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SUPERSTITION AND FORCE.
Essays on
The Wager of Law—The Wager of Battle—The Ordeal—Torture.
by
HENRY CHARLES LEA, LL.D.
Plurima est et in omni jure civili, et in pontificum libris, et in XII.
tabulis, antiquitatis effigies.—CICERO, _de Oratore I._ 43.
Fourth Edition, Revised.
Philadelphia:
Lea Brothers & Co.
1892.
Entered according to Act of Congress in the year 1892, by
Henry C. Lea,
in the Office of the Librarian of Congress. All rights reserved.
Collins Printing House.
PREFACE.
The history of jurisprudence is the history of civilization. The
labors of the lawgiver embody not only the manners and customs of his
time, but also its innermost thoughts and beliefs, laid bare for our
examination with a frankness that admits of no concealment. These
afford the surest outlines for a trustworthy picture of the past, of
which the details are supplied by the records of the chronicler.
It is from these sources that I have attempted, in the present work, a
brief investigation into the group of laws and customs through which
our forefathers sought to discover hidden truth when disputed between
man and man. Not only do these throw light upon the progress of human
development from primitive savagism to civilized enlightenment, but
they bring into view some of the strangest mysteries of the human mind.
In this edition I have endeavored to indicate, more clearly than
before, the source, in prehistoric antiquity, of some of the
superstitions which are only even now slowly dying out among us, and
which ever and anon reassert themselves under the thin varnish of our
modern rationalism.
In a greatly condensed form the first three essays originally appeared
in the North American Review.
June, 1878.
* * * * *
Although in the revision of this volume for a fourth edition there has
not been found much to alter, considerable additions have been made
which render the survey of the subject more complete. In revising the
essays on the Wager of Battle and the Ordeal I have had the advantage
of the labors of two recent writers, Dr. Patetta, whose “Le Ordalie” is
an extended and philosophical investigation into the whole topic of the
Judgments of God, and George Neilson, Esq., whose “Trial by Combat” is
a complete account, from the original sources, of the history of the
judicial duel in Great Britain. Mr. Neilson has also had the courtesy
to communicate to me the results of his further studies of the subject.
I therefore indulge the hope that the present edition will be found
more worthy of the favor with which the work has been received.
PHILADELPHIA, October, 1892.
CONTENTS.
I.
THE WAGER OF LAW.
CHAPTER I.
RESPONSIBILITY OF THE KINDRED.
PAGE
Crime originally an offence against individuals 13
Tribal organization—Responsibility of kindred 14
Compensation for injuries—The _Wer-gild_ 17
CHAPTER II.
THE OATH AND ITS ACCESSORIES.
Perplexities as to evidence 21
Guarantees required for the oath 25
CHAPTER III.
CONJURATORS, OR PARTAKERS IN THE OATH.
The Wager of Law a prehistoric Aryan custom 33
It is adopted by the Church 35
CHAPTER IV.
SELECTION OF COMPURGATORS.
They are originally the kindred 38
Strangers admitted 41
Numbers required 43
Modes of selection 47
CHAPTER V.
CONDITIONS OF COMPURGATION.
Employed in default of testimony 52
Except in Wales 54
Dependent on importance of case 56
As an alternative for the Wager of Battle 57
CHAPTER VI.
FORMULAS AND PROCEDURE.
Forms of compurgatorial oath 58
Modes of administration 60
Qualified confidence reposed in Compurgation 61
Conjurators liable to penalties of perjury 63
CHAPTER VII.
DECLINE OF COMPURGATION.
Early efforts to limit or abolish it 67
The oath no longer a positive asseveration 71
Influence of revival of Roman law 73
Conservatism of Feudalism 76
Gradual disappearance of Compurgation in Continental Europe 78
Preserved in England until 1833 84
Traces in the British colonies 87
Maintained in the Church and in the Inquisition 88
CHAPTER VIII.
ACCUSATORIAL CONJURATORS.
Employed by the Barbarians 94
Maintained until the sixteenth century 98
II.
THE WAGER OF BATTLE.
CHAPTER I.
Natural tendency to appeal to Heaven 101
Distinction between the Judicial Combat and the Duel 103
CHAPTER II.
ORIGIN OF THE JUDICIAL COMBAT.
A prehistoric Aryan custom 107
CHAPTER III.
UNIVERSAL USE OF THE JUDICIAL COMBAT.
Its form Christianized into an appeal to God 117
Causes of its general employment 118
Practice of challenging witnesses 120
of challenging judges 123
CHAPTER IV.
CONFIDENCE REPOSED IN THE JUDICIAL DUEL.
Its jurisdiction universal 127
Implicit faith reposed in it 135
CHAPTER V.
LIMITATIONS IMPOSED ON THE WAGER OF BATTLE.
Respective rights of plaintiff and defendant 140
Minimum limit of value 147
Questions of rank 148
Liability of women to the Combat 152
of ecclesiastics 155
The Combat under ecclesiastical jurisdiction 161
Not recognized in mercantile law 165
CHAPTER VI.
REGULATIONS OF THE JUDICIAL COMBAT.
Penalty for defeat 166
_Lex talionis_ 169
Security required of combatants 173
Penalty for default 174
Choice of weapons 176
CHAPTER VII.
CHAMPIONS.
Originally kinsmen 179
Employment of champions becomes general 180
Hired champions were originally witnesses 182
Punishment for defeated champions 184
Professional champions—their disabilities 186
Efforts to limit the use of champions 189
Champions of communities 196
of the Church 197
CHAPTER VIII.
DECLINE OF THE JUDICIAL COMBAT.
Iceland and Norway the first to prohibit it 199
Opposition of the Municipalities 200
of the Church 206
Influence of the Roman law 211
Decline of the Judicial Duel in Spain 214
Struggle over its abolition in France 216
Reforms of St. Louis 217
Resistance of the Feudatories 218
Reaction after the death of St. Louis 222
Renewed efforts of Philippe le Bel 222
Continued by his successors 227
Occasional cases in fourteenth, fifteenth, and sixteenth
centuries 228
Final disappearance 235
Its later history in Italy, Hungary, Flanders, Russia, Scotland 235
Maintained in England until the nineteenth century 241
Traces of its legal existence in the United States 246
III.
THE ORDEAL.
CHAPTER I.
UNIVERSAL INVOCATION OF THE JUDGMENT OF GOD.
Tendency of the human mind to cast its doubts on God 249
China an exception 251
The Ordeal in Japan 253
in Africa 254
in the Indian and Pacific Archipelagoes 257
among pre-Aryan Indian Tribes 258
Traces of the Ordeal in Egypt 259
Among Semitic Races—The Assyrians, Hebrews, Moslem 260
Among Aryans—Mazdeism 265
Hinduism—Buddhism 267
Hellenes and Italiotes 269
Celts, Teutons, Slavs 272
The Ordeal in the Barbarian occupation of Europe 275
Adopted by the Church 276
CHAPTER II.
ORDEAL OF BOILING WATER.
Details of its administration 278
Miracles reversing the ordinary process 285
CHAPTER III.
ORDEAL OF RED-HOT IRON.
Various forms of its administration 286
Examples of its use 291
Miracles reversing the ordinary process 301
CHAPTER IV.
ORDEAL OF FIRE.
Its prototypes 303
Examples of its use 305
Used to test relics 314
CHAPTER V.
ORDEAL OF COLD WATER.
Mode of administration 318
Supposed origin in ninth century 320
Received in general use 322
Prolonged employment in witchcraft cases 325
Occasionally used in nineteenth century 332
CHAPTER VI.
ORDEAL OF THE BALANCE.
Modes of administration 334
CHAPTER VII.
ORDEAL OF THE CROSS.
It is one of endurance 336
Its limited use and disappearance 338
CHAPTER VIII.
THE CORSNÆD.
Formula of employment 339
Examples of its use 341
CHAPTER IX.
THE EUCHARIST AS AN ORDEAL.
Superstitions connected with the Eucharist 344
Examples of its use as an ordeal 347
Still used in the seventeenth century 351
CHAPTER X.
ORDEAL OF THE LOT.
Various modes of its administration 352
Appeals to chance—Ordeal of Bible and key 356
Sieve-driving 358
CHAPTER XI.
BIER-RIGHT.
Doubtful origin 359
Examples of its use 361
It lingers to the present day 367
Attempts to explain it 368
Weight ascribed to it 369
CHAPTER XII.
OATHS AS ORDEALS.
Superstitions connected with the oath 371
Risks of perjury in oaths on relics 372
CHAPTER XIII.
POISON ORDEALS.
Used in India, not in Europe 375
CHAPTER XIV.
IRREGULAR ORDEALS.
Iron bands on murderers 377
Examples of miraculous interposition 379
CHAPTER XV.
CONDITIONS OF THE ORDEAL.
It is a regular judicial procedure 383
Compounding for ordeals 383
Ordeal for defeated accuser 385
Absence of testimony usually a prerequisite 386
Usually a means of defence 389
Used in failure of compurgation 390
Sometimes regarded as a punishment 391
Its use in extorting confessions 394
Practically amounts to torture 395
Influence of imagination 396
Champions in ordeals 398
CHAPTER XVI.
CONFIDENCE REPOSED IN THE ORDEAL.
Conflicting views as to its efficacy 399
Explanations of its unjust results 401
Regulations to enforce its impartial administration 404
Usually results in acquittal 406
Use of magic arts 407
CHAPTER XVII.
THE CHURCH AND THE ORDEAL.
Complex relations of the Church to the ordeal 408
Occasional opposition of the papacy 409
But it is sustained by the clergy 409
Its use in trials of heretics 410
Impressiveness of its ritual 413
Reasons of papal opposition 414
Advantages derived from it by the clergy 415
The popes at length accomplish its abolition 417
CHAPTER XVIII.
REPRESSIVE SECULAR LEGISLATION.
Forbidden in England in 1219 420
Gradually falls into desuetude 422
Persistence of superstition 427
IV.
TORTURE.
CHAPTER I.
TORTURE IN EGYPT AND ASIA.
The ordeal and torture are substitutes for each other 429
Torture in Egypt—in Assyria—not used by Hebrews 430
Not used by Oriental Aryans 431
Not used in China—used in Japan 431
CHAPTER II.
GREECE AND ROME.
Usages of torture in Greece 432
Rome—freemen not liable under Republic 434
Cæsarism extends the use of torture 435
Limited by Inscription and the _Lex Talionis_ 439
Torture of witnesses 440
Liability of slaves to torture 441
Limitations on use of torture 444
Value of evidence under torture 446
CHAPTER III.
THE BARBARIANS.
Structure of Barbarian society 449
Freemen originally not liable—torture of slaves 451
Illegal torture of freemen by the Merovingians 454
CHAPTER IV.
THE GOTHS AND SPAIN.
Influence of Roman institutions on the Goths 456
Torture under the Ostrogoths 457
Employed by the Wisigoths—details of its use 458
Transmitted by them to modern Spain 461
Legislation of Las Siete Partidas 462
Final shape of torture system in Castile 466
CHAPTER V.
CARLOVINGIAN AND FEUDAL LAW.
Torture first used for witchcraft, under Charlemagne 469
The Church averse to it 471
Character of institutions adverse to its use 471
Feudalism not favorable to it 472
Torture used for punishment and extortion 473
Ecclesiastical influence adverse to its use 477
CHAPTER VI.
REAPPEARANCE OF TORTURE.
Influence of the Roman law 479
Torture first appears in Latin kingdom of Jerusalem 480
It is revived in Italy in the thirteenth century 481
Influence of the Inquisition 483
First appearance of torture in France, in 1254 487
Its gradual introduction—1283 to 1319 491
Resistance of the nobles in 1315 494
Permanently established in opposition to Feudalism 497
Examples of procedure in the Châtelet of Paris, 1389-1392 500
Introduction in Germany 505
in Italy 506
in Hungary—Poland—Russia 508
in the ecclesiastical courts 510
CHAPTER VII.
THE INQUISITORIAL PROCESS.
Secret proceedings and denial of opportunity for defence 512
Perfected by Francis I. 514
Revised under Louis XIV. 517
Torture _avec réserve des preuves_ 518
Illegal extension of the system in the Netherlands 521
Germany—the Caroline Constitutions 522
CHAPTER VIII.
FINAL SHAPE OF THE TORTURE SYSTEM.
The Roman Law engrafted on German Jurisprudence 524
Theoretical exemptions practically annulled 525
Limitations disregarded in practice 527
Influence of the system on the judge 534
Arbitrary abuses 539
Torture of witnesses 541
Grades of torture 543
Denial of opportunities for defence 544
Confirmation of confession necessary 548
Inconsistencies in the torture system 550
Influence of witch-trials in aggravating the torture system 553
Use of charms to produce insensibility 556
Deceit used in failure of torture 558
Torture in monasteries 560
CHAPTER IX.
ENGLAND AND THE NORTHERN RACES.
Early use of torture in Iceland 561
Influence of the jury-trial in delaying introduction of Torture
in Denmark, Norway, and Sweden 562
England—Torture unknown to the Common Law 563
Introduced as a concession to the royal prerogative 566
Influence of witch-trials 570
Scotland—frightful severity of torture trials 572
CHAPTER X.
DECLINE OF THE TORTURE SYSTEM.
Opponents arise—Vives, Montaigne, Gräfe, etc.—Discussion in the
schools 575
Abolished in Prussia in 1740 579
in Saxony, Austria, Russia 580
Continued in Baden till 1831—Retention of the Inquisitorial Process,
and Revival of Torture in the German Empire 581
Abolished in Spain in 1812 582
in France, 1780-1789 583
in Italy in 1786 586
Retained in Naples 587
Recent instances of its use 588
I.
THE WAGER OF LAW.
CHAPTER I.
RESPONSIBILITY OF THE KINDRED.
The conception of crime as a wrong committed against society is
too abstract to find expression in the institutions of uncivilized
communities. The slayer or the spoiler is an enemy, not of his fellows
in general, but only of the sufferer or of his kindred; and if society
can provide means for the wronged to exact reparation, it has done
its duty to the utmost, and has, indeed, made a notable advance on
the path that leads from barbarism to civilization. How recent has
been our progress beyond this stage of development is illustrated
in the provisions of a code granted so lately as 1231 by the Abbey
of St. Bertin to the town of Arques. By these laws, when a man was
convicted of intentional homicide, he was handed over to the family
of the murdered person, to be slain by them in turn.[1] It still was
vengeance, and not justice, that was to be satisfied.
In early times, therefore, the wrong-doer owed no satisfaction to the
law or to the state, but only to the injured party. That injured party,
moreover, was not a mere individual. All the races of the great Aryan
branch of mankind have developed through a common plan of organization,
in which each family—sometimes merely the circle of near kindred,
at others enlarged into a _gens_ or sept—was a unit with respect to
the other similar aggregations in the tribe or nation, presenting,
with respect to personal rights, features analogous to their communal
holding of land.[2] Within these units, as a general rule, each
individual was personally answerable for all, and all were answerable
for each. A characteristic incident of this system was the _wer-gild_
or blood-money, through which offences were condoned and the aggrieved
were satisfied by a payment made, when the crime was homicide, to the
kindred of the slain, and generally contributed by the kindred of the
slayer.
The fragments of the Avesta are the earliest records of Aryan
legislation that have reached us, and in them we find distinctly marked
evidence of this common responsibility of the kindred.[3] Among the
Hindus, the ancient code, known as the Manava Dharma Sastra, represents
a highly complex social organization, in which primitive institutions
have been completely overlaid by the later and antagonistic elements
of caste and Brahmanism, but yet it reveals the existence of village
communities which were a direct development of the primal system
of the family;[4] and the ancient solidarity of these communities
is shown in the provision that if a murder or robbery could not be
traced, the village in which it occurred was obliged to make it good,
or that to which the track of the offender could be followed.[5] In
the adventures of the Kauravas and Pandavas, moreover, the Mahabharata
preserves fragments of traditions conveying some indications of a
pre-existing solidarity among kindred.[6] Much more clearly defined
were the Hellenic organizations of the _patræ_ and _phratriæ_; while
the institution of the _wer-gild_ is seen in the wages earned by
Heracles in serving Omphale, to be paid to the kinsmen of the murdered
Iphitus; and its existence can be traced to historic times in the
payments provided by the Trallian laws to the families of the subject
Leleges and Minyans who might be slain. Sir Henry Maine has acutely
suggested, also, that the belief in an hereditary curse, which plays
so awful a part in Grecian legend, is derived from the primal idea
of the solidarity of the family group.[7] In Rome, notwithstanding
the powerful Latin tendency to absorb all minor subdivisions into the
state, the institution of the _gens_, and the relationship between the
patron and his clients, bear striking analogies to the organizations
which we find among the Teutonic tribes as they emerge into history;
while the fine imposed on the elder Horatius, to expiate for his son
the crime of slaying his sister, shows a remnant still existing of
the _wer-gild_ levied on the relatives.[8] The early legislation of
the Celts, both in the Irish and Welsh tribes, as we shall presently
see, carried the solidarity of the family to its highest point of
development. The same institutions form a prominent feature of social
organization among the Slavs. The Russian Mir, or communal society,
is evidently a development of the original family; while the Ruskaia
Prawda, the earliest extant code, promulgated by Yaroslav Vladomirovich
in the eleventh century, allows the relatives of a murdered man either
to kill the murderer or to accept a _wer-gild_ from him. The district,
moreover, in which a homicide occurs is liable to a fine, unless
the victim is an unknown stranger: as such, there are none to claim
compensation for him, he is outside of all family organization, and the
law has no protection for him.[9] In Poland, the laws in force until
the close of the fifteenth century provided no other penalty for murder
than a _wer-gild_ to be divided among the kindred and friends of the
slain; and during the fifteenth century there was only a short term of
imprisonment added.[10] Among the southern Slavs the Zadruga takes the
place of the Russian Mir, and is a still more absolute and primitive
form of family organization.[11]
In obedience to this all-pervading tendency of organization, the
barbarian tribes which overthrew the Roman Empire based their
institutions on two general principles—the independence of the
individual freeman and the solidarity of the family group—and on these
were founded their simple forms of jurisprudence. As the criminal
was not responsible to the state, but to the injured party, personal
punishments were unknown, and the law made no attempt to decree
them. All that it could do was to provide rude courts before which
a plaintiff could state his case, and a settled tariff of pecuniary
compensation to console him for his sufferings.[12] If he disdained
this peaceful process, he was at liberty to assemble his kindred and
friends, and exact what satisfaction he could with sword and axe.
The offender, moreover, could not legitimately refuse to appear when
summoned before the _mallum_, or judicial assembly of the tribe;
nor could he, as a rule, claim the right of armed defence, if the
complainant preferred to receive the money payment provided for the
offence of which he might prove his antagonist guilty.
This _wer-gild_ was in no sense a fine inflicted as a punishment for
guilt, but only a compensation to induce the injured party to forego
his right of reprisals, and the interest which society felt in it
was not in the repression of crime, but in the maintenance of peace
by averting the endless warfare of hostile families. An Anglo-Saxon
proverb, quoted approvingly in the laws of Edward the Confessor, as
collected by William the Conqueror, says: “Bicge spere of side oðer
bere”—Buy off the spear from thy side or endure it.[13] The application
of the system is to be seen in the minute and complex tariffs of crime
which form so large a portion of the barbarian codes. Every attempt
against person and property is rated at its appropriate price, from the
theft of a sucking pig to the armed occupation of an estate, and from a
wound of the little finger to the most atrocious of parricides. To what
extent this at last was carried may be seen in the Welsh codes, where
every hair of the eyelash is rated at a penny.[14]
This system introduced into legal proceedings a commercial spirit
which seems strangely at variance with the savage heroism commonly
attributed to our barbarian ancestors. In the translation by Mr. Dasent
of the old Icelandic Saga of Burnt Njal is vividly set forth the
complex procedure which arose from the development of these principles,
whereby suits could be sold and assigned by one party to another, and a
plaintiff with a promising claim for damages would part with it to some
speculator who undertook the chances of the suit; or, if the prospects
were not encouraging, he would pay some shrewd lawyer or mighty
warrior to prosecute it in his stead. As either party in the primitive
Icelandic code could at any moment interrupt the proceedings with a
challenge to single combat, or a powerful pleader might collect his
friends for a raid on the Althing, and thus break up the court, this
traffic in suits was a speculation well fitted to vary the monotony of
a sea-rover’s life on shore.
In the application of this principle of compensation the solidarity
of the family bore a part as conspicuous as in the alternative of
private warfare. The kindred of the offender were obliged to contribute
shares proportionate to their degrees of relationship; while those of
the man who was wronged received respective percentages calculated on
the same basis. Thus the most ancient Barbarian code that has reached
us—that of the Feini, or primitive Irish—in a fanciful quadripartite
enumeration of the principles in force in levying fines, alludes to
the responsibility of kindred—“And because there are four things for
which it is levied: ‘cin’ (one’s own crime), and ‘tobhach’ (the crime
of a near kinsman), ‘saighi’ (the crime of a middle kinsman), and the
crime of a kinsman in general.”[15] A very complete example of the
development of this system is to be found in the Icelandic legislation
of the twelfth century, where the fines exacted diminish gradually, as
far as the relatives in the fifth degree on both sides, each grade of
the criminal’s family paying its rate to the corresponding grade of the
sufferer’s kindred.[16] When, however, the next of kin were females,
and were thus incompetent to prosecute for murder, the person who
undertook that office was rewarded with one-third of the fine.[17] It
was not until about 1270 that King Haco, in his unsuccessful attempt
to reform these laws, ventured to decree that in cases of murder the
blood-money should not be divided among the family of the victim, but
should all be paid to the heir.[18] On the other hand, in Denmark, Eric
VII., in 1269, relieved the kindred of the murderer from contributing
to the _wer-gild_, although it continued to be divided among the
relatives of the slain.[19]
Among the Welsh the provisions for levying and distributing the fines
were almost as complex as those of the early Icelandic law, one
body of jurisprudence extending the liability even as far as sixth
cousins;[20] and perhaps the quaintest expression of the responsibility
of the kindred is to be found in the regulation that if any one
should draw blood from the abbot of either of the seven great houses
of Dyved, the offender should forfeit seven pounds, while a female
of his kindred should become a washerwoman in token of disgrace.[21]
The firm hold which this practical solidarity of the family had upon
the jurisprudence of the European races is shown by a clause in the
statutes of the city of Lille, as late as the fourteenth century, where
the malefactor had the right to collect from his relatives a portion
of the _wer-gild_ which he had incurred; and elaborate tables were
drawn up, showing the amount payable by each relative in proportion
to his degree of kinship, the liability extending as far as to third
cousins.[22] A still more pregnant example of the responsibility
of kindred is found in the customs of Aspres, in 1184, where the
kindred of a homicide, if they would abjure him by oath on relics,
were entitled to the public peace; but, if they refused to do so, it
became the duty of the Count of Hainault, the Abbot of St. Vaast, and
the relatives of the slain, to hunt them down, and seize all their
property.[23]
The introduction of Christianity, with the all-pervading sacerdotalism
of the church, rendered necessary an innovation on the primeval form
of social organization, for ecclesiastical ties dissolved those of the
family. By the Carlovingian legislation, when a priest was slain his
_wer-gild_ was paid to the church, which was held to be nearer to him
than any relative,[24] though this regulation subsequently was modified
so as to divide the composition into three parts, of which one was paid
to the church of the deceased, one to his bishop, and the third to his
kindred.[25] As a general rule, therefore, the clerk could claim no
share of the blood-money collected for the murder of his kinsmen; nor
be called upon to contribute to that incurred by his family;[26] though
it is true that, by the Welsh laws of Hoel the Good, compiled in the
tenth century, children, even prospective, were a link through which
the liability might be again incurred. “Neither clerks nor women are to
have a share of the _galanas_, since they are not avengers; however,
they are to pay for their children or to make oath that they shall
never have any.”[27]
With this exception, therefore, in its relations to the community,
each family in the barbaric tribes was a unit, both for attack and
defence, whether recourse was had to the jealously preserved right of
private warfare, or whether the injured parties contented themselves
with the more peaceful processes of the _mallum_ or _althing_. This
solidarity of the kindred is the key to much that would otherwise
appear irrational in their legislation, and left, as we have seen, its
traces late in the customary law.
CHAPTER II.
THE OATH AND ITS ACCESSORIES.
Between the commission of an offence and its proof in a court of
justice there lies a wide field for the exercise or perversion of
human ingenuity. The subject of evidence is one which has taxed man’s
reasoning powers to the utmost; and the subtle distinctions of the
Roman law, with its _probatio_, _præsumptio juris_, _præsumptio juris
tantum_: the endless refinements of the glossators, rating evidence
in its different grades, as _probatio optima_, _evidentissima_,
_apertissima_, _legitima_, _sufficiens_, _indubitata_, _dilucida_,
_liquida_, _evidens_, _perspicua_, and _semiplena_; and the artificial
rules of the common law, so repugnant frequently to human common
sense, all alike show the importance of the subject, and its supreme
difficulty. The semi-barbarian, impatient of such expenditure of logic,
arrived at results by a shorter process.
The time has passed for the romantic school of writers who assume that
the unsupported oath of the accused was originally sufficient to clear
him of a charge, when the fierce warrior disdained to shrink from the
consequences of his act. It was not, indeed, until long after the
Teutonic tribes had declined from the assumed virtues of their native
forests, that an unsupported oath was receivable as evidence, and the
introduction of such a custom may be traced to the influence of the
Roman law, in which the importance of the oath was overwhelming.[28]
The Wisigoths, who moulded their laws on the Roman jurisprudence, were
the only race of barbarians who permitted the accused, in the absence
of definite testimony, to escape on his single oath,[29] and this
exception only tends to prove the rule, for at the council of Valence,
in 855, the Wisigothic custom was denounced in the strongest terms
as an incentive to perjury.[30] It is true that the oath of a master
could clear a slave accused of certain crimes,[31] which was no less an
incentive to perjury, for the master was liable in case of conviction,
but presumably in such case he took upon himself the responsibility
and laid himself open to an accusation of perjury. As a rule, however,
we may assume that the purgatorial power of a single oath was an
innovation introduced by the church, which was trained in the Roman
institutions and claimed for its members the privilege, when testimony
was deficient, of clearing themselves by appealing in this manner to
God.[32] Continued contact with the remains of Roman civilization
strengthened the custom, and its development was to a great extent
due to the revival of the study of the imperial jurisprudence in the
twelfth century.[33] The primitive principle is well expressed in the
Frisian code, where the pleader says, “I swear alone, if thou darest,
deny my oath and fight me,”[34] where the oath is only the preliminary
to proof by the judgment of God.
The exceptions to this in the early legislation of the barbarians
are merely special immunities bestowed on rank. Thus in one of the
most primitive of the Anglo-Saxon codes, which dates from the seventh
century, the king and the bishop are permitted to rebut an accusation
with their simple asseveration, and the thane and the mass-priest with
a simple oath, while the great body both of clerks and laymen are
forced to clear themselves by undergoing the regular form of canonical
compurgation which will be hereafter described.[35] So, in the Welsh
legislation, exemption from the oath of absolution was accorded to
bishops, lords, the deaf, the dumb, men of a different language, and
pregnant women.[36] Instances of class-privileges such as these may be
traced throughout the whole period of the dark ages, and prove nothing
except the advantages claimed and enjoyed by caste. Thus, by the law of
Southern Germany, the unsupported oath of a claimant was sufficient,
if he were a person of substance and repute, while, if otherwise,
he was obliged to provide two conjurators,[37] and in Castile, the
_fijodalgo_, or noble, could rebut a claim in civil cases by taking
three solemn oaths, in which he invoked on himself the vengeance of God
in this world and the next.[38]
So far, indeed, were the Barbarians from reposing implicit confidence
in the integrity of their fellows that their earliest records show
how fully they shared in the common desire of mankind to place the
oath under the most efficient guarantees that ingenuity could devise.
In its most simple form the oath is an invocation of some deity or
supernatural power to grant or withhold his favor in accordance with
the veracity of the swearer, but at all times men have sought to render
this more impressive by interposing material objects dear to the
individual, which were understood to be offered as pledges or victims
for the divine wrath. Thus, among the Hindus, the ancient Manava Dharma
Sastra prescribes the oath as satisfactory evidence in default of
evidence, but requires it to be duly reinforced—
“In cases where there is no testimony, and the judge cannot decide
upon which side lies the truth, he can determine it fully by
administering the oath.
“Oaths were sworn by the seven Maharshis, and by the gods, to make
doubtful things manifest, and even Vasishtha sware an oath before the
king Sudama, son of Piyavana, when Viswamitra accused him of eating a
hundred children.
“Let not the wise man take an oath in vain, even for things of little
weight; for he who takes an oath in vain is lost in this world and the
next.
“Let the judge swear the Brahman by his truth; the Kshatriya by his
horses, his elephants, or his arms; the Vaisya by his cows, his corn,
and his gold; the Sudra by all crimes.”[39]
And in the more detailed code of Vishnu there is an exceedingly
complicated system of objects to be sworn upon, varying with the amount
at stake and the caste of the swearer.[40]
We see the same custom in Greece, where Homer represents Hera as
exculpating herself by an oath on the sacred head of Zeus, and on
their marriage-bed, a practice which mortals imitated by swearing on
the heads of their children, or on that of their patron, or of the
king.[41] Under the Roman law, oaths were frequently taken on the head
of the litigant, or on those of his children.[42] The Norse warrior was
sworn, like the Hindu Kshatriya, on his warlike gear:
“Oaths shalt thou
First to me swear,
By board of ship,
By rim of shield,
By shoulder of steed,
By edge of sword,
That thou wilt not slay
The wife of Volund,
Nor of my bride
Cause the death.”[43]
When these material pledges were not offered, the sanctions of religion
have in all ages been called into play to impress the imagination of
the swearer with the awful responsibility incurred, the presence of the
deity being obtained by the offer of a sacrifice, or his interposition
being assured by the use of some object of peculiar sacredness. In
Deuteronomy, when the corpse of a murdered man was found, the elders
of the nearest city disculpated themselves and their fellow-citizens
before the Levites over the body of a heifer slain for the purpose.[44]
We see the same principle applied to promissory oaths in the horse
which Tyndareus sacrificed and buried when he exacted from the suitors
of Helen the oath that they would accede to her choice of a bridegroom
and defend her and her husband against all comers;[45] and it is only
necessary to allude to the well-known Ara Maxima of Hercules in
Rome to show the prevalence of the same customs among the Italiotes.
Similar practices were familiar to the Norsemen. Among them the Godi
was both priest and judge, the judgment-seat adjoined the temple, and
all parties to a suit, including judge and witnesses, were solemnly
sworn upon the sacred ring kept for that purpose on the altar. It
was sprinkled with the blood of a sacrificial bull, and then the
oath was taken by invoking Freyr and Niord, and the almighty As to
help the swearer as he should maintain truth and justice.[46] Yet so
little did all these precautions serve to curb the untruthfulness of
the cunning sea-kings that in Viga-Glums Saga we find Glum denying
a charge of murder by an oath taken in three temples, in which he
called Odin to witness in words so craftily framed that while he was
in reality confessing his guilt he apparently was denying it most
circumstantially.[47]
Similarly in Christian times, the most venerated forms of religion
were, from a very early period, called in to lend sanctity to the
imprecation, by devices which gave additional solemnity to the awful
ceremony. In this the natural tendency of the church to follow the
traditional customs of the populations from which its members were
drawn was reinforced by the example of the practices of Judaism. The
“covenant between the pieces,” by which Yahveh confirmed his promises
to Abram, and by which the Jews renewed their promises to him, was
a sacrificial ceremony of the most impressive character, only to be
used on occasions of supreme importance. As soon as a permanent place
of worship was provided, the altar in the temple was resorted to
by litigants in order that the oath might be taken in the presence
of Yahveh himself; and so powerful was the impression of this upon
the Christian mind that in the early ages of the church there was a
popular superstition that an oath taken in a Jewish synagogue was more
binding and more efficient than one taken elsewhere.[48] These beliefs
developed into a great variety of formulas, which would reward an
examination more detailed than that which I can give them here.
In the middle of the sixth century, Pope Pelagius I. did not disdain
to absolve himself from the charge of having been concerned in the
troubles which drove his predecessor Vigilius into exile, by taking a
disculpatory oath in the pulpit, holding over his head a crucifix and
the gospels;[49] and in the eighth century a priest accused without
witnesses to prove his guilt was enabled to absolve himself by placing
the cross upon his head and declaring his innocence by the Everlasting
God.[50] So, when the holy Gregory of Tours was accused of reproachful
words truly spoken of Queen Fredegonda, a council of bishops decided
that he should clear himself of the charge by oaths on three altars,
after celebrating mass on each, which he duly performed, doubtless
more to his corporeal than his spiritual benefit.[51] This plan of
reduplicating oaths on different altars was an established practice
among the Anglo-Saxons, who, in certain cases, allowed the plaintiff
to substantiate his assertion by swearing in four churches, while the
defendant could rebut the charge by taking an oath of negation in
twelve.[52] Seven altars are similarly specified in the ancient Welsh
laws in cases where a surety desired to deny his suretyship;[53] and,
according to the _Fleta_, as late as the thirteenth century, a custom
was current among merchants of proving the payment of a debt by
swearing in nine churches, the abuse of which led to its abrogation.[54]
The intense veneration with which relics were regarded, however, caused
them to be generally adopted as the most effective means of adding
security to oaths, and so little respect was felt for the simple oath
that, ere long, the adjuncts came to be looked upon as the essential
feature, and the imprecation itself to be divested of binding force
without them. Thus, in 680, when Ebroin, mayor of the palace of
Burgundy, had defeated Martin, Duke of Austrasia, and desired to entice
him from his refuge in the stronghold of Laon, two bishops were sent
to him bearing the royal reliquaries, on which they swore that his
life should be safe. Ebroin, however, had astutely removed the holy
remains from their cases in advance, and when he thus got his enemy
in his power, he held it but a venial indiscretion to expose Martin
to a shameful death.[55] How thoroughly this was in accordance with
the ideas of the age is shown by the incorporation, in the canons of
the church, of the doctrine that an oath was to be estimated by its
externals and not by itself. The penitential of David, dating from the
latter half of the sixth century, provides that perjury committed in
a church shall be punished by a fine of four times the value of that
for which the false oath was taken,[56] but no penalty is provided for
false swearing elsewhere. As the theory developed itself this tacit
condoning of such perjury was boldly declared to be good ecclesiastical
law, and the venerable code of morality which passes under the name of
Theodore Archbishop of Canterbury assumes that a false oath taken on
a consecrated cross requires, for absolution, three times the penance
necessary in cases where the oath had been taken on an unconsecrated
one, while, if the ministration of a priest had not been employed, the
oath was void, and no penalty was inflicted for its violation.[57] In
a similar mood the penitential known as that of Gregory III. provides
that three years’ penance will absolve for perjury committed on a
consecrated cross or on the hand of a bishop or priest, while seven
years are requisite if the oath has been taken on the gospels or on
an altar with relics.[58] This rule took its final shape in the canon
law, which provides one year’s penance for perjury committed on an
unconsecrated cross, and three years’ for that on a consecrated one, or
on the hand of a bishop.[59]
These principles were adopted as the fundamental basis of all legal
procedures in Wales. Every prosecution and defence required relics to
give validity to the oaths of both parties, and even in the fifteenth
century a collection of laws declares that a plaintiff coming into
court without a relic on which to make his oath, not only lost his
cause, but incurred a fine of nine-score pence. The same tendency is
shown in the rule by which a man who suspected another of theft could
go to him with a relic, and in the presence of witnesses demand an oath
of negation, a failure in which was a conviction of the crime imputed,
without further trial.[60] In the same spirit, ecclesiastical authority
was even found to admit that a powerful motive might extenuate the sin
of perjury. If committed voluntarily, seven years of penitence were
enjoined for its absolution; if involuntarily, sixteen months, while
if to preserve life or limb, the offence could be washed out with four
months.[61] When such doctrines were received and acted upon, we can
hardly wonder at the ingenious device which the sensitive charity of
King Robert the Pious imitated from the duplicity of Ebroin, to save
the souls of his friends. He provided two reliquaries on which to
receive their oaths—one for his magnates, splendidly fabricated of
crystal and gold, but entirely empty, the other for the common herd,
plainer and enshrining a bird’s egg. Knowing in advance that his
lieges would be forsworn, he thus piously sought to save them from sin
in spite of themselves, and his monkish panegyrist is delighted in
recounting this holy deceit.[62]
It was easy, from a belief such as this, to draw the deduction that
when an oath was sworn on relics of peculiar sanctity, immediate
punishment would follow perjury; and thus it followed that some
shrines obtained a reputation which caused them to be resorted to in
the settlement of disputed judicial questions. Even as early as St.
Augustin there are traces of such practices, which that Father of
the Church not only records, but imitated,[63] and at a later period
the legends are numerous which record how the perjured sinner was
stricken down senseless or rendered rigid and motionless in the act
of swearing falsely.[64] From this point of view oaths were really
ordeals, and as such we shall consider them hereafter. At present it
suffices to observe that the profit which the church derived from
thus administering oaths on relics affords an easy explanation of her
teachings, and of the extension of these practices. Their resultant
advantages are well illustrated by the example of the holy taper of
Cardigan, in Wales. A miraculous image of the Virgin was cast ashore,
bearing this taper burning in its hand. A church was built for it, and
the taper “contynued styll burnynge the space of nyne yeres, without
wastynge, until the tyme that one forsware himselfe thereon, so then
it extincted, and never burned after.” At the suppression of the house
under Henry VIII., the prior, Thomas Hore, testified: “Item, that
since the ceasynge of burnynge of the sayd taper, it was enclosed and
taken for a greate relyque, and so worshipped and kyssed of pylgremes,
and used of men to sweare by in difficill and harde matters, whereof
the advauntage admounted to greate sommes of money in tymes passed,
payenge yerely to the same XXti nobles for a pencion unto thabbott of
Chersey.”[65]
In all this Spain would seem to be exceptional. In the thirteenth
century the rule is expressed that a pleader must take the oath
required of him by his antagonist; if he is required to swear by God,
it will not suffice for him to swear by some saint, or by his own head.
Oaths could indeed be taken on crosses or altars, but they could also
be reduced to the simplest asseveration. Thus, there is a provision
that if one party says “Swear to me on your simple word,” then the
reply “know that it is so,” or “believe me that it is so,” suffices,
and has all the force of the most solemn adjuration.[66]
CHAPTER III.
CONJURATORS, OR PARTAKERS IN THE OATH.
Notwithstanding the earnestness with which these teachings were
enforced, it may readily be believed that the wild barbarian, who was
clamoring for the restoration of stolen cattle, or the angry relatives,
eager to share the _wer-gild_ of some murdered kinsman, would scarce
submit to be balked of their rights at the cost of simple perjury on
the part of the criminal. We have seen that both before and after their
conversion to Christianity they had little scruple in defiling the most
sacred sanctions of the oath with cunning fraud, and they could repose
little confidence in the most elaborate devices which superstition
could invent to render perjury more to be dreaded than defeat. It was
therefore natural that they should perpetuate an ancestral custom,
which had arisen from the structure of their society, and which derived
its guarantee from the solidarity of families alluded to above. This
was the custom which was subsequently known as canonical compurgation,
and which long remained a part of English jurisprudence, under the
name of the Wager of Law. The defendant, when denying the allegation
under oath, appeared surrounded by a number of companions—_juratores_,
_conjuratores_, _sacramentales_, _collaudantes_, _compurgatores_, as
they were variously termed—who swore, not to their knowledge of the
facts, but as sharers and partakers in the oath of denial.
This form of procedure derives importance from the fact that it is an
expression of the character, not of an isolated sept, but of nearly all
the races that have moulded the destinies of modern Europe. Although
unknown to the Roman law, there are traces of it in the ancient
Hellenic legislation.[67] The Ostrogoths in Italy, and the Wisigoths
of the south of France and Spain were the only nations in whose extant
codes it occupies no place, and they, as has already been remarked,
at an early period yielded themselves completely to the influence
of the Roman civilization.[68] On the other hand, the Salians, the
Ripuarians, the Alamanni, the Baioarians, the Lombards, the Frisians,
the Norsemen, the Saxons, the Angli and Werini, the Anglo-Saxons, and
the Welsh, races whose common origin must be sought in the prehistoric
past, all gave to this form of purgation a prominent position in their
jurisprudence, and it may be said to have reigned from Southern Italy
to Scotland.[69]
The earliest text of the Salic law presents us with the usages of the
Franks unaltered by any allusions to Christianity, and it may therefore
be presumed to date from a period not later than the conversion of
Clovis. In this primitive code there are directions for the employment
of conjurators, which show that the procedure was a settled and
established form at that period.[70] So in the Frisian law, which,
although compiled in the eighth century, still reveals pagan customs
and the primitive condition of society, the practice of compurgation
evidently forms the basis of judicial proceedings. The Islands
Landnamabok also exhibits it as a form of regular procedure among the
heathen Norsemen. Although the other codes have only reached us in
revisions subsequent to the conversion of the several tribes, still,
the universal use of the practice shows that its origin must be traced
to a period anterior to the separation of the several races from the
original common stock.
The church, with the tact which distinguished her dealings with her
new converts, was not long in adopting a system which was admirably
suited for her defence in an age of brute force. As holy orders
sundered all other ties, and as the church was regarded as one vast
family, ecclesiastics speedily arrogated to themselves and obtained
the privilege of having men of their own class as compurgators, and,
thus fortified for mutual support, they were aided in resisting the
oppressors who invaded their rights on every hand. This claim, with
all its attendant advantages, was fully conceded when Charlemagne, in
the year 800, went to Rome for the purpose of trying Pope Leo III.
on a grave charge, and in that august presence the Pontiff, whom no
witnesses dared to accuse, cleared himself of the crimes imputed to him
by solemnly taking the oath of denial in company with twelve priests
as compurgators.[71] Three years afterwards, the Emperor decreed
that, in all doubtful cases, priests should defend themselves with
three, five, or seven ecclesiastical compurgators, and he announced
that this decision had been reached by the common consent of pope,
patriarchs, bishops, and all the faithful.[72] It is true that a few
months later, on being shown a decretal of Gregory II.[73] ordering the
clergy to rebut with their single oaths all accusations unsupported by
witnesses, he modified his previous command, and left the matter to
the discretion of his prelates; but this had no practical result, for
Charlemagne’s capitulary was adopted in the canon law and ascribed to
Leo himself.[74] The custom soon received the papal sanction again in
the most solemn manner. In 823, Pope Pascal I. was more than suspected
of complicity in the murder of Theodore and Leo, two high dignitaries
of the papal court. Desirous to avoid an investigation by the
commissioners sent by Louis le Débonnaire, he hastily purged himself
of the crime in anticipation of their arrival, by an oath taken with a
number of bishops as his compurgators;[75] and it is a striking example
of the weight accorded to the procedure that, although the assumed
fault of the victims had been their devotion to the imperial party,
and though the pope had by force of arms prevented any pursuit of the
murderers, the emperor was powerless to exact satisfaction, and there
was nothing further to be done. Pope Pascal stood before the world an
innocent man.
It is true that, in the tenth century, Atto of Vercelli complains
bitterly that a perverse generation refused to be satisfied with the
single oath of an accused priest, and required him to be surrounded
by compurgators of his class, which that indignant sacerdotalist
regarded as a grievous wrong.[76] As the priesthood, however, failed
in obtaining the entire immunity for which they strove during those
turbulent times, the unquestioned advantages which compurgation
afforded recommended it to them with constantly increasing force.
Forbidden at length to employ the duel in settling their differences,
and endeavoring, in the eleventh and twelfth centuries, to obtain
exemption from the ordeal, they finally accepted compurgation as the
special mode of trial adapted to members of the church, and for a long
period we find it recognized as such in all the collections of canons
and writings of ecclesiastical jurists.[77] From this fact it obtained
its appellation of _purgatio canonica_, or canonical compurgation.
CHAPTER IV.
SELECTION OF COMPURGATORS.
As already remarked, the origin of the custom is to be traced to the
principle of the unity of families. As the offender could summon his
kindred around him to resist an armed attack of the injured party, so
he took them with him to the court, to defend him with their oaths.
Accordingly, we find that the service was usually performed by the
kindred, and in some codes this is even prescribed by law, though not
universally.[78] This is well illustrated in the Welsh laws, where the
_raith_, or compurgation, was the basis of almost all procedure, and
where consequently the system was brought to its fullest perfection.
Complicated rules existed as to the proportion of paternal and maternal
kindred required in various cases, and the connection between the
_wer-gild_ and the obligation of swearing in defence of a kinsman was
fully recognized—“Because the law adjudges the men nearest in worth
in every case, excepting where there shall be men under vows to deny
murder,” therefore the compurgators were required to be those “nearest
to obtain his worth if killed.”[79] Under these circumstances, the
_raith-man_ could be objected to on the score of not being of kin, when
the oaths of himself and his principal were received as sufficient
proof of relationship;[80] and the _alltud_, or foreigner, was not
entitled to the raith unless he had kindred to serve on it.[81] How the
custom sometimes worked in practice among the untameable barbarians is
fairly illustrated by a case recounted by Aimoin as occurring under
Chilperic I. in the latter half of the sixth century. A wife suspected
by her husband offered the oath of purgation on the altar of St. Denis
with her relatives, who were persuaded of her innocence; the husband
not yet satisfied, accused the compurgators of perjury, and the fierce
passions of both parties becoming excited, weapons were speedily drawn,
and the sanctity of the venerable church was profaned with blood.[82]
It was manifestly impossible, however, to enforce the rule of kinship
in all cases, for the number of compurgators varied in the different
codes, and in all of them a great number were required when the matter
at stake was large, or the crime or criminal important. Thus when
Chilperic I. was assassinated in 584, doubts were entertained as to
the legitimacy of his son Clotair, an infant of four months—doubts
which neither the character of Queen Fredegonda nor the manner of
Chilperic’s death had any tendency to lessen—and Gontran, brother of
the murdered king, did not hesitate to express his belief that the
royal child’s paternity was traceable to some one of the minions of
the court, a belief doubtless stimulated by the promise it afforded
him of another crown. Fredegonda, however, repaired her somewhat
questionable reputation and secured the throne to her offspring, by
appearing at the altar with three bishops and three hundred nobles,
who all swore with her as to the legitimacy of the little prince,
and no further doubts were ventured on the delicate subject.[83] A
similar case occurred in Germany in 899, when Queen Uta cleared herself
of an accusation of infidelity, by taking a purgatorial oath with
eighty-two nobles.[84] So in 824, a dispute between Hubert, Bishop
of Worcester, and the Abbey of Berkeley, concerning the monastery of
Westbury, was settled by the oath of the bishop, supported by those
of fifty mass-priests, ten deacons, and a hundred and fifty other
ecclesiastics.[85] These were, perhaps, exceptional instances, but
in Wales the law required, as a regular matter, enormous numbers of
compurgators in many cases. Privity to homicide, for instance, was
divided into three triads, or nine classes of various degrees of
guilt. Of these, the first triad called for one hundred raith-men to
establish the denial; the second triad, 200, and the third, 300;[86]
while, to rebut an accusation of killing with savage violence or
poisoning, the enormous number of six hundred compurgators was
considered necessary.[87] Even these armies of oath-takers did not
widen the circle from which selection was allowed, for the law
absolutely specifies that “the oaths of three hundred men of a kindred
are required to deny murder, blood, and wound,”[88] and the possibility
of finding them is only explicable by the system of tribes or clans in
which all were legally related one to another. This is illustrated by
a further regulation, according to which, under the Gwentian code, in
an accusation of theft, with positive evidence, the thief was directed
to clear himself with twenty-four raith=men of his own _cantrev_ or
district, in equal number from each _cymwd_ or sub-district.[89]
Under a different social organization, it is evidently impossible
that a kindred sufficiently large could have been assembled in the
most numerous families, and even when the requirements were more
reasonable, the same difficulty must frequently have occurred. This
is recognized in the Danish laws of the thirteenth and fourteenth
centuries, where the conjuratorial oaths of kindred, known as _neffn
i kyn_, were requisite, unless the accused could swear that he had no
relations, in which case he was allowed to produce twelve other men of
proper character, _lag feste men_.[90] In a constitution of Frederic
II. in 1235, the compurgators are required to be of the same class
as their principal, and to be _sinodales homines_, men of undoubted
character.[91] Thus the aid of those not connected by ties of blood
must often have been necessary, and as it was a service not without
danger, as we shall see hereafter, it is not easy to understand how
the requisite number was reached. In certain cases, no doubt, the
possibility of obtaining those not bound by kindred to undertake the
office is traceable to the liability which in some instances rested
upon a township for crime committed within its borders;[92] while
the system of guilds in which the members shared with each other a
responsibility resembling that of kinship rendered participation in the
oath of denial almost a necessity when a comrade was prosecuted.[93]
It would be endless to specify all the variations in the numbers
required by the different codes in all imaginable cases of quarrel
between every class of society. Numerous elements entered into these
regulations; the nature of the crime or claim, the station of the
parties, the rank of the compurgators, and the mode by which they
were selected. Thus, in the simplest and most ancient form, the Salic
law merely specifies twenty-five compurgators to be equally chosen by
both parties.[94] Some formulas of Marculfus specify three freeholders
and twelve friends of the accused.[95] A Merovingian edict of 593
directs the employment of three peers of the defendant, with three
others chosen for the purpose, probably by the court.[96] Alternative
numbers, however, soon make their appearance, depending upon the manner
in which the men were chosen. Thus among the Alamanni, on a trial
for murder, the accused was obliged to secure the support of twenty
designated men, or, if he brought such as he had selected himself,
the number was increased to eighty.[97] So, in a capitulary of 803,
Charlemagne prescribes seven chosen conjurators, or twelve if taken
at random,[98] a rule which is virtually the same as that laid down
by the Emperor Henry III. in the middle of the eleventh century.[99]
In 922 the council of Coblentz directs that accusations of sacrilege
could be rebutted with twenty-four chosen men, or seventy-two freemen
not thus selected.[100] In Bigorre the law thus discriminated against
the _cagots_—an infamous wandering race of uncertain origin—for cases
in which the oaths of seven conjurators ordinarily sufficed required
thirty _cagots_, when the latter were called upon to act.[101] In an
English record of the fifteenth century we find a defendant called
upon to prove his innocence with six of his neighbors or twelve
strangers.[102]
Strangely enough, the church at one time adopted the principle that the
higher the rank of the accused the more he must present of his peers
as compurgators. Thus the bishop required eleven bishops, the priest
five priests, and the deacon two deacons; but Cardinal Henry of Susa
who enunciates this says it is an error, and that the number is at the
discretion of the judge.[103] The rule, moreover, that the compurgators
must be of the same rank and class as the accused was waived when they
were presumably inimical to him or the proper number could not be had,
and thus a cleric might be cleared by the oaths of laymen.[104]
Variations likewise occur arising from the nature of the case and the
character of the plaintiff. Thus in the Scottish law of the twelfth
century, in a criminal charge, a man could defend himself against his
lord with eleven men of good reputation, but if the king were the
accuser, twenty-four were requisite, who were all to be his peers,
while in a civil case twelve were sufficient.[105] So in the burgher
laws of David I., ordinary cases between citizens were settled with
ten conjurators, but eleven were necessary if the king were a party,
or if the matter involved the life, limb, or lands of one of the
contestants; and in cases occurring between a citizen and a countryman,
each party had to provide conjurators of his own class.[106] In the
complicated rules for compurgation which form the basis of the Welsh
jurisprudence, there are innumerable details of this nature. We have
seen that for some crimes many hundred _raith-men_ were required,
while similar numbers were enjoined in some civil suits respecting
real property.[107] From this the number diminishes in proportion to
the gravity of the case, as is well illustrated by the provisions for
denying the infliction of a bruise. If the mark remained until the
ninth day, the accused could deny it with “two persons of the same
privilege as himself;” if it remained until the eighteenth day, the
oaths of three conjurators were necessary; if till the twenty-seventh
day, four _raith-men_ were required.[108]
The character of the _raith-men_ also affected the number demanded.
Thus, in a collection of Welsh laws of the fifteenth century there
is an explanation of the apparent anomaly that privity to theft
or homicide required for its defence a vastly greater number of
compurgators than the commission of the crime itself. The large
bodies prescribed for the former consisted simply of any men that
could be had—of course within the recognized grades of kindred—while,
for the latter, rules of varying complexity were laid down. Thus, of
the twenty-four required for theft, in some texts it is prescribed
that two-thirds are to be of the nearest paternal kin, and one-third
of the nearest maternal; or, again, one-half _nod-men_.[109] So, in
accusations of homicide, the same proportions of paternal and maternal
kindred were required, all were to be proprietors in the country
of the _raith_, and three, moreover, were to be men under vows of
abstinence from linen, horses, and women, besides a proper proportion
of _nod-men_.[110]
Instances also occur in which the character of the defendant regulated
the number required. Among the Welsh, the laws of Hoel Dda provide
that a wife accused of infidelity could disprove a first charge with
seven women; if her conduct provoked a second investigation, she had
to procure fourteen; while, on a third trial, fifty female conjurators
were requisite for her escape.[111] Another application of the same
principle is found in the provision that when a man confessed a
portion of the crime imputed to him and denied the remainder, an
augmented _raith_ was required to support his denial, because it is
more difficult to believe a man who has admitted his participation in
a criminal act. Thus when only fifty men were requisite to rebut a
charge of homicide, and the accused admitted one of the accessories to
homicide, his denial of the main charge had to be substantiated by one
hundred, two hundred, or three hundred men, according to the nature
of the case. On the other hand, where no criminal act was concerned,
confession of a portion diminished the _raith_ for the remainder. Thus
in a claim for suretyship, six compurgators were necessary to the
defendant; but if he admitted part of the suretyship, his unsupported
oath was sufficient to rebut the remainder, as the admission of
a portion rendered him worthy of belief.[112] In the Anglo-Saxon
jurisprudence, the _frangens jusjurandum_, as it was called, also
grew to be an exceedingly complex system in the rules by which the
number and quality of the conjurators were regulated according to
the nature of the crime and the rank of the accused. In cases of
peculiar atrocity, such as violation of the sanctity of the grave,
only thanes were esteemed competent to appear.[113] In fact, among the
Anglo-Saxons, the value of a man’s oath was rated according to his
rank, that of a thane, for instance, being equal to those of seven
villeins.[114] The same peculiarity is observable among the Frisians,
whose laws required that compurgators should be of the same class as
their principal, and the lower his position in the State, the larger
was the number requisite.[115]
It was, however, not only the number of compurgators required that
affected the result, but the method by which they were chosen, and this
gave rise to wide variations in practice. Originally, it is probable
that the selection was left to the accused, who gathered them from
among his kindred. This would lead almost inevitably to his acquittal,
as forcibly pointed out by Hincmar in the ninth century. In objecting
to admit the purgation of an offending priest with ecclesiastics of
his own choice, he states that evil-minded men combined together to
defeat justice and secure immunity for their crimes by serving each
other in turn, so that when the accused insisted on offering his
companions to the oath, it was necessary to make them undergo the
ordeal to prove their sincerity.[116] His expressions indicate that the
question of selection at that time was undecided in France, and the
alternative numbers alluded to above show one of the methods adopted to
meet the evident evils of the process. Other nations devised various
expedients. The original Lombard law of King Rotharis gave to the
plaintiff the privilege of naming a majority of the compurgators, the
remainder being chosen by the defendant,[117] but even in this the
solidarity of the family was recognized, since it was the duty of the
plaintiff to select the nearest relatives of his adversary, provided
they were not personally hostile to the accused.[118] This same spirit
is shown even so late as 1116, in a charter by which Baldwin VII. of
Flanders gratified the citizens of Ypres by substituting among them
the process of compurgation for the ordeal and battle trial. According
to this, the accuser selected four of the relatives of the accused
to take the purgatorial oath; if they refused through known enmity,
he was bound to select four other of the kindred, and if none such
were to be found then four legal men sufficed.[119] The English law
was the first to educe a rational mode of trial from the absurdity
of the barbaric traditions, and there the process finally assumed
a form which occasionally bears a striking resemblance to trial by
jury—in fact, it insensibly runs into the latter, to the rise of
which it probably contributed. By the laws of Canute, in some cases,
fourteen men were named to the defendant, among whom he was obliged to
find eleven willing to take the purgatorial oath with him.[120] The
selection of these virtual jurors was probably made by the _gerefa_,
or sheriff;[121] they could be challenged for suspicion of partiality
or other competent cause, and were liable to rejection unless
unexceptionable in every particular.[122] Very similar to this was the
_stockneffn_ of the ancient Danish law, by which, in cases where the
relatives were not called upon, thirteen men were chosen, a majority
of whom could clear the accused by taking the oath with him. They were
nominated by a person appointed for the purpose, and if the court
neglected this duty, the privilege enured to the plaintiff.[123] More
facile for the defence was a process prescribed in a Spanish charter
of 1135, where, in cases of homicide, it sufficed for the accused to
obtain five conjurators out of twelve selected by the magistrates.[124]
A method combining selection and chance is described in the custumal of
Ipswich in the twelfth century, to decide questions of debt between the
townsfolk. The party on whom proof was incumbent brought in ten men;
these were divided into two bands of five each, and a knife was thrown
up between them; the band towards which the point of the knife fell was
taken, one of the five was set aside, and the remaining four served as
conjurators.[125]
The Northern nations were evidently less disposed to favor the
accused than the Southern. In Sweden and Denmark, another regulation
provides that although the defendant had a right to demand this mode
of purgation, yet the plaintiff had the selection of the twelve men
who served as conjurators; three of these the accused could challenge
for enmity, but their places were supplied by the plaintiff.[126] The
evanescent code compiled for Iceland by Haco Haconsen and his son
Magnus, towards the close of the thirteenth century, is more equitable
in its provisions. Though it leaves the nomination of the conjurators
to the defendant, the choice is subject to limitations which placed
it virtually in the power of the court. They were required to be men
of the vicinage, of good repute, peers of the accused, and in no way
connected with him by blood or other ties.[127] The more lasting code
promulgated at the same time by Magnus for his Norwegian dominions, a
code which became the common law of Norway for 500 years, provides,
for cases in which eleven conjurators are required, that seven of them
shall be selected of intelligent men of full age, and in no way related
to the accused, yet residents of the vicinage, and acquainted with the
facts; the accused can then add four more of good character, himself
making the twelfth.[128] We see here, as in the English jurisprudence,
how nearly the conjuratorial process approaches to the jury-trial, and
how completely it has departed from its origin in the solidarity of the
family.
Such care in the selection of those on whom duties so responsible
devolved did not prevail among the more Southern races at an earlier
age. Among the Lombards slaves and women in tutelage were often
employed.[129] The Burgundians required that the wife and children, or,
in their absence, the father and mother of the accused should assist
in making up the number of twelve,[130] the object being evidently
to increase the responsibility of the family for the action of its
head. The abuses of this custom, however, caused its prohibition under
Charlemagne for the reason that it led to the swearing of children
of tender and irresponsible age.[131] That legislator, however,
contented himself with forbidding those who had once been convicted of
perjury from again appearing either as witnesses or conjurators;[132]
and the little care that was deemed necessary in their selection
under the Carlovingian jurisprudence is shown by a law of Louis le
Débonnaire ordering that landless freemen should be allowed to serve as
conjurators, though ineligible as witnesses.[133] A truer conception
of the course of justice is manifested, some centuries later, by
the Béarnese legislation, which required that the _seguidors_ or
conjurators, as well as the _testimonis_ or witnesses should be men
able to pay the amount at stake, together with the fine incurred by
the losing party,[134] or that they should be fair and loyal men, not
swayed by enmity.[135]
In ecclesiastical trials it would seem that the selection of
compurgators rested with the bishop. In a case occurring in the
thirteenth century, of a priest accused of homicide who failed in
his compurgation, he appealed to the Holy See on the ground that his
accusers were perjurers and that the bishop had chosen the compurgators
to suit himself.[136] As a matter of course, the result of the trial
depended, as it does with the modern jury, on the fairness with which
the choice was made, and in the universal corruption of the middle ages
there is no reason to suppose that favoritism or bribery was not a
controlling influence in a majority of cases.
CHAPTER V.
CONDITIONS OF COMPURGATION.
The conditions under which resort was had to this mode of deciding
litigation have been the subject of some discussion. It has been
assumed that, in the early period, before the ferocious purity of
the Barbarians had become adulterated under the influence of Roman
civilization, it was used in all description of cases, at the option
of the defendant, and was in itself a full and satisfactory proof,
received on all hands as equal to any other.[137] The only indication
that I have met with, among the races of Teutonic stock, tending
to the support of such a conjecture, occurs in the Lombard code,
where Rotharis, the earliest compiler of written laws, abolishes a
previously existing privilege of denying under oath a crime after it
had been confessed.[138] A much more powerful argument on the other
side, however, is derivable from the earliest text of the Salic law,
to which reference has already been made. In this, the formula shows
clearly that conjurators were only employed in default of other
testimony;[139] and what lends additional force to the conclusion is
that this direction disappears in subsequent revisions of the law,
wherein the influences of Christianity and of Roman civilization are
fully apparent. No safe deductions, indeed, can be drawn from mere
omissions to specify that the absence of witnesses was necessary, for
these ancient codes are drawn up in the rudest manner, and regulations
which might safely be presumed to be familiar to every one would not,
in their curt and barbarous sentences, be repeated with the careful
redundancy which marks our modern statutes. Thus there is a passage
in the code of the Alamanni which declares in the most absolute form
that if a man commits a murder and desires to deny it, he can clear
himself with twelve conjurators.[140] This, by itself, would authorize
the assumption that compurgation was allowed to override the clearest
and most convincing testimony, yet it is merely a careless form of
expression, for another section of the same code expressly provides
that where a fact is proved by competent witnesses the defendant shall
not have the privilege of producing compurgators.[141]
It therefore seems evident that, even in the earliest times, this
mode of proof was only an expedient resorted to in doubtful matters,
and on the necessity of its use the _rachinborgs_ or judges probably
decided. A case recorded in the Landnamabok certainly shows that among
the heathen Norsemen the Godi or priest-judge had this power, for when
Thorbiorn Digre prosecuted Thorarin of Mafahlid for horse-stealing, and
demanded that he should produce twelve conjurators, Arnkell, the Godi,
decided that the accused might clear himself with his simple oath on
the holy ring of the altar, and thus the prosecution came to naught
except as leading to a bloody feud.[142] That this discretion was
lodged in the court in subsequent times is generally admitted. It is
scarcely worth while to multiply proof; but a few references will show
the light in which the custom was regarded.[143]
As employed by the Church, the rule was distinctly enunciated in the
thirteenth century that the accused was not to be allowed to clear
himself by canonical purgation when the crime was notorious or when the
accuser offered to prove the charge.[144]
The Welsh, however, were exceptional in this respect. The _raith_ was
the corner-stone of their system of jurisprudence. It was applied to
almost all actions, whether of civil or criminal law, and even cases of
doubtful paternity were settled by it, no woman, except one “of bush
and brake” who had no legal kindred, being allowed to give testimony
or take an oath with respect to the paternity of her illegitimate
child.[145] It excluded and superseded all other procedures. If the
accused declined to take the oath of denial, then testimony on both
sides could be introduced, and the case be settled on the evidence
adduced;[146] but where he chose to abide by the _raith_, the Book of
Cynog formally declares that “Evidences are not to be brought as to
_galanas_ [homicide], nor _saraad_ [insults], nor blood, nor wound,
nor ferocious acts, nor waylaying, nor burning buildings, nor theft,
nor surety, nor open assault, nor adultery, nor violence, nor in a
case where guardians should be, nor in a case where an established
raith is appointed by law; because evidences are not to extinguish a
raith.”[147] Indeed, the only case which I have found wherein it was
refused is where a priest of the same parish as one accused of theft
testifies to have seen him in open daylight with the article stolen in
his possession, when apparently the sacred character of the witness
precludes a denial on the part of the defendant.[148]
Among other races confidence in its ability to supplement absent or
deficient testimony was manifested in another form—the _juramentum
supermortuum_—which was employed by various nations, at wide intervals
of time. Thus, in the earliest legislation of the Anglo-Saxons, we
find that when the defendant or an important witness was dead, the
oath which he would have taken or the deposition which he would have
made was obtained by proceeding to his tomb, where a certain number of
conjurators swore as to what he could or would have done if alive.[149]
Two centuries later, the same custom is alluded to in the Welsh laws
of Hoel Dda,[150] and even as late as the thirteenth century it was
still in force throughout Germany.[151] There were other cases in which
evidence of any kind was almost impossible, and in these the wager of
law offered a convenient resource. Thus, Frederic II., in 1235, decreed
that a man harboring an outlaw should himself be outlawed, but he was
allowed to prove with six conjurators that he was ignorant of the
outlawry.[152]
A remarkable use of conjurators to confirm the evidence of witnesses
occurs in 850 in a dispute between Cantius, Bishop of Siena, and
Peter, Bishop of Arezzo, concerning certain parishes claimed by both.
The occasion was a solemn one, for it was before a council held in
Rome presided over jointly by Pope Leo IV. and the Emperor Louis II.
Peter relied upon written charters, while Cantius produced witnesses.
The Emperor pronounced the claim of the latter to be just, when he
and twelve priests swore that the oaths of the witnesses were true
and without deceit, whereupon the disputed parishes were adjudged to
him.[153]
The employment of compurgators, however, depended frequently upon the
degree of crime alleged, or the amount at stake. Thus, in many codes,
trivial offences or small claims were disposed of by the single oath of
the defendant, while more important cases required compurgators, whose
numbers increased with the magnitude of the matter in question. This
principle is fairly illustrated in a charter granted to the Venetians
in the year 1111 by Henry V. In suits which involved only the value
of a silver pound, the oath of the party was sufficient; but if the
claim amounted to twelve pounds or more, then twelve chosen men were
requisite to substantiate the oath of negation.[154]
In England in the thirteenth century we find compurgation very
generally employed in the manorial courts for the settlement of petty
criminal actions. So general was its use, indeed, that it obtained the
name of “law,” as the legal method _par excellence_, and the process
is curtly described in the reports as “facere legem,” “esse ad legem,”
“vadiare legem,” whence is derived the term “wager of law.” The number
of compurgators was generally two or five, and they seem to have been
left, as a rule, to the choice of the defendant, so that failure to
procure the requisite number was very unusual.[155]
In later times, compurgation was also sometimes used as an alternative
when circumstances prevented the employment of other popular modes of
deciding doubtful cases. Those, for instance, who would ordinarily be
required to defend themselves by the wager of battle, were permitted by
some codes to substitute the oaths of a certain number of conjurators,
when precluded by advanced age from appearing in the arena. The burgher
law of Scotland affords an example of this,[156] though elsewhere
such cases were usually settled by the substitution of champions.
Class privileges also manifested themselves in this as in so many
other features of mediæval law, and we sometimes find compurgation
allowed as a favor to those of gentle birth. Thus, in the Council of
Reims in 1119, among the provisions for the enforcement of the Truce
of God, accusations of its violation are rebutted by knights with
six compurgators, while common people are required to undergo the
ordeal.[157]
CHAPTER VI.
FORMULAS AND PROCEDURE.
The primitive lawgivers were too chary of words in their skeleton codes
to embody in them the formula usually employed for the compurgatorial
oath. We have therefore no positive evidence of its nature in the
earliest times; but as the forms made use of by several races at a
somewhat later period have been preserved, and as they resemble each
other in all essential respects, we may reasonably assume that little
variation had previously occurred. The most ancient that I have met
with occurs in an Anglo-Saxon formulary which is supposed to date
from about A. D. 900: “By the Lord, the oath is clean and unperjured
which N. has sworn.”[158] A century later, in a compilation of the
Lombard law, it appears: “That which the accused has sworn is true, so
help me God.”[159] The form specified in Béarn, at a period somewhat
subsequent, is curt and decisive: “By these saints, he tells the
truth;”[160] while the code in force in Normandy until the sixteenth
century directs an oath identical in spirit: “The oath which William
has sworn is true, so help me God and his saints.”[161] It will be
observed that all these, while essentially distinct from the oath
of a witness, are still unqualified assertions of the truth of the
principal, and not mere asseverations of belief or protestations of
confidence. The earliest departure from this positive affirmation,
in secular jurisprudence, occurs in the unsuccessful attempt at
legislation for Norway and Iceland by Haco Haconsen in the thirteenth
century. In this, the impropriety of such oaths is pointed out, and
it is directed that in future the compurgator shall swear only,
in confirmation of his principal, that he knows nothing to the
contrary.[162] In the similar code promulgated in 1274 by his son
Magnus in Norway, it is directed that the accused shall take a full
oath of denial, and the conjurators shall swear in the same words that
his oath is true, and that they know nothing truer.[163]
We shall see that, before the custom fell into total disuse, the
change which Haco vainly attempted, came to be generally adopted, in
consequence, principally, of the example set by the church. Even before
this was formally promulgated by the Popes, however, ecclesiastics
occasionally showed that they were more careful as to what they swore,
and at a comparatively early period they introduced the form of merely
asserting their belief in the oath taken by their principal. Thus, in
1101, we find two bishops endeavoring to relieve a brother prelate from
a charge of simony, and their compurgatorial oath ventures no further
than “So help me God, I believe that Norgaud, Bishop of Autun, has
sworn the truth.”[164]
In the form of oath, however, as well as in so many other particulars,
the Welsh had a more complicated system, peculiar to themselves. The
ordinary _raith-man_ only was required to take an oath “that it appears
most likely to him that what he swears to is true.” In many aggravated
crimes, however, a certain proportion, generally one-half, had to be
_nod-men_ who were bound to a more stringent form, as the law specifies
that “the oath of a nod-man is, to be in accordance with what is sworn
by the criminal.”[165] The difference, as we have seen, in the numbers
required when a portion were _nod-men_ shows how much more difficult
it was to find men willing to swear to an absolute denial, and how
much more weight was attached to such a declaration than to the lax
expression of opinion contained in the ordinary oath of the _raith-man_.
Variations are likewise observable in the form of administering the
oath. Among the Alamanni, for instance, the compurgators laid their
hands upon the altar, and the principal placed his hand over the
others, repeating the oath alone;[166] while among the Lombards, a
law of the Emperor Lothair directs that each shall take the oath
separately.[167] It was always, however, administered in a consecrated
place, before delegates appointed by the judges trying the cause,
sometimes on the altar and sometimes on relics. In the Welsh laws
of the fifteenth century it is specified that all _raiths_ shall be
administered in the parish church of the defendant, before the priest
shall have disrobed or distributed the sacramental bread.[168] At an
earlier period a formula of Marculfus specifies the Capella S. Martini,
or cope of St. Martin,[169] one of the most venerated relics of the
royal chapel, whence we may perhaps conclude that it was habitually
used for that purpose in the business of the royal Court of Appeals.
Notwithstanding the universality of the custom, and the absolute
character of the decisions reached by the process, it is easy to
discern that the confidence reposed in it was of a very qualified
character, even at an early period. The primitive law of the Frisians
describes some whimsical proceedings, prescribed for the purpose of
determining the responsibility for a homicide committed in a crowd.
The accuser was at liberty to select seven from among the participants
of the brawl, and each of these was obliged to deny the crime with
twelve conjurators. This did not absolve them, however, for each of
them was also individually subjected to the ordeal, which finally
decided as to his guilt or innocence. In this, the value of the
compurgation was reduced to that of the merest technical ceremony,
and yet a failure to procure the requisite number of supporters was
tantamount to a conviction, while, to crown the absurdity of the whole,
if any one succumbed in the ordeal, his conjurators were punished as
perjurers.[170] A similar want of confidence in the principle involved
is shown by a reference in the Anglo-Saxon laws to the conjurators
of an accused party being outsworn (_overcythed_), when recourse was
likewise had to the ordeal.[171] Among the heathen Norsemen, indeed,
an offer by either party to produce conjurators could always be met by
the antagonist with a challenge to the duel, which at once superseded
all other proceedings.[172] As regards the church, although the
authoritative use of compurgation among ecclesiastics would seem to
demand for it among them implicit faith in its results, yet we have
already seen that, in the ninth century, Hincmar did not hesitate to
require that in certain cases it should be confirmed by the ordeal;
and two centuries later, a remark of Ivo of Chartres implies a
strong degree of doubt as to its efficacy. In relating that Sanctio,
Bishop-elect of Orleans, when accused of simony by a disappointed
rival, took the oath of negation with seven compurgators, he adds
that the accused thus cleared himself as far as he could in the eyes
of man.[173] That the advantages it offered to the accused were duly
appreciated, both by criminals and judges, is evident from the case of
Manasses, Archbishop of Reims. Charged with simony and other offences,
after numerous tergiversations he was finally summoned for trial
before the Council of Lyons, in 1080. As a last effort to escape the
impending doom, he secretly offered to Bishop Hugh, the Papal legate,
the enormous sum of two hundred ounces of gold and other presents in
hand, besides equally liberal prospective payments, if he could obtain
the privilege of compurgation with six suffragan bishops. Gregory VII.
was then waging too uncompromising a war with the corroding abuse of
simony for his lieutenant to yield to any bribe, however dazzling; the
proffer was spurned, Manasses confessed his guilt by absence, and was
accordingly deposed.[174] Incidents like this, however, did not destroy
confidence in the system, for, some sixty years later, we find Innocent
II. ordering the Bishop of Trent, when similarly accused of simony,
to clear himself with the oaths of two bishops and three abbots or
monks.[175]
The comparative value attached to the oaths of conjurators is
illustrated by the provisions which are occasionally met with,
regulating the cases in which they were employed in default of
witnesses, or in opposition to them. Thus, in the Baioarian law, the
oath of one competent witness is considered to outweigh those of six
conjurators;[176] and among the Lombards, an accusation of murder which
could be met with three witnesses required twelve conjurators as a
substitute.[177]
It is therefore evident that conjurators were in no sense witnesses,
that they were not expected to give testimony, and that they merely
expressed their confidence in the veracity of their principal. It may
consequently at first sight appear somewhat unreasonable that they
should be held guilty of perjury and subject to its penalties in case
of unluckily sustaining the wrong side of a cause. It is probably
owing to this apparent injustice that some writers have denied that
they were involved in the guilt of their principal, and among others
the learned Meyer has fallen into this error.[178] The proof, however,
is too clear for dispute. We have already seen that the oath was an
unqualified assertion of the justice of the side espoused, without
reservation justifying the escape of the compurgators from the charge
of false swearing, and one or two incidental references have been made
to the punishments inflicted on them when subsequently convicted of
perjury. The code of the Alamanni recognized the guilt involved in
such cases when it denied the privilege of compurgation to any one who
had previously been more than once convicted of crime, giving as a
reason the desire to save innocent persons from incurring the sin of
perjury.[179] Similar evidence is derived from a regulation promulgated
by King Liutprand in the Lombard Law, by which a man nominated as a
conjurator, and declining to serve, was obliged to swear that he dared
not take the oath for fear of his soul.[180] A case in point occurs in
the life of St. Boniface, whose fellow-laborer Adalger in dying left
his property to the church. The graceless brothers of the deceased
disputed the bequest, and offered to make good their claim to the
estate by the requisite number of oaths. The holy man ordered them to
swear alone, in order not to be concerned in the destruction of their
conjurators, and on their unsupported oaths gave up the property.[181]
The law had no hesitation in visiting such cases with the penalties
reserved for perjury. By the Salic code unlucky compurgators were
heavily fined.[182] Among the Frisians, they had to buy themselves off
from punishment by the amount of their _wer-gild_—the value set upon
their heads.[183] A slight relaxation of this severity is manifested
in the Carlovingian legislation, by which they were punished with the
loss of a hand—the customary penalty of perjury—unless they could
establish, by undergoing the ordeal, that they had taken the oath in
ignorance of the facts; but even in trifling causes a defeated litigant
could accuse his own conjurator of perjury, when both parties were
sent to the ordeal of the cross, and if the conjurator broke down
he lost a hand.[184] So late as the close of the twelfth century,
we find Celestin III. ordering the employment of conjurators in a
class of cases about the facts of which they could not possibly know
anything, and decreeing that if the event proved them to be in error
they were to be punished for perjury.[185] That such liability was
fully recognized at this period is shown by the argument of Aliprandus
of Milan, a celebrated contemporary legist, who, in maintaining the
position that an ordinary witness committing perjury must always lose
his hand, without the privilege of redeeming it, adds that no witness
can perjure himself unintentionally; but that conjurators may do so
either knowingly or unknowingly, that they are therefore entitled to
the benefit of the doubt, and if not wittingly guilty, that they should
have the privilege of redeeming their hands.[186]
All this seems in the highest degree irrational, yet in criticising the
hardships to which innocent conjurators were thus exposed, it should
be borne in mind that the whole system had become a solecism. In its
origin, it was simply summoning the kinsmen together to bear the brunt
of the court, as they were bound to bear that of battle; and as they
were liable for a portion of the fine which was the penalty of all
crimes—personal punishments for freemen being unknown—they could well
afford to incur the risk of paying for perjury in order to avoid the
assessment to be levied upon them in case of the conviction of their
relative. In subsequent periods, when the family responsibility became
weakened or disused, and the progress of civilization rendered the
interests of society more complex, the custom could only be retained
by making the office one not to be lightly undertaken. A man who was
endeavoring to defend himself from a probable charge of murder, or who
desired to confirm his possession of an estate against a competitor
with a fair show of title, was expected to produce guarantees that
would carry conviction to the minds of impartial men. As long as the
practice existed, it was therefore necessary to invest it with every
solemnity, and to guard it with penalties that would obviate some of
its disadvantages.
Accordingly, we find that it was not always a matter of course for a
man to clear himself in this manner. The ancient codes have frequent
provisions for the fine incurred by those unable to procure the
requisite number of compurgators, showing that it was an occurrence
constantly kept in mind by legislators. Nor was it only landless and
friendless men who were exposed to such failures. In 794, a certain
Bishop Peter was condemned by the Synod of Frankfort to clear himself,
with two or three conjurators, of the suspicion of being involved in a
conspiracy against Charlemagne, and, small as was the number, he was
unable to procure them.[187] So, in the year 1100, when the canons
of Autun, at the Council of Poitiers, accused their bishop, Norgaud,
of simony and other irregular practices, and he proposed to absolve
himself with the compurgatorial oaths of the Archbishop of Tours and
the Bishop of Rédon, the canons went privately to those prelates and
threatened that in such event they would bring an accusation of perjury
and prove it by the ordeal of fire, whereupon the would-be conjurators
wisely abandoned their intention, and Norgaud was suspended.[188] I
have already referred (p. 51) to a case before the Papal Penitentiary
about 1240, in which a priest accused of homicide was put upon his
purgation and failed, whereupon his bishop deprived him of function and
benefice, and he hastened to Rome with a complaint that the bishop had
not been impartial in the selection of compurgators. The most rigid
compliance with the requisitions of the law was exacted. Thus the
statutes of Nieuport, in 1163, provide a heavy penalty, and in addition
pronounce condemnation, when a single one of the conjurators declines
the oath.[189] It goes without saying that failure in compurgation was
equivalent to conviction or confession.[190]
CHAPTER VII.
DECLINE OF COMPURGATION.
In a system of which the fundamental principle was so vicious, the best
efforts of legislation could prove but a slight palliation, and from
an early period we find efforts made for its abrogation or limitation.
In 983, a constitution of Otho II. abolished it in cases of contested
estates, and substituted the wager of battle, on account of the
enormous perjury which it occasioned.[191] In England, a more sweeping
denunciation, declaring its abolition and replacing it with the vulgar
ordeal, is found in the confused and contradictory compilation known as
the laws of Henry I.[192]
We have already seen, from instances of later date, how little
influence these efforts had in eradicating a custom so deeply rooted in
the ancestral prejudices of all the European races. The hold which it
continued to enjoy on the popular confidence is well illustrated by the
oath which, according to the Romancero, was exacted of Alfonso VI. of
Castile, by the Cid to clear him of suspicion of privity to the death
of his brother and predecessor Sancho II. at the siege of Zamora,
where he was slain by Bellido Delfos—
“Que nos fagays juramento
Qual vos lo querrán tomar,
Vos y doce de los vuesos,
Quales vos querays juntar,
Que de la muerte del Rey
Non tenedes que culpar....
Ni tampoco della os plugo,
Ni a ella distes lugar.”[193]
The same reliance on its efficacy is shown in a little ballad by
Audefroi-le-Bâtard, a renowned _trouvère_ of the twelfth century:—
LA BELLE EREMBORS.[194]
“Quand vient en mai, que l’on dit as lons jors,” etc.
In the long bright days of spring-time,
In the month of blooming May,
The Franks from royal council field
All homeward wend their way.
Rinaldo leads them onward,
Past Erembors’ gray tower,
But turns away, nor deigns to look
Up to the maiden’s bower.
Ah, dear Rinaldo!
Full in her turret window
Fair Erembors is sitting,
The love-lorn tales of knights and dames
In many a color knitting.
She sees the Franks pass onward,
Rinaldo at their head,
And fain would clear the slanderous tale
That evil tongues have spread.
Ah, dear Rinaldo!
“Sir knight, I well remember
When you had grieved to see
The castle of old Erembors
Without a smile from me.”
“Your vows are broken, princess,
Your faith is light as air,
Your love another’s, and of mine
You have nor reck nor care.”
Ah, dear Rinaldo!
“Sir knight, my faith unbroken,
On relics I will swear;
A hundred maids and thirty dames
With me the oath shall share.
I’ve never loved another,
From stain my vows are free.
If this content your doubts and fears,
You shall have kisses three.”
Ah, dear Rinaldo!
Rinaldo mounts the staircase,
A goodly knight, I ween,
With shoulders broad and slender waist,
Fair hair and blue eyes keen.
Earth holds no youth more gifted
In every knightly measure;
When Erembors beholds him,
She weeps with very pleasure.
Ah, dear Rinaldo!
Rinaldo in the turret
Upon a couch reposes,
Where deftly limned are mimic wreaths
Of violets and of roses.
Fair Erembors beside him
Sits clasped in loving hold,
And in their eyes and lips they find
The love they vowed of old!
Ah, dear Rinaldo!
In England, although as we have seen (p. 57), the wager of law was the
customary resource of the manorial courts in disputed questions, the
shrewd and intelligent lawyers who were building up and systematizing
the practice of the royal courts were disposed to limit it as much as
possible in criminal cases. Towards the close of the twelfth century,
Glanville compiled his excellent little treatise “De legibus Angliæ,”
the first satisfactory body of legal procedure which the history of
mediæval jurisprudence affords. Complete as this is in all the forms
of prosecution and defence, the allusions to conjurators are so slight
as to show that already they were employed rather on collateral
points than on main questions. Thus a defendant who desired to deny
the serving of a writ could swear to its non-reception with twelve
conjurators;[195] and a party to a suit, who had made an unfortunate
statement or admission in court, could deny it by bringing forward
two to swear with him against the united recollections and records
of the whole court.[196] The custom, however, still maintained its
hold on popular confidence. In 1194, when Richard I. undertook,
after his liberation, to bring about a reconciliation between his
chancellor William, Bishop of Ely, and the Archbishop of York, one of
the conditions was that the chancellor should swear with a hundred
priestly compurgators that he had neither caused nor desired the arrest
of the archbishop.[197] In the next century Bracton alludes to the
employment of conjurators in cases of disputed feudal service between a
lord and his vassal, wherein the utmost exactness was rigidly required
both as to the number and fitness of the conjurators,[198] and we shall
see that no formal abrogation of it took place until the nineteenth
century. An outgrowth of the custom, moreover, was the Inquest of
Fame, by which “the general character of the accused, as found by a
jury, was accepted as an indication of the guilt or innocence of the
prisoner.”[199]
Soon after the time of Glanville, the system of compurgation received
a severe shock from its most important patron, the church. As stated
above, in proceedings between ecclesiastics, it was everywhere received
as the appropriate mode of deciding doubtful cases. At the same time
the absolute character of the compurgatorial oath was too strong an
incentive to perjury, ignorant or wilful, for conscientious minds to
reconcile themselves to the practice, and efforts commenced to modify
it. About 1130 Innocent II., in prescribing compurgation for the Bishop
of Trent, accused of simony, orders that the oath of the conjurators
shall be simply as to their belief in the bishop’s oath.[200] Gratian
inserted this in his _Decretum_, and a commentator soon afterwards
speaks of it as an opinion held by some authorities.[201] It was
reserved for Innocent III. to give this the full sanction of law as
a general regulation. Compurgation was too valuable a resource for
churchmen to be discarded, and he endeavored to check the abuses
to which it led, by demanding conjurators of good character, whose
intimacy with the accused would give weight to their oaths.[202] At
the same time, in endeavoring to remove one of the objections to its
use, he in reality destroyed one of its principal titles to respect,
for in decreeing that compurgators should only be obliged to swear to
their belief in the truth of the principal’s oath,[203] he attacked the
very foundation of the practice, and gave a powerful impulse to the
tendency of the times no longer to consider the compurgator as sharing
the guilt or innocence of the accused. Such an innovation could only be
regarded as withdrawing the guarantee which had immemorially existed.
To recognize it as a legal precept was to deprive the proceeding of its
solemnity and to render it no longer a security worthy the confidence
of the people or sufficient to occupy the attention of a court of
justice.
In the confusion arising from the long and varying contest as to the
boundaries of civil and ecclesiastical jurisdiction, it is not easy to
determine the exact influence which this decretal may have exercised
directly in secular jurisprudence. We have seen above that the ancient
form of absolute oath was still employed without change until long
after this period, but the moral effect of so decided a declaration
from the head of the Christian church could not but be great. Another
influence, not less potent, was also at work. The revival of the
study of the Roman jurisprudence, dating from about the middle of
the twelfth century, soon began to exhibit the results which were to
work so profound a change in the legal maxims and principles of half
of Europe.[204] The criminal procedure of the Barbarians had rested
to a great degree on the system of negative proofs. In the absence of
positive evidence of guilt, and sometimes in despite of it, the accused
was bound to clear himself by compurgation or by the ordeal. The
cooler and less impassioned justice of the Roman law saw clearly the
futility of such attempts, and its system was based on the indisputable
maxim that it is morally impossible to prove a negative—unless, indeed,
that negative should chance to be incompatible with some affirmative
susceptible of evidence—and thus the onus of proof was thrown upon the
accuser.[205] The civil lawyers were not long in recognizing the truth
of this principle, and in proclaiming it far and wide. The Spanish code
of Alfonso the Wise, in the middle of the thirteenth century, asserts
it in almost the same words as the Roman jurisconsult.[206] Not long
before, the Assises de Jerusalem had unequivocally declared that “nul
ne peut faire preuve de non;” and Beaumanoir, in the _Coutumes du
Beauvoisis_, approvingly quotes the assertion of the civil doctors to
the same effect, “Li clerc si dient et il dient voir, que negative ne
doit pas quevir en proeve.”
Abstract principles, however, though freely admitted, were not yet
powerful enough to eradicate traditional customs rooted deeply in
the feelings and prejudices of the age. The three bodies of law just
cited contradict their own admissions, in retaining with more or less
completeness the most monstrous of negative proofs—the ordeal of
battle—and the introduction of torture soon after exposed the accused
to the chances of the negative system in its most atrocious form.
Still these codes show a marked progress as relates to the kindred
procedure of compurgation. The Partidas, promulgated about 1262,
record the convictions of an enlightened ruler as to what should be
law rather than the existing institutions of a people, and were not
accepted as authoritative until the middle of the fourteenth century.
The absence of compurgation in Spain, moreover, was a direct legacy
from the Wisigothic code, transmitted in regular descent through the
Fuero Juzgo.[207] The Assises de Jerusalem is a more precious relic
of mediæval jurisprudence. Constructed as a code for the government
of the Latin kingdoms of the East, in 1099, by order of Godfrey of
Bouillon, it has reached us only in the form assumed about the period
under consideration, and as it presents the combined experience of
the warriors of many Western races, its silence on the subject of
conjurators is not a little significant. The work of Beaumanoir,
written in 1283, is not only the most perfect embodiment of the
French jurisprudence of his time, but is peculiarly interesting as a
landmark in the struggle between the waning power of feudalism and
the Roman theories which gave intensity of purpose to the enlightened
centralization aimed at by St. Louis: and Beaumanoir likewise passes
in silence over the practice of compurgation, as though it were no
longer an existing institution. All these legislators and lawyers had
been preceded by the Emperor Frederic II., who, in 1231, promulgated
his “Constitutiones Sicularum” for the government of his Neapolitan
provinces. Frederic was Latin, and not Teutonic, both by education and
predilection, and his system of jurisprudence is greatly in advance of
all that had preceded it. That conjurators should find no place in his
scheme of legal procedure is, therefore, only what might be expected.
The collection of laws known as the _Êtablissements_ of St. Louis is
by no means a complete code, but it is sufficiently copious to render
the absence of all allusion to compurgation significant. In fact, the
numerous references to the Digest show how strong was the desire to
substitute the Roman for the customary law, and the efforts of the king
to do away with all negative proofs of course included the one under
consideration. The same may be said of the _Livres de Jostice et de
Plet_ and the _Conseil_ of Pierre de Fontaines, two unofficial books
of practice, which represent with tolerable fulness the procedures
in vogue during the latter half of the thirteenth century; while the
_Olim_, or records of the Parlement of Paris, the king’s high court
of justice, show that the same principles were kept in view in the
long struggle by which that body succeeded in extending the royal
jurisdiction at the expense of the independence of the vainly resisting
feudatories. In the _Olim_ from 1254 to 1318, I can find but two
instances in which compurgation was required—one in 1279 at Noyon, and
one in 1284 at Compiègne. As innumerable decisions are given of cases
in which its employment would have been equally appropriate, these two
can only be regarded as exceptional, and the inference is fair that
some local custom rendered it impossible to refuse the privilege on
these special occasions.[208]
All these were the works of men deeply imbued with the spirit of the
resuscitated jurisconsults of Rome. Their labors bear testimony rather
to the influences tending to overthrow the institutions bequeathed by
the Barbarians to the Middle Ages, than to a general acceptance of
the innovations attempted. Their authority was still circumscribed
by the innumerable jurisdictions which yet defied their gradual
encroachments and resolutely maintained ancestral customs. Thus, in
1250, we find in the settlement of a quarrel between Hugues Tirel
Seigneur of Poix in Picardy and the commune of that place, that one
of the articles was to the effect that the mayor with thirty-nine of
the bourgeois should kneel before the dame de Poix and offer to swear
that an insult inflicted on her had not been done, or that if it had,
it had been in honor of the Seigneur de Poix.[209] Even an occasional
instance may be found where the central power itself permitted the
use of compurgation, showing how difficult it was to eradicate the
prejudices transmitted through ages from father to son, and that the
policy adopted by St. Louis and Philippe le Bel, aided by the shrewd
and energetic civil lawyers who assisted them so ably, was not in all
cases adhered to. Thus, in 1283, when the bailli of Amiens was accused
before the Parlement of Paris of having invaded the privileges of the
church by trying three clerks accused of crime, it was decided that
he should swear with six compurgators as to his ignorance that the
criminals were ecclesiastics.[210] So, in 1303, a powerful noble of
the court of Philippe le Bel was accused of a foul and treacherous
murder, which a brother of the victim offered to prove by the wager
of battle. Philippe was endeavoring to abolish the judicial duel, and
the accused desired strongly to escape that ordeal. He was accordingly
condemned to clear himself of the imputed crime by a purgatorial oath
with ninety-nine nobles, and at the same time to satisfy the fraternal
claim of vengeance with an enormous fine[211]—a decision which offers
the best practical commentary on the degree of faith reposed in this
system of purgation. Even the Parlement of Paris in 1353 and a rescript
of Charles le Sage in 1357 allude to compurgation as still in use and
of binding force.[212]
It was in the provinces, however, that the system manifested its
greatest vitality, protected both by the stubborn dislike to
innovation and by the spirit of independence which so long and so
bitterly resisted the centralizing efforts of the crown. The Roman law
concentrated all power in the person of the sovereign, and reduced his
subjects to one common level of implicit obedience. The genius of the
barbaric institutions and of feudalism localized power. The principles
were essentially oppugnant, and the contest between them was prolonged
and confused, for neither party could in all cases recognize the
ultimate result of the minuter points involved, though each was fully
alive to the broad issues of the struggle.
How obstinate was the attachment to bygone forms may be understood
when we see even the comparatively precocious civilization of a city
like Lille preserve the compurgatorial oath as a regular procedure
until the middle of the fourteenth century, even though the progress of
enlightenment had long rendered it a mere formality, without serious
meaning. Until the year 1351, the defendant in a civil suit was obliged
to substantiate the oath of denial with two conjurators of the same
sex, who swore to its truth, to the best of their belief.[213] The
minutest regulations were enforced as to this ceremony, the position
of every finger being determined by law, and though it was the veriest
formality, serving merely as an introduction to the taking of testimony
and the legal examination of the case, yet the slightest error
committed by either party lost him the suit irrecoverably.[214]
Normandy was even more faithful to the letter of the ancient
traditions. The Coutumier in use until the revision of 1583 under Henry
III. retains a remnant of the practice under the name of _desrene_, by
which, in questions of little moment, a man could rebut an accusation
with two or four compurgators, even when it was sustained by witnesses.
The form of procedure was identical with that of old, and the oath,
as we have already seen (page 58), was an unqualified assertion of
the truth of that of the accused.[215] Practically, however, we may
assume that the custom had become obsolete, for the letters patent of
Henry III., ordering the revision in 1577, expressly state that the
provisions of the existing laws “estoient la pluspart hors d’usage et
peu ou point entendu des habitants du pays;” and that compurgation was
one of the forgotten formulas may fairly be inferred from the fact that
Pasquier, writing previous to 1584, speaks of it as altogether a matter
of the past.[216]
The fierce mountaineers of Béarn were comparatively inaccessible to the
innovating spirit of the age, and preserved their feudal independence
amid the progress and reform of the sixteenth century long after it
had become obsolete elsewhere throughout Southern Europe. Accordingly,
we find the practice of compurgation maintained as a regular form of
procedure in the latest revision of their code, made by Henry II.
of Navarre in 1551, which continued in force until the eighteenth
century.[217] The influence of the age is shown, however, even there,
in a modification of the oath, which is no longer an unreserved
confirmation of the principal, but a mere affirmation of belief.[218]
In Castile, a revival of the custom is to be found in the code
compiled by Pedro the Cruel, in 1356, by which, in certain cases,
the defendant was allowed to prove his innocence with the oath of
eleven hidalgos.[219] This, however, is so much in opposition to
the principles of the Partidas, which had but a few years previous
been accepted as the law of the land, and is so contrary to the
spirit of the Ordenamiento de Alcalà, which continued in force until
the fifteenth century, that it can only be regarded as a tentative
resuscitation of mere temporary validity.
* * * * *
The Northern races resisted more obdurately the advances of the
reviving influence of the Roman law. Though we have seen Frederic
II. omitting all notice of compurgation in the code prepared for his
Neapolitan dominions in 1231, he did not attempt to abrogate it among
his German subjects, for it is alluded to in a charter granted to the
city of Regensburg in 1230.[220] The Schwabenspiegel, which during the
thirteenth and fourteenth centuries was the municipal law of Southern
Germany, directs the employment of conjurators in various classes of
actions which do not admit of direct testimony.[221] The code in force
in Northern Germany, as we have already seen, gave great facilities
for rebutting accusations by the single oath of the defendant, and
therefore the use of conjurators is but rarely referred to in the
Sachsenspiegel, though it was not unknown, for either of the parties to
a judicial duel could refuse the combat by procuring six conjurators
to swear with him that he was related to his antagonist.[222] In the
Saxon burgher law, however, the practice is frequently alluded to, and
it would seem from various passages that a man of good character who
could get six others to take with him the oath of denial was not easily
convicted. But where there was satisfactory proof, compurgation was not
allowed, and in homicide cases, if a relative of the slain decided to
proceed by the duel, his claim of vengeance was supreme, and no other
process was admissible.[223] It is evident, however, that compurgation
retained its hold on popular respect when we see, about 1300, the
Emperor Albert I. substituting it for the duel in a considerable class
of criminal cases.[224] In the early part of the sixteenth century,
Maximilian I. did much to diminish the use of the compurgatorial
procedure,[225] but that he failed to eradicate it entirely is
evident from a constitution issued by Charles V. in 1548, wherein its
employment is enjoined in doubtful cases in a manner to show that it
was an existing resource of the law, and that it retained its hold upon
public confidence, although the conjurators were only required to swear
as to their belief in the oath of their principal.[226]
In the Netherlands it likewise maintained its position. Damhouder,
writing in 1554, after describing its employment in the Courts
Christian, adds that by their example it was occasionally used also in
secular tribunals.[227]
In Scotland, as late as the middle of the fourteenth century, its
existence is proved by a statute which provides that if a thief escaped
from confinement, the lord of the prison should clear himself of
complicity with the evasion by the oaths of thirty conjurators, of whom
three were required to be nobles.[228]
The Scandinavian nations adhered to the custom with even greater
tenacity. In the code of Haco Haconsen, issued towards the close
of the thirteenth century, it appears as the basis of defensive
procedure in almost all criminal cases, and even in civil suits its
employment is not infrequently directed, the number of conjurators
being proportioned to the nature of the crime or to the amount at
stake, and regulations for administering the oath being given with much
minuteness.[229] In Denmark it was not abolished until near the middle
of the seventeenth century, under Christiern IV., after it had become
a crying abuse through the habit of members of families, and even of
whole guilds, entering into formal engagements to support each other
in this manner.[230] The exact date of its abrogation is a matter of
uncertainty, and the stubbornness with which the people clung to it is
shown by the fact that even in 1683 Christiern V., in promulgating a
new code, found it necessary formally to prohibit accused persons from
being forced to provide conjurators.[231] In Sweden, its existence
was similarly prolonged. Directions for its use are contained in the
code which was in force until the seventeenth century;[232] it is
constantly alluded to in the laws of Gustavus Adolphus;[233] and an
edict of Charles XI. in 1662 reproves the readiness with which men
were everywhere prompt to serve as compurgators, and requires the
judges, before admitting them, to investigate whether they are proper
persons and what are their reasons to believe in the innocence of their
principal.[234] By this time, therefore, though not yet witnesses, they
were becoming assimilated to them.
The vitality of communal societies among the Slavs naturally led
to the maintenance of a custom which drew its origin from the
solidarity of families, and it is therefore not surprising to find
it in Poland described as in full force as late as the eighteenth
century, the defendant being obliged to support his purgatorial oath
with conjurators, who swore as to its truth.[235] Yet among the
Poles confidence in it as a legal proof had long been undermined. In
1368 Casimir III. decreed that a man of good repute, when accused of
theft, could clear himself by his own oath; but if his character was
doubtful, and compurgation was prescribed, then if he fell short by
one conjurator of the number required, he should satisfy the accuser,
though he should not be rendered infamous for the future. This led to
an increase of crime, and a hundred years later Casimir IV. proclaimed
a law by which compurgation was only allowed three times, after which
a persistent offender was abandoned to the full severity of the law,
as being presumably guilty and not deserving of escape. At the same
time any one summoned to compurgation, and appearing before the judge
without compurgators, was _ipso facto_ pronounced infamous. From a
case recorded it would appear that twelve conjurators were required
to outweigh the single oath of the accuser.[236] Among the southern
Slavs the custom was likewise preserved to a comparatively late date.
An edict of Hermann, Ban of Slavonia, in 1416, orders that any noble
accused of neglect to enforce a decree of proscription against a
malefactor, should purge himself with five of his peers as conjurators,
in default of which he was subject to a fine of twenty marcs.[237]
The constitutional reverence of the Englishman for established forms
and customs, however, nominally preserved this relic of barbarism
in the common law to a period later by far than its disappearance
from the codes of other nations. The system of inquests and ordeals
established by the Assize of Clarendon in 1166 and the rise of the
jury system led to its being superseded in criminal matters, but in
civil suits it held its own. According to Bracton, in the thirteenth
century, in all actions arising from contracts, sales, donations, etc.,
when there was no absolute proof, the plaintiff came into court with
his _secta_, and the defendant was bound to produce two conjurators
for each one advanced by the plaintiff, the evidence apparently
preponderating according to quantity rather than quality.[238] From the
context, it would appear that the _secta_ of the plaintiff consisted
of his friends and followers willing to take the oath with him, but
not absolutely witnesses. The Fleta, however, some twenty-five years
later, uses the term in the sense of witnesses, and in actions of
debt directs the defence to be made with conjurators double in number
the plaintiff’s witnesses,[239] thus offering an immense premium on
dishonesty and perjury. Notwithstanding this, the nobles and gentry
who came to London to attend the court and Parliament apparently were
subjected to many annoyances by the citizens who strove to collect
their debts, and in 1363 Edward III. relieved them by abrogating
the wholesome rule laid down by Bracton, and enacting that a debtor
could wage his law with a sufficient number of conjurators in spite
of any papers put forward in evidence by the creditor, who is curtly
told to find his remedy in some other way.[240] The unquestionable
advantages which this offered to not the least influential part of a
feudal community probably had something to do with its preservation.
The “Termes de la Ley,” compiled in the early part of the sixteenth
century, states as the existing practice that “when one shall wage his
law, he shall bring with him 6, 8, or 12 of his neighbors, as the court
shall assign him, to swear with him;” and when in a statute of 1585
imposing severe fines for using wood or charcoal in iron manufacture
it is provided that offenders shall not be entitled to defence by
the wager of law, it shows that proceeding to be still in common use,
though it was recognized as a means of eluding justice.[241] Style’s
“Practical Register,” published in 1657, also describes the process,
but an absurd mistake as to the meaning of the traditional expression
“jurare manu” shows that the matter was rather a legal curiosity
than a procedure in ordinary use; and, indeed, the author expressly
states that the practice having been “abused by the iniquity of the
people, the law was forced to find out another way to do justice to
the nation.” Still the law remained unaltered, and a case is recorded
occurring in 1708, known as Gunner’s case, where “the plaintiff became
nonsuit, when the defendant was ready to perfect his law,”[242] and
Jacob, in his “Review of the Statutes,” published not long after,
treats of it as still part of the existing judicial processes. As the
wager of law came to be limited to simple actions of debt, shrewd
lawyers found means of avoiding it by actions of “trespass upon the
case,” and other indirect forms which required the intervention of
a jury, but Burn in his Law Dictionary (Dublin, 1792) describes the
whole process with all its forms as still existing, and in 1799 a case
occurred in which a defendant successfully eluded the payment of a
claim by producing compurgators who “each held up his right hand, and
then laid their hands upon the book and swore that they believed what
the defendant swore was true.” The court endeavored to prevent this
injustice, but was forced to accept the law of the land. Even this
did not provoke a change. In 1824, in the case of King _v._ Williams
(2 Barnewell & Cresswell, 528), some black-letter lawyer revived the
forgotten iniquity for the benefit of a client in want of testimony,
and demanded that the court should prescribe the number of conjurators
necessary for the defence, but the court refused assistance, desiring
to give the plaintiff the benefit of any mistake that might be made.
Williams then got together eleven conjurators, and appeared in court
with them at his back, when the plaintiff, recognizing the futility of
any further proceedings, abandoned his case in disgust.[243] Still, the
fine reverential spirit postponed the inevitable innovation, and it was
not until 1833 that the wager of law was formally abrogated by 3 and 4
William IV., c. 42, s. 13.[244]
English colonists carried the ancestral custom across the sea and seem
to have resorted to it as an infallible mode of settling certain cases
for which no positive evidence could be had. Small as was the infant
colony of Bermuda, its court records for a little more than six months
show four instances of its use, all of which occur in deciding cases of
“suspition of incontinency” regularly presented by the grand jury or
the ecclesiastical authorities.[245]
Doubtless if the early records of Virginia and Massachusetts could be
searched similar evidence of its use would be found in them. Indeed
it is quite possible that, strictly speaking, the wager of law may
still preserve a legal existence in this country. In 1712 an act of
the Colony of South Carolina, enumerating the English laws to be held
as in force there, specifically includes those relating to this mode
of defence, and I am not aware that they have ever been formally
abrogated.[246] In 1811 Chancellor Kilty, of Maryland, speaks of the
wager of law as being totally disused in consequence of the avoidance
of the forms of suit which might admit of its employment, but he
evidently regards it as not then specifically abolished.[247]
* * * * *
While the common sense of mankind was gradually eliminating the
practice from among the recognized procedures of secular tribunals,
the immutable nature of ecclesiastical observances prolonged its
vitality in the bosom of the church. We have seen above that Innocent
III., about the commencement of the thirteenth century, altered the
form of oath from an unqualified confirmation to a mere assertion of
belief in the innocence of the accused. That this at once became the
standard formula in ecclesiastical cases is probable when we find it
adopted for the oaths of the compurgators who, during the Albigensian
persecution, were required by the nascent Inquisition in all cases to
assist in the purgation of such suspected heretics as were allowed to
escape so easily.[248] And this is no doubt the “congruous purgation”
to which Innocent III. and Gregory IX. alluded as that by which
suspected heretics should clear themselves.[249] Zealous inquisitors,
however, paid little attention to such forms which allowed their
victims a chance of escape, for it is related of Conrad of Marburg,
who for a short time spread terror and desolation throughout Germany,
that when the accused confessed he subjected them to torture and the
frightful penance provided by the church, but that when they denied
their guilt he sent them at once to the stake. The compurgatorial
process, however, vindicated itself in a notable manner when Conrad’s
cruelties at length aroused effective opposition. Count Sayn, whom he
had accused, was virtually acquitted at the Council of Mainz, July,
1233, soon after which Conrad was assassinated: the count, however,
required formal vindication, and at the Diet of Frankfort, in February,
1234, he cleared himself of the charge of heresy in the most imposing
manner with a train of compurgators comprising eight bishops, twelve
Cistercian abbots, twelve Franciscan and three Dominican monks, and a
number of Benedictine abbots, clergy, and noble laymen. After this,
in April, the Council of Mainz declared him and others of Conrad’s
victims to be innocent and to be restored to reputation and to their
possessions.[250]
The practice of compurgation thus introduced at the foundation of the
Inquisition was maintained to the last by that terrible tribunal. “Our
holy mother church,” says Simancas, Bishop of Badajos, a writer of the
sixteenth century, “can in no way endure the suspicion of heresy, but
seeks by various remedies to cure the suspect. Sometimes she forces
them to abjure or to purge themselves; sometimes she elicits the
truth by torture, and very often she coerces them with extraordinary
punishments.” Therefore, any one whose orthodoxy was doubtful, if he
was unwilling to clear himself, at the command of the judge, was held
to be convicted of heresy. By the secular law he had a year’s grace
before condemnation, but under the ecclesiastical law he was instantly
punishable.[251]
Canonical purgation, according to the rules of the Inquisition, was
indicated when public report rendered a man suspected and there was
no tangible evidence against him. The number of compurgators was left
to the discretion of the judge, who at the same time decided whether
the deficiency of one, two, or more would amount to a condemnation.
They were to be peers of the accused; and though he was allowed to
select them, yet the qualification that they were to be good men and
orthodox practically left their nomination to the officials—even as the
customary accusation by the promotor-fiscal was held to be in itself
the requisite amount of suspicion required as a condition precedent
for the trial. The greater the suspicion, however, the larger was the
number of compurgators to be adduced.
When the accused had chosen his men, and they were accepted by the
judge, they were summoned, and each one examined separately by the
Inquisitors as to his acquaintance with the defendant—a process by
which, it may readily be conceived, the terrors of the Holy Office
might easily be so used as to render them extremely unwilling to
become his sponsors. They were then assembled together; the accused
was brought in, the charge against him was read, and he took an oath
denying it. Each conjurator was then taken separately and sworn as
to his belief in the truth or falsity of the oath of denegation, and
according as they expressed their conviction of the veracity of the
accused the sentence was usually rendered, absolving or condemning him.
No process of administering compurgation can well be conceived more
shrewdly adapted to reduce to a minimum the chances of acquittal,
or to leave the result subject to the wishes of the officials. The
testimony of the doctors of law, both civil and canon, accordingly was
that it was blind, deceitful, and perilous.[252] In fact, it is easy
to conceive of the difficulty of finding five, or nine, or eleven men
willing to risk their lives and families by standing up in support of
any one who had fallen into the grasp of the Holy Office. The terrible
apprehension which the Inquisition spread abroad among all classes,
and the dread which every man felt of being suspected and seized as an
accomplice of heresy, are unconsciously intimated by Simancas when,
arguing against this mode of trial, he observes that “the morals of
mankind are so corrupt at the present day, and Christian charity has
grown so cold, that it is almost impossible to find any one willing to
join in clearing his neighbor, or who does not easily believe the worst
of him and construe all doubtful things against him. When it is enough
for the condemnation of the accused that the compurgators shall declare
that they are ignorant or doubtful as to his innocence, who is there
that will not express doubt when they know that he would not have been
condemned to purge himself if he had not been violently suspected?”
For these reasons he says that those of Moorish or Jewish stock should
never be subjected to it, for it is almost impossible not to think ill
of them, and, therefore, to send them to purgation is simply to send
them to the stake.[253]
For all this, there was a lively discussion in the time of Simancas,
whether if the accused succeeded in thus clearing himself, it was
sufficient for acquittal. Many Inquisitors, indeed, held to the
older practice that the accused should first be tortured, when if no
confession could be forced from him he was put on his purgation; if
he passed safely through this, he was then made to abjure the errors
of which he had not been convicted, and after all this he was punished
at the discretion of the judge.[254] Such an accumulation of injustice
seems incredible, and yet Simancas feels himself obliged to enter into
an elaborate discussion to prove its impropriety.
In countries where the Inquisition had not infected society and
destroyed all feeling of sympathy between man and man this process of
purgation was not impossible. Thus, in 1527, during one of the early
persecutions of the reformers under Henry VIII., while numbers were
convicted, two women, Margaret Cowbridge and Margery Bowgas, were
allowed to clear themselves by compurgators, though there were several
positive witnesses against them. It is also noteworthy that in these
cases a portion of the compurgators were women.[255]
In the regular ecclesiastical courts the practice was maintained.
When the Council of Constance, in its futile efforts at reformation,
prepared an elaborate code of discipline, it proposed strenuous
regulations to correct the all-pervading vice of simony. To prevent
the sale of benefices this project of law decreed deprivation of all
preferment as the punishment for such offences, and as transactions
of the kind were commonly accomplished in secret, it ordained that
common report should be sufficient for conviction; yet it nullified
the regulation by permitting the accused to clear himself by canonical
purgation.[256] Towards the close of the fifteenth century, Angelo da
Chiavasco describes it as customary where there is no formal accuser
and yet public rumor requires action, although the judge can also order
it in cases of accusation: if the defendant fails of his purgation
in the latter case he is to be punished as provided for his crime;
if there is only rumor, then the penalty is discretional.[257] The
judge determined the number of conjurators, who were all to be of good
reputation and familiar with the life of the accused; if he were a
monk, they ought if possible to be of the same order; they simply swore
to their belief in his oath of denial.[258] A century later Lancelotti
speaks of compurgation as the only mode of defence then in use in
doubtful cases, where the evidence was insufficient.[259] This applied
not only to cases between churchmen, but also to secular matters
subject to ecclesiastical jurisdiction. Grillandus, writing about 1530,
speaks of six conjurators of the kindred as the customary formula
in proceedings for nullity of marriage, and mentions an instance
personally known to him, wherein this procedure was successfully
adopted by a wife desirous of a divorce from her husband who for three
years had been rendered impotent by witchcraft, in accordance with the
rules laid down in the canon law for such cases.[260] And among certain
orders of monks within the last century, questions arising between
themselves were settled by this mode of trial.[261]
In England, after the Anglican Church had received its final shape
under Cranmer, during the reign of Edward VI., the custom appears in
a carefully compiled body of ecclesiastical law, of which the formal
adoption was only prevented accidentally by the untimely death of the
young king. By this, a man accused of a charge resting on presumptions
and incompletely proved, was required to clear himself with four
compurgators of his own rank, who swore, as provided in the decretals
of Innocent III., to their belief in his innocence.[262]
CHAPTER VIII.
ACCUSATORIAL CONJURATORS.
Though not strictly a portion of our subject, the question is not
without interest as to the power or obligation of the plaintiff or
accuser to fortify his case with conjurators. There is little evidence
of such a custom in primitive times, but one or two allusions to it
in the _Leges Barbarorum_ show that it was occasionally practised.
Some of the earlier texts of the Salic law contain a section providing
that in certain cases the complainant shall sustain his action with
a number of conjurators varying with the amount at stake; a larger
number is required of the defendant in reply; and it is presumable that
the judges weighed the probabilities on either side and rendered a
decision accordingly.[263] As this is omitted in the later revisions of
the law, it probably was not widely practised, or regarded as of much
importance. Among the Baioarians, a claimant of an estate produced six
conjurators who took the oath with him, and whose united efforts could
be rebutted by the defendant with a single competent witness.[264]
These directions are so precise that there can be no doubt that the
custom prevailed to a limited extent among certain tribes, and a clause
in the Decree of Childebert in 597, providing that the oaths of five
or seven impartial men of good character shall convict a thief or
malefactor, would seem evidently to refer to conjurators and not to
witnesses.[265] In the treaty between Childebert and Clotair in 593,
an accuser in case of theft is obliged to give twelve conjurators,
half of them selected by himself, to swear that a theft has really
taken place.[266] That it was, indeed, more generally employed than
the scanty references to it in the codes would indicate, may be
inferred from one of the ecclesiastical forgeries which Charlemagne
was induced to adopt and promulgate. According to this, no accusation
against a bishop could be successful unless supported by seventy-two
witnesses, all of whom were to be men of good repute; forty-four were
required to substantiate a charge against a priest, thirty-seven
in the case of a deacon, and seven when a member of the inferior
grades was implicated.[267] Though styled witnesses in the text,
the number required is so large that they evidently could have been
only conjurators, with whom the complainant supported his oath of
accusation, and the fabrication of such a law would seem to show that
the practice of employing such means of substantiating a charge was
familiar to the minds of men.
Among the heathen Northmen, as we have seen, every pleader, whether
plaintiff or defendant, was obliged to take a preliminary oath on the
sacred _stalla hringr_, or altar ring, duly bathed in the blood of an
ox sacrificed for the purpose. This custom was preserved in England,
where the Anglo-Saxon laws required, except in trivial cases, a
“fore-oath” from the accuser (_forath, antejuramentum, præjuramentum_),
and William the Conqueror, in his compilation of the laws of Edward the
Confessor, shows that this was sometimes strengthened by requiring the
addition of conjurators, who were in no sense witnesses, since their
oath had reference, not to the facts of the case, but solely to the
purity of intention on the part of the accuser.[268] Indications of the
same procedure are to be found in the collection known as the laws of
Henry I.[269] Probably to the development of this may be attributed the
peculiar device of the _secta_ already referred to (p. 84), consisting
of those who supported the plaintiff by their oaths while in no sense
absolute witnesses. They were not even examined unless the defendant
demanded it. The bringing of the _secta_ or suit remained a matter
of form long after the actual production of the witnesses had become
obsolete in the fourteenth century, and it was not finally abolished
until 1852.[270]
In an age of comparative simplicity, it is natural that men should turn
rather to the guarantees of individual character, or to the forms of
venerable superstition, than to the subtleties of legal procedure. Even
as the defendant was expected to produce vouchers of his truthfulness,
so might the plaintiff be equally required to give evidence that his
repute among his neighbors was such as to justify the belief that he
would not bring a false charge or advance an unfounded claim. The two
customs appear to arise from the same process of reasoning and to be
identical in spirit, leading to a contest between the two parties as
to which could bring forward the largest and most credible number of
conjurators, and the position of the accused being outsworn was a
recognized circumstance in jurisprudence. Thus, the Council of Tribur
in 895 provides that in such case he must either confess or undergo
the ordeal.[271] In process of time accusatorial conjurators became
commonly used in many places. In Béarn the laws of the thirteenth
century provide that in cases of debt under forty sous, where there was
no testimony on either side, the claimant could substantiate his case
by bringing forward one conjurator, while the defendant could rebut
it with two.[272] A similar rule obtained in England in all actions
arising from contracts and sales;[273] and in the laws of Soest in
Westphalia, compiled at the end of the eleventh or the commencement
of the twelfth century, an accusation of homicide could be proved by
six conjurators swearing with the prosecutor, while if this failed
the accused could then clear himself with eleven compurgators.[274]
Throughout Germany, in the thirteenth century, we find the principle
of accusing conjurators generally received, as is evident from the
_juramentum supermortuum_ already referred to, and other provisions of
the municipal law.[275] So thoroughly, indeed, was this established
that, in some places, in prosecutions for highway robbery, arson, and
other crimes, the accuser had a right to require every individual in
court, from the judge to the spectator, to help him with an oath or
to swear that he knew nothing of the matter, and even the attorney
for the defendant was obliged to undergo the ceremony.[276] In Sweden
it was likewise in use under the name of _jeff niteed_;[277] and in
the compilation of the laws by Andreas, Archbishop of Lunden, in the
thirteenth century, there is a curious provision for cases of secret
murder by which the accuser could force nine men successively to
undergo the hot-iron ordeal, after which, if thus far unsuccessful, he
could still force a tenth man to trial on producing twelve conjurators
to swear to the guilt of the accused—these conjurators, in case of
acquittal, being each liable to a fine of three marks to the accused
and as much to the church.[278] In Norway and Iceland, in certain cases
of imputed crime, the accuser was bound to produce ten companions, of
whom eight appeared simply as supporters, while two swore that they
had heard the offence spoken of, but that they knew nothing about it of
their own knowledge—the amount of weight attached to which asseveration
is shown by the fact that the accused required only two conjurators to
clear himself.[279]
Perhaps the most careful valuation of the oath of a plaintiff is to be
found in the Coutumier of Bordeaux, which provides that, in civil cases
not exceeding four sols in amount, the claimant should substantiate
his case by an oath on the Gospels in the Mayor’s Court; when from
four to twenty sols were at stake, he was sworn on the altar of St.
Projet or St. Antoine; from twenty sols to fifteen livres, the oath
was taken in the cemetery of St. Seurin, while for amounts above that
sum it was administered on the “Fort” or altar of St. Seurin himself.
Persons whose want of veracity was notorious were obliged in all cases,
however unimportant, to swear on the Fort, and had moreover to provide
a conjurator who with an oath of equal solemnity asserted his belief in
the truth of his companion.[280]
The custom of supporting an accusatorial oath by conjurators was
maintained in some portions of Europe to a comparatively recent
period. Wachter[281] prints a curious account of a trial, occurring
in a Suabian court in 1505, which illustrates this, as well as the
weight which was still attached to the oath of a defendant. A woman
accused three men on suspicion of being concerned in the murder of
her husband. They denied the charge, but when the oath of negation
was tendered to them, with the assurance that, if they were Suabians,
it would acquit them, they demanded time for consideration. Then the
advocate of the widow stepped forward to offer the oath of accusation,
and two conjurators being found willing to support him the accused
were condemned without further examination on either side. A similar
process was observed in the Vehmgericht, or Court of the Free Judges
of Westphalia, whose jurisdiction in the fourteenth and fifteenth
centuries became extended over the whole of Germany. Accusations were
supported by conjurators, and when the defendant was a Frei-graff, or
presiding officer of a tribunal, the complainant was obliged to procure
seven Frei-schöppen, or free judges, to take the accusatorial oath with
him.[282]
The latest indication that I have met with of established legal
provisions of this nature occurs in the custom of Britanny, as revised
in 1539. By this, a man claiming compensation for property taken away
is to be believed on oath as to his statement of its value, provided he
can procure companions worthy of credence to depose “qu’ils croyent que
le jureur ait fait bon et loyal serment.”[283] Even this last vestige
disappears in the revision of the Coutumier made by order of Henry III.
in 1580.
II.
THE WAGER OF BATTLE.
CHAPTER I.
When man is emerging from barbarism, the struggle between the rising
power of reason and the waning supremacy of brute force is full of
instruction. Wise in our generation, we laugh at the inconsistencies
of our forefathers, which, rightly considered as portions of the great
cycle of human progress, are rather to be respected as trophies of
the silent victory, won by almost imperceptible gradations. When,
therefore, in the dark ages, we find the administration of justice so
strangely interrupted by appeals to the sword or to chance, dignified
under the forms of Christianized superstition, we should remember that
even this is an improvement on the all-pervading first law of violence.
We should not wonder that barbarous tribes require to be enticed to
the acknowledgment of abstract right through pathways which, though
devious, may reach the goal at last. When the strong man is brought,
by whatever means, to yield to the weak, a great conquest is gained
over human nature; and if the aid of superstition is invoked to decide
the struggle, it is idle for us, while enjoying the result, to contemn
the means which the weakness of human nature has rendered necessary to
the end. With uneducated nations, as with uneducated men, sentiment is
stronger than reason, and sacrifices will be made for the one which
are refused to the other. If, therefore, the fierce warrior, resolute
to maintain an injustice or a usurpation, can be brought to submit
his claim to the chances of an equal combat or of an ordeal, he has
already taken a vast step towards acknowledging the supremacy of right
and abandoning the personal independence which is incompatible with
the relations of human society. It is by such indirect means that
individuals, each relying on his own right hand, have been gradually
led to endure regular forms of government, and to cherish the abstract
idea of justice as indispensable between man and man. Viewed in this
light, the ancient forms of procedure lose their ludicrous aspect, and
we contemplate their whimsical admixture of force, faith, and reason,
as we might the first rude engine of Watt, or the “Clermont,” which
painfully labored in the waters of the Hudson—clumsy and rough it is
true, yet venerable as the origin and prognostic of future triumphs.
* * * * *
There is a natural tendency in the human mind to cast the burden of its
doubts upon a higher power, and to relieve itself from the effort of
decision by seeking in the unknown the solution of its difficulties.
Between the fetish worshippers of Congo and the polished sceptics
who frequented the _salon_ of Mlle. le Normant, the distance, though
great, is bridged over by this common weakness; and whether the
information sought be of the past or of the future, the impulse is
the same. When, therefore, in the primitive _mallum_, the wisdom of
the _rachinborgs_ was at fault, and the absence or equal balance of
testimony rendered a verdict difficult, what was more natural than to
appeal for a decision to the powers above, and to leave the matter
to the judgment of God?[284] Nor, with the warlike instincts of the
race, is it surprising that this appeal should be made to the God of
battles, to whom, whether they addressed him as Odin or Sabaoth, they
looked in every case for a special interposition in favor of innocence.
The curious mingling of procedure, in these untutored seekings after
justice, is well illustrated in a form of process prescribed by the
primitive Bavarian law. A man comes into court with six conjurators to
claim an estate; the possessor defends his right with a single witness,
who must be a landholder of the vicinage. The claimant then attacks
the veracity of the witness—“Thou hast lied against me. Grant me the
single combat, and let God make manifest whether thou hast sworn truth
or falsehood;”[285] and, according to the event of the duel is the
decision as to the truthfulness of the witness and the ownership of the
property.
* * * * *
In discussing the judicial combat, it is important to keep in view the
wide distinction between the wager of battle as a judicial institution,
and the custom of duelling which has obtained with more or less
regularity among all races and at all ages. When the Horatii met the
Curiatii, or when Antony challenged Octavius to decide the empire of
the world with their two swords, or when Edward III. in 1340 proposed
to Philippe de Valois to settle their rival claims to the heritage of
France army to army, a hundred to a hundred, or body to body,[286] or
when the ancient Hindus were in the habit of averting the carnage of
battles in the same manner[287]—these were simply expedients to save
the unnecessary effusion of blood, or to gratify individual hate. When
the _raffiné_ of the times of Henri Quatre, or the modern fire-eater,
has wiped out some imaginary stain in the blood of his antagonist,
the duel thus fought, though bearing a somewhat closer analogy to the
judicial combat, is not derived from it, but from the right of private
vengeance which was common to all the barbarian tribes, and from the
cognate right of private warfare which was the exclusive privilege of
the gentry during the feudal period.[288] The established euphuistic
formula of demanding “the satisfaction of a gentleman,” thus designates
both the object of the custom and its origin. The abolition of private
wars gave a stimulus to the duel at nearly the period when the judicial
combat fell gradually into desuetude. The one thus succeeded to the
other, and, being kindred in form, it is not surprising that for a
time there was some confusion in the minds of men respecting their
distinctive characteristics. Yet it is not difficult to draw the line
between them. The object of the one was vengeance and reparation;
the theory of the other was the discovery of truth and the impartial
ministration of justice.
It is easy to multiply examples illustrating this. John van Arckel, a
knight of Holland, followed Godfrey of Bouillon to the first crusade.
When some German forces joined the army, a Tyrolese noble, seeing
van Arckel’s arms displayed before his tent, and recognizing them
as identical with his own, ordered them torn down. The insult was
flagrant, but the injured knight sought no immediate satisfaction
for his honor. He laid the case before the chiefs of the crusade as
a judicial matter; an examination was made, and both parties proved
their ancestral right to the same bearings. To decide the conflicting
and incompatible pretensions, the judges ordered the judicial combat,
in which van Arckel deprived his antagonist of life and quarterings
together, and vindicated his claim to the argent 2 bars gules, which
in gratitude to Heaven he bore for eight long years in Palestine. This
was not a quarrel on a punctilio, nor a mode of obtaining redress for
an insult, but an examination into a legal question which admitted of
no other solution according to the manners of the age.[289] When, after
the Sicilian Vespers, the wily Charles of Anjou was sorely pressed by
his victorious rival Pedro III. of Aragon, and desired to gain time
in order to repress a threatened insurrection among his peninsular
subjects, he sent a herald to Don Pedro to accuse him of bad faith in
having commenced the war without defiance. The fiery Catalan fell into
the snare, and in order to clear himself of the charge, which was not
ill-founded, he offered to meet his accuser in combat and determine
their rights to the Sicilian throne. The terms were laboriously settled
by six representatives of each king and were signed by the principals
December 26, 1282; they were to meet, with a hundred knights on each
side, June 1, 1283, in the neutral territory of Bordeaux and fight it
out in the presence of Edward I. of England or of his deputy, and each
swore that if he failed to be present he would forever hold himself as
false and perjured and deprived of the royal station and dignity. When
Charles applied to his cousin Edward to grant the _champ-clos_ the
latter emphatically replied that for the crowns of the Two Sicilies
he would not be judge in such a combat; Martin II. chimed in with a
bull forbidding him to serve, and the combat never took place, Charles
of Anjou having obtained his purpose in the intervening suspension of
arms.[290] Nothing more picturesquely romantic is to be found in the
annals of chivalry than Muntaner’s relation of Don Pedro’s secret ride
to Bordeaux and his appearance on the day appointed in the lists where
Edward’s seneschal was unable to guarantee him a fair field.[291] So
the challenge which Richard II., in 1383, sent to Charles VI. wore
the aspect of the judicial duel to decide their claims to the realms
of France under the judgment of God.[292] Though practically these
challenges may differ little from that of Antony, still their form and
purport were those of the judicial duel in civil or criminal cases.
So, when Charles V. offered to maintain in single combat the charge
that Francis I. had villainously forfeited his faith in disregarding
the treaty of Madrid, and Francis hotly replied with a demand for
a secure field in which to defend his honor, the challenge and its
acceptance wore the form of the judicial duel to decide the question
of guilt; although Charles in appointing the Bidasoa as the place of
meeting gave as his reasons the avoidance of bloodshed and the ending
of the war as well as the maintenance of his just cause.[293] The
celebrated duel, fought in 1547, between Jarnac and La Chastaigneraye,
so piteously deplored by honest old Brantôme, shows the distinction
maintained to the last. It was conducted with all judicial ceremonies,
in presence of Henry II., not to settle a point of honor, but to
justify Jarnac from a disgusting accusation brought by his adversary.
Resulting most unexpectedly in the death of La Chastaigneraye, who was
a favorite of the king, the monarch was induced to put an end to all
legalized combats, though the illegal practice of the private duel
not only continued to flourish, but increased beyond all precedent
during the succeeding half century—Henry IV. having granted in
twenty-two years no less than seven thousand letters of pardon for
duels fought in contravention of the royal edicts. Such a mode of
obtaining “satisfaction” is so repugnant to the spirit of our age that
it is perhaps not to be wondered at if its advocates should endeavor
to affiliate it upon the ancient wager of battle. Both relics of
barbarism, it is true, are developments from the same primitive habits
and customs, yet they are essentially distinct and have coexisted as
separate institutions; and, however much occasionally intermingled by
the passions of periods of violence, they were practised for different
ends, and were conducted with different forms of procedure. We have
only to deal with the combat as a strictly judicial process, and
shall, therefore, leave untouched the vast harvest of curious anecdote
afforded by the monomachial propensities of modern times.
CHAPTER II.
ORIGIN OF THE JUDICIAL DUEL.
The mediæval panegyrists of the wager of battle sought to strengthen
its title to respect by affirming that it was as old as the human race,
and that Cain and Abel, unable to settle their conflicting claims in
any other mode, agreed to leave the decision to the chances of the
duel; while the combat between David and Goliath was considered by
the early schoolmen as an unanswerable proof of the favor with which
God regarded such encounters. Leaving such speculations aside, it is
enough for us to know that all the tribes which settled in Europe
practised the combat with so general a unanimity that its origin must
be sought at a period anterior to their separation from the common
stock, although it has left no definite traces in the written records
which have reached us of the Asiatic Aryans.[294]
That some vague notions of Divine justice making itself manifest
through the sword must have existed in prehistoric Hellenic times
is apparent from Homer’s elaborate description of the duel between
Menelaus and Paris. This has all the characteristics of a judicial
combat to decide the guilt or innocence of the claimants for the
possession of the fair Helen. A preliminary sacrifice is offered to
Zeus; Hector and Ulysses measure out the ground; lots are cast to
decide which of the antagonists shall have the first throw of the
spear; and the assembled armies put up a prayer to Zeus, entreating him
to send to Hades the guilty one of the two combatants.[295] This is not
merely a device to put an end to the slaughter of brave warriors—it is
an appeal to Heaven to elicit justice by means of arms.
The Italiote branch of the Aryans affords us a more definite
illustration of the same belief in the custom of the Umbrians, who
settled quarrels by single combat, and deemed that he who slew his
adversary thus proved that his cause was just.[296]
Although Cæsar makes no mention of such a custom in Gaul, it evidently
prevailed among the Celtic tribes. Livy describes how some Spaniards
seized the opportunity of a show of gladiators, given by Scipio, to
settle various civil suits by combat, and he proceeds to particularize
a case in which two rival cousins decided in this manner a disputed
question in the law of descent, despite the earnest remonstrances of
the Roman commander.[297] Among the Irish Celts, at their appearance
in history, we find the judicial duel established with fixed
regulations. In the Senchus Mor, a code claiming to be compiled under
the supervision of St. Patrick, the delay of five days in a distress
is explained by the history of a combat between two long previous in
Magh-inis. “When they had all things ready for plying their arms,
except a witness alone, they met a woman at the place of combat, and
she requested of them a delay, saying, ‘If it were my husband that
were there I would compel you to delay.’ ‘I would delay,’ said one
of them, ‘but it would be prejudicial to the man who sues me; it is
his cause that would be delayed.’ ‘I will delay,’ said the other. The
combat was then put off, but they did not know till when it was put
off, until Conchubhur and Sencha passed judgment respecting it; and
Sencha asked, ‘What is the name of this woman?’ ‘Cuicthi,’ (five) said
she, ‘is my name.’ ‘Let the combat be delayed,’ said Sencha, ‘in the
name of this woman for five days.’”[298] The combative ardor of the
Feini, indeed, was so strong, and the appeal to the wager of battle
so general, that on their conversion to Christianity they found it
difficult to understand that the holy ministers of Christ should be
restricted from vindicating their rights by arms, and St. Patrick, in
a synod held in 456, was obliged to threaten his clergy with expulsion
from the church if they endeavored to escape by appeal to the sword
from settling obligations which they had incurred by giving security
for heathens.[299]
This prevalence of the wager of battle among the Irish Celts renders
probable its existence likewise among the early inhabitants of Britain.
If so, the long domination of the Romans was doubtless sufficient to
extinguish all traces of it. The Welsh laws attributed to Hoel Dda in
the early part of the tenth century, which are exceedingly minute and
precise in their directions as to all forms of legal procedure, make no
allusion to it whatever. It is true that an ancient collection of laws
asserts that the code of Dyvnwal-moel-mud, a British king, prescribed
the ordeals of battle, of hot iron, and of boiling water, and that
Hoel in his legislation considered them unjust, abrogated them, and
substituted the proof by men, or _raith_.[300] This legend, however,
is very apocryphal. There is no allusion to such customs in the Welsh
codes up to the close of the twelfth century, and the few indications
which occur in subsequent collections would seem to indicate that these
were rather innovations due to the influence of the English conquest
than revivals of ancient institutions.
Among the Slavs, as they emerge into history, the duel occupies a
controlling position in the administration of justice. Ibn Dost, an
Arab traveller in Russia in the tenth century, relates that a pleader
dissatisfied with the judgment of the king could always appeal to the
sword, and this decision was regarded as so absolute that the defeated
party, his family and possessions were all at the disposition of the
victor. In Bohemia at a later period the successful combatant was
required to decapitate his antagonist.[301] The earliest records of
the various other Slavic lands give evidence of the prevalence of the
judicial combat, showing that it formed part of their ancestral customs
prior to their occupation of their present territories.[302]
Among the Norræna branch of the Teutons the wager of battle can be
traced back to the realm of legend and tradition. Saxo Grammaticus
informs us that about the Christian era Frotho III., or the
Great, of Denmark, ordered the employment of the duel to settle
all controversies, preferring that his warriors should accustom
themselves to rely, not on eloquence, but on courage and skill;[303]
and however doubtful the chronology may be, the tradition shows that
the origin of the custom was lost in the depths of antiquity. Among
the heathen Norsemen, indeed, the _holm-gang_, or single combat, was
so universal an arbiter that it was recognized as conferring a right
where none pre-existed. Any athlete, who confided in his strength
and dexterity with his weapons, could acquire property by simply
challenging its owner to surrender his land or fight for it. When
Iceland, for instance, was in process of settlement, Kraku Hreidar
sailed thither, and on sighting land invoked Thor to assign to him
a tract of ground which he would forthwith acquire by duel. He was
shipwrecked on reaching the shore, and was hospitably received by
a compatriot named Havard, with whom he passed the winter. In the
spring he declared his purpose of challenging Sæmund Sudureyska for a
sufficient holding, but Havard dissuaded him, arguing that this mode of
acquiring property rarely prospered in the end, and Eirek of Goddolom
succeeded in quieting him by giving him land enough. Others of these
hardy sea-rovers were not so amenable to reason as Kraku. When Hallkell
came to Iceland and passed the winter with his brother Ketelbiorn, the
latter offered him land on which to settle, but Hallkell disdained so
peaceful a proposition, and preferred to summon a neighbor named Grim
to surrender his property or meet him in the _holm-gang_. Grim accepted
the defiance, was slain, and Hallkell was duly installed as his heir.
A variation of the custom is illustrated by the case of Hrolleif,
who after some years’ settlement grew dissatisfied with his holding,
and challenged his neighbor Eyvind to an exchange of properties or a
combat, alternatives of which the peace-loving Eyvind accepted the
former.[304] The Saga of Egil Skallagrimsson speaks of a noted duellist
known as Ljot the Pale, who had come to the district a landless
stranger, and had grown wealthy by thus challenging proprietors and
taking their lands, but who met his fate at the hands of Egil, who,
while travelling, came to the place where Ljot was about to engage in a
holm-gang with a weaker antagonist. Egil volunteered to take his place,
and promptly slew Ljot. The holm-gang was so named because the battle
was usually fought on a small island or holm; and that it was regarded
as an appeal to the gods is manifested by the custom of the victor
sacrificing an ox as soon as he left the spot.[305]
It is true that Tacitus makes no allusion to such a custom among the
Germans of his time, a passage which is frequently quoted to that
effect being in reality only a description of a mode of divination
in which, at the beginning of a war, one of the enemy was captured
and made to fight with a chosen champion, the result of the combat
being taken to foreshadow the event of the contest.[306] The object of
Tacitus, however, was not to excite the curiosity of his countrymen,
but rather to contrast their vices with the uncivilized virtues of
the Germans, and his silence on this point is not a negative evidence
of weight in comparison with the positive proofs which exist with
regard to kindred tribes. Be this as it may, as soon as we obtain an
insight into their customs from written laws, we find the wager of
battle everywhere recognized. The earliest of these is the code of the
Burgundians, collected by King Gundobald towards the close of the fifth
century, and in this the duel occupies a place so conspicuous that it
obtained in time the name of Lex Gundebalda or Loy Gombette, giving
rise to a belief that it was of Burgundian origin.
In the ordinary texts of the Salic law no mention is made of it, but in
one manuscript it is alluded to as a regular form of procedure.[307]
This silence, however, does not justify the conclusion that the battle
ordeal was not practised among the Franks. Enough instances of it are
to be found in their early history to show that it was by no means
uncommon;[308] and, at a later period, the same absence of reference
to it is observable in the Lex Emendata of Charlemagne, though the
capitularies of that monarch frequently allude to it as a legal process
in general use. The off-shoots of the Salic law, the Ripuarian,
Allemannic, and Bavarian codes—which were compiled by Thierry, the
son of Clovis, revised successively by Childebert and Clotair II.,
and put into final shape by Dagobert I. about the year 630—in their
frequent reference to the “campus,” show how thoroughly it pervaded
the entire system of Germanic jurisprudence. The Lombards were, if
possible, even more addicted to its use. Their earliest laws, compiled
by King Rotharis in 643, seventy-six years after their occupation of
Italy, make constant allusion to it, and their readiness to refer to
its decision the most conspicuous cases is shown in the story of Queen
Gundeberga, the wife of Ariovaldus, who was the immediate predecessor
of Rotharis. Adalulf, a disappointed lover, brought against her a
charge of conspiracy which induced Ariovaldus to cast her in prison,
where she lay for three years, until Clotair the Great, to whom she
was of kindred, sent an embassy to obtain her release. Diplomacy was
of no avail, and all that the Frankish envoys could accomplish was to
secure for her a trial by single combat, in which a champion named
Pitto overcame Adalulf the accuser, and Gundeberga was restored to the
throne with her innocence recognized.[309] Indeed, the tenacious hold
which it maintained on the veneration of the Lombards is seen in the
fruitless efforts to restrict its employment and to abrogate it by
Rotharis and his successors under the civilizing influence of contact
with Roman institutions. Thus Rotharis forbids its use in some cases
of importance, substituting conjurators, with a marked expression of
disbelief, which shows how little confidence was felt in its results by
enlightened men.[310] The next lawgiver, King Grimoald, decreed that
thirty years’ possession of either land or liberty relieved a defendant
from maintaining his title by battle, the privilege of employing
conjurators being then conceded to him.[311] In the succeeding
century, King Liutprand sought to abolish it entirely, but finding
the prejudices of his people too strong to be overcome, he placed on
record in the statute-book a declaration of his contempt for it and
a statement of his efforts to do away with it, while he was obliged
to content himself with limiting the extent of its application, and
diminishing the penalties incurred by the defeated party.[312]
While the laws of the Angles, the Saxons, and the Frisians bear ample
testimony to the general use of the wager of battle,[313] it is not a
little singular that the duel appears to have been unknown among the
Anglo-Saxons. Employed so extensively as legal evidence throughout
their ancestral regions, by the kindred tribes from which they sprang,
and by the Danes and Norwegians who became incorporated with them;
harmonizing, moreover, with their general habits and principles of
action, it would seem impossible that they should not likewise have
practised it. I can offer no explanation of the anomaly, and can only
state the bare fact that the judicial combat is not referred to in any
of the Anglo-Saxon or Anglo-Danish codes.[314] There seems, indeed, to
be no reason to doubt that its introduction into English jurisprudence
dates only from the time of William the Conqueror.[315]
The Goths, while yet untainted by the influence of Rome, were no less
given to the employment of the judicial duel than their Teutonic
kindred, and Theodoric vainly endeavored to suppress the custom among
those of his subjects who had remained in Pannonia.[316] That no
trace of it is to be found among the extant laws of both Ostrogoths
and Wisigoths, framed subsequently to their settlement in Italy,
France, and Spain, is easily explained. The effect upon the invaders
of the decaying but still majestic civilization of Rome, the Byzantine
education of Theodoric, the leader of the Ostrogoths, and his settled
policy of conciliating the Italians by maintaining as far as possible
the existing state of society, preclude any surprise that no allusion
to the practice should occur in the short but sensible code known as
the “Edict of Theodoric,” which shows how earnestly that enlightened
conqueror endeavored to fuse the invaders and the vanquished into one
body politic.[317] With regard to the Wisigoths, we must remember that
early conversion to Christianity and long intercourse with civilization
had already worn off much of the primitive ferocity of a race which
could produce in the fourth century such a man as Ulphilas. They were
the earliest of the invaders who succeeded in forming a permanent
occupation of the conquered territories; and settling, as they did,
in Narbonensian Gaul and Spain while the moral influence of Rome was
yet all powerful, the imperial institutions exercised a much greater
effect upon them than on the subsequent bands of Northern barbarians.
Accordingly, we find their codes based almost entirely upon the Roman
jurisprudence, with such modifications as were essential to adapt it to
a ruder state of society. Their nicely balanced provisions and careful
distinctions offer a striking contrast to the shapeless legislation of
the races that followed, and neither the judicial combat nor canonical
compurgation found a place in them. Even the vulgar ordeal would appear
to have been unknown until a period long subsequent to the conquest
of Aquitaine by Clovis, and but little anterior to the overthrow of
the Gothic kingdom of Spain by the Saracens. But even as in Italy the
Lombard domination destroyed the results of Theodoric’s labors, so in
France the introduction of the Frankish element revived the barbarian
instincts, and in the celebrated combat before Louis le Débonnaire,
between Counts Bera and Sanila, who were both Goths, we find the
“pugna duorum” claimed as an ancient privilege of the race, with the
distinction of its being equestrian, in accordance with Gothic usages,
and so thoroughly was the guilt of Bera considered to be proved by
his defeat, that his name became adopted in the Catalan dialect as a
synonym of traitor.[318]
CHAPTER III.
UNIVERSAL USE OF THE JUDICIAL COMBAT.
The wager of battle thus formed part of the ancestral institutions of
all the races who founded the nations of Europe. With their conversion
to Christianity the appeal was transferred from the heathen deities
to God, who was expected to intervene and decide the battle in favor
of the right.[319] It was an appeal to the highest court and popular
confidence in the arbitrament of the sword was rather strengthened than
diminished. Enlightened lawgivers not only shared, to a greater or
less extent, in this confidence, but were also disposed to regard the
duel with favor as the most practical remedy for the crime of false
swearing which was everywhere prevalent. Thus Gundobald assumes that
its introduction into the Burgundian code arose from this cause;[320]
Charlemagne urged its use as greatly preferable to the shameless oaths
which were taken with so much facility;[321] while Otho II., in 983,
ordered its employment in various forms of procedure for the same
reason.[322] It can hardly be a source of surprise, in view of the
warlike manners of the times, and of the enormous evils for which a
palliative was sought, that there was felt to be advantage in this
mode of impressing upon principals and witnesses the awful sanctity of
the oath, thus entailing upon them the liability of supporting their
asseverations by undergoing the risks of a combat rendered doubly
solemn by imposing religious ceremonies.
Various causes were at work to extend the application of the judicial
duel to all classes of cases. In the primitive codes of the barbarians,
there is no distinction made between civil and criminal law. Bodily
punishment being almost unknown, except for slaves, and nearly all
infractions of the law being visited with fines, there was no necessity
for such niceties, the matter at stake in all cases being simply
money or money’s worth. Accordingly, we find the wager of battle used
indiscriminately, both as a defence against accusations of crime, and
as a mode of settling cases of disputed property, real and personal.
Yet some of the earlier codes refer to it but seldom. The Salic law,
as we have seen, hardly recognizes its existence; the Ripuarian code
alludes to it but four times, and that of the Alamanni but six times.
In others, like the Baioarian, it is appealed to on almost every
occasion, and among the Burgundians we may assume, from a remark of St.
Agobard, that it superseded all evidence and rendered superfluous any
attempt to bring forward witnesses.[323] This variation is probably
rather apparent than real, and if in any of these bodies of laws there
were originally substantial limitations on its use, in time they
disappeared, for it was not difficult to find expedients to justify
the extension of a custom which accorded so perfectly with the temper
of the age. How little reason was requisite to satisfy the belligerent
aspirations of justice is shown by a curious provision in the code
of one of the Frisian tribes, by which a man unable to disprove an
accusation of homicide was allowed to charge the crime on whomsoever
he might select, and then the question between them was decided by
combat.[324]
The elasticity, in fact, with which the duel lent itself to the
advantage of the turbulent and unscrupulous had no little influence in
extending its sphere of action. This feature in its history is well
exemplified in a document containing the proceedings of an assembly of
local magnates, held in the year 888, to decide a contention concerning
the patronage of the church of Lessingon. After the testimony on one
side had been given, the opposite party commenced in reply, when the
leaders of the assembly, seizing their swords, vowed that they would
affirm the truth of the first pleader’s evidence with their blood
before King Arnoul and his court—and the case was decided without more
ado.[325] The strong and the bold are apt to be the ruling spirits in
all ages, and were emphatically so in those periods of scarcely curbed
violence when the jurisprudence of the European commonwealths was
slowly developing itself.
It is no wonder, therefore, that means were readily found for extending
the jurisdiction of the wager of battle as widely as possible. One of
the most fruitful of these expedients was the custom of challenging
witnesses. The duel was a method of determining questions of perjury,
and there was nothing to prevent a suitor, who saw his case going
adversely, from accusing an inconvenient witness of false swearing
and demanding the “campus” to prove it—a proceeding which adjourned
the main case, and likewise decided its result. This summary process,
of course, brought every action within the jurisdiction of force,
and deprived the judges of all authority to control the abuse. That
it obtained at a very early period is shown by a form of procedure
occurring in the Bavarian law, already referred to, by which the
claimant of an estate is directed to fight, not the defendant, but his
witness;[326] and in 819 a capitulary of Louis le Débonnaire gives
a formal privilege to the accused on a criminal charge to select
one of the witnesses against him with whom to decide the question
in battle.[327] It is easy, therefore, to understand the custom,
prescribed in some of the codes, by which witnesses were required to
come into court armed, and to have their weapons blessed on the altar
before giving their testimony. If defeated they were fined, and were
obliged to make good to the opposite party any damage which their
testimony, had it been successful, would have caused him.[328]
Nor was this merely a temporary extravagance. Late in the thirteenth
century, after enlightened legislators had been strenuously and not
unsuccessfully endeavoring to limit the abuse of the judicial combat,
the challenging of witnesses was still the favorite mode of escaping
legal condemnation.[329] Even in the fourteenth century, the municipal
law of Reims, which allowed the duel between principals only in
criminal cases, permitted witnesses to be indiscriminately challenged
and forced to fight, affording them the privilege of employing
champions only on the ground of physical infirmity or advanced
age.[330] A still more bizarre extension of the practice, and one which
was most ingeniously adapted to defeat the ends of justice, is found
in a provision of the English law of the thirteenth century, allowing
a man to challenge his own witnesses. Thus in many classes of crimes,
such as theft, forgery, coining, etc., the accused could summon a
“warrantor” from whom he professed to have received the articles which
formed the basis of the accusation. The warrantor could scarcely give
evidence in favor of the accused without assuming the responsibility
himself. If he refused, the accused was at liberty to challenge him; if
he gave the required evidence, he was liable to a challenge from the
accuser.[331] The warrantor was sometimes also employed as a champion,
and served for hire, but this service was illegal and when detected
involved the penalties of perjury.[332] Another mode extensively used
in France about the same time was to accuse the principal witness of
some crime rendering him incapable of giving testimony, when he was
obliged to dispose of the charge by fighting, either personally or by
champion, in order to get his evidence admitted.[333]
It is not easy to imagine any cases which might not thus be brought to
the decision of the duel; and the evidence of its universality is found
in the restriction which prevented the appearance as witnesses of those
who could not be compelled to accept the combat. Thus the testimony of
women and ecclesiastics was not receivable in lay courts in suits where
appeal of battle might arise;[334] and when in the twelfth century
special privileges were granted by the kings of France empowering serfs
to bear testimony in court, the disability which prevented a serf from
fighting with a freeman was declared annulled in such cases, as the
evidence was only admissible when the witness was capable of supporting
it by arms.[335]
The result of this system was that, in causes subject to such
appeals, no witness could be forced to testify, by the French law
of the thirteenth century, unless his principal entered into bonds
to see him harmless in case of challenge, to provide a champion,
and to make good all damages in case of defeat;[336] though it is
difficult to understand how this could be satisfactorily arranged,
since the penalties inflicted on a vanquished witness were severe,
being, in civil causes, the loss of a hand and a fine at the pleasure
of the suzerain, while in criminal actions “il perderoit le cors
avecques.”[337] The only limit to this abuse was that witnesses were
not liable to challenge in cases concerning matters of less value than
five sous and one denier.[338]
* * * * *
If the position of a witness was thus rendered unenviable, that of the
judge was little better. As though the duel had not received sufficient
extension by the facilities for its employment just described, another
mode of appealing to the sword in all cases was invented by which it
became competent for the defeated party in any suit to challenge the
court itself, and thus obtain a forcible reversal of judgment. It
must be borne in mind that this was not quite as absurd a practice as
it may seem to us in modern times, for under the feudal system the
dispensing of justice was one of the most highly prized attributes
of sovereignty; and, except in England, where the royal judges were
frequently ecclesiastics, the seignorial courts were presided over
by warriors. In Germany, indeed, where the magistrates of the lower
tribunals were elective, they were required to be active and vigorous
of body.[339] Towards the end of the twelfth century in England we
find Glanville acknowledging his uncertainty as to whether or not the
court could depute the settlement of such an appeal to a champion,
and also as to what, in case of defeat, was the legal position of
the court thus convicted of injustice.[340] These doubts would seem
to indicate that the custom was still of recent introduction in
England, and not as yet practised to an extent sufficient to afford a
settled basis of precedents for its details. Elsewhere, however, it
was firmly established. In 1195, the customs of St. Quentin allow to
the disappointed pleader unlimited recourse against his judge.[341]
Towards the latter half of the thirteenth century, we find in the
_Conseil_ of Pierre de Fontaines the custom in its fullest vigor and
just on the eve of its decline. No restriction appears to be imposed
as to the cases in which appeal by battle was permitted, except that
it was not allowed to override the customary law.[342] The suitor
selected any one of three judges agreeing in the verdict; he could
appeal at any stage of the proceedings when a point was decided against
him; if unsuccessful, he was only liable in a pecuniary penalty to
the judges for the wrong done them, and the judge, if vanquished, was
exposed to no bodily punishment.[343] The villein, however, was not
entitled to the privilege, except by special charter.[344] While the
feudal system was supreme, this appeal to arms was the only mode of
reversing a judgment, and an appeal in any other form was an innovation
introduced by the extension of the royal jurisdiction under St. Louis,
who labored so strenuously and so effectually to modify the barbarism
of feudal institutions by subordinating them to the principles of the
Roman jurisprudence. De Fontaines, indeed, states that he himself
conducted the first case ever known in Vermandois of an appeal without
battle.[345] At the same time the progress of more rational ideas
is manifested by his admission that the combat was not necessary to
reverse a judgment manifestly repugnant to the law, and that, on the
other hand, the law was not to be set aside by the duel.
Twenty years later, we find in Beaumanoir abundant evidence of the
success of St. Louis in setting bounds to the abuses which he was
endeavoring to remove. The restrictions which he enumerates are greatly
more efficacious than those alluded to by de Fontaines. In capital
cases, the appeal did not lie; while in civil actions, the suzerain
before whom the appeal was made could refuse it when the justice of
the verdict was self-evident. Some caution, moreover, was requisite in
conducting such cases, for the disappointed pleader who did not manage
matters rightly might find himself pledged to a combat, single handed,
with all his judges at once; and as the bench consisted of a collection
of the neighboring gentry, the result might be the confirmation of the
sentence in a manner more emphatic than agreeable. An important change
is likewise observable in the severe penalty imposed upon a judge
vanquished in such an appeal, being a heavy fine and deprivation of
his functions in civil cases, while in criminal ones it was death and
confiscation—“il pert le cors et quanques il a.”[346]
The king’s court, however, was an exception to the general rule. No
appeals could be taken from its judgments, for there was no tribunal
before which they could be carried.[347] The judges of the royal court
were therefore safe from the necessity of vindicating their decisions
in the field, and they even carried this immunity with them and
communicated it to those with whom they might be acting. De Fontaines
accordingly advises the seigneur justicier who anticipates the appeal
of battle in his court to obtain a royal judge to sit with him, and
mentions an instance in which Philip (probably Philip Augustus) sent
his whole council to sit in the court of the Abbey of Corbie, when an
appeal was to be entered.[348]
By the German law of the same period, the privilege of reversing a
sentence by the sword existed, but accompanied with regulations which
seem evidently designed to embarrass, by enormous trouble and expense,
the gratification of the impulse which disappointed suitors would have
to establish their claims in such manner. Thus, by the Suabian law, it
could only be done in the presence of the sovereign himself, and not
in that of the immediate feudal superior;[349] while the Saxon code
requires the extraordinary expedient of a pitched battle, with seven
on each side, in the king’s presence.[350] It is not a little singular
that the feudal law of the same period has no allusion to the custom,
all appeals being regularly carried to and heard in the court of the
suzerain.[351]
CHAPTER IV.
CONFIDENCE REPOSED IN THE JUDICIAL DUEL.
Thus carefully moulded in conformity with the popular prejudices or
convictions of every age and country, it may readily be imagined
how large a part the judicial combat played in the affairs of daily
life. It was so skilfully interwoven throughout the whole system of
jurisprudence that no one could feel secure that he might not, at any
moment, as plaintiff, defendant, or witness, be called upon to protect
his estate or his life either by his own right hand or by the club
of some professional and possibly treacherous bravo. This organized
violence assumed for itself the sanction of a religion of love and
peace, and human intelligence seemed too much blunted to recognize the
contradiction.
There was, in fact, no question which might not be submitted to the
arbitrament of the sword or club. If Charlemagne, in dividing his vast
empire, forbade the employment of the wager of battle in settling the
territorial questions which might arise between his heirs,[352] the
prohibition merely shows that it was habitually used in affairs of the
highest moment, and the constant reference to it in his laws proves
that it was in no way repugnant to his general sense of justice and
propriety.
The next century affords ample evidence of the growing favor in which
the judicial combat was held. About the year 930, Hugh, King of
Provence and Italy, becoming jealous of his uterine brother, Lambert,
Duke of Tuscany, asserted him to be a supposititious child, and ordered
him in future to claim no relationship between them. Lambert, being
“vir ... bellicosus et ad quodlibet facinus audax,” contemptuously
denied the aspersion on his birth, and offered to clear all doubts on
the subject by the wager of battle. Hugh accordingly selected a warrior
named Teudinus as his champion; Lambert was victor in the ensuing
combat, and was universally received as the undoubted son of his
mother. His triumph, however, was illegally brought to a sudden close,
for Hugh soon after succeeded in making him prisoner and deprived him
of eyesight.[353] Still, the practice continued to be denounced by some
enlightened ecclesiastics, represented by Atto, Bishop of Vercelli,
who declared it to be totally inapplicable to churchmen and not to be
approved for laymen on account of the uncertainty of its results;[354]
but representations of this kind were useless. About the middle of
the century, Otho the Great appears, throwing the enormous weight of
his influence in its favor. As a magnanimous and warlike prince, the
wager of battle appears to have possessed peculiar attraction for
his chivalrous instincts, and he extended its application as far as
lay in his power. Not only did he force his daughter Liutgarda, in
defending herself from a villanous accusation, to forego the safer
modes of purgation, and to submit herself to the perilous decision of a
combat,[355] but he also caused the abstract question of representation
in the succession of estates to be settled in the same manner; and to
this day in Germany the division of a patrimony among children and
grandchildren is regulated in accordance with the law enacted by the
doughty arms of the champions who fought together nine hundred years
ago at Steil.[356] There was no question, indeed, which according to
Otho could not be satisfactorily settled in this manner. Thus when, in
963, he was indulging in the bitter recriminations with Pope John XII.
which preceded the subjugation of the papacy under the Saxon emperors,
he had occasion to send Bishop Liutprand to Rome to repel certain
accusations brought against him, and he ordered the armed followers of
his ambassador to sustain his assertions by the duel; a proposition
promptly declined by the pontiff, skilled though he was in the use
of weapons.[357] A duellist, in fact, seems to have been reckoned a
necessary adjunct to diplomacy, for when, in 968, the same Liutprand
was dispatched by Otho to Constantinople on a matrimonial mission,
and during the negotiations for the hand of Theophania a discussion
arose as to the circumstances which had led to Otho’s conquest of
Italy, the warlike prelate offered to prove his veracity by the sword
of one of his attendants: a proposition which put a triumphant end to
the argument.[358] A more formal assertion of the diplomatic value of
the duel was made when in 1177 the conflicting claims of the kings
of Castile and Navarre were referred to Henry II. of England for
adjudication, and both embassies to the English court were supplied
with champions as well as with lawyers, so as to be prepared in case
the matter was submitted to the duel for decision.[359]
Nor were these solitary instances of the reference of the mightiest
state questions to the chances of the single combat. Allusion has
already been made to the challenge which passed between Charles of
Anjou and Pedro of Aragon, and not dissimilar was that which resulted
from the interview at Ipsch in 1053 between the Emperor Henry III. of
Germany and Henry I. of France.[360] A hundred years earlier, in 948,
when, at the Synod of Ingelheim, Louis d’Outremer invoked the aid of
the Church in his death-struggle with the rising race of Capet, he
closed the recital of the wrongs endured at the hands of Hugh le grand
by offering to prove the justice of his complaints in single combat
with the aggressor.[361] When the battle ordeal was thus thoroughly
incorporated in the manners of the age, we need scarcely be surprised
that, in a life of St. Matilda, written by command of her son Otho the
Great, the author, after describing the desperate struggles of the
Saxons against Charlemagne, should gravely inform us that the war was
at last concluded by a duel between the Christian hero and his great
antagonist Witikind, religion and empire being both staked on the issue
as a prize of the victor; nor does the pious chronicler shudder at the
thought that the destiny of Christianity was intrusted to the sword
of the Frank.[362] His story could not seem improbable to those who
witnessed in 1034 the efforts of Conrad the Salic to pacify the Saxon
marches. On his inquiring into the causes of the mutual devastations
of the neighboring races, the Saxons, who were really the aggressors,
offered to prove by the duel that the Pagan Luitzes were in fault,
trusting that their Christianity would overbalance the injustice of
their cause. The defeat of their champion by his heathen adversary was,
however, a memorable example of the impartial justice of God, and was
received as a strong confirmation of the value of the battle trial.[363]
The second Otho was fully imbued with his father’s views, and so
completely did he carry them out, that in a gloss on the Lombard law
he is actually credited with the introduction of the duel.[364] In
the preceding essay, allusion has been made to his substitution of
the judicial combat for the compurgatorial oath in 983, and about the
same period he made an exception, in favor of the battle ordeal, to
the immemorial policy of the barbarians which permitted to all subject
races the enjoyment of their ancestral usages. At the council of
Verona, where all the nobles of Italy, secular and ecclesiastical, were
assembled, he caused the adoption of a law which forced the Italians
in this respect to follow the customs of their conquerors.[365] Even
the church was deprived of any exemption which she might previously
have enjoyed, and was only allowed the privilege of appearing by her
_advocati_ or champions.[366] There were small chances of escape
from the stringency of these regulations, for an edict of Otho I. in
971 had decreed the punishment of confiscation against any one who
should refuse to undergo the chances of the combat.[367] It may even
be assumed, from the wording of a constitution of the Emperor Henry
II., that in the early part of the eleventh century it was no longer
necessary that there should be a doubt as to the guilt of the accused
to entitle him to the privileges of the combat, and that even the most
notorious criminal could have a chance of escape by an appeal to the
sword.[368]
Thus it came to pass that nearly every question that could possibly
arise was finally deemed liable to the decision of the wager of battle.
If Otho the Great employed champions to legislate respecting a disputed
point of law, he was not more eccentric than the Spaniards, who settled
in the same manner a controversy regarding the canonical observances
of religion, when Gregory VII. endeavored to force the introduction
of the Roman liturgy into Castile and Leon, in lieu of the national
Gothic or Mozarabic rite. With considerable difficulty, some years
before, Navarre and Aragon had been led to consent to the change, but
the Castilians were doggedly attached to the observances of their
ancestors, and stoutly refused compliance. In 1077, Alfonso I. procured
the assent of a national council, but the people rebelled, and after
repeated negotiations the matter was finally referred to the umpirage
of the sword. The champion of the Gothic ritual was victorious, and
tradition adds that a second trial was made by the ordeal of fire;
a missal of each kind was thrown into the flames, and the national
liturgy emerged triumphantly unscathed.[369]
Nearly contemporary with this was the celebrated case of Otho, Duke
of Bavaria, perhaps the most noteworthy example of a judicial appeal
to the sword. A worthless adventurer, named Egeno, accused Otho of
conspiring against the life of Henry IV. In a diet held at Mainz, the
duke was commanded to disprove the charge by doing battle with his
accuser within six weeks. According to some authorities, his pride
revolted at meeting an adversary so far his inferior; according to
others, he was prevented from appearing in the lists only by the
refusal of the emperor to grant him a safe conduct. Be this as it may,
the appointed term elapsed, his default of appearance caused judgment
to be taken against him, and his duchy was accordingly confiscated. It
was bestowed on Welf, son of Azo d’Este and of Cunigunda, descendant
and heiress of the ancient Guelfic Agilolfings; and thus, on the basis
of a judicial duel, was founded the second Bavarian house of Guelf,
from which have sprung so many royal and noble lines, including their
Guelfic Majesties of Britain. Some years later, the emperor himself
offered to disprove by the same means a similar accusation brought
against him by a certain Reginger, of endeavoring to assassinate his
rival, Rodolph of Suabia. Ulric of Cosheim, however, who was involved
in the accusation, insisted on taking his place, and a day was
appointed for the combat, which was prevented only by the opportune
death of Reginger.[370]
Scarcely less impressive in its results, and even more remarkable
in itself, as exhibiting the duel invested with legislative as well
as judicial functions, is the case wherein the wager of battle was
employed in 1180 to break the overgrown power of Henry the Lion. That
puissant Duke of Saxony and Bavaria had long divided the power of the
empire and defied the repeated efforts of Frederic Barbarossa to punish
his constantly recurring rebellions. Cited to appear and answer for
his treasons in successive diets, he constantly refused, on the plea
that the law required him to have a trial within his own dominions.
At length, in the diet of Würzburg, a noble arose and declared
himself ready to prove by the single combat that the emperor could
legally cite his princes before him at any place that he might select
within the limits of the empire. Of course there was none to take up
the challenge, and Frederic was enabled to erect the principle thus
asserted into a binding law. Henry was condemned by default, and his
confiscated possessions were shared between those who had arranged and
enacted the comedy.[371]
No rank of life in fact procured exemption from the duel between
antagonists of equal station. When in 1002, on the death of Otho III.,
the German throne was filled by the election of Henry the Lame, Duke
of Bavaria, one of his disappointed competitors, Hermann, Duke of
Suabia, is said to have demanded that their respective claims should
be determined by a judicial combat, and the new king, feeling himself
bound to accept the wager of battle, proceeded to the appointed place,
and waited in vain for the appearance of his antagonist.[372] Thus the
champion of England, who until 1821 figured in the coronation pageant
of Westminster Abbey, was a relic of the times when it was not an
idle ceremony for the armed and mounted knight to fling the gauntlet
and proclaim aloud that he was ready to do battle with any one who
challenged the right of the new monarch to his crown.[373] A striking
example of the liability attaching to even the most exalted rank is
afforded by a declaration of the privileges of the Duchy of Austria,
granted by Frederic Barbarossa in 1156, and confirmed by Frederic II.
in 1245. These privileges rendered the dukes virtually independent
sovereigns, and among them is enumerated the right of employing a
champion to represent the reigning duke when summoned to the judicial
duel.[374] Even more instructive is the inference deducible from the
For de Morlaas, granted to his subjects by Gaston IV. of Béarn about
the year 1100. The privileges contained in it are guaranteed by a
clause providing that, should they be infringed by the prince, the
injured subject shall substantiate his complaint by his simple oath,
and shall not be compelled to prove the illegality of the sovereign’s
acts by the judicial combat, thus indicating a pre-existing custom of
the duel between the prince and his vassals.[375]
It is not to be supposed, however, from these instances that the duel
was an aristocratic institution, reserved for nobles and affairs of
state. It was an integral part of the ordinary law, both civil and
criminal, employed habitually for the decision of the most every-day
affairs. Thus a chronicler happens to mention that in 1017 the Emperor
St. Henry II. coming to Merseburg hanged a number of robbers who had
been convicted in single combat by champions, and then proceeding to
Magdeburg he had all the thieves assembled and treated them in the same
manner.[376] So much was it a matter of course, that, by the English
law of the thirteenth century, a pleader was sometimes allowed to alter
the record of his preliminary plea, by producing a man who would offer
to prove with his body that the record was incorrect, the sole excuse
for the absurdity being that it was only allowed in matters which
could not injure the other side;[377] and a malefactor turning king’s
evidence was obliged, before receiving his pardon, to pledge himself to
convict all his accomplices, if required, by the duel.[378]
The habitual use of such a method of administering justice required
no little robustness of faith in the expected intervention of God to
control the event. Even in the fifteenth century, when the combat was
rapidly becoming obsolete, this faith is pictorially embodied in an
illuminated MS. of Tallhöfer’s Kamp-recht, where a miniature represents
the victor kneeling and returning thanks to God, while the vanquished
is lying on his back with Satan grasping at his open mouth as though
already seizing the soul of the criminal.[379] This robustness of
faith was proof against experience and common sense, and sought to
explain the frequent miscarriage of justice by any process of reasoning
rather than the right one. Thus about the year 1100 a sacrilegious
thief named Anselm stole the sacred vessels from the church of Laon
and sold them to a merchant, from whom he exacted an oath of secrecy.
Frightened at the excommunications fulminated by the authorities of the
plundered church, the unhappy trader revealed the name of the robber.
Anselm denied the accusation, offered the wager of battle, defeated
the unfortunate receiver of stolen goods, and was proclaimed innocent.
Encouraged by impunity, he repeated the offence, and after his
conviction by the ordeal of cold water he confessed the previous crime.
The doubts cast by this event on the efficacy of the judicial combat
were, however, happily removed by the suggestion that the merchant had
suffered for the violation of the oath which he had sworn to Anselm,
and the reputation of the duel remained intact.[380]
The frequent cases of this nature often did not admit of so ingenious
an explanation of the criminal’s escape, and legal casuists assumed
a condition of being, guilty in the sight of God, but not in that of
man—a refinement of speculation which even finds place in the German
codes of the thirteenth century;[381] and men contented themselves
then, as they do still, with predicting future misfortunes and an
eternity of punishment. The more direct solution, in cases of unjust
condemnation, was very much like that which justified the defeat of
Anselm’s merchant—that the unfortunate victim, though innocent of the
special offence charged, suffered in consequence of other sins. This
doctrine was even supported by the infallible authority of the papacy,
as enunciated in 1203 by Innocent III. in a case wherein the priory
of St. Sergius was unjustly convicted of theft by the judicial duel,
and its possessions were consequently seized by the authorities of
Spoleto.[382]
An example justifying this theory is found in the case of Henry of
Essex in 1163. He was a favorite of Henry II. and one of the most
powerful nobles of his day, till he was accused of treason by his
kinsman Robert de Montfort for having abandoned his king when in
desperate straits in the Welsh war of 1157. A duel ensued, fought
on an island of the Thames near Reading, in presence of an immense
assemblage. Henry had been a bad neighbor to the Abbey of St. Edmund,
and when engaged in the desperate contest he was dismayed at seeing the
angry saint hovering in the air and threatening him; nor was this all,
for Gilbert de Cerivilla, whom he had unjustly put to death, likewise
appeared and menaced him. The inevitable result of this was his defeat;
he was left for dead on the field, but at the instance of his powerful
kindred his body was allowed Christian burial in the Abbey of Reading.
Carried thither he unexpectedly revived and embraced a religious life
in the abbey, where years afterwards he related the story of his
discomfiture to the veracious chronicler who has handed it down.[383]
That the combatants themselves did not always feel implicit confidence
in the event, or rely solely upon the righteousness of their cause, is
shown by the custom of occasionally bribing Heaven either to assist
the right or to defend the wrong. Thus, in the eleventh century, we
find the monastery of St. Peter at Bèze in the enjoyment of certain
lands bestowed on the Saint by Sir Miles the Stammerer, who in this
way endeavored to purchase his assistance in a combat about to take
place—a bargain no doubt highly appreciated by the worthy monks.[384]
According to the belief of the pious, Heaven might be propitiated by
less venal means, for Cæsarius of Heisterbach relates on the authority
of an eye-witness that when Henry VI. entered Lombardy in 1196, a
castellan was accused before him of oppression and rapine by his
neighbors, who produced a champion of enormous size to vindicate their
case. The Emperor decreed the battle, when the brother of the accused
offered himself for the defence—a slender and most unequal antagonist.
He prepared himself for the strife, however, by assiduous confession
and prayer, and easily overcame his huge adversary; and thus, exclaims
the worthy chronicler, a guilty man escaped the death he had deserved,
solely by virtue of the humble confession of his brother.[385] Cæsarius
also mentions another case, in a duel decreed by Frederic Barbarossa
between a knight and a gigantic champion, where the inequality was
more than counterbalanced by the fact that the knight piously took the
precaution of receiving the sacrament before entering the lists, and
thus was enabled to overcome his adversary.[386]
Less creditable means were sometimes employed, and men did not
hesitate, with the unreasoning inconsistency characteristic of
superstition, to appeal to God and at the same time endeavor to
influence God’s judgment by the use of unlawful expedients. This
was not confined to the laity. In 1355 there was an important suit
between the Bishop of Salisbury and the Earl of Salisbury respecting
the ownership of a castle, in which the combat was adjudged. When
the champions entered the lists the customary examination of their
arms and accoutrements was made, and the combat was adjourned in
consequence, as it was said, of finding in the coat of the episcopal
champion certain rolls containing prayers and charms. The case was
finally compromised by the bishop paying fifteen hundred marks to the
earl for the disputed property.[387] That precautions against such
devices were deemed necessary is shown by the oath required of all
combatants, whether principals or champions, that they had on them no
charms or conjurations to affect the result.[388] A quaint formula for
this is the oath of the champion in the case of Low _vs._ Paramore in
1571—“This hear you justices that I have this day neither eat, drunk,
nor have upon me either bone, stone, ne glass or any enchantment,
sorcery, or witchcraft where-through the power of the Word of God might
be inleased or diminished and the devil’s power increased, and that my
appeal is true, so help me God and his saints and by this Book.”[389]
CHAPTER V.
LIMITATIONS ON THE WAGER OF BATTLE.
The right of demanding the wager of battle between principals varied
much with the age and race, though as a “bilateral” ordeal, as a rule,
from the earliest times either party was entitled to claim it.[390]
When Beaumanoir composed his _Coutumes du Beauvoisis_, in 1283, the
practice may be considered to have entered upon its decadence; twenty
years had elapsed since the determined efforts of St. Louis to abolish
it; substitutes for it in legal processes had been provided; and the
manner in which that enlightened jurist manifests his preference for
peaceful forms of law shows that he fully appreciated the civilizing
spirit in which the monarch had endeavored to soften the ferocity of
his subjects. When, therefore, we see in Beaumanoir’s treatise how
few restrictions existed in his time, we may comprehend the previous
universality of the custom. In criminal cases, if an accuser offered
battle, the defendant was forced either to accept it or to confess
his guilt, unless he could prove an alibi, or unless the accuser was
himself notoriously guilty of the crime in question, and the accusation
was evidently a mere device to shift the guilt to the shoulders of
another; or unless, in case of murder, the victim had disculpated
him, when dying, and had named the real criminals.[391] If, on the
other hand, the accused demanded to wage his battle, the judge could
only refuse it when his guilt was too notorious for question.[392] A
serf could not challenge a freeman, nor a bastard a man of legitimate
birth (though an appeal of battle might lie between two bastards),
nor a leper a sound man.[393] In civil actions, the battle trial was
not allowed in cases relating to dower, to orphans under age,[394] to
guardianships, or to the equity of redemption afforded by the feudal
laws to kinsmen in the sale of heritable property, or where the matter
at stake was of less value than twelve deniers.[395] St. Louis also
prohibited the duel between brothers in civil cases, while permitting
it in criminal accusations.[396] The slenderness of these restrictions
shows what ample opportunities were afforded to belligerent
pleaders.[397]
In Germany, as a general rule, either party had a right to demand
the judicial combat,[398] subject, however, in practice, to several
important limitations. Thus, difference of rank between the parties
afforded the superior a right to decline a challenge, as we shall see
more fully hereafter.[399] Relationship between the contestants was
also an impediment, of which either might avail himself,[400] and
even the fact that the defendant was not a native of the territory
in which the action was brought gave him the privilege of refusing
the appeal.[401] Still, we find the principle laid down even in the
fourteenth century that cases of homicide could not be determined in
any other manner.[402] There were circumstances, indeed, in which the
complainant, if he could bring the evidence of seven witnesses in his
favor, could decline the duel; but if he choose to prove the charge
by the combat, no examination or testimony was admitted. In the same
way, if a man was slain while committing theft or robbery, and was
prosecuted for the crime, the accuser was not bound to offer the duel
if he could produce the evidence of seven witnesses; but if a relative
of the dead man offered to vindicate him by combat, this annulled
all the evidence, and conviction could not be had without the battle
ordeal.[403] A curious provision in the Saxon burgher law allowed a
man who had been assaulted to challenge to the duel as many men as he
had wounds—but the wounds were required to be of a certain degree of
severity—_wunden kampffbaren_.[404] So the contemporary law of Suabia
provides that in accusations of personal violence, the duel was not to
be allowed, unless the injury inflicted on the complainant had been
sufficiently serious to cause permanent maiming,[405] thus showing how
thoroughly different in spirit was the judicial combat from the modern
code of honor which has been affiliated upon it. Yet a general rule is
found expressed to the effect that it was necessary only in cases where
no other evidence was obtainable, when the result could be safely left
to the judgment of Omniscience.[406]
In the Latin kingdoms of the East, and among the Armenians, who,
curiously enough, adopted the customs of their fellow Christians from
the West, it would seem that in both the noble and the roturier courts,
in civil as well as in criminal cases, the plaintiff or prosecutor
was not obliged personally to fight, but that if one of his witnesses
offered battle, the defendant or accused was not permitted to decline
the challenge under pain of losing his suit or being condemned. On the
other hand, unless the complainant or accuser had a witness who was
willing to offer battle, the oath of denial of the other party was
sufficient, and in criminal cases the accuser was subjected to the
_talio_.[407]
By the English law of the thirteenth century, a man accused of crime
had, in doubtful cases only, the right of election between trial by
jury and the wager of battle. When a violent presumption existed
against him, he was obliged to submit to the verdict of a jury; but
in cases of suspected poisoning, as satisfactory evidence was deemed
unattainable, the accused had only the choice between confession
and the combat.[408] On the other hand, when the appellant demanded
the duel, he was obliged to make out a probable case before it was
granted.[409] When battle had been gaged, however, no withdrawal was
permitted, and any composition between the parties to avoid it was
punishable by fine and imprisonment[410]—a regulation, no doubt,
intended to prevent pleaders from rashly undertaking it, and to obviate
its abuse as a means of extortion. In accusations of treason, indeed,
the royal consent alone could prevent the matter from being fought
out.[411] Any bodily injury on the part of the plaintiff, tending to
render him less capable of defence or aggression, likewise deprived
the defendant of the right to the wager of battle, and this led to
such nice distinctions that the loss of molar teeth was adjudged not
to amount to disqualification, while the absence of incisors was
considered sufficient excuse, because they were held to be important
weapons of offence.[412] Notwithstanding these various restrictions,
cases of treason were almost always determined by the judicial duel,
according to both Glanville and Bracton.[413] This was in direct
opposition to the custom of Lombardy, where such cases were especially
exempted from decision by the sword.[414] These restrictions of the
English law, such as they were, did not, however, extend to the
Scottish Marches, where the trial by battle was the universal resource
and no proof by witnesses was admitted.[415]
In Bearn, the duel was permitted at the option of the accuser in
cases of murder and treason, but in civil suits only in default of
testimony.[416] That in such cases it was in common use is shown by
a treaty made, in the latter part of the eleventh century, between
Centulla I. of Bearn and the Viscount of Soule, in which all doubtful
questions arising between their respective subjects are directed to be
settled by the combat, with the singular proviso that the combatants
shall be men who have never taken part in war.[417] In the thirteenth
century, however, a provision occurs which must have greatly reduced
the number of duels, as it imposed a fine of only sixteen sous on the
party who made default, while, if vanquished, he was visited with
a mulct of sixty sous and the forfeiture of his arms.[418] In the
neighboring region of Bigorre an exemption was allowed in favor of the
widow whose husband had been slain in war. Until she remarried or her
sons were of age to bear arms she was exempt from all legal process—a
provision evidently intended to relieve her from the duel in which
suits were liable to terminate.[419]
In some regions greater restrictions were imposed on the facility for
such appeals to the sword. In Catalonia, for instance, the judge alone
had the power of deciding whether they should be permitted,[420] and a
similar right was reserved in doubtful cases to the podestà in a code
of laws in force at Verona in 1228.[421] This must often have prevented
the injustice inherent in the system, and an equally prudent reserve
was exhibited in a statute of Montpellier, which required the assent of
both parties.[422] On the other hand, in Normandy, at the commencement
of the thirteenth century, many cases relating to real estate were
examined in the first instance by a jury of twelve men, and, if they
failed of an unanimous verdict, the question was decided by the duel,
whether the parties were willing or not.[423]
By the criminal procedure in England, at about the same period, the
duel was prescribed only for cases of felony or crimes of importance,
and it was forbidden in trifling misdemeanors.[424] Appeal of battle
could not lie between a vassal and his lord during the existence of
the connection, nor between a serf and his master except in cases of
treason.[425] It would also seem that the defendant could avoid the
duel if he could prove that the motive of the appeal was hatred, for
there is a curious case on record in which, when the appellant demanded
battle, the accused offered to the king a silver mark for an impartial
jury to decide this preliminary question, and it was granted to
him.[426] In Southern Germany a fifteenth century MS. enumerates seven
crimes for which the duel could be prescribed—detraction of the emperor
or empire, treason, theft, robbery and depredation, rape, arson, and
poisoning.[427]
From a very early period, a minimum limit of value was established,
below which a pugnacious pleader was not allowed to put the life or
limb of his adversary in jeopardy. This varied of course with the
race and the period. Thus, among the Angli and Werini, the lowest
sum for which the combat was permitted was two solidi,[428] while
the Baioarians established the limit at the value of a cow.[429] In
the tenth century, Otho II. decided that six solidi should be the
smallest sum worth fighting for.[430] The so-called laws of Henry I.
of England decreed that in civil cases the appeal of battle should
not lie for an amount less than ten solidi.[431] In France, Louis
le Jeune, by an edict of 1168, forbade the duel when the sum in
debate was less than five sous,[432] and this remained in force for
at least a century.[433] The custom of Normandy in the thirteenth
century specifies ten sous as the line of demarcation between the
_lex apparens_ and the _lex simplex_ in civil suits,[434] and the
same provision retains its place in the Coutumier in use until the
sixteenth century.[435] In the Latin States of the East founded by
the Crusaders, the minimum was a silver marc in cases of both nobles
and roturiers.[436] A law of Aragon, in 1247, places the limit at ten
sous.[437]
As regards the inferior classes of society, innumerable documents
attest the right of peasants to decide their quarrels by the ordeal
of battle. By the old Lombard law, slaves were allowed to defend
themselves in this manner;[438] and they could even employ the duel
to claim their liberty from their masters, as we may infer from a law
of King Grimoald denying this privilege to those who could be proved
to have served the same master for thirty continuous years.[439]
Similarly, among the Frisians, a _litus_ claiming his liberty was
allowed to prove it against his master with arms.[440] The institutions
of feudalism widened the distance between the different classes of
society, and we have already seen that, in the thirteenth century,
serfs were enfranchised in order to enable them to support their
testimony by the combat; yet this was only the result of inequality of
rank. In the time of Beaumanoir (1283), though an appeal would not lie
from a serf to a freeman, it may be safely inferred from the context
that a combat could be legally decreed between two serfs if the consent
of their masters were obtained,[441] and other contemporary authorities
show that a man claimed as a serf could defend his freedom with the
sword against his would-be master.[442] Even Jews were held liable to
the appeal of battle, as we learn from a decision of 1207, preserved
in an ancient register of assizes in Normandy,[443] and they no doubt
purchased the exemption, which was granted to them, except in cases of
flagrant murder, by Philippe le Long, as a special favor, in 1317.[444]
Difference of condition thus became an impediment to the duel, and
formed the subject of many regulations, varying with circumstance and
locality. The free mountaineers of Béarn, as has been seen, placed the
prince and the subject on an equality before the law, but this was
a rare example of independence, and the privileges of station were
sometimes exhibited in their most odious form. In France, for instance,
while the battle trial could take place between the gentilhomme and
the _vilain_, the former was secured by the distinction that if the
villein presumed to challenge him, he enjoyed the right of fighting on
horseback with knightly weapons, while the challenger was on foot and
armed only with shield and staff; but if the gentleman condescended
to challenge the villein, they met on equal terms.[445] This last
regulation was enforced with impartial justice, for Beaumanoir mentions
a case in which a gentleman challenged a roturier, and presented
himself in the lists mounted and armed with his knightly weapons. The
defendant protested against this illegal advantage, and the judges
decided that the gentleman had forfeited his horse and arms, and that
if he desired to continue the combat he must do so in the condition
in which he was left by the disarmament—in his shirt without armor
or weapons, while his adversary should retain coat of mail, target,
and club.[446] The barbarous injustice of the general rule, moreover,
was by no means of universal application. Pierre de Fontaines, for
instance, directs that in cases of appeal from a roturier to a
gentleman the combat shall take place on foot between champions;[447]
and I find a case recorded in 1280, in which a _femme de corps_ of
Aimeri de Rochechouart accused the Sire de Montricher of burning her
houses, and as the duel was adjudged she placed in the lists an armed
and mounted knight as her champion, to whom no objection seems to have
been made.[448]
Throughout both Northern and Southern Germany, where the minute
distinctions of birth were guarded with the most jealous care from
a very early period, the codes of the thirteenth century, including
even the burgher laws, provided that a difference of rank permitted
the superior to decline the challenge of an inferior, while the latter
was obliged to accept the appeal of the former. So thoroughly was
this principle carried into practice, that, to compel the appearance
of a _Semperfri_, or noble of sixteen quarterings, the appellant was
required to prove himself of equally untarnished descent.[449] In the
same spirit a Jew could not decline the appeal of battle offered by a
Christian accuser, though we may safely infer that the Jew could not
challenge the Christian.[450] So, in the Latin kingdom of Jerusalem,
the Greek, the Syrian, and the Saracen could not challenge the Frank,
but could not, in criminal cases, decline his challenge, though they
might do so in civil suits.[451] In Aragon, no judicial duel was
permitted between a Christian and a Jew or a Saracen,[452] while in
Castile both combatants had to be gentlemen, quarrels between parties
of different ranks being settled by the courts.[453] On the other
hand, in Wales, extreme difference of rank was held to render the duel
necessary, as in cases of treason against a lord, for there the lord
was plaintiff against his vassal, and as no man could enter into law
with his lord, the combat was considered the only mode of prosecution
befitting his dignity.[454]
A question of this nature was the remote occasion of the murder of
Charles the Good, Count of Flanders, in 1127. Bertulf, Provost of the
church of Bruges, was rich and powerful, although in reality his family
were villeins of the count. He married his nieces to knights, one of
whom, in presence of the count, appealed another knight to battle.
The appellee refused on the ground that he was not obliged to notice
the challenge of a villein, for according to the law of the land a
freeman marrying a serf was reduced to the latter condition after the
expiration of a year. The Count’s attention being thus called to his
rights over the family of Bertulf, he proceeded to establish them, when
Bertulf set on foot the conspiracy which ended in the assassination of
the count.[455]
* * * * *
There were three classes—women, ecclesiastics, and those suffering
under physical incapacity—with whom personal appearance in the lists
would appear to be impossible. When interested in cases involving the
judicial duel they were therefore allowed the privilege of substituting
a champion, who took their place and did battle for the justice of
their cause. So careful were legislators to prevent any failure in the
procedure prescribed by custom, that the North German law provided that
the dead when prosecuted could appear in the lists by substitutes,[456]
and the Assises de Jerusalem ordered the suzerain to supply the
expenses for forty days, when a suitor unable to fight was also too
poor to pay for a champion to take his place; and when a murdered man
left no relatives to prosecute the murderer, the suzerain was likewise
obliged to furnish the champion in any trial that might arise.[457]
Equally directed to the same purpose was the German law which provided
that when a crippled defendant refused or neglected to procure a
substitute, the judge was to seize one-half of his property with which
to pay the services of a gladiator, who could claim nothing more.[458]
Guardians of women and minors, moreover, were bound to furnish battle
in their behalf.[459]
Women, however, did not always restrict themselves to fighting thus
vicariously. The German laws refer to cases in which a woman might
demand justice of a man personally in the lists, and not only are
instances on record in which this was done, as in a case at Berne
in 1228, in which the woman was the victor,[460] but it was of
sufficiently frequent occurrence to have an established mode of
procedure, which is preserved to us in all its details by illuminated
MSS. of the period.[461] The chances between such unequal adversaries
were adjusted by placing the man up to the navel in a pit three feet
wide, tying his left hand behind his back, and arming him only with a
club, while his fair opponent had the free use of her limbs and was
furnished with a stone as large as the fist, or weighing from one
to five pounds, fastened in a piece of stuff. A curious regulation
provided the man with three clubs. If in delivering a blow he touched
the earth with hand or arm he forfeited one of the clubs; if this
happened thrice his last weapon was gone, he was adjudged defeated, and
the woman could order his execution. On the other hand, the woman was
similarly furnished with three weapons. If she struck the man while
he was disarmed she forfeited one, and with the loss of the third she
was at his mercy, and was liable to be buried alive. According to the
customs of Freisingen these combats were reserved for accusations of
rape. If the man was vanquished, he was beheaded; if the woman, she
only lost a hand, for the reason that the chances of the fight were
against her.[462] In Bohemia, also, women over the age of eighteen
had the privilege of the duel; the man was put into a pit as deep as
his waist; the woman was armed with sword and buckler, but was not
allowed to approach nearer than a circle traced around the mouth of the
pit.[463]
The liability of ecclesiastics to the duel varied with the varying
relations between the church and state. As early as the year 819,
Louis le Débonnaire, in his additions to the Salic law, directs that,
in doubtful cases arising between laymen and ecclesiastics, the duel
between chosen witnesses shall be employed, but that when both parties
are clerical it shall be forbidden.[464] This restriction was not long
observed. A decree of the Emperor Guy, in 892, gives to churchmen the
privilege of settling their quarrels either by combat or by witnesses,
as they might prefer;[465] and, about the year 945, Atto of Vercelli
complains that the tribunals allowed to ecclesiastics no exemption
from the prevailing custom.[466] As we have seen (p. 131), Otho II.,
at the Council of Verona in 983, subjected the churches to the law of
the duel, only granting them the privilege of employing champions. Some
intricate questions involved in the coexistence of the Lombard and the
Roman law arose in a celebrated case between the Abbey of Farfa and
that of SS. Cosmo and Damianus of Rome, which was pleaded in 998 and
999 before Otho III. and Popes Gregory V. and Sylvester II. The Abbey
of Farfa proved that it lived under the Lombard law, while the other
was under the Roman law. It was decided, as the Abbey of Farfa desired,
that after hearing testimony the case should be settled by the duel,
but the witnesses of the Roman abbey were so manifestly perjured that
it was held not to have made out a case justifying an appeal to the
combat, and the churches in dispute were adjudged to Farfa.[467]
So far was this liability to the duel from being deemed a hardship
by the turbulent spirits of the period, that clerks not infrequently
disdained to sustain their rights by the intervention of a champion,
and boldly entered the lists themselves. In 1080 the Synod of
Lillebonne adopted a canon punishing by a fine such belligerent
churchmen as indulged in the luxury of duels without having first
obtained from their bishops a special license authorizing it.[468]
About the same period, Geoffrey, Abbot of Vendôme, in a letter to the
Bishop of Saintes, complains of one of his monks who had fought in a
judicial duel with a clerk of Saintes.[469] The practice continued,
and though forbidden by Pope Innocent II. in 1140,[470] Alexander III.
and Clement III. found it necessary to repeat the prohibition before
the close of the century.[471] Yet Alexander, when appealed to with
respect to a priest of the Campagna who had lost a finger in a duel,
decided that neither the offence nor the mutilation debarred him from
the exercise of his sacerdotal functions, and only directed him to
undergo due penance.[472] The progress of the age, however, was shown
when, about thirty years afterwards, Celestin III. pronounced sentence
of deposition in a similar case submitted to him;[473] and this was
formally and peremptorily confirmed by Innocent III. at the great
council of Lateran in 1215.[474]
That the peaceful ministers of Christ should vindicate their rights
with the sword, either personally or by proxy, was a sacrilege
abhorrent to pious minds. As early as the middle of the ninth century,
Nicholas I., who did so much to establish the supremacy of the church,
endeavored to emancipate it from this necessity, and declared that
the duel was not recognized by ecclesiastical law.[475] The utmost
privilege which the secular law accorded the clergy, however, was the
right of presenting a champion in the lists, which zealous churchmen
naturally resented as an arbitrary injustice.[476] How thoroughly it
was carried out in practice, notwithstanding all remonstrances, is
shown by a charter granted in 1024 by St. Stephen of Hungary to the
monastery of St. Adrian of Zala, by which, among other privileges, the
pious king bound himself to supply a champion in all suits against
the abbey, in order that the holy meditations of the monks might not
be interrupted.[477] Not long after, in 1033, the celebrated abbey
of St. Clement at Pescara was involved in a dispute concerning some
lands which had been cut off from its possessions by a change in the
course of the river Pescara, and had been seized by the lords of the
contiguous territory. At an assembly of the magnates of the district
it was adjudged that the matter must be settled by the duel. The
night before the combat was to take place the holy abbot Guido, after
enjoining earnest prayers by all the monks, sallied forth alone to
the banks of the stream and stretching forth his staff adjured the
waters to repair the evil which they had wrought under the impulsion
of the devil. The river forthwith returned to its old channel, and
next morning the multitude which assembled to witness the combat were
astounded to see the miracle. The godless men who had seized on the
possessions of the church humbly sought pardon for their sin, and the
abbey remained in quiet enjoyment of its rights.[478]
The scandal of maintaining the claims of the church by carnal weapons
and bloodshed was not soon suppressed. In 1112 we find a certain
Guillaume Maumarel, in a dispute with the chapter of Paris concerning
some feudal rights over the domain of Sucy, appearing in the court
of the Bishop of Paris for the purpose of settling the question by
the duel, and though the matter was finally compromised without
combat, there does not seem to have been anything irregular in his
proceeding.[479] So, about the same period, in a case between the
abbey of St. Aubin in Anjou and a neighboring knight, involving some
rights of property, the monks not only challenged their adversary, but
the duel was held in the seignorial court of another monastery;[480]
and in 1164, we find a duel decreed at Monza, by the Archbishop of
Cologne as chancellor of Italy, between an abbey and a layman of the
vicinity.[481] That such cases, indeed, were by no means uncommon
is shown by their special prohibition in 1195 by Celestin III.[482]
Yet, notwithstanding the repeated efforts of the Holy See, it was
almost impossible for the church to exempt itself from the universal
liability. Though in 1174 Louis VII. granted a special privilege of
exemption to the church of Jusiers and its men, on the ground that
he was bound to abrogate all improper customs,[483] still no general
reform appears to have been practicable. An important step was gained
when in 1176 Henry II., as a concession to the papacy, agreed that
ecclesiastics should not be forced to the duel,[484] but this did not
extend to the Scottish Marches, where by law an ecclesiastic was as
liable as a layman to personal appearance in the lists; if he presented
a champion he was held in custody till the event of the duel, when,
if the champion was defeated, his principal was promptly beheaded.
Innocent III. sternly prohibited this in 1216, but ineffectually, as
is seen by a complaint of the English clergy, in 1237, in which they
mention the case of the Prior of Lide, who had thus recently suffered
the penalty. This was equally fruitless, for the _Leges Marchiarum_,
enacted in 1249, declare that exemption from battle is confined to the
persons of the kings and of the Bishops of St. Andrews and Durham.[485]
In France, during the thirteenth century, the liability continued. In
1239 a knight of Orleans, Gui de Santillac, testified before the royal
council that the chapter of Saint-Aignan had appealed him in wager of
battle.[486] As late as the year 1245, some vassals of the chapter of
Nôtre Dame at Paris denied the service due by them, and demanded that
the claim of the chapter should be made good by the wager of battle.
That they had a legal right to do so is shown by the fact that the
churchmen were obliged to implore the intervention of the pope; and
Innocent IV. accordingly granted to the chapter a special privilege,
in which, on the ground that single combats were forbidden by the
canons, he declared that the church of Nôtre Dame should be entitled
to prove its rights by witnesses, deeds, and other legitimate proofs,
notwithstanding the custom existing to the contrary.[487] It was
probably his interference in this case that led him a few years later,
in 1252, to issue a decretal in which he pointed out the manifest
hardship of forcing the clergy in France, when prosecuting such claims
against their serfs, to have recourse to the duel, and thus, under the
canon law, to forfeit their positions. To remedy this he proclaimed
as a general rule that all verdicts should be void when obtained
against clerks either by means of the duel or through reason of their
refusing the combat;[488] yet in the following year he was obliged to
intervene to protect the Archbishop of Sens, who complained that in
these cases he was obliged to make good his claims by battle.[489] In
this, Innocent was consistent, for one of the accusations which he had
brought against the Emperor Frederic II. when the latter was deposed
at the Council of Lyons in 1245 was that he had forced ecclesiastics to
undergo the duel, to the confusion of all distinctions between clerk
and layman.[490] Even in Italy about 1220 the podestà of Florence
ordered the duel to decide a suit concerning certain property between
some citizens and the church of the Apostles; the latter invoked
the intervention of Honorius III., who commanded the matter to be
settled by regular judicial process, boldly alleging that the duel was
unheard of in such matters,[491] but in spite of this and the repeated
prohibitions of the popes, trial by combat was still towards the
close of the thirteenth century regarded as the only mode of settling
disputed questions between churches when the genuineness of a charter
was impugned.[492] Yet at the same period the doctors of canon law held
that an ecclesiastic appearing in the lists, either personally or by a
champion, was subject to deposition; it was better, they said, to lose
lands and fiefs than to incur mortal sin. Unfortunately this was scarce
more than a mere _brutum fulmen_, for a dispensation could always be
had from bishop or pope.[493] Custom was stubborn, moreover, and half
a century later, when the judicial duel was going out of fashion,
a bishop of Liége so vexed the burghers of Louvain, by repeated
citations to the combat to settle disputed questions, that John III.
Duke of Brabant was obliged to appeal to the Emperor Charles IV.,
who accordingly wrote to the bishops of Trèves, Cambrai, and Verdun
desiring them to find some means of putting an end to the bellicose
tendencies of their episcopal brother.[494]
These sporadic cases only show how difficult it was throughout the
whole extent of Christendom to eradicate a custom so deeply rooted in
ancestral modes of thought. By the middle of the thirteenth century the
church had succeeded in virtually establishing the claim, for which it
had long striven, that ecclesiastics were not subject to secular law
in either civil or criminal matters. This exemption of course released
them from liability to the duel and placed them exclusively under
spiritual jurisdiction, in which the strongly marked papal aversion to
the duel had full opportunity of making itself effective.[495]
Another phase of the relations between the church and the duel is to
be seen in the extensive secular jurisdiction of its prelates in their
capacity as temporal seigneurs. In this they were accustomed to award
the duel as freely as any other form of legal procedure. To do this
was not only one of the privileges which marked the feudal superior,
but was also a source of revenue from the fees and penalties thence
accruing, and these rights were as eagerly sought and as jealously
guarded by the spiritual lords as by the warlike barons. It would
scarce be necessary to multiply instances, but I may mention a charter
granted by Fulk Nera, Count of Anjou, about the year 1010, bestowing
these rights on the abbey of Beaulieu in Touraine,[496] and one by
the Emperor Henry III., in 1052, to the bishop and church of Volterra
in Italy.[497] The first authentic evidence of the existence of the
battle trial in Scotland is a charter of Alexander I. in 1124 to the
Abbey of Scone, in which he bestows on the abbot and monks the right
to grant the duel and ordeal in their jurisdiction; and his brother,
St. David I., conferred the same rights on the Abbey of Holyrood.[498]
Some conscientious churchmen objected to a practice so antagonistic
to all the teachings of the religion of which they were professors,
and lifted up their voices to check the abuse. Thus, about the close
of the eleventh century, we find the celebrated canonist, St. Ivo
of Chartres, rebuking the Bishop of Orleans for ordering the combat
to decide an important suit in his court.[499] Ivo even carried out
his principles to the sacrifice of the jurisdiction usually so dear
to the prelates of his day, for in another case he refused to give
judgment because it necessarily involved a trial by battle, and he
eluded the responsibility by transferring the cause to the court of
the Countess of Chartres.[500] A century later Peter Cantor declared
that as a priest he would in no case furnish relics on which the
preliminary oaths were to be taken, for churchmen were prohibited from
being concerned in bloodshed.[501] These precepts and examples were
equally unavailing. Churchmen continued to award the wager of battle,
and resolutely resisted any invasion of their privileges. In 1150
the statutes of the chapter of Lausanne direct that all duels shall
be fought before the provost—and the provost was Arducius, Bishop of
Geneva.[502] In 1201 we see the Abbot of St. Alban’s and the Abbot of
Westminster pleading as to their rights over the manor of Aldenham,
including that of the duel.[503] Even in the thirteenth century, in
the archbishop’s court or officiality of Reims, the duel was a matter
of course;[504] and a case is recorded, occurring in 1224, in a
dispute about the ownership of a house, which was decided by a duel
in the court of the abbey of St. Remy, where the abbot presided over
the lists and they were guarded by the royal officials.[505] In 1239
the Bishop of Orleans contested with the king as to the right of the
former to the jurisdiction of the duel in his diocese;[506] and in a
judgment rendered in 1269, concerning a combat waged within the limits
of the chapter of Nôtre Dame of Paris, we find that the first blows
of the fight, usually known as _ictus regis_ or _les cous lou roi_,
are alluded to as _ictus capituli_.[507] How eagerly these rights were
maintained is apparent from numerous decisions concerning contested
cases. Thus, an agreement of 1193, between the Countess of St. Quentin
and the chapter of Nôtre Dame, respecting the disputed jurisdiction of
the town of Viry, gives the official of the chapter the right to decree
duels, but places the lists under the supervision of both parties,
and divides the spoils equally between each.[508] A charter of 1199,
concerning the village of Marne, shows that the sergeant, or officer of
the chapter, had the cognizance of causes up to the gaging of battle,
after which further proceedings were reserved for the court of the
bishop himself.[509] In 1219 the commune of Novara arrogated to itself
the right of decreeing the duel, but the bishop resisted this invasion
of his privileges, and on the matter being referred for arbitration
to the Bishop of Turin he decided in favor of his episcopal brother.
The Bishop of Modena had a long and expensive suit with his city on
the same question, which ended in 1227 with a compromise by which he
abandoned the right; the Bishops of Vercelli were more fortunate, for
they maintained it until the beginning of the fourteenth century, when
judicial duels were going out of fashion.[510] In 1257, while St. Louis
was exerting himself with so much energy to restrict the custom, an
abbey is found engaged in a suit with the crown to prove its rights to
decree the duel, and to enjoy the fees and mulcts thence arising;[511]
and in 1277 a similar suit on the part of the abbey of St. Vaast
d’Arras was decided in its favor.[512] From a verdict given in 1293,
the right of the chapter of Soissons to decree the judicial combat
appears to be undoubted, as well as the earnestness of the worthy
ecclesiastics to exercise the privilege.[513] Even more significant
is a declaration of the authorities of Metz, as late as 1299, by
which the granting of all wagers of battle is expressly admitted by
the civil magistrates of the city to appertain to the court of the
archbishop;[514] and even in 1311 a bishop of St. Brieuc ordered a
duel between two squires pleading in his court, in consequence of high
words between them. From some cause the combat did not take place, and
the Christian prelate seized the arms and horses of the parties as
his mulct. They appealed to the Parlement of Paris, which ordered the
restoration of the confiscated articles, and fined the bishop for his
disregard of the royal edicts prohibiting the single combat.[515] Not
long before, Beaumanoir had definitely asserted that the church could
not be concerned in cases which involved the judicial duel, or the
infliction of death or mutilation;[516] but the church was not disposed
to admit this limitation on its jurisdiction, and in spite of the
attempted suppression of the wager of battle by the crown it continued
in its multifarious capacity of seigneur to execute the cruel laws of
the period with undiminished activity.[517]
In other lands, where the duel had not experienced as in France the
hostility of the supreme power, prelates continued to decree it,
regardless of the papal anathemas. It was to no purpose that canon
lawyers proved that they thereby incurred mortal sin, and that if
death ensued they became “irregular” and incompetent to perform divine
service. To all this they turned a deaf ear, and John of Freiburg,
towards the close of the thirteenth century, is reduced to wishing that
preachers would expound these principles in the pulpit and make them
understood by the people at large.[518]
* * * * *
There was one jurisdiction which held itself more carefully aloof from
the prevailing influence of barbarism—that of the Admiralty Courts,
which covered a large portion of practical mercantile law. This is a
fact easily explicable, not only from the character of the parties and
of the transactions for which those courts were erected, but from the
direct descent of the maritime codes from the Roman law, less modified
by transmission than any other portions of mediæval jurisprudence.
These codes, though compiled at a period when the wager of battle
flourished in full luxuriance, have no reference to it whatever, and
the Assises de Jerusalem expressly allude to the Admiralty Courts
as not admitting the judicial duel in proof,[519] while an English
document of 12 Edward III. attests the same principle.[520] When,
however, the case was one implying an accusation of theft or deception,
as in denying the receipt of cargo, the matter entered into the
province of criminal law, and the battle trial might be legitimately
ordered.[521]
CHAPTER VI.
REGULATIONS OF THE JUDICIAL COMBAT.
The forms and ceremonies employed in the judicial duel may furnish an
interesting subject of investigation for the admirers of chivalry, but
they teach in their details little concerning the habits and modes
of thought of the Middle Ages, and for the most part are therefore
interesting only to the pure archæologist. Although minute directions
have come down to us in the manuals compiled for the guidance of judges
of the lists, to enumerate them in their varying fashions would hardly
be worth the necessary space. Yet there are some details which are of
interest as illustrating both the theory and practice of the duel in
its legal aspect. Thus the general principle on which the combat was
conducted was the absolute assertion by each party of the justice of
his cause, confirmed by a solemn oath on the Gospels, or on a relic
of approved sanctity, before the conflict commenced.[522] Defeat was
thus not merely the loss of the suit, but was also a conviction of
perjury, to be punished as such; and in criminal cases it was also a
conviction of malicious prosecution on the part of a worsted appellant.
That it was regarded as much more serious than the simple loss of a
suit is shown by the provisions of the custom of Normandy, whereby a
vanquished combatant was classed with perjurers, false witnesses, and
other infamous persons, as incapable thenceforth of giving evidence
in courts, or of serving on a jury.[523] Accordingly, we find the
vanquished party, whether plaintiff or defendant, subjected to
penalties more or less severe, varying with time and place.
This was a primeval custom, even in civil cases. In the ancient laws
of the Alamanni, when there was controversy as to the ownership of
land, the contestants brought to the court of the district some earth
and branches of trees from the disputed property. These were wrapped
and sealed and placed in the lists, where the combatants touched the
bundle with their swords and called upon God to grant victory to the
right; the land passed to the victor and the defeated party was fined
twelve sous for having made an unjust claim.[524] The tendency, as
civilization advanced, was to render the penalty more severe. Thus, in
819, Louis le Débonnaire decreed that, in cases where testimony was
evenly balanced, one of the witnesses from each side should be chosen
to fight it out, the defeated champion suffering the usual penalty of
perjury—the loss of a hand; while the remaining witnesses on the losing
side were allowed the privilege of redeeming their forfeited members at
the regular legal rate.[525] William the Conqueror imposed a fine of
forty sous on the losing side impartially;[526] this was increased to
sixty sous by the compilation known as the laws of Henry I.;[527] and
the same regulation is stated by Glanville, with the addition that the
defeated person was forever disqualified as a witness or champion;[528]
but in practice the amount seems to have been indefinite, for in the
Pipe Rolls the fines levied for _recreantise_ vary from one mark to
a hundred.[529] In a case occurring in 1221 where the defendant was
victorious the record simply states that the appellant was ordered
into custody;[530] while in the time of Edward II. the loser, except
in cases of felony, paid to the victor forty sous besides a small
gratification under the name of _ruaille_, in addition to the loss of
the suit.[531] By the Lombard customs, early in the eleventh century,
the appellant, if vanquished, had the privilege of redeeming his hand;
the defendant, if defeated, lost his hand, and was of course subject
in addition to the penalties of the crime of which he was proved
guilty.[532] About the same time the Béarnese legislation is more
merciful, a fine of sixty-six sous Morlaas being imposed impartially
on the losing party.[533] In process of time this system was abandoned
in some countries. The English law of the thirteenth century admitted
the justice of the _lex talionis_ in principle, but did not put it
in practice, a vanquished appellant in capital cases being merely
imprisoned as a calumniator, while the defendant, if defeated, was
executed and his property confiscated.[534] The same distinction is to
be found in the contemporary custom of Normandy.[535] So, by the code
in force in Verona in 1228, the Podestà in criminal cases had the power
of ordering the duel, and of punishing at his pleasure the accuser if
vanquished—the accused when convicted of course undergoing the penalty
of his crime.[536] Towards the end of the thirteenth century, however,
there were some sceptics in Italy who argued that conviction by the
duel ought not to entail the same punishment as conviction by witnesses
“quia pugna est incertum Dei judicium.” This struck directly at the
root of the whole system, and Roffredo insists that the legal penalty
is to be enforced.[537]
Mediæval legislation was not usually lenient to a worsted appellant.
The application of the _lex talionis_ to the man who brought a false
charge, thus adjudging to him the penalty which was incurred by the
defendant if convicted, was widely current during the Middle Ages. This
principle is to be found enunciated in the broadest and most decided
manner in the ecclesiastical law,[538] and it was naturally brought
into play in regulating the fate of those engaged in the wager of
battle. Thus Guillaume le Breton states that when Philip Augustus,
in 1203, wrested Normandy from the feeble grasp of John Lackland, one
of the few changes which he ventured to introduce in the local laws
of the duchy was to substitute this rule of confiscation, mutilation,
or death, according to the degree of criminality involved in the
accusation, for the comparatively light pecuniary mulct and loss of
legal status previously incurred by a worsted appellant.[539] The same
system is followed throughout the legislation of St. Louis, whether
the punishment be light or capital, of an equal responsibility on both
parties.[540] In capital cases, when champions were employed, the
principals were held in prison with the cord around them with which the
defeated party was to be hanged; and if one were a woman, for the cord
was substituted the spade wherewith she was to be buried alive.[541]
The same principle of equal responsibility prevailed throughout the
Frankish kingdoms of the East, where, in an appeal of murder, as we
have seen, the appellant fought by means of one of his witnesses, and
the defendant personally. In civil cases, in the Bourgeois Court,
the party defeated, including the plaintiff, if his side was the
loser, was forever debarred from giving testimony, and had no future
standing in court; while in serious criminal cases, in both upper and
lower courts, either side, when defeated, was hanged with the utmost
impartiality;[542] and it finally established itself in England,
where in the fourteenth century we find it positively declared as an
imperative regulation by Thomas, Duke of Gloucester, in an elaborate
treatise on the rules of single combat printed by Spelman.[543]
In Germany the custom was not uniform. In the Sachsenspiegel, and
in one text of the Schwabenspiegel, the principle is laid down that
a defeated appellant escaped with a fine to the judge and to his
adversary, while the defendant, if vanquished, was visited with the
punishment due to his crime, or even with a heavier penalty;[544] while
the Saxon burgher law and another text of the Suabian code direct
that whichever party be defeated should lose a hand, or be executed,
according to the gravity of the crime alleged.[545] An exceptional
case, moreover, was provided for, in which both antagonists might
suffer the penalty; thus, when a convicted thief accused a receiver
of stolen goods of having suggested the crime, the latter was bound
to defend himself by the duel, and if defeated, both combatants were
hanged without further ceremony.[546] That these penalties were not
merely nominal is shown by a case which occurred at Frankfort in 1369,
when the divine interference was requisite, not to determine the
victor, but to evade the enforcement of the law. Two knights, Zierkin
von Vola and Adolf Hanche, who had married two sisters, quarrelled over
the inheritance of a deceased brother-in-law, and agreed to settle
their difference by the duel. When the appointed day came, October 12,
they entered the lists on their chargers, prepared to do battle to the
death, while their pious wives were earnestly praying God to soften
their hearts and incline them to peace. These prayers were heard. With
a mutual impulse the two warriors leaped from their horses, throwing
themselves into each other’s arms and exclaiming, “Brother, I confess
myself vanquished.” The chief magistrate of the city, who presided
over the combat, was not disposed to deprive the spectators of their
promised entertainment, and indignantly declared that the law of the
duel did not permit both antagonists to depart unhurt, for the one
who yielded must be put to death; and he confirmed this sentence by
a solemn oath that one or the other should die before he would taste
food. Then an affecting contest arose between the late antagonists,
each one proclaiming himself the vanquished and demanding the penalty
on his own head, when suddenly divine vengeance visited the bloody and
remorseless judge, who fell dead, thus fulfilling his impious vow that
he would not eat until he had a victim.[547]
It was probably as an impressive symbol of the penalties affixed by
law to defeat in these combats that in some places the suggestive
custom was in force of placing in the lists two biers in readiness for
their ghastly occupants. In a duel which occurred at Augsburg in 1409,
between two men named Marschalck and Hachsenacker, the former threw his
adversary on the ground, and then asked him what he would have done
had he been the victor. Hachsenacker grimly replied that he would have
slain his foe, whereupon Marschalck despatched him, and placing himself
in his bier caused himself to be carried to the church of St. Ulric,
where he returned thanks for his victory.[548]
The most hideous exaggeration of the system, however, was found in
the Frankish kingdoms of the East, which reserved a special atrocity
for women—one of the numerous instances to be observed in mediæval
law of the injustice applied habitually to the weaker sex. When a
woman appeared, either as appellant or defendant, in the lists by her
champion, if he was defeated she was promptly burnt, no matter what was
the crime for which the duel occurred—and as many accusations could
only be determined by the wager of battle, she had no choice but to
undergo the chance of the most dreadful of deaths.[549]
It was not customary to order the combat to take place immediately,
but to allow a certain interval for the parties to put their affairs
in order and to undergo the necessary training. In Southern Germany
this delay was for nobles from four to six weeks, and for others a
fortnight, and during this period any assault by one on the other
was a capital offence.[550] They were required to give security
for their due appearance at the appointed time, various fines and
punishments being inflicted on defaulters. By the law of both Northern
and Southern Germany, when default was made by the defendant he was
held guilty of the crime charged upon him: and if he was allowed the
privilege of redeeming hand or life either as defendant or appellant,
he was declared infamous, and deprived of the protection of the law.
According to some MSS., indeed, all the possessions of a defaulter
were forfeited, either to his heirs or to his feudal superior.[551]
In a case occurring in the twelfth century in Hainault, between a
seigneur and a man whom he claimed as a serf, the latter demanded the
duel, which was allowed, but on the appointed day he failed to appear
by nine o’clock. His adversary had waited for him since daybreak, and
claimed the verdict which was awarded him by the council of Hainault.
At this moment the missing man presented himself, but was adjudged to
be too late, and was delivered to his claimant as a serf. According
to the custom of Flanders, indeed, the combatant who failed to appear
suffered banishment, with confiscation of all his possessions.[552]
This extreme rigor, however, did not obtain universally. Among the
Béarnese, for instance, the forfeiture for a default was only sixteen
sous Morlaas.[553] By the English law, the defaulter was declared
infamous, and was also liable to a fine to the king, for which there
was apparently no fixed amount.[554] The Scandinavians punished him
popularly by erecting a “nithstong”—_pertica execrationis_—a post
inscribed with defamatory runes, and so flagrant was this insult
considered, that finally it was prohibited by law under pain of
exile.[555] Perhaps the most emphatic assertion, however, of the
obligation to appear is the rule in the law of the Scottish Marches
in 1249, that if the accused should die before the appointed day his
body must be brought to the lists, “for no man can essoin himself by
death.”[556]
The bail, of course, was liable for all legal penalties incurred by
a defaulter, and occasionally, indeed, was made to share the fate
of his principal, when the latter appeared and was defeated. In the
law of Southern Germany, according to one text, the bail under these
circumstances was liable to the loss of a hand, which, however, he
could redeem, while another version makes him suffer the penalty
incurred by his principal.[557] This latter rule is announced in a
miracle play of the fourteenth century, where a stranger knight at the
court of Paris, compelled to fight in defence of the honor of the
king’s daughter, is unable to find security. The queen and princess
offer themselves as hostages and are accepted, but the king warns them—
Dame, par Dieu le roy celestre!
Bien vous recevray pour hostage;
Mais de tant vous fas-je bien sage,
Se le dessus en peut avoir
Ardré, je vous feray ardoir.
Et mettre en cendre.[558]
Poverty on the part of one of the combatants, rendering him unable to
equip himself properly for the combat, was not allowed to interfere
with the course of justice. In such cases, under the law of Northern
Germany, the judge was required to provide him with the requisite
weapons.[559] In England, where the royal jurisdiction embraced all
criminal cases, the king furnished the weapons and paid all expenses,
and when the combatant was an “approver,” or criminal who had turned
state’s evidence, he was supported until his duty was accomplished
of fighting all whom he accused as accomplices. Thus in the accounts
of the sheriff of Lincolnshire for 1190, there is an entry of 15_s._
10_d._ for the approver Adam Godechap from Pask until Michaelmas at one
penny per diem; also 6_s._ for his armor in three duels, and 38_s._
6_d._ for carts to convey prisoners, sureties, and probators from
Lincoln to London and elsewhere.[560] The crown likewise paid the
expenses of administering the other ordeals: in 1166 a single entry in
the Exchequer accounts shows payment for thirty-four ordeals and five
battles.[561]
As regards the choice of weapons, much curious anecdote could be
gathered from the pages of Brantôme and others learned in punctilio,
without throwing additional light upon mediæval customs. It may be
briefly observed, however, that when champions were employed on both
sides, the law appears generally to have restricted them to the
club and buckler, and to have prescribed perfect equality between
the combatants.[562] An ordonnance of Philip Augustus, in 1215,
directs that the club shall not exceed three feet in length.[563]
In England the club or battoon was rendered more efficient with a
“crook,” usually of horn, but sometimes of iron, giving to the weapon
the truly formidable aspect of a pickaxe or tomahawk.[564] When the
principals appeared personally, it would seem that in early times
the appellant had the choice of weapons, which not only gave him an
enormous advantage, but enabled him to indulge any whims which his
taste or fancy might suggest, as in the case of a Gascon knight in
the thirteenth century, who stipulated that each combatant should be
crowned with a wreath of roses. As every detail of equipment was thus
subject to the caprice of the challenger, those who were wealthy
sometimes forced their poorer adversaries to lavish immense sums on
horses and armor.[565] When, however, the spirit of legislation became
hostile to the wager of battle, this advantage was taken from the
appellant. Frederic II. appears to have been the first to promulgate
this rational idea, and, in decreeing that in future the choice of
arms shall rest with the defendant, he stigmatizes the previous custom
as utterly iniquitous and unreasonable.[566] In this, as in so many
other matters, he was in advance of his age, and the general rule was
that neither antagonist should have any advantage over the other,
except the fearful inequality, to which allusion has already been
made, when a roturier dared to challenge a gentleman.[567] In the law
of Northern Germany care was taken that the advantage of the sun was
equally divided between the combatants; they fought on foot, with bare
heads and feet, clad in tunics with sleeves reaching only to the elbow,
simple gloves, and no defensive armor except a wooden target covered
with hide, and bearing only an iron boss; each carried a drawn sword,
but either might have as many more as he pleased in his belt.[568]
Even when nobles were concerned, who fought on horseback, it was the
rule that they should have no defensive armor save a leather-covered
wooden shield and a glove to cover the thumb; the weapons allowed
were lance, sword, and dagger, and they fought bare-headed and clad
in linen tunics.[569] According to Upton, in the fifteenth century,
the judges were bound to see that the arms were equal, but he admits
that on many points there were no settled or definite rules.[570] In
Wales, an extraordinary custom violated all the principles of equality.
Under the Welsh law, twins were considered as one person, and as they
were entitled to but one share in the patrimony of the family, so
they were allowed to come into the field of combat as one man.[571]
In Russia, each combatant followed his own pleasure; and a traveller
in the sixteenth century relates that the Muscovites were in the
habit of embarrassing themselves with defensive armor to an extent
which rendered them almost helpless, so that in combats with Poles,
Lithuanians, and Germans they were habitually worsted, until judicial
duels between natives and foreigners were at length prohibited on this
account.[572]
As a general rule the combat ended at sunset or when the stars became
visible, and in such case if it was a drawn battle the case was decided
in favor of the defendant, because the prosecutor had not proved his
charge. Yet a charter of 961 recites that two gentlemen, Bernard and
Gerbert, appeared before Count Raymond, each claiming the church of
St. Médard and its appurtenances, which had been bequeathed by the
late owner Ricaud, for the repose of his soul, to the Abbey of St.
Peter of Beaulieu. The count granted them the trial by battle. At two
o’clock their champions entered the lists and fought without result
until sunset. Then the count declared the battle ended and adjudged the
church to the abbey; the contestants acquiesced and signed the charter
confirming its rights.[573] In Italy, however, the duel was fought
to an end; if stopped by darkness the judge was instructed to note
carefully the respective positions of the combatants and replace them
exactly the next morning, so that neither might derive advantage from
the adjournment.[574]
The issue at stake being death or dishonor, with severe penalties
hanging over the vanquished, whether principal or champion, no
chivalric courtesy was to be expected in these combats. They were
fought to the bitter end with persistent and brutal ferocity,
resembling the desperate encounters of wild beasts. A fairly
illustrative example is furnished in an incident which followed the
assassination of Charles the Good of Flanders in 1127. One of the
accomplices, a knight named Guy, was challenged for complicity by
another named Herman. Both were renowned warriors, but Herman was
speedily unhorsed by his adversary, who with his lance frustrated all
his attempts to remount. Then Herman disabled the horse of his opponent
and the combat was renewed on foot with swords. Equally skilful in
fence they continued the struggle till fatigue compelled them to drop
sword and shield and they wrestled for the mastery. Guy threw his
antagonist, fell on him and beat him in the face with his gauntlets
till he seemed to be motionless, but Herman quietly slipped his hand
below the other’s coat of mail, grasped his testicles and with a mighty
effort wrenched them away. Guy fell over and expired; he we adjudged
guilty and his body, after exposure in the pillory, was hung on the
top of a mast along with that of the leader of the conspiracy who had
been executed the same day, the two corpses being made to embrace each
other, as though conferring about the plot.[575] Ghastly details such
as these serve to emphasize the difference between the judicial combat
and the modern duel.
CHAPTER VII.
CHAMPIONS.
Allusions have occurred above to the employment of champions, a
peculiarity of these combats which received an application sufficiently
extended to deserve some special notice.[576] It has been seen that
those unable to wield the sword or club were not therefore exempted
from the duel, and even the scantiest measure of justice would require
that they should have the right to delegate their vindication to
some more competent vehicle of the Divine decision. This would seem
originally to have been the office of some member of the family,
as in the cognate procedure of sacramental purgation. Among the
Alamanni, for instance, a woman when accused could be defended by a
kinsman _cum tracta spata_;[577] the same rule is prescribed by the
Lombard law,[578] and by that of the Angli and Werini;[579] while
the universal principle of family unity renders the presumption fair
that it prevailed throughout the other races in whose codes it is
not specifically indicated. Restricted to cases of disability, the
use of champions was a necessity to the battle ordeal; but at a very
early period the practice received a remarkable extension, which was
directly in conflict with the original principles of the judicial duel,
in permitting able-bodied antagonists to put forward substitutes,
whether connected with them or not by ties of blood, who fought
the battle for their principals. With regard to this there appears
to have been a considerable diversity of practice among the races
of primitive barbarians. The earliest Frisian laws not only grant
unlimited permission for their employment, but even allow them to be
hired for money.[580] The laws of the Franks, of the Alamanni, and of
the Saxons make no allusion to such a privilege, and apparently expect
the principal to defend his rights himself, and yet an instance occurs
in 590, where, in a duel fought by order of Gontran, the defendant was
allowed to intrust his cause to his nephew, though, as he was accused
of killing a stag in the king’s forest, physical infirmity could
hardly have been pleaded.[581] From some expressions made use of by
St. Agobard, in his onslaught on the ordeal of battle, we may fairly
presume that, under Louis le Débonnaire, the employment of champions,
in the Burgundian law, was, if not forbidden, at least unusual as
respects the defendant, even in cases where age or debility unfitted
him for the combat, while it was allowed as a matter of course to the
appellant.[582] On the other hand, the Baioarian law, which favored
the duel more than any of the other cognate codes, alludes to the
employment of champions in every reference to it, and with the Lombards
the judicial combat and the champion seem to have been likewise
convertible terms even with regard to defendants.[583] In a charter of
the latter half of the tenth century in France, recording a judicial
duel to decide a contest concerning property, the judge, in ordering
the combat, calls upon the antagonists to produce skilled champions to
defend their claims at the time and place indicated, which would show
that the principals were not expected to appear personally.[584] Under
the North German law it rested with the appellant to demand the duel
either with or without champions. If the defendant were crippled, and
was on that account obliged to appear by a hired champion, then the
appellant could put forward another to meet him. A defendant, moreover,
who had suffered a previous conviction for theft or rapine was always
obliged to appear personally. When the duel was decreed by the court,
and not demanded by the appellant, then the accused could decline it
if he could prove that the prosecutor had hired a champion.[585] The
practical spirit of the Italians led to the universal substitution of
champions for the principals; they were selected by the magistrates
and were paid by the state when the parties were too poor to bear the
expense.[586]
In all these provisions for the putting forward of substitutes in the
duel there is something so repugnant to the fierce and self-relying
spirit in which the wager of battle found its origin, and the use of a
professional gladiator is so inconsistent with the pious reference to
the judgment of God, which was the ostensible excuse for the duel, that
some external reason is required to account for its introduction. This
reason is doubtless to be found in the liberty allowed of challenging
witnesses, to which allusion has already been made (p. 121). The
prevalence of this throughout Western Europe readily enabled parties,
unwilling themselves to encounter the risks of a mortal struggle, to
put forward some truculent bravo who swore unscrupulously, and whose
evidence would require him to be forced out of court at the sword’s
point.
This becomes very evident as early as we have detailed regulations of
procedure in the books of the twelfth and thirteenth centuries. In
England, for instance, until the first statute of Westminster, issued
by Edward I., in 1275, the hired champion of the defendant, in a
suit concerning real estate, was obliged to assume the position of a
witness, by swearing that he had been personally present and had seen
seizin given of the land, or that his father when dying had enjoined
him by his filial duty to maintain the defendant’s title as though he
had been present.[587] This legal fiction was common also to the Norman
jurisprudence of the period, where in such cases the champion of the
plaintiff was obliged to swear that he had heard and seen the matters
alleged in support of the claim, while the opposing champion swore that
they were false.[588] In a similar spirit, an earlier code of Normandy
prescribes that champions shall be taken to see the lands and buildings
in dispute, before receiving the oath of battle, in the same manner as
a jury of view.[589] We have seen that in the Assises d’Antioche it was
requisite for a prosecutor or a plaintiff to have a witness who was
ready to offer battle, in default of which the unsupported oath of the
other party was sufficient to secure a verdict.[590] It necessarily
follows that this witness must in most cases have been a hired
champion, and this connection between the two functions is further
shown in the regulation of the Assises de Jerusalem and of the Sicilian
constitutions, which directed that the champion should swear on the
field of battle as to his belief in the justice of the quarrel which
he was about to defend,[591] a practice which is also found in the
Scottish law of the thirteenth century.[592] An English legal treatise
of the period, indeed, assumes that the principals can put forward
only witnesses as substitutes, and gives as a reason why combats in
civil suits were always conducted by champions, that in such cases the
principals could not act as witnesses for themselves.[593] In a similar
spirit, if on the field of battle one of the parties presented a
champion who was not receivable as a witness and had not been accepted
by the court, the case could be decided against him by default.[594]
Looking on the profession of a champion in this light, as that of a
witness swearing for hire, we can find a justification for the heavy
penalties to which he was subjected in case of defeat—penalties of
which the real purport presumably was to insure his fidelity to his
principal. Thus, in the Norman coutumier above referred to, in civil
suits as to disputed landed possessions, the champion swearing to
the truth of his principal’s claim was, if defeated, visited with a
heavy fine and was declared infamous, being thenceforth incapable of
appearing in court either as plaintiff or as witness, while the penalty
of the principal was merely the loss of the property in dispute;[595]
and a similar principle was recognized in the English law of the
period.[596] In criminal cases, from a very early period, while the
principal perhaps escaped with fine or imprisonment, the hired ruffian
was hanged, or at best lost a hand or foot, the immemorial punishment
for perjury;[597] while the laws of the Kingdom of Jerusalem prescribe
that in combats between champions, the defeated one shall be promptly
hanged, whether dead or alive.[598] The Assises d’Antioche are somewhat
more reasonable, for they provide merely that the vanquished champion
and his principal shall suffer the same penalty, whether simply a
forfeiture of civil rights in civil cases, or hanging as in accusations
of homicide or other serious crime.[599] That, in the later periods,
at least, the object of this severity was to prevent the champion from
betraying his employer’s cause was freely admitted. Beaumanoir thus
defends it on the ground of the liability of champions to be bought
over by the adverse party, which rendered the gentle stimulus of
prospective mutilation necessary to prevent them from being purchased
by the adversary;[600] and it is probably owing to this that the full
severity of the punishment is shown to be still in existence by a
charter of so late a date as 1372, when the use of the judicial duel
had fully entered on its decline.[601] In the same spirit, the Emperor
Frederic II. prohibited champions from bargaining with each other not
to use teeth and hands. He commanded them to inflict all the injury
possible on their adversaries, and decreed that they should, in case of
defeat, share the punishment incurred by the principal, if the judge of
the combat should consider that through cowardice or treachery they had
not conducted the duel with proper energy and perseverance.[602]
With such risks to be encountered, it is no wonder that the trade of
the champion offered few attractions to honest men, who could keep
body and soul together in any other way. In primitive times, the
solidarity of the family no doubt caused the champion in most cases to
be drawn from among the kindred; at a later period he might generally
be procured from among the freedmen or clients of the principal,
and an expression in the Lombard law justifies the assumption that
this was habitual, among that race at least.[603] In the palmy days
of chivalry, it was perhaps not uncommon for the generous knight to
throw himself bodily into the lists in defence of persecuted and
friendless innocence, as he was bound to do by the tenor of his oath of
knighthood.[604] Even as late as the fifteenth century, indeed, in a
collection of Welsh laws, among the modes by which a stranger acquired
the rights of kindred is enumerated the act of voluntarily undergoing
the duel in the place of a principal unable or unwilling to appear for
himself.[605] A vast proportion of pleaders, however, would necessarily
be destitute of these chances to avoid the personal appearance in
the arena for which they might be unfitted or disinclined, and thus
there arose the regular profession of the paid gladiator. Reckless
desperadoes, skilled at quarter-staff, or those whose familiarity with
sword and dagger, gained by a life spent in ceaseless brawls, gave them
confidence in their own ability, might undertake it as an occupation
which exposed them to little risk beyond what they habitually incurred,
and of such was the profession generally composed. This evil must
have made itself apparent early, for we find Charlemagne endeavoring
to oppose it by decreeing that no robber should be allowed to appear
in the lists as a champion, and the order needed to be frequently
repeated.[606]
When the Roman law commenced to exercise its powerful influence
in moulding the feudal customs into a regular body of procedure,
and admiring jurists lost no opportunity of making use of the
newly-discovered treasures of legal lore, whether applicable or not,
it is easy to understand that the contempt and the civil disabilities
lavished by the Imperial jurisprudence on the gladiator of antiquity
came to be transferred to the mediæval champion; although the latter,
by the theory of the law, stood forth to defend the innocent, while
the former ignobly exposed his life for the gratification of an
imbruted populace. This legacy of shame is clearly traceable in Pierre
de Fontaines. To be a gladiator or an actor was, by the Roman law, a
competent cause for disinheritance.[607] One of the texts prescribing
it is translated bodily by de Fontaines, the _arenarius_ of the
Roman becoming the _champions_ of the Frenchman;[608] and in another
similar transcription from the Digest, the _athleta_ of the original
is transformed into a “champion.”[609] By the thirteenth century,
the occupation of champion had thus become infamous. Its professors
were classed with the vilest criminals, and with the unhappy females
who exposed their charms for sale, as the champion did his skill and
courage.[610] They were held incapable of appearing as witnesses, and
the extraordinary anomaly was exhibited of seeking to learn the truth
in affairs of the highest moment by a solemn appeal to God, through the
instrumentality of those who were already considered as convicts of
the worst kind, or who, by the very act, were branded with infamy if
successful in justifying innocence, and if defeated were mutilated or
hanged.[611] By the codes in force throughout Germany in the thirteenth
and fourteenth centuries, they were not only, in common with bastards,
actors, and jugglers, deprived of all legal privileges, such as
succeeding to property, bearing witness, etc., but even their children
were visited with the same disabilities.[612] The utter contempt in
which they were held was moreover quaintly symbolized in the same codes
by the provisions of a tariff of damages to be assessed for blows and
other personal injuries. A graduated list of fines is given for such
insults offered to nobles, merchants, peasants, etc., in compensation
of their wounded honor; below the serf come the mountebank and juggler,
who could only cuff the assailant’s shadow projected on the wall;
and last of all are rated the champion and his children, whose only
redress was a glance of sunshine cast upon them by the offender from a
duelling shield. Deemed by law incapable of receiving an insult, the
satisfaction awarded was as illusory as the honor to be repaired.[613]
That this poetical justice was long in vogue is proved by the
commentary upon it in the Richstich Landrecht, of which the date is
shown to be not earlier than the close of the fourteenth century, by an
allusion in the same chapter to accidental deaths arising from the use
of firearms.[614]
The Italians, however, took a more sensible and practical view of the
matter. Accepting as a necessity the existence of champions as a class,
they were disposed rather to elevate than to degrade the profession.
The law required that they should not be criminals or infamous, and
the fact that they fought for hire did not render them so.[615] In
the Veronese code of 1228, they appear as an established institution,
consisting of individuals selected and appointed by the magistrates,
who did not allow them to receive more than one hundred sous for the
performance of their office.[616]
It is evident that the evils attendant upon the employment of champions
were generally recognized, and it is not singular that efforts were
occasionally made to abrogate or limit the practice. Otho II., whose
laws did so much to give respectability to the duel, decreed that
champions should be permitted only to counts, ecclesiastics, women,
boys, old men, and cripples.[617] That this rule was strictly enforced
in some places we may infer from the pleadings of a case occurring
in 1010 before the Bishop of Arezzo, concerning a disputed property,
wherein a crippled right hand is alleged as the reason for allowing
a champion to one of the parties.[618] In other parts of Italy,
however, the regulation must have been speedily disregarded, for about
the same period Henry II. found it necessary to promulgate a law
forbidding the employment of substitutes to able-bodied defendants
in cases of parricide or of aggravated murder;[619] and when, two
hundred years later, Frederic II. almost abolished the judicial combat
in his Neapolitan dominions, we may fairly presume from one of his
remarks that champions were universally employed.[620] Indeed, he
made provision for supplying them at the public expense to widows,
orphans, and paupers who might be unable to secure for themselves such
assistance.[621] In Germany, early in the eleventh century, it would
seem that champions were a matter of course, from the expressions made
use of in describing the execution of a number of robbers convicted
in this manner at Merseburg in 1017.[622] At a later period, it
seems probable, from a comparison of two chapters of the Suabian
laws, that efforts were made to prevent the hiring of professional
gladiators,[623] and in the Saxon burgher laws a man could refuse the
duel if he could prove that his antagonist was a champion serving for
pay.[624] That these efforts to restrict the practice, however, were
attended with little success may be inferred from the disabilities
which were so copiously showered on the class by the same laws.
In England, where, as we have seen, the identity of champions and
witnesses was clearly asserted, there were prolonged efforts to
suppress their hiring. In 1150, Henry II. strictly prohibited the
wager of battle with hired champions in his Norman territories;[625]
although the Norman custom not only admitted them but required the
principal to pay the full sum agreed upon to his champion whether
defeated or not.[626] We learn from Glanville that a champion suspected
of serving for money might be objected to by the opposite party,
whence arose a secondary combat to determine his fitness for the
primary one.[627] Bracton, moreover, develops this by asserting as
a rule that a witness suspected of being a hired champion was not
allowed to proceed to the combat, but was tried for the attempt by a
jury, and if convicted suffered the penalty of perjury in the loss of
a hand or a foot,[628] and in another passage he states that hired
champions were not permitted.[629] How far these rules were enforced
it would now be difficult to determine. Records show that a frequent
defence against an adverse witness was an offer to prove that he was
a hired champion.[630] On the other hand, the payment of champions
was frequent and no concealment seems to have been thought necessary
concerning it. Towards the close of the twelfth century, by a charter
Stephen de Nerbana grants two _virgata_ of land to William son of
Ralph “propter duellum quod fecit pro me.”[631] In another charter of
Bracton’s date John “quondam porcarius de Coldingham” grants to the
Priory of Coldingham a tract of land which he had received from Adam
de Riston in payment for victoriously fighting a duel for him.[632]
Even more significant are the formal agreements with champions, such as
that by which in 1276 Bishop Swinefeld declares to all men that he has
appointed Thomas of Brydges his champion, on a salary of 6s. 8d. per
annum, so long as he shall be able to fight, with extra compensation
in case he is called upon to perform his functions.[633] Eventually,
as we have seen (p. 183), in civil cases, both parties were compelled
by law to employ champions, which presupposes, as a matter of course,
that in a great majority of instances the substitutes must have been
hired.[634] In criminal cases there seems to have been a compromise;
in felonies, the defendant was obliged to appear personally, while in
accusations of less moment he was at liberty to put forward a witness
as champion;[635] and when the appellant, from sex or other disability,
or the defendant from age, was unable to undergo the combat personally,
it was forbidden, and the case was decided by a jury.[636] By the
Scottish law of the thirteenth century, it is evident that champions
were not allowed in any case, since those disabled by age or wounds
were forced to undergo the ordeal in order to escape the duel.[637]
This strictness became relaxed in time, though the practice of
employing champions seems never to have received much encouragement. By
a law of Alexander II., about the year 1250, it appears that a noble
had the privilege of putting forward a substitute; but if a peasant
challenged a noble, he was obliged to appear personally, unless his
lord undertook the quarrel for him and presented the champion as from
himself.[638]
The tendency exhibited by the English law in distinguishing between
civil and criminal cases is also manifested elsewhere. Thus, in France
and the Frankish kingdoms of the East, there were limitations placed
by law on the employment of champions in prosecutions for crime,[639]
while in civil actions there appear to have been, at least in France,
no restrictions whatever.[640] This distinction between civil and
criminal practice is very clearly enunciated by Pierre de Fontaines,
who states that in appeal of judgment the appellant in criminal cases
is bound to show satisfactory cause for employing a champion, while
in civil affairs the right to do so requires no argument.[641] In
practice, however, it is doubtful whether there was any effectual bar
to their use in any case, for the Monk of St. Denis, in praising St.
Louis for suppressing the battle-trial, gives as one of the benefits
of its abrogation, the removal of the abuse by which a rich man could
buy all the champions of the vicinity, so that a poorer antagonist
had no resource to avoid the loss of life or heritage.[642] This
hiring of champions, moreover, was legally recognized as a necessity
attendant upon the privilege of employing them.[643] High rank, or a
marked difference between the station of parties to an action, was
also admitted as justifying the superior in putting forward a champion
in his place.[644] Local variations, however, are observable in the
customs regulating these matters. Thus the municipal laws of Reims, in
the fourteenth century, not only restrict the admission of champions
in criminal matters to cases in which age or physical disability
may incapacitate the principals from personally taking part in the
combat, but also require the accused to swear that the impediment has
supervened since the date of the alleged offence; and even this was
of no avail if the prosecutor had included in his appeal of battle an
assertion that such disability had existed at the time specified.[645]
Witnesses obliged to support their testimony by the duel were not only
subject to the same restrictions, but in substituting a hired gladiator
were obliged to swear that they had vainly sought among their friends
for some one to assume the office voluntarily.[646] The whole tenor of
these provisions, indeed, manifests a decided intention to surround the
employment of champions with every practicable impediment. In Béarn,
again, the appellant in cases of treason had a right to decide whether
the defendant should be allowed to put forward a substitute, and from
the expressions in the text it may be inferred that in the selection
of champions there was an endeavor to secure equality of age, size,
and strength.[647] This equalization of chances was thoroughly carried
out in Italy, where the law required them to be selected with that
view.[648] Thus in the Veronese code of 1228, where, as has been seen,
the champions were a recognized body, regulated and controlled by the
state, no one could engage a champion before a duel had been judicially
decreed. Then the magistrate was bound to choose gladiators of equal
prowess, and the choice between them was given to the defendant; an
arrangement which rendered the mutilation inflicted on the vanquished
combatant only justifiable on the score of suspected treachery.[649]
A Bolognese regulation of the thirteenth century was even fairer, and
reduced the combat to an affair of chance in which the judgment of God
had the fullest scope, for when the champions were in the lists a child
placed inside of the garments of each a card bearing the name of his
principal, and until the combat was ended no one knew which of them
represented the plaintiff and which the defendant.[650] In Bigorre, the
only restriction seems to have been that champions should be natives
and not foreigners, and their payment was recognized as a matter
of course.[651] By the Spanish law of the thirteenth century, the
employment of champions was so restricted as to show an evident desire
on the part of the legislator to discourage it as far as possible. The
defendant had the right to send a substitute into the field, but the
appellant could do so only by consent of his adversary. The champion
was required to be of birth equal to his principal, which rendered
the hiring of champions almost impossible, and not superior to him in
force and vigor. Women and minors appeared by their next of kin, and
ecclesiastics by their advocates.[652] In Russia, until the sixteenth
century, champions were never employed, contestants being always
obliged to appear in person. In 1550, the code known as the Sudebtnick
at length permitted the employment of champions in certain cases.[653]
* * * * *
There were two classes of pleaders, however, with whom the hiring
of champions was a necessity, and who could not be bound by the
limitations imposed on ordinary litigants. While the sexagenary, the
infant, and the crippled might possibly find a representative among
their kindred, and while the woman might appear by her husband or next
of kin, the ecclesiastical foundations and chartered towns had no
such resource. Thus, in a suit for taxes, in 1164, before the court
of Verona, Bonuszeno of Soavo proved that the village of Soavo had
exempted his father Petrobatalla from all local imposts for having
served as champion in a duel between it and a neighboring community,
and his claim to the reversion of the exemption was allowed.[654] So
a charter of 1104 relates how the monks of Noailles were harassed by
the seizure of some mills belonging to their abbey, claimed by an
official of William Duke of Aquitaine, until at length the duke agreed
to allow the matter to be decided by the duel, when the champion of
the church was victorious and the disputed property was confirmed to
the abbey.[655] At length the frequent necessity for this species of
service led to the employment of regularly appointed champions, who
fought the battles of their principals for an annual stipend, or for
some other advantages bestowed in payment. Du Cange, for instance,
gives the text of an agreement by which one Geoffry Blondel, in 1256,
bound himself to the town of Beauvais as its champion for a yearly
salary of twenty sous Parisis, with extra gratifications of ten livres
Tournois every time that he appeared in arms to defend its cause, fifty
livres if blows were exchanged, and a hundred livres if the combat
were carried to a triumphant issue. It is a little singular that
Beaumanoir, in digesting the customs of Beauvais but a few years later,
speaks of this practice as an ancient and obsolete one, of which he had
only heard through tradition.[656] That it continued to be in vogue
until long after, is shown by Monteil, who alludes to several documents
of the kind, bearing date as late as the fifteenth century.[657]
As a rule, ecclesiastical communities were likewise under the necessity
of employing champions to defend their rights. Sometimes, as we have
seen, these were hired, and were of no better character than those
of common pleaders. They seem to have been well paid if we may judge
from an agreement of 1258 between the Abbey of Glastonbury and Henry
de Fernbureg, by which the latter bound himself to defend by battle
the rights of the abbey to certain manors against the Bishop of Bath
and Wells, for which he is to receive thirty sterling marks, of which
ten are to be paid when battle is gaged, five when he is shaved for
the combat, and on the day of the duel fifteen are to be placed in
the hands of a third party to be paid over to him if he strikes a
single blow.[658] Sometimes, however, gentlemen did not disdain to
serve God by fighting for the Church in special cases, as when, so
late as the middle of the fourteenth century, the priory of Tynemouth
had a suit with a troublesome neighbor, Gerard de Widdrington, over
the manor of Hawkshaw, and Sir Thomas Colville, who had won great
renown in the French wars, appeared in court as its champion and
offered the combat. No one could be found hardy enough to accept his
challenge and the manor was adjudged to the priory.[659] There was,
moreover, another class of champions of the Church who occupied a
distinguished position, and were bound to defend the interests of
their clients in the field as well as in the court and in the lists;
they also led the armed retainers of the church when summoned by the
suzerain to national war. The office was honorable and lucrative, and
was eagerly sought by gentlemen of station, who turned to account the
opportunities of aggrandizement which it afforded; and many a noble
family traced its prosperity to the increase of ancestral property
thus obtained, directly or indirectly, by espousing the cause of fat
abbeys and wealthy bishoprics, as when, in the ninth century, the Abbot
of Figeac, near Cahors, bestowed on a neighboring lord sixty churches
and five hundred mansi on condition of his fighting the battles of the
abbey.[660] The influence of feudalism early made itself felt, and the
office of _Vidame_ or _Avoué_ became generally hereditary, after which
its possessors, for the most part, rendered themselves independent of
their benefactors, their exactions and spoliations becoming a favorite
theme of objurgation among churchmen, who regarded them as the worst
enemies of the foundations which they had sworn to protect.[661] In
many instances the position was a consideration obtained for donations
bestowed upon churches, so that in some countries, and particularly
in England, the title of _advocatus_ became gradually recognized as
synonymous with patron. Thus, one of the worst abuses of the Anglican
Church is derived from this source, and the forgotten wrongs of the
Middle Ages are perpetuated, etymologically at least, in the advowson
which renders the cure of souls too often a matter of bargain and sale.
CHAPTER VIII.
DECLINE OF THE JUDICIAL COMBAT.
So many influences were at work in favor of the judicial duel, and
it was so thoroughly engrafted in the convictions and prejudices of
Europe, that centuries were requisite for its extirpation. Curiously
enough, the earliest decisive action against it took place in
Iceland, where it was formally interdicted as a judicial proceeding
in 1011;[662] and though the assumption that this was owing to the
introduction of Christianity has been disproved, still, the fact that
both events were contemporaneous allows us to conclude that some
influence may have been exercised by even so imperfect a religion as
that taught to the new converts, though the immediate cause was a
_holm-gang_ between two skalds of distinction, Gunnlaug Ormstunga and
Skald-Rafn.[663] Norway was not long in following the example, for
about the same period the Jarls Erik and Sven Hakonsen abolished the
_holm-gang_, while paganism was as yet widely prevalent.[664] Denmark
was almost equally prompt: indeed Saxo Grammaticus in one passage
attributes to it the priority, asserting that when Poppo, in 965,
converted Harold Blaatand by the ordeal of red-hot iron, it produced so
powerful an effect as to induce the substitution of that mode of trial
for the previously existing wager of battle.[665] Yet it evidently was
not abolished for a century later, for when Harold the Simple, son of
Sven Estrith, ascended the throne in 1074, among the legal innovations
which he introduced was the substitution of the purgatorial oath for
all other forms of defence, which, as Saxo specifically states, put an
end to the wager of battle, and opened the door to great abuses.[666]
Fiercer tribes than these in Europe there were none, and their
abrogation of the battle trial at this early age is an inexplicable
anomaly. It was an exceptional movement, however, without results
beyond their own narrow boundaries. Other causes had to work slowly and
painfully for ages before man could throw off the bonds of ancestral
prejudice. One of the most powerful of these causes was the gradual
rise of the Tiers-État to consideration and importance. The sturdy
bourgeois, though ready enough with morion and pike to defend their
privileges, were usually addicted to a more peaceful mode of settling
private quarrels. Devoted to the arts of peace, seeing their interest
in the pursuits of industry and commerce, enjoying the advantage of
settled and permanent tribunals, and exposed to all the humanizing
and civilizing influences of close association in communities, they
speedily acquired ideas of progress very different from those of the
savage feudal nobles living isolated in their fastnesses, or of the
wretched serfs who crouched for protection around the castles of their
masters. Accordingly, the desire to escape from the necessity of
purgation by battle is almost coeval with the founding of the first
communes. The earliest instance of this tendency that I have met with
is contained in the charter granted to Pisa by the Emperor Henry IV.
in 1081, by which he agrees that any accusations which he may bring
against citizens can be tried without battle by the oaths of twelve
compurgators, except when the penalties of death or mutilation are
involved; and in questions concerning land, the duel is forbidden when
competent testimony can be procured.[667] Limited as these concessions
may seem, they were an immense innovation on the prejudices of the
age, and are important as affording the earliest indication of the
direction which the new civilization was assuming. More comprehensive
was the privilege granted soon afterwards by Henry I. to the citizens
of London, by which he released them wholly from the duel, and this was
followed by similar exemptions during the twelfth century bestowed on
one town after another; but it was not till near the end of the century
that in Scotland William the Lion granted the first charter of this
kind to Inverness.[668] About the year 1105, the citizens of Amiens
received a charter from their bishop, St. Godfrey, in which the duel is
subjected to some restriction—not enough in itself, perhaps, to effect
much reform, yet clearly showing the tendency which existed. According
to the terms of this charter no duel could be decreed concerning any
agreement entered into before two or three magistrates if they could
bear witness to its terms.[669] One of the earliest instances of
absolute freedom from the judicial combat occurs in a charter granted
to the town of Ypres, in 1116 by Baldwin VII. of Flanders, when he
substituted the oath with four conjurators in all cases where the
duel or the ordeal was previously in use.[670] This was followed by a
similar grant to the inhabitants of Bari by Roger, King of Naples,
in 1132.[671] Curiously enough, almost contemporary with this is a
similar exemption bestowed on the rude mountaineers of the Pyrenees.
Centulla I. of Bigorre, who died in 1138, in the Privileges of Lourdes,
authorizes the inhabitants to prosecute their claims without the
duel;[672] and his desire to discourage the custom is further shown by
a clause permitting the pleader who has gaged his battle to withdraw
on payment of a fine of only five sous to the seigneur, in addition to
what the authorities of the town may levy.[673] Still more decided was
a provision of the laws of Soest in Westphalia, somewhat earlier than
this, by which the citizens were absolutely prohibited from appealing
each other in battle;[674] and this is also to be found in a charter
granted to the town of Tournay by Philip Augustus in 1187, though in
the latter the cold water ordeal is prescribed for cases of murder and
of wounding by night.[675] In the laws of Ghent, granted by Philip of
Alsace in 1178, there is no allusion to any species of ordeal, and
all proceedings seem to be based on the ordinary processes of law,
while in the charter of Nieuport, bestowed by the same prince in 1163,
although the ordeal of red-hot iron and compurgatorial oaths are freely
alluded to as means of rebutting accusations, there is no reference
whatever to the battle trial, showing that it must then have been no
longer in use.[676] The charters granted to Medina de Pomar in 1219 by
Fernando III. of Castile, and to Treviño by Alfonso X. in 1254, provide
that there shall be no trial by single combat.[677] Louis VIII. in
the charter of Crespy, granted in 1223, promised that neither himself
nor his officials should in future have the right to demand the wager
of battle from its inhabitants;[678] and shortly after, the laws of
Arques, conceded by the abbey of St. Bertin in 1231, provided that the
duel could only be decreed between two citizens of that commune when
both parties should assent to it.[679] In the same spirit the laws of
Riom, granted by Alphonse de Poitiers, the son of St. Louis, in 1270,
declared that no inhabitant of the town should be forced to submit
to the wager of battle.[680] In the customs of Maubourguet, granted
in 1309, by Bernard VI. of Armagnac, privileges similar to those of
Lourdes, alluded to above, were included, rendering the duel a purely
voluntary matter.[681] Even in Scotland, partial exemptions of the same
kind in favor of towns are found as early as the twelfth century. A
stranger could not force a burgher to fight, except on an accusation of
treachery or theft, while, if a burgher desired to compel a stranger
to the duel, he was obliged to go beyond the confines of the town. A
special privilege was granted to the royal burghs, for their citizens
could not be challenged by the burghers of nobles or prelates, while
they had the right to offer battle to the latter.[682] Much more
efficient was the clause of the third _Keure_ of Bruges, granted in
1304 by Philip son of Count Guy of Flanders, which strictly prohibited
the duel. Any one who gave or received a wager of battle was fined
sixty sols, one-half for the benefit of the town, and the other for the
count.[683]
The special influence exercised by the practical spirit of trade in
rendering the duel obsolete is well illustrated by the privilege
granted, in 1127, by William Clito, to the merchants of St. Omer,
declaring that they should be free from all appeals to single combat in
all the markets of Flanders.[684] In a similar spirit, when Frederic
Barbarossa, in 1173, was desirous of attracting to the markets of
Aix-la-Chapelle and Duisbourg the traders of Flanders, in the code
which he established for the protection of such as might come, he
specially enacted that they should enjoy immunity from the duel.[685]
Even Russia found it advantageous to extend the same exemption to
foreign merchants, and in the treaty which Mstislas Davidovich made in
1228 with the Hanse-town of Riga, he granted to the Germans who might
seek his dominions immunity from liability to the red-hot iron ordeal
and wager of battle.[686]
Germany seems to have been somewhat later than France or Italy in
the movement, yet her burghers evidently regarded it with favor.
Frederic II., who recorded his disapproval of the duel in his Sicilian
Constitutions, was ready to encourage them in this tendency, and in his
charters to Ratisbon and Vienna he authorized their citizens to decline
the duel and clear themselves by compurgation,[687] while as early as
1219 he exempted the Nürnbergers from the appeal of battle throughout
the empire.[688] The burgher law of Northern Germany alludes to the
judicial combat only in criminal charges, such as violence, homicide,
housebreaking, and theft;[689] and this is limited in the statutes of
Eisenach, of 1283, which provide that no duel shall be adjudged in the
town, except in cases of homicide, and then only when the hand of the
murdered man shall be produced in court at the trial.[690] In 1291,
Rodolph of Hapsburg issued a constitution declaring that the burghers
of the free imperial cities should not be liable to the duel outside
of the limits of their individual towns,[691] and in the Kayser-Recht
this privilege is extended by declaring the burghers exempt from all
challenge to combat, except in a suit brought by a fellow-citizen.[692]
Notwithstanding this, special immunities continued to be granted,
showing that these general laws were of little effect unless supported
by the temper of the people. Thus Louis IV. in 1332 gave such a
privilege to Dortmund, and so late as 1355 Charles IV. bestowed it on
the citizens of Worms.[693]
A somewhat noteworthy exception to this tendency on the part of the
municipalities is to be found in Moravia. There, under the laws of
Ottokar Premizlas, in 1229 the duel was forbidden between natives
and only allowed when one of the parties was a foreigner. Yet his
son Wenceslas, some years later, confirmed the customs of the town
of Iglau, in which the duel was a recognized feature enforced by an
ascending scale of fines. If the accused compounded with the prosecutor
before the duel was ordered he paid the judge one mark; after it was
adjudged, two marks; after the lists were entered, three marks; after
weapons were taken, four marks; and if he waited till the weapons were
drawn he had to pay five marks.[694]
* * * * *
All these were local regulations which had no direct bearing on general
legislation, except in so far as they might assist in softening the
manners of their generation and aiding in the general spread of
civilization. A more efficient cause was to be found in the opposition
of the Church. From Liutprand the Lombard to Frederic II., a period
of five centuries, no secular lawgiver, south of Denmark, seems to
have thought of abolishing the judicial combat as a measure of general
policy, and those whose influence was largest were the most conspicuous
in fostering it. During the whole of this period the Church was
consistently engaged in discrediting it, notwithstanding that the local
interests or pride of individual prelates might lead them to defend the
vested privileges connected with it in their jurisdictions.
When King Gundobald gave form and shape to the battle ordeal in
digesting the Burgundian laws, Avitus, Bishop of Vienne, remonstrated
loudly against the practice as unjust and unchristian. A new
controversy arose on the occasion of the duel between the Counts Bera
and Sanila, to which allusion has already been made as one of the
important events in the reign of Louis le Débonnaire. St. Agobard,
Archbishop of Lyons, took advantage of the opportunity to address to
the Emperor a treatise in which he strongly deprecated the settlement
of judicial questions by the sword; and he subsequently wrote another
tract against ordeals in general, consisting principally of scriptural
texts with a running commentary, proving the incompatibility of
Christian doctrines with these unchristian practices.[695] Some
thirty-five years later the Council of Valence, in 855, denounced
the wager of battle in the most decided terms, praying the Emperor
Lothair to abolish it throughout his dominions, and adopting a canon
which not only excommunicated the victor in such contests, but refused
the rights of Christian sepulture to the victim.[696] By this time
the forces of the church were becoming consolidated in the papacy,
and the Vicegerent of God was beginning to make his voice heard
authoritatively throughout Europe. The popes accordingly were not long
in protesting energetically against the custom. Nicholas I. denounced
it vigorously as a tempting of God, unauthorized by divine law,[697]
and his successors consistently endeavored, as we have already seen, to
discredit it. In the latter half of the twelfth century, Peter Cantor
argues that a champion undertaking the combat relies either on his
superior strength and skill, which is manifest injustice; or on the
justice of his cause, which is presumption; or on a special miracle,
which is a devilish tempting of God.[698] Alexander III. decided
that a cleric engaging in a duel, whether willingly or unwillingly,
whether victor or vanquished, was subject to deposition, but that his
bishop could grant him a dispensation provided there had been loss of
neither life nor limb.[699] Towards the close of the century Celestine
III. went further, and in the case of a priest who had put forward a
champion who had slain his antagonist he decided that both principal
and champion were guilty of homicide and the priest could no longer
perform his functions, though he might have a dispensation to hold his
benefice.[700] These cases suggest one of the reasons why the repeated
papal prohibitions were so ineffective. The all-pervading venality of
the Church of the period found in the dispensing power an exhaustless
source of profit, and dispensations for “irregularities” of all kinds
were so habitually issued that the threatened punishments lost their
terrors, and as Rome gradually absorbed the episcopal jurisdiction,
offenders of all kinds knew that relief from the operation of the
canons could always be had there. Some reason for setting them aside
was never hard to find. In 1208 a canon of Bourges was elected prior;
his disappointed competitor claimed that he was ineligible because
he had once served as judge in a duel in which there was effusion of
blood. Innocent III. was appealed to, who decided that the canon was
capable of promotion to any dignity, and the chief reason alleged was
that the evil custom of the duel was so universal in some regions
that ecclesiastics of all classes from the lowest to the highest were
habitually concerned in them.[701]
Innocent III., however, took care that the great council of Lateran in
1215 should confirm all the previous prohibitions of the practice.[702]
It was probably this papal influence that led Simon de Montfort, the
special champion of the church, to limit the use of the duel in the
territories which he won in his crusade against the Count of Toulouse.
In a charter given December 1, 1212, he forbids its use in all the
seignorial courts in his dominions, except in cases of treason, theft,
robbery, and murder.[703] De Montfort’s dependence on Rome, however,
was exceptional, and Christendom at large was not as yet prepared to
appreciate the reformatory efforts of the popes. The most that the
Council of Paris, held in 1212 for the reformation of the church by the
cardinal-legate Robert de Curzon, could do was to order the bishops
not to permit the duel in cemeteries or other sacred places.[704]
The opposition of the church as represented by its worthiest and most
authoritative spokesmen continued. St. Ramon de Peñafort, the leading
canonist of his time, about 1240, asserts uncompromisingly that all
concerned in judicial combats are guilty of mortal sin; the sin is
somewhat lightened indeed when the pleader is obliged to accept the
combat by order of the judge, but the judge himself, the assessors
who counsel it, and the priest who gives the benediction all sin most
gravely; if death occurs they are all homicides and are rendered
“irregular.”[705] About the same time Alexander Hales ingeniously
argued away the precedent of David and Goliath by showing that it
was simply a prefiguration of the Passion, in which Christ triumphed
over Satan as in a duel.[706] With the development, moreover, of the
subtilties of scholastic theology the doctors found that the duel was
less objectionable than the other forms of ordeal, because, as Thomas
Aquinas remarks, the hot iron or boiling water is a direct tempting
of God, while the duel is only a matter of chance, for no one expects
miraculous interposition unless the champions are very unequal in age
or strength.[707] This struck at the very root of the faith on which
confidence in the battle ordeal was based, yet in spite of it the
persistence of ecclesiastical belief in the divine interposition is
fairly illustrated by a case, related with great triumph by monkish
chroniclers, as late as the fourteenth century, when a duel was
undertaken by direction of the Virgin Mary herself. In 1325, according
to the story, a French Jew feigned conversion to Christianity in
order to gratify his spleen by mutilating the images in the churches,
and at length he committed the sacrilege of carrying off the holy
wafer to aid in the hideous rites of his fellows. The patience of
the Virgin being at last exhausted, she appeared in a vision to a
certain smith, commanding him to summon the impious Israelite to the
field. A second and a third time was the vision repeated without
effect, till at last the smith, on entering a church, was confronted
by the Virgin in person, scolded for his remissness, promised an
easy victory, and forbidden to pass the church door until his duty
should be accomplished. He obeyed and sought the authorities. The
duel was decreed, and the unhappy Hebrew, on being brought into the
lists, yielded without a blow, falling on his knees, confessing his
unpardonable sins, and crying that he could not resist the thousands of
armed men who appeared around his adversary with threatening weapons.
He was accordingly promptly burned, to the great satisfaction of all
believers.[708]
Evidently the clergy at large did not second the reformatory efforts of
their pontiffs. There was not only the ancestral belief implanted in
the minds of those from among whom they were drawn, but the seignorial
rights enjoyed by prelates and abbeys were not to be willingly
abandoned. The progress of enlightenment was slow and the teachings
of the papacy can only be enumerated as one of the factors at work to
discredit the judicial duel.[709] We can estimate how deeply rooted
were the prejudices to be overcome when we find Dante seriously
arguing that property acquired by the duel is justly acquired; that
God may be relied upon to render the just cause triumphant; that it is
wicked to doubt it, while it is folly to believe that a champion can be
the weaker when God strengthens him.[710]
In its endeavors to suppress the judicial duel the Church had to weigh
opposing difficulties. It could, as we have seen (p. 156), enjoin its
members from taking part in such combats and from adjudging them in
their jurisdictions; it could decree that priests became “irregular” if
death ensued in duels where they gave the benediction, or perhaps even
where they had only brought relics on which the combatants took the
oaths. But over the secular courts it had only the power of persuasion,
or at most of moral coercion, and among the canon doctors there was
considerable discussion as to the extent to which it could pronounce
participation in the duel a mortal sin, entailing excommunication and
denial of the rites of sepulture. When a man sought the duel, when he
demanded it of the judge and provoked his adversary to it, he could be
pronounced guilty of homicide if death ensued. It was otherwise where
an innocent man was accused of a mortal crime and would be hanged if
he refused the duel adjudged to him by court. It was argued that the
Church was a harsh mother if she forced her children thus to submit
to death and infamy for a scruple of recent origin, raised merely by
papal command, though the more rigid casuists insisted even on this.
All agreed, however, that in civil cases a man ought rather to undergo
the loss of his property than to imperil his soul and disobey the
Church.[711]
* * * * *
Perhaps the most powerful cause at work was the revival of the Roman
jurisprudence, which in the thirteenth century commenced to undermine
all the institutions of feudalism. Its theory of royal supremacy was
most agreeable to sovereigns whose authority over powerful vassals
was scarcely more than nominal; its perfection of equity between
man and man could not fail to render it enticing to clear-minded
jurists, wearied with the complicated and fantastic privileges of
ecclesiastical, feudal, and customary law. Thus recommended, its
progress was rapid. Monarchs lost no opportunity of inculcating respect
for that which served their purpose so well, and the civil lawyers,
who were their most useful instruments, speedily rose to be a power in
the state. Of course the struggle was long, for feudalism had arisen
from the necessities of the age, and a system on which were based all
the existing institutions of Europe could only be attacked in detail,
and could only be destroyed when the advance of civilization and the
general diffusion of enlightenment had finally rendered it obsolete.
The French Revolution was the final battle-field, and that terrible
upheaval was requisite to obliterate a form of society whose existence
had numbered nine hundred years.
The wager of battle was not long in experiencing the first assaults
of the new power. The earliest efficient steps towards its abolition
were taken in 1231 by the Emperor Frederic II. in his Neapolitan code.
He pronounces it to be in no sense a legal proof, but only a species
of divination, incompatible with every notion of equity and justice;
and he prohibits it for the future, except in cases of poisoning or
secret murder and treason where other proof is unattainable; and even
in these it is placed at the option of the accuser alone; moreover,
if the accuser commences by offering proof and fails he cannot then
have recourse to combat; the accused must be acquitted.[712] The
German Imperial code, known as the Kayser-Recht, which was probably
compiled about the same time, contains a similar denunciation of the
uncertainty of the duel, but does not venture on a prohibition,
merely renouncing all responsibility for it, while recognizing it as a
settled custom.[713] In the portion, however, devoted to municipal law,
which is probably somewhat later in date, the prohibition is much more
stringently expressed, manifesting the influences at work;[714] but
even this is contradicted by a passage almost immediately preceding it.
How little influence these wise counsels had, in a state so intensely
feudal and aristocratic, is exemplified in the Suabian and Saxon codes,
where the duel plays so important a part. Yet the desire to escape it
was not altogether confined to the honest burghers of the cities, for
in 1277 Rodolph of Hapsburg, even before he granted immunity to the
imperial towns, gave a charter to the duchy of Styria, securing to the
Styrians their privileges and rights, and in this he forbade the duel
in all cases where sufficient testimony could be otherwise obtained;
while the general tenor of the document shows that this was regarded as
a favor.[715] The Emperor Albert I. was no less desirous of restricting
the duel, and in ordinary criminal cases endeavored to substitute
compurgation.[716]
Still, as late as 1487, the Inquisitor Sprenger, in discountenancing
the red-hot iron ordeal in witch-trials, feels himself obliged to
meet the arguments of those who urged the lawfulness of the duel as
a reason for permitting the cognate appeal to the ordeal. To this he
naïvely replies, as Thomas Aquinas had done, that they are essentially
different, as the champions in a duel are about equally matched, and
the killing of one of them is a simple affair, while the iron ordeal,
or that of drinking boiling water, is a tempting of God by requiring a
miracle.[717] This shows at the same time how thoroughly the judicial
combat had degenerated from its original theory, and that the appeal
to the God of battles had become a mere question of chance, or of the
comparative strength and skill of a couple of professional bravos.
In Spain the influence of Roman institutions, transmitted through
the Wisigothic laws, had allowed to the judicial duel less foothold
than in other mediæval lands, and the process of suppressing it began
early. In Aragon the chivalrous Jayme I., _el Conquistador_, in the
franchises granted to Majorca, on its conquest in 1230, prohibited
the judicial combat in both civil and criminal cases.[718] Within
forty years from this, Alfonso the Wise of Castile issued the code
generally known as Las Siete Partidas. In this he evidently desired
to curb the practice as far as possible, stigmatizing it as a custom
peculiar to the military class (_por lid de caballeros ò de peones_),
and as reprehensible both as a tempting of God and as a source of
perpetual injustice.[719] Accordingly, he subjected it to very
important limitations. The wager of battle could only be granted by
the king himself; it could only take place between gentlemen, and in
personal actions alone which savored of treachery, such as murder,
blows, or other dishonor, inflicted without warning or by surprise.
Offences committed against property, burning, forcible seizure, and
other wrongs, even without defiance, were specifically declared not
subject to its decision, the body of the plaintiff being its only
recognized justification.[720] Even in this limited sphere, the consent
of both parties was requisite, for the appellant could prosecute in
the ordinary legal manner, and the defendant, if challenged to battle,
could elect to have the case tried by witnesses or inquest, nor could
the king himself refuse him the right to do so.[721] When to this
is added that a preliminary trial was requisite to decide whether
the alleged offence was treacherous in its character or not, it will
be seen that the combat was hedged around with such difficulties
as rendered its presence on the statute book scarcely more than an
unmeaning concession to popular prejudice; and if anything were wanting
to prove the utter contempt of the legislator for the decisions of the
battle-trial, it is to be found in the regulation that if the accused
was killed on the field, without confessing the imputed crime, he was
to be pronounced innocent, as one who had fallen in vindicating the
truth.[722] The same desire to restrict the duel within the narrowest
possible limits is shown in the rules concerning the employment of
champions, which have been already alluded to. Although the Partidas
as a scheme of legislation was not confirmed until the cortes of 1348
these provisions were lasting and produced the effect designed. It is
true that in 1342 we hear of a combat ordered by Alfonso XI. between
Pay Rodriguez de Ambia and Ruy Paez de Biedma, who mutually accused
each other of treason. It was fought before the king and lasted for
three days without either party obtaining the victory, till, on the
evening of the third day, the king entered the lists and pacified
the quarrel, saying that both antagonists could serve him better by
fighting the Moors, with whom he was at war, than by killing each
other.[723] Not long afterwards Alfonso in the Ordenamiento de Alcalá,
issued in 1348, repeated the restrictions of the Partidas, but in a
very cursory manner, and rather incidently than directly, showing
that the judicial combat was then a matter of little importance.[724]
In fact, the jurisprudence of Spain was derived so directly from the
Roman law through the Wisigothic code and its Romance recension, the
Fuero Juzgo, that the wager of battle could never have become so
deeply rooted in the national faith as among the more purely barbarian
races. It was therefore more readily eradicated, and yet, as late as
the sixteenth century, a case occurred in which the judicial duel was
prescribed by Charles V., in whose presence the combat took place.[725]
The varying phases of the struggle between progress and centralization
on the one side, and chivalry and feudalism on the other, were
exceedingly well marked in France, and as the materials for tracing
them are abundant, a more detailed account of the gradual reform may
perhaps have interest, as illustrating the long and painful strife
which has been necessary to evoke order and civilization out of the
incongruous elements from which modern European society has sprung.
The sagacity of St. Louis, so rarely at fault in the details of civil
administration, saw in the duel not only an unchristian and unrighteous
practice, but a symbol of the disorganizing feudalism which he so
energetically labored to suppress. His temper led him rather to adopt
pacific measures, in sapping by the forms of law the foundations
of the feudal power, than to break it down by force of arms as his
predecessors had attempted. The centralization of the Roman polity
might well appear to him and his advisers the ideal of a well-ordered
state, and the royal supremacy had by this time advanced to a point
where the gradual extension of the judicial prerogatives of the
crown might prove the surest mode of humbling eventually the haughty
vassals who had so often bearded the sovereign. No legal procedure
was more closely connected with feudalism, or embodied its spirit
more thoroughly, than the wager of battle, and Louis accordingly did
all that lay in his power to abrogate the custom. The royal authority
was strictly circumscribed, however, and though, in his celebrated
Ordonnance of 1260, he formally prohibited the battle trial in the
territory subject to his jurisdiction,[726] he was obliged to admit
that he had no power to control the courts of his barons beyond the
domains of the crown.[727] Even within this comparatively limited
sphere, we may fairly assume from some passages in the Établissements,
compiled about the year 1270, that he was unable to do away entirely
with the practice. It is to be found permitted in some cases both civil
and criminal, of peculiarly knotty character, admitting of no other
apparent solution.[728] It seems, indeed, remarkable that he should
even have authorized personal combat between brothers, in criminal
accusations, only restricting them in civil suits to fighting by
champions,[729] when the German law of nearly the same period forbids
the duel, like marriage, between relations in the fifth degree, and
states that previously it had been prohibited to those connected in the
seventh degree.[730]
Even this qualified reform provoked determined opposition. Every motive
of pride and interest prompted resistance. The prejudices of birth, the
strength of the feudal principle, the force of chivalric superstition,
the pride of self-reliance gave keener edge to the apprehension of
losing an assured source of revenue. The right of granting the wager of
battle was one of those appertaining to the _hauts-justiciers_, and so
highly was it esteemed that paintings of champions fighting frequently
adorned their halls as emblems of their prerogatives; Loysel, indeed,
deduces from it a maxim, “The pillory, the gibbet, the iron collar, and
paintings of champions engaged, are marks of high jurisdiction.”[731]
This right had a considerable money value, for the seigneur at whose
court an appeal of battle was tried received from the defeated party
a fine of sixty livres if he was a gentleman, and sixty sous if a
roturier, besides a perquisite of the horses and arms employed, and
heavy mulcts for any delays which might be asked,[732] besides fines
from those who withdrew after the combat was decreed.[733] Nor was
this all, for during the centuries of its existence there had grown
and clustered around the custom an immeasurable mass of rights and
privileges which struggled lustily against destruction. Thus, hardly
had the ordonnance of prohibition been issued when, in 1260, a knight
named Mathieu le Voyer actually brought suit against the king for the
loss it inflicted upon him. He dolefully set forth that he enjoyed the
privilege of guarding the lists in all duels adjudged in the royal
court at Corbon, for which he was entitled to receive a fee of five
sous in each case; and, as his occupation thus was gone, he claimed
compensation, modestly suggesting that he be allowed the same tax
on all inquests held under the new law.[734] How closely all such
sources of revenue were watched is illustrated by a case occurring in
1286, when Philippe le Bel remitted the fines accruing to him from a
duel between two squires adjudged in the royal court of Tours. The
seneschal of Anjou and Touraine brought suit before the Parlement
of Paris to recover one-third of the amount, as he was entitled to
that proportion of all dues arising from combats held within his
jurisdiction, and he argued that the liberality of the king was not to
be exercised to his disadvantage. His claim was pronounced just, and a
verdict was rendered in his favor.[735]
But the loss of money was less important than the curtailment of
privilege and the threatened absorption of power of which this reform
was the precursor. Every step in advancing the influence of peaceful
justice, as expounded by the jurists of the royal courts, was a heavy
blow to the independence of the feudatories. They felt their ancestral
rights assailed at the weakest point, and they instinctively recognized
that, as the jurisdiction of the royal bailiffs became extended, and as
appeals to the court of the Parlement of Paris became more frequent,
their importance was diminished, and their means of exercising a petty
tyranny over those around them were abridged. Entangled in the mazes of
a code in which the unwonted maxims of Roman law were daily quoted with
increasing veneration, the impetuous seigneur found himself the prey
of those whom he despised, and he saw that subtle lawyers were busily
undoing the work at which his ancestors had labored for centuries.
These feelings are well portrayed in a song of the period, exhumed
not long since by Le Roux de Lincy. Written apparently by one of the
sufferers, it gives so truthful a view of the conservative ideas of the
thirteenth century that a translation of the first stanza may not be
amiss:—
Gent de France, mult estes esbahis!
Je di à touz ceus qui sont nez des fiez, etc.[736]
Ye men of France, dismayed and sore
Ye well may be. In sooth, I swear,
Gentles, so help me God, no more
Are ye the freemen that ye were!
Where is your freedom? Ye are brought
To trust your rights to inquest law,
Where tricks and quibbles set at naught
The sword your fathers wont to draw.
Land of the Franks!—no more that name
Is thine—a land of slaves art thou,
Of bondsmen, wittols, who to shame
And wrong must bend submissive now!
Even legists—de Fontaines, whose admiration of the Digest led him on
all occasions to seek an incongruous alliance between the customary
and imperial law, and Beaumanoir, who in most things was far in
advance of his age, and who assisted so energetically in the work of
centralization—even these enlightened lawyers hesitate to object to the
principles involved in the battle trial, and while disapproving of the
custom, express their views in language which contrasts strongly with
the vigorous denunciations of Frederic II. half a century earlier.[737]
How powerful were the influences thus brought to bear against the
innovation is shown by the fact that when the mild but firm hand
of St. Louis no longer grasped the sceptre, his son and successor
could not maintain his father’s laws. In 1280 there is a record of
a duel adjudged in the king’s court between Jeanne de la Valete and
the Sire of Montricher on an accusation of arson;[738] and about 1283
Philippe even allowed himself to preside at a judicial duel, scarcely
more than twenty years after the promulgation of the ordonnance of
prohibition.[739] The next monarch, Philippe le Bel, was at first
guilty of the same weakness, for when in 1293 the Count of Armagnac
accused Raymond Bernard of Foix of treason, a duel between them was
decreed, and they were compelled to fight before the king at Gisors;
though Robert d’Artois interfered after the combat had commenced, and
induced Philippe to separate the antagonists.[740] Philippe, however,
was too astute not to see that his interests lay in humbling feudalism
in all its forms; while the rapid extension of the jurisdiction of the
crown, and the limitations on the seignorial courts, so successfully
invented and asserted by the lawyers, acting by means of the Parlement
through the royal bailiffs, gave him power to carry his views into
effect such as had been enjoyed by none of his predecessors. Able and
unscrupulous, he took full advantage of his opportunities in every way,
and the wager of battle was not long in experiencing the effect of his
encroachments. Still, he proceeded step by step, and the vacillation of
his legislation shows how obstinate was the spirit with which he had
to deal. In 1296 he prohibited the judicial duel in time of war, and
in 1303 he was obliged to repeat the prohibition.[741] It was probably
not long after this that he interdicted the duel wholly[742]—possibly
impelled thereto by a case occurring in 1303, in which he is described
as forced to grant the combat between two nobles, on an accusation
of murder, very greatly against his wishes, and in spite of all his
efforts to dissuade the appellant.[743]
In thus abrogating the wager of battle, Philippe le Bel was in advance
of his age. Before three years were over he was forced to abandon
the position he had assumed; and though he gave as a reason for the
restoration of the duel that its absence had proved a fruitful source
of encouragement for crime and villany,[744] yet at the same time he
took care to place on record the assertion of his own conviction that
it was worthless as a means of seeking justice.[745] In thus legalizing
it by the Ordonnance of 1306, however, he by no means replaced it on
its former footing. It was restricted to criminal cases involving the
death penalty, excepting theft, and it was only permitted when the
crime was notorious, the guilt of the accused probable, and no other
evidence attainable.[746] The ceremonies prescribed, moreover, were
fearfully expensive, and put it out of the reach of all except the
wealthiest pleaders. As the ordonnance, which is very carefully drawn,
only refers to appeals made by the prosecutor, it may fairly be assumed
that the defendant could merely accept the challenge and had no right
to offer it.
Even with these limitations, Philippe was not disposed to sanction
the practice within the domains of the crown, for, the next year
(1307), we find him commanding the seneschal of Toulouse to allow
no duel to be adjudged in his court, but to send all cases in which
the combat might arise to the Parlement of Paris for decision.[747]
This was equivalent to a formal prohibition. During the whole of the
period under consideration, numerous causes came before the Parlement
concerning challenges to battle, on appeals from various jurisdictions
throughout the country, and it is interesting to observe how uniformly
some valid reason was found for its refusal. In the public register of
decisions, extending from 1254 to 1318, scarcely a single example of
its permission is to be found.[748] One doubtful instance which I have
observed is a curious case occurring in 1292, wherein a man accused
a woman of homicide in the court of the Chapter of Soissons, and the
royal officers interfered on the ground that the plaintiff was a
bastard. As by the local custom he thus was in some sort a serf of the
crown, they assumed that he could not risk his body without the express
permission of the king. The Chapter contended for the appellant’s
legitimacy, and the case became so much obscured by the loss of the
record of examination made, that the Parlement finally shuffled it out
of court without any definite decision.[749]
Two decisions, in 1309, show that the Ordonnance of 1306 was in force,
for while they admit that the duel was legally possible, the cases
are settled by inquest as capable of proof by investigation. One of
these was an incident in the old quarrel between the Counts of Foix
and Armagnac, and its decision shows how great a stride had been made
since their duel of 1293. Raymond de Cardone, a kinsman of Foix, gaged
his battle in the king’s court against Armagnac; Armagnac did the same
against Foix and claimed that his challenge had priority over that
of Raymond, while Bernard de Comminges also demanded battle of Foix.
All these challenges arose out of predatory border incursions between
these nobles, and in its verdict the Parlement refuses to grant the
combat in any of them, orders all the parties to swear peace and give
bail to keep it, and moreover condemns Foix in heavy damages to his
adversaries and to the king, whose territories he had invaded in one
of his forays. The Count of Foix made some objection to submitting to
the sentence, but a short imprisonment brought him to his senses.[750]
A more thorough vindication of the royal jurisdiction over powerful
feudatories could scarcely be imagined, and the work of the civil
lawyers seemed to be perfectly accomplished. It was the same with all
the variety of cases involving the duel which were brought to the
cognizance of the Parlement. Some ingenious excuse was always found for
refusing it, whether by denying the jurisdiction of the court which had
granted it, or by alleging other reasons more or less frivolous, the
evident intention of all the _arrêts_ being to restrict the custom,
as allowed under the ordonnance, within limits so narrow as to render
it practically a nullity. The astute lawyers who composed the royal
court knew too well the work committed to them to hesitate as to their
conclusions, while Philippe’s distaste for the duel probably received
a stimulus when, at the Council of Vienne in 1312 he endeavored to
obtain the condemnation of the memory of Boniface VIII., and two
Catalan knights offered to prove by the single combat that the late
pope had been legitimately elected and had not been a heretic.[751]
In spite of these efforts, the progress of reform was slow. On the
breaking out afresh of the perennial contest with Flanders, Philippe
found himself, in 1314, obliged to repeat his order of 1296, forbidding
all judicial combats during the war, and holding suspended such as were
in progress.[752] As these duels could have little real importance
in crippling his military resources, it is evident that he seized
such occasions to accomplish under the war power what his peaceful
prerogative was unable to effect, and it is a striking manifestation of
his zeal in the cause, that he could turn aside to give attention to it
amid the preoccupations of the exhausting struggle with the Flemings.
Yet how little impression he made, and how instinctively the popular
mind still turned to the battle ordeal, as the surest resource in all
cases of doubt, is well illustrated by a passage in a rhyming chronicle
of the day. When the close of Philippe’s long and prosperous reign was
darkened by the terrible scandal of his three daughters-in-law, and two
of them were convicted of adultery, Godefroy de Paris makes the third,
Jeanne, wife of Philippe le Long, offer at once to prove her innocence
by the combat:—
Gentil roy, je vous requier, sire,
Que vous m’oiez en defendant.
Se nul ou nule demandant
Me vait chose de mauvestie,
Mon cuer sens si pur, si haitie,
Que bonement me deffendrai,
Ou tel champion baillerai,
Qui bien saura mon droit deffendre,
S’il vous plest à mon gage prendre.[753]
* * * * *
The iron hand of Philippe was no sooner withdrawn than the nobles made
desperate efforts to throw off the yoke which he had so skilfully and
relentlessly imposed on them. His son, Louis Hutin, not yet firmly
seated on the throne, was constrained to yield a portion of the
newly-acquired prerogative. The nobles of Burgundy, for instance, in
their formal list of grievances, demanded the restoration of the wager
of battle as a right of the accused in criminal cases, and Louis was
obliged to promise that they should enjoy it according to ancient
custom.[754] Those of Amiens and Vermandois were equally clamorous, and
for their benefit he re-enacted the Ordonnance of 1306, permitting the
duel in criminal prosecutions where other evidence was deficient, with
an important extension authorizing its application to cases of theft,
in opposition to previous usage.[755] A legal record, compiled about
1325 to illustrate the customs of Picardy, shows by a group of cases
that it was still quite common, and that indeed it was the ordinary
defence in accusations of homicide.[756] The nobles of Champagne
demanded similar privileges, but Louis, by the right of his mother,
Jeanne de Champagne, was Count of Champagne, and his authority was
less open to dispute. He did not venture on a decided refusal, but an
evasive answer, which was tantamount to a denial of the request,[757]
showed that his previous concessions were extorted, and not willingly
granted. Not content with this, the Champenois repeated their demand,
and received the dry response, that the existing edicts on the subject
must be observed.[758]
The threatened disturbances were avoided, and during the succeeding
years the centralization of jurisdiction in the royal courts made rapid
progress. It is a striking evidence of the successful working of the
plans of St. Louis and Philippe le Bel that several ordonnances and
charters granted by Philippe le Long in 1318 and 1319, while promising
reforms in the procedures of the bailiffs and seneschals, and in the
manner of holding inquests, are wholly silent on the subject of the
duel, affording a fair inference that complaints on that score were
no longer made.[759] Philip of Valois was especially energetic in
maintaining the royal jurisdiction, and when in 1330 he was obliged
to restrict the abusive use of appeals from the local courts to
the Parlement,[760] it is evident that the question of granting or
withholding the wager of battle had become practically a prerogative of
the crown. That the challenging of witnesses must ere long have fallen
into desuetude is shown by an edict of Charles VI., issued in 1396,
by which he ordered that the testimony of women should be received in
evidence in all the courts throughout his kingdom.[761]
Though the duel was thus deprived, in France, of its importance as an
ordinary legal procedure, yet it was by no means extinguished, nor had
it lost its hold upon the confidence of the people. An instructive
illustration of this is afforded by the well-known story of the Dog
of Montargis. Though the learned Bullet[762] has demonstrated the
fabulous nature of this legend, and has traced its paternity up to
the Carlovingian romances, still, the fact is indubitable that it was
long believed to have occurred in 1371, under the reign of Charles le
Sage, and that authors nearly contemporary with that period recount the
combat of the dog and the knight as an unquestionable fact, admiring
greatly the sagacity of the animal, and regarding as a matter of course
both the extraordinary judicial proceedings and the righteous judgment
of God which gave the victory to the greyhound.
In 1371 there was battle gaged between Sir Thomas Felton, Seneschal of
Aquitaine, and Raymond de Caussade, Seigneur de Puycornet. Apparently
they felt that a fair field could not be had in either French or
English territory, and they applied to Pedro el Ceremonioso of
Aragon to provide the lists for them. Pedro acceded to the request
and promised to preside, provided there was due cause for a judicial
duel and that the arms were agreed upon in advance, and he sent the
combatants safe-conducts to come to Aragon. He assigned the city of
Valencia as the place of combat, and when there was an endeavor to
break off the affair on the ground that it concerned the kings of
France and England, he replied that it was now too late and that the
battle must take place.[763]
In 1386, the Parlement of Paris was occupied with a subtle discussion
as to whether the accused was obliged, in cases where battle was gaged,
to give the lie to the appellant, under pain of being considered to
confess the crime charged, and it was decided that the lie was not
essential.[764] The same year occurred the celebrated duel between
the Chevalier de Carrouges and Jacques le Gris, to witness which the
king shortened a campaign, and in which the appellant was seconded by
Waleran, Count of St. Pol, son-in-law of the Black Prince. Nothing can
well be more impressive than the scene so picturesquely described by
Froissart. The cruelly wronged Dame de Carrouges, clothed in black,
is mounted on a sable scaffold, watching the varying chances of the
unequal combat between her husband, weakened by disease, and his
vigorous antagonist, with the fearful certainty that, if strength alone
prevail, he must die a shameful death and she be consigned to the
stake. Hope grows faint and fainter; a grievous wound seems to place
Carrouges at the mercy of his adversary, until at the last moment,
when all appeared lost, she sees the avenger drive his sword through
the body of his prostrate enemy, vindicating at once his wife’s honor
and his own good cause.[765] Froissart, however, was rather an artist
than an historian; he would not risk the effect of his picture by too
rigid an adherence to facts, and he omits to mention, what is told by
the cooler Juvenal des Ursins, that Le Gris was subsequently proved
innocent by the death-bed confession of the real offender.[766] To make
the tragedy complete, the Anonyme de S. Denis adds that the miserable
Dame de Carrouges, overwhelmed with remorse at having unwittingly
caused the disgrace and death of an innocent man, ended her days in a
convent.[767] So striking a proof of the injustice of the battle ordeal
is said by some writers to have caused the abandonment of the practice;
but this, as will be seen, is an error, though no further trace of the
combat as a judicial procedure is to be found on the registers of the
Parlement of Paris.[768]
Still, it was popularly regarded as an unfailing resource. Thus, in
1390, two women were accused at the Châtelet of Paris of sorcery. After
repeated torture, a confession implicating both was extracted from
one of them, but the other persisted in her denial, and challenged
her companion to the duel by way of disproving her evidence. In the
record of the proceedings the challenge is duly entered, but no notice
whatever seems to have been taken of it by the court, showing that it
was no longer a legal mode of trial in such cases.[769]
In 1409, the battle trial was materially limited by an ordonnance of
Charles VI. prohibiting its employment except when specially granted
by the king or the Parlement;[770] and though the latter body may
never have exercised the privilege thus conferred upon it, the king
occasionally did, as we find him during the same year presiding at a
judicial duel between Guillaume Bariller, a Breton knight, and John
Carrington, an Englishman.[771] The English occupation of France, under
Henry V. and the Regent Bedford, revived the practice, and removed for
a time the obstacles to its employment. Nicholas Upton, writing in the
middle of the fifteenth century, repeatedly alludes to the numerous
cases in which he assisted as officer of the Earl of Salisbury,
Lieutenant of the King of England; and in his chapters devoted to
defining the different species of duel he betrays a singular confusion
between the modern ideas of reparation of honor and the original object
of judicial investigation, thus fairly illustrating the transitional
character of the period.[772]
It was about this time that Philippe le Bon, Duke of Burgundy, formally
abolished the wager of battle, as far as lay in his power, throughout
the extensive dominions of which he was sovereign, and in the Coutumier
of Burgundy, as revised by him in 1459, there is no trace of it to be
found. The code in force in Britanny until 1539 permitted it in cases
of contested estates, and of treason, theft, and perjury—the latter,
as usual, extending it over a considerable range of civil actions,
while the careful particularization of details by the code shows that
it was not merely a judicial antiquity.[773] In Normandy, the legal
existence of the judicial duel was even more prolonged, for it was not
until the revision of the coutumier in 1583, under Henry III., that
the privilege of deciding in this way numerous cases, both civil and
criminal, was formally abolished.[774] Still, it may be assumed that,
practically, the custom had long been obsolete, though the tardy
process of revising the local customs allowed it to remain upon the
statute book to so late a date. The fierce mountaineers of remote Béarn
clung to it more obstinately, and in the last revision of their code,
in 1552, which remained unaltered until 1789, it retains its place as a
legitimate means of proof, in default of other testimony, with a heavy
penalty on the party who did not appear upon the field at the appointed
time.[775]
During this long period, examples are to be found which show that
although the combat was falling into disuse, it was still a legal
procedure, which in certain cases could be claimed as a right, or which
could be decreed and enforced by competent judicial authority. Among
the privileges of the town of Valenciennes was one to the effect that
any homicide taking refuge there could swear that the act had been
committed in self-defence, when he could be appealed only in battle.
This gave occasion to a combat in 1455 between a certain Mahuot and
Jacotin Plouvier, the former of whom had killed a kinsman of the
latter. Neither party desired the battle, but the municipal government
insisted upon it, and furnished them with instructors to teach the
use of the club and buckler allowed as arms. The Comte de Charolois,
Charles le Téméraire, endeavored to prevent the useless cruelty, but
the city held any interference as an infringement of its chartered
rights; and, after long negotiations, Philippe le Bon, the suzerain,
authorized the combat and was present at it. The combatants, according
to custom, had the head shaved and the nails pared on both hands and
feet; they were dressed from head to foot in a tight-fitting suit of
hardened leather, and each was anointed with grease to prevent his
antagonist from clutching him. The combat was long and desperate,
but at length the appellant literally tore out the heart of his
antagonist.[776] Such incidents among roturiers, however, were rare.
More frequently some fiery gentleman claimed the right of vindicating
his quarrel at the risk of his life. Thus, in 1482, shortly after
the battle of Nancy had reinstated René, Duke of Lorraine, on the
ruins of the second house of Burgundy, two gentlemen of the victor’s
court, quarrelling over the spoils of the battle-field, demanded
the _champ-clos_; it was duly granted, and on the appointed day the
appellant was missing, to the great discomfiture and no little loss
of his bail.[777] When Charles d’Armagnac, in 1484, complained to the
States General of the inhuman destruction of his family, committed by
order of Louis XI., the Sieur de Castlenau, whom he accused of having
poisoned his mother, the Comtesse d’Armagnac, appeared before the
assembly, and, his advocate denying the charge, presented his offer
to prove his innocence by single combat.[778] In 1518, Henry II. of
Navarre ordered a judicial duel at Pau between two contestants, of whom
the appellant made default; the defendant was accordingly pronounced
innocent, and was empowered to drag through all cities, villages, and
other places through which he might pass, the escutcheon and effigy of
his adversary, who was further punished by the prohibition thenceforth
to wear arms or knightly bearings.[779] In 1538, Francis I. granted
the combat between Jean du Plessis and Gautier de Dinteville, which
would appear to have been essentially a judicial proceeding, since the
defendant, not appearing at the appointed time, was condemned to death
by sentence of the high council, Feb. 20, 1538.[780] The duel thus
was evidently still a matter of law, which vindicated its majesty by
punishing the unlucky contestant who shrank from the arbitrament of the
sword.
Allusion has already been made to the celebrated combat between
Chastaigneraye and Jarnac, in 1547, wherein the death of the former,
a favorite of Henry II., led the monarch to take a solemn oath never
to authorize another judicial duel. Two years later, two young nobles
of his court, Jacques de Fontaine, Sieur de Fendilles, and Claude des
Guerres, Baron de Vienne-le-Chatel, desired to settle in this manner
a disgusting accusation brought against the latter by the former.
The king, having debarred himself from granting the appeal, arranged
the matter by allowing Robert de la Marck, Marshal of France, and
sovereign Prince of Sedan, to permit it in the territory of which
he was suzerain. Fendilles was so sure of success that he refused
to enter the lists until a gallows was erected and a stake lighted,
where his adversary after defeat was to be gibbeted and burned. Their
only weapons were broad-swords, and at the first pass Fendilles
inflicted on his opponent a fearful gash in the thigh. Des Guerres,
seeing that loss of blood would soon reduce him to extremity, closed
with his antagonist, and being a skilful wrestler speedily threw him.
Reduced to his natural weapons, he could only inflict blows with the
fist, which failing strength rendered less and less effective, when a
scaffold crowded with ladies and gentlemen gave way, throwing down the
spectators in a shrieking mass. Taking advantage of the confusion, the
friends of Des Guerres violated the law which imposed absolute silence
and neutrality on all, and called to him to blind and suffocate his
adversary with sand. Des Guerres promptly took the hint, and Fendilles
succumbed to this unknightly weapon. Whether he formally yielded or
not was disputed. Des Guerres claimed that he should undergo the
punishment of the gallows and stake prepared for himself, but de la
Marck interfered, and the combatants were both suffered to retire in
peace.[781] This is the last recorded instance of the wager of battle
in France. The custom appears never to have been formally abolished,
and so little did it represent the thoughts and feelings of the age
which witnessed the Reformation, that when, in 1566, Charles IX. issued
an edict prohibiting duels, no allusion was made to the judicial
combat. The encounters which he sought to prevent were solely those
which arose from points of honor between gentlemen, and the offended
party was ordered not to appeal to the courts, but to lay his case
before the Marshals of France, or the governor of his province.[782]
The custom had died a natural death. No ordonnance was necessary to
abrogate it; and, seemingly, from forgetfulness, the crown and the
Parlement appear never to have been divested of the right to adjudge
the wager of battle.
* * * * *
In Italy many causes conspired to lead to the abrogation of the
judicial duel. On the one hand there were the prescriptions of the
popes, and on the other the spirit of scepticism fostered by the
example of Frederic II. The influence of the resuscitated Roman law was
early felt and its principles were diffused by the illustrious jurists
who rendered the Italian schools famous. Burgher life, moreover, was
precociously developed in the social and political organization,
and as the imperial influence diminished with the fall of the House
of Hohenstaufen, the cities assumed self-government and fashioned
their local legislation after their own ideals. The judgments of God
were not indigenous in Italy; they were not ancestral customs rooted
in the prehistoric past, but were foreign devices introduced by
conquerors—first by the Lombards and then by the Othos. There were
thus many reasons why the trial by combat should disappear early from
the Italian statute books. There is no trace of it in the elaborate
criminal code of Milan compiled in 1338, nor in that of Piacenza
somewhat later; in fact, it was no longer needed, for the inquisitional
process was in full operation and in doubtful cases the judge had all
the resources of torture at his disposal.[783]
Although by the middle of the fourteenth century it had thus
disappeared from the written law, the rulers retained the right to
grant it in special cases, and it thus continued in existence as a
lawful though extra-legal mode of settling disputed cases. Where
suzerains were so numerous there was thus ample opportunity for
belligerent pleaders to gratify their desires. Even as late as 1507
Giovanni Paolo Baglioni, lord of Spello (a village in the Duchy of
Spoleto, near Foligno), granted a licence for a month to Giovanni
Batta Gaddi and Raffaello Altoviti to settle their suits by fighting
within his domain with three comrades.[784] Two years after this,
Julius II., in issuing a constitution directed against duels of honor,
took occasion also to include in his prohibition all such _purgationes
vulgares_, even though permitted by the laws; the combatants were
ordered, in all the States of the Church, to be arrested and punished
for homicide or maiming according to the common law.[785] In 1519 Leo
X. reissued this bull with vastly sharper penalties on all concerned,
but in his additions to it he seems merely to have in mind the duel
of honor, which was habitually conducted in public, in lists prepared
for the purpose, and in presence of the prince or noble who had
granted licence for it.[786] The legal combat may be considered to
have virtually disappeared, but the duel of honor which succeeded it
inherited some of its sanctions, and in the learned treatises on the
subject which appeared during the first half of the sixteenth century
there are still faint traces to be found of the survival of the idea of
the judgment of God.[787]
In Hungary, it was not until 1486 that any attempt was made to restrict
the judicial duel. In that year Matthias Corvinus prohibited it in
cases where direct testimony was procurable: where such evidence
was unattainable, he still permitted it, both in civil and criminal
matters.[788] In 1492 Vladislas II. repeated this prohibition, alleging
as his reason for the restriction the almost universal employment of
champions who sometimes sold out their principals. The terms of the
decree show that previously its use was general, though it is declared
to be a custom unknown elsewhere.[789]
In Flanders, it is somewhat remarkable that the duel should have
lingered until late in the sixteenth century, although, as we have seen
above, the commercial spirit of that region had sought its abrogation
at a very early period, and had been seconded by the efforts of
Philippe le Bon in the fifteenth century. Damhouder, writing about
the middle of the sixteenth century, states that it was still legal
in matters of public concern, and even his severe training as a
civil lawyer cannot prevent his declaring it to be laudable in such
affairs.[790] Indeed, when the Council of Trent, in 1563, stigmatized
the duel as the work of the devil and prohibited all potentates from
granting it under pain of excommunication and forfeiture of all feudal
possessions,[791] the state Council of Flanders, in their report to the
Duchess of Parma on the reception of the Council, took exception to
this canon, and decided that the ruler ought not to be deprived of the
power of ordering the combat.[792] In this view, the Council of Namur
agreed.[793]
In Germany, in spite of the imperial legislation referred to above (p.
212), feudal influences were too strong to permit an early abrogation
of the custom. Throughout the fifteenth century the wager of battle
continued to flourish, and MSS. of the period give full directions as
to the details of the various procedures for patricians and plebeians.
The sixteenth century saw its wane, though it kept its place in the
statute books, and _Fechtbücher_ of 1543 and 1556 describe fully
the use of the club and the knife. Yet when in 1535 Friedrich von
Schwartzenberg demanded a judicial duel to settle a suit with Ludwig
von Hutten, the latter contemptuously replied that such things might
be permitted in the times of Goliath and Dietrich of Bern, but that
now they were not in accordance with law, right, or custom, and von
Schwartzenberg was obliged to settle the case in more peaceful fashion.
Still, occasional instances of its use are said to have occurred
until the close of the century,[794] and as late as 1607, Henry, Duke
of Lorraine, procured from the Emperor Rodolph II. the confirmation
of a privilege which he claimed as ancestral that all combats
occurring between the Rhine and the Meuse should be fought out in his
presence.[795]
In Russia, under the code known as the Ulogenié Zakonof, promulgated in
1498, any culprit, after his accuser’s testimony was in, could claim
the duel; and as both parties went to the field accompanied by all the
friends they could muster, the result was not infrequently a bloody
skirmish. These abuses were put an end to by the Sudebtnick, issued in
1550, and the duel was regulated after a more decent fashion, but it
continued to flourish legally until it was finally abrogated in 1649
by the Czar Alexis Mikhailovich, in the code known as the Sobornoié
Ulogenié. The more enlightened branch of the Slavonic race, however,
the Poles, abolished it in the fourteenth century; but Macieiowski
states that in Servia and Bulgaria the custom has been preserved to the
present day.[796]
In other countries, the custom likewise lingered to a comparatively
late period. Scotland, indeed, was somewhat more forward than her
neighbors; for in the year 1400, her Parliament showed the influence of
advancing civilization by limiting the practice in several important
particulars, which, if strictly observed, must have rendered it almost
obsolete. Four conditions were pronounced essential prerequisites: the
accusation must be for a capital crime; the offence must have been
committed secretly and by treachery; reasonable cause of suspicion must
be shown against the accused, and direct testimony both of witnesses
and documents must be wanting.[797]
Still the “perfervidum ingenium Scotorum” clung to the arbitrament of
the sword with great tenacity. In 1532 Sir James Douglass accused his
son-in-law Robert Charteris of treason, and the charge was settled
by a judicial duel in the presence of James V., who put an end to it
when Charteris’s sword broke.[798] Knox relates that in 1562, when
the Earl of Arran was consulting with him and others respecting a
proposed accusation against Bothwell for high treason, arising out
of a plan for seizing Queen Mary which Bothwell had suggested, the
earl remarked, “I know that he will offer the combate unto me, but
that would not be suffered in France, but I will do that which I have
proposed.” In 1567, also, when Bothwell underwent a mock trial for
the murder of Darnley, he offered to justify himself by the duel; and
when the Lords of the Congregation took up arms against him, alleging
as a reason the murder and his presumed designs against the infant
James VI., Queen Mary’s proclamation against the rebels recites his
challenge as a full disproval of the charges. When the armies were
drawn up at Carberry Hill, Bothwell again came forward and renewed
his challenge. James Murray, who had already offered to accept it,
took it up at once, but Bothwell refused to meet him on account of the
inequality in their rank. Murray’s brother, William of Tullibardin,
then offered himself, and Bothwell again declined, as the Laird of
Tullibardin was not a peer of the realm. Many nobles then eagerly
proposed to take his place, and Lord Lindsay especially insisted on
being allowed the privilege of proving the charge on Bothwell’s body,
but the latter delayed on various pretexts, until Queen Mary was able
to prohibit the combat.[799] The last judicial duels fought in Scotland
were two which occurred as the sixteenth century was closing. In 1595,
under a warrant from James VI. John Brown met George Hepburn and was
vanquished, though his life was spared at the request of the judges. In
1597 Adam Bruntfield charged James Carmichael with causing the death
of his brother, and under royal licence fought and slew him before a
crowd of five thousand spectators. Yet even this was not the end of
the legal custom, for in 1603 an accusation of treason against Francis
Mowbray was adjudged to be settled by the duel, though the combat was
prevented by Mowbray meeting his death in an attempt to escape from
prison, after which he was duly hanged and quartered.[800]
In England, the resolute conservatism, which resists innovation to the
last, prolonged the existence of the wager of battle until a period
unknown in other enlightened nations. No doubt a reason for this may
be found in the rise of the jury trial towards the end of the twelfth
century, which, as we have seen above (p. 144), furnished an effective
substitute for the combat in doubtful cases. As the jury system
developed itself in both civil and criminal matters the sphere of the
duel became more limited, in practice if not in theory, and its evils
being thus less felt the necessity for its formal abrogation was less
pressing.[801] It was thus enabled to hold its place as a recognized
form of procedure to a later period than in any other civilized land.
Already in the first quarter of the thirteenth century Mr. Maitland
tells us that in criminal cases it had become uncommon, but the
number of examples of it which he gives shows that this can only be
in comparison with its greater frequency in the preceding century and
that it was still in common use notwithstanding the tendency of the
judges to disallow it.[802] At the close of the fourteenth century,
when France was engaged in rendering it rapidly obsolete, Thomas, Duke
of Gloucester, dedicated to his nephew Richard II. a treatise detailing
elaborately the practice followed in the Marshal’s court with respect
to judicial duels.[803] Even a century later, legislation was obtained
to prevent its avoidance in certain cases. The “Statute of Gloucester”
(6 Ed. II. cap. 9), in 1333, had given to the appellant a year and a
day in which to bring his appeal of death—a privilege allowed the widow
or next of kin to put the accused on a second trial after an acquittal
on a public indictment—which, as a private suit, was usually determined
by the combat. In practice, this privilege was generally rendered
unavailing by postponing the public prosecution until the expiration
of the delay, so as to prevent the appeal. In 1486, however, a law was
passed to diminish the frequency of murder, which required the trial to
be finished before the expiration of the year and day, and ordered the
justices, in case of acquittal, to hold the defendant in prison or on
bail until the time had passed, so as to insure to the widow or next of
kin the opportunity of prosecuting the appeal of death.[804] Another
evidence of the prevalence of the custom is to be found in the rule
which, in the fifteenth century, permitted a priest to shrive a man who
was about to wage his battle, without regard to the fact as to whose
parishioner he might legally be—
And of mon that schal go fyghte
In a bateyl for hys ryghte,
Hys schryft also thou myghte here,
Thagh he thy pareschen neuer were.[805]
With the advance of civilization and refinement, the custom gradually
declined, but it was not abolished. The last duel fought out in
England is said to be one in 1492 between Sir James Parker and Hugh
Vaughan, arising from a grant of armorial bearings to Vaughan; it
was fought on horseback with lances, and at the first course Vaughan
slew his antagonist.[806] Still the old laws remained unaltered, and
an occasional appeal to them, while it offended men’s common sense,
was insufficient to cause their repeal. In 1571 a case occurred, as
Spelman says, “non sine magna jurisconsultorum perturbatione,” when,
to determine the title to an estate in Kent, Westminster Hall was
forced to adjourn to Tothill Fields, and all the preliminary forms of
a combat were literally enacted with the most punctilious exactness,
though an accommodation between the parties saved the skulls of their
champions.[807] In 1583, however, a judicial duel was actually fought
in Ireland between two O’Connors on an accusation of treason brought
by one against the other, which ended by the appellant cutting off
the defendant’s head and presenting it on his sword’s point to the
justices.[808]
A device, peculiar to the English jurisprudence, allowed a man indicted
for a capital offence to turn “approver,” by confessing the crime and
charging or appealing any one he choose as an accomplice, and this
appeal was usually settled by the single combat. Indeed, even when a
criminal had confessed he was sometimes pardoned on condition of his
being victorious in a specified number of duels, and thus compounding
for his own life by the service rendered to society in relieving it
of so many malefactors, as in a case in 1221 where a confessed thief
“became approver to fight five battles.”[809] The custom continued
to be a feature of criminal jurisprudence sufficiently important to
require legislation as late as the year 1599, when the Act 41 Eliz.
chap. 3 was passed to regulate the nice questions which attended
appeals of several persons against one, or of one person against
several. In the former case, the appellee, if victorious in the first
duel, was acquitted; in the latter, the appellor was obliged to fight
successively with all the appellees.[810] In civil suits the last case
on record, I believe, is that of Claxton _v._ Lilburn, which shows
curiously enough the indisposition to put an end to what was regarded
by common consent as a solecism. A valuable estate in Durham, said to
be worth more than £200 a year, was the subject in dispute. Claxton
had been unsuccessful in a suit for its recovery, and had brought a
new action, to which Lilburn responded, Aug. 6th, 1638, by producing
in court his champion, George Cheney, in array, armed with a sandbag
and battoon, who cast into the court his gauntlet with five small pence
in it, and demanded battle. Claxton rejoined by producing a champion
similarly armed, and gaged his battle. The court was nonplussed,
putting off the proceedings from day to day, and seeking some excuse
for refusing the combat. The champions were interrogated, and both
admitted that they were hired for money. King Charles demanded the
opinion of the Chief Justice and all his barons whether this was
sufficient to invalidate the proceedings, but they unanimously replied
that after battle was gaged and sureties given, such confession was
no bar to its being carried out. The King then ordered his judges if
possible to find some just way for its prevention, but they apparently
could do nothing save procrastinate the matter for years, for in 1641
Lilburn petitioned the Long Parliament, setting forth that he had
repeatedly claimed his right of battle and had produced his champion,
but was ever put off by the judges finding some error in the record.
Parliament thereupon ordered a bill to be brought in taking away the
judicial combat.[811] It was not enacted however, and Sir Matthew Hale,
writing towards the close of the century, feels obliged to describe
with considerable minuteness the various niceties of the law, though he
is able to speak of the combat as “an unusual trial at this day.”[812]
In 1774, the subject incidentally attracted attention in a manner not
very creditable to the enlightenment of English legislation. When, to
punish the rebellious Bostonians for destroying the obnoxious tea,
a “Bill for the improved administration of justice in the province
of Massachusetts Bay” was passed, it originally contained a clause
depriving the New Englanders of the appeal of death, by which, it will
be remembered, a man acquitted of a charge of murder could be again
prosecuted by the next of kin, and the question could be determined
by the wager of battle. The denial of this ancestral right aroused
the indignation of the liberal party in the House of Commons, and
the point was warmly contested. The learned and eloquent Dunning,
afterwards Lord Ashburton, one of the leaders of opposition, defended
the ancient custom in the strongest terms. “I rise,” said he, “to
support that great pillar of the constitution, the appeal for murder;
I fear there is a wish to establish a precedent for taking it away
in England as well as in the colonies. It is called a remnant of
barbarism and gothicism. The whole of our constitution, for aught I
know, is gothic.... I wish, sir, that gentlemen would be a little more
cautious, and consider that the yoke we are framing for the despised
colonists may be tied round our own necks!” Even Burke was heard to
lift a warning voice against the proposed innovation, and the obnoxious
clause had to be struck out before the ministerial majority could pass
the bill.[813] Something was said about reforming the law throughout
the empire, but it was not done, and the beauty of the “great pillar of
the constitution,” the appeal of death, was shown when the nineteenth
century was disgraced by the resurrection of all the barbaric elements
of criminal jurisprudence. In 1818, the case of Ashford _vs._ Thornton
created much excitement. Ashford was the brother of a murdered girl,
whose death, under circumstances of peculiar atrocity, was charged
upon Thornton, with much appearance of probability. Acquitted on a
jury trial, Thornton was appealed by Ashford, when he pleaded “Not
guilty, and I am ready to defend the same by my body.” After elaborate
argument, Lord Ellenborough, with the unanimous assent of his brother
justices, sustained the appellee’s right to this as “the usual and
constitutional mode of trial,” expounding the law in almost the same
terms as those which we read in Bracton and Beaumanoir.[814] The
curious crowd was sorely disappointed when the appellant withdrew, and
the chief justice was relieved from the necessity of presiding over a
gladiatorial exhibition. A similar case occurred almost simultaneously
in Ireland, and the next year the Act 59 Geo. III. chap. 46, at length
put an end to this remnant of Teutonic barbarism.[815]
* * * * *
America, inheriting the blessings of English law, inherited also its
defects. The colonies enjoyed the privilege of the appeal of death,
against the abrogation of which, in the province of Massachusetts
Bay, Dunning protested so vehemently. At least one instance of its
employment is to be found here, when in 1765, in Maryland, Sarah
Soaper appealed a negro slave named Tom for the murder of her husband.
The negro, however, was probably not aware of his privilege to demand
the wager of battle, so he submitted to be tried by a jury, and was
duly condemned and executed.[816] John C. Gray, Jr., Esq., of Boston,
to whom I am indebted for calling my attention to this and some other
sources of information on the subject, informs me of a tradition
that a disputed question of boundary between two townships in New
Hampshire was once settled by combat between champions; but the most
conservative State in this respect appears to be South Carolina. An act
of that colony, in 1712, enumerating the English laws to be held in
force, specifically includes those concerning appeal of death, and Dr.
Cooper, in his “Statutes at Large of South Carolina,” writing in 1837,
seems to think that both the wager of battle and appeal of death were
still legally in force there at that time.[817] So Chancellor Kilty,
in his Report on English Statutes applicable to Maryland, made in
1811, apparently considers that the appeal of death was still legally
existent, but regards it as unimportant in view of the pardoning power
and other considerations.[818]
III.
THE ORDEAL.
CHAPTER I.
UNIVERSAL INVOCATION OF THE JUDGMENT OF GOD.
Although the wager of battle and the other ordeals have much in common,
there is sufficient distinction between them to render convenient
their separate consideration, even at the risk of a little occasional
repetition. The development and career of these forms of the judgment
of God were not in all respects similar, nor was their employment
in all cases the same. The mere fact that the duel was necessarily
a bilateral ordeal, to which both sides had to submit, in itself
establishes a limit as to the cases fitted for its employment, nor
were all races of mankind adapted by character for its use. Moreover,
in its origin it was simply a device for regulating under conditions
of comparative fairness the primitive law of force, and the conception
of the intervention of a Divine Power, whereby victory would enure to
the right, probably was a belief subsequently engrafted on it. In the
other ordeals this is the fundamental idea on which they were based,
and we may perhaps assume that they represent a later development in
human progress, in which brute strength has declined somewhat from its
earliest savage supremacy, and a reliance upon the interposition of a
superhuman agency, whether the spirit of a fetish or an omnipotent and
just Godhead, single or multiform, has grown sufficiently strong to be
a controlling principle in the guidance of daily life.
Yet this, too, is only a step in the evolution of human thought, before
it can grasp the conception of an Omnipotence that shall work out its
destined ends, and yet allow its mortal creatures free scope to mould
their own fragmentary portions of the great whole—a Power so infinitely
great that its goodness, mercy, and justice are compatible with the
existence of evil in the world which it has formed, so that man has
full liberty to obey the dictates of his baser passions, without being
released from responsibility, and, at the same time, without disturbing
the preordained results of Divine wisdom and beneficence. Accordingly,
we find in the religious history of almost all races that a belief
in a Divine Being is accompanied with the expectation that special
manifestations of power will be made on all occasions, and that the
interposition of Providence may be had for the asking, whenever man,
in the pride of his littleness, condescends to waive his own judgment,
and undertakes to test the inscrutable ways of his Creator by the
touchstone of his own limited reason. Thus miracles come to be expected
as matters of every-day occurrence, and the laws of nature are to be
suspended whenever man chooses to tempt his God with the promise of
right and the threat of injustice to be committed in His name.
To this tendency of the human mind is attributable the almost universal
adoption of the so-called Judgment of God, by which men, oppressed
with doubt, have essayed in all ages to relieve themselves from
responsibility by calling in the assistance of Heaven. Nor, in so
doing, have they seemed to appreciate the self-exaltation implied in
the act itself, but in all humility have cast themselves and their
sorrows at the feet of the Great Judge, making a merit of abnegating
the reason which, however limited, has been bestowed to be used and
not rejected. In the Carlovingian Capitularies there occurs a passage,
dictated doubtless by the spirit of genuine trust in God, which well
expresses the pious sentiments presiding over acts of the grossest
practical impiety. “Let doubtful cases be determined by the judgment
of God. The judges may decide that which they clearly know, but that
which they cannot know shall be reserved for Divine judgment. Whom God
hath kept for his own judgment may not be condemned by human means.
‘Therefore judge nothing before the time, until the Lord come, who
both will bring to light the hidden things of darkness, and will make
manifest the counsels of the hearts’”[819] (_1 Cor._ iv. 5). That
Heaven would interpose to save the guiltless was taught in too many
ways to admit of doubt. An innocent man, we are told, was accused of a
murder and pursued till he took refuge in the cell of St. Macarius, who
at once proposed to determine the question of his guilt by an appeal to
God. Adjourning to the grave of the slain the saint addressed a prayer
to Christ and then called upon the dead man to declare whether the
accused had killed him. A voice from the tomb responded in the negative
and the fugitive was released; but when the saint was asked to pursue
the investigation and ascertain the name of the murderer, he replied
that this was none of his duty, for the sinner might already have
repented.[820]
The superstition which we here find dignified with the forms of
Christian faith manifests itself among so many races and under such
diverse stages of civilization that it may be regarded as an inevitable
incident in human evolution, only to be outgrown at the latest periods
of development. In this, however, as in so many other particulars,
China furnishes virtually an exception. Her arrested thought exhibits
itself, in the King or sacred books collected by Confucius five hundred
years before the Christian era, in nearly the same form as is found
in the orthodox opinion of to-day. In this, religious belief is but a
system of cold morality, which avoids the virtues as well as the errors
of more imaginative faiths. In the most revered and authoritative
of the Chinese Scriptures, the Shu-King, or Holy Book, we find a
theo-philosophy based on a Supreme Power, _Tai-Ki_, or Heaven, which
is pure reason, or the embodiment of the laws and forces of nature
acting under the pressure of blind destiny. It is true that some
forms of divination were practised, and even enjoined, but no fuller
expression of belief in direct interposition from above is to be found
than that contained in the saying attributed to Muh-Wang (about 1000
B. C.) in his instructions to his judges in criminal cases: “Say not
that Heaven is unjust; it is man who brings these evils on himself. If
it were not that Heaven inflicts these severe punishments the world
would be ungoverned.”[821] It is, therefore, in strict compliance with
this philosophy that in the modern jurisprudence of China there is
no allusion to any evidence save that of facts duly substantiated by
witnesses, and even oaths are neither required nor admitted in judicial
proceedings.[822]
These teachings, however, are too refined and sublimated for ordinary
human nature, and along-side of official Confucianism, Taoism and
Buddhism flourish with a wealth of legends and marvels that may fairly
rival the most exuberant fancies of Teutonic or Latin mediævalism. In
the popular mind, therefore, the divine interposition may perpetually
be expected to vindicate innocence and to punish crime, and moral
teaching to a great extent consists of histories illustrating this
belief in all its phases and in every possible contingency of
common-place life. Thus it is related that in A. D. 1626 the learned
Doctor Wang-i had two servants, one stupid and the other cunning. The
latter stole from his master a sum of money, and caused the blame to
fall upon his comrade, who was unable to justify himself. By way of
securing him, he was tied to a flagstaff, and his accuser was set to
watch him through the night. At midnight the flagstaff broke in twain
with a loud noise, the upper portion falling upon the guilty man and
killing him, while the innocent was left unhurt; and next morning,
when the effects of the dead man were examined, the stolen money was
found among them, thus completely establishing the innocence of his
intended victim.[823] Popular beliefs such as these naturally find
their expression in irregular judicial proceedings, in spite of the
strict materialism of the written law, and, at least in some parts of
China, a curious form of the ordeal of chance is employed in default
of testimony. If an injured husband surprises his wife _flagrante
delicto_ he is at liberty to slay the adulterous pair on the spot;
but he must then cut off their heads and carry them to the nearest
magistrate, before whom it is incumbent on him to prove his innocence
and demonstrate the truth of his story. As external evidence is not
often to be had in such cases, the usual mode of trial is to place the
heads in a large tub of water, which is violently stirred. The heads,
in revolving, naturally come together in the centre, when, if they meet
back to back, the victims are pronounced guiltless, and the husband is
punished as a murderer; but if they meet face to face, the truth of
his statement is accepted as demonstrated, he is gently bastinadoed to
teach him that wives should be more closely watched, and is presented
with a small sum of money wherewith to purchase another spouse.[824]
The cognate civilization of Japan yields even more readily to the
temptation of seeking from the Deity a solution of doubt. Anciently
there were in general use the judgments of God, so well known in
mediæval Europe, of the wager of battle and the ordeal of boiling
water, and the latter is still customarily employed among the Ainos, or
aborigines. Even yet two antagonists may be seen to plunge their hands
in scalding water, the one who suffers the most being convicted, while
the innocent is expected to escape with injuries so slight that they
will readily heal.[825]
* * * * *
Turning to the still savage races of the old world we everywhere find
these superstitions in full force. Africa furnishes an ample store of
them, varying from the crudest simplicity to the most deadly devices.
Among the Kalabarese the _afia-edet-ibom_ is administered with the
curved fang of a snake, which is dexterously inserted under the lid
and around the ball of the eye of the accused; if innocent, he is
expected to eject it by rolling the eye, while, if unable to do so, it
is removed with a leopard’s tooth, and he is condemned. Even ruder, and
more under the control of the operator, is the _afia-ibnot-idiok_, in
which a white and a black line are drawn on the skull of a chimpanzee:
this is held up before the defendant, when an apparent attraction
of the white line towards him demonstrates his innocence, or an
inclination of the black line in his direction pronounces his guilt.
More formidable than these is the ordeal-nut, containing a deadly
poison which causes frothing at the mouth, convulsions, paralysis, and
speedy death. In capital cases, or even when sickness is attributed
to hostile machinations, the _abiadiong_, or sorcerer, decides who
shall undergo the trial; and as the active principle of the nut can be
extracted by preliminary boiling, judicious liberality on the part of
the individual selected is supposed to render the ordeal comparatively
harmless.[826]
Throughout a wide region of Western Africa, one of the most popular
forms of ordeal is that of the red water, or “sassy-bark.” In the
neighborhood of Sierra-Leone, as described by Dr. Winterbottom, it
is administered by requiring the accused to fast for twelve hours,
and then to swallow a small quantity of rice. After this the infusion
of the bark is taken in large quantities, as much as a gallon being
sometimes employed; if it produces emesia, so as to eject all of the
rice, the proof of innocence is complete, but if it fails in this,
or if it acts as a purgative, the accused is pronounced guilty. It
has narcotic properties, also, a manifestation of which is likewise
decisive against the sufferer. Among some of the tribes this is
determined by placing on the ground small sticks about eighteen inches
apart, or by forming an archway of limbs of trees bent to the ground,
and requiring the patient to pick his way among them, a feat rendered
difficult by the vertiginous effects of the poison. Although death not
infrequently results from the ordeal itself, yet the faith reposed in
these trials is so absolute that, according to Dr. Livingston, they
are demanded with eagerness by those accused of witchcraft, confident
in their own innocence and believing that the guilty alone can suffer.
When the red water is administered for its emetic effects, the popular
explanation is that the fetish enters with the draught, examines the
heart of the accused, and, on finding him innocent, returns with the
rice as evidence.[827] A system directly the reverse of all this is
found in Ashantee, where sickness in the ordeal is a sign of innocence,
and the _lex talionis_ is strictly observed. When evidence is
insufficient to support a charge, the accuser is made to take an oath
as to the truth of his accusation, and the defendant is then required
to chew a piece of _odum_ wood and drink a pitcher of water. If no
ill effects ensue, he is deemed guilty, and is put to death; while
if he becomes sick, he is acquitted and the accuser suffers in his
stead.[828]
Further to the east in the African continent, the Niam-Niam and the
neighboring tribes illustrate the endless variety of form of which
the ordeal is susceptible. These savages resort to various kinds of
divination which are equally employed as a guidance for the future
in all important undertakings, and as means to discover the guilt or
the innocence of those accused of crime. The principal of these is
the _borru_, in which two polished pieces of damma wood are rubbed
together, after being moistened with a few drops of water. If they
glide easily on each other the sign is favorable; if they adhere
together it is unfavorable. Life and death are also brought in play,
but vicarious victims are made the subject of experiment. Thus a
cock is taken and its head is repeatedly immersed in water until the
creature is rigid and insensible; if it recovers, the indication is
favorable, if it dies, adverse. Or an oil extracted from the bengye
wood is administered to a hen, and the same conclusions are drawn from
its survival or death.[829]
The Somali of Ethiopia employ the ordeals of red-hot iron and boiling
water or oil in virtually the same form as we shall see them used in
India and Europe, examining the hand of the accused after twenty-four
hours to determine his guilt from its condition.[830]
In Madagascar the poison ordeal is customarily administered, with a
decoction of the deadly nut of the Tangena (_Tanghinia venenifera_).
One of the modes of its application is evidently based on the same
theory as the ordeal of red water and rice, to which it bears a notable
resemblance. A fowl is boiled, and three pieces of its skin are placed
in the broth. Then a cupful of the decoction of the Tangena nut is
given to the accused, followed by the same quantity of the broth, with
the pieces of skin. Unless the poison speedily causes vomiting, it
soon kills the patient, which is a satisfactory proof of his guilt.
If vomiting ensues, it is kept up by repeated doses of the broth
and warm water, and if the bits of skin are ejected the accused is
declared innocent; but if they are retained he is deemed convicted
and is summarily despatched with another bowl of the poison. In the
persecutions of 1836 and 1849 directed against the Malagasy Christians,
many of the converts were tried with the Tangena nut, and numbers of
them perished.[831] The ordeals of red-hot iron and boiling water are
also used.[832]
Springing from the same belief is the process used in Tahiti for
discovering the criminal in cases of theft. The priest, when applied
to, digs a hole in the clay floor of his hut, fills it with water, and
stands over it with a young plantain in his hand, while invoking his
god. The deity thereupon conducts the spirit of the thief over the
water, and his reflection is recognized by the priest.[833]
The races of the Indian archipelago are fully equipped with resources
of the same kind for settling doubtful cases. Among the Dyaks of Borneo
questions for which no other solution is apparent are settled by giving
to each litigant a lump of salt, which they drop simultaneously into
water, and he whose lump dissolves soonest is adjudged the loser; or
each takes a living shell and places it on a plate, when lime-juice
is squeezed over them, and the one whose shell first moves under this
gentle stimulant is declared the winner.[834]
In the Philippines there are various peculiar ordeals in use. A needle
is sometimes thrust into the scalp of two antagonists, and he from whom
the blood flows most profusely is adjudged the loser; or two chickens
are roasted to death and then opened, and the owner of the one which is
found to have the largest liver is defeated.[835]
The black Australioid Khonds of the hill districts of Orissa confirm
the universality of these practices by customs peculiar to themselves
which may be assumed as handed down by tradition from prehistoric
times. Not only do they constantly employ the ordeals of boiling water
and oil and red-hot iron, which they may have borrowed from their
Hindu neighbors, but they administer judicial oaths with imprecations
that are decidedly of the character of ordeals. Thus an oath is
taken on a tiger’s skin with an invocation of destruction from that
animal upon the perjured; or upon a lizard’s skin whose scaliness is
invited upon him who may forswear himself; or over an ant-hill with
an imprecation that he who swears falsely may be reduced to powder. A
more characteristic ordeal is that used in litigation concerning land,
when a portion of earth from the disputed possession is swallowed by
each claimant in the belief that it will destroy him whose pretensions
are false. On very solemn occasions a sheep is killed in the name of
Tari Pennu, the dreadful earth-goddess: rice is then moistened with its
blood, and this is administered, in the full conviction that she will
slay the rash litigant who insults her power by perjury.[836]
The hill-tribes of Rajmahal, who represent another of the pre-Aryan
Indian races, furnish us with further developments of the same
principle, in details bearing a marked analogy to those practised by
the most diverse families of mankind. Thus the process by which the
guilt of Achan was discovered (_Joshua_ vii. 16-18), and that by which,
as we shall see hereafter, Master Anselm proposed to identify the thief
of the sacred vessels of Laon, are not unlike the ceremony used when a
district is ravaged by tigers or by pestilence, which is regarded as a
retribution for sin committed by some inhabitant, whose identification
thus becomes all-important for the salvation of the rest. In the
process known as _Satane_ a person sits on the ground with a branch of
the bale tree planted opposite to him; rice is handed to him to eat in
the name of each village of the district, and when the one is named in
which the culprit lives, he is expected to throw up the rice. Having
thus determined the village, the same plan is adopted with respect to
each family in it, and when the family is identified, the individual
is discovered in the same manner. Another form, named _Cherreen_, is
not unlike the ordeal of the Bible and key, not as yet obsolete among
Christians. A stone is suspended by a string, and the names of the
villages, families, and individuals are repeated, when it indicates the
guilty by its vibrations. Thieves are also discovered and convicted by
these processes, and by another mode known as _Gobereen_, which is a
modification of the hot-water ordeal. A mixture of cow-dung, oil, and
water is made to boil briskly in a pot. A ring is thrown in, and each
suspected person, after invoking the Supreme Deity, is required to find
and bring out the ring with his hand—the belief being that the innocent
will not be burned, while the guilty will not be able to put his hand
into the pot, as the mixture will rise up to meet it.[837]
Among the ancient Aztecs the oath assumed the proportions of an ordeal;
the accused in taking it touched with his finger first the ground
and then his tongue, and a perjury thus committed was expected to be
followed with speedy misfortune. So among the Ostiaks and Samoiedes a
disculpatory oath with imprecations taken on the head of a bear is held
to have the same virtue.[838]
* * * * *
Reverting to the older races, we find no trace of formal ordeals in the
fragmentary remains out of which Egyptologists thus far have succeeded
in reconstructing the antique civilization of the Nile valley, but this
is not attributable to an intellectual development which had cast them
aside as worthless. The intimate dependence of man on the gods, and
the daily interposition of the latter in human affairs, were taught by
the prophets of the temples and reverently accepted by the people. It
was merely a question as to the manner in which the judgment of God
was to be obtained, and this apparently took the form of reference to
the oracles which abounded in every Egyptian nome. In this we are not
left to mere conjecture, for a story related by Herodotus shows that
such an interpellation of the divine power was habitual in prosecutions
when evidence of guilt was deficient. Aames II., before he gained
the crown, was noted for his reckless and dissolute life, and was
frequently accused of theft and carried to the nearest oracle, when
he was convicted or acquitted according to the response. On ascending
the throne, he paid great respect to the shrines where he had been
condemned, and neglected altogether those where he had been absolved,
saying that the former gave true and the latter lying responses.[839]
* * * * *
The Semitic races, while not giving to the ordeal the development
which it has received among the Aryans, still afford sufficient
manifestation of its existence among them. Chaldean and Assyrian
institutions have not as yet been sufficiently explored for us to state
with positiveness whether or not the judgment of God was a recognized
resource of the puzzled dispenser of justice; but the probabilities
are strongly in favor of some processes of the kind being discovered
when we are more fully acquainted with their judicial system. The
constant invocation of the gods, which forms so marked a feature of
the cuneiform inscriptions, indicates a belief in the divine guidance
of human affairs which could hardly fail to find expression in direct
appeals for light in the administration of justice. The nearest
approach however to the principle of the ordeal which has thus far
been deciphered is found in the imprecations commonly expressed in
contracts, donations, and deeds, by which the gods are invoked to shed
all the curses that can assail humanity on the heads of those who shall
evade the execution of their plighted faith, or seek to present false
claims. Akin to this, moreover, was the penalty frequently expressed
in contracts whereby their violation was to be punished by heavy
fines, the greater part of which was payable into the treasury of some
temple.[840]
Among the Hebrews, as a rule, the interposition of Yahveh was expected
directly, without the formulas which human ingenuity has invented to
invite and ascertain the decisions of the divine will. Still, the
combat of David and Goliath has been cited as a model and justification
of the judicial duel; and there are some practices described in
Scripture which are strictly ordeals, and which were duly put forth by
the local clergy throughout Europe when struggling to defend the system
against the prohibitions of the papacy. When the man who blasphemed
the Lord (_Levit._ xxiv. 11-16) was kept in ward “that the mind of
the Lord might be showed them,” and the Lord ordered Moses to have
him stoned by the whole congregation, we are not told the exact means
adopted to ascertain the will of Yahveh, but the appeal was identical
in principle with that which prompted the mediæval judgment of God.
The use of the lot, moreover, which was so constantly employed in the
most important and sacred matters, was not a mere appeal to chance,
but was a sacred ceremony performed “before the Lord at the door of
the tabernacle of the congregation” to learn what was the decision
of Yahveh.[841] The lot was also used, if not as a regular judicial
expedient, at all events in unusual cases as a mode of discovering
criminals, and its results were held to be the undoubted revelation of
Omniscience. It is more than probable that the Urim and Thummin were
lots, and that they were not infrequently used, as in the cases of
Achan and Jonathan.[842] And the popular belief in the efficacy of the
lot is manifested in the account of Jonah’s adventure (_Jonah_ i. 7)
when the sailors are described as casting lots to discover the sinner
whose presence brought the tempest upon them. The most formal and
absolute example of the ordeal, however, was the Bitter Water by which
conjugal infidelity was convicted and punished (_Numb._ v. 11-31). This
curious and elaborate ceremony, which bears so marked an analogy to the
poison ordeals, was abandoned by order of R. Johanan ben Saccai about
the time of the Christian era, and is too well known to require more
than a passing allusion to the wealth of Haggadistic legend and the
interminable controversies and speculations to which it has given rise.
I may add, however, that Aben Ezra and other Jewish commentators hold
that when Moses burnt the golden calf and made the Israelites drink the
water in which its ashes were cast (_Exod._ xxxii. 20), he administered
an ordeal, like that of the Bitter Water, which in some way revealed
those who had been guilty of idolatry, so that the Levites could slay
them; and Selden explains this by reference to a tradition, according
to which the gold of the calf reddened the beards of those who had
worshipped it, and thus rendered them conspicuous.[843]
* * * * *
The teachings of Mahomet were too directly derived from the later
Judaism for him to admit into his jurisprudence any formal system
depending on miracles to establish justice between man and man whenever
Allah might be invoked to manifest his power. Like the Jews, however,
he taught that the constant supervision of the divine power is
spontaneously exerted, and he carried this so far as to inculcate the
belief that a judge pure from self-seeking would be inspired constantly
from above. “He who asks to be made judge will not be assisted; and he
who is made judge by compulsion, God sends down to him an angel, who
causes his actions and sentences to be just.” To one who hesitated to
accept the office, the Prophet said, “God will direct your heart, and
show you judicial ways, and fix your tongue in truth and justice.” On
the other hand, when a judge is unjust, “he separates from himself
the assistance and favor of God, and the devil is always with him.”
It was hard on litigants when the tribunal might be presided over
by either Allah or Eblis, but they had no recourse, except in the
oath, which was the corner-stone of Mahomet’s judicial system. In the
absence of evidence, the oath of the defendant was final, and this
incitement to perjury could only be repressed by investing the oath
with the qualities of the ordeal. Accordingly he lost no opportunity
of insisting upon the punishment, here and hereafter, of those who
perjured themselves before the judgment-seat. Sometimes this failed
to deter an eager pleader, and then he consoled the defeated party
with the assurance that his successful adversary would suffer in the
end, as when the chief of the Cindah tribe urged that a Jew, against
whom he brought suit for land unjustly held, would swear falsely, and
the Prophet rejoined, “Swearing is lawful, but he who takes a false
oath will have no luck in futurity.” Tradition relates, however, that
frequently he succeeded thus in frightening those who were ready to
forswear themselves, as when a man of Hadramut claimed land occupied
by a Cindah, and, being without evidence, the defendant was ready to
take the oath, when Mahomet interposed, “No one takes the property
of another by oath but will meet God with his tongue cut off,” and
the Cindah feared God and said, “The land is his.” In another case,
when two men were quarrelling over an inheritance, and neither had a
witness, he warned them, “In whose favor soever I may order a thing
which is not his right, then I lay apart for him nothing less than a
piece of hell-fire,” whereupon each litigant exclaimed, “O messenger of
God, I give up my right to him.” Sometimes, however, even Mahomet had
recourse to a more direct invocation of the supreme power, as in a case
wherein two men disputed as to the ownership of an animal, and neither
had witnesses, when he directed them to cast lots upon oath.[844]
These cases do not bear out the tradition that, when the Prophet was
perplexed beyond his ability, he had the resource of appealing to the
angel Gabriel for enlightenment. There is one legend respecting him,
however, which manifests the popular belief that in doubtful cases God
may be relied on to interpose for the vindication of innocence. A youth
brought before Mahomet on an accusation of murder, protested that the
act was committed in self-defence. The Prophet ordered the corpse to be
entombed, and postponed the trial until the next day. The brethren of
the slain, still insisting on vengeance, were then told that they might
inflict upon the murderer precisely the same wounds as those which
they should find on the body. On opening the sepulchre for the purpose
of ascertaining the exact measure of the punishment conceded, they
returned affrighted to the judgment-seat, and reported that they had
found nothing but the smoke and stench of Gehenna; whereupon Mahomet
pronounced that Eblis had carried off the corpse of the guilty, and
that the accused was innocent.[845] The prevalence of superstitions
kindred to this, in spite of the principles laid down in the law,
is shown by the custom which exists among some tribes of Arabs, of
employing the ordeal of red-hot iron in the shape of a gigantic spoon,
to which, when duly heated, the accused applies his tongue, his
guilt or innocence being manifested by his suffering, or escaping
injury.[846] A species of vulgar divination, common among the Turks,
moreover, belongs to the same category of thought, as it is used in the
detection of thieves by observing the marks on wax slowly melted, while
certain magic formulas are recited over it.[847]
* * * * *
It is among the Aryan races that we are to look for the fullest and
most enduring evidences of the beliefs which developed into the ordeal,
and gave it currency from the rudest stages of nomadic existence to
periods of polished and enlightened civilization. In the perfect
dualism of Mazdeism, the Yazatas, or angels of the good creation, were
always prompt to help the pure and innocent against the machinations
of Ahriman and his Daevas, their power to do so depending only upon
the righteousness of him who needed assistance.[848] The man unjustly
accused, or seeking to obtain or defend his right, could therefore
safely trust that any trial to which he might be subjected would be
harmless, however much the ordinary course of nature would have to
be turned aside in order to save him. Thus Zoroaster could readily
explain and maintain the ancestral practices, the common use of which
by both the Zend and the Hindu branches of the Aryan family points
to their origin at a period anterior to the separation between the
kindred tribes. In the fragments of the Avesta, which embody what
remains to us of the prehistoric law of the ancient Persians, we find a
reference to the ordeal of boiling water, showing it to be an accepted
legal process, with a definite penalty affixed for him who failed to
exculpate himself in it:—
“Creator! he who knowingly approaches the hot, golden, boiling water,
as if speaking truth, but lying to Mithra;
“What is the punishment for it?
“Then answered Ahura-Mazda: Let them strike seven hundred blows with
the horse-goad, seven hundred with the craosho-charana!”[849]
The fire ordeal is also seen in the legend which relates how Sudabeh,
the favorite wife of Kai Kaoos, became enamored of his son Siawush, and
on his rejecting her advances accused him to his father of endeavoring
to seduce her. Kai Kaoos sent out a hundred caravans of dromedaries
to gather wood, of which two immense piles were built separated by a
passage barely admitting a horseman. These were soaked with naphtha and
fired in a hundred places, when Siawush mounted on a charger, after an
invocation to God, rode through the flames and emerged without even
a discoloration of his garments. Sudabeh was sentenced to death, but
pardoned on the intercession of Siawush.[850] Another reminiscence of
the same ordeal may be traced among the crowd of fantastic legends with
which the career of Zoroaster is embroidered. It is related that when
an infant he was seized by the magicians, who foresaw their future
destruction at his hands, and was thrown upon a huge pile composed of
wood, naphtha, and sulphur, which was forthwith kindled; but, through
the interposition of Hormazd, “the devouring flame became as water, in
the midst of which slumbered the pearl of Zardusht.”[851]
In Pehlvi the judicial ordeal was known as _var nirang_, and
thirty-three doubtful conjunctures are enumerated as requiring its
employment. The ordinary form was the pouring of molten metal on the
body of the patient, though sometimes the heated substance was applied
to the tongue or the feet.[852] Of the former, a celebrated instance,
curiously anticipating the story told, as we shall see hereafter, of
Bishop Poppo when he converted the Danes, is related as a leading
incident in the reformation of the Mazdiasni religion when the Persian
monarchy was reconstructed by the Sassanids. Eighty thousand heretics
remained obstinate until Sapor I. was so urgent with his Magi to
procure their conversion that the Dustoor Adurabad offered to prove the
truth of orthodoxy by suffering eighteen pounds of melted copper to be
poured over his naked shoulders if the dissenters would agree to yield
their convictions in case he escaped unhurt. The bargain was agreed to,
and carried out with the happiest results. Not a hair of the Dustoor’s
body was singed by the rivulets of fiery metal, and the recusants were
gathered into the fold.[853]
Among the Hindu Aryans so thoroughly was the divine interposition
expected in the affairs of daily life that, according to the Manava
Dharma Sastra, if a witness, within a week after giving testimony,
should suffer from sickness, or undergo loss by fire, or the death of
a relation, it was held to be a manifestation of the divine wrath,
drawn down upon him in punishment for perjured testimony.[854] There
was, therefore, no inducement to abandon the resource of the ordeal, of
which traces may be found as far back as the Vedic period, in the forms
both of fire and red-hot iron.[855] In the Ramayana, when Rama, the
incarnate Vishnu, distrusts the purity of his beloved Sita, whom he has
rescued from the Rakshasha Ravana, she vindicates herself by mounting a
blazing pyre, from which she is rescued unhurt by the fire-god, Agni,
himself.[856] Manu declares, in the most absolute fashion—
“Let the judge cause him who is under trial to take fire in his
hand, or to plunge in water, or to touch separately the heads of his
children and of his wife.
“Whom the flame burneth not, whom the water rejects not from its
depths, whom misfortune overtakes not speedily, his oath shall be
received as undoubted.
“When the Rishi Vatsa was accused by his young half-brother, who
stigmatized him as the son of a Sudra, he swore that it was false,
and, passing through fire, proved the truth of his oath; the fire,
which attests the guilt and the innocence of all men, harmed not a
hair of his head, for he spake the truth.”
And the practical application of the rule is seen in the injunction on
both plaintiff and defendant to undergo the ordeal, even in certain
civil cases.[857]
In the more developed code of Vishnu we find the ordeal system
exceedingly complicated, pervading every branch of jurisprudence and
only limited by the amount at stake or the character or caste of the
defendant.[858] Yet Hindu antiquity is so remote and there have been
so many schools of teachers that the custom apparently did not prevail
in all times and places. One of the most ancient books of law is the
Dharmasastra of Gautama, who says nothing of ordeals and relies for
proof wholly on the evidence of witnesses, adding the very relaxed rule
that “No guilt is incurred in giving false evidence in case the life of
a man depends thereon.”[859]
This, however, is exceptional, and the ordeal maintained its existence
from the most ancient periods to modern times. Under the name of
_purrikeh_, or _parikyah_, it is prescribed in the native Hindu law
in all cases, civil and criminal, which cannot be determined by
written or oral evidence, or by oath, and is sometimes incumbent upon
the plaintiff and sometimes upon the defendant. In its various forms
it bears so marked a resemblance to the judgments of God current in
mediæval Europe that the further consideration of its use in India may
be more conveniently deferred till we come to discuss its varieties in
detail, except to add that in Hindu, as in Christian courts, it has
always been a religious as well as a judicial ceremony, conducted in
the presence of Brahmans, and with the use of invocations to the higher
powers.[860]
* * * * *
Buddhism naturally followed the legal institutions which it found
established, and accepted the ordeal, though it could scarce form a
logical incident in the great system of transmigration whereby the good
and evil of the universe distributed itself automatically, without
supervision from the thirty-two heavens. We have seen the influence
which Buddhism exercised on Chinese materialism, and Tibetan Shamanism
could hardly expect to escape it. Thus in Tibet we find the hot water
ordeal assume a form which is literally even-handed, and which, if
generally enforced, must exert a happily repressive influence over
litigation. Both plaintiff and defendant thrust their arms into a
caldron of boiling water containing a black and a white stone, the
verdict being in favor of him who brings up the white.[861]
* * * * *
The Hellenic tribes had already, in prehistoric times, reached a point
of mental development superior to the grosser forms of the ordeal as a
recognized instrument of judicial investigation. These were replaced,
as we have seen in Egypt, by habitual resort to oracles, but that some
recollection of the ancestral practices was handed down to later ages
is shown by the allusions in the Antigone of Sophocles, when the guards
protest to Creon their innocence as to the burial of Polynices, and
offer to prove it by the ordeal:—
“Ready with hands to bear the red-hot iron,
To pass through fire, and by the gods to swear
That we nor did the deed, nor do we know
Who counselled it, or who performed it” (264-267).
And a remnant of the primæval customs was preserved in the solemnities
under which litigation was sometimes determined by one of the parties
taking an oath on the heads of his children, or with curses on himself
and his family, or passing through fire.[862] The poison ordeal, also,
was not wholly obsolete. The Gæum or temple of the broad-breasted
Earth, Gæa Eurysternus, at Ægæ in Achaia, was served by a priestess
who, though not necessarily a virgin, was yet required to preserve
strict celibacy when once invested with her sacred functions. If
any doubts arose as to her virtue, it was tested with a draught of
bull’s blood, which speedily wrought her punishment if she was guilty.
The same temple also furnished an illustration of ascertaining the
divine will by means of the lot, for when a vacancy occurred in the
priestship, and there were several applicants, the choice between them
was determined by a reference to chance.[863]
Even these traces of the ancient customs of the race disappear among
the Latins, though they preserved in full force the habits of thought
from which the ordeal took its rise. This is seen in the most solemn
form of imprecation known to the Romans as lending irrevocable force
to promissory oaths—the “Jovem lapidem jurare,”—whether we take the
ceremony mentioned by Festus, of casting a stone from the hand while
adjuring Jupiter to reject in like manner the swearer if he should
prove forsworn, or the form described by Livy as preceding the combat
between the Horatii and Curiatii, in which a victim was knocked on
the head with a stone under a somewhat similar invocation.[864] Even
without this ceremony, imprecatory oaths were used which were based
on the belief that the gods would take men at their word and punish
them, for forswearing themselves, with the evils which they thus
invoked. Thus, after the battle of Cannæ, P. Cornelius Scipio forced
the nobles who were plotting to leave Italy to abandon their design
and take an oath in which they adjured Jupiter to visit them and all
belonging to them with the worst of deaths if they proved false.[865]
In the legends of Rome, moreover, sporadic instances may be found of
special miraculous interposition to decide the question of innocence
or guilt, when the gods properly appealed to would intervene to save
their worshippers. These manifestations were principally vouchsafed in
favor of the Vestals, as when the pupil of Æmilia was accused of having
allowed the sacred fire to be extinguished, and was preserved by its
spontaneous ignition on her placing the skirt of her garment upon the
altar; or when Tucca, falsely arraigned for unchastity, vindicated her
purity by carrying water in a sieve; or when Claudia Quinta, under a
similar charge, made good her defence by dragging, with a slender cord,
a ship against the rapid current of the Tiber after it had run aground
and resisted all efforts to move it—and this with an invocation to the
goddess to absolve or condemn her, as she was innocent or guilty, which
gives to the affair a marked resemblance to an established form of
judicial ordeal.[866] Occasional instances such as these had, however,
no influence on the forms and principles of Roman jurisprudence, which
was based on reason and not on superstition. With the exception of the
use of torture, as we shall see hereafter, the accused was not required
to exculpate himself. He was presumed to be innocent, and the burden
of proof lay not on him but on the prosecutor. The maxim of the civil
law—“Accusatore non probante, reus absolvitur”—is entirely incompatible
with the whole theory upon which the system of ordeals is based.[867]
* * * * *
The barbarian Aryans who occupied Europe brought with them the
ancestral beliefs in a form more easily recognizable than the remnants
which survived through Hellenic and Italiote civilization. The Feini,
or Irish Celts, boasted that their ancient Brehons, or judges, were
warned by supernatural manifestations as to the equity of the judgments
which they rendered. Sometimes these took the shape of blotches on
their cheeks when they pronounced false judgments. Sen Mac Aige was
subject to these marks, but with him they disappeared when he decided
righteously, while Sencha Mac Aillila was less fortunate, for he
was visited with three permanent blotches for each mistake. Fachtna
received the surname of Tulbrethach because, whenever he delivered
a false judgment, “if in the time of fruit, all the fruit in the
territory in which it happened fell off in one night; if in time of
milk, the cows refused their calves; but if he passed a true judgment,
the fruit was perfect on the trees.” Morann never pronounced a judgment
without wearing around his neck a chain, which tightened upon him if
the judgment was false, but expanded down upon him if it were true.
These quaint legends have their interest as manifesting the importance
attached by the ancient Irish to the impartial administration of
absolute justice, and the belief entertained that a supernatural power
was ever on the watch over the tribunals, but these manifestations were
too late to arrest injustice, as they did not occur until after it was
committed. The Feini therefore did not abandon the ancient resource
of the ordeal, as is shown by a provision in the Senchus Mor, which
grants a delay of ten days to a man obliged to undergo the test of
boiling water.[868] The Celts of the Rhinelands also had a local custom
of determining the legitimacy of children by an ordeal of the purest
chance, which became a common-place of Roman rhetoric, and is thus
described in the Anthology:—
Θαρσαλέοι Κελτοὶ ποταμῷ ζηλήμονι Ρήνω χ. τ. λ.
Upon the waters of the jealous Rhine
The savage Celts their children cast, nor own
Themselves as fathers till the power divine
Of the chaste river shall the truth make known.
Scarce breathed its first faint cry, the husband tears
Away the new-born babe, and to the wave
Commits it on his shield, nor for it cares
Till the wife-judging stream the infant save,
And prove himself the sire. All trembling lies
The mother, racked with anguish, knowing well
The truth, but forced to risk her cherished prize
On the inconstant waters’ reckless swell.[869]
The Teutonic tribes, anterior to their conversion, likewise exhibit the
ordeal as a recognized resource in judicial proceedings. The Norræna
branch, as we have seen, cultivated the _holm-gang_, or duel, with
ardor, and they likewise employed the hot-water ordeal, besides a
milder form peculiar to themselves entitled the _skirsla_, in which one
of the parties to a suit could prove the truth of his oath by passing
under a strip of turf raised so that it formed an arch with each end
resting on the ground, the belief being that if he had forsworn himself
the turf would fall on him as he passed beneath it.[870] The Germanic
tribes, in their earliest jurisprudence, afford similar evidence of
adherence to the customs of their eastern brethren. The most ancient
extant recension of the Salic law may safely be assumed as coeval with
the conversion of Clovis, as it is free from all allusions to Christian
rules, such as appear in the later versions, and in this the trial
by boiling water finds its place as a judicial process in regular
use.[871] Among the Bavarians, the decree of Duke Tassilo in 772
condemns as a relic of pagan rites a custom named _stapfsaken_, used in
cases of disputed debt, which is evidently a kind of ordeal from the
formula employed, “Let us stretch forth our right hands to the just
judgment of God!”[872]
The Slavs equally bear witness to the ancestral practice of the ordeal
as a judicial process. The _prauda jeliezo_, or hot-iron ordeal, was in
use among them in early times.[873] In Bohemia, the laws of Brzetislas,
promulgated in 1039, make no allusion to any other form of evidence
in contested cases, while in Russia it was the final resort in all
prosecutions for murder, theft, and false accusation.[874]
As the Barbarians established themselves on the ruins of the Roman
Empire and embraced Christianity they, with one exception, cultivated
the institution of the ordeal with increased ardor. This exception
is found in the Gothic nations, and is ascribable, as we have seen
when treating of the judicial combat, to the influence of the Roman
customs and laws which they adopted. For nearly two centuries after
their settlement, there is no allusion in their body of laws to any
form of ordeal. It was not until 693, long after the destruction of
their supremacy in the south of France, and but little prior to their
overthrow in Spain by the Saracens, that King Egiza, with the sanction
of a Council of Toledo, issued an edict commanding the employment of
the _æneum_ or ordeal of boiling water.[875]
Various causes were at work among the other tribes to stimulate the
favor with which the ordeal was regarded. As respects the wager of
battle I have already traced its career as a peculiarly European form
of the Judgment of God, which was fostered by the advantage which it
gave, in the times of nascent feudalism, to the bold and reckless. With
regard to the other forms, one reason for their increased prevalence is
doubtless to be found in the universal principle of the Barbarians, in
their successive settlements, to allow all races to retain their own
jurisprudence, however much individuals might be intermingled, socially
and politically. The confusion to which this gave birth is well set
forth by St. Agobard, when he remarks that frequently five men shall be
found in close companionship, each one owning obedience to a different
law. He also states that under the Burgundian rules of procedure, no
one was allowed to bear witness against a man of different race.[876]
Under these circumstances, in a large proportion of cases there could
be no legal evidence attainable, and recourse was had of necessity to
the Judgment of God. Even when this rule was not in force, a man who
appealed to Heaven against the testimony of a witness of different
origin would be apt to find the court disposed to grant his request. If
the judge, moreover, was a compatriot of one of the pleaders, the other
would naturally distrust his impartiality, and would prefer to have
the case decided by the Omniscient whose direct interposition he was
taught to regard as undoubted. That the assumed fairness of the ordeal
was highly prized under such circumstances we have evidence in the
provisions of a treaty between the Welsh and the Saxons, about the year
1000, according to which all questions between individuals of the two
races were to be settled in this manner, in the absence of a special
agreement between the parties.[877]
The most efficient cause of the increased use of the ordeal was,
however, to be found in the Church. With her customary tact, in
converting the Barbarians, she adopted such of their customs as she
could adapt to Christian belief and practice; and she accepted the
ordeal as an undoubted appeal to God, whose response was regarded as
unquestionable, warrant being easily found for this in the Jewish
practices already described. The pagan ceremonies were moulded into
Christian rites, and the most solemn forms of religion were thrown
around the rude expedients invented thousands of years before by
the Bactrian nomads. Elaborate rituals were constructed, including
celebration of mass and impressive prayers, adjurations and exorcisms
of the person to undergo the trial and of the materials used in it,
and the most implicit faith was inculcated in the interposition of
God to defend the right and to punish guilt.[878] The administration
of the ordeal being thus reserved for priestly hands, the Church
acquired a vastly increased influence as the minister of justice, to
say nothing of the revenues thence arising, and the facility with which
ecclesiastics could thus defend themselves when legally assailed by
their turbulent flocks. We are not without evidence of the manner in
which the church thus favored the use of this Christianized paganism,
and introduced it along with Christianity among people to whom it
was previously unknown. Thus among the Turanian Majjars, the laws of
King Stephen, promulgated in 1216, soon after his conversion, contain
no allusion to the ordeal, but in those of Ladislas and Coloman,
issued towards the end of the century, it is found, in its various
forms, thoroughly established as a means of legal proof.[879] So,
when in the twelfth century Bishop Geroldus converted the Slavs of
Mecklenburg, they were at once forbidden to settle questions by oaths
taken on trees, fountains, and stones, as before, but were required to
bring their criminals before the priest to be tried by the hot iron
or ploughshares.[880] Under the Crusaders, the ordeal was carried
back towards the home of its birth, even contaminating the Byzantine
civilization, and various instances of its use are related by the
historians of the Lower Empire to a period as late as the middle of the
fourteenth century.
The ingenuity of the church and the superstition of the people
increased somewhat the varieties of the ordeal which we have seen
employed in the East. Besides the judicial combat, the modes by which
the will of Heaven was ascertained may be classed as the ordeal of
boiling water, of red-hot iron, of fire, of cold water, of the balance,
of the cross, of the _corsnœd_ or swallowing bread or cheese, of the
Eucharist, of the lot, bier-right, oaths on relics, and poison ordeals.
In some of these, it will be seen, a miraculous interposition was
required for an acquittal, in others for a condemnation; some depended
altogether on volition, others on the purest chance; while others,
again, derived their efficacy from the influence exerted over the mind
of the patient.