of the Council of Aix-la-Chapelle. It 
 is not a simple Capitulary, but an addition to the Salique Law, which invests 
 it with much greater importance. Lindenbruck (Cod. Legum Antiq. p. 355) 
 gives a different text, purporting likewise to be a supplement to the Law, 
 made in 816, which prescribes the duel in doubtful cases between laymen, 
 and orders the ordeal of the cross for ecclesiastical causes "in Ecclesi- 
 asticis autem negotiis, crucis judicio rei Veritas inquiratur" and allows the 
 same privilege to the " imbecillibus aut infirmis qui pugnare non valent." 
 Baluze's collection contains nothing of the kind as enacted in 816, but under 
 date of 819 there is a much longer supplement to the Salique law, in which 
 cap. x. presents the same general regulations, almost verbatim, except that 
 in ecclesiastical affairs the testimony of witnesses only is alluded to, and the 
 judicium crucis is altogether omitted. The whole manifestly shows great 
 confusion of legislation. 
 
 2 Chart. Divisionis ann. 837 cap. x. The words used are identical with 
 those of Charlemagne, with the substitution of " vexillo crucis" for "judicio 
 crucis." The word vexiUum is frequently employed in the sense of signitm 
 or testimonium in signatures to diplomas. 
 
ORDEAL or B B B A I>. 239 
 
 bread (generally of barley) or of cheese) about an ounce in 
 
 Weight, 1 over which prayers ;ni<l :i<ljur:it ions had been pro- 
 nounced. After appropriate religions ceremonies, Including 
 the communion, the morsel was eaten, the event being de- 
 termined by the ability of the accused to swallow it. Tnil 
 depended of course on the imagination, and we can readily 
 understand how, in those times of faith, the impressive 
 observances which accompanied the ordeal would affect 
 the criminal, who, conscious of guilt, stood up at the altar, 
 took the sacrament, and pledged his salvation on the truth 
 of his oath. The mode by which a conviction was expected 
 may be gathered from the forms of the exorcism employed, 
 of which a number have been preserved. 
 
 "0 Lord Jesus Christ, . . . grant, we pray thee, by thy holy name, 
 that he who is guilty of this crime in thought or in deed, when this 
 creature of sanctified bread is presented to him for the proving of the 
 truth, let his throat he narrowed, and in thy name let it be rejected 
 rather than devoured. And let not the spirit of the Devil prevail in 
 this to subvert the judgment by false appearances. But he who is 
 guilty of this crime, let him, chiefly by virtue of the body and blood 
 of our Lord which he has received in communion, when he takes the 
 consecrated bread or cheese tremble, and grow pale in trembling, and 
 shake in all his limbs ; and let the innocent quietly and healthfully, 
 with all ease, chew and swallow this morsel of bread or cheese, 
 crossed in thy holy name, that all may know that thou art the just 
 Judge," &c. 2 
 
 And even more whimsical in its devout impiety is the 
 following : 
 
 " God Most High, who dwellest in Heaven, who through thy 
 Trinity and Majesty hast thy just angels, send, Lord, thy Angel 
 Gabriel to stick in the throat of those who have committed this theft, 
 that they may neither chew nor swallow this bread and cheese created 
 by Thee. I invoke the patriarchs, Abraham, Isaac, and Jacob, with 
 twelve thousand Angels and Archangels. I invoke the four Evan- 
 
 1 Half an ounce, according to a formula in a MS. of the ninth century, 
 printed by Dom Gerbert (Patrolog. 138, 1142). 
 
 2 Exorcismus panis hordeacei vel casei. Baluze, II. 655. 
 
 20* 
 
234 THE ORBEAL. 
 
 gelists, Matthew, Mark, Luke, and John. I invoke Moses and Aaron, 
 who divided the sea. That they may hind to their throats the tongues 
 of the men who have committed this theft, or consented thereto. If 
 they taste this hread and cheese created by Thee, may they tremble 
 like a trembling tree, and have no rest, nor keep the bread and cheese 
 in their mouths, that all may know Thou art the Lord and there is 
 none other but Thee!'" 
 
 A striking illustration of the superstitions connected 
 with this usage is found in the story related by most of 
 the English chroniclers concerning the death of the pow- 
 erful Godwin, Duke of Kent, father of King Harold, and 
 in his day the king-maker of England. As he was dining 
 with his royal son-in-law, Edward the Confessor, some 
 trivial circumstance caused the king, to repeat an old accu- 
 sation that his brother Alfred had met his death at God- 
 win's hands. The old but fiery Duke, seizing a piece of 
 bread, exclaimed : " May God cause this morsel to choke 
 me if I am guilty in thought or in deed of this crime." 
 Then the king took the bread and blessed it, and Godwin, 
 putting it in his mouth, was suffocated by it, and fell dead. 3 
 A poetical life of Edward the Confessor, written in the 
 thirteenth century, gives a graphic picture of the death of 
 the Duke and the vengeful triumph of the King: 
 
 1 Muratori, Antiq. Ital. Dissert. 38. 
 
 This account, with unimportant variations, is given by Roger of Wen- 
 doVer, ann. 1054, Matthew of Westminster, ann. 1054, the Chronicles of 
 Croyland, ann. 1053, Henry of Huntingdon, ann. 1053, and William of 
 Malmesbury, Lib. n. cap. 13; which shows that the legend was widely 
 spread and generally believed, although the Anglo-Saxon Chronicle, ann. 
 1052, and Roger de Hoveden, ann. 1053, in mentioning Godwin's death, 
 make no allusion to its being caused in this manner. A similar reticence is 
 observable in an anonymous Life of Edward (Harleian MSS. 526), p. 408 of 
 the collection in Rer. Britann. Script., and although this is perhaps the best 
 authority we have for the events of his reign, still the author's partiality for 
 the family of Godwin renders his evidence in this respect liable to suspicion. 
 
 No great effort of scepticism is requisite to suggest that Edward, tired of 
 the tutelage in which he was held, may have made way with Godwin by 
 poison, and then circulated the story related by the annalists to a credulous 
 generation. 
 
OB DBA i. <> r Rfi I ad. 
 
 " L'aleine e parole pert 
 
 Par K> morsel ki form s 'abort. 
 
 Mor/. est li MOglanl ffliin ; 
 
 Mut out force la benakun, 
 
 Ko duna a mors vortu, 
 
 Par unc la mort provee fu, 
 
 1 Atant' se escrie li rois, 
 
 1 Treiez hors ceu cben puuoia.' "' 
 
 This form of ordeal never obtained the extended influ- 
 ence which ch&raeteriteel some of the other modes, and it 
 teems to have been chiefly confined to the populations allied 
 to the Saxon nice. In England, before the Conquest, it was 
 enjoined on the lower orders of the clergy, 3 and it may be 
 considered as a plebeian mode of trial, rarely rising into 
 historical importance. Its vitality, however, is demon- 
 strated by the fact that Lindenbruck, writing in 1G13, 
 states that it was then still in frequent use. 3 
 
 Almoin relates a story which, though in no sense judi- 
 cial, presents us with an instance of the same superstition. 
 A certain renowned knight named Arnustus unjustly oc- 
 cupied a property belonging to the Benedictine Abbey of 
 Fleniy. Dining there one da}-, and boasting of his con- 
 tempt for the complaints of the holy monks, he took a pear 
 and exclaimed " I call this pear to witness that before the 
 year is out I will give them ample cause for grumbling." 
 Choking with the first morsel, he was carried speechless to 
 bed, and miserably perished unhouselled, a warning to 
 evil-doers not to tempt too far the patience of St. Benedict. 4 
 These stories are by no means uncommon, and are interest- 
 ing as a picture of the times, when they were reverently 
 received, and formed a portion of the armory by which the 
 weak defended themselves against the strong. Somewhat 
 
 1 Lives of Edward the Confessor, p. 119 (Rer. Britann. Script.). 
 " Dooms of Ethelred, ix. 22; Cnut. Eccles. Tit. v. 
 1 Alium examinis modum, nostro etiamnunc esoculo, ssepe malo modo 
 usitatum. Cod. Legum Antiq. p. 1418. 
 ' De Mirac. S. Benedicti. Lib. I. c. v. 
 
236 THE ORDEAL. 
 
 similar is an occurrence related about the year 1090, when 
 Duke Henry of Limburg was involved in a quarrel with 
 Engilbert, Archbishop of Treves, and treated the excom- 
 munication and anathema inflicted upon him with contempt. 
 Joking upon the subject with his followers one day at din- 
 ner, he tossed a fragment of food to his dog, remarking 
 that if the animal ate it, they need not feel apprehensive of 
 the episcopal curse. The dog refused the tempting morsel, 
 though he manifested his hunger by eagerly devouring food 
 given him by another hand, and the Duke, by the advice of 
 his counsellors, lost no time in reconciling himself with his 
 ghostly adversary. This is the more remarkable, as Engil- 
 bert himself was under excommunication by Gregory YIL, 
 being a stanch imperialist, who had received his see from 
 Henry IV. and his pallium from the antipope Guiberto. 1 
 
 In India, this ordeal is performed with a kind of rice 
 called sathee, prepared with various incantations. The 
 person on trial eats it, with his face to the East, and then 
 spits upon a Peepul leaf. "If the saliva is mixed with 
 blood, or the corners of his mouth swell, or he trembles, 
 he is declared to be a liar." 2 
 
 A simplification of the ordeal of consecrated bread was 
 the trial by the Eucharist, which indeed may be regarded 
 as bearing a similar relation to all the forms of ordeal, as 
 its administration was invariably a portion of the prepara- 
 tory ceremony, with the awful adjuration, "May this body 
 and blood of our Lord Jesus Christ be a judgment to 
 thee this day!" The general use of the sacrament to lend 
 authority and solemnity to transactions, and the binding 
 force it was thought to give to treaties, agreements, and 
 the testimony of witnesses, might seem to remove it in its 
 simplicity from among the list of ordeals proper, were it 
 
 1 Gesta Tr ever or urn, continuat. i. (Patrol. 154, 1205-6.) 
 
 2 Ayeen Akbery, II. 498. 
 
T I! | | IT II \ | 1ST. 231 
 
 not for tli** superstition of the age irhiefa believed that, 
 when ihr consecrated wafer was offered under appropriate 
 
 invocations, the guilty could not receive it. or that, If it 
 were taken, immediate convulsions and speedy death, or 
 some other miraculous manifestation, ensued This is well 
 illustrated by a form of exorcism preserved by Mansi: 
 M We humbly pray thy Infinite Majesty that this priest, if 
 guilty of the accusation, shall not be able to receive this 
 Venerated body of thy Son, crucified for the salvation of 
 all, and that what should be the remedy of all evil shall 
 prove to him hurtful, full of grief and suffering, bearing 
 with it all sorrow and bitterness." 1 What might be ex- 
 pected under such circumstances is elucidated by a case 
 which occurred in the early part of the eleventh century, as 
 reported by Rodolphus Glaber, a contemporary, in which a 
 monk, condemned to undergo the trial, boldly received the 
 sacrament, when the Host, indignant at its lodgment in 
 the body of so perjured a criminal, immediately slipped 
 out at the navel, white and pure as before, to the immense 
 consternation of the accused, who forthwith confessed his 
 crime. 8 
 
 The antiquity of this mode of trial is shown in its em- 
 ployment by Cautinus, Bishop of Auvergne, towards the 
 close of the sixth century. A certain Count Eulalius was 
 popularly accused of parricide, whereupon he was suspended 
 from communion. On his complaining of thus being pun- 
 ished without a trial, the bishop administered the sacra- 
 ment under the customary adjuration, and Eulalius, taking 
 
 1 Baluz. et Mansi Miscell. II. 575. 
 
 9 Lib. v. cap. i. Somewhat similar is the story of a volunteer miracle 
 vouchsafed to an unchaste priest at Lindisfarne, who being suddenly sum- 
 moned to celebrate mass without having had time to purify himself, when he 
 came to partake of the sacramental cup. saw the wine change to an exceeding 
 blackness. After some hesitation he took it, and found it bitter to the last 
 degree. Hurrying to his bishop, he confessed his sin, underwent penance, 
 and reformed his life. (Roger of Wendover, ann. 1051.) 
 
238 THE ORDEAL. 
 
 it without harm, was relieved from the imputation. 1 It 
 was usually, however, a sacerdotal form of purgation, as is 
 shown by the Anglo-Saxon laws, 3 and by the canons of the 
 Councils of Tribur and Worms directing its employment, 
 in all cases of ecclesiastics charged with crimes, to relieve 
 them from the necessity of taking oaths. 3 Thus, in 941, 
 Frederic, Archbishop of Mainz, publicly submitted to an 
 ordeal of this kind, to clear himself of the suspicion of 
 having taken part in an unsuccessful rebellion of Henry, 
 Duke of Bavaria, against his brother, Otho the Great. 4 
 After the death of Henry, slander assailed the fame of his 
 widow, Juthita, on account of an alleged intimacy between 
 her and Abraham, Bishop of Frisingen. When she, too, 
 died, the bishop performed her funeral rites, and, pausing 
 in the mass, he addressed the congregation : " If she was 
 guilty of that whereof she was accused, may the Omnipo- 
 tent Father cause the body and blood of the Son to be my 
 condemnation to just perdition, and perpetual salvation to 
 her soul!" after which he took the sacrament unharmed, 
 and the people acknowledged the falsity of their belief. 5 
 So in 1050, Subico, Bishop of Speyer, cleared himself of a 
 similar accusation at the Council of Mainz, in the same 
 manner. 6 
 
 Perhaps the most striking instance recorded of its admi- 
 nistration was, however, in a secular matter, when in 869 
 it closed the unhappy controversy between King Lothair 
 
 1 Greg. Turon. Hist. Lib. x. cap. 8. 
 
 3 Dooms of Ethelred, x. 20 ; Cnut. Eccles. Tit. v. 
 
 3 Can. Statuit quoque. Caus II. qusest. v. Concil. Vormat. ann. 868, 
 can. 15. 
 
 * Reginonis Continuat. Ann. 941. 
 
 8 Dithmari Chron. Lib. n. 
 
 6 Hist. Archiep. Bremens. ann. 1051. (Lindenbrog. Script. Septentrion. 
 p. 90.) Lambert. Schafnab. ann. 1050. Another account of the transaction, 
 however, states that the bishop's jaw became paralyzed in the act, " terrifico 
 sacramento Dominici corporis," and remained in that condition until his 
 death (Hartzheim Concil. German. III. 112). 
 
I ii i; 11 c ii a u ist. ?S? 
 
 and hi* wives, to which reference has been already made. 
 
 T<> reconcile himself t<> the (Munch, Lothair took a solemn 
 oath before Adrian 1 1, tliat be had obeyed the eocleeiaatica] 
 mandates in maintaining complete separation from his 
 psendo-wife Waldrada, after whieh the pontiff admitted him 
 
 to communion, under an adjuration t hat it should prove 
 the test of his truthfulness. Lothair did not shrink from 
 the ordeal, nor did his nobles, to whom it was given on 
 their declaring that they had not abetted the designs of 
 the concubine; but, leaving Rome immediately afterwards, 
 the royal cortfye was stopped at Piacenza by a sudden epi- 
 deniie which broke out among the courtiers, and there 
 Lothair died. August 8th, with nearly all of his followers 
 an awful example held out by the worthy chroniclers as a 
 warning to future generations, M for he who eats and drinks 
 it unworthily eats and drinks his own condemnation." 1 
 
 In this degradation of the Host to the level of daily life, 
 there was a profanity which could hardly fail to disgust a 
 reverential mind, and we are therefore not surprised to find 
 King Robert the Pious, in the early part of the eleventh 
 century, raising his voice against its judicial use, and 
 threatening to degrade the Archbishop of Sens for employ- 
 ing it in this manner, especially as his biographer informs 
 us that the custom was daily growing in favor. a Robert's 
 example was soon afterwards imitated by Alexander II. 
 who occupied the pontifical chair from 1061 to 1073. 3 The 
 next pope, however, the impetuous Hildebrand, made use 
 of it on a memorable occasion, and in a manner productive 
 of lasting results. When, in 1077, the unhappy Emperor 
 Henry IV. had endured the depths of humiliation before 
 
 1 Regino, ann. 869; Annal. Bertiniani. "But let a man examine him- 
 self, and so let him eat of that bread and drink of that cup, for he that eateth 
 and drinketh unworthily, eateth and drinkoth damnation to himself, not dis- 
 cerning the Lord's body." 1 Corinth, xi. 2S, 29. 
 
 - Helgaldi Epitome Vila Roberti Regis. 
 
 3 Duclos, Mcmoire sur les Kpreuves. 
 
240 THE ORDEAL. 
 
 the arrogant pontiff's castle gate at Canosa, and had at 
 length purchased peace by submitting to all the exactions 
 demanded of him, the excommunication under which he 
 had lain was removed in the chapel. Then Gregory, refer- 
 ring to the crimes imputed to himself by the emperor's 
 partisans, said that he could easily refute them by abundant 
 witnesses ; " but lest I should seem to rely rather on human 
 than divine testimony, and that I may remove from the 
 minds of all, by immediate satisfaction, every scruple, 
 behold this bod}^ of our Lord which I am about to take. 
 Let it be to me this clay a test of my innocence, and 
 may the Omnipotent God this day by his judgment 
 absolve me of the accusations if I am innocent, or let 
 me perish by sudden death, if guilty!" Swallowing the 
 wafer, he turned to the emperor, and demanded of him 
 the same refutation of the charges urged against him by the 
 German princes. Appalled by this unexpected trial, Henry 
 in an agony of fear evaded it, and, trembling, consulted 
 hurriedly with his councillors how to escape the awful test. 
 Finally he declined on the ground of the absence of both 
 his friends and his enemies, without whose presence the 
 result would establish nothing; and thus, to avoid the 
 present danger of his imagination, he promised to submit 
 to a trial by the Imperial Diet. By this he lost the results 
 so dearly bought by his sacrifices and humiliations, and 
 perpetuated the civil strife, to put an end to which he had 
 labored and endured so much. 1 
 
 1 Lambert. Schaffnab. arm. 1077. In estimating tbe mingled power of 
 imagination and conscience wbich rendered the proposal insupportable to the 
 emperor, we must allow for the influence which a man like Hildebrand with 
 voice and eye can exert over those whom he wishes to impress. At an ear- 
 lier stage of his career, in 1055, he improvised a very effective species of 
 ordeal, when presiding as papal legate at the Council of Lyons, assembled 
 for the repression of simony. A guilty bishop had bribed the opposing wit- 
 nesses, and no testimony was obtainable for his conviction. Hildebrand 
 addressed him : " The episcopal grace is a gift of the Holy Ghost. If, there- 
 fore, you are innocent, repeat, ' Glory to the Father, and to the Son, and to 
 the Holy Ghost !' " The bishop boldly commenced, " Glory to the Father, 
 
T II | | o < II A B 1ST. 241 
 
 Even thus, however, he was more fortunate than Embrico, 
 Bishop of A.ngsbnrg, who. in the same year, after Bwearing 
 fealty to Rodolph of Suabia, abandoned him and Joined the 
 
 emperor. Soon after, while saving mass before Henry, to 
 prove the force of his Loyal convictions, he declared that 
 
 the sacrament he was about to take should attest the right- 
 eousness of his master's cause; and the anti-imperialist, 
 chronicler duly records that sudden disease overtook him, 
 to be followed by speedy death. 1 In the case of William, 
 Bishop of Utrecht, as related by Hugh of Flavigny, the 
 Eucharist was less an ordeal than a punishment. He dared, 
 at the Assembly of Utrecht, in 1076, to excommunicate 
 Gregory, at the command of Henry IV.; but when, at the 
 conclusion of the impious ceremony, he audaciously took 
 the I Tost, it turned to fire within him, and, shrieking "I 
 burn! I burn!" he fell down and miserably died. 3 
 
 and to the Son, and to " here his voice failed him, he was unable to finish 
 the sentence ; and, confessing the sin, he was deposed. This anecdote rests 
 on good authority. Peter Damiani states that he had it from Hildebrand 
 himself (Opusc. xix. cap. vi.), and Calixus II. was in the habit of relating 
 it (Pauli Bernried. Vit. Greg. VII. No. 11). 
 
 1 Cernald. Constant. Chron. ann. 1077. 
 
 " Ilngon. Flaviniac. Chron. Lib. n. ann. 1079. Among the manifestations 
 of belief in the miraculous powers of the Host may be mentioned the prac- 
 tice of throwing on a conflagration the cloth used to cover the sacred cup, 
 in the expectation that it would extinguish the flames. This superstition 
 was sufficiently important to attract the reprehension and prohibition of the 
 Council of Selingenstadt in 1022. " Conquestum est . . . de quibusdam 
 stultissimis presbyteris ut quando incendium videant, corporale dominico 
 corpore consecratum, ad extinguendum incendium temeraria prssumptione 
 in ignem projiciant. Ideoque decretum est sub anathematis interdictione, 
 ne ulterius fiat." (Concil. Selingens. cap. vi.) A less harmless belief in the 
 virtues of the body of our Lord was shown during the terrible persecution 
 which repressed the religious movement of Germany in the second quarter of 
 the thirteenth century. It is gravely related that among the thousands of 
 unfortunate heretics who expiated their perverseness at the stake, one poor 
 wretch would not burn, and obstinately resisted the efforts of his torturers, 
 until some one brought to the pile a holy wafer, when the unbeliever was 
 promptly reduced to a cinder. (Alberic. Trium Fontium Chron. ann. 1233.) 
 21 
 
242 THE ORDEAL. 
 
 The ordeal of the lot left the decision to pure chance, 
 in the hope that Heaven would interpose to save the 
 innocent and punish the guilty. We may assume that 
 this was extensively practised in Pagan times, but 
 that, on the introduction of Christianity, it gradually 
 became obsolete, as the various modes of appealing to the 
 Deity, which are described above, acquired importance 
 and threw the less impressive reference to the lot into 
 insignificance. The only allusions to it occur in the ear- 
 lier laws, and no trace of it is to be met with in the 
 subsequent legislation of any race. Mention of it is made 
 in the Ripuarian code, 1 and in some of the earlier Merovin- 
 gian documents its use is prescribed in the same brief 
 manner. 3 Indeed, as late as the middle of the eighth 
 century, Ecgberht, Archbishop of York, quotes from the 
 canons of the Council of Ireland (probably that of A. I). 456) 
 a direction for its employment in cases of sacrilegious theft, 
 as a means of determining the punishment to be inflicted. 3 
 On the other hand, shortly after, the Council of Calchuth, 
 in England, condemned the practice between litigants as a 
 remnant of paganism. 4 
 
 No explanation is given of the details of the process by 
 which this ajopeal to fortune was made, and I know of no 
 contemporary applications by which its formula can be inves- 
 
 1 Ad ignem seu ad sortem se excusare studeat. Tit. xxxi. 5. 
 
 9 Pact. Childeberti et Chlotarii, ann. 593, 5. " Et si dubietas est, ad 
 sortem ponatur." Also 8 : "Si litus de quo inculpatur ad sortem ambu- 
 laverit." As in 4 of the same document the aneum or hot-water ordeal is 
 provided for freemen, it is possible that the lot was reserved for slaves. 
 This, however, is not observed in the Decret. Chlotarii, ann. 595, 6, where 
 the expression, M Si de suspicione inculpatur, ad sortem veniat," is general 
 in its application, without reservation as to station. 
 
 3 Si quis furatus fuerit pecuniam ab a^cclesia, mittatur sors, ut aut illius 
 manus abscindatur, aut in carcerem mittatur, diu jejunans ac gemens. 
 Ecgberti Excerpt, cap. lxxxiv. (Thorpe, II. 108). 
 
 4 Audivimus etiam quod dum inter vos litigium versatur, sortes more gen- 
 tilium mittatis, quod omnino sacrilegium istis teraporibus reputatur Cone. 
 Calchuth. can. 19 (Spelman, Concil. Brit. I. 300). 
 
T I! | l,OT. 243 
 
 tigated ; but in the primitive Frisian laws there Is described 
 a singular ordeal of chance, which may reasonably be as- 
 sumed to bear sonic relation to it. When a man was killed 
 in a ohanoe-medley and the murderer remained unknown, 
 the friends had a right to accuse seven of the participants 
 in the brawl. Bach of these defendants had then to take 
 the oath of denial with twelve conj orators, after which they 
 Were admitted to the ordeal. Two pieces of twig, precisely 
 similar, were taken, one of which was marked with a cross; 
 they were then wrapped up separately in white wool and 
 laid on the altar ; prayers were recited, invoking God to 
 reveal the innocence or guilt of the party, and the priest, 
 or a sinless youth, took up one of the bundles. If it con- 
 tained the marked fragment, the defendants were absolved ; 
 if the unmarked one, the guilty man was among them. 
 Each one then took a similar piece of stick and made a 
 private mark upon it ; these were rolled up as before, 
 placed on the altar, taken up one by one, and unwrapped, 
 each man claiming his own. The one whose piece was left 
 to the last was pronounced guilty, and was obliged to pay 
 the wehr-gild of the murder. 1 The various modes of eccle- 
 siastical divination, so frequently used in the Middle Ages 
 to obtain an insight into the future, sometimes assumed 
 the shape of an appeal to Heaven to decide questions of 
 the present or of the past. 2 Thus when three bishops, 
 of Poitiers, Arras, and Autun, each claimed the holy 
 
 1 L. Frision. Tit. xiv. 1, 2. This may not improbably be derived from 
 the mode of divination practised among the ancient Germans, as described 
 by Tacitus, De Moribus German, cap. x. 
 
 3 When used for purposes of divining into the future, these practices were 
 forbidden. Thus as early as 465 the Council of Vannes denounced those 
 who "sub nomine fictaj religionis quas sanctorum sortes vocant divinationis 
 scientiam profitentur, aut quarumcumque scripturarum inspectione futura 
 promittant," and all ecclesiastics privy to such proceedings were to be ex- 
 pelled from the church. (Concil. Venet. can. xvi.) This canon is repeated 
 in the Council of Agde in 506, where the practice is denounced as one "quod 
 'maxima fidem catholicse religionis infestat." (Cone. Agathens. can. xlii.) 
 
244 THE ORDEAL. 
 
 relics of St. Liguaire, and human means were unavailing 
 to reconcile their pretensions, the decision of the Supreme 
 Power was resorted to, by placing under the altar-cloth 
 three slips with their respective names inscribed, and after 
 a becoming amount of prayer, on withdrawing one of them, 
 the See of Poitiers was enriched with the precious remains 
 by Divine favor. 1 
 
 Somewhat similar in character was an appeal to heaven 
 made by the pious monks of Abingdon, about the middle 
 of the tenth century, to determine their right to the mea- 
 dows of Beri against the claims of some inhabitants of 
 Oxfordshire. For three days, with fasting and prayer, they 
 implored the Divine omnipotence to make manifest their 
 right; and then, by mutual assent, they floated on the 
 Thames a round buckler, bearing a handful of wheat, in 
 which was stuck a lighted taper. The sturdy Oxonians 
 gaped at the spectacle from the distant bank, while a 
 deputation of the more prudent monks followed close upon 
 the floating beacon. Down the river it sailed, veering 
 from bank to bank, and pointing out, as with a finger, the 
 various possessions of the Abbey, till at last, on reaching 
 the disputed lands, it miraculously left the current of the 
 stream, and forced itself into a narrow and shallow channel, 
 which in high water made an arm of the river around the 
 meadows in question. At this unanswerable decision, the 
 
 1 Baldric. Lib. I. Chron. Camerac. cap. 21. (Du Cange, s. v. Sors.) In 
 this the bishops were guilty of no contravention of ecclesiastical rules. That 
 such trials were allowed by the canon law, when properly conducted for ap- 
 propriate purposes, is shown by Gratian. Decret. Caus. 26, q. 2, can. 3, 4. 
 The most extraordinary application, however, is that by which, under the 
 Spanish Wisigoths, episcopal elections were sometimes decided. The second 
 Council of Barcelona, in 599, directs that two or three candidates shall be 
 chosen by the clergy and people, and from among these the metropolitan 
 and suffragan bishops shall select by lot, " quern sors, pracunte episcoporum 
 jejunio, Christo domino terminante, monstraverit, benedietio consecrationis 
 accumulet." (Concil. Barcinon. II. can. 4.) This is evidently suggested 
 by the election of Matthias (Acts, I. 26). 
 
ORDEAL OF BLOOD. 245 
 
 people with one accord shouted M Jui A.bbendonifie, jus 
 Abbendonise !" and so powerful traa the impression pro- 
 duced, that the worthy chronicler assures us that thence- 
 forth neither king, nor duke, nor prince dared to lay claim 
 
 to the lands of Beri; showing conclusively the wisdom of 
 the abbot who preferred thus to rely upon his right rather 
 than on mouldy charters or dilatory pleadings. 1 
 
 As administered in India, the ordeal of chance consists 
 in writing the words dherem and adherem on plates of 
 silver and lead respectively, or on pieces of white and black 
 linen, which are placed in a vessel that has never held 
 water. The party on trial draws out one of the pieces, 
 and if it proves to be "dherem" he gains his cause. 9 
 
 The superstition that, at the approach of a murderer, 
 the body of his victim would bleed, or give some other 
 manifestation of recognition, is one of ancient origin, and 
 in some countries it has been made a means of investiga- 
 tion and detection. Shakspeare introduces it in King 
 Richard III., where Gloster interrupts the funeral of Henry 
 VI., and Lady Anne exclaims : 
 
 "0 gentlemen, see, see! dead Henry's wounds 
 Open their congealed mouths, and bleed afresh." 
 
 The story is well known which relates that, when Richard 
 Cceur-de-Lion hastened to the funeral of his father, Henry 
 II., and met the procession at Fontevraud, the blood poured 
 from the nostrils of the dead king, whose end he had has- 
 tened by his disobedience and rebellion. 3 The belief in 
 this, as also in the ordeal of fire, is well illustrated in the 
 ballad of " Earl Richard," given by Scott in the "Min- 
 strelsy of the Scottish Border." 
 
 1 Hist. Monast. de Abingdon Lib. I. (Rer. Brit. Med. iEvi Script. Vol. I. 
 p. 89). 
 
 a Ayeen Akbery, II. 498. This ordeal is allowed for all the four castes, 
 Brahmins, Kchatryas, Vaisyas, and Sofldras. 
 
 3 Roger de Hoveden, ann. 1189; Roger of Wendover. 
 
 21* 
 
24G THE ORDEAL. 
 
 " ' Put na the wite on me,' she said ; 
 'It was my may Catherine.' 
 Then they hae cut haith fern and thorn, 
 To hum that maiden in. 
 
 " It wadna take upon her cheik, 
 Nor yet upon her chin ; 
 Nor yet upon her yellow hair, 
 To cleanse that deadly sin. 
 
 " The maiden touched that clay-cauld corpse, 
 A drap it never hied ; 
 The ladye laid her hand on him, 
 And soon the ground was red." 
 
 King James I. patronized this among the other super- 
 stitions to which he gave the authority of his regal appro- 
 bation j 1 and in the notes to the above ballad, Scott quotes 
 some curious instances of the judicial use of the belief, 
 even as late as the seventeenth century. In 1611, suspicion 
 arising as to the mode by which a person had met his 
 death, the body was exhumed, and the neighborhood sum- 
 moned to touch it, according to custom. The murderer, 
 whose rank and position placed him above suspicion, 
 kept away ; but his little daughter, attracted by curiosity, 
 happened to approach the corpse, when it commenced 
 bleeding, and the crime was proved. In another case, 
 which occurred in 1687, the indictment sets forth that blood 
 rushed from the mouth and nostrils of the deceased, who 
 had been found drowned, on being accidentally touched 
 by his son ; and the latter was convicted and executed, 
 although there was little other evidence against him except 
 a generally bad character. The extent to which the super- 
 stition was carried is shown by a story of a young man, 
 who quarrelled with a companion, stabbed him, and threw 
 the body into a river. Fifty years passed away, when a 
 bone chancing to be fished up, the murderer, then an old 
 
 1 Nam ut in homieidio occulto sanguis e cadavere. tangente homicida, 
 eruinpit, quasi cubitus poscens ultionem. Demonologiae Lib. III. c. vi. 
 
ORDEAL OP BLOOD. 2 1 7 
 
 man, happened t<> touch It, and it streamed with blood. 
 Enquiring where it had been found, he recognized the relic 
 of his crime, confessed it, and was duly condemned. We 
 may trace a more poetic form of this superstition in the 
 touching legend of the welcome which the bones of Abe- 
 lard gave to Heloise, when, twenty years after his death, 
 she was consigned to the same tomb. 
 
 Although there is no allusion to this custom in any of 
 the primitive Leges Barbarorum, nor even in the German 
 municipal code of the thirteenth century, yet it was judi- 
 cially employed there until the sixteenth century, under 
 the name of " Bahr-recht." Thus in 1324, Reinward, a 
 Canon of Minden, was murdered by a drunken soldier, 
 and the crime was brought home to the perpetrator by a 
 trial of this kind; 1 and about the year 1600, Bishop Bins- 
 feld speaks of its occurrence as an indubitable fact. 2 In 
 1592, however, the learned jurisconsult Zanger, after citing 
 numerous authorities on both sides, concludes that it is 
 not evidence sufficient even to justify the application of 
 torture. 3 A variation of it, known as "Scheingehen," was 
 practised in the Netherlands and the North, in which the 
 hand of the corpse was cut off, and touched by all sus- 
 pected persons, with protestations of innocence, and when 
 the guilty one came, it was expected to bleed. 4 
 
 The vitalh^ of superstition is well illustrated by the 
 hold which this belief still maintains over the credulous 
 minds of the uneducated. Even in 1860, the Philadelphia 
 journals mention a case in which the relatives of a de- 
 ceased person, suspecting foul play, vainly importuned the 
 coroner, some weeks after the interment, to have the body 
 
 1 Swartii Chron. Ottbergens. xlvii. (Paullini Antiq. German. Syn- 
 tagma). 
 
 2 Tract, de Confess. Maleficar. Dub. iv. Conclus. 8, Prelud. 12 (ap. 
 Rickii 63). 
 
 3 Zangeri Tract, de Qufcstionibu?, cap. If. No. 1G0. 
 
 4 Konigswarter, op. cit. p. 183. 
 
248 THE ORDEAL. 
 
 exhumed, in order that it might be touched by a person 
 whom they regarded as concerned in his death. 1 
 
 We may even include among ordeals the ordinary pur- 
 gatorial oath, when administered upon relics of peculiar 
 sanctity, to which the superstition of the age attributed 
 the power of punishing the perjurer. Thus the monks of 
 Abingdon boasted a black cross made from the nails of the 
 crucifixion, and said to have been given them by the Em- 
 peror Constantine, a false oath on which was sure to cost 
 the malefactor his life ; and the worthy chronicler assures 
 us that the instances in which its miraculous power had 
 been triumphantly exhibited were too innumerable to spe- 
 cify. 8 In the Middle Ages, these dangerous relics were 
 common, and however we may smile at the simplicity of 
 the faith reposed in them, we may rest assured that on 
 many occasions they were the means of eliciting confessions, 
 which could have been obtained by no devices of legal sub- 
 tlety according to modern procedures. 
 
 Though not legally an ordeal, I may refer to a practice 
 cognate in its origin as an appeal to Heaven to regulate the 
 amount of punishment requisite for the expiation of a crime. 
 One or more bands of iron were not infrequently fastened 
 round the neck or arm of a murderer, who was banished 
 until by pilgrimage and prayer his reconciliation and par- 
 don should be manifested by the miraculous loosening of 
 the fetter, showing that soul and body were each released 
 from their bonds. 3 A case is related of a Pole thus wander- 
 
 1 Phila. Bulletin, April 19, 1860. 
 
 2 Sancta enim adeo est, ut nullus, juramento super earn praestito, impune 
 et sine periculo vitoe suse possit affirniare mendacium. Hist. Monast. Abing. 
 Lib. i. c. xii. (Rer. Brit. Script.) 
 
 3 Fratricidas autem et parricidas sive sacerdotum interfeetores .... per 
 manura et ventrem ferratos de regno ejiciat ut instar Cain jugi et profugi 
 circueant terram. Leg. Bracilai Boeemor. (Annal. Saxo, ann. 1039). So 
 
1 B B EG 1 I. A H ORDEALS. 249 
 
 mgwitfa a circlet tightly clasped to each arm. One fell 
 before the intercession of St. Adalbert, the apoatle of 
 Prussia, hut the other retained Its hold until the Binner 
 came to the shrine of St. Hidulf near TouL There, joining 
 in the worship of the holy monks, the remaining hand flew 
 off with such force that it bounded against the opposite 
 Wall, while the pardoned criminal fell fainting to the 
 ground, the blood pouring from his liberated arm: a 
 miracle gratefully recorded by the spiritual children of the 
 saint. 1 Equally melodramatic in its details is a similar 
 instance of an inhabitant of Prunay near Orleans, laden 
 with three iron bands for fratricide. His weary pilgrimage 
 was lightened of two by the intercession of St. Peter at 
 Rome, and the third released itself in the most demonstra- 
 t i ve manner, through the merits of St. Bertin and St. Omer.- 
 If the legend of St. Emeric of Hungary be true, the Pope 
 himself did not disdain to prescribe this ordeal to the 
 criminal whose miraculous release caused the immediate 
 canonization of the saint by a synod in 1073.'* 
 
 The spirit of the age is likewise manifested in an appeal 
 to Heaven which terminated a quarrel in the early part of 
 the twelfth century between St. Gerald, Archbishop of 
 Bracara, and a magnate of his diocese, concerning the 
 patronage of a church. Neither being inclined to yield, at 
 length the noble prayed that God would decide the cause 
 by not permitting the one who was in the wrong to live 
 beyond the year, to which St. Gerald assented ; and in six 
 
 also a century earlier for the murder of a chief. Concil. Spalatens. arm. 
 927, can. 7 (Batthyani, I. 331). 
 
 1 De Successoribus S. Hidulfi cap. xviii. (Patrolog. 138, p. 218). A 
 similar case attested the sanctity of St. Mansuetus (Vit. S. Mansueti Lib. 
 ii. c. 17 Martene et Durand. III. 1025). 
 
 3 Folcardi Mirac. S. Bertin. Lib. i. c. 4. 
 
 1 Batthyani, Legg. Eccles. Hung. T. I. p. 413. Cf. also Mirac. S. Swithuni, 
 c. ii. $ 32. Mirac. S. Yvonis c. 21 (Patrol. 155, pp. 76, 91). Various other 
 instances may be found in Muratori, Antiq. Med iEvi Diss. 23. Charle- 
 magne seems to have considered it a deception to be restrained by law. 
 Car. Mag. cap. i. ann. 789, Ixxvii. 
 
250 THE ORDEAL. 
 
 months the death of the unhappy noble showed how dan- 
 gerous it was to undertake such experiments with a saint. 1 
 The various poison ordeals in use among the savage 
 tribes of Africa and Madagascar have already been alluded 
 to. In India, the same custom is preserved for the un- 
 fortunate caste of the Soudras. A specified quantity of 
 deadly poison, varying with the activity of the article 
 administered, is mixed with thirty times its weight of ghee 
 or clarified butter. The patient takes it with his face to 
 the North, and if it produces no effect upon him while the 
 Irvstanders can clap their hands five hundred times, he is 
 absolved, and antidotes are at once given him. 3 
 
 Having thus described the various forms in which the 
 common principle of the ordeal developed itself, there are 
 some general considerations connected with it which claim 
 brief attention. It was thoroughly and completely a judi- 
 cial process, ordained by the law for certain cases, and 
 carried out by the tribunals as a regular form of ordinary 
 procedure. From the earliest times, the accused who was 
 ordered to undergo the trial was compelled to submit to it, 
 as to any other decree of court. Thus, by the Salique law, 
 a recusant under such circumstances was summoned to the 
 royal court ; and if still contumacious, he was outlawed, 
 and his property confiscated, as was customary in all cases 
 of contempt. 3 The directions of the codes, as we have seen, 
 
 1 Bernald. Vit. S. Gerald, cap. xv. (Baluz. et Mansi I. 134.) 
 
 3 Ayeen Akbery, II. 497. 
 
 3 That this was a settled practice is shown by its existence in the earliest 
 text of the law (Tit. lvi.), as well as in the latest (L. Emend. Tit. lix.). 
 It is therefore difficult to understand how Montesquieu could have overlooked 
 it, when, in order to establish his theory that the original Frankish institu- 
 tions admitted no negative proofs, he asserts with regard to the ordeal that 
 " Cette preuve etoit une chose de convention, que la loi souffroit, mais qu'elle 
 n'ordonnoit pas" (Esp. des Loix, Lib. xxviii. chap. 16) a statement con- 
 tradicted by all the monuments, historical and juridical, of the period. His 
 only proof is a somewhat curious custom of the Salien Franks, to which 
 reference is made below. 
 
REGULATIONS OF THE ORDEAL. 251 
 
 are generally precise, and admit <>f do alternative. 1 Ooe* 
 
 sionnlly, however, a privilege of selection was afforded 
 between this and other modes of compurgation, and also 
 between the various forms of ordeal. 9 
 
 The eiivumstaiiees under which its employment was 
 
 ordered varied considerably with the vary in^ Legislations 
 of races and epochs; and to enter minutely into the ques- 
 tion of the power of the court to decree it, or the right to 
 demand it by the appellant or the defendant, would require 
 
 too much space, especially as it has already been discussed 
 at some length with regard to the kindred wager of battle. 
 Suffice it to say, that the absence of satisfactory testimony, 
 rendering the case one not to be solved by human means 
 alone, is frequently alluded to as a necessary element ; 3 
 and indeed we may almost assert that this was so, even 
 when not specifically mentioned, as far as regards the dis- 
 cretion of the tribunal to order an appeal to the judgment 
 of God. At the same time, a law of King Ethelred seems 
 to indicate that the plaintiff might require his adversary 
 to submit to it, 4 and numerous examples among those 
 cited above authorize the conclusion that an offer on the 
 
 1 Si aufugerit et ordalium vitaverit, solvat plegius compellanti captale 
 suum ef regi weram suara, vel si qui wita sua dignus erit. L. Cnuti Saec. 
 cap. xxx. See also cap. xli. 
 
 Et eligat accusatus alterutrum quod velit, sive simplex ordalium, sive 
 jusjurandum unius libre in tribus hundredis super xxx. den! L. Henrici I 
 cap. lxv. 3. By the municipal codes of Germany, a choice between the 
 various forms of ordeal was sometimes allowed to the accused who was sen- 
 tenced to undergo it. Jur. Provin. Alaman. cap. xxxvii. $ 15, 16; Jur. 
 Provin. Saxon. Lib. i. Art. 39. 
 
 3 Si certa probatio non fuerit. L. Sal. Tit. xiv., xvi. (MS. Guelferbyt.) 
 The same is found in the Pact. Childeberti et Chlotarii 5 Decret. Chlo- 
 tarii II. ann. 595, 6. Capit. Carol. Calvi, ann. 870, cap. 3, 7. Cnuti 
 Constit. de Foresta 11: " Sed purgatio ignis nullatenus admittatur nisi 
 ubi nuda Veritas nequit aliter investigari." Further instances are hardly 
 needed, as the same limitation occurs in many of the laws quoted above. 
 
 * Et omnis accusator vel qui alium impetit, habeat optionem quid relit, 
 sive judicium aque vel ferri . . . et si fugiet (accusatus) ab ordalio, reddat 
 eum plegius wera sua." Ethelr. Tit. in. c. vi. (Thorpe II. 516.) 
 
252 THE ORDEAL. 
 
 part of the accused was rarely refused, even when there 
 was strong evidence against him, 1 though this laxity of 
 practice was occasionally stoutly objected to. 3 When the 
 custom was declining, indeed, a disposition existed to 
 require the assent of both parties before the tribunal would 
 allow a case to be thus decided. 3 In civil cases, we may 
 assume that absence of testimony, or the consent of both 
 parties, was requisite to its emplo3^ment. 4 The comfort 
 which the system must have afforded to indolent judges 
 in doubtful cases is well exhibited by a rule in various 
 ancient codes, by which a man suspected of crime, even 
 
 1 Thus in the Icelandic code " Quodsi reus ferrum candens se gerere velle 
 obtulerit, hoc miniine rejiciatur." Gr&gds, Sect vi. c. 33. So in the laws 
 of Bruges in 1190 ( 31), we find the accused allowed to choose between the 
 red-hot iron and a regular inquest " Qui de palingis inpetitur, si ad judicium 
 ardentis ferri venire noluerit, veritatem comitis qualem melius super hoc 
 inveniri poterit, accipiet" (Warnkb'nig, Hist, de la Fland. IV. 372) show- 
 ing that it was considered the most absolute of testimony. And in a consti- 
 tution of Frederic Barbarossa " Si miles rusticum de violata pace pulsaverit 
 
 . . . . de duobus unum rusticus eligat, an divino aut humano judicio inno- 
 centiam suam ostendat." Feudor. Lib II. Tit. xxvii. 3. 
 
 2 Thus an anonymous ecclesiastic, in an epistle quoted by Juretus (Ob- 
 servat. in Ivon. Carnot. Epist. 74) " Simoniaci non admittuntur ad judi- 
 cium, si probabiles personam, etiam laicorum, vel feminarum, pretium se ab 
 eis recipisse testantur ; nee aliud est pro manifestis venire ad judicium nisi 
 tentare Dominum." 
 
 3 Duellum vel judicium candentis ferri, vel aquas ferventis, vel alia canoni- 
 bus vel legibus improbata, nullomodo in curia Montispessulani rata sunt, nisi 
 utraque pars convenerit. Statut. Montispess. ann. 1204 (Du Cange). 
 
 4 Si accolis de neutrius jure constat, adeoque hac in re testimonium dicere 
 non queant, turn judicio aquae res decidatur. Jur. Provin. Alaman. cap. 
 eclxxviii. 5. Poterit enim alteruter eorum petere probationem per aquam 
 (wasser urteyll) nee Dominus nee adversarius detrectare possit ; sed non, nisi 
 quum per testes probatio fieri nequit. Jur. Feud. Alaman. cap. lxxvii. 2. 
 
 '' Aut Veritas reperiatur de hoc per aquaticum Dei judicium. Tamen judi- 
 cium Dei non est licitum adhiberi per ullam causam, nisi cujus Veritas per 
 justitiam non potest aliter reperiri, hoc terminabitur judicio Dei." Jur. 
 Feud. Saxon. 100 (Senckenberg. Corp. Jur. Feud. German, p. 249). So, 
 also, in a later text, "judicium Domini fervida aqua vel ferro non licet in 
 causa aliqua experiri, nisi in qua modis aliis non poterit Veritas indagari." 
 Cap. xxiv. 19. (Ibid. p. 337.) 
 
PLAINTIFF SUBJECTED TO THE ORDEAL. 253 
 
 though no accuser came forward, was thrown Into prison 
 fend kept there until he could prove his Innocence by the 
 ordeal <>f water. 1 
 
 We have seen above occasional instances in which the 
 accuser or plaintiff offered to substantiate his veracity by 
 an appeal to the ordeal. This was an established rule with 
 regarcrao the wager of battle, but not as respects the other 
 tonus of the judgment of God, which were regarded rather 
 as means of defence than of attack. I have met with but 
 one instance of general instructions for their employment 
 by the accusing party. Archbishop Ilincmar directs that 
 cases of complaint against priests for dissolute life shall 
 be supported by seven witnesses, of whom one must sub- 
 mit to the ordeal to prove the truth of his companions' 
 oaths, as a wholesome check upon perjury and subornation. 3 
 With a similar object, the same prelate likewise enjoins it 
 on compurgators chosen b} r the accused, on his failing to 
 obtain the support of those who had been selected for him 
 by his judge. 3 Allied to this was a rule for its employ- 
 ment which was extensively adopted, allowing the accused 
 the privilege of compurgation with conjurators in certain 
 cases, only requiring him to submit to the ordeal on his 
 failing to procure the requisite number of sponsors. Thus, 
 in T94, a certain Bishop Peter, who was condemned by the 
 Synod of Frankfort to clear himself, with two or three 
 
 1 Etablissements de Normandie. Tit. de Prison (Ed. Marnier). Precisely 
 similar to this was a regulation in the early Bohemian laws. Bracilai 
 Leges. (Patrol. 151, 1258-9.) And an almost identical provision is found in 
 the Anglo-Saxon jurisprudence. L Cnuti Ssec. cap. xxxv. L. Henric. I. 
 cap. Ixi. 5. See, also, Assises de Jerusalem, Baisse Court, eclix. 
 
 2 Et, exceptis accusatoribus, septem sint testes idonei, qui inde verita- 
 tem per sacramentum dicant, ex quibus sex jurent, et Septimus, si conditio 
 vel qualitas personae permittit, ad judicium exeat quod illi ex veritate inde 
 per sacramentum dixerunt ; quia multi jam deprehensi apud nos habentur, 
 quoniam pretio conducti se perjuraverunt. Ilincmari Capit. Synod, ann. 
 S52, ii. xxi. 
 
 ^HincirKiri Epist, xxxiv. 
 
254 THE ORDEAL. 
 
 conjurators, of the suspicion of complicity in a conspiracy 
 against Charlemagne, being unable to obtain them, one of 
 his vassals offered to pass through the ordeal in his behalf, 
 and on his success the Bishop was reinstated. 1 That this 
 was strictly in accordance with usage is shown by a very 
 early text of the Salique Law, 3 as well as by a similar pro- 
 vision in the Ripuarian code. 3 Among the Anglo-Saxons 
 it likewise obtained, from the time of the earliest allusion 
 to the ordeal occurring in their jurisprudence, down to the 
 period of the Conquest. 4 Somewhat similar in tendency 
 was a regulation of Frederic Barbarossa, by which a slave 
 suspected of theft was exposed to the red-hot iron, unless 
 his master would release him by an oath. 5 Occasionally 
 it was also resorted to when the accused was outsworn, 
 after having endeavored to defend himself by his oath or 
 by conjurators. Popular belief might give to the accuser 
 a larger number of men willing to associate themselves in 
 the oath of accusation than the defendant could find to 
 join him in rebutting it, and yet his guilt might not as yet 
 be clear. In such cases, the ordeal was a most convenient 
 resort. 6 
 
 These regulations give to the ordeal decidedly the aspect 
 of punishment, as it was thus inflicted on those whose guilt 
 was so generally believed that they could find none to 
 stand up with them at the altar as partakers in their oath 
 
 1 Capit. Car. Mag. Ann. 794, 7. 
 
 2 Se juratores non potuerit invenire, aut ad ineum ambulat aut, etc. 
 MS. Uuelferbyt. Tit. xiv. 
 
 3 Quod si ... . juratores invenire non potuerit, ad ignem seu ad sortem 
 se excusare studeat. L. Ripuar. Tit. xxxi. 5. 
 
 4 Dooms of Edward the Elder, cap. iii. So also in the laws of William the 
 Conqueror, Tit. i. cap. xiv. "Si sen escundira sei duzime main. E si il 
 auer nes pot, si sen defende par juise." The collection known by the name 
 of Henry I. has a similar provision, cap. lxvi. 3. 
 
 5 Si servus aliquis culpatus non in furto fuerit deprehensus, sequente die 
 expurgabit se judicio igniti ferri, vel dominus juramentum pro eo praestabit. 
 Radevic. de Reb. Frid. Lib. i. cap. xxvi. 
 
 Concil. Tribur. ann. S95, c. xxii. 
 
USED AS A PUNISHMENT. 161 
 
 of denial; and tins is not the only circumstance which 
 leads us to believe thai it was frequently so regarded. The 
 
 graduated scale of single and triple ordeals for offences of 
 different magnitudes is so totally a1 variance with the theory 
 of miraculous interposition to protect innocence and punish 
 guilt, that we can only look upon it as a mode of inflicting 
 graduated punishments in doubtful cases, thus holding up 
 a certain penalty in terrorem over those who would other- 
 wise hope to escape by the secrecy of their crime no doubt 
 with a comforting conviction, like that of De Montfort's 
 priestly adviser at the sack of Beziers, that Heaven would 
 know its own. This same principle is visible in a provision 
 of the charter of Loudun, granted by Louis-le-Gros in 1128, 
 by which an assault committed outside of the liberties of 
 tlu' commune could be disproved by a simple sacramental 
 oath ; but if within the limits of the commune, the accused 
 was obliged to undergo the ordeal. 1 Further evidence is 
 a Horded by the principle, interwoven in various codes, by 
 which a first crime was defensible by conjurators, or other 
 means, while the " tiht-bysig" man, the "homo infamatus," 
 one of evil repute, whose character had been previously 
 compromised, was denied this privilege, and was forced at 
 once to the hot iron or the water. Thus, among the Anglo- 
 Saxons, in the earliest allusion to the ordeal by Edward the 
 Elder, it is provided that perjured persons, or those who had 
 once been convicted, should not be deemed thereafter oath- 
 worthy, but should be hurried to the ordeal ; a regulation 
 repeated with some variations in the laws of Ethelred, Cnut, 
 and Henry I. 9 The Carlovingian legislation establishes a 
 similar principle, 3 and the Council of Tribur, in 895, shows 
 
 1 Chart. Commun. Laudun. (Baluz. et Mansi IV. p. 39.) 
 
 9 Ut deinceps non sint digni juramento sed ordalio. Legg. Edwardi 
 
 cap. iii. ; Ethelredi cap. i. 1 ; Cnuti Saecul. cap. xxii., xxx. ; Henrici I. 
 
 cap. Ixv. 3. 
 
 3 Capit. Car. Mag. I. ann. 809, cap. xxviii. Capit. Ludov. Pii. i. ann. 
 
 819. 
 
256 THE ORDEAL. 
 
 it to be still in force. 1 Three centuries later, the legislation 
 of Flanders shows the same tendency, the code granted to 
 Bruges in 1190 providing that a first accusation of theft 
 should be decided by witnesses, while a second was to be met 
 by the cold-water ordeal. 3 In the German municipal law of 
 the thirteenth century, the same principle is observed. An 
 officer of the mint issuing false money was permitted the 
 first time to swear to his ignorance, but on a second offence 
 he had to submit to the ordeal; and it was similarly en- 
 joined on those who had become infamous on account of a 
 previous conviction of theft. 3 The contemporary jurispru- 
 dence of Spain has a somewhat similar provision, by which 
 a woman accused of homicide could not be exposed to the 
 ordeal, unless she could be proved utterly abandoned, for 
 which a curious standard was requisite,* and this is the 
 more remarkable, since by the same code a procuress was 
 forced at once to the red-hot iron to prove her innocence. 
 In the legislation of Charlemagne, there is a curious pro- 
 vision, by which a man convicted seven times of theft was 
 no longer allowed to escape on payment of a fine, but was 
 forced to undergo the ordeal of fire. If he succumbed, he 
 was put to death ; if he escaped unhurt, he was not dis- 
 
 1 Nobilis homo vel ingenuus .... cum duodecim ingenuis se expurget. 
 
 Si antea deprehensus fuerit in furto vel perjurio aut falso testimonio 
 
 ferventi aqua aut candenti ferro se expurget. Burchardi Decret. Lib. xvt. 
 cap. 19. 
 
 2 Keure de la Chatellenie de Bruges, 28. Quodsi postmodum de furto 
 inpetitus venerit, purgabit se judicio frigidse aquae in suo corpore tantum. 
 (Warnkonig, Hist, de la Pland. IV. 371.) 
 
 3 Jur. Provin. Alaman. cap. clxxxvi. 4, 6, 7; cap. ccclxxiv. ; Jur. 
 Provin. Saxon. Lib. i. Art. 39. So, also, in the fourteenth century, the 
 " vir famae integraa" cleared himself "juramento super reliquiis sanctorum 
 prsestito," while, after a first offence " purgare se eum debere portatione 
 ferri candentis, vel immissione brachii usque ad cubitura in aquam ferven- 
 tem, vel tandem certamine singulari, pronunciatur." Richstich Landrecbt, 
 cap. Hi. 
 
 4 Si non fuere provada por mala, que aya yazido con cinco omes. Fuero 
 de Baefa (Villadiego, Fuero Juzgo, fol. 317 a). 
 
USED AS A TOB'TURI. 251 
 
 charged as Innocent, bnt nib lord was allowed to enter bail 
 for his future good behavior 1 a hiode at oner of administer- 
 ing punishment and of ascertaining whether his death would 
 be agreeable to Heaven. When we thus regard it as a 
 penalty on those who by misconduct had forfeited the con- 
 fldence of their fellow-men, the system loses part of its 
 absurdit}', in proportion as it departs from the principle 
 under which it was established. 
 
 There is also another aspect in which it is probable 
 thai the ordeal was viewed by those whose common sense 
 must have shrunk from it simply as an appeal to the judg- 
 ment of God. There can be little doubt that it was fre- 
 quently found of material use in extorting confession or 
 unwilling testimony. By the early codes, as in the primi- 
 tive Greek and Roman law, torture could be applied only 
 to slaves, and the ordeal was a legalized torture, applied 
 under circumstances peculiarly provocative of truth. 2 In 
 those ages of faith, the professing Christian, conscious of 
 guilt, must indeed have been hardened, who could undergo 
 the most awful rites of his religion, pledging his salvation 
 on his innocence, and knowing under such circumstances 
 that the direct intervention of Heaven could alone save 
 him from having his hand boiled to rags, 3 after which he 
 was to meet the full punishment of his crime, and perhaps 
 in addition lose a member for the perjury committed. With 
 
 1 Capit. Car. Mag. in. Ann. 813, cap. 46. 
 
 3 The close relationship hetween some forms of the ordeal and torture is 
 exemplified in the regulations which frequently enabled the freeman to clear 
 himself of accusations by compurgation, while the slave was required to 
 undergo the ordeal. See, for instance, Concil. Mogunt. ann. 847, can. xxiv. 
 
 3 The severity of the ordeal, when the sufferer had no friends among the 
 operators to save him, may be deduced from the description of a hand when 
 released from its three days' tying up after its plunge into hot water ; " in- 
 flatam admodum et excoriatam sanieque jam came putrida effluentem dex- 
 teram invitus ostendit." (Du Cange, s. v. Aqua Ferv. Judicium.) In this 
 e*M, the sufferer was the adversary of an abbey, of which the monks perhaps 
 had the boiling of the kettle. 
 
 22* 
 
258 THE ORDEAL. 
 
 such a prospect, all motives would conspire to lead him to 
 a prompt and frank acknowledgment in the early stages of 
 the proceedings against him. These views are strength- 
 ened by the fact that when, in the thirteenth centu^, the 
 judicial use of torture, as a means of obtaining testimony 
 and confession, was becoming systematized and generally 
 employed, the ordeal was falling into desuetude and rapidly 
 disappearing. The latter had fulfilled its mission, and the 
 former was a substitute better fitted for an age which 
 reasoned more, believed less, and at the same time was 
 quite as arbitrary and violent as the preceding. A further 
 confirmation of this supposition is afforded by the coinci- 
 dence that the only primitive jurisprudence which excluded 
 the ordeal that of the Wisigoths was likewise the only 
 one which habitually permitted the use of torture, 1 the 
 only reference to the ordeal in their jurisprudence being a 
 provision which directs its employment as a preliminary to 
 the more regular forms of torture. 
 
 Some of the ordeals, however, such as that of the Eucha- 
 rist, of bread and cheese, and touching the dead body, do 
 not come within this class, but they addressed themselves 
 powerfully to the conscience and imagination of the ac- 
 
 1 L. Wisig. Lib. vi. Tit. i. 3. An epistle attributed both to Stephen V. 
 and Sylvester II. shows that the ordeal was evidently regarded as a torture 
 by those whose enlightenment led them to condemn the popular faith in it 
 as a superstition: "Ferri candentis vel aqua) ferventis examinatione con- 
 fessionem extorqueri a quolibet, sacri non censuerunt canones, et quod sanc- 
 torum Patrum documento sancitum non est, superstitiosa adinventione non 
 est praesumendum." Ivon. Carnot. Epist. 74. Can. Consuluisti, Caus. II. 
 q. 5. That the ordeal was practically regarded as a torture, giving addi- 
 tional weight to testimony, is shown by the terms of an offer made to undergo 
 it by a priest named Adalger when in the Council of St. Baseul he confessed 
 the part he had taken with Arnoul, Archbishop of Rheims, in Charles of 
 Lorraine's resistance to the usurpation of Hugh Capet " Haec si quisquam 
 vestrum aliter esse putat, meque indignem cui credatur, credat igni, ferventi 
 aquae, candenti ferro ; faciant fidem tormenta quibus non sufficiant mea 
 verba." (Concil. Basol. cap. xi.) It is observable that he omits the cold- 
 water ordeal, as not being a torture. Rainer, private secretary of Arnoul, 
 offered to prove his statement by giving up a slave to walk the burning 
 ploughshares in evidence of his truth. (Ibid. cap. xxx.) 
 
EFFECTS N I HI I II I < I I N A TIO X . 959 
 
 eased, whose cations fortitude n<> doubl often gave way 
 onder the trial. 1 In oar own country, and almost within 
 our own time, the Latter ordeal was revived in one Instance 
 With this object, and the result did not disappoint the 
 expectations of those who undertook it. In the case of 
 People iw. Johnson, tried in New York in 1824, the sus- 
 pected murderer was led from his cell to the hospital where 
 lay the body of the victim, which lie was required to touch. 
 Dissimulation which had been before unshaken failed hi in 
 at the awful moment ; his overstrung nerves gave way, 
 and a confession was faltered forth. The proceeding was 
 sustained by court, and a subsequent attempt at retraction 
 was overruled. 3 The powerful influence of such motives 
 is shown in a custom which, as recently as 1815, was still 
 employed at Mandeure, near Montbelliard, and which is 
 perhaps the latest European instance of the legalized ap- 
 plication of an ordeal. When a theft had been committed, 
 the inhabitants were summoned to assemble after vespers 
 on Sunday at -the place of judgment. There the mayor 
 summoned the guilty person to make restitution and live 
 in isolation for six months. If this appeal proved fruitless, 
 recourse was had to' the trial of the staff, in which two 
 magistrates held aloft a piece of wood, under which every 
 one was bound to pass. No instance was on record in 
 Which the culprit dared to do this, and he was always left 
 alone. 3 
 
 There are two peculiarities of the system, perhaps worth 
 alluding to, Avhich may be thought to militate against the 
 theory of its use as a torture. The one is the permission 
 
 1 As regards the ordeal of bread, Boceacio's story of Calendrino (Giorn. 
 vni. Nov. 6), which turns upon the mixing of a quantity of aloes with the 
 food intended for the corsnccd, perhaps throws some light on the miracles 
 reported so freely by the honest monkish chroniclers, and on the practices 
 by which the whole system was rendered subservient to the interests of those 
 intrusted with its administration. 
 
 '- Wharton and Stille's Med. Jurisp., 2d Ed., 1860. 
 
 3 Miclielet, Origines des Loix, p. 349. 
 
200 THE ORDEAL. 
 
 sometimes accorded to put forward substitutes or cham- 
 pions, who dared the fire or water as freely as the field of 
 single combat. Of this custom so many examples have 
 already been given incidentally, that further instances 
 would be superfluous, and I would only add that it is no- 
 where permitted as a general rule by any code, except in 
 the case already quoted of the ordeal of the cross, where it 
 was a privilege accorded to the old or infirm, and probably 
 only as a local custom. That a person rich enough to 
 purchase a substitute, or powerful enough to force some 
 unhappy follower or vassal to take his place, should obtain 
 a favor not generally allowed, is a matter of course in the 
 formative periods of society; accordingly, it will be ob- 
 served that all the instances of the kind mentioned above 
 relate to those whose dignity or station may well have 
 rendered them exceptional. 
 
 This is further rendered probable by the fact that ex- 
 emption from the ordeal was in some places the privilege 
 of freemen, who were entitled to rebut accusations by the 
 safer mode of procuring a definite number of compurgators 
 to take with them the purgatorial oath. We find this 
 alluded to as early as the seventh century, in the legis- 
 lation of the Ripuarian Franks, among whom the ordeal 
 was reserved for strangers and slaves. In 895 the Council 
 of Tribur draws the line with a distinctness which shows 
 that the custom was well established at that period. 1 I 
 
 1 It permits the "nobilis homo vel ingenuus" to rebut an accusation with 
 twelve compurgators, but if he had previously been convicted of crime 
 " sicut qui ingenuus non est, ferventi aqua aut candenti ferro se expurget." 
 (Burchardi Decret. Lib. xvi. cap. 19.) 
 
 The law of William the Conqueror (Tit. n. c. 3. Thorpe, I. 488), by which 
 the duel was reserved for the Norman, and the vulgar ordeal for the Saxon, 
 might be supposed to arise from a similar distinction. In reality, however, 
 it was only preserving the ancestral customs of the races, giving to the 
 defendant the privilege of his own law. The duel was unknown to the 
 Anglo-Saxons, who habitually employed the ordeal, while the Normans, pre- 
 vious to the Conquest, according to Houard, who is good authority (Anc. 
 Loix Franc. I. 221-222), only appealed to the sword. 
 
ALL CLASSES SUB.JKCTKD TO IT. 261 
 
 haw already quoted (p. 820) a document of 1051 giving 
 similar regulation in Alsaee, while in LI 92 the burghers 
 of Ghent inserted it in a charter -which (hey extorted from 
 the Countess Matilda, widow of Philip I. 1 So when, in 
 1085, the Emperor Benry I Y. proclaimed the Truce of God, 
 at the Assembly of Main/, he directed that those accused 
 of disregarding it should, if freemen, clear themselves with 
 twelve approved compurgators, while serfs and villeins 
 were forced to undergo the cold-water ordeal. 9 
 
 The other objection to our hypothesis is that to some 
 extent the common ordeal was a plebeian process, while 
 the patricians arrogated to themselves the wager of battle. 
 This distinction, however, hardly existed before the rise 
 of feudalism gave all privileges to those who were strong 
 enough to seize them, and even then it was by no means 
 universal. We have alread}' seen that although in the 
 early part of the eleventh century the Emperor Henry II. 
 undoubtedly promulgated such a rule, yet that Glanville, a 
 hundred and fifty years later, considers the red-hot iron as 
 noble, and that in the thirteenth century the feudal law of 
 Germany prescribes the wasser-urteyll for territorial dis- 
 putes between gentlemen. In the earlier codes the distinc- 
 tion is unknown, so that we are justified in assuming that 
 no general principles can be deduced from a regulation so 
 late in its appearance and so uncertain in its application. 
 
 The degree of confidence really inspired by the results 
 of the ordeal is a somewhat curious subject of speculation, 
 
 1 Si cui iinputetur et convictus non fuerit, liber per duodecira liberos se 
 purgabit, non liber judicio aqua) frigida). Keure de Gand, 7, 8, 12. 
 (Warnkonig, Hist, de la Fland. II. 228.) We see tbat it is here directed to 
 be used merely in default of other testimony, before liberating the accused 
 who could not be convicted. 
 
 - Cuicunque vero violatio hujus paeis imposita fuerit, et ipse negaverit, si 
 ingenuus est aut liber, duodecim probatis se expurget. Si servus, tarn lito 
 qunm ministerialis, judicio aqua) frigida). Henrici IV. Constit. IV. (Pa- 
 trolog. 151, 1135.) 
 
T 
 
 262 THE ORDEAL. 
 
 and one on which definite opinions are not easily reached. 
 Judicially, the trial was conclusive; the man who h ad duly 
 sunk under water, walked unharmed among the ..burning, 
 shares, or withdrawn an unblistered hand from a caldron 
 of legal temperature, stood forth among his fellows as 
 innocent. So, even now, the verdict of twelve fools or 
 knaves in a jury-box may discharge a criminal, against 
 the plainest dictates of common sense ; but in neither case 
 would the sentiments of the community be changed by the 
 result. The reverential feelings which alone could impart 
 faith in the system seem scarcely compatible with the prac- 
 tice of compounding for ordeals, by which a man was per- 
 mitted to buy himself oft*, by settling the matter with his 
 accuser. This mode of adjustment was not extensively 
 introduced, but it nevertheless existed among the Anglo- 
 Saxons, 1 while among the Franks it was a settled custom, 
 permitted by all the texts of the Salique law, from the 
 earliest to the latest. 2 Charlemagne^ in the earlier portion 
 \ of his reign, does not seem to have entertained much re- 
 spect for the judgment of God, when he prescribed the 
 administration of the ordeal for trifling affairs only, cases 
 of magnitude being reserved for the regular investigation 
 
 1 Dooms of JEthelstan, i. cap. 21. 
 
 2 First Text, Tit. liii. and L. Emend. Tit. lv. A person condemned by 
 the court to undergo the ordeal could, by a transaction with the aggrieved 
 party, purchase the privilege of clearing himself by canonical compurgation, 
 and thus escape the severer trial. He was bound to pay his accuser only a 
 portion of the fine which he would incur if proved guilty a portion varying 
 with different offences from one-fourth to one-sixth of the wehr-gild. The 
 interests of the tribunal were guarded by a clause which compelled him to 
 pay to the grafio, or judge, the full fredum, or public fine, if his conscience 
 impelled him to submit to an arrangement for more than the legal per- 
 centage. It is on this custom that Montesquieu relies to support his theory 
 of the absence of negative proofs in the Frankish jurisprudence. The fallacy 
 of the argument is further shown by the existence of a similar privilege in 
 the Anglo-Saxon laws, with which the learned jurist endeavors to establish 
 a special contrast. 
 
CONFIDENCE HIP081D IN IT. 2G3 
 
 of the law.' Thirty years Later, the public mind appears 
 afflicted with the same doubts, for we find the monarch 
 endeavoring i<> enforce confidence in the system by his 
 commands." How far he succeeded in this difficult attempt, 
 we have no means of ascertaining-; but a rule of English 
 law, lour hundred years Later, during the expiring struggles 
 of the practice, would show that it was regarded as by no 
 means conclusive, when I malefactor who had established 
 his innocence by hot water or iron obtained thereby only 
 a commutation of punishment, and was forced to leave the 
 kingdom in perpetual exile. 3 St. Ivo of Chartres, though 
 he had no scruple in recommending and enjoining the 
 ordeal, and, on one occasion at least, pronounced its de- 
 cisions as beyond appeal, yet he has placed on record his 
 conviction of its insufficiency, and his experience that the 
 mysterious judgment of God not infrequently allowed in 
 this manner the guilty to escape and the innocent to be 
 punished. 4 There is also evidence that the manifest in- 
 justice of the results obtained not infrequently tried the 
 faith of believers to a degree which required the most 
 ingenious sophistry for an explanation. When, in 1127, the 
 sacrilegious murder of Charles the Good, Earl of Flanders, 
 
 1 Quod si accusatus contendere voluerit de ipso perjurio stent ad crucem. 
 . . . Hoc vero de minoribus rebus. De majoribus vero, aut de statu inge- 
 nuitatis, secundum legem custodiant. Capit. Car. Mag. ann. 779, 10. 
 That this was respected as law in force, nearly a hundred years later, is 
 shown by its being included in the collection of Capitularies by Benedict the 
 Levite. (Lib. v. cap. 196.) 
 
 1 Ut omnes judicio Dei credant absque dubitatione. Capit. Car. Mag. i. 
 ann. 809, 20. 
 
 3 Constitutio quidem talis fuit, quod quamvis aliquis se purgaret judicio 
 aquae vel ignis, hie nihilominus regnum abjuraret. Bracton Lib. III. Tract 
 ii. cap. 16, 3. 
 
 4 Pro quibus aliquem condemnare nee usus majorum nee ulla legum con- 
 cedit auctoritas. . . . Simili modo, cauterium militis nullum tibi certum 
 prebftt argumentum, cum per examinationem ferri candentis occulto Dei 
 judicio multos videamus nocentes liberatos, multos innocentes saepe damna- 
 tos. Ivon. Carnot. Epist. ccv. 
 
264 THE ORDEAL. 
 
 sent a thrill of horror throughout Europe, Lambert of Re- 
 denburg, whose participation in the crime was notorious, 
 succeeded in clearing himself by the hot iron. Shortly 
 afterwards he undertook the siege of Ostbourg, which he 
 prosecuted with great cruelty, when he was killed in a sally 
 of the besieged. The pious Galbert assumes that Lambert, 
 notwithstanding his guilt, escaped at the ordeal in conse- 
 quence of his humility and repentance, and philosophically 
 adds : " Thus it is that in battle the unjust man is killed, 
 although in the ordeal of water or of fire he may escape, if 
 truly repentant." 1 The same doctrine was enunciated under 
 John Cantacuzenes, in the middle of the fourteenth century, 
 by a Bishop of Didymoteichus in Thrace. A frail fair one 
 being violently suspected by her husband, the ordeal of hot 
 iron was demanded by him. In this strait she applied to 
 the good Bishop, and he, being convinced of her repentance 
 and intention to sin no more, assured her that in such a 
 frame of mind she might safely venture on the trial, and 
 she accordingly carried the glowing bar triumphantly twice 
 around the Bishop's chair, to the entire satisfaction of her 
 lord and master. 2 While repentance thus enabled the crim- 
 inal to escape, on the other hand the innocent were some- 
 times held to be liable to conviction, on account of previous 
 misdeeds. A striking instance of the vague notions cur- 
 rent is afforded in the middle of the eleventh century by a 
 case related by.Othlonus, in which a man accused of horse- 
 stealing was tried by the cold-water ordeal and found guilty. 
 Knowing his own innocence, he appealed to the surround- 
 ing monks, and was told that it must be in consequence of 
 some other sin not properly redeemed by penance. As he 
 had confessed and received absolution before the trial, he 
 denied this, till one of them pointed out that in place of 
 allowing his beard to grow, as was meet for a layman, he 
 had impiously carried the smooth chin reserved for ecclesi- 
 
 1 Vit. Carol. Comit. Flandren. cap. xx. 
 
 3 Collin de Plancy, op. cit. s. v. Fer Chaud. 
 
CONFIDENCE REPOSED IN IT. 2G5 
 
 astica. Confessing his guilty promising due penance, and 
 rowing never to touch liis beard with razor again, lie wms 
 conducted :t second time- to tin- water, and being now free 
 from nil unrepented sin, he was triumphantly acquitted. 4 
 
 In feet, as the result depended mostly upon fchoee who 
 administered flic Ordeal, it conferred an irresponsible 
 power to release or to condemn, and it would he expecting 
 too much of liuman nature to suppose that men did not 
 yield frequently to the temptation to abuse that power. 
 The injustice thus practised must often have shaken the 
 most robust faith, and this cause Of disbelief would receive 
 additional strength from the fact that the result itself was 
 not seldom in doubt, victory being equally claimed by both 
 parties. Of this we have already seen examples in the 
 a Hairs of the lance of St. Andrew and of the Archbishop of 
 Milan, and somewhat similar is an incident recorded by 
 the r>ollandists in the life of St. Swithin, in which, by mi- 
 raculous interposition, the opposing parties beheld entirely 
 different results from an appeal to the red-hot iron. 3 
 
 Efforts of course were made from time to time to preserve 
 the purity of the appeal, and to secure impartiality in its 
 application. Clotair II., in 595, directs that three chosen 
 persons shall attend on each side to prevent collusion ; 3 
 and among the Anglo-Saxons, some four hundred years 
 later, Ethelred enjoins the presence of the prosecutor under 
 penalty of loss of suit and fine of twenty ores, apparently 
 
 1 Othlon. Narrat de Mirac. quod nuper accidit, &c. (Patrol. 146, 243-4.) 
 Lapsing again, however, into the sin of shaving, upon a quibble as to the 
 kind of instrument employed, the anger of Heaven manifested itself by 
 allowing him to fall into the hands of an enemy who put out his eyes. 
 
 1 Enimvero mirum fuit ultra modum, quod fautores arsuram et infla- 
 tionem conspiciebant; criminatores ita sanam ejus videbant palmam, quasi 
 penitus fulvum non tetigisset ferrum. Mirac. S. Swithuni c. ii 37. In 
 this case, the patient was a slave, whose master had vowed to give him to 
 the church in case he escaped. 
 
 3 Ad utramque partem sint ternas personas electas, ne conludius fieri 
 possit. Decret. Chlotharii II. cap. vn. 
 
 23 
 
266 THE ORDEAL. 
 
 for the same object, as well as to give authenticity to the 
 decision. 1 So in Hungary, the laws of St. Ladislas, in 1092, 
 direct that three sworn witnesses shall be present to attest 
 the' innocence or guilt of the accused as demonstrated by 
 the result. 3 A law adopted by the Scottish Parliament 
 under William the Lion, in the second half of the twelfth 
 century, shows that corruption was not uncommon, by for- 
 bidding those concerned in the administratiorroi ordeals 
 from taking any bribes to divert the course of justice, 3 and 
 a further precaution was taken by prohibiting the Barons 
 from adjudging the ordeal without the intervention of the 
 sheriff to see that law and justice were observed. 4 In the 
 trial by red-hot iron, a widely prevailing custom ordered 
 that for three days previous the hand should be wrapped up 
 to guard against its being fortified, and among the Greeks 
 a careful provision was made that the hand should be tho- 
 roughly washed and allowed to touch nothing afterwards, 
 lest there should be an opportunity of anointing it with 
 unguents* which would enable it to resist the fire. 5 These 
 regulations show that evils were recognized, but we may rea- 
 sonably hesitate to believe that the remedies were effectual. 
 
 The Church was not a unit in its relations to the ordeal. 
 During the earlier periods, indeed, no question seems to 
 have been entertained as to the propriety of the practice ; 
 it was sanctioned by councils, and administered by ecclesi- 
 astics, and, as we have seen, numerous formulas of prayers 
 and adjurations were authoritatively provided for all the 
 
 1 Ethelred, in. 4. 
 
 3 Synod. Zabolcs, can. 27 (Batthyani, Legg. Eccles. Hung. T. I. p. 439). 
 
 3 Et quod propter factum judicium aqua), vel ferri, vel duelli, aut cujus- 
 cunque modi judicii, nullam sument aut capient pecuniam, aut aliud bene- 
 ficium, pro quo effectus justitia; maneat imperfectus. Statut. Wilhelmi Regis 
 cap. 7, 3. (Skene II. 4.) 
 
 4 Nulli Baroni liceat tenere curiam aqua? vel ferri, nisi Vicecomes vel ejus 
 servientes intersint, ad videndum quod lex et justitia fiat. Ibid. cap. 16. 
 
 6 Du Cange, s. v. Ferrum caucleus. 
 
ECCLESIA8TICAL OPPOSITION. 26? 
 
 different varieties in use. This unanimity was, however, 
 soon disturbed. At the oommencemenl of the sixth cen- 
 tury, A vitus. liishop of Vieuue. remonstrated freely with 
 Gnndobald on account of the prominence given to the 
 battle-ordeal in the Burgundian eode ; and some three cen- 
 turies later, St. Agobard, Archbishop of Lyons, attacked 
 the whole system in two powerful treatises, which in m any 
 points display a breadth of view and clearness of reasoning 
 I'm- in advance of his age. 1 Soon after, Leo IV., about the 
 middle of the ninth century, condemned it in a letter to 
 the English bishops ; some thirty years later, Stephen V. 
 repeated the disapproval ; in the tenth century, Sylvester II. 
 opposed it ; and succeeding pontiffs, such as Alexander II. 
 and Alexander III., in vain protested against it. In this, 
 the chiefs of the Church placed themselves in opposition to 
 their subordinates. No ordeal could be conducted without 
 priestly aid, and the frequency of its employment, which 
 has been seen above, shows how little the Papal exhorta- 
 tions were respected by the ministers of the Church. Nor 
 were they contented with simple disregard ; defenders were 
 not wanting to pronounce the ordeal in accordance with the 
 Divine law, and it was repeatedly sanctioned by provincial 
 synods and councils. In 853, the Synod of Soissons ordered 
 13 urehard, Bishop of Chartres, to prove his fitness for the 
 episcopal office by undergoing it. 3 Hincmar, Archbishop 
 of Kheims, lent to it all the influence of his commanding 
 talents and position; the Council of Mainz in 888, and 
 that of Tribur near Mainz in 895, recommended it ; that 
 of Tours in 925 ordered it for the decision of a quarrel 
 between two priests respecting certain tithes ; 3 the synod 
 of the province of Mainz in 1 028 authorized the hot iron 
 in a case of murder ; 4 that of Elne in 1065 recognized it ; 
 
 1 The "Liber adversus Legem Gundobadi" and "Liber contra Judicium 
 Dei." 
 
 s Capit. Carol. Calvi Tit. XI. c. iii. (Baluze.) 
 
 3 Concil. Turon. ann. 925 (Martene et Durand. T. IV. pp. 72-3). 
 
 4 Annalist. Saxo. ann. 1028. 
 
268 . THE ORDEAL. 
 
 that of Auch in 1068 confirmed its use; Burckhart, Bishop 
 of Worms, whose collection of canons is still an authority, 
 in 1023 assisted at the Council of Selingenstadt, which 
 directed its employment. The Synod of Gran, in 1099, 
 decided that the ordeal of hot iron might be administered 
 during Lent, except in cases involving the shedding of 
 blood. 1 In the twelfth century, we find St. Bernard alluding 
 approvingly to the conviction of heretics by the cold-water 
 process, 3 of which Guibert de Nogent gives us an instance 
 wherein he aided the Bishop of Soissons in administering 
 it to two backsliders with complete success. 3 Prelates 
 were everywhere found granting charters containing the 
 privilege of conducting trials in this manner. It was some- 
 times specially appropriated to members of *he church, 
 who claimed it, under the name of "Lex Monachorum," as 
 a class privilege exempting them from being parties to 
 the more barbarous and uncanonical wager of battle; 4 and 
 in 1061 a charter of John, Bishop of Avranches, to the 
 Abbot of Mout S. Michel, alludes to hot water and iron as 
 the only mode of trying priests charged with offences of 
 magnitude. 5 There was therefore but slender ground for 
 so eminent a canonist as St. Ivo of Chartres, about the 
 same period, to insist that ecclesiastics enjoyed immunity 
 from it, while admitting that the incredulity of mankind 
 sometimes required an appeal to the decision of Heaven, 
 even though, such appeals were not commanded by the 
 
 1 Batthyani, Legg. Eccles. Hung. II. 126. 
 
 2 Examinati judicio aquae mendaces inventi sunt .... aqua eos non sus- 
 cipiente. In Cantica, Sermo 66. (Aineilhon.) 
 
 3 De Vita sua, Lib. in. cap. 18. 
 
 1 Theodericus Abbas Vice- Com it em adiit paratus aut calidi ferri judicio 
 secundum legem monachorum per suum hominem probare, aut scuto et 
 baculo secundum legem secularium deffendere. Annal. Benedict. L. 57, No. 
 74, ann. 1036 {ap. Houard, Loix Anc. Fran. I. 267). 
 
 5 Judicium ferri igniti et aquae ferventis Abrincis portaretur, si clerici 
 lapsi in culpam degradationis forte invenirentur. Chart. Joan. Abrinc. 
 (Patrolog. 147, 266.) 
 
INFLUENCE OP THE. OHUftOff. 260 
 
 Divine law. 1 Pope Calixtua II. himself, about the same 
 
 period, gave his sanction to the System, in the Council of 
 Khcims. in l 1 1 9. 9 About the same period, the Learned 
 priest Honorius of Antnn specifies the benediction of the 
 iron and water of the ordeal as part of the legitimate func- 
 tions of his order; 3 and even Gratian, in 1151, hesitates to 
 condemn the whole system, preferring to consider the canon 
 of Stephen V. as prohibiting only the ordeals of hot water 
 
 1 Herbert, Bishop of le Man?, was accused by Henry I. of England of en- 
 deavoring to betray that city to its former master, and was ordered to prove 
 his innocence by the ordeal of hot iron. Ivo assured him (Epist. 74) 
 that no law or custom required it of an ecclesiastic, and we may presume 
 that churchmen knew too much of the ordeal to trust themselves willingly 
 to it, except where the management was in their own hands. A century 
 earlier, St. Abbo of Fleury had claimed the same exemption for his order 
 "Ecce fama exiit, quod contra divinas humanasque leges abbas ignito ferro 
 se purgare voluit." (Abbon. Floriac Epist. viii.) Ivo, however, allows it 
 for laymen. "Non negamus tamen quin ad divina aliquando recurrendum 
 sit testimonia quando, praecedente ordinaria accusatrone, omnino desunt 
 humana testimonia : non quod lex hoc instituerit divina, sed quod exigat 
 incredulitas humana." (Epist. 252.) And again: "Vel, si id facere non 
 poterit, candentis ferri examinatione innocentiam suam comprobet. Si base 
 causa apud me ita ventilaretur, ita earn vellem tractari" (Epist. 249). And 
 in another instance he pronounces the result of such a trial to be a decision 
 beyond appeal. "Audivi enim quod vir ille de quo agitur, de objecto crimine 
 examinatione igniti ferri se purgaverit, et a laesione ignis illaesus repertus sit. 
 Quod si ita est . . . contra divinum testimonium nullum ulterius investigan- 
 dum intelligo esse judicium." (Epist. 232.) 
 
 The immunity claimed by ecclesiastics in England also is shown by Ecg- 
 behrt, Archbishop of York, who directed that when they were unable to pro- 
 cure compurgators, their unsupported oath on the cross was sufficient, their 
 punishment, if guilty, being left to God. "Pro idcirco sancimus eum cui 
 crimen impingitur, ut ponat super caput ejus crucem Domini, et testetur per 
 Viventem in secula, cujus patibulum est crux, sese immunem esse a peccato 
 hujusmodi. Et sic omnia dimittenda sunt judicio Dei." Dialog. Ecgbert. 
 Ebor. Interrog. in. (Thorpe. II. 88) 
 
 2 Du Cange, s. v. Judicium probabile. 
 
 3 Gemma Animas, Lib. i. cap. 181. At least this is the only reading which 
 will make sense of the passage " Horum officium est . . . vel nuptias vel 
 arma, vel peras, vel baculos vel judicia ferre et aquas vel candelas . . . 
 benedicere," where "ferre et aquas" is evidently corrupt for "ferri et 
 aqua)." 
 
 23* 
 
270 THE ORDEAL. 
 
 and iron. 1 As late as 1215, the ferocious inquisitor Conrad 
 of Marburg made frightful use of the hot iron in eradicating 
 the Albigensian heresy which was spreading through Ger- 
 many ; in that year he examined by its means no less than 
 eighty unfortunates in Strasburg alone, nearly all of whom 
 were forthwith transferred to the stake. 3 
 
 This discrepancy is easily explained. During the tenth 
 and eleventh centuries, the chair of St. Peter was occupied 
 too often by men whose more appropriate sphere of action 
 was the brothel or the arena, and the influence of the Papacy 
 was feeble in the extreme. 3 The Eternal City was civilly 
 and morally a lazar-house, and the Popes had too much to 
 do in maintaining themselves upon their tottering thrones 
 to liave leisure or inclination for combined and systematic 
 efforts to extend their power. The Italian expeditions of 
 the Saxon and Franconian Emperors gradually brought 
 Italy out of the isolation into which it had fallen, and 
 under Teutonic auspices the character of the Pontiffs 
 improved as their circle of influence widened. At length 
 such men as Gregory VII. and Alexander III. were able to 
 claim supremacy over both temporal and spiritual affairs, 
 and, after a long resistance on the part of the great body 
 of ecclesiastics, the tiara triumphed over the mitre. During 
 this period, the clergy found in the administration of the 
 
 1 Hoc autem utrum ad omnia genera purgationis, an ad haec duo tantum, 
 quse hie prohibita esse videntur, pertineat, non immerito dubitatur propter 
 sacrificium zelotypias, et illud Gregorii. Can. Consuluisti, caus. II. Quasst. 5. 
 
 2 Trithem. Cbron. Hirsaug. ann. 1215. 
 
 3 In 963, a council of bishops held by Otho I. to depose John XII. pro- 
 nounced that the Pope had turned his residence into a brothel "sanctum 
 palatium lupanar et prostibulum fecisse" and was in the habit of leading 
 his own soldiers "incendia fecisse, ense accinctum, galea et lorica indutum 
 esse." (Liutprandi Hist. Otton. cap. x.) Otho III. in 998, when restoring 
 a portion of the alienated patrimony of St. Peter, alludes to the diminished 
 influence and authority of the Papal See. " Romam caput mundi profitemur. 
 Romanam Ecclesiam matrem omnium Ecclesiarum esse testamur ; sed incu- 
 ria et inscientia Pontificum longe suae claritatis titulos obfuscasse." (Goldast. 
 Constit. Imp. I. 226.) 
 
INFLUENT | or tiii: 0HUROH. i2 7 1 
 
 ordeal a source of power and profit which n:it ur:illy rendered 
 them unwilling to abandon it :it the Papa] mandate. There 
 were fees to be. received for its honest, 1 bribes for its dis- 
 honest, application ; daartercd privileges existed in favor of 
 churches and monasteries, by which they derived a certain 
 revenue, and the holy relics in their keeping were rendered 
 a source of gain considerably greater than that which ac- 
 crued merely from the devotion of the faithful. 3 It afforded 
 the means of awing the laity, by rendering the priest a spe- 
 cial instrument of Divine justice, into whose hands every 
 man felt that he was at any moment liable to fall; and 
 
 1 By the acts of the Synod of Lillebonne, in 1080, a conviction by the 
 hot-iron ordeal entailed a fine for the benefit of the Bishop. (Orderic. Vital. 
 Lib. y. cap. v.) By the laws of St. Ladislas, in Ilungary the stipend of the 
 officiating priest for the red-hot iron was double that which he received for 
 the water ordeal " Presbyter de ferro duas pensas et de aqua unam pensam 
 accipiat." Synod. Zabolcs, ann. 1092, can. 27 (Batthyani, T. I. p. 439). 
 Oddly enough, the Swedish laws made the successful party pay the fee of the 
 officiating priest a practice sufficiently degrading to the sacerdotal charac- 
 ter. " Si fuerit innocens judicatus, persolvat laboris sui pretium sacerdoti : 
 si vero culpabilis, ad actorem illius mercedis solutio, juxta ecclesia; vel pro- 
 vincise consuetudinem pertinebit." Leg. Scanicar. Lib. vn. c. 15 (Du Cange, 
 s. v. Ferrum candens) . 
 
 5 Charters of this nature are almost too numerous to require more than an 
 allusion. One or two examples may, however, be quoted. Thus Thibaut the 
 Great of Champagne, in 1148. grants to the church of St. Mary Magdalen of 
 Chateaudun the exclusive privilege of administering the necessary oaths on 
 such occasions : " Ne alicui liceret exhibere sancta ad sacramenta juranda 
 in villa Castriduni praeter ministris praefatae ecclesise, omnibus duellis vel 
 sacramentis," etc. (Du Cange, s. v. Adramire.) In 1182 we find the Vicomte 
 de Beam making over to the Abbey of la Seauve the revenue arising from 
 the marble basin used for the trial by boiling water at Oavarret. (Revue 
 Hist, de Droit, 1861, p. 478.) Spelman gives the following, by which 
 Henry III., in 1227, granted to the monks of Semplingham the right to hold 
 the ordeal, among other jurisdictions : " Habeant . . . curiam suam et justi- 
 tiam, cum saka et soka et thol et theam . . . et ordell et orest," etc. 
 
 Perhaps the most remarkable example is contained in the Statutes of King 
 Coloman of Hungary, collected in 1099, by which he prohibits the adminis- 
 tration of the ordeal in the smaller churches, reserving the privilege to the 
 cathedral seats and other important establishments. Decret. Coloman. c. 11. 
 (Batthyani, T. I. p. 454.) 
 
272 THE ORDEAL. 
 
 even worse uses were sometimes made of the irresponsible 
 power thus intrusted to unworthy ministers. From the 
 decretals of Alexander III. we learn authoritatively that 
 the extortion of money from innocent persons by its in- 
 strumentality was a notorious fact 1 a testimony confirmed 
 by Ekkehardus Junior, who, a century earlier, makes the 
 same accusation, and moreover inveighs bitterly against 
 the priests who, to gratify the vilest instincts, were in the 
 habit of exposing women to the ordeal of cold water, that 
 they might strip them for the purpose. 3 
 
 At length, when the Papal authority reached its culmi- 
 nating point, a vigorous and sustained effort to abolish the 
 whole system was made by the Popes who occupied the 
 pontifical throne from 1159 to 1227. Nothing can be more 
 peremptory than the prohibition uttered by Alexander III. 3 
 In 1181, Lucius III. pronounced null and void the acquittal 
 of a priest charged with homicide, who had undergone the 
 water-ordeal, and ordered him to prove his innocence with 
 compurgators, 4 and the blow was followed up by his succes- 
 sors. Under Innocent III., the Fourth Council of Lateran, 
 in 1215, formally forbade the employment of any ecclesias- 
 tical ceremonies in such trials ; 5 and as the moral influence 
 of the ordeal depended entirely upon its religious associa- 
 tions, a strict observance of this canon must speedily have 
 swept the whole system into oblivion. Yet at this very 
 time the inquisitor Conrad of Marburg was employing in 
 
 1 Post Concil. Lateran. P. n. cap. 3, 11. 
 
 - Holophernicos .... Presbyteros, qui animas hominum carissime appre- 
 cietas vendant; foeminas nudatas aquis immergi impudicis oeulis curiose per- 
 spiciant, autgrandi se pretio redimere cogant. De Casibus S. Galli, cap. xiv. 
 
 3 Nee ipsum exhibere, nee aliquomodote volumus postulare, imo apostolica 
 authoritate prohibemus firmissime. Alex. III. Epist. 74. 
 
 4 Can. Ex tuarum, Extra, De purgatione canonica. 
 
 s Nee . . . quisquam purgationi aquae ferventis vel frigidse, seu ferri can- 
 dentis ritum cujuslibet benedictionis seu consecrationis impendat. Concil. 
 Lateran. can. 18. In 1227, the Council of Treves repeated the prohibition, 
 but only applied it to the red-hot iron ordeal. " Item, nullus sacerdos can- 
 dens ferruni benedicat." Concil. Trevirens ann. 1227, cap. ix. 
 
ORADU A I !. I M I TAT I ON. 273 
 
 Germany the red-hoi hron m i means of condemning his 
 unfortnnate victims by wholesale, and the chronicler relates 
 that, whether innocent ox guilty, few escaped the test. 1 The 
 canon of Lateran, however, was actively followed up by the 
 Papal legates, &nd the effect was soon discernible. 
 
 Perhaps the earliest instance of secular legislation di- 
 rected against the ordeal, except some charters granted to 
 communes, is an edict of Philip Augustus in 1200, bestow- 
 ing certain privileges on the scholars of the University 
 ol* Paris, by which he ordered that a citizen accused of 
 assaulting a student shall not be allowed to defend himself 
 either by the duel or the water-ordeal. 9 In England, a 
 rescript of Henry III., dated January 27, 1219, directs the 
 judges then starting on their circuits to employ other modes 
 of proof "seeing that the judgment of fire and water is 
 forbidden by the Church of Rome." 3 A few charters and 
 confirmations, dated some years subsequently, allude to the 
 privilege of administering it ; but Matthew of Westminster, 
 when enumerating, under date of 1250, the remarkable 
 events of the half century, specifies its abrogation as one 
 of the occurrences to be noted, 4 and we may conclude that 
 thenceforth it was practically abandoned throughout the 
 kingdom. This is confirmed by the fact that Bracton, writ- 
 ing about the same time, refers only to the wager of battle 
 as a legal procedure, and, when alluding to other forms, 
 speaks of them as things of the past. About the same time, 
 
 1 Nam in civitate Argentinensi hoc anno non minus quam octoginta numero 
 comprehensi sunt, quos memoratus frater judicio ferri candentis examinare 
 contra prohibitionem canonis publico consuevit ; et in quos ferrum adussit, 
 mox ignibus tradidit. Unde, paucissimis exceptis, omnes qui coram eo semel 
 accusati fuissent, et per judicium ferri candentis examinati, videbantur ilium 
 plures damnavisse innocentes, dum candens ferrum a peccatis nullum repe- 
 riret alienum. Trithem. Chron. Hirsaug. ann. 1215. 
 
 - Fontanon, IV. 942. 
 
 3 Spelman, Gloss, s. v. Judicium. 
 
 * Prohibitum est judicium quod fieri consuevit per ignem et per aquam. 
 Mat. Westmon. ann. 1250. 
 
274 THE ORDEAL. 
 
 Alexander II. of Scotland forbade its use in cases of theft. 1 
 Nearly contemporary was the Neapolitan Code, promul- 
 gated in 1231, by authority of the Emperor Frederic II., in 
 which he not only prohibits the use of the ordeal in all 
 cases, but ridicules, in a very curious passage, the folly of 
 those who could place confidence in it. 3 We may conclude, 
 however, that this was not effectual in eradicating it, for, 
 fifty years later, Charles of Anjou found it necessary to 
 repeat the injunction. 3 About the same time, Waldemar II. 
 of Denmark, Hakonsen of Iceland and Norway, and soon 
 afterwards Birger Jarl of Sweden, followed the example. 4 
 In Frisia we learn that, in 1219, the inhabitants still refused 
 to obey the papal mandates, and insisted on retaining the 
 red-hot iron ; 5 though a century later the Laws of Upstal- 
 lesboom show that ordeals of all kinds had fallen into 
 desuetude. 6 In France, we find no formal abrogation pro- 
 
 1 De cetero non fiat judicium per aquam vel ferrum, ut consuetum fuit 
 antiquis temporibus. Statut. Alex. II. cap. 7 3. 
 
 3 Leges quas a quibusdam simplicibus sunt dictae paribiles .... praesentis 
 nostri nominis sanctionis edicto in perpetuum inhibentes, omnibus regni 
 nostri judicibus, ut nullus ipsas leges paribiles, qua) absconsae a veritate 
 
 deberent potius nuncupari, aliquibus fidelibus nostris indicet Eorum 
 
 etinim sensum non tarn corrigendum duximus quam ridendum, qui naturalem 
 candentis ferri calorem tepescere, imo (quod est stultius) frigescere, nulla 
 justa causa superveniente, confidunt; aut qui reum criminis constitutum, ob 
 conscientiam laesani tantum asserunt ab aquas frigidas elemento non recipi, 
 quern submergi potius aeris competentis retentio non permittit. Constit. 
 Sicular. Lib. n. Tit. 31. This last clause would seem to allude to some 
 artifice of the operators by which the accused was prevented from sinking in 
 the cold-water ordeal, when a conviction was desired. 
 
 This common sense view of the miracJes so generally believed is the more 
 remarkable as coming from Frederic, who, a few years previously, was fero- 
 ciously vindicating with fire and sword the sanctity of the Holy Seamless 
 Coat against the aspersions of unbelieving heretics. See his Constitutions of 
 1221 in Goldastus, Const. Imp. I. 293-4. 
 
 3 Statut. MSS. Caroli I. cap. xxii. (Du Cange, s. v. Lex Parib.) 
 
 4 Konigswarter, op. cit. p. 176. 
 
 5 Emo, the contemporary Abbot of Wittewerum, instances this disobe- 
 dience as one of the causes of the terrible inundation of 1219. Emon. 
 Chron. ann. 1219 (Matthaei Analect. III. 72). 
 
 u Issued in 1323. 
 
FRANCE (IKK MA NY. 275 
 
 mulgated; but the contempt into which the system bad 
 fallen is abundantly proved by the (act thai in tin* ordi- 
 nances and books of practice issued during the Latter half 
 of the century, such as the Et abatements of St. Louis, tin 
 Conseil of Pierre <U> Fontaines, the Coutumcs du Bcaur<>i*i* 
 of Beaumanofr, and the Livres de Jostice et de /'/</. its 
 existence is not recognized even by a prohibitory allusion, 
 the judicial duel thenceforward monopolizing the province 
 of irregular e vidence . Indeed, a Latin version of the 
 Coutumier of Normandy, dating about the middle of the 
 thirteenth century, or a little earlier, speaks of it as a 
 mode of proof formerly employed in cases where one of 
 the parties was a woman who could find no champion to 
 uridergo the wager of battle, adding that it had been for- 
 bidden by the church, and that such cases were then 
 determined by inquests. 1 
 
 Germany was more tardy in yielding to the mandates 
 of the church. The Teutonic knights who wielded their 
 proselj'ting swords in the Marches of Prussia introduced 
 the ordeal among other Christian observances, and in 1225 
 Ilonorius III., at the prayer of the Livonian converts, 
 promulgated a decree by which he strictly interdicted its 
 use for the future. 3 Even in 12 79 we find the Council of 
 Buda, and in 1298 that of Wurtzburg, obliged to repeat 
 the prohibition uttered by that of Lateran. 3 The independ- 
 ent spirit of the Empire, however, still refused obedience 
 to the commands of the Church, and even in the four- 
 
 1 Olim mulieres criminalibus causis insecute, cum non haberent qui eas 
 
 defenderent, se purgabant per aquam Et quoniam hujusraodi ab 
 
 ecclesia catholica sunt abscissa, inquisicione locorum eorum frequenter 
 utimur et in multris. Cod. Leg. Norman. P. n. c. x. 2, 3. (Ludewig, 
 Reliq. Msctorum. VII. 292.) It is a little singular that the same phrase is 
 retained in the authentic copy of the Coutumier, in force until the close of 
 the sixteenth century. Anc. Cout. de Normandie, c. 77 (Bourdot de Riche- 
 bourg. IV. 32). 
 
 3 Can. Dilecti, Extra, De Purgatione Vulgari 
 
 3 Batthyani, Legg. Eccles. Hung. T. II. p. 43G. Hartzhciin, IV. 27. 
 
276 THE ORDEAL. 
 
 tecnth century the ancestral customs were preserved in full 
 vigor as regular modes of procedure in a manual of legal 
 practice still extant. An accusation of homicide could be 
 disproved only by the judicial combat, while in other felo- 
 nies a man of bad repute had no other means of escape 
 than by undergoing the ordeal of hot water or iron. 1 
 
 In Aragon, Don Jayme I., in 1247, prohibited it in the 
 laws of Huesca, 9 and in 1248 in his revision of the consti- 
 tution of Majorca. 3 In Castile and Leon, the Council of 
 Palencia in 1322 was obliged to threaten with excommuni- 
 cation all concerned in administering the ordeal of fire or 
 of water, 4 which proves how little had been accomplished 
 by the enlightened code of the "Partidas," issued about 
 12G0 by Alfonso the Wise. In this the burden of proof is 
 expressly thrown upon the complainant, and no negative 
 proofs are demanded of the defendant, who is specially 
 exempted from the necessity of producing them ; 5 and 
 although, in obedience to the chivalrous spirit of the age, 
 the battle ordeal is not abolished, yet it is so limited as to 
 be practically a dead letter, while no other form of negative 
 proof is even alluded to. 
 
 Although the ordeal was thus removed from the admitted 
 jurisprudence of Europe, the principles of faith which had 
 given it vitality were too deeply implanted in the popular 
 
 1 Hand secus purgare se possit imputatorum criminum ergo quam, ut supra 
 dictum, ferro candente tacto. Richtstich Landrecht, cap. lii. The same 
 provisions are to be found in a French version of the Speculum Suevicum, 
 probably made towards the close of the fourteenth century for the use of the 
 western provinces of the Empire. Miroir de Souabe, P. i. c. xlviii. (Ed. 
 Matile, Neufchatel, 1843). 
 
 - Du Cange, s. v. Ferrum candens. 
 
 3 Pro aliquo crimine vel delicto, vel demanda, non facietis nobiscum vel 
 cum bajulo aut curia civitatis, nee inter vos ipsos, batalam per ferrum cali- 
 dum, per hominem nee per aquam, vel aliam ullam rem. (Du Cange, s. v. 
 Batalia.) 
 
 4 Du Cange, s. v. Ferrum candens. 
 
 6 Non es tenuda la parte de probar lo que niega porque non lo podrie 
 facer. Las Siete Partidas, P. in Tit. xiv. 1. 1. 
 
PERSISTENCE OF POPULAR BELIEF. 2 T1 
 
 mind to be tit once eradicated, and accordingly, as we have 
 seen above, instances of its employment continued occa- 
 sionally for several centuries to disgrace the tribunals. The 
 onlcal of battle, indeed, as may be seen in the preceding 
 essay, w&a aol Legally abrogated until long afterward; 
 and the longevity of the popular belief, upon which the 
 whole system was founded, may be gathered from a remark 
 of Sir William Staundford, a learned judge and respectable 
 legal authority, who, in 155 T, expresses the same confident 
 expectation of Divine interference which had animated Hinc- 
 mar or Poppo. After stating that in an accusation of 
 felony, unsupported by evidence, the defendant had a right 
 to wager his battle, he proceeds : " Because in that the 
 appellant demands judgment of death against the appellee, 
 it is more reasonable that he should hazard his life with 
 the defendant for the trial of it, than to put it on the 
 country .... and to leave it to God, to whom all things 
 are open, to give the verdict in such case, scilicet, by 
 attributing the victory or vanquishment to the one party 
 or the other, as it pleaseth Him." 1 
 
 The papal authority, however, was not the only element 
 at work to abolish this superstition. The revival of the 
 Roman law in the twelfth and thirteenth centuries did 
 much to influence the secular tribunals against all ordeals, 
 as has been seen in the case of the wager of battle. So, 
 also, a powerful assistant must be recognized in the rise 
 of the communes, whose sturdy common sense not infre- 
 quently rejected its absurdity. Accordingly, we find that 
 it is rarely comprehended in their charters, as it is in 
 those granted to abbeys and monasteries, while occasion- 
 ally a special exemption is alluded to as a privilege. 3 The 
 
 1 Plees del Corone, chap. xv. (quoted in 1 Barnewall & Alderson, 433) . 
 a An instance of this occurs as early as 1132, in a charter granted by King 
 Roger of Naples to the inhabitants of Bari : " Ferrum, cacavum, pugnaro, 
 24 
 
2*78 THE ORDEAL. 
 
 influence of the commercial and municipal spirit, fostered 
 by the establishment of chartered towns, in dissipating 
 the mists of error and prejudice, is farther shown by the 
 fact that the early codes of commercial law make no 
 reference whatever to the proof by ordeal, though some 
 of those codes were drafted at a period when it was a 
 recognized portion of ordinary jurisprudence. The Roles 
 d'Oleron, the laws of Wislry, and the Consulat de la Met 
 endeavor to regulate all questions by the reasonable rules 
 of evidence, and offer no indication that the judgment of 
 God was resorted to when human means were at fault. 
 Indeed, King Amauiy, who ascended the throne of Cyprus 
 in 1194, specifically declares, in a law embodied in the 
 Assises de Jerusalem, that maritime causes are under the 
 jurisdiction of a special court, instead of the ordinary civic 
 tribunal, in order to avoid the battle ordeal permitted by 
 the latter; 1 from which we may safety assume that the 
 other forms of ordeal were equally ignored by the maritime 
 law dispensers. The same spirit is shown in a treaty of 
 1228 between Riga, a member of the Ilanseatic League, and 
 Mstislaf Davidovitch, Prince of Smolensko, which among 
 
 aquam, vobis non judieabit vel judicari faciet." (Muratori, Antiq. Ital. 
 Dissert. 38.) 
 
 So also in the Charter of Geertsbergh, confirmed by Baldwin of Constanti- 
 nople, Earl of Flanders, in 1200. " Item nemo cogatur inire duellum, vel 
 subire judicium ignis et aquae," (Miraei Diplom. Belgic. c. lxvii.) while, at 
 the same time, no doubt those who desired the ordeal were not debarred 
 from it, as is shown by the interpolation in another MS. of the words " nisi 
 spontaneus" (Le Glay, Revue de Miraeus, p. 32). It is a little singular, 
 however, to find in the Franc de Bruges in 1190 the whole system of or- 
 deals in full and common use. Every Saturday, a certain time was set npart 
 for the courts to take cognizance of them " Et tempus duellorum et banni- 
 torum a scabinis ibi statutum observabunt, ita ut de bannitis primo, postea 
 de duellis tractandum et de judiciis aquas et ferri." Keure de Bruges, 61. 
 (Warnkbnig, Hist, de le Fland. IV. 377.) 
 
 1 Por ce que en la cort de la mer na point de bataille por preuve ne por 
 demande de celuy veage, et en 1 autre cort des borgeis deit aveir espreuves 
 par bataille. Baisse Court, cap. 43. 
 
PERPETUATION OF SUPERSTITION. 2t9 
 
 its provisions especially exempted the Qermane in the terri- 
 tory of the hater from all liability to the ordeal of hot iron 
 and of battle. 1 
 
 Although we m:iy hail the disappearance of the ordeal as 
 marking bo era in human progress, yet should we err in 
 deeming it either the effect or the cause of a change in the 
 constitution of the human mind. The mysterious attrac- 
 tion of the unknown and undefined, the striving for the 
 unattainable, the yearning to connect our mortal nature 
 with some supernal power all these mixed motives assisted 
 in maintaining superstitions similar to those which we have 
 thus passed in review. The mere external manifestations 
 were swept away, but the potent agencies which vivified 
 them remained, not perhaps less active because they worked 
 more secretly. Thus generation after generation of follies, 
 strangely affiliated, waits on the successive descendants of 
 man, and perpetuates in another shape the superstition 
 which we had thought eradicated. In its most vulgar and 
 abhorrent form, we recognize it in the fearful epidemic of 
 sorcery and witchcraft which afflicted the sixteenth and sev- 
 enteenth centuries ; sublimed to the verge of heaven, we see 
 it reappear in the seraphic theories of Quietism ; descend- 
 ing again towards earth, it assumes the mad vagaries of 
 the Convulsionnaires. In a different guise, it leads the 
 refined scepticism of the eighteenth century to a belief in 
 the supernatural powers of the divining-rod, which could 
 not only trace out hidden springs and deep-buried mines, but 
 could also discover crime, and follow the malefactor through 
 all the doublings of his cunning flight. 9 Each age has its 
 
 1 Traite" de 1228, art. 3. (Esneaux, Histoire de Russie II. 272.) 
 Q When, in 1692, Jacques Aymar attracted public attention to the miracles 
 of the divining-rod, he was called to Lyons to assist the police in discover- 
 ing the perpetrators of a mysterious murder, which had completely baffled 
 the agents of justice. Aided by his rod, he traced the criminals, by land 
 and water, from Lyons to Beaucaire, where he found in prison a man whom 
 
280 THE ORDEAL. 
 
 own sins to answer for, its own puerilities to bewail hap- 
 piest that which best succeeds in hiding them, for it can 
 scarce do more. Here, in our boasted nineteenth century, 
 when the triumph of human intelligence over the forces of 
 nature, stimulating the progress of material prosperity with 
 the press, the steam-engine, and the telegraph, has deluded 
 us into sacrificing our psychical to our intellectual being 
 even here the duality of our nature reasserts itself, and in 
 the obscene blasphemy of Mormonism and in the fantastic 
 mysteries of pseudo-spiritualism we see a protest against 
 the despotism of mere reason. If we wonder at these per- 
 versions of our noblest attributes, we must remember that 
 the intensity of the reaction measures the original strain, 
 and in the dismal insanities of the day we thus may learn 
 how utterly we have forgotten the Divine warning, " Man 
 shall not live by bread alone I" 
 
 Which age shall cast the first stone? When Cicero 
 wondered how two soothsayers could look at each other 
 without laughing, he showed that the grosser forms of 
 superstition were not universally shared. Such, we may 
 be assured, has been the case at every period ; and, in our 
 own day, can we, who proudly .proclaim our disbelief in the 
 follies which exist around us, individually assert that we 
 have not contributed, each in his own infinitesimal degree, 
 to the causes which have produced them ? 
 
 he declared to be a participant, and who finally confessed the crime. Ayraar 
 was at length proved to be merely a clever charlatan ; but the mania to 
 which he gave rise lasted through the eighteenth century, and nearly at its 
 close his wonders were rivalled by a brother sharper, Campetti. 
 
IV. 
 TORTURE 
 
 The preceding essays have traced the development of 
 sacramental purgation and of the ordeal as resources de- 
 vised by human ingenuity when called upon to decide ques- 
 tions too intricate for the impatient intellect of a rude and 
 semi-barbarous age. There was another mode, however, of 
 attaining the same object, which has received the sanction 
 of the wisest law-givers during the greater part of the 
 world's history, and our survey of the field of irregular 
 testimony would be incomplete without glancing at the 
 subject of the judicial use of torture. 
 
 In the early stages of society, when force reigns supreme 
 and law is but an instrument for its convenient and effective 
 exercise, the judge or the pleader would naturally seek to 
 extort from the reluctant witness a statement of what he 
 might desire to conceal, or from the presumed criminal a 
 confession of his guilt. To accomplish this, the readiest 
 means would seem to be the infliction of pain, to escape 
 from which the witness would sacrifice his friends, and the 
 accused would submit to the penalty of his crime. The 
 means of administering graduated and effectual torment 
 would thus be sought for, and the rules for its application 
 would in time be developed into a regular system, forming 
 part of the recognized principles of jurisprudence. 
 
 The only subject of surprise, indeed, is that torture was 
 not more generally authorized in primitive times. To the 
 parent stock of the Aryan family of races it would appear 
 24* 
 
282 TORTURE. 
 
 to have been unknown: at least, it has left no recorded 
 trace in the elaborate provisions of the Hindu law as it 
 has existed for three thousand years. 1 Among the Semitic 
 nations, too, the jurisprudence of Moses is free from any 
 indication that such expedients were regarded as legitimate 
 among the Hebrews. The connection between the latter 
 and the Egyptians would appear to warrant the conclusion 
 that torture was equally unknown to the antique civilization 
 of the Pharaohs, and this is confirmed by the description 
 which Diodorus Siculus gives of the solemn and mysterious 
 tribunals, where written pleadings alone were allowed, lest 
 the judges should be swayed by the eloquence of the human 
 voice, and where the verdict was announced, in the unbroken 
 silence, by the presiding judge touching the successful suitor 
 with an image of the Goddess of Truth. 3 
 
 In Greece, we find the use of torture thoroughly under- 
 stood and permanently established. The oligarchical and 
 aristocratic tendencies, however, which were so strongly 
 developed in the Hellenic commonwealths, imposed upon 
 
 1 In Book viii. of the Institutes of Manu there are very minute directions 
 as to evidence. The testimony preferred is that of witnesses, whose com- 
 parative credibility is very carefully discussed, and when that is not pro- 
 curable, the parties are ordered to be sworn or to be submitted to the ordeal. 
 These principles have been transmitted unchanged to the present day. See 
 the Ayeen Akbery, Tit. Beyhar, Vol. II. p. 494, and Halhed's Code of 
 Gentoo Laws, chap, xviii. 
 
 " Diod. Sicul. i. Ixxv. Sir Gardiner Wilkinson (Ancient Egyptians, Vol. 
 II.) figures several of these little images. 
 
 That torture was a customary legal procedure in Egypt has been assumed by 
 some writers from a passage in iElian to the effect that Egyptians were com- 
 monly regarded as capable of dying under torture in preference to revealing 
 the truth "iEgyptios aiunt patientissime ferre tormenta : et citius mori 
 hominem ^Igyptium in quasstionibus tortum examinatumque quam veritatem 
 prodere." (Var. Hist. vn. xviii.) This can hardly, however, be considered 
 to prove anything. In the time of iElian. the Egyptians had been for five 
 centuries under Greek or Roman rule, and had probably acquired ample 
 experience of torture. There were doubtless, .also, numerous Egyptian slaves 
 scattered throughout the Empire, where they must have had sufficient oppor- 
 tunity to earn their reputation for endurance. 
 
TN QR1 10 r- - >s -'5 
 
 ii i limitation characteristic of the pride and self-respect of 
 the governing order. As a general rale, no freeman could 
 be tortured. Even freedmen enjoyed an exemption^ and it. 
 
 was reserved for the unfortunate class of slaves, and Coi 
 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 po- 
 litical 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 
 Eipparchns was assassinated by Harmodius, Aristogiton 
 wafi tortured to obtain a revelation of the plot, and several 
 similar proceedings are related by Valerius Maximus as 
 occurring among the Hellenic nations. 1 The inhuman tor- 
 ments inflicted on Philotas, son of Parmenio, when accused 
 of conspiracy against Alexander, show how little real pro- 
 tection 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, 
 to the rack. 
 
 In a population consisting largely of slaves, mostly of 
 the same race as their masters, often men of education and 
 intelligence and employed in positions of confidence, legal 
 proceedings must frequently have turned upon their evi- 
 dence, in both civil and criminal cases. Their evidence, 
 however, was inadmissible, except when given under torture, 
 and then, by a singular confusion of logic, it was estimated 
 as the most convincing kind of testimony. Consequently, 
 the torturing of slaves formed an important portion of the 
 administration of Athenian justice. Either party to a suit 
 might offer his slaves to the torturer or demand those of 
 
 1 Lib. in. cap. iii. 
 
284 TORTURE. 
 
 his opponent, and a refusal to produce them was regarded 
 as seriously compromising. When both parties tendered 
 their slaves, the judge decided which 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 they had sustained. It affords a curious com- 
 mentary on the high estimation in which such testimony 
 was held to observe that, when a man's slaves had testified 
 against him on the rack, they were not protected from 
 his subsequent vengeance, which might be exercised upon 
 them without restriction. 
 
 As the laws of Greece passed away, leaving compara- 
 tively few traces on the institutions of other races, it will 
 suffice to add that the principal modes in which torture 
 was sanctioned by them were the wheel (Vpd^oj), the ladder 
 or rack (xM'/tai), the comb with sharp teeth (*x>a$oj), the low 
 vault (xv$m) in which the unfortunate witness was thrust 
 and bent double, the burning tiles (nxii^ot), the heavy hog- 
 skin whip (i^T-pi^is), and the injection of vinegar into the 
 nostrils. 1 
 
 In the earlier days of Rome, the general principles gov- 
 erning the administration of torture were the same as in 
 Greece. Under the Republic, the free citizen was not liable 
 
 1 Aristophanes (Ra?ice, 617) recapitulates most of the processes in vogue. 
 Aiachos. x.x) ttoJc (ldLTa.n^ut\ > 
 Xanthias. tra-vr*. rpowcv, h x,xi/u*x.i 
 
 ?&$, x.fiy.a.TdL'-,, vT-rpfyiSi /uxcrTtySbv, S'ycev, 
 
 The best summary I have met with of the Athenian laws of torture is in 
 Eschbach's "Introduction a l'Etude du Droit," 268. 
 
in aoM i. 
 
 1o it. and the evidence of slnves was not. received without 
 
 it. With the progress of despotism, however, the safe- 
 guards Which surrounded the freeman were broken down, 
 
 and autocratic Emperors had little seruple in sending their 
 
 subjects to the rack. 
 
 Kven :is early as the second Triumvirate, a proetor named 
 Q. (Jallius, in saluting Octavius, chanced to have a double 
 tablet under his toga. To the timid imagination of the 
 future Emperor, the angles of the tablet, outlined under 
 the garment, presented the semblance of a sword, and he 
 fancied Gallius to be the instrument of a conspiracy against 
 his life. Dissembling his fears for the moment, he soon 
 caused the unlucky prnetor to be seized while presiding at 
 his own tribunal, and after torturing him like a slave with- 
 out extracting a confession, put him to death. 1 
 
 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 embodi- 
 ment of the limitless sovereignty of the people, whose 
 irresponsible authority was transferred to him. The rules 
 and formularies, however, which had regulated the exer- 
 cise of power, so long as it belonged to the people, were 
 feeble barriers to the passions and fears of Coesarism. 
 Accordingly, a principle soon became engrafted in Roman 
 jurisprudence that, in all cases of "crimen majestatis," 
 or high treason, the free citizen could be tortured. In 
 striking at the ruler, he had forfeited all rights, and the 
 safety of the state, as embodied in the Emperor, was to be 
 preserved at every sacrifice. 
 
 The Emperors were not long in discovering and exercising 
 their power. When the plot of Sejanus was discovered, 
 the historian relates that Tiberius abandoned himself so 
 entirely to the task of examining by torture the suspected 
 
 1 Servilem in modum earn torsit ; ac fatentem nihil, jussit occidi. Sueton. 
 August, xxii. 
 
286 TORTURE. 
 
 accomplices of the conspiracy, that when an old Rhodian 
 friend, who had come to visit him on a special invitation, 
 was announced to him, the preoccupied tyrant absently 
 ordered him to be placed on the rack, and on discovering 
 the blunder had him quietly put to death, to silence all 
 complaints. The shuddering inhabitants pointed out a 
 spot 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. 1 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. 3 
 
 Under the stimulus of such hideous appetites, capricious 
 and irresponsible cruelty was able to give a wide extension 
 to the law of treason. If victims were wanted to gratify 
 the whims of the monarch or the hate of his creatures, it 
 was easy to find an offender or to make a crime. Under 
 Tiberius, a citizen removed the head from a statue of Au- 
 gustus, 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 in- 
 terpretation was given to violations of the respect assumed 
 to be due to the late Emperor. To undress one's self or to 
 
 1 Neque tormentis neque supplicio cuiquam pepercit : soli huic cognitioni 
 adeo per totos dies deditus et intentus, ut Rhodiensem hospitem quern fami- 
 liaribus litteris Romam evocarat, advenisse sibi nuntiatum, torqueri sine 
 mora jusserit, quasi aliquis ex necessariis qusestioni adesset: deinde, errore 
 detecto, et occidi, ne divulgaret injuriam. Carnificinae ejus ostenditur locus 
 Capreis, unde damnatos, post longa et exquisita tormenta, praocipitare coram 
 se in mare jubebat Sueton. Tiberius, c. lxii. 
 
 2 Ibid. Calig. xxxii. Claud, xxxiv. 
 
IN ROM 1 . 287 
 
 beat a slave near hid image; to carry into a cabim-f etfoi*ance 
 or a house of ill fame a coin or n ring impressed with liis 
 sacred features; to criticize any act or word of his became 
 a treasonable offence; and finally an unlucky wight was 
 
 actually pul to death for allowing the slaves on his farm to 
 
 pay him honors on the anniversary which had been sacred 
 
 to Augustus. 1 
 
 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 reli- 
 gion in the convenient charge of treason, and to expose its 
 votaries to all the horrors of ingenious cruelty. If Nero 
 desired to divert from himself the odium of the conflagra- 
 tion 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 provid- 
 ing for himself the new sensation of the human torches 
 whose frightful agonies illuminated his unearthly orgies. 2 
 Diocletian even formally promulgated in an edict the rule 
 that all professors of the hated religion should be deprived 
 of the privileges of birth and station, and be subject to the 
 application of torture. 3 The indiscriminate cruelty to which 
 
 1 Stature quidam Augusti caput demserat ut alterius imponeret. Acta res 
 in Senatu. Et quia ambigebatur, per tormenta quresita est. Damnato reo, 
 paullatira boc genus calumnire eo processit, ut hrec quoque capitalia essent : 
 circa Augusti simulacrum servum cecidisse, vestimenta mutasse : nummo 
 vel annulo effigiem impressam, latrinre vel lupanari intulisse ; dictum ullum 
 factumve ejus existimatione aliqua lresisse. Periit denique et is qui honores 
 in colonia sua eodem die decerni sibi passus est quo decreti et Augusto olim 
 erant. Sueton. Tiber. Iviii. 
 
 - Tacit. Annal. xv. xliv. Ergo abolendo rumori Nero subdidit reos, et 
 quresitissimis poenis adfecit quos per flagitia invisos, vulgus Christian os appel- 
 
 labat Igitur, primo conrepti qui fatebantur, deinde indicio eorum, 
 
 multitudo ingens, haud "perinde in crimine incendii, quam odio humani 
 generis convicti sunt. 
 
 3 Postridie propositum est edictum quo cavebatur ut religionis illius 
 homines carerent omni honore ac dignitate, tormentis subject! essent ex 
 
288 TORTURE. 
 
 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. 1 
 
 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 endu- 
 rance of Epicharis, a freedwoman, who underwent the most 
 fearful torments without compromising those who possessed 
 little claim upon her forbearance, the annalist indignantly 
 compares her fortitude with the cowardice of noble Romans, 
 who betrayed their nearest relatives and dearest friends at 
 the mere sight of the torture chamber. 3 
 
 Un,der 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 ; 3 and even if a slave, when about to be 
 
 quocumque ordine aut gradu venirent, adversus eos omnis actio caleret, etc. 
 Lactant. de Mortib. Persecut. cap. xiii. 
 
 1 Tormentorum genera inaudita excogitabantur. (Ibid. cap. xv.) When 
 the Christians were accused of an attempt to burn the imperial palace, Dio- 
 cletian " ira inflammatus, excarnificari omnes suos protinus pra3cipit. Sede- 
 bat ipse atque innocentes igne torrebat." (Ibid. cap. xiv.) Lactantius, or 
 whoever was the real author of the tract, addresses the priest Donatus to 
 whom it is inscribed: ' 'Novies etiam tormentis cruciatibusque variis subjectus, 
 
 novies adversarium gloriosa confessione vicisti Nihil adversus te 
 
 verbera, nihil ungulae, nihil ignis, nihil ferrum, nihil varia tormentorum 
 genera valuerunt." (Ibid. cap. xvi.) Ample details may be found in 
 Eusebius, Hist. Eccles. Lib. v. c. I, vi. 39, 41, vin. passim, Lib. Martyrum ; 
 and in Cyprian, Epist. x. (Ed. Oxon. 1682). 
 
 3 Tacit. Annal. xv. lvi., Ivii. 
 
 * In causis quoque liberalibus, non oportet per eorum tormenta, de quorum 
 statu quaeritur, veritatem requiri. L. 10 6 Dig. xlviii. xviii. 
 
in romi:. 289 
 
 tortured, endeavored t<> escape by asserting his freedom, Li 
 
 w:is necessary to prove hia servile condition before |>r<>- 
 oeeding with the legal torments. 1 In practice, however, 
 these privileged were continually infringed, and numerous 
 edicts of tlu i emperors were directed to repressing the 
 abuses which constantly occurred. Thus we find Diocle- 
 tian forbidding the application of torture to soldiers or 
 their children under accusation, unless they had been dis- 
 missed the service ignominiously. 8 The same emperor pub- 
 lished anew a rescript of Marcus Aurelius declaring the 
 exemption of patricians and of the higher imperial officers, 
 with their legitimate descendants to the fourth generation; 1 
 and also a dictum of Ulpian asserting the same privilege 
 in favor of decurions, or local town councillors, and their 
 children. 4 In 316, Valentinian was obliged to renew the 
 declaration that decurions were only liable in cases of 
 majrs/nh's, and, in 399, Arcadius and Honorius found it 
 necessary to explicit^ declare that the privilege was per- 
 sonal and not official, and that it remained to them after 
 laying down the decurionate. 5 Theodosius the Great, in 
 385, especially directed that priests should not be subjected 
 to torture in giving testimony, 6 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 
 inflicted by any tribunal in cases of treason, and that in 
 
 1 L. 12 Dig. xLViit. xviii. (Ulpian.) 
 
 - Const. 8 Cod. ix. xli. (Dioclet. et Maxim.) 
 
 3 Const. 11 Cod. ix. xli. 
 
 4 Ibid. 1. 
 
 s Const. 16 Cod. ix. xli. 
 
 6 Presbyteri citra injuriain qucestionis testimonium dicant Const. 8 Cod. 
 I. 3. 
 
 25 
 
290 TORTURE. 
 
 other accusations it could be authorized by the order of the 
 emperor. 1 This power was early assumed and frequently 
 exercised. Thus Domitian tortured a man of praetorian 
 rank on a doubtful charge of intrigue with a vestal virgin, 3 
 and various laws were promulgated by several emperors 
 directing the employment of torture irrespective of rank, in 
 some classes of accusations. Thus, in 211, Caracalla author- 
 ized it in cases of suspected poisoning by women. 3 Con- 
 stantine decreed that unnatural lusts should be punished 
 by the severest torments, without regard to the station 
 of the offender. 4 Constantius persecuted in like manner 
 soothsayers, sorcerers, magicians, diviners, and augurs, 
 who were to be tortured for confession, and then to be put 
 to death with every refinement of suffering. 5 So, Justinian, 
 under certain circumstances, ordered torture to be used on 
 parties accused of adultery. 6 The power thus assumed by 
 the monarch could evidently only be limited by his discre- 
 tion in its exercise. 
 
 One important safeguard, however, existed, which, if 
 properly maintained, must have greatly lessened the fre- 
 quency 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. 7 A rescript of 
 Const antine, 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 
 
 1 Const. 4 Cod. ix. viii. 
 
 3 Sueton. Domit. cap. viii. To Domitian the historian also ascribes the 
 invention of a new and infamously indecent kind of torture (Ibid. cap. x.). 
 
 3 Ipsa quoque mulier torquebitur. Neque enim a?gre feret si torqueatur, 
 quae venenis suis viscera hominis extinxit. Const. 3 Cod. ix. xli. 
 
 4 Const. 31. Cod. ix. ix. 
 
 5 Const. 7 Cod. ix. viii. 
 
 6 Novell, cxvu. cap. xv. 1. 
 
 7 Const. 17 Cod. ix. ii. Const. 10 Cod. ix. xlvi, 
 
in tOJ 391 
 
 aecnsfltion. 1 This enlightened Legislation wbb preserved 
 by J ustinian, and must have greatly cooled the ardor of the 
 pftOk Of Calumniators and informers, who, from the days of 
 
 Sylla, had been encouraged and petted until they held in 
 
 their liands the life of almost every citizen. 
 
 All these laws relate to the extortion of confessions from 
 the aeeused. In turning to the treatment of witnesses, we 
 find that even with then 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 hear 
 witness without torture; 9 and, in the same spirit, a novel 
 of Justinian, in 539, directs that the rod shall be used to 
 ext ract the truth from unknown persons who are suspected 
 of bearing false witness or of being suborned. 3 
 
 It may, therefore, readily be imagined that when the evi- 
 dence of slaves was required, it was necessarily accompa- 
 nied by the application of torture. Indeed, Augustus 
 declared that while it is not to be expressly desired in 
 trilling matters, in weighty and capital cases the torture of 
 slaves is the most efficacious mode of ascertaining the 
 truth. 4 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 
 
 1 Const. 3 Cod. ix. viii. 
 
 3 Si ea rei conditio sit ut harenarium testem vel similem personam ad- 
 mittere cogimur, sine tormentis testimonio ejus credendum non est. L. 21, 
 2 Dig. xxii. v. 
 
 ' Novell, xc. cap. i. 1. 
 
 4 Quaostiones neque semper in omni causa et persona desiderari debere 
 arbitror : et cum capitalia et atrociora maleficia non aliter explorari et inves- 
 tigari possunt, quam per servorura quaestiones, efficacissimas esse ad requi. 
 rendam veritatem existiino et habendas censeo. L. 8 Dig. xlviii. xviii. 
 (Paulus). 
 
292 TORTURE. 
 
 occupations for the benefit of their owners, and who, as 
 scribes, teachers, stewards, and in other confidential posi- 
 tions, were privy to almost every transaction of their 
 masters, we can readily see that scarce any suit could be 
 decided without involving the testimony of slaves, and thus 
 requiring the application of torture. It was not even, as 
 among most modern nations, restricted to criminal cases. 
 Some doubt, indeed, seems at one time to have existed as 
 to its propriety in civil actions, but Antoninus Pius de- 
 cided 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. 1 
 
 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 f 
 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 tor- 
 tured. 3 This limitation arose from a careful regard for the 
 safety of the master, and not from any feeling of humanity 
 towards the slave. So great a respect, indeed, was paid to 
 the relationship between the master and his slave that the 
 principle was pushed to its fullest extent. Thus even an 
 emplo}' er, who was not the* owner of a slave, was protected 
 against the testimony of the latter. 4 When a slave was 
 held in common by several owners, he could not be tor- 
 
 1 L. 9 Dig. xlviii. xviii. (Marcianus). Licet itaque et de servis alienis 
 haberi quaestionem, si ita res suadeat. 
 
 3 L. 9 1 Dig. xlviii. xviii*. L. 1 16 Dig. xlviii. xvii. (Severus). 
 L. 1 18 Dig. xlviii. xviii. (Ulpian.) 
 
 3 Qui servum ideo comparavit, ne in se torqueretur, restituto pretio, poterit 
 interrogari. Pauli Lib. v. Sentt. Tit. xvi. 7. The same principle is in- 
 volved in a rescript of the Antonines. L. 1 14 Dig. xlviii. xvii. (Severus). 
 
 4 Si servus bona fide mihi serviat, etiam si dominium in eo non habui, 
 potest dici, torqueri eum in caput meum non debere. L. 1 7 Dig. xlviii. 
 xvii. The expression "in caput domini" applies as well to civil as to crimi- 
 nal cases. Pauli Lib. v. Sentt. Tit. xvi. 5. 
 
IN ROM I. 298 
 
 i toed in opposition to any of them, unless one were mused 
 of murdering his partner. 1 A slave could not be tortured 
 in :i prosecution against the father or mother of the owner, 
 or even against the guardian, except in cases concerning 
 the guardianship;' though the slave of a husband could be 
 tortured against the wife. 3 Even the tie whieh 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 pro- 
 tection 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 inconve- 
 nient testimony should not be got rid of by manumitting 
 Slaves so as to prevent their being subjected to torture; 5 
 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." 
 
 The policy of the law in protecting masters from the evi- 
 dence of their tortured slaves also 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 da}^s of the empire, while the monarch 
 still endeavored to veil his irresponsible power under the 
 forms of law, and showed his reverence for ancient rights 
 by evading them rather than by boldly subverting them, 
 Tiberius, in prosecuting Libo and Silanus, caused their 
 slaves to be transferred to the public prosecutor, and was 
 
 1 L. 3 Dig. xlviii. xviii. Const. 13 Cod. ix. xli. 
 
 - L. 10 2 Dig. xlviii. xviii. Const. 2 Cod. ix. xli (Sever, et Antonin. 
 ann. 205). 
 
 J L. 1 11 Dig. xlviii. xvii. 
 4 L. 1 9 Dig. xlviii. xvii. 
 
 * L. 1 13 Dig. xlviii. xvii. Pauli Lib. v. Sentt. Tit. xvi. 9. 
 6 Const. 10 Cod ix. xli. (Dioclet. et Maxim.) 
 
 25* 
 
294 TORTURE. 
 
 thus able to gratify his vengeance legally by extorting the 
 required evidence. 1 Subsequent emperors were not reduced 
 to these subterfuges, for 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 ; 9 
 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. 3 On the other 
 hand, according to Ulpian, Trajan decided that when the 
 confession of a guilty slave under torture implicated his 
 master, the evidence could be used against the master, and 
 this, again, was revoked by subsequent constitutions. 4 
 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 19?, 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. 5 The provision 
 respecting adultery was repeated by Caracalla in 214, and 
 afterwards by Maximus, 6 and the same rule was also held 
 
 1 Et quia vetere Senatusconsulto quaestio in caput domini prohibebatur, 
 callidus et novi juris repertor Tiberius mancipari singulos actori publico 
 jubet. Tacit. Annal. II. 30. See also III. 67. Somewhat similar in spirit 
 was his characteristic device for eluding the law which prohibited the exe- 
 cution of virgins (Sueton. Tiber. Ixi.). 
 
 2 This principle is embodied in innumerable laws. It is sufficient to refer 
 to Constt. 6 2, 7 1, 8 1 Cod. ix. viii. 
 
 3 Servus in caput ejus domini a quo distractus est, cuique aliquando ser- 
 vivit, in memoriam prioris dominii interrogari non potest. L. 18 6 Dig. 
 xlviii. xviii. (Paulus). 
 
 4 L. 1 19 Dig. xlviii. xviii. (Ulpian.) 
 
 s Const. 1 Cod. ix. xli. (Sever, et Antonin.) 
 
 6 Constt. 3, 32 Cod. ix. ix. L. 17 Dig. xlviii. xviii. (Papin.) 
 
IN H (> M I. 295 
 
 to be good in cases <>f incest. 1 It is probable that this in- 
 creasing tendency alarmed the citizens of Rome, and that 
 they clamored for :i restitution of their Immunities, Cor, 
 when Tacitus was elected emperor, in 2t5, he endeavored 
 
 to propitiate pttblk favor by proposing a law to forbid the 
 testimony of slaves against their masters except in cases 
 of majcsfa/ix.* 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 of the paterfamilias was still una- 
 bridged, aii3* one could oner 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 quaes- 
 tors and triumviri capitales. 3 How great was the change 
 effected is seen by the declaration of Diocletian, in 286, that 
 masters were not permitted to bring forward their own 
 slaves to be tortured for evidence in cases wherein they 
 were personally interested. 4 This would necessarily reduce 
 the production of slave testimony, save in accusations of 
 majestatis and other excepted crimes, to cases in which the 
 slaves of third parties were desired as witnesses ; and even 
 
 1 L. 5 Dig. xlviii. xviii. (Marcian.) 
 
 2 In eadem oratione cavit ut servi in dorainorum capita non interrogaren- 
 tur, ne in causa majestatis quidem (FI. Vopisc. Tacit, cap. ix.). 
 
 * Du Boys, Hist, du Droit Crim. des Peup. Anciens. pp. 297, 331, 332. 
 
 * Servos qui proprii indubitate juris tui probabuntur, ad interrogationem 
 nee offerente te produci sineremus : tantum abest ut etiam invito te contra 
 dominam vocem rumpere cogantur. Const. 7 Cod. ix. xli. (Dioclet. et 
 Maxim.). 
 
296 TORTURE. 
 
 in these, the frequency of its employment must have been 
 greatly reduced by the rule which bound the party calling for 
 it to deposit in advance the price of the slave, as estimated 
 by the owner, to remunerate the latter for his death, or for 
 his diminished value if he were maimed or crippled for life. 1 
 When the slave himself was arraigned upon a false accusa- 
 tion and tortured, an old law provided that the master 
 should receive double the loss or damage sustained ; 2 and 
 in 383, Valentinian the Younger went so far as to decree 
 that those who accused slaves of capital crimes should in- 
 scribe themselves, as in the case of freemen, and should be 
 subjected to the lex talionis if they failed to sustain the 
 charge. 3 This was an immense step towards equalizing the 
 legal condition of the bondman and his master. It was 
 apparently in advance of public opinion, for the law is not 
 reproduced in the compilations of Justinian, and probably 
 soon was disregarded. 
 
 There were some general limitations imposed on the ap- 
 plication of torture, but they were hardly such as to pre- 
 vent its abuse at the hands of cruel or unscrupulous judges. 
 Antoninus Pius set an example which modern jurists might 
 well have imitated when he directed that no one should be 
 tortured after confession to implicate others ; 4 and a rescript 
 of the same enlightened emperor fixes at fourteen the mini- 
 mum limit of age liable to torture, except in cases of majes- 
 tatis, when, as we have seen, the law spared no one, for in 
 the imperial jurisprudence the safety of the monarch over- 
 rode all other considerations. 5 Women were spared during 
 
 1 Pauli Lib. v. Sentt. Tit. xvi. 3 See also LI. 6, 13 Dig. xlviii. xviii. 
 3 Const. 6 Cod. ix. xlvi. This provision of the L. Julia appears to have 
 been revived by Diocletian. 
 
 3 Lib. ix. Cod. Theod. i. 14. 
 
 4 L. 16 1 Dig. xlviii. xviii. (Modestin.) 
 
 s De minore quatuordecem annis quaestio habenda non est, ut et Divus 
 Pius Cfleeilio Jubentiano rescripsit. 1. Sed omnes omnino in majestatis 
 crimine, quod ad personas prineipum attinet, si ad testimonium provocentur, 
 cum res exigit, torquentur. L. 10 Dig. xlviii. xviii. (Arcad.) 
 
i \ roii i. 291 
 
 pregnancy. 1 Moderation was enjoined apon the ja< 
 who were t<> Inflict only such torture as the occasion ren- 
 dered neei'ss;uy. and were not to proceed farther at the 
 will of the accuser. 8 No one was to be tortured without 
 the inscription of i formal accuser, who rendered himself 
 liable t<> the lex talitmis^ unless there were violent sus- 
 picions to justify it ; s and Adrian reminded his magistrates 
 that it should be used for the investigation of truth, and 
 not for the infliction of punishment. 4 Adrian further 
 directed, in the same spirit, that the torture of slave wit- 
 nesses should only be resorted to when the accused was so 
 nearly convicted that it alone was required to confirm his 
 guilt. 5 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.' 1 
 
 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 ditferently. 
 Modestinns affirms that it is only to be believed when there 
 is no other mode of ascertaining the truth. 7 Adrian cau- 
 tions his judges not to trust to the torture of a single 
 slave, but to examine all cases by the light of reason and 
 argument. 8 According to Ulpian, the imperial constitu- 
 tions provided that it was not always to be received nor 
 always rejected; in his own opinion it was unsafe, danger* 
 
 1 L. 3 Dig. xlviii. xix. (Ulpian.) 
 
 3 Tormenta autem adhibenda sunt non quanta accusator postulat ; sed ut 
 moderatao rationis teinperamenta desiderant. L. 10 3 Dig. xlviii. xviii. 
 3 L. 22 Dig. xlviii. xviii. 
 
 * L. 21 Dig. xlviii. xviii. 
 
 * L. 1 $ 1 Dig. xlviii. xviii. (Ulpian.) 
 
 6 Const. 8 Cod. ix. xli. (Dioclet. et Maxim.) 
 1 L. 7. Dig. xx. v. 
 
 8 Non utique in servi unius quajstione fidem rei constituendam, sed argu- 
 ments causam examinandam. L. 1 4 Dig. xlviii. xviii. (Ulpian.) 
 
298 TORTURE. 
 
 ous, and deceitful, 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. 1 From the manner in 
 which Cicero alternately praises and discredits it, we can 
 safely assume that lawyers were in the habit of treating it, 
 not on any general principle, but according as it might* 
 affect their client in any particular case; and Quintilian 
 remarks that it was frequently objected to on the ground 
 that torture renders falsehood easy to some and necessary 
 to others, in proportion to their ability or inability to en- 
 dure pain. 2 That these views were shared by the public 
 would appear from the often quoted maxim of Publius 
 Syrus " Etiam innocentes cogit mentiri dolor" and from 
 Valerius Maximus, who devotes his chapter "De Quaes- 
 tionibus" to three cases in which it was erroneously either 
 trusted or distrusted. A slave of M. Agrius was accused 
 of the murder of Alexander, a slave of C. Fannius. Agrius 
 tortured him, and, on his confessing the crime, handed him 
 over to Fannius, who put him to death. Shortly afterwards, 
 the missing slave returned home. This same Alexander was 
 made of sterner stuff, for when he was subsequently sus- 
 pected of being prrvv to the murder of C. Flavius, a Roman 
 knight, he was tortured six times and persistently denied 
 his guilt, though he subsequently confessed it and was duly 
 crucified. A curious instance, moreover, of the little real 
 weight attached to such evidence is furnished by the case 
 of Fulvius Flaccus, in which the whole question turned 
 upon the evidence of his slave Philip. This man was 
 actually tortured eight times, and refused through it all 
 to criminate his master, who was nevertheless condemned. 3 
 
 1 L. 1 23 Dig. xlviii. xviii. Res est fragilis et periculosa et quao veri- 
 tatem fallat. 
 
 2 Altera saspe etiam causam falsa dicendi, quod aliis patientia facile men- 
 dacium faciat, aliis infiruiitas necessarium. M. F. Quintil. Inst. Orat. v. iv. 
 
 3 Valer. Maxim. Lib. vm. o. iv. 
 
! \ U<> M K. 299 
 
 Quintets Curt ins probably reflects the popular feeling on 
 
 the subject, in his pathet it- uarrat tve of t lie tort u re of I'll i Io- 
 tas on a charge of . conspiracy against Alexander. After 
 endnring in silence the extremity of hideous torment, he 
 promised to confess if it were stopped, and when the tor- 
 turers were removed he addressed his brother-in-law Ora- 
 terns, who was condncting 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 aptto bring forth lies as truth. 1 
 
 From the instances given by Valerius Maximus, it may 
 be Inferred that there was do 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 mode- 
 ration alluded to above, no instructions for its administra- 
 tion are to be found in the Roman laws which have been 
 preserved to us, unless it be the rule that when several 
 persons were accused as accomplices, the judges were 
 directed to commence with the youngest and weakest. 3 
 
 Since the time of Sigonius, much antiquarian research 
 has been directed to investigating the various forms of 
 torture employed by the Romans. They illustrate no 
 principles, however, and it is sufficient to enumerate the 
 rack, the scourge, fire in its various forms, and hooks for 
 tearing the flesh, as the modes generally authorized by law. 
 The Christian historians, in their narratives of the fearful 
 persecutions to which their religion was exposed, give us a 
 more extended idea of the resources of the Roman torture 
 Chamber. Thus Prudentius, in his description of the mar- 
 tyrdom of St. Vincent, alludes to a number of varieties, 
 among which we recognize some that became widely used 
 
 1 Q. Curt. Ruf. Hist. vi. xi. Anceps conjectura est quoniam et vera oon- 
 feuia ft t';ils;i dicentibus idem doloris finis ostenditur. 
 
 - Pauli Lib. v. Sentt. Tit. xiv. 2. L. 18 Dig. xlviii. xviii. 
 
300 TORTURE. 
 
 in after times, showing that little was left for modern inge- 
 nuity to invent. 
 
 "Vinctum retortis brachiis, Truculentus hostis martyrem 
 
 Sursuin ac deorsum extendite, Lignoque plantas inserit, 
 
 Compago donee ossium Divaricatis cruribus. 
 Divulsa membratim crepet. Quin addit et pcenam novam 
 
 Post Wdo biulcis ictibus Crucis peritus artifex, 
 
 Nudate costarum abdita Nulli tyranno cognitain 
 
 Ut per lacunas vulnerum Nee fando compertam retro. 
 Jecur retectum palpitet. Fragmenta testarum jubet 
 
 * * * * Hirta impolitis angulis 
 Tunc deinde cunctatus diu Acuminata, inforinia, 
 
 Decernit extrema omnium : Tergo jacentis sternere. 
 Igni, grabato, et laminis Totum cubile spiculis 
 
 Exerceatur quaestio. Armant dolores anxii : 
 
 * * * * Insomne qui subter latus 
 
 In hoc barathrum conjecit Mucrone pulsent obvio." etc. 1 
 
 I have dwelt thus at length on the details of the Roman 
 law of torture because, as will be seen hereafter, it was the 
 basis of all modern legislation on the subject, and has left 
 its impress on the far less humane administration of crimi- 
 nal justice in Europe almost to our own clay. Yet at first 
 it seemed destined to disappear utterly from human sight 
 with the downfall of the Roman power. 
 
 In turning from the nicety poised and elaborate provi- 
 sions of the Imperial laws to the crude jurisprudence of the 
 Barbarian hordes who gradually inherited the crumbling 
 remains of the Empire of the West, we enter into social 
 and political conditions so different that we are naturally 
 led to expect a corresponding contrast in e\^ery 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 
 
 1 Aurel. Prudent, de Vincent. Hymn. v. 
 
BARBARIAN CHARACTERISTICS. 801 
 
 forests, who sits in council with his chief, who frames the 
 Laws which both are bound t<> respect, and nnIi<> pays to 
 that chief only the amount of obedience which superior 
 vigor and intellect may be able to enforce. The structure 
 of such a society is fairly illustrated by the incident which 
 Gregory of Tours selects to prove the kingly qualities of 
 Clovis. During his conquest of Gaul, and before 1 his con- 
 version, his wild followers pillaged the churches with little 
 ceremony. A bishop, whose cathedral had suffered largely, 
 sent to the kiug to request that a certain vase of unusual 
 size and beauty might be restored to him. Clovis could 
 only promise that if the messenger would accompany him 
 to Soissons, where the spoils were to be divided, and if 
 the vase should chance to fall to his share, it should be 
 restored. When the time came for allotting the plunder, 
 he addressed his men, requesting as a special favor that 
 the vase might be given to him before the division, but a 
 sturdy soldier, brandishing his axe, dashed it against the 
 vase, exclaiming, "Thou shalt take nothing but what the 
 lot assigns to thee." For a 3 r ear, Clovis dissembled his 
 resentment at this rebuff, but at length, when opportunity 
 offered, he was prompt to gratify it. While reviewing and 
 inspecting his troops, he took occasion to bitterly reproach 
 the uncourtly Frank with the condition of his weapons, 
 which he pronounced unserviceable. The battle-axe excited 
 his especial displeasure. He threw it angrily to the ground, 
 and as the owner stooped to pick it up, Clovis drove his 
 own into the soldier's head, with the remark, " It was thus 
 3 t ou served the vase at Soissons." 1 
 
 This personal independence of the freeman is one of the 
 distinguishing characteristics of all the Teutonic institu- 
 tions of that age. Corporal punishments for him were 
 unknown to the laws. The principal resource for the repres- 
 sion of crime w r as by giving free scope to the vengeance of 
 
 1 Greg. Turon. Hist. Franc. Lib. II. c. xxvii. 
 
 26 
 
302 TORTURE. 
 
 the injured party, and by providing fixed rates of composi- 
 tion by which he could be bought off. As the criminal could 
 defend himself with the sword against the faida or feud of 
 his adversary, or could compound for his guilt with money, 
 the suggestion of torturing him to extort a confession would 
 seem an absurd violation of all his rights. Crimes were 
 regarded solely as injuries to individuals, and the idea 
 that society at large was interested in their discovery, 
 punishment, and prevention, was entirely too abstract to 
 have any influence on the legislation of so barbarous 
 an age. 
 
 According^, the codes of the Ripuarians, the Alamanni, 
 the Angli and Werini, the Frisians, the Saxons, and the 
 Lombards contain no allusion to the employment of tor- 
 ture under any circumstances ; and such few directions for 
 its use as occur in the laws of the Salien Franks, of the 
 Burgundians, and of the Baioarians, do not conflict with 
 the general principle. 
 
 The personal inviolability which shielded the freeman 
 cast no protection over the slave. He was merely a piece 
 of property, and if he were suspected of a crime, the readiest 
 and speediest way to convict him was naturally adopted. 
 His denial could not be received as satisfactory, and the 
 machinery of sacramental purgation or the judicial duel 
 was not for him. If he were charged With a theft at home, 
 his master would undoubtedly tie him up and flog him until 
 he confessed, and if the offence were committed against a 
 third party, the same process would necessarily be adopted 
 by the court. Barbarian logic could arrive at no other 
 mode of discovering and repressing crime among the friend- 
 less 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 prin- 
 ciple developed in a somewhat different direction. Caesar 
 states that, when a man of rank died, his relatives assem- 
 
Til 1: B \ B B \ B i a N B. 808 
 
 bled Bind Investigated the cirenmstancee of hi* death, [f 
 suspicion alighted apon his vrives, they irere tortured like 
 Blares, and if found guilty were executed with all the 
 refinements of torment. 1 
 
 In aooordanoa with this tendency of Legislation, therefore, 
 we find that among the Barbarians the Legal regulat ions Cor 
 the torture of slaves are intended to protect the interests 
 of the owner alone. The master, indeed, could not refuse 
 his slave to the torturer, unless he were willing to pay for 
 him the full* wehrgild of a freeman, and if the slave con- 
 fessed under the torture, the master had no claim for com- 
 pensation arising either from the punishment or crippling 
 of his bondman. 3 When, however, the slave could not be 
 forced to confess and was acquitted, the owner had a claim 
 for damages, though no compensation was made to the 
 unfortunate sufferer himself. The original law of the Bur- 
 gundians, 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. 3 The Baioarian law is 
 equally careful of the rights of ownership, but seems in 
 addition to attach some slight shade of criminality to the 
 excess of torture by the further provision that, if the slave 
 die under the torment without confession, the prosecutor 
 shall pay to the owner two slaves of like value, and if 
 unable to do so, that he shall himself be delivered up as a 
 slave. 4 The Salique law, on the other hand, only guards 
 
 1 De Bell. Gall. vi. xix. 
 
 2 These provisions are only specified in the Salique Law (First Text of 
 Pardessus, Tit. xl. $ 6, 7, 8, 9, 10. L. Emend. Tit. xlii. $ 8, 9, 10, 11, 
 12, 13), but they were doubtless embodied in the practice of the other tribes. 
 
 3 L. Burgund. Tit. vn. The other allusions to torture in this code, Tit. 
 xxxix. 1, 2, and Tit. lxxvii. 1, 2, also refer only to slaves, coloni, and 
 originarii. Persons suspected of being fugitive slaves were always tortured 
 to ascertain the fact, which is in direct contradiction to the principles of the 
 Roman law.. 
 
 4 L. Baioar. Tit. vm. c. xviii. 1, 2, 3. 
 
304 TORTURE. 
 
 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 the value of the slave with the 
 owner, and then proceed to torture him at his own risk 
 and pleasure. 1 
 
 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 wit- 
 nesses. 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 Salique 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. 3 
 
 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 con- 
 quered territories were universally allowed to live under their 
 old institutions ; in fact, law everywhere was personal and not 
 territorial, every race and tribe, however intermingled on 
 
 1 L. Salic. First Text, Tit. xl. 1, 2, 8, 4 L. Emend. Tit. xlii. 1, 
 2, 3, 4, 5. In a treaty between Childebert and Clotair, about the year 593, 
 there is, however, a clause which would appear to indicate that in doubtful 
 cases slaves were subjected, not to torture, but to the ordeal of chance. " Si 
 servus in furto fuerit inculpatus, requiratur a domino ut ad viginti noctes 
 ipsum in mallum 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 Salique law, including the revision by Char- 
 lemagne. 
 
 2 First Text, Tit. xl. 4. MS. Monaster. Tit. xl. 3. L. Emend. Tit. 
 
 XLII. 6. 
 
T 11 K M 1: ttOVINGIAl 
 
 the same soil, being subjected to its own system of jurispru- 
 dence. The Bummary prooeas of extract in g confessions 
 
 and testimony which the Uoinan practice thus daily brought 
 under the notice of the barbarians could not but be attrac- 
 tive to their violent and untutored passions. Their political 
 system was too loose and undefined to maintain the freedom 
 of the Sieambrian forests in the wealthy plains of France, 
 and the monarch, who, beyond the Rhine, had scarce been 
 more than a military chief, speedily became a despot, whose 
 power over those immediately around him was limited only 
 by the fear of assassination, and over his more distant sub- 
 jects by the facility of revolution. 
 
 When all thus was violence, and the law of the strongest 
 was scarcely tempered by written codes, it is easy to imagine 
 that the personal inviolability of the freeman speedily ceased 
 to guarantee protection. 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. 1 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 him- 
 self, in narrating the affair, seem to think that there was 
 anything irregular in the proposition. Gallienus and Plato 
 were seized, but from some cause were discharged unhurt. 
 Then a certain Riculfus, an accomplice of Leudastes, was 
 
 1 Greg. Turon. Hist. Franc. Lib. vn. c. xx. Aimoin. Lib. HI. c. xxx. 
 xlii. li. lxiv. lxvii. Flodoard. Hist. Reraens. Lib. If. c. ii. 
 
 26* 
 
30fi TORTURE. 
 
 reproached for his wickedness by a man named Modestus, 
 whereupon he accused Modestus to Fredegonda, who 
 promptly caused the unhappy wretch to be severely tor- 
 tured without extracting any information from him, and 
 he was imprisoned until released by the miraculous aid of 
 St. Medard. Finally, Gregory cleared himself canonically 
 of the imputation, and the tables were turned. Leudastes 
 sought safety in flight. Riculfus was not so fortunate. 
 Gregory begged his life, but could not save him from being 
 tortured for confession. For six hours he was hung up 
 with his hands tied behind his back, and then, 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. 1 
 Now, Plato, Gallienus, and Modestus were probably of 
 Gallo-Roman origin, but Riculfus was evidently of Teu- 
 tonic stock ; moreover, he was a priest, and Plato an arch- 
 deacon, and the whole transaction shows that canon law 
 and Frankish law were of little avail against the unbridled 
 passions of the Merovingian. 
 
 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 
 the time of Clovis. The permanent occupation of Septi- 
 mania 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 
 
 1 Gregor. Turon. Hist. Franc. Lib. v. c. xlix. 
 
r II | OSTROGOTH 8. 801 
 
 ancient influence, which could not bni modify the institu- 
 tions of the new-comers as they strove toadapl their primi- 
 tive customs to the altered circumstances under which 
 
 they found themselves. It is not to be wondered at. there- 
 fore, if their laws reflect a condition of higher civilization 
 than those of kindred races, and if the Roman jurispru- 
 dence has left in tl^'in 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 almost as much exposed to the influences 
 of Rome. Their leader, Theodoric, had been educated in 
 Constantinople) and was fully :is 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 dif- 
 ferent subjects, and he was too enlightened not to see the 
 manifest superiority of the Roman polity. 
 
 His kingdom was too evanescent to consolidate and per- 
 fect its institutions or to accumulate any extended body of 
 jurisprudence. What little exists, however, manifests a 
 compromise between the spirit of the Barbarian tribes of 
 the period and that of the conquered mistress of the world. 
 The Edict of Theodoric does not allude to the torture of 
 freemen, and it is probable that the free Ostrogoth could 
 not legally be subjected to it. With respect to slaves, its 
 provisions seem mainly borrowed from the Roman law. 
 No slave could be tortured against a third party for evidence 
 unless the informer or accuser was prepared to indemnify 
 the ow T ner at his own valuation of the slave. No slave 
 could be tortured against his master, but the purchase of a 
 slave to render his testimony illegal was pronounced null 
 and void ; the purchase money was returned, and the slave 
 was tortured. The immunity of freedmen is likewise shown 
 by the cancelling of any manumission conferred for the 
 
308 TORTURE. 
 
 purpose of preventing torture for evidence. 1 Theodoric, 
 however, allowed his Roman subjects to be governed by 
 their ancient laws, and he apparently had no repugnance 
 to the use of torture when it could legally be inflicted. 
 Thus he seems particularly anxious to ferret out and 
 punish sorcerers, and in writing to the Prefect and Count of 
 Rome he urges them to apprehend certain suspected parties, 
 and try them by the regular legal process, which, as we 
 have seen, by the edicts of Constantius and his successors, 
 was particularly severe in enjoining torture in such cases, 
 both as a means of investigation and of punishment. 8 
 
 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 closety. 
 
 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 revised code, prohibited for the future the 
 use of the Roman law, which had previously been in force 
 among the subject populations, under codes specially pre- 
 pared for them by order of Alaric II. Thus the Wisigothic 
 laws, as we have them, are not laws of race, like the other 
 Barbarian codes, but territorial laws carefully digested for 
 a whole nation by men conversant alike with the Roman 
 and with their own ancestral jurisprudence. 
 
 1 Edict Theodor. cap. c. ci. cii. 2 Cassiodor. Variar. iv. xxii xxiii. 
 
T ii I WI8IOOTHS. 809 
 
 It is therefore no1 surprising to iiiul in them the nee of 
 torture legalised somewhal after the fashion of the impe- 
 rial constitutions. Mini vet with some humane modification! 
 
 and restrictions. Slaves were liable to torture cinder :uni- 
 sation, 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 lie 
 would deliver to the owner another slave of equal value if 
 tin 1 accused were acquitted. If an innocent slave were 
 crippled in the torture, the accuser was bound to give two 
 <>f like value to the owner, and the accused received his 
 freedom. If the accused died under the torture, the judge 
 who had manifested so little feeling and discretion in per- 
 mitting it was also fined in a slave of like value, making 
 three enuring to the owner, and careful measures were pre- 
 scribed 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 Im- 
 proving his innocence otherwise if possible ; and if he suc- 
 ceeded, the accuser forfeited to him a slave of equal value, 
 and was obliged to pay all the costs of the proceedings. 1 
 
 Freedmen were even better protected. They could only 
 be tortured for crimes of which the penalties exceeded a 
 certain amount, varying with the nature of the freedom 
 enjoyed by the accused. If no confession were extorted, 
 and the accused were crippled in the torture, the judge and 
 the accuser were both heavily fined for his benefit, and if 
 he died the fines were paid to his family. 3 
 
 There could have been little torturing of slaves as wit- 
 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 
 
 ' L. Wisigoth. Lib. vi. Tit. i. 1. 5. 3 Ibid. 
 
310 TORTURE. 
 
 give testimony as though they were freemen, 1 and, as in 
 the Roman law, there were certain excepted crimes, such 
 as treason, adultery, homicide, sorcery, and coining, in 
 accusations of which slaves could be tortured against their 
 masters, nor could they be preserved by manumission 
 against this liability. 8 
 
 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 pro- 
 cedures by torture. An early law directs that, in cases of 
 theft or fraud, no one shall be subjected to torture unless 
 the accuser bring forward the informer, or inscribe himself 
 with three sureties to undergo the lex talionis in case the 
 accused prove innocent. Moreover, if no confession were 
 extorted, the informer was to be produced. If the accuser 
 could not do this, he was bound to name him to the judge, 
 who was then to seize him, unless he were protected by 
 some one too powerful for the judicial authority to control. 
 In this event it was the duty of the judge to summon the 
 authorities to his aid, and in default of so doing he was 
 liable for all the damages arising from the case. The in- 
 former, when thus brought within control of the court, 
 was, if a freeman, declared infamous and obliged to pay 
 ninefold the value of the matter in dispute ; if a slave, six- 
 fold, 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. 3 
 
 A later law, issued by Chindaswind, is even more careful 
 in its very curious provisions. No accuser could force to 
 the torture a man higher in station or rank than himself. 
 The only cases in which it 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 
 
 1 L. Wisigoth. H. iv. 4. 
 
 3 Ibid. vi. i. 4 ; VII. vi. 1 ; Till. iv. 10, 11. 
 
 3 Ibid. vi. i. 1. 
 
T H | WISIGOTI! S. .'Ill 
 
 500 solidi at least. Jn these cases, :m open trial was first 
 prescribed. If this were fruitless, the accuser who desired 
 to push the matter bound himself in case Of failure to 
 deliver himself up as a slave to the accused, who could 
 maltreat him at pleasure, short of taking his life, or com- 
 pound with him at his own valuation of his Bufferings. 
 The torture then might last for three days; the accuser 
 was the torturer, subject to the supervision of the judge, 
 and might inflict torment to any extent that his ingenuity 
 could suggest, short of producing permanent injury or 
 death. If death resulted, the accuser was delivered to the 
 relatives of the deceased to be likewise put to death; the 
 judge who had permitted it through collusion or corruption 
 was exposed to the same fate, but if he could swear that 
 he had not been bribed by the accuser, he was allowed to 
 escape with a fine of 500 solidi. A very remarkable regula- 
 tion, moreover, provided against false confessions extorted 
 by torment. The accuser was obliged to draw up his accu- 
 sation in all its details, and submit it secretly to the judge. 
 Any confession under torture which did not agree substan- 
 tially with this was set aside, and neither convicted the 
 accused nor released the accuser from the penalties to 
 which he was liable. 1 
 
 Under such a system, strictly enforced, few persons 
 would be found hardy enough to incur the dangers of sub- 
 jecting an adversary to the rack. As with the Franks, 
 however, so among the Wisigoths, the laws were not pow- 
 erful enough to secure their own observance. The authority 
 of the kings grew gradually weaker and less able to repress 
 the assumptions of ambitious prelates and unruly grandees, 
 and it is easy to imagine that in the continual struggle all 
 parties sought to maintain and strengthen their position 
 by an habitual disregard of law. At the Thirteenth Coun- 
 cil of Toledo, in 683, King Erwig, in his opening address, 
 
 1 L. Wisigoth. vi. i. 2. 
 
312 TORTURE. 
 
 alludes to the frequent abuse of torture in contravention of 
 the law, and promises a reform. The council, in turn, de- 
 plores the constantly recurring cases of wrong and suffering 
 wrought "regiae subtilitatis astu vel profanse 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. 1 
 
 As the Goths emerge again into the light of history 
 after the Saracenic conquest, we find these ancient laws 
 still in force among the descendants of the refugees who 
 had gathered around Don Pelayo. The use of the Latin 
 tongue gradually faded out among them, and about the 
 twelfth or thirteenth century the Wisigothic code was 
 translated into the popular language, and this Romance 
 version, known as the Fuero Juzgo, long continued the 
 source of law in the Peninsula. In this, the provisions of 
 the early Gothic monarchs respecting torture are textually 
 preserved, with two trifling exceptions which may reason- 
 ably be regarded as scarcely more than mere errors of 
 copyists. 3 Torture was thus maintained in Spain as an 
 unbroken ancestral custom, and when Alfonso the Wise, 
 about the middle of the thirteenth century, attempted to 
 revise the jurisprudence of his dominions, in the code 
 known as Las Siete Partidas which he promulgated, he 
 only simplified and modified the proceedings, and did not 
 remove the practice. Although he proclaimed that the 
 
 1 Concil. Toletan. XIII. ann. 683, can. ii. 
 
 2 See the Fuero Juzgo, Lib. i. Tit. iii. 1. 4; Tit. iv. 1. 4. Lib. ill. Tit. iv. 
 11. 10, 11. Lib. vi. Tit. i. 11. 2, 4, 5. Lib. vn. Tit. i. 1. 1 ; Tit. vi. 1. 1. 
 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 suspicion of 
 which nobles can be tortured, and that the accuser is not directed to con- 
 duct the torture. In Lib. vu. Tit. i. 1. ], also, the informer who fails to 
 convict is condemned only in a single fine, and not ninefold ; he is, however, 
 as in the original, declared infamous, as a ladro ; if a slave, the penalty is 
 the same as with the Wisigoths. 
 
SPAIN. 814 
 
 person of man is the noblest thing of earth u La persona 
 del home es la mas nol>l$ eosa del niiindo" 1 he held tliat 
 stripes and other torture inflicted judicially were no dis- 
 honor, even to Spanish sensitiveness.- Though, moreover, 
 he declared that hidden crimes were often discovered by 
 means of torture when no other mode was available, 1 still 
 he could not shut hie eyes to the perilous nature of such 
 testimony, and he decreed that no confession extorted by 
 torture, or by the fear of dishonor or death, had any valid- 
 ity. 1 To reconcile the irreconcilable, therefore, he adopted 
 an expedient which subsequently became almost universal 
 throughout Europe. After confession under torture, the 
 prisoner was remanded to his prison. On being subse- 
 quently brought before the judge, he was again interro- 
 gated, when, if he persisted in his confession, he was 
 condemned. If he recanted, he was again tortured; and, 
 if the crime was grave, the process could be repeated a 
 third time: but, throughout all, he could not be convicted 
 unless he made a free confession apart from the torture. 
 Even after conviction, moreover, if the judge found reason 
 to believe that the confession was the result of fear of the 
 torture, or of rage at being tortured, or of insanity, the 
 prisoner was entitled to an acquittal. 5 Evidently, there 
 was little real confidence reposed in the procedure, and j^et 
 this want of faith only doubled or trebled its severity. 
 Alfonso's admiration of the Roman law led him to bor- 
 
 1 Partidas, P. vn. Tit. i. 1. 26. - Ibid. P. vn. Tit. ix. 1. 16. 
 
 3 Car por los tormentos saben los jndgadores mucbas veces la verdad de 
 los malos fechos encubiertos, que non se podrian saber dotra guisa. Ibid. 
 P. vn. Tit. xxx. 1. 1. 
 
 * Por premia de tormentos 6 feridas, 6 por miedo de niuerte 6 de deshonra 
 que quieren facer d los homes, conoscen a - las vegadas algunas casas que de 
 su grado non las conoscerien : e por ende decimos que la conoscencia que 
 fuere fecba en alguna destas maneras que non debe valer nin empesce al que 
 la face. Ibid. P. in. Tit. xiii. 1. 5. 
 
 4 Ibid. P. vn. Tit. xxx. 1. 4. Porque la conoscencia que es fecha en el 
 tormento, si non fuere confirmada despues sin premia, non es valedera. 
 
 27 
 
314 TORTURE. 
 
 row 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. 1 So, when 
 several accomplices were on trial, the torturer was directed 
 to commence with the youngest and worst trained, as the 
 truth might probably be more readily extracted from him. 3 
 The provision, also, that when a master, or mistress, or 
 one of their children was found dead at home, all the' 
 household slaves were liable to torture in the search for 
 the murderer, bears a strong resemblance to the cruel law 
 of the Romans, which condemned them to death in case 
 the murderer remained undiscovered. 3 
 
 The regulations concerning the torture of slaves are 
 founded, with little variation, on the Roman laws. Thus 
 the evidence of a slave was only admissible under torture, 
 and no slave could be tortured to prove the guilt of a 
 present or former owner, nor could a freedman, in a case 
 concerning his patron, subject to the usual exceptions 
 which we have already seen. The excepted crimes enu- 
 merated by Alfonso are -seven, viz: adultery, embezzle- 
 ment 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 
 
 1 Partidas, P. II. Tit. xxi. 1. 24. Except the favor shown to the learned 
 professions, "per honra de la esciencia," which afterwards became general 
 throughout Europe, these provisions may all be found in the Roman law. 
 Const. 4 Cod. ix. viii. ; L. 3 Dig. xlviii. xix. ; L. 10 Dig. xlviii. xviii. j 
 Const. 11 Cod. ix. xli. 
 
 2 Partidas, P. vu. Tit. xxx. 1. 5. Imitated from L. 18 Dig. xlviii. 
 xviii. 
 
 3 Partidas, P. Til. Tit. xxx. 1. 7. Cf. Tacit. Annal xiv. xliii.-xlv. 
 
SPAIN. 315 
 
 iVcvinnn.'nll testimony under torture required firabeeqnent 
 confirmation, 1 
 
 There is one noteworthy innovation, however, in Hie 
 Partidas, which was subsequently introdnoed 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 contradictor} 7 ", so as to afford reason- 
 able suspicion that he was committing perjury, all criminal 
 judges were empowered to subject him to torture, so as to 
 ascertain the truth, provided always that he was of low 
 condition, and did not belong to the excepted classes. 8 
 
 With all this, there are indications that Alfonso de- 
 signed rather to restrict than to extend the use of torture, 
 and, if his general instructions could have been enforced, 
 there must have been little occasion for its employment 
 under his code. In one passage, he directs that when the 
 evidence is insufficient to prove a charge, the accused, if 
 of good character, must be acquitted ; and in another, he 
 orders its application only when common report is ad- 
 verse to a prisoner, and he is shown to be a man of bad 
 repute. 3 Besides, an accuser who failed to prove his charge 
 was alwaj-s liable to the lex taliojiis, unless he were prose- 
 cuting for an offence committed on his own person, or for 
 the murder of a relative not more distant than a brother or 
 sister's child. 4 The judge, moreover, was strictly enjoined 
 not to exceed the strict rules of the law, nor to carry the 
 torture to a point imperilling life or limb. If he deviated 
 from these limits, or acted through malice or favoritism, 
 he was liable to a similar infliction on his own person, or 
 to a penalty greater than if he were a private individual. 5 
 
 1 Partidas, P. vn. Tit. xxx. 1. 16. 
 
 9 Ibid. P. in. Tit. xvi. 1. 43. P. vn. Tit. xxx. 1. 8. 
 
 3 Partidas, P. vn. Tit. i. 1. 26, " home mal enfamado." P. vn. Tit. xxx. 
 1. 3, " Et si fuere home de mala fame vil." 
 
 4 Ibid. P. vn. Tit. i. I. 26. 
 
 6 Ibid. P. vn. Tit. xxx. 1. 4 ; Tit. ix. 1. 16. 
 
316 TORTURE. 
 
 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 consan- 
 guinity, 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. 1 Orders to inflict torture, 
 moreover, were one of the few procedures which could be 
 appealed from in advance. 3 Several of these limitations 
 became generally adopted throughout Europe. We shall 
 see, however, that they afforded little real protection to the 
 accused, and it is more than probable that they received as 
 little respect in Spain as elsewhere. 
 
 There were many varieties of torture in use at the pe- 
 riod, but Alfonso informs us that only two were commonly 
 employecf, the scourge and the strappado, or hanging the 
 prisoner by the arms while his back and legs were loaded 
 with heavy weights. 3 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 discredited, but still retained a certain amount of 
 authority, and, a hundred years later, in the Ordenamiento 
 di Alcala of Alfonso XI., issued in 1348, they are referred 
 to as supplying all omissions in subsequent codes. 4 
 
 It is probable that, in his system of torture, Alfonso the 
 Wise merely regulated and put into shape the customs 
 prevalent in his territories, for the changes in it which 
 occurred during the succeeding three or four centuries are 
 merely such as can be readily explained by the increasing 
 influence of the revived Roman jurisprudence, and the intro- 
 duction of the doctrines of the Inquisition with respect to 
 
 1 Partidas, P. vn. Tit. xxx. 1. 9. 
 
 2 Ibid. P. m. Tit. xxiii. 1. 13. 
 
 3 Ibid. P. vn. Tit. xxx. 1. 1. 
 
 4 Ordenamiento di Alcala, Tit. xxviii. 1. 1. 
 
SPAIN. :J17 
 
 criminal procedures. Iii the linal shape which the adminis- 
 tration of torture assumed in Spain, as described by Yilla- 
 diego, an eminent legist writing aboni the year L60O, it was 
 only employed when the proof was strong and yet not suffi- 
 cient for conviction. No allusion is made to the torture of 
 witnesses. The system of repeating the torture on succes- 
 sive days, if the accused recanted during the interval, had 
 apparently fallen into desuetude, for Villadiego condemns 
 the cruelty of some judges who divide the torture into 
 three days in order to render it more effective, since, after 
 a certain prolongation of torment, the limbs begin to lose 
 their sensibility, which is recovered after an interval, and 
 on the second and third da}^s they are more sensitive than 
 at first. This he pronounces rather a repetition than a 
 continuation of torture, and repetition was illegal unless 
 rendered necessary by the introduction of new testimony. 
 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 
 offences, among which the bigotry of the age had introduced 
 heresy. The clergy also were now exempted, unless pre- 
 viously condemned as infamous, and advocates engaged in 
 pleading enjoyed a similar privilege. The Partidas allow 
 torture in the investigation of comparatively trivial offences, 
 but Tilladiego states that it should only be employed in 
 the case of serious crimes, entailing bodily punishment 
 more severe than the torture itself, and torture was worse 
 than the loss of the hands. Thus when only banishment, 
 fines, or imprisonment were involved, it could not be used. 
 The penalties incurred by judges for its excessive or im- 
 proper application were almost identical with those pre- 
 scribed 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 per- 
 missible. Many varieties were in use, but the most common 
 were the strappado and pouring water down the throat ; 
 
 27* 
 
318 TORTURE. 
 
 but when the accused was so weak as to render these dan- 
 gerous, fire was applied to the soles of the feet ; and the use 
 of the scourge was not unusual. As in the ancient laws, 
 the owner of slaves was entitled to compensation when his 
 bondmen were unjustly tortured. If there was no justifi- 
 cation for it, he was reimbursed in double the estimated 
 value ; if the judge exceeded the proper measure of torment, 
 he made it good to the owner with another slave. 1 
 
 In turning to the other barbarian races who inherited the 
 fragments of the Roman empire, we find that the introduc- 
 tion of torture as a recognized and legal mode of investiga- 
 tion 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, its first faint 
 trace is to be found in a provision respecting the crime 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 disregarded in the case of those who vio- 
 lated every law, human and divine. The legislation of 
 Charlemagne, indeed, was by no means merciful in its gen- 
 eral character. His mission was to civilize, if possible, the 
 savage and turbulent races composing his empire, and he 
 was not over nice 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 . a Yet, by this time, 
 
 1 Villadiego, Gloss, ad Fuero Juzgo, Lib. vi. Tit. i. 1. 2, Gloss, c, d, e, f, g. 
 Lib. vi. Tit. i. 1. 5, Gloss, b, c. 
 
 2 Capit. Carol. Mag. II. ann. 805, xxv. (Baluz.). No other interpretation 
 can well be given of the direction '* diligentissime examinatione constrin- 
 gantur si forte confiteantur malorura quae gesserunt. Sed tali moderatione 
 fiat eadem districtio ne vitam perdant." 
 
Til | t'AIM.nVINGIANS. &1D 
 
 tlu personal inviolability of the freeman vaa gone. The 
 Infliction of stripes and of hideous mutilations is frequently 
 directed in the Capitularies, and eTen torture and banish- 
 incut for life are prescribed as ponishment for insulting 
 
 bishops and priests in church. 1 
 
 This apparent inconsistency is easily explicable. Though 
 there was no theoretical objection to torture as a process 
 of investigation, yet there was no necessity for its employ- 
 ment as a means of evidence. That the idea of thus using 
 it in matters of great moment was not unfamiliar to the 
 men of that age is evident when we find it officially stated 
 that the accomplices of Bernard, King of Italy, in his 
 rebellion against Louis-le-Debonnaire, in 817, on their cap- 
 ture confessed the whole plot without being put to the tor- 
 ture.- Such instances, however, were purely exceptional. 
 In ordinary matters, there was a complete system of attack 
 and defence which supplemented all deficiencies of testi- 
 mony in doubtful cases. Sacramental purgation, the wager 
 of battle, and the various forms of vulgar ordeals were not 
 011I3* 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 inculcated by the church, 
 and the church had by this time entered on the career of 
 temporal supremacy which gave it so potential a voice in 
 fashioning the institutions of European society. For all 
 these, the ministrations of the ecclesiastic were requisite, 
 and in many of them his unseen interference 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 
 
 1 Capitul. Lib. vi. cap. exxix. Si quis episcopo rel aliis ministris intra 
 ecclesiam injuriam fecerit, jubemus eum tormentis subjeetum in exilio raori 
 .... Sin autein contumeliam tantura fecerit, tormentis et exilio tradatur. 
 
 * Non solum se tradunt sed ultro etiam non admoti quaestionibus omnem 
 technam hujus rebellionis detegunt. Goldast. Constit. Imp. I. 151. 
 
320 TORTURE. 
 
 yet frequent under the Merovingians, the canons of various 
 councils prohibited the presence of any ecclesiastic in places 
 where it was administered. 1 Every consideration, there- 
 fore, 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 practi- 
 cable instrumentality to preserve the purity of faith and the 
 steadfastness of implicit obedience. 
 
 In the ninth century, moreover, torture was incompatible 
 with the forms of judicial procedure handed down as relics 
 of the time when every freeman bore his share in the public 
 business of his sept. Criminal proceedings as yet were 
 open and public. The secret inquisitions which afterwards 
 became so favorite a system with lawyers did not then 
 exist. The mallum, or court, was perhaps no longer held 
 in the open air, 9 nor were the freemen of the district con- 
 strained as of old to be present, 3 but it was still free to 
 
 1 Non licet presbytero nee diacono ad trepalium ubi rei torquentur stare. 
 Concil. Autissiodor. arm. 578, can. xxxiii. 
 
 Ad locum examinationis reorum nullus clericorum accedat. Concil. 
 Matiscon. II. ann. 585, can. xix. 
 
 2 Under Charlemagne and Louis-le-Debonnaire seems to have commenced 
 the usage of holding the court under shelter. Thus Charlemagne, " Ut in locis 
 ubi mallus publicus haberi solet, tectum tale constituatur quod in hiberno 
 et in aestate observandus esse possit" (Capit. Carol. Mag. II. ann. 809, 
 xiii.). See also Capit. I. eod. ann. xxv. Louis-le-Debonnaire 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 
 solis et pluviam publica utilitas non remaneat." (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 aestatem et alterum circa autumnum." At others of less 
 importance, they were only bound to attend when summoned, " Ad alia vero, 
 si necessitas fuerit, vel denunciatio regis urgeat, vocatus venire nemo tardet."' 
 (Capit. Carol. Mag. ann. 769, xii.) 
 
FKUDALISM. 821 
 
 every one. The acrnscr and his witnesses were confronted 
 with the accused, and the eriminal must be present when 
 his sentence was pronouneed. 1 The purgatorial oath was 
 administered at the altar ofthe perish church; the ordeal 
 was a public spectacle ; and the judicial duel drew thousands 
 of witnesses as eager for the sight of blood as the Roman 
 plebs. These were all ancestral customs, inspiring im- 
 plicit reverence, and forming part of the public life of the 
 community. To substitute for them the gloomy dungeon 
 through whose walls no echo of the victim's screams could 
 filter, where impassible judges coldly compared the inco- 
 herent confession wrung out by insufferable torment with 
 the anonymous accusation or the depositions of unknown 
 witnesses, required a total change in the constitution of 
 society. 
 
 The change was long in coming. Feudalism arose and 
 consolidated its forces on the ruins of the Carlovingian 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 
 hereditary, so they arrogated to themselves the dispensa- 
 tion of justice which had formerly belonged to the central 
 power, but their courts were still open to all. Trials were 
 conducted in public upon well-known rules of local law 
 and custom ; the fullest opportunities were given for the 
 defence; and a denial of justice authorized the vassal to 
 renounce the jurisdiction of his feudal lord and seek a 
 superior court. 
 
 In 809, he desired that none should be forced to attend unless he had busi- 
 ness, "Ut nullus ad placitum venire cogatur, nisi qui caussam habet ad 
 quajrendam." (Capit. I. ann. 809,- xiii.) 
 
 In 819, Louis ordered that the freemen should attend at least three courts 
 a year, "et nullus eos amplius placita observare compellat, nisi forte quilibet 
 aut accusatus fuerit, aut aliuin accusaverit, aut ad testimonium perhibendum 
 vocatus fuerit." (Capit. Ludov. Pii. V. ann. 819, xiv.) 
 
 1 Placuit ut adversus absentes non judicetur. Quod si factus fuerit pro- 
 lata sententia non valebit. Capitul. Lib. v. cccxi. 
 
322 TORTURE. 
 
 Still, as under the Merovingians, torture, though un- 
 recognized by law, was occasionally employed as an extra- 
 ordinary element of judicial investigation, as well as a 
 means of punishment to gratify the vengeance of the irre- 
 sponsible and cruel tyrants who ruled with absolute sway 
 over their petty lordships. A few such instances occur in 
 the documents and chronicles of the period, but the terms 
 in which they are alluded to show that they were regarded 
 as irregular. 
 
 Thus, it is related of Wenceslas, Duke of Bohemia, in 
 the early part of the tenth century, that he destroyed the 
 gibbets and fearful implements of torture wherewith the 
 cruelty of his judges had been exercised, and that he never 
 allowed them to be restored. 1 An individual case of torture 
 which occurred in 1017 has chanced to be preserved to us 
 by its ending in a miracle, and being the occasion of the 
 canonization of a saint. A pious pilgrim, reputed to belong 
 to the royal blood of Scotland, while wandering on the 
 marches between the Bavarians and the Moravians, was 
 seized by the inhabitants on suspicion of being a spy, and, 
 to extort a confession, was exposed to a succession of tor- 
 ments which ended by hanging him on a withered tree until 
 he died. The falsity of the accusation and the sanctity of 
 the victim were manifested by the uninterrupted growth of 
 his hair and nails and the constant flowing of blood from a 
 wound, while the dead tree suddenly put forth leaves and 
 flowers. Margrave Henry of Bavaria had him reverently 
 buried, and he was duly enrolled in the catalogue of saints. 3 
 In the celebrated case, also, of the robbery of the church 
 
 1 Regnabat autem in Praga Wenezlaus Deo et hominibus acceptus, qui 
 inter caetera quae de eo praedicantur, mirabilia tormentorum genera et pati- 
 bula suspendiis hominum praeparata dirui fecit, ne immanitas judicum ex- 
 cresceret, nee reparari suo tempore permisit Annalist. Saxo ann. 928. 
 
 3 In Bavariorum confinia atque Maravensium quidain peregrinus, nomine 
 Colomannus, ab incolis, quasi speculator esset, capitur, et ad professionem 
 culpae, quam non meruit, diris castigationibus compellitur, etc. Dithmari 
 Chron. Lib. vn. ad fin. 
 
THE TWELFTH CENTIKV. 828 
 
 of Laos, about the year 1100, the suspected thief was, by 
 direction of the bishop, basted with hot lard, In order to 
 extort :i confession, 1 and though this whs unsuccessful, a 1 
 perseverance in the effort anally effected its purpose.' 
 
 These arc evidently rather sporadic and exceptional c 
 than Indications of any systematic introduction of the prac- 
 tice* A more significant allusion, however, is found in the 
 reproof administered, about 1125, by Ifildebert, Bishop of 
 le Mans, to one of his priests, who had been concerned in 
 the torture of a suspected thief, for the purpose of extract- 
 ing 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. 3 This would seem to show that it occasion- 
 al \y was a recognized means of proof in the lay tribunals of 
 tin 1 period, though as yet not favored by the church. If so, 
 no record of its introduction or evidence of its customary 
 use has been preserved to us, though there is abundant 
 evidence of its employment as a punishment and for the 
 extortion of money. 
 
 As a punishment legally inflicted, we find it prescribed, 
 in 1168, by Frederic Barbarossa in cases of petty thefts, 4 
 and in the next century by Frederic II. as a penalty for 
 high treason. 6 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 
 
 1 Ille nudatum terraaque prostratum atque ligatum, lardo calido fecit per- 
 fundi, sed nihil extorquere potuit. Heruiannus de S. Mariae Lauden. Mirac. 
 (Jureti Observat. in Ivon. Epist. lxxiv.). 
 
 2 Guibert. Noviogent. de Vita Sua, cap. xvi. 
 
 3 Reos torraentis afficere vel suppliciis extorquere confessionem censura 
 curia 1 est non ecclesiae disciplina. Unde et ab ejus animadversione abstinere 
 debuisti quern pecuniam tuam furto suspicaris asportasse ; neque enim car- 
 nifex es sed sacrifex. Hildebert. Cenoman. Epist. xxx. 
 
 4 Si quis quinque solidos valens aut plus fuerit furatus laqueo suspendatur : 
 si minus, scopis et forcipe excorietur et tundatur. Feudor. Lib. II. Tit. 
 xxvii. $ 8. 
 
 1 Fred. II. Lib. Rescript. II. 1, 6. (Goldast, Constit. Imp. li. 54.) 
 
324 TORTURE. 
 
 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 tor- 
 tured in various ways by the vindictive conqueror. 1 
 
 So summary and effective a mode of forcing the weak 
 and unprotected to ransom themselves was not likely to be 
 overlooked in those ages of violence, and though the extra- 
 judicial use of torture is foreign to our purpose, yet, as 
 showing how men educated themselves in its employment, 
 it may be worth while to allude briefly to this aspect of 
 the subject. Thus Duke Swantopluck Of Bohemia, in a 
 marauding expedition into Hungary in 1108, caused to be 
 racked or put to death all prisoners who could not purchase 
 escape by heavy ransoms. 51 At the same period, Germany 
 is described to us by an eyewitness as covered with feudal 
 chieftains who lived a life of luxury by torturing the mis- 
 erable wretches that could scarce obtain bread and water 
 for their own existence. 3 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 
 
 1 Trucidatis aliis, aliis caecatis, nonnullis diversis tormentorurn generibus 
 excruciatis, multisque per diversis fugientibus. Erphurdianus Variloquus 
 arm. 1125. 
 
 2 Alios interfeci jussit, alios in eculeo suspensos, paucis vero, accepta 
 magna pecunia, vitam concessit. Cosmae Pragens. Lib. in. ann. 1108. 
 
 3 Ab his qui pane solo et aqua victitare solebant, delicias sibi ministrari 
 tormentis exigebant. Annalist. Saxo ann. 1123. 
 
DISAPPROVED BY THE CHURCH. 325 
 
 iron collar preventing the wearer from sitting, lying, or 
 sleeping; dungeons filled with toads and adders; slow 
 starvation, &c. &c. 1 Such experiments were a fitting educa- 
 tion for the times that were to come. 
 
 In all this, however, there is no evidence of the revival 
 of torture as a means of legal investigation. The commu- 
 nity was satisfied with the old barbaric forms of trial, and 
 tin- church, still true to its humanizing instincts, lost no 
 opportunity of placing the seal of its disapprobation on 
 the whole theory of extorting confessions. The great name 
 of Gregory I. was on record, as early as the sixth century, 
 denouncing as worthless a confession extorted by incarce- 
 ration and hunger. 3 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 the true faith, he recites 
 that he is told that in cases of suspected theft, their courts 
 endeavor to extort confession by stripes, and by pricking 
 with a pointed iron. This he pronounces to be contrary 
 to all law, human and divine, for confessions to be valid 
 should be spontaneous; and he argues at some length on 
 the uncertainty of the system of torture, and the injustice 
 to which it leads, concluding with a peremptory prohibition 
 of its continuance. 3 
 
 In the first half of the same century, the manufacturers 
 
 1 Anglo-Saxon Chronicle, ann. 1137. 
 
 a Si tamen eamdem confessionem subtilitas examinations ex occultis 
 elicerit, et non afflictio vehemens extorqueret ; qua} frequenter hoc agit ut 
 noxios se fateri cogantur etiam innoxii. Nam postquam praefatus episcopus, 
 ut dicitur, cruciari custodia cremarique fame se asserit, scire debetis, si ita 
 est, utrum noceat si sic fuerit extorta confessio. Gregor. PP. I. Lib. vui. 
 Epist. xxx. 
 
 3 Nicolai PP. I. Epist. xcvii. $ 86. Quam rem nee divina lex nee hu- 
 maiia prorsus admittit, cum non invita sed spontanea debeat esse confessio 
 .... Relinquite itaque talia, et quae hactenus insipientes exercuistis, me- 
 dullitus execramini, quern enim fructum habuistis tunc in illis in quibus 
 non erubescitis? 
 
 28 
 
326 TORTURE. 
 
 of the False Decretals had attributed to Alexander I. an 
 epistle designed to protect the church from pillage and 
 oppression, in which that pontiff is made to threaten with 
 infamy and excommunication those who extort confessions 
 or other writings from ecclesiastics by force or fear, and 
 to lay down the general rule that confessions must be 
 voluntary and not compulsory. 1 On the authority of this, 
 Ivo of Chartres, at the commencement of the twelfth cen- 
 tury, declares that men in holy orders cannot be forced 
 to confess ; a and half a century later, Gratian lays down 
 the more general as well as more explicit rule that no con- 
 fession is to be extorted by the instrumentality of torture. 3 
 This position was consistently maintained until the revival 
 of the Roman law familiarized the minds of men with the 
 procedures of the imperial jurisprudence, when the policy 
 of the church altered, and it yielded to the temptation of 
 obtaining so useful a means of reaching and proving the 
 otherwise impalpable crime of heresy. 
 
 The latter half of the twelfth century saw the study of 
 the civil law prosecuted with intense ardor, and in the 
 beginning of the thirteenth, Innocent III. struck a fatal 
 blow at the barbaric systems of the ordeal and sacramental 
 compurgation by forbidding the rites of the church to the 
 one and altering the form of oath customary to the other. 
 The unreasoning faith which had reposed confidence in the 
 boiling caldron, or the burning ploughshare, or the trained 
 champion as the special vehicle of Divine judgment, was 
 fading before the Aristotelian logic of the schools, and dia- 
 lectical skill could not but note the absurdity of acquitting 
 
 1 Pseudo-Alexand. decret." Omnibus orthodoxis" Confessio vero in 
 talibus non compulsa sed spontanea fieri debet. . . . Confessio enim non 
 extorqueri debet in talibus, sed potius sponte profiteri, pessimum est enim 
 de suspicione aut extorta confessione quemquam judicare. 
 
 2 Ministrorum confessio non sit extorta sed spontanea. Ivon. Panorm. 
 iv. cxviii. 
 
 3 Quod vero confessio cruciatibus extorquenda non est. Decreti Caus. xv. 
 q. 6, can. 1. 
 
INFLUENCE OF THE ROMAN LAW. 327 
 
 i culprit because be could beg <>r buy two, or five, or eleven 
 nuMi to swi-Mi- to their belief iii his oath of denial 
 
 Yet with all these Influences at work, the ancestral cus- 
 toms 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 
 Franco, at whose University of Paris for more than a 
 hundred years the study of the Pandects had become the 
 absorbing topic, and where the constantly increasing power 
 of the crown found its most valuable instruments in the 
 civil lawyers, and its surest weapon against feudalism in 
 the extension of the royal jurisdiction. In Germany, the 
 progress was even slower. The decline of the central au- 
 thority, after the death of Frederic Barbarossa, rendered 
 any general change impossible, and made the absolutist 
 principles of the imperial jurisprudence especially distaste- 
 ful to the crowd of feudal sovereigns, whose privileges 
 were best supported by perpetuating organized anarchy. 
 The early codes, therefore, the Sachsenspiegel, the Schwa- 
 benspiegel, the Kayser-Recht, and the llichstich Landrecht, 
 which regulated the judicial proceedings of the Teutonic 
 nations from the thirteenth to the fifteenth centuries, seem 
 to know no other mode of deciding doubtful questions than 
 sacramental purgation and the various forms of ordeal. 
 During the latter portion of this period, it is true, torture 
 begins to appear, but it is as an innovation. 
 
 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 civiliza- 
 tion, impressive even in its decrepitude. It was natural 
 that, in governing the motley collection of Greeks, Syri- 
 ans, 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 sur- 
 prising that torture did not form a more prominent feature 
 
328 TORTURE. 
 
 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 the}' were 
 strangers to the victim. If, however, they were relatives, 
 their testimony was held suspect, and the confession of the 
 accused was requisite to his conviction. To obtain this, he 
 was subjected to torture for three days ; if he confessed, he 
 was hanged ; if obdurate, he was imprisoned for a year and a 
 day, with the privilege of clearing himself during that 
 period by the ordeal of the red-hot iron. If he declined 
 this, and if during his confinement no additional evidence 
 was procured, he was acquitted and could not be again 
 appealed for the murder. 1 
 
 This shows the transition state of the question. The 
 criminal is caught with the red hand and the evidence of 
 guilt is complete, save that the witnesses may be interested ; 
 confession thus becomes requisite, yet the failure to extort 
 it by the most prolonged torment does not clear the 
 accused ; the ordeal is resorted to in order to supplement 
 the torture, and solve the doubts which the latter could not 
 remove; and finally, the criminal is absolved though he 
 dare not trust the judgment of God, and though the uncer- 
 tainties 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 j urisprudence. Probably the first instance 
 of its use is to found in the legislation of Frederic II. for 
 
 1 Assises de Jerusalem, Baisse Court, cap. cclix. 
 
IM'.VIVED IN' 1 T A I. I . :;-_ )( .l 
 
 hi- Neapolitan provinces, promulgated fa L281; and the 
 
 mode in which it is prescribed shows tli:it it was as \ct 1 nit 
 
 sparingly employed. As Frederic was the earliest secular 
 legi slator 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- 
 mit ted. and the most stringent investigation could not con- 
 vict the perpetrators, if the weight of suspicion fell on per- 
 sons of humble station and little consequence, they could 
 be tortured for confession. If no torment could wring 
 from them an acknowledgment of guilt, or if, as often 
 happened ("prout accidere novimus in plerisque"), their 
 resolution gave way under insufferable torment and they 
 subsequently recanted, then the punishment, in the shape 
 of a fine, was inflicted on the district where the crime had 
 occurred. 1 From this it is evident that torture was not 
 exactl} T a novelty, but that as yet it was only ventured 
 upon with the lowest and most unprotected class of society, 
 and that confession during its infliction was not regarded as 
 sufficient for conviction, unless subsequently 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 indigenous, 2 and which the traditional hate of the Italian 
 States for the Tedeschi was not likely to render popular. 
 That by the middle of the century, indeed, the practical 
 applications of torture had been profoundly studied and 
 were thoroughly understood in all their most inhuman 
 ramifications is sufficiently evident from the accounts which 
 we possess of the fearful cruelties habitually practised by 
 petty despots such as Eccelino di Romano. 3 
 
 1 Constit. Sicular. Lib. i. Tit. xxvii. 
 9 Du Boys, Droit Criminel des Peup. Mod. II. 405. 
 
 3 Monach. Paduan. Chron. Lib. n. ann. 1252-3 (Urstisii Scrip. Rer. Ger- 
 
 2S* 
 
330 TORTURE. 
 
 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 power- 
 ful element in extending and facilitating its introduction. 
 The church had been actively engaged in discountenancing 
 and extirpating the ordeal, and it now threw the immense 
 weight of its authority in favor of the new process of ex- 
 torting confessions. When Frederic II., in 1221, issued 
 from Padua his three constitutions directed against heresy, 
 cruel and unsparing as they were, they contained no indica- 
 tion that torture was even contemplated as a mode of inves- 
 tigation. In fact, suspected parties, against whom insuffi- 
 cient evidence was brought, were directed to prove their 
 innocence by some fitting mode of purgation. 1 In 1252, 
 however, when Innocent IV. issued his elaborate instruc- 
 tions for the guidance of the Inquisition in Tuscany and 
 Lombardy, he ordered the civil magistrates to extort from 
 all heretics by torture not merely a confession of their own 
 guilt, but an accusation of all who might be their accom- 
 plices ; and this derives significance from his reference to 
 similar proceedings as customary in trials of thieves and 
 robbers. 3 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 
 
 man. pp. 594-5). Quotidie diversis generibus tormentorum indiffenter tam 
 inajores quam minores a carnificibus necabuntur. Voces terribiles claman- 
 tum in tormentis die noctuque audiebantur de altis palatiis. . . . Quotidie 
 pine labore, sine conscientiae remorsione magna torinenta et inexcogitata 
 corporibus hominum infligebat, etc. 
 
 1 Congrua purgatione. Goldast. Constit. Imp. I. 293-5. 
 
 2 Teneatur praeterea potestas seu rector omnes haereticos quos captos 
 habuerit, cogere citra membri diminutionem et mortis periculum, tanquam 
 vere latrones et bomicidas animarum et fures sacramentorura Dei et fidei 
 Christiana?, errores suos expresse fateri et accusare alios haereticos quos 
 sciunt, et bona eorum, et credentes et receptatores et defensores eorum, sicut 
 coguntur fures et latrones rerum temporalium accusare suos complices et fa- 
 teri maleficia quae fecerunt. Innocent. IV. Leg. et Const, contra Haeret. 26. 
 
INFLUENCE OF T Hi: [NQUI8ITION. 831 
 
 hi extant a tract, written not long after this time, contain- 
 ing very minute instructions .-is to the established mode of 
 dealing with the sect of Albigensee known as the * Poor 
 Men of Lj-ons." 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 suflicient proof 
 that such measures were not then customary. 1 
 
 The whole system of the Inquisition, however, was such 
 :i s to render the resort to torture inevitable. Its proceedings 
 were secret ; the prisoner was carefully kept in ignorance 
 of the exact charges against him, and of the evidence upon 
 which they were based. He was presumed to be guilty, and 
 his judges bent all their energies to force him to confess. 
 To accomplish this, no means were too base or too cruel. 
 According to the tract just quoted, pretended sympathizers 
 were to be let into his dungeon, whose affected friendship 
 might entrap him into an unwary admission; officials armed 
 with fictitious evidence were directed to frighten him with 
 assertions of the testimony obtained against him from sup- 
 posititious witnesses ; and no resources of fraud or guile 
 were to be spared in overcoming the caution and resolution 
 of the poor wretch whose mind, as we have seen, had been 
 carefully weakened by solitude, suffering, hunger, and terror. 
 From this to the rack and estrapade the step was easily 
 taken, and was not long delayed. In 1301, we find even 
 Philippe-le-Bel protesting against the cruelty of the In- 
 quisition, and interfering to protect his subjects from the 
 refinements of torture to which, on simple suspicion of 
 heresy, unfortunate victims were habitually exposed. 3 Yet 
 
 1 Tract, de ITajres. Paup. de Lugd. (Martene et Durand V. 1787). In the 
 tract, Frederic II., who died in 1250, is spoken of ns "quondam imperator." 
 
 - Clamor validus et insinuatio luctuosa fidelium subditorum . . . processus 
 suos in inquisitionis negotio a captionibus, quaestionibus et excogitatis tor- 
 mentis incipiens personas quas pro libito asserit haeretica labe notatas, abne- 
 
332 TORTURE. 
 
 when, a few years later, the same monarch resolved upon 
 the destruction of the Templars, he made the Inquisition 
 the facile instrument to which he resorted, as a matter of 
 course, to extort from De Molay and his knights, with 
 endless repetition of torments, the confessions which were 
 to recruit his exhausted treasury with their broad lands 
 and accumulated riches. 1 
 
 The history of the Inquisition, however, is too large a 
 subject to be treated here in detail, and it can only be 
 alluded to for the purpose of indicating its influence upon 
 secular law. That influence was immense. The legists who 
 were endeavoring to eradicate the feudal customs could not 
 expect the community to share their admiration of the 
 Roman law, and naturally grasped with eagerness the ad- 
 vantage offered them in adducing the example of ecclesi- 
 astical institutions. In founding their new system, they 
 could thus hardly avoid copying that which presented itself 
 Under all the authority of an infallible church, and which 
 had been found to work so successfully in unveiling the 
 most secret of hidden crimes, those of faith and belief. 
 
 About the time when Innocent IV. was prescribing tor- 
 ture in Italy, we find the first evidence of its authoritative 
 use in France as an ordinary legal procedure. In Decem- 
 ber, 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 them- 
 selves falsely, or, on the other, to buy themselves off from 
 the infliction. 8 
 
 gasse Christum . . . . vi vel metu tormentorum fateri compellit. Lit. Philip. 
 Pulchri, ap. Raynouard, Monuments Historiques relatifs a la Condamnation 
 des Chevaliers du Temple, pp. 37-8. 
 
 1 The fearful details of torture collected hy Raynouard (op. cit.) show that 
 the Inquisition hy this time was fully experienced in such work. 
 
 3 Personas autem honestas vel bonae famje, etiam si sint pauperes, ad 
 
INTRODUCTION IN FKAVOE. 888 
 
 This WOlild seem to Indicate that the system of judicial 
 torture was so completely established tli.it its evils and 
 abuses had begun t<> render themselves apparent and to 
 
 require restrictive legislation. Yet the contemporaneous 
 remains of jurisprudence show no trace of the custom, and 
 some of them are of a nature to render their silence a 
 negative proof of no little weight. To this period, for in- 
 stance, belongs the earliest extant coutumier of Normandy, 
 published by Ludewig, and it contains no allusion to tor- 
 ture. The same may be said of the For de Beam, granted 
 in 1 -2X8, 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 Etablisse- 
 ments, is likewise free from any instructions or directions 
 as to its application, though it could scarcely have been 
 omitted, had it formed part of the admitted jurisprudence 
 of the age. It may be argued, indeed, that these codes 
 and laws assume the existence of torture, and therefore 
 make no reference to it, but such an argument would not 
 hold good with respect to the books of practice which 
 shrewd and experienced lawyers commenced at that time 
 to draw up for the guidance of courts in the unsettled 
 period of conflict between the ancient feudal customs and 
 the invading civil law. For instance, no text-book can well 
 be more minute than the " Livres de Jostice et de Plet," 
 written about the year 12G0, by a law} r er 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. 
 
 dictum testis unici, tormentis seu quaestionibus inhibemus, ne ob metum 
 falsum confiteri, vel suam vexationem rediraere compellantur. Fontanon, 
 Edicts et Ordonn. I. 701. A somewhat different reading is given by Isam- 
 bert, Anciennes Lois Francaises I. 270. 
 
334 TORTURE. 
 
 The same conclusion is derivable from the " Coutumes 
 du Beauvoisis," written about 12T0 by Philippe de Beau- 
 manoir. In his position as royal bailli, Beaumanoir had 
 obtained the fullest possible familiarity with all the prac- 
 tical secular jurisprudence of his day, and his tendencies 
 were naturally in favor of the new system with which St. 
 Louis was endeavoring to break down the feudal customs. 
 Yet, while he details at much length every step in all the 
 cases, civil and criminal, that could be brought into court, 
 he makes no allusion to torture as a means of obtaining 
 evidence. In one passage, it is true, he seems to indicate 
 that a prisoner could be forced, while in prison, to criminate 
 himself, but the terms employed indicate clearly that this 
 was not intended to include the administration of torment. 1 
 In another place, moreover, when treating of robberies, he 
 directs that all suspected parties should be long and closely 
 confined, but that, if they cannot be convicted by external 
 evidence, they must at last be discharged. 3 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 nega- 
 tive evidence in its full instructions for all the legal pro- 
 ceedings then in use. In these three works, notwithstand- 
 ing the reforms attempted by St. Louis, the wager of battle 
 is still the recognized resource for the settlement of doubt- 
 ful cases, wherein testimony is insufficient, and the legist 
 
 1 Cil qui est pris et mis en prison, soit por meffet ou por dete, tant comme 
 il est en prison il n'est tenus a respondre a riens c'on H deraande fors es 
 cas tant solement por qui il fu pris. Et s'on li fet respondre autre coze 
 contre sa 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. Ltl. xix. 
 
 2 Quant tel larrecin sunt fet, le justice doit penre toz les souspeconneus 
 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. Et s'il ne pot en nule maniere 
 savoir le verite du fet, il les doit delivrer, se nus ne vient avant qui partie 
 se voille fere d'aus accuser droitement du larrecin. Ibid. cap. xxxi. vi. 
 
INTRODUCTION IN FRANCE. 335 
 
 seems to Imagine no other solution. The form of trial 
 is still public, in ihe feudal of royal courts, and every 
 opportunity is given both lor the attack and the defence* 
 
 Hie work of De Fontaines, moreover, happens to furnish 
 another proof that he -wrote at the commencement of a 
 
 transition period, during which the use of torture was in- 
 troduced. In the oldest MSS. of his work, which are con- 
 sidered to date from 1200 to 1280, there is a passage to the 
 effect that a man convicted of crime may appeal if he has 
 not confessed, or, when he has confessed, if it has been in 
 consequence of some understanding (covent). In later MSS., 
 transcribed in the early part of the fourteenth century, the 
 word " covent" is replaced by "tourmenz," 1 thus showing 
 not only the introduction of torture 1 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 the bailliages of Beauvais and Cahors." I 
 do not know upon what facts this opinion is based, but 
 the omission of Beaumanoir to allude to any such custom 
 would seem to render doubtful its application to Beauvais. 
 That it was limited to a great extent is more than probable ; 
 for in the ordonnance as registered in the council of Bd- 
 ziers in 1255, the section respecting torture is omitted, 3 
 and this would explain the silence preserved on the subject 
 by all contemporary legal authorities. 
 
 While giving due weight, however, to all this, we must 
 not lose sight of the fact that the laws and regulations 
 prescribed in royal ordonnances and legal text-books were 
 practically applicable only to a portion of the population. 
 All non-nobles, who had not succeeded in extorting special 
 
 1 Se li hons n'est connoissans de son mesfet, ou s'il l'a coneu et ce a estc 
 par covent, s'en li fait jugement, apeler en puet. Conseil, ch. xxii. art. 
 28. (Edition Marnier, Paris, 1846.) 
 
 - L'Oiseleur, Les Crimes et les Peines, p. 113 (Paris, 1863). 
 
 3 Baluz. Concil. Gall. Narbon. p. 75. 
 
336 TORTURE. 
 
 privileges by charter from their feudal superiors, were ex- 
 posed to the caprices of barbarous and irresponsible power. 
 It was a maxim of feudal law that God alone could inter- 
 vene between the lord and his villein " Mes par notre usage 
 n'a-il, entre toi et ton vilein, juge fors Deu" 1 the villein 
 being by no means necessarily a serf; and another rule 
 prohibited absolutely the villein from appealing from the 
 judgment of his lord. 3 Outside of law, and unauthorized 
 by coutumiers and ordonnances, there must, under such 
 institutions, have been habitually vast numbers of cases in 
 which the impatient temper of the lord would seek a solu- 
 tion of doubtful matters in the potent cogency of the rack 
 or scourge, rather than waste time or dignity in endeavoring 
 to cross-question the truth out of a quick-witted criminal. 
 
 Still, as an admitted legal procedure, the introduction of 
 torture was very gradual. The " Olim," or register of 
 cases decided by the Parlement of Paris, extends, with 
 some intervals, from 1255 to 1318, and the paucity of affairs 
 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 1299 when the royal bailli 
 of Senlis cites the mayor and jurats of that town before 
 the Parlement, because in a case of theft they had applied 
 the question to a suspected criminal ; and though theft was 
 within their competence, the bailli argued that torture was 
 an incident of u haute justice" which the town did not pos- 
 sess. The decision was in favor of the municipality. 3 The 
 next year (1300), we find a clerk, wearing habit and ton- 
 sure, complaining that the royal officials of the town of 
 Yilleneuve 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 hun- 
 
 1 Conseil ch. xxi. art. 8. 
 
 2 Ibid. art. 14. Et encor ne puisse li vileins fausser le jugement son 
 seignor. 
 
 J OlimT. II. p. 451. 
 
EARLY CASES. 331 
 
 dred livres Tournois in medioinee and physicians. This, 
 with other proper damages, he prays oaay be made good to 
 him by the perpetrators, and the arret of the Parlement 
 
 orders their persons and properly to hi- seized, and their 
 possessions valued, In order that the amount may he 
 properly assessed among them. 1 Philippe-le-Bel, notwith- 
 standing his mortal (piarrel 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 third ease does not present itself until 130G. Two 
 Jews, under accusation of larceny by their brethren, com- 
 plain that they had been illegally tortured by the bailli of 
 Bourges, and though one of them under the infliction had 
 confessed to coinplicit} r , the confession is retracted and 
 damages of three thousand livres Tournois are demanded. 
 On the other hand, the bailli maintains that his proceed- 
 ings are legal, and asks to have the complainants punished 
 in accordance with the confession. The Parlement adopts 
 a middle course; it acquits the Jews and awards no dam- 
 ages, showing that the torture was legal and a retracted 
 confession valueless. 8 
 
 The fourth case, which occurs in 1307, is interesting 
 as having for its reporter no less a personage than Guil- 
 laumc de Nogaret, the captor of Boniface VIII. A certain 
 Guillot de Ferrieres, on a charge of robbery, had been 
 tried b}- 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, Etienne de Ferrieres, Chatelain of 
 Montauban, claims damages. The decision condemns 
 Nicolas Bourges in a mulct of one thousand livres Tour- 
 nois, half to Guillot for his sufferings and half to Stephen 
 
 1 Oliin. III. 49-50. 3 Ibid. III. 185-6. 
 
 29 
 
338 TORTURE 
 
 for his expenses, besides a fine to the crown. 1 It is evident 
 that judges were not allowed to inflict unlimited torment at 
 their pleasure. 
 
 The fifth case, occurring in 1310, may be passed over, as 
 the torture was not judicial, but merely a brutal outrage 
 by a knight on a noble damsel who resisted his importuni- 
 ties : 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. 3 
 
 The sixth case took place in 1312, 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-Xeuf de Lincourt, and was then brought to the 
 Chatelet at Paris, where he was again examined without 
 confession or conviction. Meanwhile, the real criminal 
 confessed the theft, and Nicolas applies to the Parlement 
 for the liberation of Michael, which is duly granted. 3 
 
 A long interval then occurs, and we do not hear of tor- 
 ture again until 1318, when Guillaume Nivard, a monejr- 
 changer of Paris, was accused of coining, and tortured by 
 the l*rev6t of the Chatelet. He contends that it was ille- 
 gal, while the Prevot asserts that his jurisdiction empow- 
 ered him to administer it. The Parlement investigates 
 the case, and acquits the prisoner, but awards him no 
 damages. 4 
 
 1 Olim, III. 221-2. 2 Ibid. III. 505-6. 3 Ibid. III. 751-2. 
 
 4 Ibid. III. 1299. It is somewhat singular that torture does not appear 
 to have been used in the trial of Enguerrand de Marigny, the principal 
 minister of Philippe-le-Bel, sacrificed after his death to the hatred of Charles 
 de Valois. The long endeavor of the young king to protect him, and the 
 final resort of his enemies to the charge of sorcery, with the production of his 
 miserable accomplices, would seem to render the case one particularly suited 
 to the use of torture. See the detailed account of the trial in the Grandes 
 Chroniques de France" V. 212-220 (Paris, 1837). In 1315, Raoul de 
 Presles, accused of causing the death of Philippe, was tortured. "Mais 
 apres moult de paines et de tormens qu'il ot souffert, ne pot on riens traire 
 de sa bouche fors que bien, si fu franchement laissie aler, et ot moult de ses 
 biens gastes et perdus." Ibid. p. 221. 
 
K K SI STANCE OF FKI DA1JSM. 889 
 
 The very commonplace and trivial oharactei 1 <>f these 
 cases has its interest in showing that the practice of ap- 
 pealing to the Parlement was not confined to weighty 
 matters, and therefore that the few instances in which tor- 
 ture was involved in such appeals afford a fair index of 
 the rarity of its use daring this period. These cases, too, 
 Save seemed to me worth reciting, as they illustrate the 
 principles upon which its application was based in the new 
 jurisprudence, and the tentative and uncertain character of 
 the progress by which the primitive customs of the Euro- 
 pean races were gradually becoming supplanted by the 
 resuscitated Roman law. 
 
 This progress had not been allowed to continue uninter- 
 rupted by protest and resistance. In the closing days of 
 the reign of Philippe-le-Bel, the feudal powers of France 
 awoke to the danger with which they were menaced by the 
 extension of the royal prerogative during the preceding 
 half century. A league was formed, which seemed to 
 threaten the existence of the institutions so carefully nur- 
 tured by St. Louis and his successors. It was too late, 
 however, and though the storm broke on the new and un- 
 tried royalty of Louis Hutin, the crown lawyers were 
 a heady too powerful for the united seigneurie of the king- 
 dom. When the various provinces presented their com- 
 plaints and their demands for the restoration of the old 
 order of things, they were met with a little skilful evasion, 
 a few artful promises, some concessions which were readily 
 withdrawn, and negatives carefully couched in language 
 which seemed to imply assent. 
 
 Among the complaints, we find that the introduction of 
 torture was opposed as an innovation upon the established 
 rights of the subject, but the lawyers who drew up the 
 replies of the king took care to infringe as little as they 
 could upon a system which their legal training led them 
 to regard as an immense improvement in procedure, and 
 which enabled them to supersede the wager of battle, which 
 
340 TORTURE. 
 
 they justly regarded as the most significant emblem of 
 feudal independence. 
 
 The movement of the nobles resulted in obtaining from 
 the king for the several provinces a series of charters, by 
 which lie defined, as vaguely, indeed, as he could, the 
 extent of royal jurisdiction claimed, and in which he pro- 
 mised to relieve them from certain grievances. In some 
 of these charters, as in those granted to Britanny, to Bur- 
 gundy, and to Amiens and Vermandois, there is no allusion 
 made to torture. 1 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 " lese-majeste" or 
 other matters particularly provided for by law. a Normandy 
 only obtained a vague promise that no freeman should be 
 subjected to torture unless he were the object of violent 
 presumptions in a capital offence, and that the torture 
 should be so regulated as not to imperil life or limb ; and 
 though the Normans were dissatisfied with this charter, 
 and succeeded in getting a second one some months later, 
 they gained nothing on this point. 3 
 
 1 Isambert, Anciennes Lois Francaises, III. 131, fiO, 65. 
 
 3 Ordonnance, l ier Avril 1315, art. xix. (Ibid. III. 58), "Nisi pro dicto 
 crimine lese majestatis, vel alio casu specialiter a jure permisso, de quo 
 habeatur vehemens suspicio contra eura." The whole clause is borrowed 
 from the Roman law, which may have reconciled Louis's legal advisers to it. 
 It is noteworthy as containing the first introduction of the crime of lese- 
 majeste into French jurisprudence, thus marking the triumph of civil over 
 feudal law. 
 
 3 Cart. Norman i. Mar. 1315, cap. xi. Cart. II. Jul. 1315, cap. xv. (Ibid. 
 51, 109). Quod in dicto ducatu nullus homo liber quaestionetur, nisi ve- 
 hemens prassumptio ipsum reddat suspectum de crimine capitali, et tunc 
 
RESIST A \r K <>F FEUDALISM. 841 
 
 The official documents concerning Champagne have been 
 preserved to as more in detail. The nobles ofthat province 
 complained thai the royal prevCts and serjeanta entered 
 upon their lands to arresi their men and private persons, 
 -whom they then tortured in defiance of their customs and 
 privileges (contre lenrs constnmes et libertez"). To this 
 Lonis promised to put an end. The nobles further alleged 
 that, in contravention of the ancient usages and customs 
 of Champagne ( u contre les us et coustumes enciens de 
 Champaigne"), the royal officers presumed to torture no- 
 bles on suspicion of crime, even though not caught in the 
 act, and without confession. To this, Louis vaguely re- 
 plied, that for the future no nobles should be tortured, 
 except under such presumptions as might render it proper, 
 in law and reason, to prevent crime from remaining un- 
 punished; and that no one should be convicted unless 
 confession were persevered in for a sufficient time after tor- 
 ture. 1 This, of course, was an} T thing but satisfactory, and 
 the Champenois were not disposed to accept it, but all that 
 they could obtain after another remonstrance was a simple 
 repetition of the promise that no nobles should be tortured 
 except under capital accusations. 3 The struggle apparently 
 continued, for, in 1319, we find Philippe-le-Long, in a charter 
 granted to Perigord and Quercy, promising that the pro- 
 ceedings preliminary to torture should be had in the pre- 
 sence of both parties, doubtless to silence complaints as to 
 the secret character which criminal investigations were 
 
 taliter quod propter gravitatem tormentorum mors aut mutilatio non se- 
 quatur. 
 
 1 Ordonn. Mai 1315, art. v. xiv. (Bourdot de lliehebourg, III. 233-4). 
 
 - Ordonn. Mars 1315, art ix. (Ibid. p. 235.) This ordonnance is incor- 
 rectly dated. It was issued towards the end of May, subsequently to the 
 above. 
 
 3 Ordonn. Jul. 1319 art. xxii. (Tsambert III. 227). Volumus et concediraus 
 generose dictis nobilibus dicte senescallie, quod seneschallus et alii officiales 
 
 29* 
 
342 TORTURE. 
 
 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 
 Bcugnot has published, as an appendix to the " Olim," a col- 
 lection known as the u Tout Lieu de St. Dizier," 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. The cases date mostly from 
 the middle third of the fourteenth century, and were selected 
 as a series of established precedents. The fact that, through- 
 out 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 Seig- 
 nieur of Dampierre. Many of these cases seem peculiarly 
 adapted to the new inquisitorial system. Thus, in 1335, 
 a man was attacked and wounded in the street at night. 
 A crowd collected at his cries, and he named the assailant. 
 No rule was more firmly established than the necessity of 
 two impartial witnesses to justify condemnation, and the 
 authorities of St. Dizier, not knowing what course to take, 
 applied as usual for instructions to the magistrates of 
 Ypres. The latter defined the law to be that the court 
 should visit the wounded man on his sick-bed and adjure 
 him by his salvation to tell the truth. If on this he named 
 any one and subsequently died, the accused should be pro- 
 nounced guilty ; if, on the other hand, he recovered, then 
 the accused should be treated according to his reputation ; 
 that is, if of good fame, he should be acquitted ; if of evil 
 repute, he should be banished. 1 No case more inviting to 
 
 nostri aliquos quaestionibus non supponant, absque prommtiatione seu sen- 
 tentia in praosentia partium per eos proferenda. 
 
 1 Tout Lieu de Saint Disier cap. cclxxii. (Olim T. II. Append, p. 85fi). 
 The charter of St. Dizier directs that all cases not therein specially provided 
 
&18I8TAN0I OP Tiir. i'imimunes. 348 
 
 the theory of torture could well be Imagined, and yei neither 
 the honest bnrghera <r st. Dizier nor the powerfhl magnates 
 of Spree seem to luive entertained the Idea of its applica- 
 
 tion. So, again, when the Conner inquire what proof is 
 nfflcient 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. 1 The wealthy city of Lille equally rejected the 
 process of torture. The laws there in force, about the year 
 1350, prescribe that in homicide cases conviction ought to 
 be baaed upon absolute evidence, but where this is unat- 
 tainable, then the judges are allowed to decide on mere 
 opinion and belief, for uncertain matters cannot be rendered 
 certain. 9 In such a scheme of legislation, the extortion of 
 a confession as a condition precedent to condemnation can 
 evidently find no place. 
 
 Attempts to introduce torture in Aquitaine were appa- 
 rently made, but they seem to have been resisted. In the 
 Coutumier of Bordeaux during the fourteenth century there 
 is a significant declaration that the sages of old did not 
 wish to deprive men of their liberties and privileges. Tor- 
 ture, 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. 3 
 
 for shall be decided .according to the customs of Ypres. For two hundred 
 and fifty years, therefore, whenever the eschevins of the little town of Cham- 
 pagne felt at a loss, they referred the matter to their lordly neighbors of 
 Flanders, as to a court of last appeal. 
 
 1 Ibid. cap. eclxxiii. 
 
 2 Roisin, Franchises, Lois et Coutumes de Lille, p. 119. Thus "on puet 
 et doit demander de veir et de oir," but when this is impossible, "on doit 
 et puet bien demander et enquerre de croire et cuidier. Et sour croire et 
 sour cuidier avoec un veritet aparent de veir et d'oir, et avoec l'omechitle 
 aparant, on puet bien jugier, lone l'usage anchyen, car d'oscure fait oscure 
 veritet." 
 
 3 Rabanis, Revue Hist, de Droit, 1861, p. 515. No volgoren los savis 
 antiquament qu'om pergossa sa franquessa ni sa libertat. 
 
344 TORTURE. 
 
 By this time, however, places where torture was not used 
 were exceptional. By a document of 1359, it appears that 
 it was the custom to torture all malefactors brought to the 
 Chatelet of Paris, 1 and though privileged persons constantly 
 endeavored to exempt themselves from it, as the consuls of 
 Yilleneuve in 13 ?1, 2 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 tor- 
 ture shall be administered except in their presence, if they 
 desire to attend. 3 At the end of the century, indeed, the 
 right to administer torture in cases wherein the accused 
 denied the charge was regularly established as incident to 
 the possession of haute justice. 4 
 
 Even in Germany, the citadel of feudalism, the progress 
 of the new ideas and the influence of the Roman law had 
 spread to such an extent that in the Golden Bull of Charles 
 IV., in 1356, there is a provision allowing the torture of 
 slaves to incriminate their masters in cases of sedition 
 against any prince of the empire ; 5 and the form of expres- 
 sion emplo3^ed shows that this was an innovation. 
 
 In Corsica, at the same period, we find the use of torture 
 fully established, though subject to careful restrictions. 
 In ordinary cases, it could only be employed by authority 
 of the governor, to whom the judge desiring to use it 
 transmitted all the facts of the case ; the governor then 
 issued an order, at his pleasure, prescribing the mode and 
 
 Du Cange s. v. Quczstionarius. 
 
 2 Letters granting exemption from torture to the consuls of Villeneuve for 
 any crimes committed by them were issued in 1371 (Isambert V. 352). 
 These favors generally excepted the case of high treason. 
 
 3 Du Cange s. v. Qnceslio No. 3. 
 
 Pour denier mettre a question et tourment. Jean Desmarres, Decisions, 
 Art, 295 (Du Boys, Droit Criminel II. 48). 
 
 In hac causa in caput domini servos torqueri statuimus, id est, propter 
 causam factionis. Bull. Aur. cap. xxiv. 9 (Goldast. I. 305). 
 
CORSICA V E N T C E HUNG ART. 8 1 5 
 
 degree to which it might be applied. 1 In cases of treason, 
 
 however, these limit :il ions were not observed, and the 
 accused was liable to its infliction as tar and as often as 
 might he found requisite to effect a purpose. 9 
 
 The peenliar character of Venetian civilization made 
 torture almost a necessity. The atmosphere of suspicion 
 and secrecy which surrounded every movement of that 
 republican despotism, the mystery in which it delighted to 
 shroud itself, and the pitiless nature of its legislation eon- 
 spired to render torture an indispensable resource. I low 
 freely it was administered, especially in political affairs, is 
 well illustrated in the statutes of the State inquisition, 
 where the merest suspicion is sufficient to authorize its 
 application. Thus, if a senatorial secretary were observed 
 to be more lavish in his expenditures than his salary 
 "would appear to justify, he was at once suspected of being 
 in the pay of some foreign minister, and spies were ordered 
 on his track. If he were then simply found to be absent 
 from his house at undue hours, he was immediately to be 
 seized and put to the torture. So, if any one of the in- 
 numerable seeret spies employed by the inquisitors were 
 insulted b} r being called a spy, the offender was arrested 
 and tortured to ascertain how he had guessed the character 
 of the emissary. 3 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. 
 
 Other races adopted the new system less readily. In 
 Hungary, for instance, the first formal embodiment of tor- 
 ture in the law occurs in 1514, and though the terms em- 
 ployed show that it had been previously used to some 
 extent, yet the restrictions laid down manifest an extreme 
 jealousy of its abuse. Mere suspicion was not sufficient. 
 To justify its application a degree of proof was requisite 
 which was almost competent for condemnation, and the 
 
 1 Statut. Criminali cap. xiv. (Gregorj, Statuti di Corsica p. 101). 
 
 2 Ibid. cnp. lx. (p. 163). 
 
 3 Statuts de l'Inquisition d'Etat, 1 Supp. 20, 21 (Daru). 
 
346 TORTURE. 
 
 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 
 sufficient testimony, for he could not be both witness and 
 judge, and his knowledge of the crime belonged to his private 
 and not to his judicial capacity. 1 With such refinements, 
 there was little danger of the extension of the custom. 
 
 In Poland, torture does not make its appearance until 
 the fifteenth century, and then it was introduced gradually, 
 with strict instructions to the tribunals to use the most 
 careful discretion in its administration. 3 In Russia, the first 
 formal allusion to it is to be found in the Oulagenie Zakon- 
 off, a code promulgated in 1491, by Ivan III., which merely 
 orders that persons accused of robbery, if of evil repute, 
 may be tortured to supply deficiencies of evidence ; but as 
 the duel was still freely allowed to the accused, the use of 
 torture must have been merely incidental. 3 From another 
 source, dating about 1530, we learn that it was customary to 
 extort confessions from witches by pouring upon them from 
 a height a small stream of cold water; and in cases of 
 contumacious and stubborn criminals, the finger nails were 
 wrenched off with little wooden wedges. 4 Still, torture 
 
 1 Synod. Reg. ann. 1514, Prooem. (Batthyani Legg. Eccles. Hung. I. 574) 
 ' ' Nam si judex ex fenestra praetorii vel domus suae, intueatur unum quem- 
 piam interficiendum, et quoniam hoc homicidiuni, vel non defertur in judi- 
 cium, vel delatum non probatur, et judex voluerit homicidam de seipso sub- 
 jicere torturae, ut Veritas per illius confessionem eliciatur, certe non poterit. 
 Sola enim judicis scientia ad hoc non sufficit ut ad torturam reus deveniat, 
 quum ipse illud nesciat ut judex, sed ut privata persona, nee ipsius testi- 
 monium in hac parte valet, quum in unum et eadem causa nemo potest esse 
 et testis et judex : igitur aliunde est edocendus, vel per testes vel alia docu- 
 menta, ut possit torquere criminosum." According to some authorities, this 
 was a general rule " Judex quamvis viderit committi delictum non tamen 
 potest sine aliis probationibus reum torquere, ut per Specul. etc." Jo. 
 Emerici a Rosbach Process. Criminal. Tit. v. cap. v. No. 13 (Francof. 1645). 
 
 3 Du Boys, Droit Criminel, I. 650. 
 
 3 Esneaux, Hist, de Russie, III. 236. 
 
 * Pauli Jovii Moschovia. This is a brief account of Russia, compiled about 
 the year 1530, by Paulus Jovius from his conversations with Dmitri, am- 
 
T II K INQUISITORIAL PROCESS. 84t 
 
 makes but Little Bhow In the subsequent codes, Bueb as the 
 Soudebthick, issued In 1550, and the Sobornoie* Oulagenie^ 
 promulgated in KI48. 1 
 
 In (act, these regions were still too barbarous for so 
 civilized a process. Returning to Central and Western 
 Europe, which during this period had advanced with such 
 rapid strides of enlightenment, we find the inquisitorial 
 process of torture attaining a portentous importance as 
 the groundwork of all criminal procedure, and its adminis- 
 tration prescribed with the most careful and minute preci- 
 sion. 
 
 bassador to Clement VII. from Vasili V., first Emperor of Russia. Olaus 
 Magnus, in the pride of bis Northern blood, looks upon tbis as a slander on 
 the hardihood of the rugged Russ " hoc scilicet pro terribili tormento in ea 
 duii.-sima gente reputari, quae flamrais et eculeis adhibitis, vix, ut acta 
 revelet, tantillulum commovetur," and be broadly hints that the wily ambas- 
 sador amused himself by hoaxing the soft Italian : "fed revera vel ludibriose 
 bonus praesul a versuto Muscovitici principis nuntio Demetrio dicto, tempore 
 Clementis VII. informatus est Romae." (Gent. Septent. Hist. Brev. Lib xi. 
 c. xxvi.) The worthy archbishop doubtless spoke of his own knowledge 
 with respect to the use of the rack and fire in Russia, but the contempt he 
 displays for the torture of a stream of water is ill-founded. In our prisons, 
 the punishment of the shower-bath is found to bring the most refractory 
 characters to obedience in an incredibly short time, and its unjustifiable 
 severity in a civilized age like this may be estimated from the fact that it 
 has occasionally resulted in the death of the patient. Thus, at the N. Y. 
 State Prison at Auburn, in December, 1858, a stout, healthy man named 
 Samuel Moore, was kept in the shower-bath from a half to three-quarters of 
 an hour, and died almost immediately after being taken out. A less inhumane 
 mode of administering the punishment' is to wrap the patient in a blanket, 
 lay him on his back, and, from a height of about six feet, pour upon his fore- 
 head a stream from an ordinary watering-pot without the rose. According 
 to experts, this will make the stoutest criminal beg for his life in a few 
 seconds. 
 
 During the later period of our recent war, when the prevalence of exagge- 
 rated bounties for recruits led to an organized system of desertion, the magni- 
 tude 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 requisition by the 
 military authorities to extort confession from suspected deserters, when legal 
 evidence was not attainable, and it was found exceedingly efficacious. 
 
 1 Du Boys, op. cit. I. 018. 
 
348 TORTURE. 
 
 Allusion has already been made to the influence of the 
 inquisition in introducing the use of torture. Its influence 
 did not cease there, for with torture there gradually 
 arose the denial to the accused of all fair opportunity of 
 defending himself, and the system of secret procedure which 
 formed so important a portion of the inquisitorial practice. 
 In the old feudal courts, the prosecutor and the defendant 
 appeared in person. Each produced his witnesses ; the 
 case was argued on both sides, and unless the wager of 
 battle intervened, a verdict was given in accordance with 
 the law after duly weighing the evidence, while both par- 
 ties were at liberty to employ counsel and to appeal to the 
 suzerain. When St. Louis endeavored to abolish the duel 
 and to substitute a sj T stem of inquests, which were neces- 
 sarily to some extent ex parte, he did not desire to with- 
 draw from the accused the legitimate means of defence, and 
 in the Ordonnance of 1254 he expressly instructs his officers 
 not to imprison the dcfendanTwithout absolute necessity, 
 while all the proceedings of the inquest are to be communi- 
 cated freely to him. 1 All this changed with time and the 
 authoritative adoption of torture. The theory of the inquisi- 
 tion, that the suspected man was to be hunted down and 
 entrapped like a wild beast, that his guilt was to be assumed, 
 and that the efforts of his judges were to be directed solely 
 to obtaining against him sufficient evidence to warrant the 
 extortion of a confession without allowing him the means 
 of defence this theory became the admitted base of criminal 
 jurisprudence. The secrecy of these inquisitorial proceed- 
 ings, moreover, deprived the accused of one of the great 
 safeguards accorded to him under the Roman law of tor- 
 ture. That law, as we have seen, required the formality of 
 inscription, by which the accuser who failed to prove his 
 
 1 Statut. S. Ludov. ann. 1254 20, 21. (Isambert I. 270) Et quia in 
 dictis senescalliis secundum jura et terre consuetudinem fit inquisitio in 
 crirainibus, volumus et mandamus quod reo petenti acta inquisitionis tra- 
 dantur ex integro. 
 
SECRECY OP PROCEEDINGS. 349 
 
 charge was liable to the lex tcUtonis^ and in crimes which 
 involved torture in the investigation, he was duly tortured. 
 This was imitated by the Wisigoths, and its principle was 
 admitted and enforced by the Church before the introduc- 
 tion of the Inquisition had changed its policy -, 1 but modern 
 Europe, in borrowing from Rome the use of torture, Com- 
 bined it with the inquisitorial process, and thus in civilized 
 Christendom it speedily came to be used more recklessly 
 and cruelly than ever it had been in pagan antiquity. 
 
 In 1498, an assembly of notables at Blois drew up an 
 elaborate ordonnance for the reformation of justice in 
 France. In this, the secrecy of the inquisitorial process is 
 dwelt upon with peculiar insistance as of the first import- 
 ance in all criminal cases. The whole investigation was 
 in the hands of the government official, who examined 
 every witness by himself, and secretly, the prisoner having 
 no knowledge of what was done, and no opportunity of 
 arranging a defence. After all the testimony procurable 
 in this one-sided manner had been obtained, it was dis- 
 cussed 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. a 
 
 1 Thus Gratian, in the middle of the twelfth century "Qui calumniam 
 illatam non probat poenam debet incurrere quam si probasset reus utique 
 sustineret." Decreti P. II. caus. v. quaest. 6, c. 2. 
 
 3 Ordonnance, Mars 1498, 110-116 (Isambert, XI. 365. Fontanon, I. 
 701). It would seem that the only torture contemplated by this ordonnance 
 was that of water, as the clerk is directed to record "la quantite de l'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 wiiter 
 violently, by forcible blows on the stomach. V. Du Cange s. v. Gaggare. 
 30 
 
350 TORTURE. 
 
 This cruel system was still further perfected by Francis 
 L, who, in an ordonnance of 1539, expressly abolished the 
 inconvenient privilege assured to the accused by St. Louis, 
 which was apparently still occasionally claimed, and di- 
 rected that in no case should he be informed of the accu- 
 sation against him, or of the facts on which it was based, 
 nor be heard in his defence. Upon examination of the ex 
 parte testimony, without listening to the prisoner, the 
 judges ordered torture proportioned to the gravity of the 
 accusation, and it was applied at once, unless the prisoner 
 appealed, in which case his appeal was forthwith to be 
 decided by the superior court of the locality. 1 The whole 
 process was apparently based upon the conviction that it 
 was better that a hundred innocent persons should suffer 
 than that one culprit should escape, and it would not be 
 easy to devise a course of procedure better fitted to render 
 the use of torture universal. 
 
 But even this was not all. Torture, as thus employed 
 to convict the accused, became known as the question pre- 
 paratoire, and, in defiance of the old rule that it could be 
 applied but once, a second application, known as the ques- 
 tion definitive or pre al able, 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 
 
 Sometimes a piece of cloth was used to conduct the water down his throat. 
 To this, allusion is made in the 4< 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 escorcberie." 
 CEvres de Villon, p. 310, Ed. Prompsault, Paris, 1834. 
 
 1 Ordonn. de Villers-Cotterets, Aout 1539, 162-164 (Isambert, XIII. 
 633-4). "Ostant et abolissant tous styles, usances ou coutumes par les- 
 quels les accuses avoient accoutumes d'etre ou'is en jugement pour scavoir 
 s'ils devoient etre accuses, et a cette fin avoir communication des faits et 
 articles concernant les crimes et delits dont ils etoient accuses." 
 
CLASSIFICATION. 351 
 
 detestable practice we Bud another instance of the unfor- 
 tunate influence of the Inquisition in modifying the Roman 
 law. The latter expressly and wisely provided that no 
 one who had confessed should be examined as to the guilt 
 of another ;' the former regarded the conviction of the ac- 
 cused as a worthless triumph unless he could be forced to 
 incriminate his possible associates, and the lawyers fol- 
 lowed eagerly in its footsteps. 
 
 Torture was also generically divided into the question or- 
 dinaire and extraordinaire a rough classification to pro- 
 portion the severity of the infliction to the gravity of the 
 crime or the urgency of the case. Thus, in the most usual 
 kind of torment, the strappado, popularly known as the 
 Moine de Caen, the ordinary form was to tie the prisoner's 
 hands behind his back with a piece of iron between them; 
 a cord was then fastened to his wrists by which, with the 
 aid of a pulley, he was hoisted from the ground with a 
 weight of one hundred and twenty-five pounds attached to 
 his feet. In the extraordinary torture, the weight was 
 increased to two hundred and fifty pounds, and when the 
 victim was raised to a sufficient height, he was dropped 
 with a jerk that dislocated his joints, the operation being 
 thrice repeated. 3 
 
 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 154T ; yet, notwithstand- 
 ing his pardon, he was subsequently tried, convicted, con- 
 demned to decapitation and quartering, and also to the 
 question extraordinaire to obtain a denunciation of his 
 accomplices. 3 
 
 1 Nemo igitur de proprio crimine confitentem super conscientia scrutetur 
 aliena Const. 17 Cod. ix. ii. (Honor. 423). 
 
 2 Cheruel, Diet. Hist, des Institutions etc. de la France, p. 1220 (Paris, 
 1855). 
 
 . 3 Isambert, XIV. 88. Beccaria comments on the absurdity o this pro- 
 ceeding, as though a man who had accused himself would make any dim- 
 
352 TORTURE. 
 
 When Louis XIV., under the inspiration of Colbert, 
 remoulded the jurisprudence of France, various reforms 
 were introduced into the criminal law, and changes both 
 for better and worse were made in the administration 
 of torture. The Ordonnance of 1610 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 Lamoig- 
 non, Talon, and Pussort. All preliminary testimony was 
 still ex parte. The prisoner was heard, but he was still 
 examined in secret. Lamoignon vainly endeavored to ob- 
 tain for him the advantage of counsel, but Colbert obsti- 
 nately refused this concession, and the utmost privilege 
 allowed the defence was the permission accorded to the 
 judge, at his discretion, to confront the accused with the 
 adverse witnesses. In the question preliminaire, 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 addi- 
 tional evidence were subsequently obtained. 1 A new fea- 
 ture of the law, however, which was equally brutal and 
 
 culty in accusing others. "Quasi che l'uomo che accusa se stesso, non 
 ncusi pia facilmente gli altri. E egli giusto il tormentare gli uomini per 
 l'altrui delitto?" Dei Delitte e delle Pene, xn. 
 
 1 These restrictions were very well in principle, but in practice they offered 
 little real protection to the accused. Judges intent on procuring a convic- 
 tion found no difficulty in eluding them. A contemporary, whose judicial 
 position gave him every opportunity of knowing the truth, remarks : " lis 
 ont trouve une difference du mot, et veulent que puisqu'il n'est pas permis 
 de reiterer la torture, il soit permis de la continuer, quoiqu'il y ait eu trois 
 jours entiers de surseance, que si le patient par bonheur ou par miracle n'est 
 p*s mort dans ces redoublements de douleurs, ils ont trouve la fameuse inven- 
 tion de nouveattx indices sttrvemts, pour l'y exposer tout de nouveau sans 
 y faire fin. Par ce moyen ils ont rendu illusoire l'intention de la Loy, qui 
 veut qu'on fasse fin de ces cruautez par un renvoy du patient qui a souffert 
 sans confesser ou sans confirmer sa confession hors de ces tourments." 
 Nicolas, Dissert, morale et juridique sur la Torture, p. Ill (Amsterd. 1682). 
 
CAROLINE CONSTITUTIONS. 353 
 
 illogical, was that which authorize! the employment of 
 t<rt iirc "avec reserve dee preuvee*" Wnen this was 
 decided on, the silence of the accused under torment did 
 not acquit him, though the whole theory of the question 
 la}' in the necessity of confession. He simply escaped the 
 death penal tj', and could be condemned to any other punish- 
 ment which the discretion of the judges might impose, thus 
 presenting the anomaly of a man neither guilty nor inno- 
 cent, relieved from the punishment assigned by the law to 
 the crime of which he had been accused, and condemned to 
 some other penalt} r without having been convicted of any 
 offence. 1 The cruel mockery of the question prealable was 
 retained, 1 and in this composite form, torture remained for 
 more than a century an integral part of the jurisprudence 
 of France. 
 
 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 Inqui- 
 sition. 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 ;" 3 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. Confes- 
 sion made during torture was not to be believed, nor could 
 
 1 The practical working of this system is exemplified hy a 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 read, he was strongly suspected of premeditated 
 murder. L'Oiseleur, Les Crimes et les Peines, pp. 20G-7. 
 
 3 Ordonnance Criminel d'Aout 1670, Tit. xiv. xix. (Isambert, XIX. 398, 
 412). 
 
 3 Legg. Capital. Caroli V. c. lx., lviii. 
 
 30* 
 
354 TORTURE. 
 
 a conviction be based upon it ; yet what the accused might 
 confess after being removed from torture was to be received 
 as the deposition of a dying man, and was full evidence. 3 
 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 con- 
 fession, he was condemned, 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-condemna- 
 tion the torture was at once to be redoubled in severity. 3 
 The legislator thus makes the victim expiate the sins of 
 his own vicious system ; the victim's sufferings increase 
 with the deficiency of the evidence against him, and the 
 legislator consoles himself with the remark that the victim 
 has only himself to thank for it, " de se tantum non de alio 
 quseratur." 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 conflicting evidence inclined to the side of the prisoner, 
 torture was not to be applied. 5 Two adverse witnesses, or 
 one unexceptionable one, were a condition precedent, and 
 the legislator shows that he was in advance of his age by 
 ruling out all evidence resting on the assertions of magi- 
 cians and sorcerers. 6 To guard against abuse, the impos- 
 
 1 Ibid. c. xx. Et, ut maxime fiat, reum per eculei cruciatus crimen fateri, 
 ejusmodi tamen confessioni minime gentium credendum et multo minus 
 sententia ferenda est. 
 
 2 Ibid. c. lviii. Neque iis, quae mediis profundent rei cruciatibus, credet ; 
 sed iis demum, qua? recens quaestionibus exempti indicabunt et confitebuntur, 
 perscribenturque tanquam ea quae morientum ad veritatis investigationem 
 sint allatura. 
 
 a Ibid. c. lv., lvi., lvii. * Ibid. c. xxii , lxix. 
 
 6 Ibid. c. xxviii. 6 Ibid. c. xxiii., xxi. 
 
MODERN G II M A N Y. 
 
 sible effort was made to define strictly the exact quality 
 Mid amount <>f evidence requisite to justify torture, and 
 the most elaborate and minute directions were given with 
 respect to all the various classes of crime, such as homicide, 
 child-murder, robbery, theft, receiving stolen goods, poison- 
 ing, arson, treason, sorceiy, and the like -, 1 while the judge 
 administering torture to an innocent man on insufficient 
 grounds was liable to make good all damage or suffering 
 thereby inflicted.* The amount of torment, moreover, was 
 to be proportioned to the age, sex, and strength of the 
 patient; women during pregnancy were never to be sub- 
 jected to it ; and in no case was it to be carried to such a 
 point as to cause permanent injury or death. 3 
 
 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 juris- 
 prudence of Germany. In his Criminal Constitutions, how- 
 ever, 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 gradually 
 became to a great extent part and parcel of the common 
 law of Germany. 4 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. 5 As the several 
 
 1 Legg. Capital. Carol. V. c. xxxiii.-xliv. 
 
 3 Ibid. c. xx., Ixi. 
 
 1 Ibid. c. lviii., lix. Accusatus, si periculum sit, ne inter vel post tor- 
 menta ob vulnera expiret, ea arte torquendus est, ne quid damni accipiat. 
 
 4 Heineccii Hist. Jur. Civ. Lib. II. cv. sqq. 
 s My principal authorities are three : 
 
 I. " Tractatus de Quaestionibus seu Torturis Reorum," 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. 
 
 II. " Practica Crirainalis, seu Processus Judiciarius ad usura et consue- 
 
356 TORTURE. 
 
 authors 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. 1 It is easy to see from them, however, that though 
 the provisions of the Caroline Constitutions were still 
 mostly in force, yet the practice had greatly extended 
 itself, and that the limitations prescribed for the protection 
 of innocence and helplessness had become of little real 
 effect. 
 
 Upon the theory of the Roman law, nobles and the 
 learned professions had claimed immunity from torture, 
 and the Roman law inspired too sincere a respect to permit 
 a denial of the claim, 3 yet the ingenuity of lawyers reduced 
 the privilege to such narrow proportions that it was prac- 
 tically almost valueless. For certain crimes, of course, 
 such as majesias, 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 tor- 
 ture was at any time allowable. Thus, parricide, uxoricide, 
 
 tudinem judiciorum in Germania hoe tempore frequentiorem," by Johann 
 Emerich von Rosbach, published in 1645 at Frankfort on the Mayn. 
 
 III. "Tractatio Juridica, de Usu et Abusu Torturae," by Heinrieh von 
 Boden, a dissertation read at Halle in 1697 and reprinted by Senckenberg 
 in 1730, in conjunction with the treatise of Zanger. 
 
 1 Cum nihil tarn severum, tarn crudele et inhumanum videatur quam hom- 
 inem conditum ad imaginem Dei .... tormentis lacerare et quasi excarnifi- 
 care etc. Zangeri Tract, de Quaestion. cap. i. No. I. 
 
 Tormentis humanitatis et religionis, necnon jurisconsultorum argumenta 
 repugnant. Jo. Emerici a Rosbach Process. Crimin. Tit. v. c. ix. No. I. 
 
 Saltern horrendus torturae abusus ostendit, quo miseri, de facinore aliquo 
 suspecti, fere infernalibus, et si fieri possit, plusquam diabolicis cruciatibus 
 exponuntur, ut qui nullo legitimo probandi modo convinci poterant, atroci- 
 tate cruciatuum contra propriam salutem confiteri, seque ita destruere sive 
 jure sive injuria, cogantur. Henr. de Boden Tract. Proafat. 
 
 2 Zangeri cap. I. No 49-58. 
 
MODERN GERMANY. 357 
 
 fratricide, witchcraft, sorcery, counterfeiting, theft, sacrilege, 
 rape, arson, repeated homicide, etc, came to be Included in 
 
 the exceptional cases, and the only privileges extended in 
 them to nobles were that they should not be subjected to 
 "plebeian" tortures. 1 In Catholic countries, of course, the 
 clergy were specially favored. The torture inflicted on 
 them 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. 3 
 
 Slight as were the safeguards with which legislators 
 endeavored 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 
 
 1 Zangeri cap. I. No. 59-88. Knipschild, in his voluminous "Tract, de 
 Nobilitate" (Campodun. 1693), while endeavoring to exalt to the utmost the 
 privileges of the nobility, both of the sword and robe, is obliged to admit 
 their liability to torture for these crimes, and only urges that the preliminary 
 proof should be stronger than in the case of plebeians (Lib. II. cap. iv. 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. 
 No. 105-7). 
 
 As early as 1514, I find an instance which shows how little protection was 
 afforded by these privileges. 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 con- 
 spiring to betray the city, and warned that he could retract his confession, 
 extracted under torture, pathetically replied "During my examination, I 
 was at one time stretched upon the rack for six hours, and at another I 
 was slowly burned for eight hours. If I retract, I shall be exposed to these 
 torments again and again. I had rather die'' and he was duly hanged. 
 (Erphurdianus Variloquus, ann. 1514.) 
 
 9 Emer. a Rosbach Process. Crimin. Tit. v. cap. xiv. As an illustration, 
 von Rosbach states 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 "hoc tamen fallit in sacerdote vel presbytero, qui si mulierem 
 amplexetur, praesumitur facere causa benediceudi." 
 
35S TORTURE. 
 
 necessity of strong preliminary evidence, 1 and to read the 
 elaborate details as to the exact kind and amount of testi- 
 mony 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, though it may argue de- 
 pravity in general, does not warrant the presumption of 
 actual guilt in individual cases ; 3 though pallor, under many 
 circumstances, was considered to sanction the application 
 of torture. 3 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 them- 
 selves acknowledge the worthlessness of the rules so labo- 
 riously constructed when they admit that it is left for his 
 decision to determine whether the indications are sufficient 
 to warrant the infliction of torture. 4 How absolute was 
 this discretion, and how it was exercised, is manifest when 
 
 1 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.; 
 
 2 Fama frequens et vehemens facit indicium ad torturam. (Zanger. c. II. 
 No. 80.) Reus ante accusationem vel inquisitionem fugiens et citatus con- 
 tumaciter absens, se suspectum reddit ut torqueri possit. (Ibid. No. 91.) 
 Inconstantia sermonis facit indicium ad torturam. (Ibid. No. 96-99.) Ex 
 taciturnitate oritur indicium ad torturam. (Ibid. No. 103.) Physiognomia 
 malam naturam arguit, non autem delictum. (Ibid. No. 85.) 
 
 3 Deinde a pallore et similibus oritur indicium ad torturam secundum 
 Bartol. (Emer. a Rosbach Tit. v. c. vii. No. 28-31.) Whereupon von Ros- 
 bach enters into a long dissertation as to the causes of paleness. 
 
 4 Judieis arbitrio relinquitur an indicia sint sumcientia ad torturam. 
 (Zanger. cap. n. No. 16-20.) An indicia sufficiant ad torturam judieis 
 arbitrio relictum est. . . . Indicia ad torturam sufBcientia reliquuntur officio 
 judieis. (Emer. a Rosbach Tit. v. c. ii. p. 529.) 
 
MODERN GERMANY. 359 
 
 von Rosbach tells us that the magistrates of his time in 
 the absence of all evidence, sometimes resorted to divi na- 
 tion or the lot in order to obtain proof on which they could 
 employ the rack or strappado. 1 
 
 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 re- 
 fused to plead, whether there was any evidence against 
 him or not, could be tortured until his obstinacy gave way. 8 
 Even witnesses were not spared, whether in civil suits or 
 criminal prosecutions. 3 It was discretionary with the judge 
 to inflict moderate torture on them, when the truth could 
 not otherwise be ascertained. Infamous witnesses could 
 always be tortured ; those not infamous, only when they 
 prevaricated, or when they were apparently committing 
 perjury; but, as this was necessarily left with the judge 
 to determine, the instructions for him to guide his decision 
 by observing their appearance and manner show how com- 
 pletely the whole case was in his power, and how readily 
 he could extort evidence to justify the torture of the priso- 
 ner, and then extract from the latter a confession by the 
 same means. A reminiscence of Roman law, however, is 
 visible in the rule that no witness could be tortured against 
 his kindred to the seventh degree, nor his near connections 
 by marriage, his feudal superiors, nor other similar per- 
 sons. 4 
 
 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, though 
 they could be tied to the rack, and menaced to the last 
 extremity. Insanity was likewise a safeguard, and much 
 
 1 Emer. a Rosbach Tit. v. c. x. No. 25. Sed aliqui judices quando desunt 
 indicia, procedunt per sortilegia et similia. 
 
 2 Ibid. Tit. v. cap. x. No. 2. 
 
 3 Ibid. Tit. v. cap. xiv. No. 16. 
 
 4 Zangeri op. cit. cap. i. No. 8-25. 
 
360 TORTURE. 
 
 discussion was had as to whether the deaf, dumb, and blind 
 were liable or not. Zanger decides in the affirmative, 
 whenever, whether as principles or witnesses, good evi- 
 dence was to be expected from them. 1 The Roman rule 
 was followed that, whenever several parties were on trial 
 under the same accusation, the torturer should commence 
 with the weakest and tenderest, while a refinement of 
 cruelty prescribed that if a husband and wife were arraigned 
 together, the wife should be tortured first, and in the pre- 
 sence of her husband ; and if a father and son, the son 
 before his father's face. 3 
 
 Some facilities for defence were allowed to the accused, 
 but in practice the}' were almost hopelessly slender. He 
 was permitted to employ counsel, and if unable to do so, 
 it was a duty of the judge to look up testimony for the 
 defence. 3 After all the adverse evidence had been taken, 
 and the prisoner had been interrogated, he could demand 
 to see a copy of the proceedings, in order to frame a de- 
 fence ; but the demand could be refused, in which case, the 
 judge was bound to sift the evidence himself, and to inves- 
 tigate the probable innocence or guilt of the accused. 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 
 without at least looking at the evidence which may be 
 attainable in favor of innocence ; 4 while von Rosbach cha- 
 racterizes as the greatest fault of the tribunals of his day, 
 their neglect to obtain and consider testimony for the 
 prisoner as well as that against him. 5 In some special and 
 extraordinary cases, the judge might allow the accused to 
 be confronted with the accuser, but this was so contrary 
 to the secrecy required by the inquisitorial system, that he 
 
 1 Zangeriop. cit. cap. i. No. 34-48. s Ibid. cap. iv. No. 25-30. 
 
 3 Ibid. cap. in. No 3. 4 Ibid. cap. HI. No. 1, 4, 5-43. 
 
 s Process. Crim. Tit. v. cap. xi. No. 6. 
 
 
MODERN Q1BMANT. 3C1 
 
 Wftfi cautioned that it was very unusual course, and one 
 not lightly to be allowed, as it was odious, unnecessary, 
 attd not pertinent to the trial. 1 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 
 low or judge, could, of course, in most instances, be so 
 presented to the higher court as to insure the affirmation of 
 the order, and prisoners in their helplessness would doubt- 
 less feel that by the attempt to appeal they would probably 
 only increase the severity of their inevitable sufferings. 2 
 
 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 neces- 
 sary to reprove, as a common error of the judges of his 
 time, the idea that the use of torture was a matter alto- 
 gether dependent upon their pleasure, " as though nature 
 had created the bodies of prisoners for them to lacerate at 
 will." 3 It was an acknowledged rule, that when guilt 
 could be sufficiently proved by witnesses, torture was not 
 admissible ; 4 yet a practice grew up 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. 5 Martin Bernhardi, writing in IT 05, as- 
 serts that this was resorted to in order to prevent the 
 convict from appealing from the sentence ;" and as late as 
 1764, Beccaria lifts his voice against it as a still existing 
 abuse, which he well qualifies as senseless curiosity, im- 
 
 1 Zangeri cap. n. No. 49-50. Cum enim confrontntio odiosa sit et 
 species suggestions, et remedium extraordinarium ad substantias processus 
 non pertinens, et propterea non necessaria. 
 
 2 Ibid. cap. iv. No. 1-6. 
 
 3 Process. Crimin. Tit. v. cap. ix. No. 10. 
 * Zangeri cap. I. No. 37. 
 
 8 Boden de Usu et Abusu Torturae Th. xn. 
 
 6 Martini Bernbardi Diss. Inaug. de Tortura cap. I. 4. 
 
 31 
 
-302 TORTURE. 
 
 pertinent in the wantonness of its cruelty. 1 Another posi- 
 tive rule was that torture could only be applied in accusa- 
 tions involving life or limb f but Senckenberg assures us 
 that he had known it to be resorted to in mercantile mat- 
 ters, where money only was at stake. 3 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 wait- 
 ing to determine whether the theft had really occurred as 
 alleged, 5 and von Boden declares that many tribunals were 
 in the habit of resorting to it in cases wherein subsequent 
 developments showed that no crime had really been com- 
 mitted, and he quotes a brother lawyer, who jocosely cha- 
 racterized such proceedings as putting the cart before the 
 horse, and bridling him by the tail. 6 
 
 1 He represents the judge as addressing his victim " Tu sei il reo di un 
 delitto, dunque e possibile che lo sii di cent' altri delitti : questo dubbio mi 
 pesa, voglio accertarmene col mio criterio di verita : le leggi ti tormentano, 
 perche sei reo, perche puoi esser reo, perche voglio che tu sii reo." Dei 
 Delitti e delle Pene, xn. 
 
 3 Zangeri Praefat. No. 31. 
 
 3 Zangeri Tract. Not. ad p. 903. Bernhardi states that in cases of presumed 
 fraudulent bankruptcy, not only the accused, but also the witnesses, if 
 suspected of concealing the truth, could be tortured. Diss. Inaug. de Tort. 
 cap. I. iv. 
 
 4 Zangeri Praefat. No. 32. Tortura enim datur non ad liquidandum fac- 
 tum sed personam. 
 
 * 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 caballum jungit. 
 
 The history of criminal jurisprudence is full of such proceedings. Boyvin 
 du Villars relates that during the war in Piedmont, in 1559, he released 
 from the dungeons of the Marquis of Masserano an unfortunate gentleman 
 who had been secretly kept there for eighteen years, in consequence of having 
 attempted to serve a process from the Duke of Savoy on the marquis. His 
 disappearance having naturally been attributed to foul play, his kindred 
 prosecuted an enemy of the family, who, under stress of torture, duly con- 
 
MODERN (I IB MANY. 868 
 
 We have seen above thai the prisoner was entitled to 
 gee a copy of the evidence taken in seorel against him; yet 
 
 von Rosbach states that judges were not in the habit <>f 
 permitting it, though no authority justified them in the 
 rerasai; 1 Mini half a oent wty Later this ia confirmed by Bern- 
 
 hardi. who <iivrs as reason licit by withholding the pro* 
 eeedings from the accused they saved themselves trouble. 9 
 Even the inalienable privilege of being heard in his defence 
 was habitually refused by many tribunals, which proceeded 
 at once to torture after hearing the adverse evidence, and 
 von Rosbach feels it necessary to argue at some length 
 the propriety of hearing what the accused may have to 
 say.' In the same way, the right to appeal from an order 
 to torture was evaded by judges, who sent the prisoner to 
 the rack without a preliminary formal order, thus depriving 
 him of the opportunity of appealing. 4 
 
 If the irresponsible power which the secret inquisitorial 
 process lodged in the hands of the judges was thus fear- 
 fully abused in destroying all the safeguards provided for 
 the prisoner by law, it was none the less so in disregarding 
 the limitations provided against excessive torture. A uni- 
 versal 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 inno- 
 cent persons had been crippled for life by torture under 
 false accusations, 5 and the meek Jesuit Del Rio, in his 
 instructions to inquisitors, quietly observes that the flesh 
 
 fessed to having committed the murder, find was accordingly executed in a 
 town where Masserano himself was residing. Boyvin du Villars, Memoires 
 Liv. vn. 
 
 1 Process. Criminal. Tit. v. cap. x. No. 7. Hodie vero judices reis captis 
 non exhibent indiciorum exemplum, et procedunt ad torturara. Sed haec 
 opinio in jure undique refellitur, et ego senio confectus nunquam inveni 
 aliquam legem seu rationem pro tali observantia. 
 
 2 Diss. Inaugrcap. i. $ xii. 3 Process. Criminal. Tit. v. cap. x. No. 8-16. 
 4 Bernhardi loc. cit. * Not. ad p. 907 Zangeri op. cit. 
 
364 TORTURE. 
 
 should not be wounded nor the bones broken, but that tor- 
 ture could scarce be properly administered without more 
 or less dislocation of the joints. 1 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 inge- 
 nuity could not invent suffering more terrible than was 
 constantly and legally employed, and that Satan himself 
 would be unable to increase its refinements. 2 
 
 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. 3 Z anger also quotes the Roman law as still 
 in force, to the effect that if the accused dies under the 
 torture, and the judge has been either bribed or led away 
 by passion, his offence is capital, while if there had been 
 insufficient preliminary evidence, he is punishable at dis- 
 
 1 Del Rio Magicar. Disquisit. Lib. v. sect. ix. Ut corpus rei maneat vel 
 illaesuui vel modice laesum, salvura innocentiae vel supplicio : illaosum, dico, 
 quod ad carnis lacerationem aut ossiura vel nervorum fracturam, nam quoad 
 discompaginationem, sive disjunctionem juncturarum et ossium non immode- 
 ratum vix in tormentis ea potest evitari. 
 
 3 De Usu et Abusu Tort. Th. xm. Deinde quoque in ultimo torturas 
 gradu concesso, summi quos humana malitia invenire potuit cruciatus, sine 
 fine et modo sic adhiberi soleant, ut diabolum ipsum asperius quid quo cor- 
 pori humano in hac vita noceat, excogitare posse dubium sit. 
 
 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. 
 
 3 Zangeri op. cit. cap i. No. 42-44. 
 
MODERN dlEHANY. 
 
 eretion. 1 The secrecy of criminal trials, however, offered 
 an almost impenetrable shield to the judge, and we are 
 quite prepared to believe the assertion of Sencken berg that 
 
 these rules had become obsolete, and that he had seen not 
 a tew instances of such violations of the law without there 
 being any idea of holding the judge to accountability.* 
 
 Not the least of the evils of the system, indeed, was its 
 Inevitable influence upon the judge himself. He was re- 
 quired b}' his office to be present during the infliction of 
 torture, and to conduct the interrogatory personally. Cal- 
 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, in- 
 stead of a safeguard for the prisoner, became a cause of 
 subjecting him to additional agony. 3 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 inge- 
 nuit3', which multiplied the endless refinements of torment, 
 testifies how utterly humanity yielded to the thirst of 
 wringing conviction from the weaker party to the unequal 
 conflict, where he who should have been a passionless 
 
 1 Zangeri cap. in. No. 20-22. 
 
 2 Loc. cit. Hujus doctrinae forte hodie parvus usus, et vidi ipse exempla 
 nonnulla ubi ne quidein de puniendo judice cogitatum. 
 
 3 The prudence of persevering in torture until a confession was reached 
 was at least recognized, if not advised, by jurists. "Occurrithic cautelaBruni 
 dicentis, si judex indebite torserit aliquem, facit reum confiteri quod fuit 
 legitime tortus, de qua confessione faciat notarium rogatum." (Jo. Em. a 
 Rosb. Process. Crim. Tit. v. cap. xv. No. 6.) To suggest the idea was prac- 
 tically to recommend it. 
 
 31* 
 
366 TORTURE. 
 
 arbiter was made necessarily a combatant. How completely 
 the prisoner tlins became a quarry to be hunted to the 
 death is shown by the jocular remark of Farinacci, a cele- 
 brated authority in criminal law, that the torture of sleep- 
 lessness, invented by Marsiglio, was most excellent, for out 
 of a hundred martyrs exposed to it not two could endure 
 it without becoming confessors as well. 1 Few, when once 
 engaged in such a pursuit, could be expected to follow the 
 example of the Milanese judge, who resolved his doubts as 
 to the efficacy of torture in evidence by killing a favorite 
 mule, and allowing the accusation to fall upon one of his 
 servants. The man of course denied the offence, was duly 
 tortured, confessed, and persisted in his confession after 
 torture. The judge, thus convinced by experiment of the 
 fallacy of the system, resigned the office whose duties he 
 could no longer conscientiously discharge, and in his sub- 
 sequent career rose to the cardinalate. 8 
 
 1 Quoted by Nicolas, Diss. Mor. et Jurid. sur la Torture, p. 21. This 
 mode of torture consisted in placing the accused between two jailers, who 
 pummelled him whenever he began to doze, and thus, with proper relays, 
 deprived him of sleep for forty hours. Its inventor considered it humane, 
 as it endangered neither life nor limb, but the extremity of suffering to 
 which it reduced the prisoner is shown by its efficaciousness. 
 
 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; Zangevi op. cit. cap. iv. No. 9, 10; Hieron 
 Magius de Equuleo cum Appendd. Amstelod. 1664, etc. According to Bern 
 hardi, Johann Graefe enumerates no less than six hundred different instru 
 ments invented for the purpose. 
 
 - I give this anecdote on the authority of Nicolas (op. cit. p. 169), who 
 quotes it as a well-known circumstance, without furnishing either name or 
 date. He also relates (p. 178) a somewhat similar case which was told to 
 him at Amsterdam in explanation of the fact that the city was obliged to 
 borrow a headsman from the neighboring towns whenever the services of one 
 were required for an execution. It appears that a young man of Amsterdam, 
 returning home late at night from a revel, sank upon a door-step in a 
 drunken sleep. A thief emptied his pockets, securing, among other things, 
 
ai ODBB N G 1 1 m \ \Y. 861 
 
 Tn theory, the licensed could b tortured only once, but 
 this, like all other attempts to humanize the law. amounted 
 to but little. A repetition of torture could be justified oil 
 the ground that the first application had been Light or in- 
 sufficient ; the production of fresh evidence authorized I 
 second and even a third infliction; a failure to persevere 
 in confession after torture rendered a repetition requisite, 
 and even a variation in the confession required confirmation 
 by the rack or strappado. 1 
 
 With all this hideous accumulation of cruelty which 
 shrank from nothing in the effort to wring a confession 
 from the wretched victim, that confession, when thus 
 so dearly obtained, was estimated at its true worthless- 
 ness. It was insufficient for conviction unless confirmed 
 by the accused in a subsequent examination beyond the 
 confines of the torture chamber. If then retracted, the 
 accused was again tortured, when a second confession and 
 retraction made an exceedingly awkward dilemma for the 
 subtle jurisconsults. They agree that he should not be 
 allowed to escape after giving so much trouble. Some advo- 
 cated the regular punishment of his crime, others demanded 
 for him an extraordinary penalty ; some, again, were in 
 favor of incarcerating him ; 3 others assumed that he should 
 
 a dirk, with which, a few minutes later, he stabhed a man in a quarrel. 
 Returning to the sleeper, he slipped the bloody weapon back to its place. 
 The young man awoke, but, before he had taken many steps, he was seized 
 by the watch, who had just discovered the murder. Appearances were 
 against him; he was tortured, confessed, persisted in confession after tor- 
 ture, and was duly hanged. Soon after, the real criminal was condemned 
 for another crime, and revealed the history of the preceding 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 punish- 
 ment for a result that was inevitable under the system. 
 
 1 Zangeri cap. v. No. 73-83. Some writers, however, authorize its repe- 
 tition as often as may seem necessary to the judge (Rosbach op. cit. Tit. v. 
 cap. xv. No 14), and Del Rio mentions a case in Westphalia wherein a man 
 accused of lycanthropy was tortured twenty times (Lib. v. Sect. ix.). 
 
 2 Zangeri cap. v. No. 79-81. 
 
368 TORTURE. 
 
 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. 1 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. 2 Others solved the 
 knotty problem by judiciously advising that in the uncer- 
 tainty of doubt as to his guilt, the prisoner should be 
 soundly scourged and turned loose, after taking an oath 
 not to bring an action for false imprisonment against his 
 tormentors ; 3 but, according to some authorities, this kind 
 of oath, or urpheda as it was called, was of no legal value. 4 
 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 in- 
 flicted by an over-zealous judge without proper preliminary 
 evidence, confession amounted legally to nothing, even 
 though proof were subsequently discovered. 5 If, on the 
 other hand, absolute and incontrovertible proof of guilt 
 were had, and the over-zealous judge tortured in surplusage 
 without extracting a confession, the offender was absolved. 
 
 1 Bernhardi Diss. Inaug. cap. i. xi. 
 
 2 Emer. a Rosbach, op. cit. Tit. v. cap. xviii. No. 13. So Beccaria, (De- 
 litt. e Pene xn.) "Alcuni dottori ed alcune nazioni non permettono 
 questa infaine petizione di principio che per tre volte ; altre nazioni ed altri 
 dottori la lasciano ad arbitrio del giudice." 
 
 3 Zangeri loc. cit. 
 
 4 Bernhardi, cap. I. xii. Cf. Caroli V. Const. Crim. cap. xx. 1. 
 6 Zangeri cap. n. No. 9-10; cap. v. No. 19-28. 
 
 G Ibid. cap. v. No 1-18. Bigotry and superstition, however, did not 
 allow their victims to escape so easily. In accusations of sorcery, if appear- 
 ances were against the prisoner that is, if he were of evil repute, if he shed 
 no tears during the torture, and if he recovered speedily after each applica- 
 tion he was not to be liberated because no confession could be wrung from 
 him, but was to be kept for at least a year, " squaloribus carceris mancipan- 
 dus et cruciandus, saepissime etiam examinandus, praccipue sacratioribus 
 diebus." Rickii Defens. Aq. Probaj cap. i. No. 22. 
 
AT Ho (MTV OF THE SYSTEM. 869 
 
 If, again, a man and woman were tortured <>n an accusation 
 of adultery committed with each other, and if one confessed 
 while the other did not, both were acquitted. 1 Nothing more 
 contradictory and illogical can well be imagined, and. as 
 if to crown the absurdity of the whole, torture after con- 
 viction was allowed in order to prevent appeals ; and if t be 
 unfortunate, at the place of execution, chanced to assert 
 his innocence, he was often hurried from the scaffold to the 
 rack in obedience to the theory that the confession must 
 remain unretracted. 3 One can scarcely 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. 3 
 
 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. u 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 de- 
 scribed above ; our iron stools heated to redness, on which 
 we place poor half-witted women accused of witchcraft, 
 exhausted by frightful imprisonment, rotting from their 
 dark and filthy dungeons, loaded with chains, fleshless, 
 and half dead ; and we pretend that the human frame can 
 resist these devilish practices, and that the confessions 
 which our wretched victims make of everything that may 
 be charged against them are true." 4 Under such a scheme 
 
 1 Zangeri cap. v. No. 53-61. 
 3 Boden, op. cit. Th. v. vi. 
 
 3 Ibid. 
 
 4 Dissert. Mor. et Jurid. sur la Torture, p. 36-7. 
 
370 TORTURE. 
 
 of jurisprudence, it is easy to understand and appreciate 
 the case of the unfortunate peasant, sentenced for witch- 
 craft, who, in his dying confession to the priest, admitted 
 that he was a sorcerer, and humbly welcomed death as the 
 fitting retribution for the enormous 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. 1 
 
 We have seen above how great was the part of the In- 
 quisition in introducing and moulding the whole system 
 of torture on the ruins of the Roman law. Even so, in the 
 reconstruction of European jurisprudence, during the six- 
 teenth and seventeenth centuries, the ardor of the inquisi- 
 torial proceedings against witchcraft, and the panic on the 
 subject which long pervaded Christendom, had a powerful 
 influence in familiarizing the minds of men with the use of 
 torture as a necessary instrument of j ustice, and in autho- 
 rizing its employment 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 
 station should protect those accused of such offences from 
 its application in the severest form.* How universal its 
 employment thus became is evident from a canon of the 
 council of Merida, in 666, declaring that priests, when 
 sick, sometimes accused the slaves of their churches of 
 bewitching them, and impiously tortured them against all 
 ecclesiastical rules. 3 That all such crimes should be re- 
 garded as peculiarly subjecting to the last extremity of 
 torture all suspected of them is therefore natural, and its 
 
 1 Nicolas, p. 169. 3 Const. 7 Cod. ix. xviii. 
 
 s Similiter et quia comperimus aliquos presbyteros aegritudine accidente, 
 faiuilise ecclesise suse crimen imponere, dicente ex ea homines aliquos male- 
 ficium sibi fecisse eosque sua potestate torquere, et per multani impietatem 
 detrimentare. Concil. Emeritan, ann. 666 can. xv. 
 
SORCERY AND WITCHCRAFT. 371 
 
 use in the trials of witches and sorcerers came to be re- 
 garded as indispensable 
 
 The necessity which all men lVdt that these crimes should 
 he 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 mi failing 
 resource to the puzzled tribunal. Jacob Rickius, who, as 
 a magistrate during an epidemic of witchcraft, at the close 
 of the seventeenth century, had the fullest practical expe- 
 rience on the subject, complains that no reliance could be 
 ] (laced on legal witnesses to procure conviction; 1 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. 2 
 
 Even the wide-spread belief that Satan aided his wor- 
 shippers in their extremity by rendering them insensible 
 to pain did not serve to relax the efforts of the extirpators 
 of witchcraft, though they could hardly avoid the con- 
 clusion that they were punishing only the innocent, and 
 allowing the guilty to escape. Various means they em- 
 ployed to circumvent the arch-enemy, of which the one 
 most generally adopted was that of shaving the whole per- 
 son carefully before applying the torture; 3 but notwith- 
 
 1 Per legales testes hujus rei ad convincendum fides certa haberi non 
 potest. Rickii Defens. Aquao Proboe cap. in. No. 117. 
 
 " Idque facilius in excepto et occulto difficilisque probationis crimine 
 nostro sortilegii adraiserim quam in aliis. Disquisit. Magicar. Lib. v. Sect, 
 iii. No. 8. 
 
 3 Nicolas (p. 145) inveighs with honest indignation at the frightfully in- 
 decent outrages to which female prisoners were subjected in obedience to 
 this superstition. The curious reader will find in Del Rio (Lib. v. Sect, ix.) 
 ample details as to the arts of the Evil One to sustain his followers against 
 the pious efforts of the Inquisition. There was so general a belief among 
 enlightened men that criminals of all kinds had secrets to deaden the suffer- 
 
372 TORTURE. 
 
 standing all the precautions of the most experienced exor 
 cists, we find in the bloody farce of Urbain Grandier that 
 the fiercest torments left him in capital spirits and good 
 humor. 1 The tender-hearted Rickius was so convinced of 
 this source of uncertainty that he was accustomed to ad- 
 minister the cold water ordeal to all the miserable old 
 women brought before him on such charges, but he is careful 
 to inform us that this was only preparatory proof, to enable 
 him with a safer conscience to torture those who were so 
 ill-advised as to float instead of sinking. 3 
 
 When the concentrated energies of these ingenious and 
 determined law dispensers failed to extort by such means 
 a confession from the wretched clowns and gossips thus 
 placed at their mercy, they were even yet not wholly at 
 fault. The primitive teachings of the Inquisition of the 
 thirteenth century were not yet obsolete, and they were 
 instructed to treat the prisoner kindly ; 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 ; at that 
 moment the judge is to enter the cell and to promise mercy, 
 with the mental reservation that his mercy should be shown 
 
 ings of torture, that it is quite likely the unfortunates were sometimes able 
 to strengthen their endurance with some anaesthetic. 
 
 1 "Q'apres qu'on eut lave ses jambes, qui avoient ete dechirees 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, paT des dis- 
 cours 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 souf- 
 frant la question, ni apres l'avoir souflFerte, lors meme qu'on 1'exorcisa de 
 l'exorcisme des Magiciens, et que l'Exorciste lui dit a plus de cinquante re- 
 prises ' praecipio ut si sis innocens effundas lachrymas. ' " Hist, des Diables 
 de Loudon, pp. 157-8. 
 
 2 Tunc non quaestioni subjiciebantur statim, sed pro confortatione prae- 
 cidentium indiciorum, probam aquae adhibebamus primitus, non ad convin- 
 cendam earn per hinc, sed praeparandum et muniendum torturao viam. 
 Uickii op. cit. cap. i. No. 24. 
 
SORCERY AND WITCHCRAFT. 373 
 
 to the community and not to the prisoner.' Or, still fol- 
 lowing the ancient traditions, 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. 9 
 
 When the law thus pitilessly turned all the chances 
 Against the victim, it is easy to understand that few 
 escaped. In the existing condition of popular frenzy on 
 the subject, there was no one but could feel that he might 
 at any moment be brought under accusation by personal 
 enemies or by unfortunates compelled on the rack to declare 
 the names of all whom they might have seen congregated 
 at the witches' sabbat. We can thus readily comprehend 
 the feelings of those who, living under such uncertainties, 
 coolly and deliberately made up their minds in advance 
 that, if chance should expose them to suspicion, they would 
 at once admit everything that the inquisitors might desire 
 of them, preferring a speedy death to one more lingering 
 and scarcely less certain. 3 The evil fostered with such 
 careful exaggeration grew to so great proportions that 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 
 
 1 Bodinus went so far as to authorize the judge to entrap the prisoner with 
 absolute falsehoods "falsis promissis." Del Rio (Lib. v. Sect, x.) loftily 
 pronounces this inadmissible, and then proceeds to draw a distinction between 
 dolum malum and dolum bonum. He forbids a lie, but advises equivocation 
 and ambiguous promises, and if the prisoner is deceived, he has only him- 
 self to thank for it " Poterit judex uti sequivocatione et verbis subdolis 
 (citra mendacium) et ainbigua promissione liberationis, ut reum inducat ad 
 fatendum veritatem." He quotes from Sprenger the device alluded to in the 
 text "judex . . . promittat facere gratiam, subintelligendo sibi vel reipub. 
 in cujus conservationem totum quod sit est gratiosum." The pun upon the 
 word "gratia,'' on which a human life is made to depend, is scarcely trans- 
 latable. 
 
 - Nicolas (p. 144), from Bodin. Lib. iv. 
 
 3 Father Tanner states that he had this from learned and experienced men. 
 (Nicolas, p. 106.) 
 
 32 
 
374 TORTURE. 
 
 another trustworthy authority relates with pride that in 
 the cliocess of Como alone as many as a thousand had been 
 burnt in a twelvemonth, while the annual average was 
 over a hundred.* 
 
 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 1119, has one or two indications of its existence, 
 which are interesting as being purely autochthonic, and in 
 no sense derivable, as in the rest of Europe, from the 
 Roman law. The character of the people, indeed, and of 
 their institutions would seem to be peculiarly incompatible 
 with the use of torture, for almost all cases were submitted 
 for decision to juries of the vicinage, and, when this was 
 unsuitable, resort was had to the ordeal. The indigenous 
 origin of the custom, however, is shown by the fact that 
 while it was used in but few matters, the most prominent 
 class subjected to it was that of pregnant women, who have 
 elsewhere been spared by the common consent of even the 
 most pitiless legislators. An unmarried woman with child, 
 who refused to name her seducer, could be forced to do so 
 by moderate torments which should not break or discolor 
 the skin. 3 When the inhabitants of a district, also, refused 
 to deliver up a man claimed as an outlaw by another dis- 
 trict, the} r were bound to torture him to ascertain the truth 
 of the charge 3 a provision doubtless explicable by the 
 
 * Nicolas, p. 164. 
 
 3 " Ita torquatur ut nee plagam referat nee color cutis livescat." Gragas, 
 Festathattr cap. xxxiii. 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 re- 
 quired to convict the putative father. 
 
 3 Ibid. Vigslothi cap. cxi. 
 
THE SCANDINAVIAN NATIONS. 3?5 
 
 important part occupied by outlawry in all the schemes of 
 Scandinavian Legislation. These are the only instances in 
 Which it is permitted, while its occasional abuse is shown 
 by a section providing punishment for its illegal employ- 
 ment. 1 Slaves, moreover, under the Icelandic, as under 
 other codes, had no protection at law, and were at the 
 mercy of their masters." These few indications of the 
 liability of freemen, however, disappear about the time 
 when the rest of Europe was commencing to adopt the use 
 of torture. In the " Jarnsida," or code compiled for Ice- 
 land by Hako Hakonsen of Norway, in 1258, there is no 
 allusion whatever to its use. 
 
 The Scandinavian nations, as a whole, did not admit 
 torture into their systems of jurisprudence. The institution 
 of the jury in various forms was common to all, and where 
 proof upon open trial was deficient, they allowed, until a 
 comparatively recent date, the accused to clear himself by 
 sacramental purgation. Thus, in the Danish laws of Wal- 
 demar II., to which the date of 1240 is generally assigned, 
 there is a species of permanent jury, sandemend, as well 
 as a temporary one, nefninge, and torture seems to have 
 formed no part of judicial proceedings. 3 This code was in 
 force until 1683, when that of Christiern V. was promul- 
 gated. It is probable that the use 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. 4 He, how- 
 
 1 Gragds, Vigslothi cap. Ixxxviii. 
 
 a Schlegel, Comment, ad Gragas xxix. 
 
 3 Leg. Cimbric. Woldemari Lib. II. cap. i., xl. (Ed. Ancher, Hafniae, 1783). 
 
 4 Christiani V. Jur. Dame. Lib. I. cap. xx. (Ed. Weghorst, Hafniae, 1698). 
 "De nemine habenda est quastio, nisi propter facinus capite sit condem- 
 natus ; excepto laesae majestatis crimine, quod in summo gradu admi^sum 
 fuerit. Hie enim causae qualitas impedimento est quominus processus ordi- 
 narius observari possit." 
 
 Senckenberg (Corp. Jur. German. T. I. Praef. p. lxxxvi.) gives the chapter 
 
376 TORTURE. 
 
 ever, encouraged one of its greatest abuses in permitting it 
 on criminals condemned to death. 
 
 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. 1 
 Into these distant regions the Roman jurisprudence pene- 
 trated slowly, and the jury trial was an elastic institution 
 which adapted itself to all cases. 
 
 To the same causes may be attributed the absence of 
 torture from the Common Law of England. In common 
 with the other Barbarian races, the Anglo-Saxons solved 
 all doubtful questions by the ordeal and wager of law, and 
 in the collection known as the laws of Henry I. a prin- 
 ciple 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 pro- 
 nounced invalid, and no one who has confessed his own 
 crime is to be believed with respect to that of another. 3 
 Such a principle, combined with the gradual growth of 
 the trial by jury, doubtless preserved the law from the 
 contamination of inquisitorial procedure, though, as we 
 
 heads of a code in Danish, the Keyser Retenn, furnished to him hy Ancher, 
 in which cap. iv. and v. contain directions as to the administration of torture. 
 The code is a mixture of German, civil, and local law, and probably was in 
 force in some of the Germanic provinces of Denmark. 
 
 The Frisian code of 1323 is a faithful transcript of the primitive Barbarian 
 jurisprudence. It contains no allusion to torture, and as all crimes, except 
 theft, were still compounded by wehr-gilds, it may safely be assumed that 
 extorted confession was unknown (Leges Opstalbomicse ann. 1323, published 
 by Gartner, Saxonum leges tres, Lipsiae, 1730). 
 
 1 Raguald. Ingermund. Leg. Suecor., Stockholmise, 1623. 
 
 2 Et nemini de se confesso super alienum crimen credatur : confessio vero 
 per metum vel per fraudem extorta non valet. LI. Henrici I. cap. v. $ 16. 
 
KNfil.AND. 377 
 
 have seen, torture was extensively employed for purposes 
 of extortion by marauders and lawless nobles during pe- 
 riods of eivil 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 har- 
 monized with existing institutions, he is careful to abstain 
 from introducing torture into criminal procedure. 1 A clause 
 in Magna Charta, indeed, has been held by high authority 
 to inhibit the employment of torture, but it has no direct 
 allusion to the subject, which was not a living question at 
 the time, and was probably not thought of by any of the 
 parties to that transaction; moreover, it was not, at a 
 later period, held by any one to interfere with the royal 
 prerogative, whenever the King desired to test with the 
 rack the endurance of his loving subjects. 3 
 
 Under the common law, therefore, torture had no exist- 
 ence in England, and the character of the national institu- 
 
 1 Many interesting details on the influence of the Roman law upon that 
 of England will be found in the learned work of Carl GUterbock, " Bracton 
 and his Relation to the Roman Law," recently translated by Brinton Coxe 
 (Philadelphia, 1866). The subject is one which well deserves a more tho- 
 rough consideration than it is likely to receive at the hands of English 
 writers. 
 
 It is curious to observe that the crimen lasce majestatis makes its appear- 
 ance in Bracton (Lib. ill. Tract, ii. cap. 3 1), about the middle of the 
 thirteenth century, earlier than in France, where, as we have seen, the first 
 allusion to it occurs in 1315. This was hardly to be expected, when we con 
 sider the widely different influences exerted upon the jurisprudence of the 
 two countries by the Roman law. 
 
 2 The passage which has been relied on by lawyers is chap. xxx. : " Nullus 
 liber homo capiatur. vel imprisonetur, aut dissaisiatur, aut utlagetur, aut 
 aliquo modo destruatur ; nee super eum ibimus, nee super eum mittemus, 
 nisi per legale judicium parium suorum, vel per legem terras. " If the law 
 just above quoted from the collection of Henry I. could be supposed to be 
 still in force under John, then this might possibly be imagined to bear some 
 reference to it; but it is evident that had torture been an existing grievance, 
 such as outlawry, seizure, and imprisonment, the barons would have been 
 careful to include it in their enumeration of restrictions. 
 
 32* 
 
378 TORTURE. 
 
 tions kept at bay the absorbing and centralizing influences 
 of the Roman law. 1 Yet their wide acceptance in France, 
 and their attractiveness to those who desired to wield ab- 
 solute authority, gradually accustomed the crown and the 
 crown lawyers to the idea that torture could be adminis- 
 tered by order of the sovereign. Sir John Fortescue, w r ho 
 was Lord Chancellor under Henry VI., inveighs at great 
 length against the French law for its cruel procedures, 
 ancl with much satisfaction contrasts it with the English 
 practice, 3 and yet he does not deny that torture was occa- 
 sionally used in England. 3 An instance of its application 
 in 1468 has been recorded, which resulted in the execution 
 of Sir Thomas Coke, Lord Mayor of London; 4 and in 1485, 
 Innocent VIII. remonstrated with Henry VII. respecting 
 some proceedings against ecclesiastics who were scourged, 
 tortured, and hanged. 5 
 
 Under Henry VIII. and his children, the power of the 
 crown was largely extended, and the doctrine became 
 fashionable that, though no one could be tortured for con- 
 fession or evidence by the law, 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 inquisi- 
 torial 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 
 
 1 The jealousy with which all attempted encroachments of the Roman law 
 were repelled is manifested in a declaration of Parliament in 1388. "Que ce 
 royalme d'Engleterre n'estait devant ces heures, ne a l'entent du roy nostre 
 dit seignior et seigniors du parlement unque ne serra rule et governe par la 
 ley civill." Rot. Pari., 11 Ric. II. ((iiiterbock, op. cit. p. 13). 
 
 2 Du Cange, s. v. Tortnra. 
 
 3 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. 
 
 4 Jardine, loc. cit. 
 
 1 Partim tormentis subjecti, partim crudelissime laniati, et partim etiam 
 furca su?pensi fuerant. Wilkins Concil. III. 617. 
 
ENGLAND. 379 
 
 common law, to a system so subversive of nil the principles 
 in which they had been trained. Yet the loftiest names of 
 the profession were QOneerned in t ran suctions which they 
 knew to be in contravention 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 
 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 3 r ears later, we find the same Sir Thomas writing to 
 Lord Burghley, in 1571, respecting two miserable wretches 
 whom lie was engaged in racking under a warrant from 
 Queen Elizabeth. 1 
 
 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 
 addressed to Coke und Fleming, us Attorney und Solicitor 
 Generul, directing them to appty 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. 2 
 
 Coke's great rival, Lord Bacon, was as subservient as 
 his contemporaries. In 1619, while Chancellor, we find 
 him writing to King James concerning: a prisoner confined 
 in the Tower on suspicion of treason "If it may not be 
 done otherwise, it is fit Peacock be put to torture, lie 
 deserveth it as well as Peuchum did." 3 
 
 1 Jardine, op. cit. pp. 8-9, 24-5. It is due to Sir Thomas to add that he 
 earnestly begs Lord Burghley to release him from so uncongenial an employ- 
 raent. - Ibid. pp. 8, 47. 
 
 a Works, Philadelphia, 1846, III. 126. Peacham was an unfortunate cler- 
 
380 TORTURE. 
 
 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. 
 Thus, it was not only in cases of high treason that the 
 royal prerogative was allowed to transgress the limits of 
 the law. Matters of religion, indeed, in those times of 
 perennial change, when dynasties depended on dogmas, 
 might come under the comprehensive head of constructive 
 treason, and be considered to justify the torture even of 
 women, as in the instance of Ann Askew in 1546 ; l and of 
 monks guilty of no crime but the endeavor to preserve 
 their monasteries by pretended miracles; 2 but numerous 
 cases of its use are on record, which no ingenuity can re- 
 move from the sphere of the most ordinary criminal busi- 
 ness. Suspicion of theft, murder, horse-stealing, embezzle- 
 ment, and other similar offences was sufficient to consign 
 the unfortunate accused to the tender mercies of the rack, 
 the Scavenger's Daughter," and the manacles, when the 
 aggrieved person had influence enough to procure a royal 
 
 gyman in whose desk was found a MS. sermon, never preached, containing 
 some unpalatable reflections on the royal prerogative, and the prerogative 
 asserted itself by putting him on the rack. 
 
 1 Burnet, Hist. Reform. Bk. in. pp. 341-2. 
 
 Q According to Nicander Nucius (Travels, Camden Soc. 1841), pp. 58, 62, 
 the investigation of these deceptions with the severest tortures, Qst-rdvotc 
 aPwrois, was apparently the ordinary mode of procedure. 
 
 3 Sir William Skevington, a lieutenant of the Tower, under Henry VIII., 
 immortalized himself by reviving an old implement of torture, consisting 
 of an iron hoop, in which the prisoner was bent, heels to hams and chest to 
 knees, and thus crushed together unmercifully. It obtained the nickname 
 of Skevington's daughter, corrupted in time to Scavenger's Daughter. 
 Among other sufferers from its embraces was an unlucky Irishman, named 
 Myagh, whose plaint, engraved on the 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 Myngh." Jardine, op. cit. pp. 15, 30. 
 
ENGLAND. 881 
 
 a\ arrant; nor were those proceedings confined to the secret 
 dungeons of the Tower, for the records show that torture 
 began to be habitually applied in the Bridewell. Jardine, 
 
 however, states that this especially dangerous extension of 
 the abuse appears to have ceased with the death of Eliza- 
 beth, and that no trace of the torture of political prisoners 
 can be found later than the year 1640. 1 The royal pre- 
 rogative had begun to be too severely questioned to render 
 Such manifestations of it prudent, and the Great Rebellion 
 settled the constitutional rights of the subject on too secure 
 a basis for even the time-serving statesmen of the Restora- 
 tion to venture on a renewal of the former practices. Yet 
 how nearly, at one time, it had come to be engrafted on 
 the law of the land is evident from its being sufficiently 
 recognized as a legal procedure for persons of noble blood 
 to claim immunity from it, and for the judges to admit 
 that claim as a special privilege. In the Countess of 
 Shrewsbury's case, the judges, among whom was Sir Ed- 
 ward Coke, declared that there was a " privilege which the 
 law gives for the honor and reverence of the nobility, that 
 their bodies are not subject to torture in causa criminis 
 laesae mojestatis ;" and no instance is on record to disprove 
 the assertion. 2 
 
 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 conviction which in many cases could only be 
 obtained by confession. We have seen that among the 
 refinements of Italian torture, the deprivation of sleep for 
 forty hours was considered by the most experienced autho- 
 
 1 Jardine, pp. 5.3, 57-8. Op. cit. p. 65. 
 
382 TORTURE. 
 
 rities on the subject to be second to none in severity and 
 effectiveness. It neither lacerated the flesh, dislocated the 
 joints, nor broke the bones, and yet few things could be 
 conceived as more likely to cloud the intellect, break down 
 the will, and reduce the prisoner into a frame of mind in 
 which he would be ready to admit anything that the ques- 
 tions of his examiners might suggest to him. In English 
 witch trials, this method of torture was not infrequently 
 resorted to, without the limitation of time to which it was 
 restricted by the more experienced jurists of Italy. 1 
 
 In Scotland, torture, as a regular form of judicial inves- 
 tigation, was of late introduction. In the various codes 
 collected by Skene, extending from an early period to the 
 commencement of the fifteenth century, there is no allusion 
 whatever to it. In the last of these codes, adopted under 
 Robert III., by the Parliament of Scotland in 1400, the 
 provisions respecting the wager of battle show that torture 
 would have been superfluous as a means of supplementing 
 deficient evidence. 3 The influence of the Roman law, how- 
 ever, though late in appearing, was eventually much more 
 deeply felt in Scotland than in the sister kingdom, and 
 consequently torture at length came to be regarded as an 
 ordinary resource in doubtful cases. In the witch perse- 
 cutions, especially, which in Scotland rivalled the worst 
 excesses of the Inquisition of Germany and Spain, it was 
 carried to a pitch of frightful cruelty which far transcended 
 
 1 Lecky, Hist, of Rationalism, Am. ed. I. 122. In his very interesting 
 work, Mr. Lecky mentions a case, occurring under the Commonwealth, of 
 an aged clergyman named Lowes, who, after an irreproachable pastorate of 
 fifty years, fell under suspicion. "The unhappy old man was kept awake 
 for several successive nights, and persecuted 'till he was weary of his life, 
 and was scarcely sensible of what he said or did.' He was then thrown 
 into the water, condemned, and hung." Ibid. p. 126. The "pricking," 
 or thrusting of pins into all parts of the body, in order to discover the in- 
 sensible spot, which, according to popular belief, was one of the essential 
 peculiarities of the witch, was also a kind of indirect torture. 
 
 2 Statut. Roberti III. cap. xvi. (Skene). 
 
SCOTLAND. <j :js:j 
 
 the limits assigned to it elsewhere. 1 Indeed, it is difficult 
 to believe thai the accounts which have been preserved to 
 us of these terrible scenes are not exaggerated. No cruelty 
 is too great for the conscientious persecutor who believes 
 thai he is avenging his God, but the limftless capacity of 
 human nature for inflicting is not complemented by a 
 limitless capacity of endurance on the part of the victim; 
 and well authenticated as the accounts of the Scottish 
 witch-trials may be, they seem to transcend the possibility 
 of human strength. 2 Torture thus maintained its place in 
 the law of Scotland as long as the kingdom preserved the 
 right of self-legislation, and it was not abolished until after 
 the Union, when, in 1709, the United Parliament made 
 
 1 Thus the vigils, which elsewhere consisted simply in keeping the ac- 
 cused awake for forty hours hy the simplest modes, in Scotland were fear- 
 fully aggravated by a band of iron fastened around the face, with four di- 
 vergent points thrust into the mouth. With this the accused was secured 
 immovably to a wall, and cases are on record in which this insupportable 
 torment was prolonged for five and even for nine days. Lecky, op. cit. I. 
 145-6. 
 
 a I quote from Mr. Lecky (p. 147), who gives as his authority " Pitcairn's 
 Criminal Trials of Scotland." 
 
 "But others and perhaps worse trials were in reserve. The three prin- 
 cipal that were habitually applied were the penniwinkis, the boots, and the 
 caschielawis. The first was a kind of thumbscrew ; the second was a frame 
 in which the leg was inserted, and in which it was broken by wedges driven 
 in by a hammer ; the third was also an iron frame for the leg, which was 
 from time to time heated over a brazier. Fire matches were sometimes 
 applied to the body of the victim. We read, in a contemporary legal register, 
 of one man who was kept for forty-eight hours in ' vehement tortour' in 
 the caschielawis ; and of another who remained in the same frightful machine 
 for eleven days and eleven nights, whose legs were broken daily for fourteen 
 days in the boots, and who was so scourged that the whole skin was torn 
 from his body." These cases occurred in 1596. 
 
 These horrors are almost equalled by those of another trial in which a 
 Dr. Fian was accused of having caused the storms which endangered the 
 voyage of James I. from Denmark in 1590. James personally superintended 
 the torturing of the unhappy wretch, and after exhausting all the torments 
 known to the skill and experience of the executioners, he invented new 
 ones. All were vain, however, and the victim was finally burnt without 
 confessing his ill-deeds. {Ibid. p. 123.) 
 
384 TORTURE. 
 
 haste, at its second session, to pass an act for " improving 
 the Union," by which it was done away with. 1 
 
 A system of procedure, which could lead to results so 
 deplorable as tlfose which we have seen accompany it 
 everywhere, could scarcely fail to arouse the opposition of 
 independent men who were not swayed by reverence for pre- 
 cedent or carried away by popular impulses. Accordingly, 
 an occasional voice was raised in denunciation of the use 
 of torture. The sceptic of the sixteenth century, Mon- 
 taigne, for instance, was too cool and clear-headed not to 
 appreciate the vicious principle on which it was based, and 
 he did not hesitate to stamp it with his reprobation. u To 
 tell the truth, it is a means full of uncertainty and danger ; 
 what would we not say, what would we not do to escape 
 suffering so poignant? whence it happens that when a 
 judge tortures a prisoner for the purpose of not putting an 
 innocent man to death, he puts him to death both innocent 
 
 and tortured Are you not unjust when, to save him 
 
 from being killed, you do worse than kill him ?'" In 1624, 
 the learned Johann Graefe, in his " Tribunal Reformatum," 
 argued forcibly in favor of its abolition. When the French 
 Ordonnance of 1610 was in preparation, various magistrates 
 of the highest character and largest experience gave it as 
 
 1 7 Anne c. 21. While thus legislating for the enlightenment of Scotland, 
 the English majority took care to retain the equally barbarous practice of 
 the peine forte et dure. This was not strictly a torture for investigation, 
 but a punishment, which was inflicted on those who refused to plead either 
 guilty or not guilty. After its commencement, the unfortunate wretch was 
 not allowed to plead, but was kept under the press until death, "donee 
 oneris, frigoris atque famis cruciatu extinguitur." See Hale, Placit. Coron. 
 c. xliii. This relic of barbarism was not abolished until 1772, by 12 Geo. 
 III. c. 20. 
 
 " Essais, Liv. n. chap. v. Montaigne illustrates his position by a story 
 from Froissart, who relates that an old woman complained to Bajazet that 
 a soldier had foraged on her. The Turk summarily disposed of the soldier's 
 denial by causing his stomach to be opened. He proved guilty but what 
 had he been found innocent? 
 
R E M O N S T It A N C E . 
 
 their fixed opinion that torture was useless, that it rarely 
 succeeded in eliciting the truth from the accused, and that 
 it ought to be abolished. 1 Towards the close of the century, 
 various writers took up the question. The best known of 
 these was perhaps Augustin Nicolas, who has been fre- 
 quently referred to above, and who argued with more zeal 
 and learning than skill against the whole system, but espe- 
 cially against it as applied by the Inquisition in cases of 
 witchcraft. 3 In 1692, von Boden, in a work alluded to in 
 the preceding pages, inveighed against its abuses, while 
 admitting its utility in many classes of crimes. In 1*705, 
 at the University of Halle, Martin Bernhardi of Pomerania, 
 a candidate for the doctorate, in his inaugural thesis, 
 argued with much vigor in favor of abolishing it, and the 
 dean of the faculty, Christian Thomas, acknowledged the 
 validity of his reasoning, though expressing doubts as to 
 the practicability of a sudden reform. Bernhardi states that 
 in his time it was no longer employed in Holland, and its 
 disuse in Utrecht he attributes to a case in which a thief 
 procured the execution, after due torture and confession, 
 of a shoemaker, against whom he had brought a false 
 charge in revenge for the refusal of a pair of boots. 3 
 
 These efforts had little effect, but they manifest the pro- 
 
 1 Des magistrats recommendables par une grande capacity et par une 
 experience consommee, s'etant expliques sur ce genre de question, auroient 
 declare' qu'elle leur avoit toujours semblc - inutile, qu'il etoit rare que la ques- 
 tion prcparatoire eut tire la verite de la bouche d'un accuse\ et qu'il y avoit 
 de fortes raisons pour en supprimer l'usage. Declaration du 24 Aoflt, 1780 
 (Isambert, XXVII. 374). 
 
 u Nicolas is careful to assert his entire belief in the existence of sorcery and 
 his sincere desire for its punishment, and he is indignant at the popular 
 feeling which stigmatized those who wished for a reform in procedure as " avo- 
 cats des sorciers." 
 
 3 Bernhardi Diss. Inaug. cap. n. iv., x. Bernhardi ventured on the 
 use of very decided language in denunciation of tbe system. " Injustam, 
 iniquam, fallacem, insignium malorum promotricem, et deniqne orani divini 
 testimonii specie destitutam esse hanc violentam torturam et proinde ex foris 
 Christianorum rejiciendam intrepide assero." (Ibid. cap. i. 1.) 
 
 33 
 
386 TORTURE. 
 
 gress of enlightenment, and doubtless paved the way for 
 change, especially in the Prussian territories. Yet, in 1130, 
 we find the learned Baron Senckenberg reproducing Z an- 
 ger's treatise, not as an archaeological curiosity, but as a 
 practical text-book for the guidance of lawyers and judges. 
 Ten years later, however, the process of reform began in 
 earnest. Frederic the Great succeeded to the throne of 
 Prussia, May 31, 1740. Few of his projects of universal 
 philanthropy and philosophical regeneration of human 
 nature survived the hardening experiences of royal ambi- 
 tion, but, while his power was yet in its first bloom, he 
 made haste to get rid of this relic of mediaeval barbarism. 
 It was almost his earliest official act, for the cabinet order 
 abolishing torture is dated June 3d. 1 Yet even Frederic 
 could not absolutely shake off the traditional belief in its 
 necessity when the safety of the State or of the head of the 
 State was concerned. Treason and rebellion and some 
 other atrocious crimes were excepted from the reform ; and 
 in 1752, at the instance of his high chancellor, Cocceji, by 
 a special rescript, he ordered two citizens of Oschersleben 
 to be tortured on suspicion of robbery. 2 With singular 
 inconsistency, moreover, torture in a modified form was 
 long permitted in Prussia, not precisely as a means of in- 
 vestigation, but as a sort of punishment for obdurate 
 prisoners who would not confess, and as a means of mark- 
 ing them for subsequent recognition. 3 It is evident that 
 the abrogation of torture did not carry with it the removal 
 of the evils of the inquisitorial process. . 
 
 1 Carlyle, Hist. Friedrich II. Book xi. ch. i. 
 
 2 I find this statement in an account by G. F. Giinther (Lipsise, 1838) of 
 the abolition of torture in Saxony. 
 
 3 Giinther, op. cit. It appears that the authorities of Leipzig, in 1769, 
 when asked their opinion on the subject, reported their approval of the plan 
 then followed in the Prussian dominions. " In terris Borussicis tormenta 
 non plane esse abrogata, sed interdum adhuc adhiberi, non tantum ut rei 
 facinora commissa confiteri cogantur, sed etiam ne, qui pertinaciter nega- 
 rent, plane impunes evaderent ; imo interdum torqueri quasi memoriae causa, 
 videlicet ut nefarii homines, si rursus deliquerent, facilius cognoscerentur." 
 
A BBOG AT ION. 381 
 
 When tin* royal philosopher <>r Europe thus halted in 
 the reform, it is not aingalar that the more conservative 
 monarohfl around him should have paused before commit- 
 ting themselves to so great an innovation. From 1710 to 
 1783, Saxony was engaged in a thorough remodelling of her 
 system of criminal jurisprudence, in which the whole appa- 
 ratus of torture was swept away ; and in Switzerland and Aus- 
 tria it shared a Like fate about the same time. In Russia, 
 the Empress Catherine, in 1762, removed it from the jurisdic- 
 tion of the inferior courts, where it had been greatly abused ; 
 in 1767, by a secret order, it was restricted to cases in 
 which the confession of the accused proved actually indis- 
 pensable, and even in these it was only permitted under 
 special commands of governors of provinces. 1 These limita- 
 tions naturally soon rendered it almost obsolete, and it was 
 finally abolished in 1801. Yet, in some of the states of 
 Central Europe, the progress of enlightenment was wonder- 
 fully slow. Torture continued to disgrace the jurispru- 
 dence of Wirtemberg and Bavaria until 1806 and 1807 ; and 
 even the Napoleonic wars were unable to eradicate it, for 
 Hanover retained it until 1822, and Baden until 1831. 3 
 
 Even France had maintained a conservatism which may 
 seem surprising in that centre of the philosophic specula- 
 tion of the eighteenth century. Her leading writers had 
 not hesitated to condemn it. In the "Esprit des Lois," 
 published in 1748, Montesquieu stamped his reprobation 
 on the system with a quiet significance which showed that 
 he had on his side all the great thinkers of the age, and that 
 he felt argument to be mere surplusage. 3 Voltaire did not 
 
 1 Du Boys, Droit Criminel des Peuples Modernes, I. 620. 
 
 a Jardine, Use of Torture in England, p. 3. 
 
 3 Tant d'habiles gens et tant de beaux genies ont ecrit contre cette pra- 
 tique que je n'ose parler apres eux. J'allois dire qu'elle pourroit convenir 
 dans les gouvernements despotiques ; oa tout qui inspire la crainte entre 
 plus dans les ressorts du gouvernement : j'nllois dire que les esclaves, chez 
 
 les Grecs et chez les Rotnains Mais j'entends la voix de la nature qui 
 
 crie contre raoi Liv. vi. ch. xvii. 
 
388 TORTURE. 
 
 allow its absurdities and incongruities to escape, and in 
 1T?T he addressed an earnest request to Louis XVI. to 
 include it among the subjects of the reforms which marked 
 the opening of his reign. 1 Yet it was not until 1180 that 
 the question preparatoire was abolished by a royal edict 
 which, in a few weighty lines, indicated that only the reve- 
 rence for traditional usage had preserved it so long. 3 It is 
 probable, however, that this reform was not strictly carried 
 out, for, in 1188, another ordonnance commanded its ob- 
 servance, which would hardly have been necessary had not 
 some additional sanction been found requisite. 3 The ques- 
 tion definitive or prealable, by which the prisoner after 
 condemnation was again tortured to discover his accom- 
 plices, still remained until IT 88, when it, too, was abolished, 
 at least temporarily. It was pronounced uncertain, cruel 
 to the convict and perplexing to the judge, and, above all, 
 dangerous to the innocent whom the prisoner might name 
 in the extremity of his agony to procure its cessation, and 
 whom he would persist in accusing to preserve himself 
 from its repetition. Yet, with strange inconsistency, the 
 abolition of this cruel wrong was only provisional, and its 
 restoration was threatened in a few years, if the tribunals 
 should deem it necessary. 4 When those few short years 
 
 1 Cheruel, Diet. Hist, des Institutions de la France, P. II. p. 1220 (Paris, 
 1855). 
 
 2 Declaration du 24 Aout 1780 (Isambert, XXVII. 373). 
 
 3 Declaration du 3 Mai 1788, art. 8. "Notre declaration du 24 Aout sera 
 executee" (Isambert, XXIX. 532). 
 
 ' Ibid. (Isambert, XXIX. 529). It is noteworthy, as a sign of the temper 
 of the times, on the eve of the convocation of the Notables, that this edict, 
 which introduced various ameliorations in criminal procedure, and promised 
 a more thorough reform, invites from the community at large suggestions on 
 the subject, in order that the reform may embody the results of public 
 opinion "Nous eleverons ainsi au rang des lois les resultats de Topinion 
 publique." This was pure democratic republicanism in an irregular form. 
 
 The edict also indicates an intention to remove another of the blots on the 
 criminal procedure of the age, in a vague promise to allow the prisoner the 
 privilege of counsel. 
 
ABROGATION. 
 
 oame around, they dawned On a now France, from which 
 the old systems had boon swept away as by the besom of 
 destruction ; and torture as an element of criminal jurispru- 
 dence was a thing of the past. By the decree of October 
 9th, 1789, it was abolished forever. 
 
 In Italy, Beccaria, hi 1764, took occasion to devote a few 
 pages of his treatise on crimes and punishments to the sub- 
 ject of torture, and its illogical cruelty could not well be 
 exposed with more terseness and force. 1 It was probably 
 due to the movement excited by this work that in 1786 tor- 
 ture was formally abolished in Tuscany. Yet Italy, which 
 was the first to revive its use in the Middle Ages, was the 
 last to abandon it. Unless we may disbelieve all that is 
 told of the means adopted to preserve legitimacy against 
 revolutionism during the interval between Napoleon and 
 Garibaldi, the dungeons of Naples and Palermo may boast 
 of being the last European refuge of this relic of brutal and 
 unreasoning force. 
 
 In casting a retrospective glance over this long history 
 of cruelty and injustice, it is curious to observe that Chris- 
 tian communities, where the truths of the Gospel were 
 received with unquestioning veneration, systematized the 
 administration of torture with a cold-blooded ferocity 
 unknown to the legislation, of the heathen nations whence 
 they derived it. The careful restrictions and safeguards, 
 with which the Roman jurisprudence sought to protect 
 the interests of the accused, contrast strangely with the 
 reckless disregard of every principle of justice which sullies 
 the criminal procedure of Europe from the thirteenth 
 
 1 Dei Delitti e delle Pene xn. The fundamental error in the prevalent 
 system of criminal procedure is well exposed in Beccaria's remark that a 
 mathematician would he better than a legist for the solution of the essential 
 problem in criminal trials " Data la forza dei muscoli e la sensibilita, delle 
 fibre di un innocente, trovare il grado di dolore che lo fara confessar reo di 
 un d.i to delitto." 
 
 33* 
 
390 TORTURE. 
 
 almost to the nineteenth century. From this no race or 
 religion was exempt. What the Calvinist suffered in Flan- 
 ders, he inflicted in Scotland j what the Catholic enforced 
 in Italy, he endured in England; nor did either of them 
 deem that he was forfeiting his share in the Divine Evangel 
 of peace on earth and goodwill to men. 
 
 The mysteries of the human conscience and of human 
 motives are well nigh inscrutable, and it may seem shocking 
 to assert that these centuries of unmitigated wrong are 
 directly traceable to that religion of which the second 
 great commandment was that man should love his neighbor 
 as himself. Yet so it was. The first commandment, to 
 love God with all our heart, when perverted by supersti- 
 tion, gave a strange direction to the teachings of Christ. 
 For ages, the assumptions of an infallible church had led 
 men to believe that the interpreter was superior to Scrip- 
 ture. Every expounder of the holy text felt in his inmost 
 heart that he alone, with his fellows, worshipped God as 
 God desired to be worshipped, and that every ritual but 
 his own was an insult to the Divine nature. Outside of his 
 own communion there was no escape from eternal perdition, 
 and the fervor of religious conviction thus made persecu- 
 tion a duty to God and man. This led the Inquisition, as 
 we have seen, to perfect a system of which the iniquity was 
 complete. Thus commended, that system became part and 
 parcel of secular law, and when the Reformation arose, the 
 habits of thought which ages had consolidated were uni- 
 versal. The boldest Reformers who shook off the yoke of 
 Rome, as soon as they had attained power, had as little 
 scruple as Rome itself in rendering obligatory their inter- 
 pretation of divine truth, and in applying to secular as well 
 as to religious affairs the cruel maxims in which they had 
 been educated. 
 
 Yet, in the general enlightenment which caused and 
 accompanied the Reformation, there passed away gradually 
 the necessity which had created the rigid institutions of 
 
PROGRESS OP CIVILIZATION, 391 
 
 the Middle Ages. Those institutions had fulfilled their 
 mission, and the savage tribes thai had broken down the 
 worn-out civilization of Rome were at last becoming fitted 
 for I higher civilization than the world had yet seen, wherein 
 the preoepts of the Gospel might at length find practical 
 expression and realization. For the first time, in the his- 
 tory of man, the universal love and charity which lie at 
 the foundation of Christianity are recognized as the ele- 
 ments on which human society should be based. Weak 
 and erring as we are, and still far distant from the ideal of 
 the Saviour, yet are we; approaching it, even if our steps 
 are painful and hesitating. In the slow evolution of the 
 centuries, it may only be by comparing distant periods that 
 we can mark our progress; but progress nevertheless 
 exists, and future generations, perhaps, may be able to 
 emancipate themselves wholly from the cruel and arbitrary 
 domination of superstition and force. 
 
INDEX. 
 
 Abingdon, Abbey of, ordeal of 
 
 lot used by, 244 
 
 miraculous cross, 248 
 
 Abuses of the ordeal, 265, 272 
 
 of torture, 369 
 
 Accusatorial conjurators, 67 
 
 Accusers subjected to the ordeal, 253 
 Accuser obliged to inscribe him- 
 self, 290 
 even in the case of slaves, 296 
 subjected to lex talionis, 290 
 torture of the accused by the, 311 
 Admiralty courts, duel not allow- 
 ed in, 111 
 Adrian moderates use of torture, 297 
 Adultery, torture justified by, 290 
 Advowson, 133 
 Africa, numerous ordeals in, 182 
 Agobard, St., opposes the duel, 133 
 and the ordeal, 267 
 Alfonso the Wise of Castile, 312 
 restricts the duel, 150 
 the use of torture, 315 
 does not recognize ordeals, 276 
 Amasis of Egypt, 179 
 Amiens, nobles of, demand the 
 
 duel as a right, 161 
 
 Amsterdam, case of torture in, 366 
 Andrew, St., lance of, 211 
 
 Anglican Church adopts compur- 
 gation, 66 
 Anglo-Saxons, battle-ordeal un- 
 known to the, 83 
 torture not used by, 376 
 Anselm and the Church of Laon, 
 
 141, 222, 323 
 Antoninus Pius extends the tor- 
 ture of slaves, 292 
 forbids torture after convic- 
 tion, 296 
 Appeal to God in private quarrels, 249 
 Appeal of murder, 171 
 defended in Parliament in 
 1774, 172 
 
 Appeals always decided by duel, 91 
 how conducted in Germany, 94 
 from orders to torture, 316, 350 
 evaded, 363 
 
 Appellant vanquished, punish- 
 ment of, 113 
 lex talionis applied to, 114 
 Appellant, choice of weapons con- 
 ceded to, 117 
 Appellate power granted to Parle- 
 
 ment of Paris, 162 
 
 Arnustus and Abbey of Fleury, 235 
 Ashford v. Thornton, in 1818, 173 
 Assises de Jerusalem, 57, 207 
 
 torture in, 327 
 
 Atrocity of torture system, 369 
 
 Atto of Vercelli opposes the duel, 135 
 Audefroi-le-Batard, ballad by, 51 
 Augustus introduces torture of 
 
 freemen, 285 
 
 his opinion as to the torture 
 of slaves, 291 
 
 Austria, Dukes of, permitted to 
 
 employ champions, 101 
 
 torture abolished in, 387 
 
 Avitusof Vienne opposes theduel, 133 
 
 Ayeen Akbery, 179 
 
 Bacon, Lord, recommends tor- 
 ture, 379 
 Baden, torture abolished, 1831, 387 
 Bahr-recht, 247 
 Bail required of parties to duel, 116 
 responsibility of, 166 
 Balance, ordeal of, 224 
 used as late as 1728, 225 
 form employed in India, 225 
 Barbarians, ordeals indigenous 
 
 among, 188 
 
 contrast between them and 
 
 Rome, 300 
 
 nature of their institutions, 301 
 torture for freemen unknown 
 
 to their laws, 302 
 
394 
 
 INDEX. 
 
 Barbarians, torture 
 
 
 Battle, ordeal 
 
 
 of slaves, 
 
 302 
 
 champions, employment of, 
 
 119 
 
 interests of the owner pro- 
 
 
 derived from witnesses, 
 
 120 
 
 tected, 
 
 303 
 
 penalties on defeated, 
 
 122 
 
 no torture of witnesses, 
 
 304 
 
 professional, 
 
 123 
 
 disregard of the law by the 
 
 
 their degradation, 
 
 125 
 
 Merovingians, 
 
 305 
 
 restrictions on use 
 
 
 Battle ordeal, distinguished from 
 
 
 of, 
 
 126 
 
 duel, 
 
 75 
 
 of communes, 
 
 131 
 
 origin attributed to Cain and 
 
 
 of churches, 
 
 132 
 
 Abel, 
 
 79 
 
 opposition of the church, 
 
 133 
 
 in Spain at Roman conquest 
 
 79 
 
 encouraged by the Saxon 
 
 
 not used by ancient Gauls 
 
 
 Othos. 
 
 135 
 
 and Germans, 
 
 79 
 
 employed in diplomacy, 
 
 136 
 
 among ancient Danes and 
 
 
 forced upon the church, 
 
 137 
 
 Irish, 
 
 80 
 
 universal in 10th and 11th 
 
 
 the Burgundians, 
 
 81 
 
 centuries, 
 
 138 
 
 the Franks, 
 
 81 
 
 noteworthy cases of its em- 
 
 
 the Lombards, 
 
 82 
 
 ployment, 
 
 139 
 
 unknown among Anglo- 
 
 
 explanations of its injustice, 
 
 141 
 
 Saxons, 
 
 83 
 
 abrogated in Iceland, 
 
 142 
 
 introduced by William the 
 
 
 in Denmark, 
 
 143 
 
 Conqueror, 
 
 83 
 
 influence of the Tiers-Etat, 
 
 143 
 
 unknown to the Wisigothic 
 
 
 of commerce, 
 
 145 
 
 laws, 
 
 84 
 
 of the church, 
 
 147 
 
 used by the Pannonian Goths 
 
 , 85 
 
 of the Roman law, 
 
 148 
 
 and Sclavonic tribes, 
 
 85 
 
 efforts to restrict it in the 
 
 
 employed as a remedy for 
 
 
 13th century, 
 
 149 
 
 perjury, 
 
 86 
 
 abolished in Majorca in 1248, 
 
 150 
 
 originally confined to doubt- 
 
 
 restricted by Alfonso the 
 
 
 ful cases, 
 
 87 
 
 Wise, 
 
 150 
 
 its use extended by challen- 
 
 
 by St. Louis, 
 
 152 
 
 ging witnesses, 
 
 88 
 
 opposition of feudalism, 
 
 154 
 
 and judges, 
 
 90 
 
 legislation of Philippe-le-Bel 
 
 157 
 
 appeals always conducted in 
 
 
 efforts of the Parlement, 
 
 159 
 
 this manner, 
 
 92 
 
 reaction under Louis X., 
 
 161 
 
 slender restrictions on, 
 
 95 
 
 persistent popular faith, 
 
 162 
 
 minimum value for which 
 
 
 gradual decline in the 14th 
 
 
 allowed, 
 
 99 
 
 and 15th centuries, 
 
 163 
 
 lofty rank no exemption, 
 
 100 
 
 revived by English occupa- 
 
 
 used in international ques- 
 
 
 tion, 
 
 164 
 
 tions, 
 
 101 
 
 becomes obsolete in 16th 
 
 
 humblest classes subjected 
 
 
 century, 
 
 167 
 
 to it, 
 
 102 
 
 restricted in Hungary in 
 
 
 between parties of different 
 
 
 1492, 
 
 168 
 
 conditions, 
 
 103 
 
 Julius II. prohibits it in 
 
 
 women and men, 
 
 105 
 
 1505, 
 
 169 
 
 ecclesiastics, 
 
 106 
 
 prevails in Russia until 1649, 
 
 169 
 
 and laymen. 
 
 107 
 
 in Scotland in 16th century, 
 
 170 
 
 in ecclesiastical courts, 
 
 109 
 
 in England in 16th and 17th 
 
 
 in admiralty courts, 
 
 111 
 
 centuries, 
 
 171 
 
 forms and ceremonies of, 
 
 112 
 
 abrogated in 1819, 
 
 174 
 
 oath preliminary to, 
 
 112 
 
 Bavaria, torture abolished, 1807, 
 
 387 
 
 consequences of defeat, 
 
 113 
 
 Beam, compurgation in 18th 
 
 
 lex talionis, 
 
 114 
 
 century, 
 
 61 
 
 bail required of contestants, 
 
 116 
 
 restrictions on the duel in, 
 
 98 
 
 punishment for default, 
 
 116 
 
 duel in code of 1552, 
 
 165 
 
 choice of weapons, 
 
 117 
 
 torture not used in 1288, 
 
 333 
 
INK I X. 
 
 395 
 
 Beaumanoir, Coutumes du Beau- 
 
 voisis, 57 
 
 opinion of the duel, 156 
 
 no allusions to ordeal in, 275 
 
 no allusions to torture in, 334 
 
 Beccaria argues against torture, 389 
 
 Belgium, case of water-ordeal in 
 
 1815, 229 
 
 Bera nnd Sanila, duel of, 85 
 
 Bernard (St.) approves the ordeal, 
 
 268 
 Bernhardi, Mart., argues against 
 
 torture, 385 
 
 Bignon, Jerome, his testimony 
 
 as to water-ordeal, 227 
 
 Bitter water, ordeal of, 180 
 
 Blois, ordonnance of in 1498, 349 
 
 Blood, ordeal of, 245 
 
 examples of its use, 245 
 
 employed in the 17th century, 
 
 246-7 
 
 not used in primitive times, 247 
 
 belief in, still existing, 247 
 
 in 1825, in New York, 259 
 
 Bobenzan, Dr., case of, 357 
 
 Boden, Heinrich von, tract on 
 
 torture, 355 
 
 deplores abuses of torture, 385 
 
 Boot, the, a Scottish torture, 383 
 
 Bordeaux, torture little used, 343 
 
 Bothwell claims the duel in 1567, 170 
 
 Bread, ordeal of, 232 
 
 formulas of, 233 
 
 chiefly used by Anglo-Saxons, 
 
 235 
 employed in the 1 7th century, 235 
 form used in India, 236 
 
 Bulgarians, use of torture in 9th 
 
 century, 325 
 
 Burgundy, nobles of, demand the 
 
 duel as a right, 161 
 
 Burke, defends the appeal of mur- 
 der in 1774, 173 
 
 Calabar bean, ordeal of, 183 
 
 Caligula, appetite for human suf- 
 fering, 286 
 Caracalla, torture of women for 
 
 poisoning, 290 
 
 Carlovingians, torture not used 
 
 for evidence under, 318 
 
 torture as punishment, 319 
 
 torture unnecessary, 319 
 
 incompatible with forms of 
 
 procedure, 320 
 
 Caroline Constitutions, 353 
 
 Carrouges and Jacques le Gris, 
 
 duel between, 163 
 
 Caschielawis, a Scottish torture, 383 
 Celestin III. prohibits the duel, 147 
 Champii^iif, nobles of, demand 
 
 the duel, 161 
 
 protest against torture, 341 
 
 charters of in 1315, 341 
 
 Champion of England, 101 
 
 Champions furnished by suzerain, 105 
 
 weapons of, 117 
 
 employment of, 119 
 
 selected from the family, 119 
 
 as witnesses, 120 
 
 hired, 121 
 
 defeated, punishment of, 122 
 
 professional, 123 
 
 identified with gladiators, 124 
 
 degradation of, 125 
 
 restrictions on use of, 126 
 
 generally employed in civil 
 
 cases, 128 
 
 equality preserved between, 130 
 
 for communities, 131 
 
 in the ordeal, 260 
 
 Charlemagne's use of ordeal of 
 
 cross, 230 
 
 decrees confidence in ordeal, 263 
 
 character of his legislation, 318 
 
 Charles of Anjou, 77 
 
 Charles VI. assumes sole power 
 
 to grant the duel, 164 
 
 Charles the Good of Flanders, 263 
 Charles V., criminal code of, 353 
 Charters granting ordeal to 
 
 churches, 271 
 
 granted by Louis Hutin 340 
 
 Chastaigneraye and Jarnac, duel 
 
 between, 167 
 
 Chatelet of Paris, use of torture, 344 
 Children as compurgators, 38 
 
 China, ancient form of belief in, 176 
 Chou-King, or sacred book of 
 
 China, 177 
 
 Christians, tortured under Nero, 28& 
 special edicts of Diocletian, 287 
 Christianity, influence of, 295, 390 
 Christiern V. of Denmark, laws of, 375 
 Church, profits derived from ad- 
 ministering oaths, 23 
 not exempted from the duel, 106 
 champions of, 132 
 opposition to the duel, 133, 147 
 relations of to the ordeal 266 
 adverse to torture in ninth 
 
 century, 319 
 
 hostile to torture until 13th 
 
 century, 325 
 
 influence in introducing tor- 
 ture, 330 
 
396 
 
 INDEX. 
 
 Cicero, varying opinions of tor- 
 ture, 298 
 Civil suits, torture in, 362 
 Class privileges, 19 
 Claudius, fondness for witnessing 
 
 torture, 286 
 
 Clergy, exemption of from tor- 
 ture, 317 
 Clovis and the vase of Soissons, 301 
 Coke, Sir Edward, administers 
 
 torture, 379 
 
 Colbert, revision of criminal law 
 
 by, 352 
 
 Cold-water ordeal (see Water). 
 Coloman, St., tortured to death, 322 
 Commerce, influence of, on the 
 
 duel, 158 
 
 on ordeal, 247 
 
 Communes, champions of, 131 
 
 influence of, on the duel, 143 
 
 on ordeals, 277 
 
 averse to torture, 342 
 
 Compurgators (see Co?ijurators). 
 
 Compurgation, 24 
 
 universal use of, 24 
 
 antiquity of, 25 
 
 adopted by the church 26 
 
 specially used by ecclesiastics, 
 
 29 
 modes of administering oath, 38 
 legal value of, 39 
 
 as a substitute for deficient 
 
 testimony, 40 
 
 little confidence inspired by 
 
 it, 45 
 
 safeguards of the system, 49 
 
 perjury occasioned by it, 50 
 
 in England, 53 
 
 in the thirteenth century, 57 
 undermined by the Roman 
 
 law, 57 
 
 in Normandy till 1583, 60 
 
 | in Beam till 18th century, 16 
 in Spain in 14th century, 61 
 
 in Germany in 1548, 62 
 
 in Scotland in 14th century, 62 
 in Denmark in 1683, 63 
 
 in Sweden in 1653 63 
 
 in Poland in 18th century, 63 
 in England until 19th cen- 
 tury, 64, 65 
 preserved by the church, 65 
 adopted by Anglican church, 66 
 Compounding for the ordeal, 262 
 Confession under torture retracted, 
 
 367 
 
 estimate of, 368 
 
 Confidence reposed in the ordeal.. 261 
 
 Confidence in evidence by tor- 
 ture, 297, 367 
 Confucius, 177 
 Conjurators, 24 
 generally kinsmen, 30 
 number required, 31 
 modes of selecting, 35 
 comparison with witnesses, 46 
 held guilty of perjury, 47 
 penalties inflicted on, 48 
 accusatorial 67 
 in Swabia 70 
 in the Fehmgericht, 70 
 in Britanny, 70 
 Conrad of Marburg, Grand In- 
 quisitor, 58, 270, 272 
 Constantine, torture of freemen 
 
 authorized by, 290 
 
 Constitutiones Sicularum, 
 
 57, 149, 274, 329 
 Conversion of Danes by ordeal of 
 
 hot iron, 206 
 
 Convicts not tortured for evi- 
 dence under Roman law, 296 
 tortured under modern laws, 
 
 351, 361, 369 
 Corsica, torture in 14th century, 344 
 Corsnaed, 322 
 
 Coucy, Enguerrand de, 156 
 
 Coucy, Jacques de, case of 351 
 
 Council of Valence denounces 
 
 the duel, 134 
 
 of Lateran, duel prohibited 
 
 by, 147 
 
 ceremonies of ordeal in- 
 terdicted by, 272 
 Courts liable to challenge by de- 
 feated pleaders, 90 
 admiralty, 111, 278 
 Cous (les) lou roi, 110 
 Crimen majestatis, freemen lia- 
 ble to torture for, 285 
 extended application of, 286 
 slaves tortured against mas- 
 ters in, 294 
 in modern times, 314, 317, 340, 
 344, 356, 379, 386 
 Cripples forced to furnish cham- 
 pions, 105 
 Cross, ordeal of, 230 
 earliest instance in 752, 230 
 favored by Charlemagne, 230 
 substitutes allowed in, 231 
 variations of, 231 
 forbidden by Louis-le-Dcbon- 
 
 naire, 231 
 
 again favored by him, 232 
 
 soon disappears, 232 
 
i \ D i; x 
 
 397 
 
 Colin, svnoii of, sondemni water 
 
 ordeal in 17 1."', 228 
 
 DAM \hks for tortured slave?, 284 
 Danes converted by ordenl of 
 
 lint-iron, 20C 
 
 Dant/.ie, case of water ordeal in 
 
 1836, 229 
 
 Deaf and dumb liable to torture, 360 
 Deceit authorized to obtain con- 
 fessions, 373 
 Deeurions not liable to torture, 289 
 Defaulters in duel punished, 116 
 Defeat in duel a conviction of 
 
 perjury, 112 
 
 Defendant, vanquished, punish- 
 ment of, 113 
 choice of weapons conceded 
 to, 118 
 Defence, hopelessness of under 
 
 torture system, 360 
 
 Degradation of professional 
 
 champions, 125 
 
 Del Rio, his instructions as to 
 
 torture, 363, 373 
 
 Denmark, compurgation in 1683, 63 
 antiquity of battle ordeal in, 80 
 duel abrogated in, 143 
 
 ordeal abolished in 13th cen- 
 tury, 274 
 torture not legalized until 
 1683, 375 
 Desrene, 60 
 Diocletian, his persecution of 
 
 Christians, 288 
 
 forbids the torture of soldiers 
 
 and others, 289 
 
 restricts use of torture, 297 
 
 Divining rod, 279 
 
 Divination by lot forbidden by 
 
 the church, 243 
 
 Doctors exempt from torture, 314 ; 
 Dog of Montargis, 162 | 
 
 Domitian, torture of patrician by, 290 
 Doubtful results of ordeal, 265 
 
 Duel, judicial (see Battte Ordeal). 
 Duels, prevalence of under Henry 
 
 IV., 78 
 
 Dunning, defends the appeal of 
 murder in 1774, 173 
 
 Eccelino di Romano, 329 
 Ecclesiastical courts, use of com- 
 purgation by, 66 
 jurisdiction over duels, 109 
 opposition to the ordeal, 207 
 Ecclesiastics and women uot al- 
 lowed to testify, 89 
 
 34 
 
 til sties 
 obliged to undergo the duel, 100 
 struggle to maintain the 
 
 duel, 110 
 
 and the ordeal, 271 
 
 claim exemption from ordeal, 269 
 not liable to torture, 317 
 
 their presence at torture pro- 
 hibited, 320 
 Edictum Theoderici, 84 
 Egypt, traces of ordeal in, I 7'.> 
 Egyptians, torture not used by, 282 
 Klfstan of Winchester, case of, 200 
 Emerich von Rosbach, Processus 
 
 Criminalis, 355 
 
 England, compurgation used un- 
 til 19th century, 64, 65 
 battle ordeal introduced at 
 
 the Conquest, 83 
 
 restrictions on the duel in, 97 
 duel in civil suits until 1571, 171 
 duel in criminal cases until 
 
 1819, 17:5 
 
 ordeal abolished in 1219, 273 
 torture under King Stephen, 324 
 history of torture in, 376 
 
 not recognized by common 
 
 law, 377 
 
 used under royal prerogative, 378 
 
 abandoned after 1640, 381 
 
 except in cases of witchcraft, 38 1 
 
 Peine forte et dure, 384 
 
 Epicharis, fortitude of, 288 
 
 Equality of weapons in the duel, 118 
 
 Erfurt, torture of inhabitants of, 324 
 
 Estimate of extorted confession, 368 
 
 Estrapade, torture of, 316, 351 
 
 Etablissements of St Louis, 153 
 
 no allusions to ordeal, 275 
 
 no allusions to torture, 333 
 
 Eucharist, miraculous powers of 
 
 the, 241 
 
 ordeal of, 236 
 
 formulas of, 237 
 
 used in 7th eentury, 237 
 cases of its employment, 238 
 forbidden by Robert the 
 
 Pious, 239 
 
 and by Gregory VII., 239 
 other cases of its use, 241 
 Eugenius II. introduces the cold 
 
 water ordeal, 218 
 
 European ordeals identical with 
 
 Indian, 178 
 
 Evidence, varieties of, 17 
 
 of relatives, 30 
 
 by torture, value of, 297 
 
 Exemption of nobles from torture, 314 
 
398 
 
 INDEX. 
 
 Experimentum crucis, 
 
 232 
 
 False decretals disapprove of 
 
 torture, 326 
 
 Family, responsibility of the, 15 
 
 champions furnished by, 119 
 
 Fees to priests for the ordeal, 271 
 
 Fehmgericht, accusatorial oaths 
 
 in the, 70 
 
 Feini, antiquity of battle ordeal 
 
 among, 80 
 
 the ordeal indigenous among, 190 
 Fendilles and des Guerres, duel 
 
 between, 167 
 
 Feudal efforts to maintain the 
 
 duel, 154 
 
 to resist torture, 339 
 
 Feudalism weakened by the Ro- 
 man law, 148 
 not favorable to torture, 321 
 justice still rendered in pub- 
 lic, 321 
 occasional allusions to tor- 
 ture, 322 
 torture used to extort money, 324 
 opposition to torture in 1315, 339 
 Fian, Dr., case of, 383 
 Fire, ordeal of, 208 
 at first used for slaves and 
 
 strangers, 208 
 
 case of Petrus Igneus, 209 
 
 Grossolano of Milan, 210 
 the lance of St. An- 
 drew, 211 
 St. Francis of Assisi, 212 
 Savonarola, 213 
 generally an ecclesiastical 
 
 ordeal, 215 
 
 relics tested by, 216 
 
 Fontaines, Pierre de, 58 
 
 opinion of the duel, 156 
 
 no allusions to ordeal in, 275 
 
 no allusions to torture in, 334 
 
 Fore-oath of Anglo-Saxons, 68 
 
 For de Beam, compurgation in, 
 
 38, 43, 61 
 
 duel in, 165 
 
 no allusions to torture in, 333 
 
 Formula of eompurgatorial oath, 43 
 
 Fountains, miraculous, 185 
 
 France, restrictions on the duel 
 
 in, % 95 
 
 struggle to abolish the duel 
 
 in, 152 
 
 duel never formally abol- 
 ished, 168 
 cold water ordeal in 17th 
 century, 227 
 
 France 
 
 ordeal obsolete in 13th cen- 
 tury, - 275 
 torture appears in 1254, 332 
 scarcely used, 333 
 condition of roturiers, 335 
 cases reported in the Olim, 336 
 opposition of feudalism, 339 
 charters granted by Louis 
 
 Hutin, 340 
 
 torture permanently estab- 
 lished, 342 
 exceptions among com- 
 munes, 342 
 torture universal by end of 
 
 14th century, 344 
 
 procedure adopted in 1498, 349 
 perfected in 1539, 350 
 
 question preparatoire and 
 
 prealable, 350 
 
 question ordinaire and ex- 
 traordinaire, 351 
 ordonnance of 1670, 352 
 torture abolished 1780-89, 388 
 Francis I., 77 
 duel ordered by, 166 
 perfects the system of tor- 
 ture, 350 
 Francis of Assisi, St., case of, 212 
 Fredegonda, 31, 305 
 Frederic I. uses torture as pun- 
 ishment, 323 
 Frederic II., 57 
 restricts the duel, 149 
 abolishes ordeal in 1231, 274 
 introduces torture, 329 
 Frederick the Great limits use of 
 
 torture, 386 
 
 Freedmen not tortured against 
 
 their patrons, 293 
 
 doubt as to their liability to 
 
 torture, 293 
 
 not tortured by Ostrogoths, 307 
 Freemen of Rome not liable to 
 
 torture, 285 
 
 torture of, legalized, 288 
 
 Frisia, ordeals used in the 13th 
 
 century, 274 
 
 Frisians, ordeal of lot among the, 243 
 Fuero Juzgo, 312 
 
 Gauls, torture among the an- 
 cient, 303 
 Gentoo code, 179 
 Germans, ancient, 15 
 Germany, compurgation in 1548, 62 
 restrictions on the duel in, 96 
 ordeal in 14th century, 275 
 
INDEX 
 
 :;:)'. 
 
 (.'.nn any 
 
 tyranny of the DOblM, 
 torture sot in early eodti 
 torture of slaves in ISM, 
 torture in, 
 Constitutions of Charles V., 353 
 torture system from 16th to 
 
 18th century, 355 
 
 gradual abolition of torture, 386 
 
 Gladiators tortured as witnesses, 291 
 
 (<>d\vin, Duke of Kent, case of, 
 
 Golden Bull of 1356, 
 
 Gothic ritual maintained by duel 
 
 and ordeal, 138, 
 
 Qothf, l'iinnonian, battle ordeal 
 
 used by the, 85, 
 
 civilization of the, 84, 
 
 Graefe, Johann, argues against 
 
 torture, 
 Grandier, Urbain, case or, 
 Gratian disapproves of torture, 
 Greek Empire, Lower,ordeal used 
 
 in, 
 Greece, ordeal anciently used in, 
 torture prevalent in, 
 confined by law to slaves, 
 exceptions to this, 
 slave testimony the best evi- 
 dence, 
 damages of tortured slave 
 
 paid for, 
 modes of torture in vogue, 
 Gregory of Tours, case of, 21, 
 Gregory I. disapproves of tor- 
 ture, 
 Grimoald restricts the battle 
 
 ordeal, 
 Grossolano of Milan, case of, 
 Guebres, the, 
 
 Guelf II. of Altorf, case of, 
 Gundeberga, case of Queen, 
 
 827 
 
 :;n 
 353 
 
 233 
 344 
 
 215 
 
 190 
 306 
 
 384 
 371 
 326 
 
 207 
 184 
 282 
 283 
 283 
 
 283 
 
 284 
 284 
 305 
 
 325 
 
 82 
 210 
 181 
 220 
 
 82 
 
 Haxover, torture abolished, 
 
 1822, 387 
 
 Hebrews, ordeals of the, 180 
 
 Henry II. (St.) challenged by 
 Hermann of Swabia, 100 
 
 Henry the Lion, 140 
 
 Henry II. of Navarre orders the 
 duel in 1518, 166 
 
 Henry II. of France, last duel 
 granted by, 167 
 
 Henry of Limburg and the Arch- 
 bishop of Treves, 236 
 
 Henry IV. (Emp ) and ordeal of 
 Eucharist, 239 
 
 Henry III. abolishes ordeal in 
 Enghind, 273 
 
 Heresy, torture in trials of, 317, 880 
 Hildebert of Io Mans disapproves 
 
 of torture, l','22 
 
 llillchrand condemned by cold 
 
 water ordeal, 221 
 
 his use of ordeal of Eucha- 
 rist, 239 
 Hincmar of Rheims, his argu- 
 ments for ordeal, 199 
 explanation of hot water 
 
 ordeal, 196, 199 
 
 of cold water ordeal, 217 
 
 Holland, torture abandoned in, 385 
 
 Hungary, duel restricted in 1492, 168 
 
 use of torture in, 345 
 
 Iceland, duel abrogated in, 142 
 ordeal abolished in 13th cen- 
 tury, 274 
 torture in, 374 
 used on pregnant women, 374 
 abolished in 1258, 375 
 Ictus capituli, 110 
 regis, 110 
 Imagination, effects of ordeal on, 259 
 Independence of the Teuton 
 
 tribes, 301 
 India, antiquity of ordeal in, 178 
 ordeals identical with Euro- 
 pean, 178 
 modern use of ordeal, 179 
 hot water ordeal, 201 
 red-hot iron ordeal, 202 
 cold water ordeal, 217 
 trial by balance, 225 
 ordeal of rice, 236 
 of the lot, 245 
 poison ordeal, 250 
 Influence derived from ordeal, 271 
 of Roman laws in modern 
 times, 300 
 Innocent III. alters the compur- 
 
 gatorial oath, 54 
 forbids ecclesiastical duels, 107 
 prohibits the duel, 147 
 the ordeal, 272 
 Innocent IV., statutes of inqui- 
 sition, 330 
 Inquisition, use of compurgation 
 
 by, 58, 65 
 influence of, on torture, 330 
 system of investigation, 331 
 influence on judicial pro- 
 ceedings, 348, 370 
 system in the 17th century, 372 
 Inquisitorial process introduced, 348 
 perfected by Francis I., 350 
 hopelessness of defence, 360 
 
400 
 
 INDEX. 
 
 Insane not to be tortured, 359 
 Inscription of accuser, 290, 297 
 Internationa] questions referred 
 
 to the duel, 101 
 Ireland, antiquity of battle 
 
 ordeal in, SO 
 Irish, the ordeal indigenous 
 
 among the, 190 
 
 Iron, red-hot, ordeal of, 201 
 
 mode of administering, 201 
 
 in India, 202 
 
 sometimes an aristocratic 
 
 ordeal, 203 
 cases of its employment, 204 
 used to prove legitimacy, 205 
 extent of its use, 207 
 bands as punishment and or- 
 deal, 248 
 Irregular ordeals, 248 
 Italy, the duel prohibited in 1505, 169 
 torture first revived in, 328 
 recent use of torture in, 389 
 Ivo of Chartres, 268 
 declines to adjudge the duel, 1 09 
 
 James I. approves the ordeal of 
 
 blood, 246 
 
 eulogizes water ordeal, 228 
 
 administers torture, 383 
 
 Japanese ordeals, 180 
 
 Jarnac and La Chastaigneraye, 78 
 Java, ordeals in, 181 
 
 Jayme I. of Aragon, abolishes 
 
 ordeals, 276 
 
 Jeanne of France, case of, 160 
 
 Jeffniteed, 69 
 
 Jews liable to the duel, 103 
 
 Jovem lapidem jurare, 187 
 
 Judges liable to challenge by de- 
 feated pleaders, 90 
 royal, not liable to challenge, 93 
 liability of, for undue tor- 
 ture, 310, 315, 355, 364 
 torture dependent on their 
 
 discretion, 358, 361 
 
 influence of torture system 
 on, 365 
 
 Judicial duel. (See Battle Or deal.) 
 Juise, 201, 207 
 
 Julius II. prohibits the duel in 
 
 1505, 169 
 
 Juramentum supermortuum, 41 
 
 Jury-trial, probable origin of, 36 
 
 among Scandinavian nations, 375 
 
 Justice, publicity of, under Car- 
 
 lovingians, 320 
 
 Justinian authorizes torture for 
 adultery, 290 
 
 Kindred, responsibility of, 15 
 
 Kinsmen, evidence of, 30 
 
 Koran, absence of ordeal in, 182 
 
 La Chastaigneraye, 78 
 
 Lamoignon endeavors to amelio- 
 rate the law, 352 
 Lance of St. Andrew, case of, 211 
 Languedoc. charter of, in 1315, 340 
 Lang (J. P.), in 1661, hesitates 
 
 to condemn water ordeal, 228 
 
 Laon, robb'ery of church of, 
 
 141, 222, 323 
 Lateran, council of, prohibits the 
 
 duel, 141 
 
 prohibits ordeal, 272 
 
 Latins, traces of ordeals among, 186 
 Legislative functions of duel, 135, 140 
 Leo III., trial of, by Charlemagne, 27 
 Lose Majeste (see Crimen Majestatis) . 
 Leudastes, case of, 305 
 
 Lex apparens, or paribilis, 100 
 
 Gundebalda, 81 
 
 Monachorum, 268 
 
 talionis for defeated appel- 
 lant, 114 
 accuser subject to, in 
 
 Rome, 290 
 
 under Wisigothic code, 310 
 
 Lille, compurgatorial oaths in, 60 
 
 torture unused in 1354, 343 
 
 Limitations of torture disregarded, 
 
 363 
 
 Livres de Jostice et de Plet, 333 
 
 Lombard law, 82 
 
 Lot, ordeal of, among the Hebrews, 180 
 
 in the middle ages, 242 
 
 used in the earliest times, 242 
 
 form employed by the Frisians, 
 
 243 
 examples of its use, 244 
 
 form used in India, 245 
 
 Lothuir and Teutberga, case of, 
 
 199, 238 
 Lothair II., tortures the citizens 
 
 of Erfurt, 324 
 
 Louis le Debonnaire prohibits the 
 
 cold water ordeal, 219 
 
 forbids ordeal of cross, 231 
 
 resumes its use, 232 
 
 Louis, St., his efforts to abolish 
 
 the duel, 152 
 
 sanctions use of torture, 332 
 
 equity of his procedures, 348 
 
 Louis Hutin maintains the use of 
 
 torture, 339 
 
 Louis XIV. revises the criminal 
 code, 352 
 
N i > I : x 
 
 401 
 
 Low vs. Paramore, one of in 
 
 1571, 171 
 
 Loj Qombetto, 81 
 
 Luitprand rest riots the battle or- 
 deal, 89 
 
 Madagascar, ordeal in, 184 
 
 Magicians liable to torture under 
 
 Ostrogoths, 308 
 
 torture requisite in trials of, 370 
 Majestatis (see Crimen Ma jest at is) . 
 Majorca, duel abolished in, 150 
 
 Malacca, ordeals in, 181 
 
 Manassas, Archbishop of Rheims, 46 
 Manu, laws of, importance of 
 
 oath in, 20 
 
 ordeals indicated in, 177 
 
 torture not alluded to, 281 
 
 Marc of silver,. 99 
 
 Marigny, Enguerrand de, 338 
 
 Maritime laws, 111, 278 
 
 Masserano, Marquis of, 362 
 
 Merovingians, their disregard of 
 
 the law, 305 
 
 Milanese judge, case of, 366 
 
 Moine de Caen, torture of, 351 
 
 Monachorum Lex, 268 
 
 Montaigne ridicules torture, 384 
 
 Montesquieu argues against tor- 
 ture, 387 
 Mosaic law, ordeals in, 180 
 
 torture not alludedto, 282 
 
 Moslems, traces of ordeals among, 182 
 Mou-Vang,instructions to judges, 177 
 Mozarabic ritual maintained by 
 
 duel and ordeal, 138, 215 
 
 Muratori, his belief in water or- 
 deal, 228 
 
 Naples, duel restricted in, 149 
 
 ordeal abolished in 1231, 274 
 first appearance of torture, 328 
 recent use of torture in, 389 
 
 Nefninge, or Danish jury, 375 
 
 Nempdarii, or Swedish jury, 376 
 
 Nero, cruelties inflicted on Chris- 
 tians, 287 
 Newald (Hermann) deprecates 
 
 water ordeal. 226 
 
 Nicholas I. forbids ecclesiastical 
 
 duels, 107 
 
 opposes the duel, 134 
 
 prohibits torture, 325 
 
 Nicolas, Augustin, writes against 
 
 torture, 385 
 
 Nithstong, 116 
 
 Nobles of France demand the 
 duel in 1315, 161 
 
 Nobles, Immunity from torture, 
 
 814, 817, 866 
 
 Norland, Bishop of Autun, 45. 50 
 Normandy, compurgation in 16th 
 
 century, 60 
 
 duel legal until 1583, 165 
 
 charters of in 1315, 340 
 
 Norway, ordeal abolished in 13th 
 
 century, 274 
 
 Oath, importance of in Roman 
 
 law, 18 
 
 of negation not sufficient in 
 
 primitive times, 18 
 
 in Germany, 19 
 
 multiplied, 21 
 
 classification of, 22, 35 
 
 adjuncts essential to, 22 
 
 of ecclesiastics, 27 
 
 compurgatorial formula of, 43, 54 
 altered by the church, 54 
 modes of administering, 38 
 sepulchral, 41 
 
 accusatorial, classification of 
 
 in Bordeaux, 69 
 
 preliminary to the duel, 112 
 
 purgatorial considered as or- 
 deal. 195, 248 
 Oflje judicium, 232 
 Olim, the, 58 
 cases of torture reported in, 336 
 Opposition of the church to the 
 
 duel, 133 
 
 of papacy to ordeal, 267 
 
 Ordeal of battle (see Battle Ordeal). 
 Ordeal, China an exception to its 
 
 prevalence, 176 
 
 India, its antiquity in, 178 
 
 identity in India and Europe, 178 
 Egypt, traces in, 179 
 
 among the Hebrews, 180 
 
 in Eastern Asia, 180 
 
 traces of among the Moslems, 182 
 in Polynesia, 182 
 
 numerous in Africa, 182 
 
 in Madagascar, 184 
 
 in ancient Greece, 184 
 
 traces of among the Latins, 186 
 indigenous among the Bar- 
 barians, 188 
 universal throughout Europe, 192 
 varieties of, 196 
 of boiling water, 196 
 of red-hot iron, 201 
 of fire, 208 
 of cold water, 216 
 of the balance, 224 
 of the cross, 230 
 
 34* 
 
402 
 
 INDEX. 
 
 
 Orde.il 
 
 
 Ordeal 
 
 
 of bread or cheese, 
 
 232 
 
 influence of Roman law, 
 
 277 
 
 of the Eucharist, 
 
 236 
 
 of communes, 
 
 277 
 
 of the lot, 
 
 242 
 
 of commerce, 
 
 27S 
 
 of blood, 
 
 245 
 
 Ordonnance of 1260, 
 
 153 
 
 of purgatorial oaths, 
 
 248 
 
 of 1293 and 1303, 
 
 157 
 
 irregular, 
 
 248 
 
 of 1306, 
 
 158 
 
 of poison, 
 
 250 
 
 of 1566, 
 
 168 
 
 regulations of the ordeal, 
 
 250 
 
 of 1254, 332 
 
 , 335 
 
 compulsory under order of 
 
 of 1498, 
 
 349 
 
 court, 
 
 250 
 
 of 1539, 
 
 350 
 
 in absence of direct testi- 
 
 
 of 1670, 
 
 352 
 
 mony, 
 
 251 
 
 Ostrogoths, civilization of, 
 
 307 
 
 right of appellant or defend- 
 
 
 torture not used for freemen 
 
 ,307 
 
 ant to demand it, 
 
 251 
 
 but for slaves, 
 
 307 
 
 accusers obliged to undergo it 
 
 ,253 
 
 Otfrid reduces the Tudesque tc 
 
 
 employed in default of com- 
 
 
 writing, 
 
 188 
 
 purgation, 
 
 253 
 
 Otho I. encourages the duel, 
 
 135 
 
 regarded as a punishment, 
 
 255 
 
 Otho II. extends its application, 
 
 137 
 
 employed as a torture, 
 
 257 
 
 Otho of Bavaria, 
 
 139 
 
 supplanted by torture, 
 
 258 
 
 
 
 effects on the imagination, 
 
 259 
 
 Palermo, recentuseof torture in 
 
 ,389 
 
 use of substitutes or cham- 
 
 
 Pallor evidence for torture, 
 
 358 
 
 pions, 
 
 260 
 
 Panis conjuratio, 
 
 232 
 
 used especially for serfs, 
 
 260 
 
 Papacy, opposition to the duel, 
 
 147 
 
 confidence felt in the process 
 
 261 
 
 to ordeal, 
 
 267 
 
 composition allowed in it, 
 
 262 
 
 degradation of, in 10th and 
 
 
 explanation of its uncer- 
 
 
 11th centuries, 
 
 270 
 
 tainty, 
 
 263 
 
 Parlement of Paris evades the 
 
 
 occasional doubt as to results 
 
 265 
 
 duel, 
 
 159 
 
 efforts to preserve impar- 
 
 
 appellate power granted to, 
 
 162 
 
 tiality, 
 
 265 
 
 forbids water ordeal, 1588, 
 
 
 posture of the church re- 
 
 
 1601, 1641, 
 
 227 
 
 specting it, 
 
 267 
 
 decisions legalizing torture, 
 
 336 
 
 opposition of the papacy, 
 
 267 
 
 Partidas, las Siete, 
 
 56 
 
 defended by the church at 
 
 
 do not recognize ordeals, 
 
 276 
 
 large, 
 
 267 
 
 regulations of torture in, 
 
 312 
 
 exemption sometimes 
 
 
 Pascal I., case of, 
 
 29 
 
 claimed by ecclesiastics, 
 
 268 
 
 Paternity proved by ordeal of hot 
 
 
 motives of the church in fa- 
 
 
 iron, 
 
 205 
 
 vor of ordeal, 
 
 271 
 
 Pedro I. of Aragon, 
 
 77 
 
 abuse of power by ecclesias- 
 
 
 Pegu, ordeals in, 
 
 181 
 
 tics, 
 
 272 
 
 Peine forte et dure, 
 
 384 
 
 prohibition by Innocent III. 
 
 272 
 
 Penalties inflicted on witches, 
 
 223 
 
 secular legislation against, 
 
 273 
 
 Penniwinkis, a Scottish torture, 
 
 383 
 
 abolished in England in 1219, 
 
 273 
 
 Perigord, charter of, in 1319, 
 
 341 
 
 restricted in Scotland in 13th 
 
 
 Perjury caused by compurgation 
 
 50 
 
 century, 
 
 274 
 
 duel used as a remedy for, 
 
 86 
 
 abolished by Fred. II. in 
 
 
 Petrus Igneus, case of, 
 
 209 
 
 1231, 
 
 274 
 
 Philadelphia, ordeal of blood in 
 
 
 and by the Northern Nations, 
 
 274 
 
 1860, 
 
 247 
 
 obsolete in France in 13th 
 
 
 Philippe-le-Bel restricts the duel, 
 
 157 
 
 century, 
 
 275 
 
 remonstrates against Inquisi- 
 
 
 employed in Germany in 1 4th 
 
 
 tion, 
 
 331 
 
 century, 
 
 275 
 
 uses Inquisition against 
 
 
 gradual abolition in Spain, 
 
 276 
 
 Templars, 
 
 332 
 
 lingers until 16th and 17th 
 
 
 Philippe-le-Long, charter grant- 
 
 
 centuries, 
 
 277 
 
 ed by, 
 
 311 
 
i n i) r. x 
 
 103 
 
 Philippe do Valois grants appel- 
 late power to the PfcrltMent, 
 
 Philip of Burgundy :il<>li>hcs the 
 
 duel, 
 Philotas, torture of, 
 Physiognomy does not justify 
 
 torture, 
 Piso, conspiracy of, 
 Plough-shares, ordeal of red hot, 
 Poison ordeals in Africa, 
 in Madagascar, 
 in India, 
 Poisoning, torture of women for, 
 Poland, compurgation in ]8th 
 century, 
 use of torture in, 
 Poppo converts the Danes by 
 
 ordeal of hot iron, 
 Pregnant women exempt from 
 torture, 296, 314, 317, 
 
 except in Iceland, 
 Priestly fees for the ordeal, 
 Priests not liable to torture in 
 Rome, 
 favors shown to, in torture, 
 Professional champions, 
 
 identified with Roman gladi- 
 ators, 
 degradations inflicted on 
 them, 
 Prohibition of duel and ordeal 
 by Innocent III., 107, 147, 
 Predentin*, hymn to St. Vincent, 
 Prussia, torture limited in 1740, 
 West, water ordeal used till 
 1745, 
 Publicity of justice under Carlo- 
 
 vingians, 
 Punishment of conjurators, 
 for defeat in the duel, 
 for default in the duel, 
 of defeated champions, 
 ordeal regarded as, 
 Purgatorial oaths used as ordeal, 
 Purrikeh, or Indian ordeal, 
 
 161 
 
 104 
 183 
 
 US 
 
 2S8 
 201 
 183 
 184 
 250 
 200 
 
 03 
 346 
 
 206 
 
 355 
 374 
 271 
 
 289 
 357 
 123 
 
 124 
 
 125 
 
 272 
 299 
 386 
 
 320 
 48 
 112 
 116 
 122 
 255 
 248 
 179 
 
 Qoercy, charter of, in 1319, 341 
 Question preparatoire, 350 
 abolished, 1780, 388 
 definitive or prealable, 350 
 abolished, 1788, 388 
 ordinaire and extraordinaire, 351 
 Quintus Curtius, opinion of tor- 
 ture, 299 
 
 Ragualh, Swedish laws of, 376 
 
 Rank, no exemption on account 
 
 of, 100 
 
 Rank- 
 difference in, a limitation on 
 the duel, 96, 103 
 
 Reduplication of oaths, 21 
 
 Regulations of the ordeal, 250 
 
 Relics necessary for the validity 
 
 of oaths' 22 
 
 tested by ordeal of fire, 216 
 
 employed in ordeal, 248 
 
 Repetition of torture, 367 
 
 Responsibility of conjurators, 48 
 
 of bail of duellists, 166 
 
 Restrictions on the use of cham- 
 pions, 126 
 Retraction of extorted confession, 367 
 Rhodian laws, freemen subject 
 
 to torture by, 283 
 
 Richard Coeur de Lion and 
 
 Henry II., 245 
 
 Richard III. and Henry VI., 245 
 Rickius (Jacob) defends tho 
 
 water ordeal in 1596, 226 
 
 his torture of witches, 372 
 
 Riculfus, torture of, 306 
 
 Riga, treaty with Smolensko, 278 
 
 Robert the Pious forbids ordeal 
 
 of Eucharist, 239 
 
 Rodolph of Hapsburg restricts 
 
 the duel, 146,149 
 
 Rome, traces of ordeal in, 186 
 
 use of torture in, 284 
 
 freemen not liable under the 
 
 Republic, 285 
 
 torture of freemen intro- 
 duced by the Emperors, 285 
 cruelties of the early Caesars, 285 
 persecution of Christians, 287 
 torture of freemen legalized 
 
 under limitations, 288 
 
 frequent legislation requisite 
 
 to protect them, 289 
 
 extension of crimes for which 
 
 they were tortured, 290 
 
 accuser subject to lex talionis, 290 
 witnesses sometimes liable 
 
 to torture, 291 
 
 slaves, torture requisite to 
 
 their testimony, 291 
 
 not tortured against 
 
 their masters, 292 
 
 freedmen, doubt as to their 
 
 liability, 293 
 
 liability of slaves in majes- 
 
 tatis, 294 
 
 influence of Christianity, 295 
 slaves crippled in torture 
 
 paid for, 296 
 
 general limitations of torture, 896 
 
404 
 
 INDEX 
 
 Rome 
 
 value of evidence by torture, 297 
 
 conflicting opinions of, 298 
 
 modes of torture employed, 299 
 
 influence on modern laws, 300 
 
 Roman States, the duel prohibited 
 
 in 1505, 169 
 
 Roman law, revival of study of, 55 
 influence of, in abolishing 
 
 negative proofs, 56 
 
 on the Goths, 84, 306 
 
 on the duel, 148 
 
 on ordeal, 277 
 
 on torture, 327 
 
 Rotharis restricts the battle ordeal, 82 
 
 Russia, duel allowed until 1649, 169 
 
 ordeal for theft in, 229 
 
 use of torture in, 346 
 
 torture abolished in, 3S7 
 
 St. Dizier, torture unused in 
 
 1354, 342 
 
 Sandemend, or Danish jury, 375 
 
 Sassy-bark, ordeal of, 183 
 
 Sathee, 236 
 
 Savonarola, case of, 213 
 
 Saxons and Luitzes, duel be- 
 tween, 102 
 Saxony, torture abolished in 
 
 1770-83, . 387 
 
 Scavenger's daughter, 380 
 
 Scheingehen, or ordeal of blood, 247 
 Sclavonic tribes, battle ordeal 
 
 universal, 85 
 
 Scotland, compurgation in 14th 
 
 century, 62 
 
 duel allowed in 16th century, 170 
 ordeal of blood used in 17th 
 
 century, 246 
 
 ordeals restricted in 13th 
 
 century, 274 
 
 torture of late introduction 
 
 in, 382 
 
 terrible character of Scottish 
 
 torture, 3S3 
 
 abolished in 1709 by United 
 Parliament, 383 
 
 Scribonius, in 1583, advocates 
 
 water ordeal, 226 
 
 Secrecy of the inquisitorial pro- 
 cess, 348 
 Seguidors, 38 
 Sejanus, plot of, 285 
 Semperfri, 104 
 Senchus Mor, or Brehon law, 80, 190 
 Serfs, ordeal reserved for, 260 
 Sexhendeman, 35 
 Shower-bath, torture of, 347 
 
 Sicily, recent use of torture in, 389 
 
 Siete Partidas, 312 
 
 their authority, 316 
 
 duel restricted in, 150 
 
 regulations of torture, 313 
 
 Skevington's daughter, 380 
 
 Slaves admitted as conjurators, 38 
 
 allowed the duel against 
 
 their masters, 102 
 
 ordeal reserved for, 260 
 
 torture requisite to their tes- 
 timony in Greece, 282 
 and in Rome, 285, 291 
 not tortured against their 
 
 masters in general, 292, 294 
 torture restricted by Tacitus, 295 
 crippled in torture paid for, 296 
 torture of, among the Bar- 
 barians, 302 
 interests of the master pro- 
 tected, 303 
 not tortured aswitnesses, 304 
 torture of, under the Ostro- 
 goths, 307 
 under Wisigoths, 309 
 liable to torture in Spain, 
 
 314,318 
 torture of, in Germany in 
 
 1356, 344 
 
 in Iceland subject to torture, 375 
 Sleeplessness, torture of, 366, 381, 383 
 Smith, Sir Thomas, administers 
 
 torture, 379 
 
 Smolensko, treaty with Riga, 278 
 Solidarity of the family among 
 
 Teutonic races, 16, 17 
 
 Solidus, or sou, 99 
 
 Sorcerers, tortured by Ostro- 
 goths, 308 
 insensible to torture, 370 
 Sorcery, torture requisite in 
 
 trials of, 370* 
 
 Spain, duel restricted in, 150 
 
 gradual abolition of ordeal, 276 
 torture under Wisigoths, 309 
 in the Fuero Juzgo, 312 
 
 in the Siete Partidas, 312 
 spontaneous confession re- 
 quisite, 313 
 repetition of torture, 313 
 exemptions, 313 
 liability of slaves, 314 
 liability of witnesses, 315,316 
 general restrictions, 315 
 responsibility of judges, 315 
 appeals, 316 
 varieties of torture in use, 316 
 in the 17th century, 317 
 

 i \ 1 1 1 : 1 
 
 Staff, ordttl <f, 
 
 259 
 
 Tor 
 
 Statute of Gloucester. 1 
 
 171 
 
 
 Staundford, Sir Willi.nn, ap- 
 
 
 
 proves of ordeals in 1551, 
 
 277 
 
 
 Stocknefln, 
 
 37 
 
 
 Strappado, 316 
 
 :;:.l 
 
 
 Substitutes in the ordenl, 
 
 200 
 
 
 allowed in ordeal of cross, 
 
 231 
 
 
 inn of estates decided by 
 
 
 
 the duel, 
 
 135 
 
 
 Superstition, perpetuation of, 
 
 279 
 
 
 Swantopluck of Bohemia, 
 
 324 
 
 
 Sweden, compurgation in 1653, 
 
 03 
 
 
 ordeal abolished in 13th cen- 
 
 
 
 tury, 
 
 274 
 
 
 torture not used in, 
 
 376 
 
 
 Switzerland, torture abolished in 
 
 387 
 
 
 Tacitus, restricts the torture of 
 
 
 
 slaves, 
 
 295 
 
 
 Tahiti, traces of ordeal in, 
 
 182 
 
 
 Tangena nut, ordeal of, 
 
 184 
 
 
 Templars, ordeal in trial of, 
 
 208 
 
 
 torture of, 
 
 332 
 
 
 Testimony of tortured slaves the 
 
 
 
 best evidence in Greece, 
 
 283 
 
 
 Testimony of gladiators, torture 
 
 
 
 necessary to, 
 
 291 
 
 
 and of slaves, 283, 285, 
 
 291 
 
 
 Teutberga, case of, 
 
 199 
 
 
 Teutonic knights introduce or- 
 
 
 
 deal in Livonia, 
 
 275 
 
 
 Teutonic independence, 
 
 301 
 
 
 Theodoric, his reverence for the 
 
 
 
 Roman Law, 
 
 84 
 
 
 deprecates the battle ordeal, 
 
 85 
 
 
 Edict of, 
 
 307 
 
 
 torture of sorcerers by, 
 
 308 
 
 
 Theodosius the Great forbids 
 
 
 
 torture of priests, 
 
 289 
 
 
 Thibet, ordeals in, 
 
 181 
 
 
 Thomas of Woodstock, Duke .of 
 
 
 
 Gloucester, 
 
 171 
 
 
 Tiberius, cruelties practised by, 
 
 285 
 
 
 extends the application of 
 
 
 
 majestatis, 
 
 286 
 
 
 device to obtain evidence of 
 
 
 
 slaves, 
 
 293 
 
 
 Tiers-Etat, influence of on the 
 
 
 
 duel, 
 
 143 
 
 
 on the ordeal, 
 
 277 
 
 
 Torture, ordeal regarded as a, 
 
 257 
 
 
 ordeal supplanted by, 
 
 258 
 
 
 not used by Hindus, Jews, 
 
 
 
 and Egyptians, 
 
 281 
 
 
 largely employed in Greece, 
 
 282 
 
 
 regulations of torture in 
 
 
 
 Rome, 
 
 284 1 
 
 
 105 
 
 contrast between Romo and 
 
 the Barbarians, 300 
 
 among Barbarians, not le- 
 gally used for freemen, 302 
 but for slaves, 303 
 
 disregard of the law, 305 
 
 among the Ostrogoths, SOT 
 
 among the Wisigoths, 809 
 
 in the Fuero Juzgo, 312 
 
 in the Siete Partidas, 312 
 
 in Spain in Nth century, 317 
 not used under the Carlovin- 
 
 gians, 318 
 
 nor under the Feudal Sys- 
 tem, 321 
 occasional allusions to, 322 
 disapproved by the church 
 
 till 13th century, 325 
 
 old forms of evidence be- 
 come disused, 326 
 not alluded to in early Ger- 
 man codes, 326 
 first appearance in Assises 
 
 de Jerusalem, 326 
 
 revived by Frederic II. in 
 
 Naples, 329 
 
 influence of Inquisition, 330 
 
 appears in France in 1254, 332 
 not alluded to in codes or 
 
 text-books, 333 
 
 six cases reported in the 
 
 Olim, 336 
 
 resistance of Feudalism, 339 
 
 established by Louis Hutin, 340 
 exceptions among chartered 
 
 towns, 342 
 
 universal by end of 14th 
 
 century, 344 
 
 in Germany in 1356, 344 
 
 in Corsica in 14th century, 344 
 in Venice, 345 
 
 in Hungary, 345 
 
 in Poland, 346 
 
 in Russia, 346 
 
 secret inquisitorial proceed- 
 ings introduced, 348 
 French system of 1498, 349 
 perfected by Francis I. in 
 
 1539, 350 
 
 revised by Louis XIV. in . 
 
 1670, 352 
 
 in Germany, 353 
 
 Caroline Constitutions, 353 
 
 influence of Roman law, 355 
 
 excepted classes, 356 
 
 torture left to discretion of 
 tribunal, 357 
 
400 
 
 1 N I) E X . 
 
 Torture 
 
 extension of the system, 359 
 
 privileges allowed to defence, 360 
 reduced to nullity in prac- 
 tice, 361 
 worthlessness of restrictions, 363 
 influence on the judges, 365 
 real estimate of extorted 
 
 confessions, 367 
 
 atrocity of the system, 369 
 
 influence of witchcraft, 370 
 
 in Iceland, 374 
 
 in Denmark, 375 
 
 in Sweden, 376 
 
 in England, 376 
 
 in Scotland, 382 
 
 opposition to, 384 
 
 gradual abolition in Ger- 
 many, 1740-1831, 3S6 
 abolished in Russia, 1801, 387 
 in France, 1789, 388 
 in Tuscany, 1786, 389 
 used in Naples until recently, 389 
 Toulouse, magistrates of, exempt 
 
 from torture, 340 
 
 Transylvania, water ordeal used 
 
 in 18th century, 228 
 
 Treason, freemen liable to tor- 
 ture for, in Rome, 285, 289 
 slaves tortured against mas- 
 ters for, 294 
 in modern times, 314, 317, 340, 
 344, 356, 379, 386 
 Treves, Archbishop of, and 
 
 Henry of Limburg, 236 
 
 Trial by balance, 224 
 
 Twelfhendeman, 35 
 
 Twyhindeman, 35 
 
 Ugo, Marquis of Tuscany, 205 
 Uncertainty of ordeal, explana- 
 tions of, 263 
 Upstallesboom, laws of, 274, 376 
 Upton, Nicholas, 164 
 Urpheda, 368 
 Uta, Queen of Germany, 31 
 Utrecht, torture disused in, 385 
 
 Valenciennes, duel at, in 1455, 165 
 Valentin ian III., protection of 
 
 slaves by, 296 
 
 Valerius Maximus, cases of tor- 
 ture, 298 
 Value of evidence by torture, 297 
 Van Arckel, combat of, 76 
 Varieties of ordeal, 196 
 of torture used in Greece, 284 
 in Rome, 299 
 
 Vase of Soissons, 301 
 
 Vehmgericht. (See Fehmgericht.) 
 Venice, use of torture in, 345 
 
 Vermandois, nobles of, demand 
 
 the duel, 161 
 
 Viescher, August, 74 
 
 Vigils, torture of, 366, 381, 383 
 
 Villadiego, directions as to tor- 
 ture, ' 317 
 Villeins, inequality of combat 
 
 for, 103 
 
 ordeal reserved for, 260 
 
 debarred from all appeal, 336 
 Villon subjected to water torture, 350 
 Vincent, St., his martyrdom, 300 
 Vladislas II.. of Hungary, re- 
 stricts the duel, 169 
 Voltaire argues against torture, 388 
 Vorogeia, or Russian diviner, 229 
 
 Wager of law, 24 
 
 of battle (see Battle Ordeal). 
 Waldemar II. of Denmark, laws 
 
 of, 375 
 
 Waldrada and Lothair, 199 
 
 Warfare, right of private, 15 
 
 Water, bitter, ordeal of, 180 
 
 boiling, ordeal of, 196 
 
 mode of administration, 196 
 
 exorcisms employed, 198 
 
 its universality, 200 
 
 its use in India, 201 
 
 cold, ordeal of, 216 
 
 mode of administering, 216 
 
 explanation of it, 217 
 
 introduced by Eugenius 
 
 II., 218 
 
 forbidden by Louis-le- 
 
 Debonnaire, 219 
 
 it flourishes never- 
 theless, 219 
 generally a servile or- 
 deal, 220 
 cases of its employment, 221 
 prolonged use in witch- 
 craft, 222 
 loss of weight in witches, 224 
 ordered for witches by 
 
 Louis Hutin, 225 
 
 revived in 16th century, 226 
 controversy concerning 
 
 it, 1583-'94, 226 
 
 use continued in 17th 
 
 century, 227 
 
 forbidden by Paris Par- 
 
 lement, 227 
 
 encouraged by James I. 
 of England, 228 
 
l N D i \ 
 
 KIT 
 
 Water, cold, ordeal of 
 
 used in West Prussia till 
 
 1745, 228 
 
 cases in 1815 and 1836, 229 
 OOgnatt practico in 
 
 Kussia, 229 
 
 Water torture, 349 
 
 Weapons of champion in duel, 117 
 
 choice of, in duel, 117 
 
 equality of, in the duel, 118 
 
 Weight, loss of, by witches, 224 
 Wenceslas of Bohemia prohibits 
 
 torture, 322 
 William the Conqueror intro- 
 duces the battle ordeal, 83 
 William of Ely, 53 
 Wirtemburg, torture abolished, 
 
 1806, 387 
 Wisigothic code, its superiority, 84 
 Wisigoths, their laws, 308 
 torture allowed for slaves, 309 
 and for freemen, 309 
 under careful re- 
 strictions, 310 
 disregarded in practice, 311 
 perpetuated among 
 
 Spaniards, 312 
 Witchcraft, legal penalties in- 
 flicted on, 223 
 
 Witchcraft- 
 torture indispensable in, 370 
 extent of persecution for, .';7.'i 
 torture used in England for, 381 
 atrocious trials for, in Scot- 
 land, 383 
 Witches lose their weight, 224 
 tortured by Ostrogoths, 308 
 insensible to torture, 370 
 Witnesses of defeated party pun- 
 ished, 86, 90 
 liable to challenge, 88 
 employed as champions, 120 
 sometimes liable to torture, 
 
 290, 315, 316, 359 
 no torture of, among Barba- 
 rians, 304 
 Women and children admitted as 
 
 conjurators, 38 
 
 Women and ecclesiastics not al- 
 lowed to testify, 89 
 Women, duel between men and, 145 
 
 Yves of Chartres. (See Ivo.) 
 
 Zanger, Johann, his treatise on 
 
 torture, 
 Zoroaster, legend of, 
 
 355 
 181 
 

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