CHAPTER XVIII.

REPRESSIVE SECULAR LEGISLATION.

Enlightened legislators were not slow in seconding the efforts of the papacy. Perhaps the earliest instance of secular legislation directed against the ordeal, except some charters granted to communes, is an edict of Philip Augustus in 1200, bestowing certain privileges on the scholars of the University of Paris, by which he ordered that a citizen accused of assaulting a student shall not be allowed to defend himself either by the duel or the water ordeal.[1350] In England, a rescript of Henry III., dated January 27, 1219, directs the judges then starting on their circuits to employ other modes of proof—“seeing that the judgment of fire and water is forbidden by the Church of Rome.”[1351] A few charters and confirmations, dated some years subsequently, allude to the privilege of administering it; but Matthew of Westminster, when enumerating, under date of 1250, the remarkable events of the half century, specifies its abrogation as one of the occurrences to be noted,[1352] and we may conclude that thenceforth it was practically abandoned throughout the kingdom. This is confirmed by the fact that Bracton, whose treatise was written a few years later, refers only to the wager of battle as a legal procedure, and, when alluding to other forms, speaks of them as things of the past. About the same time, Alexander II. of Scotland forbade its use in cases of theft.[1353] Nearly contemporary was the Neapolitan Code, promulgated in 1231, by authority of the Emperor Frederic II., in which he not only prohibits the use of the ordeal in all cases, but ridicules, in a very curious passage, the folly of those who could place confidence in it.[1354] We may conclude, however, that this was not effectual in eradicating it, for, fifty years later, Charles of Anjou found it necessary to repeat the injunction.[1355] About the same time, Waldemar II. of Denmark, Hako Hakonsen of Iceland and Norway; and soon afterwards Birger Jarl of Sweden, followed the example.[1356] In Frisia we learn that the inhabitants still refused to obey the papal mandates, and insisted on retaining the red-hot iron, a contumacy which Emo, the contemporary Abbot of Wittewerum, cites as one of the causes of the terrible inundation of 1219;[1357] though a century later the Laws of Upstallesboom show that ordeals of all kinds had fallen into desuetude.[1358] In France, we find no formal abrogation promulgated; but the contempt into which the system had fallen is abundantly proved by the fact that in the ordinances and books of practice issued during the latter half of the century, such as the _Établissements_ of St. Louis, the _Conseil_ of Pierre de Fontaines, the _Coutumes du Beauvoisis_ of Beaumanoir, and the _Livres de Jostice et de Plet_, its existence is not recognized even by a prohibitory allusion, the judicial duel thenceforward monopolizing the province of irregular evidence. Indeed, a Latin version of the Coutumier of Normandy, dating about the middle of the thirteenth century, or a little earlier, speaks of it as a mode of proof formerly employed in cases where one of the parties was a woman who could find no champion to undergo the wager of battle, adding that it had been forbidden by the Church, and that such cases were then determined by inquests.[1359]

Germany was more tardy in yielding to the mandates of the Church. The Teutonic knights who wielded their proselyting swords in the Marches of Prussia introduced the ordeal among other Christian observances, and in 1222 Honorius III., at the prayer of the Livonian converts, promulgated a decree by which he strictly interdicted its use for the future.[1360] Even in 1279 we find the Council of Buda, and in 1298 that of Wurzburg, obliged to repeat the prohibition uttered by that of Lateran.[1361] These commands enjoyed little respect, and the independent spirit of the Empire still refused obedience to the commands of the Church. It may probably be to Germany that Roger Bacon refers, about this time, when he speaks of the ordeals of red-hot iron and cold water being still in use by authority of the Church, and admits that the exorcisms employed in them by the priests may have virtue in the detection of guilt and acquittal of innocence.[1362] Even in the fourteenth century the ancestral customs were preserved in full vigor as regular modes of procedure in a manual of legal practice still extant. An accusation of homicide could be disproved only by the judicial combat, while in other felonies a man of bad repute had no other means of escape than by undergoing the trial by hot water or iron.[1363]

In Aragon, Don Jayme I. included the ordeal in his prohibition of the duel when framing laws for his Minorcan conquest in 1230, and that this was his settled policy is seen by a similar clause of the fuero of Huesca in 1247.[1364] In Castile and Leon, the charter of Medina de Pomar, granted in 1219 by Fernando III., provides that there shall be no trial by the hot-water ordeal,[1365] and that of Treviño in 1254, by Alfonso X., forbids all ordeals.[1366] Still the Council of Palencia, in 1322, was obliged to threaten with excommunication all concerned in administering the ordeal of fire or of water,[1367] which proves how little had been accomplished by the enlightened code of the “Partidas,” issued about 1260 by Alfonso the Wise. In this the burden of proof is expressly thrown upon the complainant, and no negative evidence is demanded of the defendant, who is specially exempted from the necessity of producing it;[1368] and although in obedience to the chivalrous spirit of the age, the battle ordeal is not abolished, yet it is so limited as to be practically a dead letter, while no other form of negative proof is even alluded to.

In Italy, even in the middle of the fifteenth century St. Antonino of Florence considers it necessary, in his instructions to confessors, to tell them that a judge who prescribes the combat or the red-hot iron commits mortal sin;[1369] and Angelo da Chiavasco, who died in 1485, requires confessors to inquire of penitents whether they have ordered or accepted the hot-iron ordeal.[1370] Even as late as 1599 G. Ferretti tells us that in some districts of Naples, inhabited by Epirotes, husbands who suspect their wives of adultery force them to prove their innocence by the ordeal of red-hot iron or boiling water.[1371]

Although the ordeal was thus removed from the admitted jurisprudence of Europe, the principles of faith which had given it vitality were too deeply implanted in the popular mind to be at once eradicated, and accordingly, as we have seen above, instances of its employment continued occasionally for several centuries to disgrace the tribunals. The ordeal of battle, indeed, as shown in the preceding essay, was not legally abrogated until long afterward; and the longevity of the popular belief, upon which the whole system was founded, may be gathered from a remark of Sir William Staundford, a learned judge and respectable legal authority, who, in 1557, expresses the same confident expectation of Divine interference which had animated Hincmar or Poppo. After stating that in an accusation of felony, unsupported by evidence, the defendant had a right to wager his battle, he proceeds: “Because in that the appellant demands judgment of death against the appellee, it is more reasonable that he should hazard his life with the defendant for the trial of it, than to put it on the country ... and to leave it to God, to whom all things are open, to give the verdict in such case, _scilicet_, by attributing the victory or vanquishment to the one party or the other, as it pleaseth Him.”[1372] Nearly about the same time, Ciruelo, who for thirty years was Inquisitor at Saragossa, alludes to cases in which he had personally known of its employment, thus showing that it was in popular use, even though not prescribed by the law, in Spain during the middle of the sixteenth century.[1373] In Germany not long before the learned Aventinus showed plainly that the existing incredulity which treated all such reliance on God as insanity was much less to his taste than the pious trust which through ages of faith had led princes and prelates to place their hope in God and invoke him with all the solemnities of religion to decide where human wisdom was at fault.[1374]

* * * * *

While the prohibitions uttered by the papacy had undoubtedly much to do in influencing monarchs to abolish the ordeal, there were other causes of scarcely less weight working to the same end. The revival of the Roman law in the twelfth and thirteenth centuries and the introduction of torture as an unfailing expedient in doubtful cases did much to influence the secular tribunals against all ordeals. So, also, a powerful assistant must be recognized in the rise of the communes, whose sturdy common sense not infrequently rejected its absurdity. These influences, however, have been discussed at some length in the previous essay, and it is scarce worth while to repeat what has there been said, except to add that, as a recognized legal procedure, the ordeal succumbed with a less prolonged struggle than the single combat.

Yet no definite period can be assigned to the disappearance in any country of the appeals to Heaven handed down from our ancestors in the illimitable past. We have seen above how certain forms of the ordeal, such as bier-right and the trial by cold water, have lingered virtually to our own times, though long since displaced from the statute-book; and we should err if we deemed the prohibition of the system by lawgivers to be either the effect or the cause of a change in the constitution of the human mind. The mysterious attraction of the unknown, the striving for the unattainable, the yearning to connect our mortal nature with some supernal power—all these mixed motives assist in maintaining the superstitions which we have thus passed in review. Even though the external manifestations may have been swept away, the potent agencies which vivified them have remained, not perhaps less active because they work more secretly. One generation of follies after another, strangely affiliated, waits on the successive descendants of man, and perpetuates in another shape the superstition which seemed to be eradicated. In its most vulgar and abhorrent form, we recognize it in the fearful epidemic of sorcery and witchcraft which afflicted the sixteenth and seventeenth centuries; sublimed to the verge of heaven, we see it reappear in the seraphic theories of Quietism; descending again towards earth, it stimulates the mad vagaries of the Convulsionnaires. In a different guise, it leads the refined scepticism of the eighteenth century to a belief in the supernatural powers of the divining rod, which could not only trace out hidden springs and deep-buried mines, but could also discover crime, and follow the malefactor through all the doublings of his cunning flight.[1375] Even at the present day, as various references in the preceding pages sufficiently attest, there is a lurking undercurrent of superstition which occasionally rises into view and shows that we are not yet exempt from the weakness of the past. Each age has its own sins and follies to answer for—happiest that which best succeeds in hiding them, for it can scarce do more. Here, at the close of the nineteenth century, when the triumph of human intelligence over the forces of nature, stimulating the progress of material prosperity, has deluded us into sacrificing our psychical to our intellectual being—even here the duality of our nature reasserts itself, and in the crudity of Mormonism and in the fantastic mysteries of spiritism we see a protest against the despotism of mere reason. If we wonder at these perversions of our noblest attributes, we must remember that the intensity of the reaction measures the original strain, and in the insanities of the day we thus may learn how utterly we have forgotten the Divine warning, “Man shall not live by bread alone!”

IV.

TORTURE.