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SUPERSTITION AND FORCE.
SUPERSTITION AND FORCE.
ESSAYS ON THE WAGER OF LAW—THE WAGER OF BATTLE—THE ORDEAL—TORTURE. BY HENRY CHARLES LEA, LL.D. Plurima est et in omni jure civili, et in pontificum libris, et in XII. tabulis, antiquitatis effigies.— Cicero , de Oratore I. 43. FOURTH EDITION, REVISED. PHILADELPHIA: LEA BROTHERS & CO. 1892. Entered according to Act of Congress in the year 1892, by HENRY C. LEA, in the Office of the Librarian of Congress. All rights reserved. COLLINS PRINTING HOUSE....
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PREFACE.
PREFACE.
The history of jurisprudence is the history of civilization. The labors of the lawgiver embody not only the manners and customs of his time, but also its innermost thoughts and beliefs, laid bare for our examination with a frankness that admits of no concealment. These afford the surest outlines for a trustworthy picture of the past, of which the details are supplied by the records of the chronicler. It is from these sources that I have attempted, in the present work, a brief investigation into
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CHAPTER I. RESPONSIBILITY OF THE KINDRED.
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 t
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CHAPTER II. THE OATH AND ITS ACCESSORIES.
CHAPTER II. THE OATH AND ITS ACCESSORIES.
Between the commission of an offence and its proof in a court of justice there lies a wide field for the exercise or perversion of human ingenuity. The subject of evidence is one which has taxed man’s reasoning powers to the utmost; and the subtle distinctions of the Roman law, with its probatio , præsumptio juris , præsumptio juris tantum : the endless refinements of the glossators, rating evidence in its different grades, as probatio optima , evidentissima , apertissima , legitima , sufficiens
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CHAPTER III. CONJURATORS, OR PARTAKERS IN THE OATH.
CHAPTER III. CONJURATORS, OR PARTAKERS IN THE OATH.
Notwithstanding the earnestness with which these teachings were enforced, it may readily be believed that the wild barbarian, who was clamoring for the restoration of stolen cattle, or the angry relatives, eager to share the wer-gild of some murdered kinsman, would scarce submit to be balked of their rights at the cost of simple perjury on the part of the criminal. We have seen that both before and after their conversion to Christianity they had little scruple in defiling the most sacred sanctio
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CHAPTER IV. SELECTION OF COMPURGATORS.
CHAPTER IV. SELECTION OF COMPURGATORS.
As already remarked, the origin of the custom is to be traced to the principle of the unity of families. As the offender could summon his kindred around him to resist an armed attack of the injured party, so he took them with him to the court, to defend him with their oaths. Accordingly, we find that the service was usually performed by the kindred, and in some codes this is even prescribed by law, though not universally. 78 This is well illustrated in the Welsh laws, where the raith , or compur
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CHAPTER V. CONDITIONS OF COMPURGATION.
CHAPTER V. CONDITIONS OF COMPURGATION.
The conditions under which resort was had to this mode of deciding litigation have been the subject of some discussion. It has been assumed that, in the early period, before the ferocious purity of the Barbarians had become adulterated under the influence of Roman civilization, it was used in all description of cases, at the option of the defendant, and was in itself a full and satisfactory proof, received on all hands as equal to any other. 137 The only indication that I have met with, among th
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CHAPTER VI. FORMULAS AND PROCEDURE.
CHAPTER VI. FORMULAS AND PROCEDURE.
The primitive lawgivers were too chary of words in their skeleton codes to embody in them the formula usually employed for the compurgatorial oath. We have therefore no positive evidence of its nature in the earliest times; but as the forms made use of by several races at a somewhat later period have been preserved, and as they resemble each other in all essential respects, we may reasonably assume that little variation had previously occurred. The most ancient that I have met with occurs in an
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CHAPTER VII. DECLINE OF COMPURGATION.
CHAPTER VII. DECLINE OF COMPURGATION.
In a system of which the fundamental principle was so vicious, the best efforts of legislation could prove but a slight palliation, and from an early period we find efforts made for its abrogation or limitation. In 983, a constitution of Otho II. abolished it in cases of contested estates, and substituted the wager of battle, on account of the enormous perjury which it occasioned. 191 In England, a more sweeping denunciation, declaring its abolition and replacing it with the vulgar ordeal, is fo
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CHAPTER VIII. ACCUSATORIAL CONJURATORS.
CHAPTER VIII. ACCUSATORIAL CONJURATORS.
Though not strictly a portion of our subject, the question is not without interest as to the power or obligation of the plaintiff or accuser to fortify his case with conjurators. There is little evidence of such a custom in primitive times, but one or two allusions to it in the Leges Barbarorum show that it was occasionally practised. Some of the earlier texts of the Salic law contain a section providing that in certain cases the complainant shall sustain his action with a number of conjurators
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CHAPTER I.
CHAPTER I.
When man is emerging from barbarism, the struggle between the rising power of reason and the waning supremacy of brute force is full of instruction. Wise in our generation, we laugh at the inconsistencies of our forefathers, which, rightly considered as portions of the great cycle of human progress, are rather to be respected as trophies of the silent victory, won by almost imperceptible gradations. When, therefore, in the dark ages, we find the administration of justice so strangely interrupted
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CHAPTER II. ORIGIN OF THE JUDICIAL DUEL.
CHAPTER II. ORIGIN OF THE JUDICIAL DUEL.
The mediæval panegyrists of the wager of battle sought to strengthen its title to respect by affirming that it was as old as the human race, and that Cain and Abel, unable to settle their conflicting claims in any other mode, agreed to leave the decision to the chances of the duel; while the combat between David and Goliath was considered by the early schoolmen as an unanswerable proof of the favor with which God regarded such encounters. Leaving such speculations aside, it is enough for us to k
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CHAPTER III. UNIVERSAL USE OF THE JUDICIAL COMBAT.
CHAPTER III. UNIVERSAL USE OF THE JUDICIAL COMBAT.
The wager of battle thus formed part of the ancestral institutions of all the races who founded the nations of Europe. With their conversion to Christianity the appeal was transferred from the heathen deities to God, who was expected to intervene and decide the battle in favor of the right. 319 It was an appeal to the highest court and popular confidence in the arbitrament of the sword was rather strengthened than diminished. Enlightened lawgivers not only shared, to a greater or less extent, in
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CHAPTER IV. CONFIDENCE REPOSED IN THE JUDICIAL DUEL.
CHAPTER IV. CONFIDENCE REPOSED IN THE JUDICIAL DUEL.
Thus carefully moulded in conformity with the popular prejudices or convictions of every age and country, it may readily be imagined how large a part the judicial combat played in the affairs of daily life. It was so skilfully interwoven throughout the whole system of jurisprudence that no one could feel secure that he might not, at any moment, as plaintiff, defendant, or witness, be called upon to protect his estate or his life either by his own right hand or by the club of some professional an
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CHAPTER V. LIMITATIONS ON THE WAGER OF BATTLE.
CHAPTER V. LIMITATIONS ON THE WAGER OF BATTLE.
The right of demanding the wager of battle between principals varied much with the age and race, though as a “bilateral” ordeal, as a rule, from the earliest times either party was entitled to claim it. 390 When Beaumanoir composed his Coutumes du Beauvoisis , in 1283, the practice may be considered to have entered upon its decadence; twenty years had elapsed since the determined efforts of St. Louis to abolish it; substitutes for it in legal processes had been provided; and the manner in which
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CHAPTER VI. REGULATIONS OF THE JUDICIAL COMBAT.
CHAPTER VI. REGULATIONS OF THE JUDICIAL COMBAT.
The forms and ceremonies employed in the judicial duel may furnish an interesting subject of investigation for the admirers of chivalry, but they teach in their details little concerning the habits and modes of thought of the Middle Ages, and for the most part are therefore interesting only to the pure archæologist. Although minute directions have come down to us in the manuals compiled for the guidance of judges of the lists, to enumerate them in their varying fashions would hardly be worth the
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CHAPTER VII. CHAMPIONS.
CHAPTER VII. CHAMPIONS.
Allusions have occurred above to the employment of champions, a peculiarity of these combats which received an application sufficiently extended to deserve some special notice. 576 It has been seen that those unable to wield the sword or club were not therefore exempted from the duel, and even the scantiest measure of justice would require that they should have the right to delegate their vindication to some more competent vehicle of the Divine decision. This would seem originally to have been t
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CHAPTER VIII. DECLINE OF THE JUDICIAL COMBAT.
CHAPTER VIII. DECLINE OF THE JUDICIAL COMBAT.
So many influences were at work in favor of the judicial duel, and it was so thoroughly engrafted in the convictions and prejudices of Europe, that centuries were requisite for its extirpation. Curiously enough, the earliest decisive action against it took place in Iceland, where it was formally interdicted as a judicial proceeding in 1011; 662 and though the assumption that this was owing to the introduction of Christianity has been disproved, still, the fact that both events were contemporaneo
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CHAPTER I. UNIVERSAL INVOCATION OF THE JUDGMENT OF GOD.
CHAPTER I. UNIVERSAL INVOCATION OF THE JUDGMENT OF GOD.
Although the wager of battle and the other ordeals have much in common, there is sufficient distinction between them to render convenient their separate consideration, even at the risk of a little occasional repetition. The development and career of these forms of the judgment of God were not in all respects similar, nor was their employment in all cases the same. The mere fact that the duel was necessarily a bilateral ordeal, to which both sides had to submit, in itself establishes a limit as t
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CHAPTER II. THE ORDEAL OF BOILING WATER.
CHAPTER II. THE ORDEAL OF BOILING WATER.
The ordeal of boiling water ( æneum, judicium aquæ ferventis, cacabus, caldaria ) is the one usually referred to in the most ancient texts of laws. It was a favorite both with the secular and ecclesiastical authorities, and the manner in which the pagan usages of the ancient Aryans were adopted and rendered orthodox by the Church is well illustrated by the commendation bestowed on it by Hincmar, Archbishop of Reims, in the ninth century. It combines, he says, the elements of water and of fire; t
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CHAPTER III. THE ORDEAL OF RED-HOT IRON.
CHAPTER III. THE ORDEAL OF RED-HOT IRON.
In almost all ages there has existed the belief that under the divine influence the human frame was able to resist the action of fire. Even the sceptic Pliny seems to share the superstition as to the families of the Hirpi, who at the annual sacrifice made to Apollo, on Mount Soracte, walked without injury over piles of burning coals, in recognition of which, by a perpetual senatus consultum, they were relieved from all public burdens. 905 That fire applied either directly or indirectly should be
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CHAPTER IV. THE ORDEAL OF FIRE.
CHAPTER IV. THE ORDEAL OF FIRE.
The ordeal of fire, administered directly, without the intervention either of water or of iron, is one of the most ancient forms, as is shown by the allusions to it in both the Hindu Vedic writings, the adventure of Siawush, and the passage in the Antigone of Sophocles (pp. 266, 267, 270). In this, its simplest form, it may be considered the origin of the proverbial expression, “J’en mettrois la main au feu,” as an affirmation of positive belief, 966 showing how thoroughly the whole system engra
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CHAPTER V. THE ORDEAL OF COLD WATER.
CHAPTER V. THE ORDEAL OF COLD WATER.
The cold-water ordeal ( judicium aquæ frigidæ ) differed from most of its congeners in requiring a miracle to convict the accused, as in the natural order of things he escaped. The preliminary solemnities, fasting, prayer, and religious rites, were similar to those already described; holy water sometimes was given to the accused to drink; the reservoir of water, or pond, was then exorcised with formulas exhibiting the same combination of faith and impiety, and the accused, bound with cords, was
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CHAPTER VI. THE ORDEAL OF THE BALANCE.
CHAPTER VI. THE ORDEAL OF THE BALANCE.
We have seen above that a belief existed that persons guilty of sorcery lost their specific gravity, and this superstition naturally led to the use of the balance in the effort to discover and punish the crime of witchcraft, which all experts assure us was the most difficult of all offences on which to obtain evidence. The trial by balance, however, was not a European invention. Like nearly all the other ordeals, it can be traced back to India, where, at least as early as the time of the Institu
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CHAPTER VII. THE ORDEAL OF THE CROSS.
CHAPTER VII. THE ORDEAL OF THE CROSS.
The ordeal of the cross ( judicium crucis, stare ad crucem ) was one of simple endurance and differed from all its congeners, except the duel, in being bilateral. The plaintiff and defendant, after appropriate religious ceremonies and preparation, stood with uplifted arms before a cross, while divine service was performed, victory being adjudged to the one who was able longest to maintain his position. An ancient formula for judgments obtained in this manner in cases of disputed titles to land p
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CHAPTER VIII. THE CORSNÆD.
CHAPTER VIII. THE CORSNÆD.
The ordeal of consecrated bread or cheese ( judicium offæ, panis conjuratio, pabulum probationis , the corsnæd of the Anglo-Saxons) was administered by presenting to the accused a piece of bread (generally of barley) or of cheese, about an ounce in weight, 1079 over which prayers and adjurations had been pronounced. After appropriate religious ceremonies, including the communion, the morsel was eaten, the event being determined by the ability of the accused to swallow it. This depended of course
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CHAPTER IX. THE EUCHARIST AS AN ORDEAL.
CHAPTER IX. THE EUCHARIST AS AN ORDEAL.
From ancient times in India there has been in common use an ordeal known as cosha , consisting of water in which an idol has been washed. The priest celebrates solemn rites “to some tremendous deity,” such as Durga or the Adityas, whose image is then bathed in water. Three handfuls of this water are then drunk by the accused, and if within fourteen days he is not visited with some dreadful calamity from the act of the deity or of the king, “he must indubitably be acquitted.” 1093 In adapting the
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CHAPTER X. THE ORDEAL OF THE LOT.
CHAPTER X. THE ORDEAL OF THE LOT.
The appeal to chance, as practised in India, bears several forms, substantially identical in principle. One mode consists in writing the words dherem (consciousness of innocence) and adherem (its opposite) on plates of silver and lead respectively, or on pieces of white and black linen, which are placed in a vessel that has never held water. The person whose cause is at stake inserts his hand and draws forth one of the pieces, when if it happens to be dherem it proves his truth. 1115 Another met
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CHAPTER XI. BIER-RIGHT.
CHAPTER XI. BIER-RIGHT.
The belief that at the approach of the murderer the corpse of the slain would bleed or give some other sign has, under the names of jus feretri , jus cruentationis , bahr-recht , and “bier-right,” been a resource eagerly seized by puzzled jurists. Its source is not easily traced. There is no evidence of its existence among the Eastern Aryans, nor is it alluded to in any of the primitive “Leges Barbarorum,” though Russian legends render probable that it was current among the Slavs at an early day
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CHAPTER XII. OATHS AS ORDEALS.
CHAPTER XII. OATHS AS ORDEALS.
The oath naturally formed an integral portion of the ordeal. Even as in the battle trial both parties, on entering the lists, were compelled to swear to the truth of their assertions, so in the other ordeals the accuser and accused took an oath immediately prior to the administration of the test. 1172 Sometimes, however, the oath of the accused was regarded as a sufficient ordeal in itself. We have seen above how, among many and diverse races, disculpatory oaths are administered with ceremonies
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CHAPTER XIII. POISON ORDEALS.
CHAPTER XIII. POISON ORDEALS.
The poison ordeal, which forms the basis of judicial proceedings among so many of the African tribes, seems not to have been brought into Europe by the Aryan invaders, although it was in use among their kindred who remained in the East. Possibly this may have arisen from the fact that in their migrations they could no longer obtain the substances which they had been accustomed to use, and before they had familiarized themselves with the resources of their new homes the custom may have fallen int
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CHAPTER XIV. IRREGULAR ORDEALS.
CHAPTER XIV. IRREGULAR ORDEALS.
The devout dependence upon Heaven, exhibited in the ordeal, did not exhaust itself on the forms of trial described above, but was manifested in various other expedients, sometimes adopted as legal processes, and sometimes merely the outcome of individual credulous piety. While therefore they cannot be regarded as forming part of the recognized institutions of Europe, still they illustrate too clearly the tendency of thought and belief to be entirely passed over. Among these may be classed a prac
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CHAPTER XV. CONDITIONS OF THE ORDEAL.
CHAPTER XV. CONDITIONS OF THE ORDEAL.
The ordeal was thoroughly and completely a judicial process, ordained by the law for certain cases, and carried out by the tribunals as a regular form of ordinary procedure. From the earliest times, the accused who was ordered to undergo the trial was compelled to submit to it, as to any other decree of court. Thus, by the Salic law, a recusant was summoned to the royal court; and if still contumacious, he was outlawed and his property confiscated, as was customary in all cases of contempt. 1208
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CHAPTER XVI. CONFIDENCE REPOSED IN THE ORDEAL.
CHAPTER XVI. CONFIDENCE REPOSED IN THE ORDEAL.
The degree of confidence really inspired by the results of the ordeal is a somewhat curious subject of speculation on which definite opinions are not easily reached. Judicially, the trial was, for the most part, conclusive; he who had duly sunk under water, walked unharmed among the burning shares, or withdrawn an unblistered hand from a caldron of legal temperature, stood forth among his fellows as innocent. So, even now, the verdict of a few fools or knaves in a jury-box may discharge a crimin
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CHAPTER XVII. THE CHURCH AND THE ORDEAL.
CHAPTER XVII. THE CHURCH AND THE ORDEAL.
The relation of the Church to the vulgar ordeals presents even a more complex question than that which has already been discussed of its connection with the judicial combat. The ordeals were less repugnant to its teachings and more completely dependent upon its ministrations, for while a duel might be fought without the aid of a priest the efficacy of an ordeal depended wholly upon the religious rites which gave it the sanction of a direct invocation of the Almighty. We have seen above that the
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CHAPTER XVIII. REPRESSIVE SECULAR LEGISLATION.
CHAPTER XVIII. REPRESSIVE SECULAR LEGISLATION.
Enlightened legislators were not slow in seconding the efforts of the papacy. Perhaps the earliest instance of secular legislation directed against the ordeal, except some charters granted to communes, is an edict of Philip Augustus in 1200, bestowing certain privileges on the scholars of the University of Paris, by which he ordered that a citizen accused of assaulting a student shall not be allowed to defend himself either by the duel or the water ordeal. 1350 In England, a rescript of Henry II
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CHAPTER I. TORTURE IN EGYPT AND ASIA.
CHAPTER I. TORTURE IN EGYPT AND ASIA.
The preceding essays have traced the development of sacramental purgation and of the ordeal as resources devised by human ingenuity and credulity when called upon to decide questions too intricate for the impatient intellect of a rude and semi-barbarous age. There was another mode, however, of attaining the same object which has received the sanction of the wisest lawgivers during the greater part of the world’s history, and our survey of man’s devious wanderings in the search of truth would be
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CHAPTER II. GREECE AND ROME.
CHAPTER II. GREECE AND ROME.
The absence of torture from the codes of the elder Aryan races is not to be attributed to any inherent objection to its use, but rather to the employment of the ordeal, which in all ages formed part of their jurisprudence, and served as an unfailing resort in all doubtful cases. When we turn to the Aryans who established themselves in Europe and abandoned the ancestral custom of the ordeal, we find it at once replaced by the use of torture. Thus in Greece torture was thoroughly understood and pe
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CHAPTER III. THE BARBARIANS.
CHAPTER III. THE BARBARIANS.
In turning from the nicely poised and elaborate provisions of the Imperial laws to the crude jurisprudence of the Barbarian hordes who gradually inherited the crumbling remains of the Empire of the West, we enter into social and political conditions so different that we are naturally led to expect a cor responding contrast in every detail of legislation. For the cringing suppliant of the audience chamber, abjectly prostrating himself before a monarch who combines in his own person every legislat
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CHAPTER IV. THE GOTHS AND SPAIN.
CHAPTER IV. THE GOTHS AND SPAIN.
Of all the Barbarian tribes, none showed themselves so amenable to the influences of Roman civilization as the Goths. Their comparatively settled habits, their early conversion to Christianity, and their position as allies of the empire long before they became its conquerors, rendered them far less savage under Alaric than were the Franks in the time of Clovis. The permanent occupation of Septimania and Catalonia by the Wisigoths, also, took place at a period when Rome was not as yet utterly sun
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CHAPTER V. CARLOVINGIAN AND FEUDAL LAW.
CHAPTER V. CARLOVINGIAN AND FEUDAL LAW.
In turning to the other barbarian races which inherited the fragments of the Roman empire, we find that the introduction of torture as a recognized and legal mode of investigation was long delayed. Under the Merovingians, as we have seen, its employment, though not infrequent, was exceptional and without warrant of law. When the slow reconstruction of society at length began, the first faint trace of torture is to be found in a provision respecting the crimes of sorcery and magic. These were loo
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CHAPTER VI. REAPPEARANCE OF TORTURE.
CHAPTER VI. REAPPEARANCE OF TORTURE.
The latter half of the twelfth century saw the study of the civil law prosecuted with intense ardor, and, in the beginning of the thirteenth, Innocent III. struck a fatal blow at the barbaric systems of the ordeal and sacramental compurgation by forbidding the rites of the Church to the one and altering the form of oath customary to the other. The unreasoning faith which had reposed confidence in the boiling caldron, or the burning ploughshare, or the trained champion as the special vehicle of D
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CHAPTER VII. THE INQUISITORIAL PROCESS.
CHAPTER VII. THE INQUISITORIAL PROCESS.
During this period, while Central and Western Europe had advanced with such rapid strides of enlightenment, the inquisitorial process, based upon torture, had become the groundwork of all criminal procedure, and every detail was gradually elaborated with the most painstaking perverseness. Allusion has already been made to the influence of the Inquisition in introducing the use of torture. Its influence did not cease there, for with torture there gradually arose the denial to the accused of all f
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CHAPTER VIII. FINAL SHAPE OF THE TORTURE SYSTEM.
CHAPTER VIII. FINAL SHAPE OF THE TORTURE SYSTEM.
Charles V. was too astute a ruler not to recognize the aid derivable from the doctrines of the Roman law in his scheme of restoring the preponderance of the Kaisership, and he lost no opportunity of engrafting them on the jurisprudence of Germany. In his Criminal Constitutions, however, he took care to embody largely the legislation of his predecessors and contemporaries, and though protests were uttered by many of the Teutonic princes, the code, adopted by the Diet of Ratisbon in 1532, became p
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CHAPTER IX. ENGLAND AND THE NORTHERN RACES.
CHAPTER IX. ENGLAND AND THE NORTHERN RACES.
In this long history of legalized cruelty and wrong the races of northern Europe are mostly exceptional. Yet it is somewhat remarkable that the first regular mediæval code in which torture is admitted as a means of investigation is the one of all others in which it would be least expected. The earliest extant law of Iceland, the Grágás, which dates from 1119, has one or two indications of its existence which are interesting as being purely autochthonic and in no sense derivable, as in the rest o
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CHAPTER X. DECLINE OF THE TORTURE SYSTEM.
CHAPTER X. DECLINE OF THE TORTURE SYSTEM.
A system of procedure which entailed results so deplorable as those which we have seen accompany it everywhere, could scarcely fail to arouse the opposition of thinking men who were not swayed by reverence for precedent or carried away by popular impulses. Accordingly, an occasional voice was raised in denunciation of the use of torture. Geiler von Kaisersberg, the most popular preacher of his time in Germany, who died in 1510, endeavored to procure its disuse, as well as to mitigate the cruelti
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