Superstition and Force Essays on the Wager of Law, the Wager of Battle, the Ordeal, Torture

[138] Nam nulli liceat, postquam manifestaverit, postea per sacramentum negare, quod non sit culpabilis, postquam ille se culpabilem assignavit. Quia multos cognovimus in regno...

A system of procedure which entailed results so deplorable as those which we have seen accompany it everywhere, could scarcely fail to arouse the opposition of thinking men who...

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...

Charles V. was too astute a ruler not to recognize the aid derivable from the doctrines of the Roman law in his scheme of restoring the preponderance of the Kaisership, and he l...

The latter half of the twelfth century saw the study of the civil law prosecuted with intense ardor, and, in the beginning of the thirteenth, Innocent III. struck a fatal blow a...

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 t...

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...

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...

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.[...

The absence of torture from the codes of the elder Aryan races is not to be attributed to any inherent objection to its use, but rather to the employment of the ordeal, which in...

The cold-water ordeal (_judicium aquæ frigidæ_) differed from most of its congeners in requiring a miracle to convict the accused, as in the natural order of things he escaped....

The ordeal of fire, administered directly, without the intervention either of water or of iron, is one of the most ancient forms, as is shown by the allusions to it in both the...

In almost all ages there has existed the belief that under the divine influence the human frame was able to resist the action of fire. Even the sceptic Pliny seems to share the...

The ordeal was thoroughly and completely a judicial process, ordained by the law for certain cases, and carried out by the tribunals as a regular form of ordinary procedure. Fro...

Of all the Barbarian tribes, none showed themselves so amenable to the influences of Roman civilization as the Goths. Their comparatively settled habits, their early conversion...

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...

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 c...

The relation of the Church to the vulgar ordeals presents even a more complex question than that which has already been discussed of its connection with the judicial combat. The...

In this long history of legalized cruelty and wrong the races of northern Europe are mostly exceptional. Yet it is somewhat remarkable that the first regular mediæval code in wh...

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 a...

During this period, while Central and Western Europe had advanced with such rapid strides of enlightenment, the inquisitorial process, based upon torture, had become the groundw...

The belief that at the approach of the murderer the corpse of the slain would bleed or give some other sign has, under the names of _jus feretri_, _jus cruentationis_, _bahr-rec...

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 on...

The ordeal of boiling water (_æneum, judicium aquæ ferventis, cacabus, caldaria_) is the one usually referred to in the most ancient texts of laws. It was a favorite both with t...

The degree of confidence really inspired by the results of the ordeal is a somewhat curious subject of speculation on which definite opinions are not easily reached. Judicially,...

The 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 se...

In turning to the other barbarian races which inherited the fragments of the Roman empire, we find that the introduction of torture as a recognized and legal mode of investigati...

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...

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 trans...

From ancient times in India there has been in common use an ordeal known as _cosha_, consisting of water in which an idol has been washed. The priest celebrates solemn rites “to...

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 e...

Enlightened legislators were not slow in seconding the efforts of the papacy. Perhaps the earliest instance of secular legislation directed against the ordeal, except some chart...

The appeal to chance, as practised in India, bears several forms, substantially identical in principle. One mode consists in writing the words _dherem_ (consciousness of innocen...

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 l...

In turning from the nicely poised and elaborate provisions of the Imperial laws to the crude jurisprudence of the Barbarian hordes who gradually inherited the crumbling remains...

The devout dependence upon Heaven, exhibited in the ordeal, did not exhaust itself on the forms of trial described above, but was manifested in various other expedients, sometim...

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...

The ordeal of consecrated bread or cheese (_judicium offæ, panis conjuratio, pabulum probationis_, the _corsnæd_ of the Anglo-Saxons) was administered by presenting to the accus...

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...

The oath naturally formed an integral portion of the ordeal. Even as in the battle trial both parties, on entering the lists, were compelled to swear to the truth of their asser...

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 cat...

The preceding essays have traced the development of sacramental purgation and of the ordeal as resources devised by human ingenuity and credulity when called upon to decide ques...

The ordeal of the cross (_judicium crucis, stare ad crucem_) was one of simple endurance and differed from all its congeners, except the duel, in being bilateral. The plaintiff...

We have seen above that a belief existed that persons guilty of sorcery lost their specific gravity, and this superstition naturally led to the use of the balance in the effort...

The poison ordeal, which forms the basis of judicial proceedings among so many of the African tribes, seems not to have been brought into Europe by the Aryan invaders, although...

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 S...

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 Firs...

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...

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...

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—Retentio...

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...

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...

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...

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...

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 w...

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 mo...

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 u...

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 eccl...

Originally kinsmen 179 Employment of champions becomes general 180 Hired champions were originally witnesses 182 Punishment for defeated champions 184 Professional champions—the...

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 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

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 m...