Although in the revision of this volume for a fourth edition there has not been found much to alter, considerable additions have been made which render the survey of the subject more complete. In revising the essays on the Wager of Battle and the Ordeal I have had the advantage of the labors of two recent writers, Dr. Patetta, whose “Le Ordalie” is an extended and philosophical investigation into the whole topic of the Judgments of God, and George Neilson, Esq., whose “Trial by Combat” is a complete account, from the original sources, of the history of the judicial duel in Great Britain. Mr. Neilson has also had the courtesy to communicate to me the results of his further studies of the subject. I therefore indulge the hope that the present edition will be found more worthy of the favor with which the work has been received.

Philadelphia, October, 1892.

CONTENTS.

[I.]
THE WAGER OF LAW.
[CHAPTER I.]
RESPONSIBILITY OF THE KINDRED.
PAGE
Crime originally an offence against individuals[13]
Tribal organization—Responsibility of kindred[14]
Compensation for injuries—The Wer-gild[17]
[CHAPTER II.]
THE OATH AND ITS ACCESSORIES.
Perplexities as to evidence[21]
Guarantees required for the oath[25]
[CHAPTER III.]
CONJURATORS, OR PARTAKERS IN THE OATH.
The Wager of Law a prehistoric Aryan custom[33]
It is adopted by the Church[35]
[CHAPTER IV.]
SELECTION OF COMPURGATORS.
They are originally the kindred[38]
Strangers admitted[41]
Numbers required[43]
Modes of selection47
[CHAPTER V.]
CONDITIONS OF COMPURGATION.
Employed in default of testimony[52]
Except in Wales[54]
Dependent on importance of case[56]
As an alternative for the Wager of Battle[57]
[CHAPTER VI.]
FORMULAS AND PROCEDURE.
Forms of compurgatorial oath[58]
Modes of administration[60]
Qualified confidence reposed in Compurgation[61]
Conjurators liable to penalties of perjury[63]
[CHAPTER VII.]
DECLINE OF COMPURGATION.
Early efforts to limit or abolish it[67]
The oath no longer a positive asseveration[71]
Influence of revival of Roman law[73]
Conservatism of Feudalism[76]
Gradual disappearance of Compurgation in Continental Europe[78]
Preserved in England until 1833[84]
Traces in the British colonies[87]
Maintained in the Church and in the Inquisition[88]
[CHAPTER VIII.]
ACCUSATORIAL CONJURATORS.
Employed by the Barbarians[94]
Maintained until the sixteenth century[98]
[II.]
THE WAGER OF BATTLE.
[CHAPTER I.]
Natural tendency to appeal to Heaven[101]
Distinction between the Judicial Combat and the Duel103
[CHAPTER II.]
ORIGIN OF THE JUDICIAL COMBAT.
A prehistoric Aryan custom[107]
[CHAPTER III.]
UNIVERSAL USE OF THE JUDICIAL COMBAT.
Its form Christianized into an appeal to God[117]
Causes of its general employment[118]
Practice of challenging witnesses[120]
of challenging judges[123]
[CHAPTER IV.]
CONFIDENCE REPOSED IN THE JUDICIAL DUEL.
Its jurisdiction universal[127]
Implicit faith reposed in it[135]
[CHAPTER V.]
LIMITATIONS IMPOSED ON THE WAGER OF BATTLE.
Respective rights of plaintiff and defendant[140]
Minimum limit of value[147]
Questions of rank[148]
Liability of women to the Combat[152]
of ecclesiastics[155]
The Combat under ecclesiastical jurisdiction[161]
Not recognized in mercantile law[165]
[CHAPTER VI.]
REGULATIONS OF THE JUDICIAL COMBAT.
Penalty for defeat[166]
Lex talionis[169]
Security required of combatants[173]
Penalty for default[174]
Choice of weapons[176]
[CHAPTER VII.]
CHAMPIONS.
Originally kinsmen[179]
Employment of champions becomes general180
Hired champions were originally witnesses[182]
Punishment for defeated champions[184]
Professional champions—their disabilities[186]
Efforts to limit the use of champions[189]
Champions of communities[196]
of the Church[197]
[CHAPTER VIII.]
DECLINE OF THE JUDICIAL COMBAT.
Iceland and Norway the first to prohibit it[199]
Opposition of the Municipalities[200]
of the Church[206]
Influence of the Roman law[211]
Decline of the Judicial Duel in Spain[214]
Struggle over its abolition in France[216]
Reforms of St. Louis[217]
Resistance of the Feudatories[218]
Reaction after the death of St. Louis[222]
Renewed efforts of Philippe le Bel[222]
Continued by his successors[227]
Occasional cases in fourteenth, fifteenth, and sixteenth centuries[228]
Final disappearance[235]
Its later history in Italy, Hungary, Flanders, Russia, Scotland[235]
Maintained in England until the nineteenth century[241]
Traces of its legal existence in the United States[246]
[III.]
THE ORDEAL.
[CHAPTER I.]
UNIVERSAL INVOCATION OF THE JUDGMENT OF GOD.
Tendency of the human mind to cast its doubts on God[249]
China an exception[251]
The Ordeal in Japan[253]
in Africa[254]
in the Indian and Pacific Archipelagoes[257]
among pre-Aryan Indian Tribes[258]
Traces of the Ordeal in Egypt259
Among Semitic Races—The Assyrians, Hebrews, Moslem[260]
Among Aryans—Mazdeism[265]
Hinduism—Buddhism[267]
Hellenes and Italiotes[269]
Celts, Teutons, Slavs[272]
The Ordeal in the Barbarian occupation of Europe[275]
Adopted by the Church[276]
[CHAPTER II.]
ORDEAL OF BOILING WATER.
Details of its administration[278]
Miracles reversing the ordinary process[285]
[CHAPTER III.]
ORDEAL OF RED-HOT IRON.
Various forms of its administration[286]
Examples of its use[291]
Miracles reversing the ordinary process[301]
[CHAPTER IV.]
ORDEAL OF FIRE.
Its prototypes[303]
Examples of its use[305]
Used to test relics[314]
[CHAPTER V.]
ORDEAL OF COLD WATER.
Mode of administration[318]
Supposed origin in ninth century[320]
Received in general use[322]
Prolonged employment in witchcraft cases[325]
Occasionally used in nineteenth century[332]
[CHAPTER VI.]
ORDEAL OF THE BALANCE.
Modes of administration[334]
[CHAPTER VII.]
ORDEAL OF THE CROSS.
It is one of endurance[336]
Its limited use and disappearance338
[CHAPTER VIII.]
THE CORSNÆD.
Formula of employment[339]
Examples of its use[341]
[CHAPTER IX.]
THE EUCHARIST AS AN ORDEAL.
Superstitions connected with the Eucharist[344]
Examples of its use as an ordeal[347]
Still used in the seventeenth century[351]
[CHAPTER X.]
ORDEAL OF THE LOT.
Various modes of its administration[352]
Appeals to chance—Ordeal of Bible and key[356]
Sieve-driving[358]
[CHAPTER XI.]
BIER-RIGHT.
Doubtful origin[359]
Examples of its use[361]
It lingers to the present day[367]
Attempts to explain it[368]
Weight ascribed to it[369]
[CHAPTER XII.]
OATHS AS ORDEALS.
Superstitions connected with the oath[371]
Risks of perjury in oaths on relics[372]
[CHAPTER XIII.]
POISON ORDEALS.
Used in India, not in Europe[375]
[CHAPTER XIV.]
IRREGULAR ORDEALS.
Iron bands on murderers[377]
Examples of miraculous interposition379
[CHAPTER XV.]
CONDITIONS OF THE ORDEAL.
It is a regular judicial procedure[383]
Compounding for ordeals[383]
Ordeal for defeated accuser[385]
Absence of testimony usually a prerequisite[386]
Usually a means of defence[389]
Used in failure of compurgation[390]
Sometimes regarded as a punishment[391]
Its use in extorting confessions[394]
Practically amounts to torture[395]
Influence of imagination[396]
Champions in ordeals[398]
[CHAPTER XVI.]
CONFIDENCE REPOSED IN THE ORDEAL.
Conflicting views as to its efficacy[399]
Explanations of its unjust results[401]
Regulations to enforce its impartial administration[404]
Usually results in acquittal[406]
Use of magic arts[407]
[CHAPTER XVII.]
THE CHURCH AND THE ORDEAL.
Complex relations of the Church to the ordeal[408]
Occasional opposition of the papacy[409]
But it is sustained by the clergy[409]
Its use in trials of heretics[410]
Impressiveness of its ritual[413]
Reasons of papal opposition[414]
Advantages derived from it by the clergy[415]
The popes at length accomplish its abolition[417]
[CHAPTER XVIII.]
REPRESSIVE SECULAR LEGISLATION.
Forbidden in England in 1219[420]
Gradually falls into desuetude[422]
Persistence of superstition427
[IV.]
TORTURE.
[CHAPTER I.]
TORTURE IN EGYPT AND ASIA.
The ordeal and torture are substitutes for each other[429]
Torture in Egypt—in Assyria—not used by Hebrews[430]
Not used by Oriental Aryans[431]
Not used in China—used in Japan[431]
[CHAPTER II.]
GREECE AND ROME.
Usages of torture in Greece[432]
Rome—freemen not liable under Republic[434]
Cæsarism extends the use of torture[435]
Limited by Inscription and the Lex Talionis[439]
Torture of witnesses[440]
Liability of slaves to torture[441]
Limitations on use of torture[444]
Value of evidence under torture[446]
[CHAPTER III.]
THE BARBARIANS.
Structure of Barbarian society[449]
Freemen originally not liable—torture of slaves[451]
Illegal torture of freemen by the Merovingians[454]
[CHAPTER IV.]
THE GOTHS AND SPAIN.
Influence of Roman institutions on the Goths[456]
Torture under the Ostrogoths[457]
Employed by the Wisigoths—details of its use[458]
Transmitted by them to modern Spain[461]
Legislation of Las Siete Partidas[462]
Final shape of torture system in Castile466
[CHAPTER V.]
CARLOVINGIAN AND FEUDAL LAW.
Torture first used for witchcraft, under Charlemagne[469]
The Church averse to it[471]
Character of institutions adverse to its use[471]
Feudalism not favorable to it[472]
Torture used for punishment and extortion[473]
Ecclesiastical influence adverse to its use[477]
[CHAPTER VI.]
REAPPEARANCE OF TORTURE.
Influence of the Roman law[479]
Torture first appears in Latin kingdom of Jerusalem[480]
It is revived in Italy in the thirteenth century[481]
Influence of the Inquisition[483]
First appearance of torture in France, in 1254[487]
Its gradual introduction—1283 to 1319[491]
Resistance of the nobles in 1315[494]
Permanently established in opposition to Feudalism[497]
Examples of procedure in the Châtelet of Paris, 1389-1392[500]
Introduction in Germany[505]
in Italy[506]
in Hungary—Poland—Russia[508]
in the ecclesiastical courts[510]
[CHAPTER VII.]
THE INQUISITORIAL PROCESS.
Secret proceedings and denial of opportunity for defence[512]
Perfected by Francis I.[514]
Revised under Louis XIV.[517]
Torture avec réserve des preuves[518]
Illegal extension of the system in the Netherlands[521]
Germany—the Caroline Constitutions[522]
[CHAPTER VIII.]
FINAL SHAPE OF THE TORTURE SYSTEM.
The Roman Law engrafted on German Jurisprudence[524]
Theoretical exemptions practically annulled[525]
Limitations disregarded in practice527
Influence of the system on the judge[534]
Arbitrary abuses[539]
Torture of witnesses[541]
Grades of torture[543]
Denial of opportunities for defence[544]
Confirmation of confession necessary[548]
Inconsistencies in the torture system[550]
Influence of witch-trials in aggravating the torture system[553]
Use of charms to produce insensibility[556]
Deceit used in failure of torture[558]
Torture in monasteries[560]
[CHAPTER IX.]
ENGLAND AND THE NORTHERN RACES.
Early use of torture in Iceland[561]
Influence of the jury-trial in delaying introduction of Torture in Denmark,Norway, and Sweden[562]
England—Torture unknown to the Common Law[563]
Introduced as a concession to the royal prerogative[566]
Influence of witch-trials[570]
Scotland—frightful severity of torture trials[572]
[CHAPTER X.]
DECLINE OF THE TORTURE SYSTEM.
Opponents arise—Vives, Montaigne, Gräfe, etc.—Discussion in theschools[575]
Abolished in Prussia in 1740[579]
in Saxony, Austria, Russia[580]
Continued in Baden till 1831—Retention of the Inquisitorial Process,and Revival of Torture in the German Empire[581]
Abolished in Spain in 1812[582]
in France, 1780-1789[583]
in Italy in 1786[586]
Retained in Naples[587]
Recent instances of its use[588]

[I.]
THE WAGER OF LAW.

[CHAPTER I.]
RESPONSIBILITY OF THE KINDRED.

The conception of crime as a wrong committed against society is too abstract to find expression in the institutions of uncivilized communities. The slayer or the spoiler is an enemy, not of his fellows in general, but only of the sufferer or of his kindred; and if society can provide means for the wronged to exact reparation, it has done its duty to the utmost, and has, indeed, made a notable advance on the path that leads from barbarism to civilization. How recent has been our progress beyond this stage of development is illustrated in the provisions of a code granted so lately as 1231 by the Abbey of St. Bertin to the town of Arques. By these laws, when a man was convicted of intentional homicide, he was handed over to the family of the murdered person, to be slain by them in turn.[1] It still was vengeance, and not justice, that was to be satisfied.

In early times, therefore, the wrong-doer owed no satisfaction to the law or to the state, but only to the injured party. That injured party, moreover, was not a mere individual. All the races of the great Aryan branch of mankind have developed through a common plan of organization, in which each family—sometimes merely the circle of near kindred, at others enlarged into a gens or sept—was a unit with respect to the other similar aggregations in the tribe or nation, presenting, with respect to personal rights, features analogous to their communal holding of land.[2] Within these units, as a general rule, each individual was personally answerable for all, and all were answerable for each. A characteristic incident of this system was the wer-gild or blood-money, through which offences were condoned and the aggrieved were satisfied by a payment made, when the crime was homicide, to the kindred of the slain, and generally contributed by the kindred of the slayer.