CHAPTER X.

DECLINE OF THE TORTURE SYSTEM.

A system of procedure which entailed results so deplorable as those which we have seen accompany it everywhere, could scarcely fail to arouse the opposition of thinking men who were not swayed by reverence for precedent or carried away by popular impulses. Accordingly, an occasional voice was raised in denunciation of the use of torture. Geiler von Kaisersberg, the most popular preacher of his time in Germany, who died in 1510, endeavored to procure its disuse, as well as to mitigate the cruelties practised upon prisoners.[1845] The Spaniard, Juan Luis Vives, one of the profoundest scholars of the sixteenth century, condemned it as useless and inhuman.[1846] The sceptic of the period, Montaigne, was too cool and clear-headed not to appreciate the vicious principle on which it was based, and he did not hesitate to stamp it with his reprobation. “To tell the truth, it is a means full of uncertainty and danger; what would we not say, what would we not do to escape suffering so poignant? whence it happens that when a judge tortures a prisoner for the purpose of not putting an innocent man to death, he puts him to death both innocent and tortured.... Are you not unjust when, to save him from being killed, you do worse than kill him?”[1847] In 1624, the learned Johann Gräfe, in his _Tribunal Reformatum_, argued forcibly in favor of its abolition, having had, it is said, practical experience of its horrors during his persecution for Arminianism by the Calvinists of Holland, and his book attracted sufficient attention to be repeatedly reprinted.[1848] Friedrich Keller, in 1657, at the University of Strassburg, presented a well-reasoned thesis urging its disuse, which was reprinted in 1688, although the title which he prefixed to it shows that he scarce dared to assume the responsibility for its unpopular doctrines.[1849] When the French Ordonnance of 1670 was in preparation, various magistrates of the highest character and largest experience gave it as their fixed opinion that torture was useless, that it rarely succeeded in eliciting the truth from the accused, and that it ought to be abolished.[1850] Towards the close of the century, various writers took up the question. The best known of these was perhaps Augustin Nicolas, who has been frequently referred to above, and who argued with more zeal and learning than skill against the whole system, but especially against it as applied in cases of witchcraft.[1851] In 1692, von Boden, in a work alluded to in the preceding pages, inveighed against its abuses, while admitting its utility in many classes of crimes. Bayle, not long after, in his Dictionary, condemned it in his usual indirect and suggestive manner.[1852] In 1705, at the University of Halle, Martin Bernhardi of Pomerania, a candidate for the doctorate, in his inaugural thesis, argued with much vigor in favor of abolishing it, and the dean of the faculty, Christian Thomas, acknowledged the validity of his reasoning, though expressing doubts as to the practicability of a sudden reform. Bernhardi states that in his time it was no longer employed in Holland, and its disuse in Utrecht he attributes to a case in which a thief procured the execution, after due torture and confession, of a shoemaker, against whom he had brought a false charge in revenge for the refusal of a pair of boots.[1853] His assertion, however, is too general, for it was not until the formation of the Republic of the Netherlands, in 1798, that it was formally abolished.[1854]

These efforts had little effect, but they manifest the progress of enlightenment, and doubtless paved the way for change, especially in the Prussian territories. Yet, in 1730, we find the learned Baron Senckenberg reproducing Zanger’s treatise, not as an archæological curiosity, but as a practical text-book for the guidance of lawyers and judges. Meanwhile the propriety of the system continued to be a subject of discussion in the schools, with ample expenditure of learning on both sides.[1855] In 1733, at Leipzig, Moritz August Engel read a thesis, which called forth much applause, in which he undertook to defend the use of torture against the dictum of Christian Thomas nearly thirty years before.[1856] The argument employed is based on the theory of the criminal jurisprudence of the time, in which the guilt of the accused is taken for granted and the burden thrown upon him of proving himself innocent. Engel declares that in all well-ordered States torture is rightfully employed; those who are innocent and are the victims of suspicious circumstances have only themselves to blame for their imprudence, and must make allowance for the imperfections of human reason; and he airily disposes of the injustice of the system by declaring that the State need not care if an innocent man is occasionally tortured, for no human ordinance can be expected to be free from occasional drawbacks. Another disputant on the same side meets the argument that the different sensibilities of individuals rendered torture uncertain, by boasting that in the Duchy of Zerbst the executioner had invented an instrument which would wring a confession out of the most hardened and robust.[1857] It was shortly after this, however, that the process of reform began in earnest. Frederic the Great succeeded to the throne of Prussia May 31, 1740. Few of his projects of universal philanthropy and philosophical regeneration of human nature survived the hardening experiences of royal ambition, but while his power was yet in its first bloom he made haste to get rid of this relic of unreasoning cruelty. It was almost his earliest official act, for the cabinet order abolishing torture is dated June 3d.[1858] Yet even Frederic could not absolutely shake off the traditional belief in its necessity when the safety of the State or of the head of the State was concerned. Treason and rebellion and some other atrocious crimes were excepted from the reform; and in 1752, at the instance of his high chancellor, Cocceji, by a special rescript, he ordered two citizens of Oschersleben to be tortured on suspicion of robbery.[1859] With singular inconsistency, moreover, torture in a modified form was long permitted in Prussia, not precisely as a means of investigation, but as a sort of punishment for obdurate prisoners who would not confess, and as a means of marking them for subsequent recognition.[1860] It is evident that the abrogation of torture did not carry with it the removal of the evils of the inquisitorial process.

When the royal philosopher of Europe thus halted in the reform, it is not singular that his example did not put an end to the controversy as to the abolition of torture elsewhere. German jurisprudence, in fact, was not provided with substitutes, and legists trained in the inquisitorial process might well hesitate to abandon a system with which they were familiar in order to enter upon a region of untried experiment for which there was no provision in the institutions or the ancestral customs of the land. These natural doubts are well expressed by Gerstlacher, who, in 1753, published a temperate and argumentative defence of torture. He enumerates the substitutes which had been proposed by his opponents, and if he does them no injustice, the judges of the day might naturally feel indisposed to experiments so crude and illogical. It seems that the alternatives offered for the decision of cases in which the accused could not be convicted by external evidence reduced themselves to four—to dismiss him without a sentence either of acquittal or conviction, to make him take an oath of purgation, to give him an extraordinary (that is to say, a less) penalty than that provided for the crime, and, lastly, to imprison him or send him to the galleys or other hard labor, proportioned to the degree of the evidence against him, until he should confess.[1861]

In Saxony, as early as 1714, an Electoral Rescript had restricted jurisdiction over torture to the magistrates of Leipzig, to whom all proceedings in criminal prosecutions had to be submitted for examination prior to their confirmation of the decision of the local tribunals to employ it.[1862] This must have greatly reduced the amount of wrong and suffering caused by the system, and thus modified it continued to exist until, in the remodelling of the Saxon criminal law, between 1770 and 1783, the whole apparatus of torture was swept away. In Austria the _Constitutio Criminalis Theresiana_, issued in 1769 by Maria Theresa, still contains elaborate instructions as to the administration of torture, with careful descriptions and illustrations of the implements in use and the methods of employing them;[1863] but the enlightenment of Joseph II., soon after his accession in 1780, put an end to the barbarism, and in Switzerland about the same time it was similarly disused. In Russia, the Empress Catherine, in 1762, removed it from the jurisdiction of the inferior courts, where it had been greatly abused; in 1767, by a secret order, it was restricted to cases in which the confession of the accused proved actually indispensable, and even in these it was only permitted under the special command of governors of provinces.[1864] In the singularly enlightened instructions which she drew up for the framing of a new code in 1767, the use of torture was earnestly argued against in a manner which betrays the influence of Beccaria.[1865] Under these auspices it soon became almost obsolete, and it was finally abolished in 1801. Yet, in some of the States of central Europe, the progress of enlightenment was wonderfully slow. Torture continued to disgrace the jurisprudence of Würtemberg and Bavaria until 1806 and 1807. Though the wars of Napoleon abolished it temporarily in other States, on his fall in 1814 it was actually restored. In 1819, however, George IV. consented, at the request of his subjects, to dispense with it in Hanover; while in Baden it continued to exist until 1831. Yet legists who had been trained in the old school could not admit the soundness of modern ideas, and in the greater part of Germany the theories which resulted in the use of torture continued to prevail. The secret inquisitorial process was retained and the principle that the confession of the accused was requisite to his condemnation. Torture of some kind is necessary to render the practical application of this system efficacious, and accordingly, though the rack and strappado were abolished, their place was taken by other modes in reality not less cruel. When appearances were against the prisoner, he was confined for an indefinite period and subjected to all the hard usage to be expected from officials provoked by his criminal obstinacy. He was brought up repeatedly before his judge and exposed to the most searching interrogatories and terrified with threats. Legists, unwilling to abandon the powerful weapon which had placed every accused person at their mercy, imagined a new justification for its revival. It was held that every criminal owed to society a full and free confession. His refusal to do this was a crime, so that if his answers were unsatisfactory to the judge the latter could punish him on the spot for contumacy. As this punishment was usually administered with the scourge, it will be seen that the abolition of torture was illusory, and that the worst abuses to which it gave rise were carefully retained.[1866] Indeed, if we are to accept literally some letters of M. A. Eubule-Evans in the London “Times” of 1872, the _Untersuchungschaft_ or inquisitorial process as employed in Prussia to the present day lacks little of the worst abuses recorded by Sprenger and Bodin. The accused while under detention is subjected to both physical and moral torture, and is carefully watched by spies. In the prison of Bruchsal there is a machine to which the prisoner is attached by leather thongs passed around head, trunk, and limbs, and drawn so tight that the arrested circulation forces the blood from mouth and ears; or he is confined, perhaps for a week at a time, in a small cell of which floor and sides are covered with sharp wooden wedges, rivalling the fragments of potsherds which Prudentius considered the crowning effort of devilish ingenuity for the torture of Christian martyrs.

Spain, as may readily be imagined, was in no haste to reform the ancient system of procedure. As late as 1796, in the Vice-royalty of New Granada, when the spread of the ideas of the French Revolution began to infect society, some pasquinades appeared in Santafé displeasing to the government. Though the Viceroy Ezpeleta was regarded as a singularly enlightened man, he had a number of persons arrested on suspicion, one of whom was put to the torture to discover the author of the obnoxious epigrams. It is satisfactory to know that although several of the accused were convicted and sent to Spain to serve out long terms of punishment, on their arrival at Madrid they were all discharged and compensated.[1867] After the revolution, the authorized use of torture was abolished, but as recently as 1879 its application, by various methods showing skill and experience in its use, on an American citizen falsely accused of theft, led to a correspondence between the governments of Venezuela and the United States, recorded in the journals of the time.

In the mother country the employment of torture, though becoming rarer as the eighteenth century neared its end, continued legal until the overthrow of the old monarchy, and it was not abolished until the Cortes of Cadiz in 1811 revolutionized all the institutions of the nation. In the reaction which followed the return of the Bourbons it was not reinstated, but moderated appliances known as _apremios_—which were sometimes as severe as the rack or the pulley—continued to be used, especially in political offences, by the arbitrary despotism of the Restoration.[1868]

Even France had maintained a conservatism which may seem surprising in that centre of the philosophic speculation of the eighteenth century. Her leading writers had not hesitated to condemn the use of torture. In the _Esprit des Lois_, in 1748, Montesquieu stamped his reprobation on the system with a quiet significance which showed that he had on his side all the great thinkers of the age, and that he felt argument to be mere surplusage.[1869] Voltaire did not allow its absurdities and incongruities to escape. In 1765 he endeavored to arouse public opinion on the case of the Chevalier de la Barre, a youthful officer only twenty years of age, who was tortured and executed on an accusation of having recited a song insulting to Mary Magdalen and of having mutilated with his sword a wooden crucifix on the bridge of Abbeville.[1870] He was more successful in attracting the attention of all Europe to the celebrated _affaire Calas_ which, in 1761, had furnished a notable example of the useless cruelty of the system. In that year, at midnight of Oct. 13th, at Toulouse, the body of Marc-Antoine Calas was found strangled in the back shop of his father. The family were Protestants and the murdered man had given signs of conversion to Catholicism, in imitation of his younger brother. A minute investigation left scarcely a doubt that the murder had been committed by the father, from religious motives, and he was condemned to death. He appealed to the Parlement of Toulouse, which after a patient hearing sentenced him to the wheel, and to the _question ordinaire et extraordinaire_, to extract a confession. He underwent the extremity of torture and the hideous punishment of being broken alive without varying from his protestations of innocence. Though both trials appear to have been conducted with rigorous impartiality, the Protestantism of Europe saw in the affair the evidence of religious persecution, and a fearful outcry was raised. Voltaire, ever on the watch for means to promote toleration and freedom of thought, seized hold of it with tireless energy, and created so strong an agitation on the subject that in 1764 the supreme tribunal at Paris reversed the sentence, discharged the other members of the family, who had been subjected to various punishments, and rehabilitated the memory of Calas.[1871] When Louis XVI., at the opening of his reign, proposed to introduce many long-needed reforms, Voltaire took advantage of the occasion to address to him in 1777 an earnest request to include among them the disuse of torture;[1872] yet it was not until 1780 that the _question préparatoire_ was abolished by a royal edict which, in a few weighty lines, indicated that only the reverence for traditional usage had preserved it so long.[1873] This edict, however, was not strictly obeyed, and cases of the use of torture still occasionally occurred, as that of Marie Tison at Rouen, in 1788, accused of the murder of her husband, when thumb-screws were applied to both thumbs and at the same time she was hoisted in the strappado, in which she was allowed to hang for an hour after the executioner had reported that both shoulders were out of joint, all of which was insufficient to extract a confession.[1874] There evidently was occasion for another ordonnance, which in that same year, 1788, was promulgated in order to insure the observance of the previous one.[1875] In fact, when the States-General was convened in 1879, the _cahier des doléances_ of Valenciennes contained a prayer for the abolition of torture, showing that it had not as yet been discontinued there.[1876] The _question définitive_ or _préalable_, by which the prisoner after condemnation was again tortured to discover his accomplices, still remained until 1788, when it, too, was abolished, at least temporarily. It was pronounced uncertain, cruel to the convict and perplexing to the judge, and, above all, dangerous to the innocent whom the prisoner might name in the extremity of his agony to procure its cessation, and whom he would persist in accusing to preserve himself from its repetition. Yet, with strange inconsistency, the abolition of this cruel wrong was only provisional, and its restoration was threatened in a few years, if the tribunals should deem it necessary.[1877] When those few short years came around they dawned on a new France, from which the old systems had been swept away as by the besom of destruction; and torture as an element of criminal jurisprudence was a thing of the past. By the decree of October 9th, 1789, it was abolished forever.

In Italy, Beccaria, in 1764, took occasion to devote a few pages of his treatise on crimes and punishments to the subject of torture, and its illogical cruelty could not well be exposed with more terseness and force.[1878] It was probably due to the movement excited by this work that in 1786 torture was formally abolished in Tuscany. In this the enlightened Grand-duke Leopold was in advance of his time, and the despots who ruled the divided fractions of the peninsula, although they might be willing to banish torture from ordinary criminal jurisprudence, had too well-grounded a distrust of the fidelity of their subjects to divest themselves of this resource in the suppression of political offences. Hardly had the Bourbons, after the overthrow of Napoleon, been reseated on the throne of the Two Sicilies when the restless dissatisfaction of the people seemed to justify the severest measures for the maintenance of so-called order. The troubles of 1820 led to arming the police with exceptional and summary jurisdiction, under which it deemed itself authorized to employ any methods requisite to detect and punish conspirators. This continued until the revolution of 1848 aggravated the fears of absolutism, and from its suppression until the expedition of Garibaldi the régime of the Neapolitan dominions was an organized Terror. Grave as we have seen were the abuses of torture when systematized in the detection of crime, they were outstripped by the licensed cruelty of the ex-galley slaves of the Neapolitan police, who were restrained by no codes or rules of practice, and were eager to demonstrate their zeal by the number of their victims. The terrible secrets of the dungeons of Naples and Palermo may never see the light, but enough is known to show that they rivalled those of Ezzelin da Romano. Police agents competed in inventing new and hideous modes of inflicting pain. Neither age nor sex was spared. In one case an old man and his daughter, five months gone in pregnancy, died under the lash. If a suspected man took alarm and fled, his mother or his wife and daughters would be tortured to discover his hiding-place. The evil records of the dark ages have nothing to show more brutal and inhuman than the application of torture in Naples and Sicily in the second half of the nineteenth century.[1879]

That the mortal duel between autocracy and Nihilism in Russia should lead to the employment of torture in unravelling the desperate conspiracies of the malcontents is so natural that we may readily accept the current assertions of the fact. The conspirators are said frequently to carry poison in order, if arrested, to save themselves from endless torment and the risk of being forced to betray associates, and the friends of prisoners spare no effort to convey to them some deadly drug by means of which they may escape the infliction. Polish aspirations for liberty are repressed in the same manner, and in 1890 the journal’s recorded the case of Ladislas Guisbert, rendered insane by the prolonged administration of Marsigli’s favorite torment of sleeplessness.

So long as human nature retains its imperfections the baffled impatience of the strong will be apt to wreak its vengeance on the weak and defenceless. As recently as 1867, in Texas, the Jefferson “Times” records a case in which, under the auspices of the military authorities, torture was applied to two negroes suspected of purloining a considerable amount of money which had been lost by a revenue collector. More recently still, in September, 1868, the London journals report fearful barbarities perpetrated by the Postmaster-General of Roumania to trace the authors of a mail robbery. A woman was hung to a beam with hot eggs under the armpits; others were burned with grease and petroleum, while others again were tied by the hair to horses’ tails and dragged through thorn bushes. It must be added that the offending officials were promptly dismissed and committed for trial. A still more recent case is one which has been the subject of legislative discussion in Switzerland, where it appears that in the Canton of Zug, under order of court, a man suspected of theft was put on bread and water from Oct. 26th to Nov. 10th, 1869, to extort confession, and when this failed he was subjected to thumb-screws and beaten with rods.

* * * * *

In casting a retrospective glance over this long history of cruelty and injustice, it is saddening to observe that Christian communities, where the truths of the Gospel were received with unquestioning veneration, systematized the administration of torture with a cold-blooded ferocity unknown to the legislation of the heathen nations whence they derived it. The careful restrictions and safeguards, with which the Roman jurisprudence sought to protect the interests of the accused, contrast strangely with the reckless disregard of every principle of justice which sullies the criminal procedure of Europe from the thirteenth to the nineteenth century. From this no race or religion has been exempt. What the Calvinist suffered in Flanders, he inflicted in Holland; what the Catholic enforced in Italy, he endured in England; nor did either of them deem that he was forfeiting his share in the Divine Evangel of peace on earth and goodwill to men.

The mysteries of the human conscience and of human motives are well-nigh inscrutable, and it may seem shocking to assert that these centuries of unmitigated wrong are indirectly traceable to that religion of which the second great commandment was that man should love his neighbor as himself. Yet so it was. The first commandment, to love God with all our heart, when perverted by superstition, gave a strange direction to the teachings of Christ. For ages, the assumptions of an infallible Church had led men to believe that the interpreter was superior to Scripture. Every expounder of the holy text felt in his inmost heart that he alone, with his fellows, worshipped God as God desired to be worshipped, and that every ritual but his own was an insult to the Divine nature. Outside of his own communion there was no escape from eternal perdition, and the fervor of religious conviction thus made persecution a duty to God and man. This led the Inquisition, as we have seen, to perfect a system of which the iniquity was complete. Thus commended, that system became part and parcel of secular law, and when the Reformation arose the habits of thought which ages had consolidated were universal. The boldest Reformers who shook off the yoke of Rome, as soon as they had attained power, had as little scruple as Rome itself in rendering obligatory their interpretation of divine truth, and in applying to secular as well as to religious affairs the cruel maxims in which they had been educated.

Yet, in the general enlightenment which caused and accompanied the Reformation, there passed away gradually the passions which had created the rigid institutions of the Middle Ages. Those institutions had fulfilled their mission, and the savage tribes that had broken down the worn-out civilization of Rome were at last becoming fitted for a higher civilization than the world had yet seen, wherein the precepts of the Gospel might at length find practical expression and realization. For the first time in the history of man the universal love and charity which lie at the foundation of Christianity are recognized as the elements on which human society should be based. Weak and erring as we are, and still far distant from the ideal of the Saviour, yet are we approaching it, even if our steps are painful and hesitating. In the slow evolution of the centuries, it is only by comparing distant periods that we can mark our progress; but progress nevertheless exists, and future generations, perhaps, may be able to emancipate themselves wholly from the cruel and arbitrary domination of superstition and force.

INDEX.

Aames II., story of, 260

Abbeys, champions of, 197

Abbo of Fleury claims exemption from ordeal for clerics, 414

Abelard and Heloise, legend of, 364

Aben Ezra on water of golden calf, 262

_Abiadiong_, or sorcerer, 254

Abingdon, Abbey of, uses ordeal of chance, 356 the black cross of, 373

Abraham, covenant of, 27 exposed to fire ordeal, 303

Abraham of Freisingen takes ordeal of Eucharist, 348

Absolution for use of torture, 485 secures escape in ordeal, 402

Abuse of the ordeal, 405, 417 of power by judges, 545 of torture under Wisigoths, 461 by modern judges, 539

Accessories of oaths, 29

Accomac County, Va., case of bier-right, 366

Accomplices, the weakest tortured first in Rome, 448 in Spain, 463 in Germany, 543 evidence not used against in Rome, 443, 445 in England, 563 received in Wales, 564 torture to discover, in Inquisition, 484 in France, 515, 517, 584 in Germany, 546 in Denmark, 562 in Massachusetts, 570

Accusation withheld from accused, 514

Accusations, repeated, 45

Accusatorial conjurators, 94 in France, 94 in England, 95 in Béarn, 96 in Germany, 96, 97 in Northern kingdoms, 97 in Vehmgericht, 99

Accusatorial ordeals, 389

Accused (see also _Defendant_), advantage of compurgation to, 62 allowed to present a warrantor, 121 entitled to duel though guilty, 131 obliged to accept the duel, 140, 141, 143 his right of election, 144 swears to his innocence, 166 allowed choice of weapons, 177 selects the ordeal, 292 obliged to submit to the ordeal, 383 compounding for the ordeal, 384 fined if his adversary escapes in the ordeal, 384 can demand ordeal, 387 counsel denied to, by Inquisition, 486 in France, 517 allowed counsel in Castile, 469 in Germany, 544 hearing allowed him, 518 refused a hearing, 547 entitled to see adverse testimony in Castile, 468 in Italy, 507 in Valtelline, 508 in France, 504, 512 evidence refused him in France, 514 in Germany, 544 held responsible for torture, 532 torture of witnesses against absent, 542 confrontation with accuser, 545 tortured after conviction, 545, 546 absolved by retraction of confession, 550 after acquittal pays expenses, 552 Damhouder’s advice to, 553 not to be chained in England, 565

Accuser (see also _Appellant_, _Plaintiff_), selects the conjurators, 48, 49 onus of proof on, 74, 272 obliged to accept the duel, 140, 141 not obliged to accept duel, 143 his right to demand duel, 144, 145 allowed choice of weapons, 176 selects the ordeal, 291 fined if accused escapes in the ordeal, 384 defeated, ordeal for, 385 guilty of perjury, 386 can demand ordeal, 386 ordeal for, 389 must be present at ordeal, 405 subject to _talio_ in Rome, 440, 445 under Wisigoths, 459 must inscribe himself in Rome, 440, 446 his responsibility for torture under Wisigoths, 458, 460 relieved of responsibility in inquisitorial process, 513 confrontation with accused, 545

Accusers, limitation of, in China, 122 fire ordeal used by, 305

Achan, case of, 262

Acquittal usual in ordeal, 406 in ordeal, fees for, 416 accused pays expenses after, 552

Adalbert, St., power of his intercession, 377

Adalger at Council of St. Baseul, 395

Adaulfus of Compostella, legend of, 372

Admiralty courts, duel not admitted by, 165

Adrian, his restrictions on torture, 446 his estimate of torture, 446

Adrian II. administers ordeal of Eucharist, 349

Adulteress, escape of, in ordeal, 402, 403

Adultery, accusation of, in Wales, 45 accusation of, in the Koran, 46 compurgation prescribed for, 87 ordeal for, 413 in China, 253 torture for, in Rome, 439, 448 under Wisigoths, 460 torture of partners in, 551 evidence of slave received in Rome, 444

Adurabad, ordeal of, 267

Advocates, use of, 70 exempt from torture in Castile, 467 must testify against clients in witch-trials, 555 of churches, 198

Advowson, origin of, 198

_Æneum_, 278

_Affaire Calas_, 584

_Afia-ibnot-idiok_, 254

_Afia-edet-ibom_, 254

Africa, ordeals in, 254

Agde, council of, in 508, condemns the _sortes sanctorum_, 354

Age, compurgation as privilege of, 57 minimum, liable to duel, 141 subject to torture in Rome, 446 in Spain, 463, 466 in Germany, 527 advanced, exempted in Germany, 527

Agobard, St., denounces the duel, 206 on confusion of laws, 275 his tracts against ordeals, 409 cold-water ordeal unknown to, 321

Ahyto, Bishop, prescribes the ordeal, 409

Ainos of Japan, duel among, 108 ordeals used by, 253

Aix-la-Chapelle, merchants exempt from duel, 204 council of, 816, prohibits ordeal of cross, 338

Alamanni, Laws of— selection of compurgators, 43 compurgation for murder, 52 formula of compurgation, 60 perjury of compurgators, 63 judicial duel in, 113, 119 fine for defeated combatant, 167 kinsmen as champions, 180

Albenga, conviction by ordeal at, 418

Albero of Mercke, ordeal refused to, 418

Albert I. substitutes compurgation for the duel, 81

Albertus de Gandino, his work on torture, 525

Albertus Magnus, his recipe against fire, 408

Alby, Council of, 1254, denies counsel to accused, 487

Alcalá, Ordenamiento de, on the duel, 216

Alexander I. (Pseudo) on extorted confessions, 478

Alexander II. forbids ordeal of Eucharist, 369 denounces the ordeal, 414

Alexander III. forbids duel to clerics, 156, 207 on extortion in ordeals, 417 prohibits the ordeal, 417 secures confession by deceit, 559

Alexander I. (Scotland), his charter to Scone, 162

Alexander II. (Scotland) on use of champions, 192 restricts ordeals, 421

Alexander the slave, his torture, 447

Alexander of Constantinople, case of, 379

Alexis Mikhailovich abrogates the duel, 239

Alfin, his duel with Olaf Trygvesson, 115

Alfonso VI. (Castile) introduces Roman ritual, 132

Alfonso VII. undergoes compurgation, 67

Alfonso X. introduces the _jure de juicio_, 22 rejects negative proofs, 74, 425 his charter to Treviño, 202, 424 restricts the duel, 214 his regulation of torture, 462

Alfonso XI. allows accused to see testimony, 468 duel ordered by, 215 his regulations of the duel, 216

Aliprandus of Milan on punishment of conjurators, 64

_Alltud_, 39

Alphonse of Poitiers, his charter to Riom, 203 to Auzon, 490

Alsace, cold-water ordeal for slaves, 322

Altars, oaths on, 28

Alternative numbers of conjurators, 43

Altoviti and Gaddi, duel of, 236

_Althing_, or Icelandic assembly, 18

Ambassadors, champions necessary to, 129

America, appeal of death in, 246 compurgation in, 88 bier-right in, 366 torture in, 569 _peine forte et dure_ in, 575

Amiens, bailli of, compurgation prescribed for, 77 duel restricted in, 201 nobles of, claim the duel, 227 torture of clerics in, 491

Amsterdam deprived of its headsman, 536 exile for retracted confession, 549 use of torture in 1803, 578

Amula of Modena, story of, 293

Andernach, battle of, 400

André de Trahent, case of, 397

Andreas of Lunden regulates fees for ordeal, 416

Andres, founding of abbey of, 316

Andrew, St., his lance tested by ordeal, 308

Angelo da Chiavasco describes compurgation, 92 his allusion to ordeals, 425

Angli & Werini, laws of— judicial duel in, 114 limit of duel, 147 kinsmen as champions, 180 ordeal of red-hot iron, 291

Anglican Church, compurgation in, 93

Anglo-Saxons, compurgation for injuries, 17 classification of oaths, 24 reduplicated oaths, 28 rules for compurgation, 46, 48 _juramentum supermortuum_, 55 oath of compurgators, 58 _overcythed_, 61 _forath_, 95 judicial duel not used, 114 ordeals in suits with Welsh, 276 use of hot-water ordeal, 283 of red-hot iron ordeal, 287 accuser selects the ordeal, 291 the dead cleared by ordeal, 294 formula for cold-water ordeal, 318 use of cold-water ordeal, 322 triple ordeal for sorcery, 326 corsnæd for clerics, 341 Eucharist for clerics, 348 ordeal of the lot, 353 enforcement of ordeal, 383 compounding for the ordeal, 384 accuser can demand ordeal, 386 ordeal for all suspects, 489 in failure of compurgation, 390 for perjurers and convicts, 392 prevention of collusion in ordeal, 405

Anjou, hired champions allowed, 193

Anselm and the sacred vessels of Laon, 136, 324, 474

_Antejuramentum_, 95

Antioche, Assises d’, 143

Antonino, St., his allusion to ordeals, 425

Antoninus Pius orders torture of slaves in civil suits, 441 rejects evidence of accomplices, 445

Antrustions, hot-water ordeal for, 323

Apollonius of Tyana, his power, 447

Appeal of death, 242 in Massachusetts, 245 in Maryland, 247 abolished, 246

Appeals determined by duel, 123 from feudal courts, 473 denied to villeins, 491 from sentence of torture in Castile, 465, 467 in France, 514 in Germany, 545 refused, 547 from conviction, torture to prevent 546 after conviction, torture to prevent, 552

Appellant (see also _Accuser_). selects conjurators, 48, 49 his right to demand duel, 144 swears to justice of his cause, 166 punishment of defeated, 167 for default, 173 allowed choice of weapons, 176 use of champions by, 181

Approvers, 175, 243

_Apremios_, 583

Aquitaine, torture resisted in, 498

Aquinas on duel and ordeal, 209

_Ara maxima_, the, 27

Arabs, ordeal among the, 264

Aragon, limit of value for duel, 148 duels between Christians and Saracens forbidden, 151 duel prohibited, 214 bier-right in, 366 ordeals prohibited, 424 torture restricted in, 462, 469

Arcadius and Honorius on exemption of decurions, 438

Arckel, Jan van, his duel, 104

Ardennes, ordeal of staff in, 397

Arducius, Bishop of Geneva, 162

Arezzo, Bishop of, grants the duel, 161 admits champions in a duel, 189

Argenton, Seigneur d’, subjected to torture, 499

Argentré, Bertrand d’, accepts bier-right, 366 on preliminary proof, 515

Arian, ordeal to convert an, 296 defeated by hot-water ordeal, 279 worsted by fire ordeal, 304 relics tested by fire, 315

Aristogiton, torture of, 433

Aristotle quoted for bier-right, 359

Arius, death of, 379

Armagnac, Count of, his duel, 222 challenges Foix, 225

Arms of witnesses blessed at altar, 120 choice of, in duel, 176 coats of, duels concerning, 105

Arnoul of Flanders offers the ordeal, 294

Arnoul, St., his relics tested with fire, 316

Arnustus, his death, 343

Arques, punishment of murder in, 13 restriction on duel in, 203

Arras, ordeal of fire at, 310 Bishop of, uses ordeal for heretics, 411 council of, 1025, tortures heretics, 474

Aryans, social organization of, 13 the duel a custom of, 108 ordeal among, 265 use of torture among, 431, 432

Ashantee, poison ordeal in, 255

Ashford _vs._ Thornton, case of, 246

Askew, Ann, torture of, 568

Aspres, customs of, 19

Assizes of Clarendon order cold-water ordeal, 322, 388, 400

Assyria, use of imprecations in, 260 use of torture in, 430

Astesanus on oaths, 30 condemns the ordeal system, 420

Astin of Wispington, case of, 389

Astyages, his use of torture, 431

Atharva Veda, allusion to ordeals in, 267

_Athia_, 147

Atto of Vercelli objects to compurgation, 37 denounces the duel, 128 on clerical liability to duel, 155, 157

Audefroy le Bâtard, ballad by, 68

Augsburg, duel in 1409, 172

Augustin, St., on oaths on relics, 31, 372 favors the lot, 352 condemns torture, 477, 576

Augustus tortures Q. Gallius, 435 his opinion of torture-evidence, 441

Ausch, Council of, 1068, confirms the ordeal, 410

Australia, duel among aborigines, 108

Austria, case of bier-right in, 364 torture of page of Richard I., 474 abolition of torture, 580 Dukes of, allowed champions, 134

Auxerre, relics of St. Martin at, 380

Auzon, charter of, exempts from torture, 490

_Avantparlier_, 70

Aventinus on judgment of God, 102, 426

Avesta, responsibility of kindred in, 14 ordeal prescribed by the, 265

Avitus, St., denounces the duel, 206, 409 his dispute with the Arians, 379

_Avoués_ of churches, 198

Ayesha accused of adultery, 46

Aymar, Jacques, 427

Aztecs, oath ordeal among, 259

Bacon, Francis, recommends torture, 568

Bacon, Roger, admits virtue in ordeals, 424

Baden, torture abolished, 581

Baglioni, lord of Spello, grants the duel, 236

_Bahr-recht_, 359

Bail required of combatants, 173 liability of, 174

Baioarian law— admission of compurgation, 53 witnesses and conjurators, 62 accusatorial conjurators, 94 challenge of witness, 103 judicial duel, 113, 119 minimum limit for duel, 147 champions always used, 181 use of ordeal, 274 torture of slaves, 452

Bajazet, his method of investigation, 576

Balance, ordeal of, 334 used in witchcraft cases, 335

Balbás, Fuero of, compurgation in, 34, 49

Bâle, council of, denounces abuse of oaths, 23

Baldus de Periglis, his work on torture, 525

Baldwin VII. (Flanders) his charter to Ypres, 48, 201

Bands of iron used as an ordeal, 377

Banishment after success in ordeal, 401

Bankruptcy cases, torture used in, 530

Baptista de Saulis describes compurgation, 93 his allusion to ordeals, 425

Barbarian laws, personal not territorial, 131, 275, 453 rest on negative proofs, 73 accusatorial conjurators, 94 judicial duel, 112 use of champions, 180 ordeal of the lot, 353 no trace of bier-right, 359 use of torture, 449 corporal punishment unknown, 451 torture of slaves, 451

Barbarians, the, their jurisprudence, 16 lack of confidence in oaths, 24 universal use of compurgation, 34 general use of ordeal, 275 cold-water ordeal not used, 320

Barberousse punished for suspicion, 521

Barcelona, council of 599, prescribes the lot, 355

Bari exempted from duel and ordeal, 201

Barker, Janet, case of, 571

Barriller and Carrington, duel of, 231

Bastards, their right to the duel, 140

Battle, Wager of, 101

Battoon, the, for duels, 176

Bavaria, torture in, 473 torture abolished, 581

Bavarian house of Guelf, founding of, 133

Bayle, Peter, condemns torture, 577

Béarn, selection of compurgators, 51 formula of compurgation, 58 compurgation retained, 79 accusatorial conjurators, 96 duel between prince and subject, 135 limitations on duel, 145 penalty for defeat in duel, 168 for default in duel, 174, 233 use of champions, 194 duel legal till 1789, 232 hot-water ordeal, 283 red-hot iron ordeal, 295 cold-water ordeal, 323 torture not used in, 487

Beaulieu, Abbey of, its jurisdiction, 161

Beaumanoir, silence as to compurgation, 75 limitations on duel, 140 on punishment of defeated champion, 185 his opinion of the duel, 221 rejects negative proofs, 74 no reference to torture, 488

Beauvais, champion of, 196

Beccaria on torture, 516, 546, 549, 586

Belfast, relic of St. Patrick at, 374

Belgium, witches tried by ordeal in 1815, 323

Belief, compurgators only swear to, 71

Benares, ordeal in 1783, 284, 290

Bera and Sanila, duel of, 117 opposition excited by it, 206

Berkeley, Abbey of, 40

Bermuda, compurgation in, 87

Bernard, St., on study of Roman law, 73

Bernard, St.— approves of ordeal for heretics, 410

Bernard Gui complains of restrictions on torture, 511

Bernard of Italy, his rebellion, 470

Bernard VI. of Armagnac, 203

Bernhardi, Martin, opposes torture, 577

Berthaut Lestalon, case of, 501

Bertin, St., power of his intercession, 378

Bertrand, St., of Comminges, his improvised ordeals, 285, 374

Bertulf of Bruges, case of, 152

Béziers, council of, 1255, 490

Bible and key, ordeal of, 357

Bibliomancy, 335

Bier-right, 359 explanations of it, 369 weight of its evidence, 370 influence of imagination, 396

Biers placed in the lists, 172

Bignon, Jerome, on cold-water ordeal for witchcraft, 330

Bigorre, conjurators in, 43 exemption of widows from duel, 146 hired champions, 195 duel not obligatory, 202 profits of ordeals, 415

Bilateral ordeals, 249 ordeal of cross, 336 in Tibet, 269

Binsfeld on cold-water ordeal in witchcraft, 327

Bishops, oaths taken on hand of, 30 number of conjurators for, 43 select compurgators for clerics, 51 decree duels in their courts, 162 selected by the lot, 355 fitness determined by ordeal, 410 their profits from ordeals, 416 their unrestricted power to torture, 511 Spanish, their privilege in swearing, 36

Bitter water, ordeal of, 262

Blind, the, torture of, 528

Blois, assembly of notables in 1498, 513

Blondel, Geoffrey, a salaried champion, 196

Blood swallowed as an ordeal in India, 258 in Greece, 270

Blood-money (see _Wer-gild_).

Bobenzan, Dr., his torture, 526

Boccaccio’s story of Calendrino, 341

Boden, von, opposes abuses of torture, 577

Bodin on cold-water ordeal in witchcraft, 327 urges punishment for suspicion, 519 approves deceit in witch-trials, 559

Boguet complains of uselessness of torture, 558 disapproves deceit in witch-trials, 559

Bohemia, judicial duel used, 110 duels of women, 153 universal use of ordeals, 274 iron bands to punish fratricide, 377 compounding for the ordeal, 384 ordeal for all suspects, 388 in prohibited marriages, 410 fees for ordeals, 416 use of torture, 473, 476

Bohemian Brethren use the lot, 355

Bologna, regulation of champions, 195 torture in cases involving fines, 529

Bones, bleeding, murder revealed by, 364

Boniface, St., on perjury of compurgators, 63

Boniface converts Russia by an ordeal, 310

Bonifazio de’ Vitaliani, his work on torture, 525

Bonuszeno of Soavo, 196

Books tested by fire ordeal, 313, 314

Boot, torture of, 573

Bordeaux, oath of plaintiff in, 98 bier-right in, 366 torture resisted in, 498

Borneo, ordeals in, 257

_Borru_, ordeal of, 256

Bothwell, his offers of the duel, 240

Bourbons of Naples, their use of torture, 587

Bourges, torture of Jews in, 492

Bourges, Nicholas, case of, 492

Bowgas, Margery, cleared by compurgation, 92

Boys with greased boots detect witches, 539

Bracton on use of compurgators, 71, 84 ordeals obsolete in his time, 421 knows nothing of torture, 564

Brahm, F. M., on water ordeal for witches, 331

Brahman caste, oaths prescribed for, 25 hot-water ordeal for, 284 ordeal of balance for, 334 their presence required at ordeals, 269, 280

Brant, N., water ordeal for witches, 331

Bread and cheese, ordeal of, 339

Brehons, inspiration of, 272

Bribes in ordeal, 406

Brice, St., his ordeal, 304

Bridewell, the, torture used in, 569

Britanny, accusatorial conjurators in, 99 duel permitted till 1539, 231 bier-right in, 366 charter of 1315, 495 use of torture, 504 responsibility of judges for torture, 515

Brothers, duel between, 141, 218

Brown and Hepburn, duel of, 240

Bruchsal, torture in prison of, 582

Bruges, duel prohibited in, 203 ordeal at choice of accused, 387 for convicts, 392 witch-trial in, 567

Bruntfield and Carmichael, duel of, 240

Brunnemann on facilities for defence, 547

Brzetislas, ordeal in his laws, 274

Buda, Council of, 1279, prohibits ordeals, 423

Buddha, his relic tested by fire, 314

Buddhism, its influence in China, 252 accepts the ordeal, 269

Bulgaria, survival of the duel, 239 use of torture in, 478

Bull’s blood, ordeal of, 270

Burchard, Bishop of Chartres, subjected to ordeal, 410

Burckardt of Worms on the ordeal, 392, 410

Burgmeister on water ordeal for witches, 329, 331

Burgundian law, kindred as compurgators, 50 judicial duel, 112, 119 champions unusual, 181 witnesses must be of same race, 275 torture of slaves, 451

Burgundy, nobles of, claim the duel, 227 duel abolished by Philippe le Bon, 231 ordeal for witches in 17th century, 331 bier-right in, 366 charter of, 1315, 495

Burial alive, women punished by, 153, 503

Burke defends the appeal of death, 246

Burning for refusal of ordeal, 411

Burnt Njal, saga of, 17

Byzantine Empire, ordeal used in, 277, 299, 304, 313

_Cacabus_, 278

Cachielawis, torture of, 573

Cadiz, Córtes of, abolishes torture, 583

Cæsarism, extension of torture by, 435

Cæesarius of Heisterbach, his theory of ordeal, 402 on ordeal for heretics, 411

Cæsarius of Königswinter, case of, 374

Cagots as conjurators, 43

Cain and Abel, their duel, 107

Calas, case of, 584

_Caldaria_, 278

Calendrino, story of, 341

Caligula, his relish for torture, 436

Calixtus II. approves of ordeal, 412

Cambrai, heretics convicted by ordeal, 297

Campetti, his use of divining-rod, 428

Campion, Jesuit, his torture, 569

Canon law on perjury, 30 adopts compurgation for heretics, 36

Canonical compurgation, 33

Canute, his laws on compurgation, 48

Cappadocians hardened to torture, 558

Caracalla allows torture for poisoning, 439 of slaves in adultery cases, 444

Caraffa, Cardinal, his trial, 541

Cardigan, holy taper of, 32

Cardone, Raymond de, challenges Armagnac, 225

Carena on bier-right, 359 his explanation of it, 369

Carlovingian law— selection of compurgators, 50 admission of compurgation, 53 punishment of compurgators, 64 accusatorial conjurators, 95 judicial duel proscribed, 113, 118 challenging of witnesses, 120 liability of ecclesiastics, 155 penalty for defeat in duel, 167 for defeated champion, 184 robbers not to serve as champions, 186 reliance on judgment of God, 250 red-hot iron ordeal, 291 cold-water ordeal, 322 ordeal of cross, 336 in failure of compurgation, 390 for ill-repute, 392 as a punishment, 393 confidence reposed in the ordeal, 399 use of chrism in ordeal, 407 of torture, 469

Carlos, Don, his torture, 468

Carmichael and Brentfield, duel of, 240

Caroline Constitutions, torture in, 522 adopted in 1532, 524

Carpzov on the evidence of bier-right, 370 denies appeal from sentence of torture, 545

Carrington and Bariller, duel of, 231

Carrouges and le Gris, duel of, 229

Carter, Paul, bier-right in case of, 366

Casimir III. (Poland) regulates compurgation, 83 forbids inquisitorial process, 509

Casimir IV. (Poland) restricts compurgation, 83

Castelnau, Sire de, offers the duel, 233

Castile, purgatorial oaths, 24 compurgation in, 80 Mozarabic rite defended by duel, 132 by fire ordeal, 313 duels only permitted between gentlemen, 151 use of champions restricted, 195 duel restricted, 214 bier-right, 366 ordeals prohibited, 424 use of torture in, 462

Catalonia, limitation on duels, 146 Truce of God enforced by the ordeal, 323

Cathari, ordeal used to convict, 411

Catherine II. restricts torture, 581

Catholics tortured under Elizabeth, 568

Cats, use of, in torture, 554

Caussade, Raymond de, challenged by Thomas Felton, 229

Caussois, Gervaise, case of, 501

Cautinus of Auvergne uses ordeal of Eucharist, 348

Celestin III. on perjury of compurgators, 64 forbids clerical duels, 158, 207

Celtiberians, judicial duel among, 108

Celts, solidarity of the family among, 15 judicial duel among, 108 ordeals used by, 272, 273

Cemeteries, duels forbidden in, 209

Centulla I., his charter to Lourdes, 202

Centulla IV., employs the ordeal, 295

Ceremonial of compurgation, 60

Calchuth, council of, condemns the lot, 353

Chaldea, use of imprecations in, 260

Challenging of witnesses, 103, 120 of judges, 123

Champagne, nobles of, claim the duel, 227 cold-water ordeal for witchcraft, 330 resistance to torture, 496

Champion of England, the, 134

Champions, 179 put forward as warrantors, 121 denied to witnesses, 121 of ambassadors, 129 allowed to Dukes of Austria, 134 used to convict thieves, 135 oath of, 139 in duels of different ranks, 150 supplied by the State, 152 allowed to clerics, 157 defeated, penalties of, 168, 184 as witnesses, 182 disabilities incurred by, 187 restrictions on their employment, 189 hiring of, 190, 193 equalization of, 194 of towns, 196 of churches, 197 in ordeals, 295, 337, 390, 398, 400

Chance in selection of compurgators, 49 ordeal of, 352 in China, 253 in Borneo, 257 in Rajmahal, 259

Charlemagne tries Leo III., 35 on number of conjurators, 43 urges use of judicial duel, 118 prohibits duel between his heirs, 127 his duel with Witikind, 130 cold-water ordeal ascribed to, 321 favors ordeal of cross, 337 on iron bands for parricide, 378 his confidence in the ordeal, 399 on use of chrism in ordeal, 407 orders buildings for the _mallum_, 471 torture for sorcerers, 470

Charles le Chauve attacks Louis of Saxony, 400

Charles IV. (Emp.) interferes with duels of Bishop of Liége, 160 his charter to Worms, 205 torture in his Golden Bull, 504

Charles V. (Emp.) prescribes compurgation, 81 challenges Francis I., 106 duel ordered by, 216 on sentences of torture, 467 his laws on torture, 522

Charles V. (France) alludes to compurgation, 77

Charles VI. (Fr.) limits the duel, 230 admits women as witnesses, 228

Charles IX. (France), edict against duels, 104, 235

Charles I. (England) tries to prevent duel, 244

Charles XI. (Sweden) restricts compurgation, 83

Charles of Anjou challenges Pedro of Aragon, 105 prohibits the ordeal, 422

Charles de Valois, his use of torture, 494

Charles the Good, of Flanders, his murder, 152, 474

Charles the Bold tries to prevent duel, 232

Charms forbidden in duels, 139 in ordeals, 407 use of, against torture, 556, 557

Charteris and Douglass, duel of, 239

Charters exempting from duel, 200 of prelates granting jurisdiction of ordeal, 412

Chartres, council of, sanctions ordeal, 412

Chassanée accepts bier-right, 366

Chastity tested by fire ordeal, 304

Chateaudun, church of, its interest in ordeals, 415

Château-Neuf, case of torture in, 493

Châtelet of Paris, its use of torture, 493, 500

Cheese, ordeal of, 339

_Cherleman_, 47

_Cherreen_, ordeal of, 259

Children, responsibility for, 20 as substitutes in ordeals, 398 their evidence received in witch-trials, 554 not subject to torture in Rome, 446 in Spain, 463, 466 in Germany, 527

Chimpanzee skull used in ordeal, 254

China, redemption of punishment, 122 freedom from superstition, 251 torture not used, 431

Chindaswind prohibits Roman law among Goths, 458 his regulation of torture, 460

Chivalry, duels of, 242

Choice of conjurators made by sheriff, 48 by plaintiff, 48, 49 by court, 49 by judge, 51 by defendant, 57 of weapons in duel, 176

Chrism, use of, in ordeal, 407

Christ, his swaddling-cloth tested by fire, 315

Christian burial, ordeal prerequisite to, 412

Christianity, its influence on torture in Rome, 444

Christians, their torture in Rome, 436

Christiern IV. abolishes compurgation, 82

Christiern V. prohibits compurgation, 82 restricts use of torture, 562

Church, the, supersedes family ties, 19, 35 favors the use of oaths, 22 its teachings as to perjury, 30 its profits in administering oaths, 32 adopts compurgation, 35 degree of confidence in compurgation, 61 it modifies the compurgatorial oath, 71 disabilities imposed on women, 122 deprived of exemption from duel, 131 its secular jurisdiction, 161 its champions, 197 its opposition to duel, 206 its perplexities as to the duel, 211 influence in favor of ordeal, 276 does not favor the lot, 352 its relations with the ordeal, 408, 409 its opposition to the papacy, 415 its condemnation of torture, 471, 477 extorted confession invalid, 478 adopts use of torture for heresy, 484 adopts the _talio_, 169, 513

Churches, oaths taken in, 29 champions of, 197 local, their interest in ordeals, 415

Cicero, his estimate of torture, 447

Cid, the, requires compurgation of Alfonso VI., 68

Ciruelo on Eucharist ordeal, 351 his theory of ordeals, 403

_Cin_, 18

Citizenship in Rome, 440

Civil cases, champions required for, 192, 193 ordeal in, 385 lack of testimony requisite for ordeal, 387 torture of slaves in, 433, 441 torture used in, 530

Clarendon, Assizes of, ordeal for all suspects, 388 disbelief in ordeal, 400

Class-privileges as to oaths, 24 in compurgation, 57

Claudia Quinta, her ordeal, 271

Claudius, his relish for torture, 436 swears not to torture freemen, 439

Claxton _vs._ Lilburn, case of, 244

Clement III. forbids clerics to fight, 156

Clement V. forces torture of Templars, 511

Clergy, the, sustain the ordeal, 417

Clerics, their _wer-gild_, 20 purgatorial power of their oaths, 22 oaths administered by, 30 their claim of disculpatory oaths, 36 not allowed to select compurgators, 47 compurgators for, 51 their evidence decisive in Wales, 55 not to serve as advocates, 73 Irish, their use of the duel, 109 not received as witnesses, 122 duel unfitted for, 128 subject to duel by Otho II., 131 their liability to the duel, 155 they fight personally, 156 champions allowed them, 157 dispensations for fighting duels, 160 exempted from secular laws, 161 forbidden the duel, 207 ordeal of corsnæd for, 342 ordeal of Eucharist for, 348 shaving reserved for, 403 they uphold the ordeal, 409 ordeal specially for, 412 exempted from the ordeal, 414 relieved from ordeals and duels, 415 subject to torture in Rome, 438 exempted from torture in Castile, 467 in France, 491 their presence forbidden at torture, 471, 475 use of torture renders them irregular, 484 their exemption from torture limited, 527 tortured in England, 566

_Clog Oir_, the, 397

Clotair II., his legitimacy proved, 39 prevents collusion in ordeal, 405

Clovis and the vase of Soissons, 450

Club, the, for duels, 176

Coblentz, council of, on conjurators, 43

Cobra used as an ordeal, 376

Cock used in ordeal, 256

Coke, Sir Edward, on use of torture, 567

Coke, Sir Thomas, his torture, 566

Colbert refuses counsel to accused, 517

Cold-water ordeal, its process, 318 its use in India, 319 its introduction in Europe, 321 a patrician or plebeian ordeal, 322 used in witchcraft cases, 325 in cases of heresy, 410 abuse of women, 417

_Collaudantes_ (see _Conjurators_).

Collusion in the ordeal, 405

Coloman, King, regulates privilege of ordeals, 415

Colville, Sir Thomas, 197

Combat, Trial by, 101

Commerce, its influence on the duel, 204

Comminges, Bernard of, challenges Foix, 225

Common law, torture not legal in, 563

Communes, their exemption from duel, 200 their influence on ordeals, 426

Communion before duel efficacious, 138

Communities, 14 responsibility of, 41 champions of, 196

Como, number of witches in, 560

Compensation for injuries, 16

Compounding for duel forbidden, 144 for the ordeal allowed, 383

Compurgation, 33 adopted by the Church, 35 conditions of, 51 in default of testimony, 52 depends on degree of crime, 56 in place of duel, 57 formulas of, 58 its ceremonial, 60 combined with ordeal, 61 confidence felt in it, 61 responsibility incurred, 64 its decline, 67 modification of oath, 71 abolished in England in 1833, 87 as used in the Inquisition, 90 combined with ordeal, 389 ordeal in case of failure, 390 and ordeal alternative, 392 replaces ordeal, 418

Condemnation of the innocent explained, 403

Conditions of compurgation, 51 of wager of battle, 140 of the ordeal, 383

Confession (judicial), partial, 46 withdrawal of, 52 extorted, invalid, 462, 563 in ecclesiastical law, 478 under torture must be confirmed, 463, 514, 522, 548 extorted in Inquisition, 485 under illegal torture is invalid, 550 revoked, invalid in Sicilian Constitutions, 482 questions concerning, 548 absolves accused, 550 torture repeated for, 463, 522, 548, 550 not necessary for conviction in Germany, 523 spontaneous, torture after, 546 under torture to secure salvation, 552 under promise of pardon, 558 rewarded by strangling, 573 must be spontaneous in England, 565

Confession (sacramental) secures victory in duel, 138 escape in ordeal by, 297, 310, 402 not made in ordeal of Eucharist, 351

Confidence reposed in compurgation, 61 in judicial duel, 127 in the ordeal, 399

Confirmation of confession required, 463, 522, 548, 550 of evidence required, 550

Confiscation for refusal of duel, 131 for default in duel, 173 for refusal of ordeal, 383 torture not used for cases of, 529

Confrontation of accused with witnesses, 517 of accused with accuser, 545

Confucianism, its freedom from superstition, 252

Conjurations forbidden in duels, 139 in ordeals, 407 use of against torture, 556, 557

Conjurators, 33 selection of, 38 large numbers required, 39 classified by rank, 46 not witnesses, 51 subject to penalty of perjury, 63 double the number of witnesses, 85 accusatorial, 94 substituted for duel, 201 tried by ordeal of cross, 337 subjected to ordeal, 390

Conrad of Marburg, his inquisition, 89 convicts heretics by ordeal, 419

Conring, Hermann, approves of water ordeal, 331

Consanguinity determined by ordeal, 410

Consecration of ordeal-iron, 288

Consecrated crosses, value of, 30

Constance, council of, prescribes compurgation, 92

Constantine orders torture for unnatural lust, 439 enforces the _talio_, 440

Constantinople, use of iron ordeal, 299 use of fire ordeal, 304, 313

Constantius prescribes torture for sorcerers, 439, 554

_Constitutio Criminalis Theresiana_, 580

Continuance of torture, 466, 517

Contrition secures escape in ordeal, 402

Convents, torture in, 560

Conversion of Iceland, 199 of Denmark, 295 of Russia, 310

Convictions rare in ordeal, 406 in ordeal, fees for, 416 without confession in Germany, 523 punishment without, 528 where there has been no crime, 531 torture after, to prevent appeals, 552

Convicts sent to ordeal, 392 not tortured in Rome to implicate others, 445 so tortured in modern times, 484, 515, 517, 546, 562, 570, 584

Cope of St. Martin used in compurgation, 60

Copper, molten, ordeal of, 266

Copres uses the fire ordeal, 304

Corporal punishment unknown to Barbarians, 451

Corsica, bier-right in, 366 use of torture, 506

Corsnæd, the, 339 in Rome, 272 in 16th century, 343 its use in India, 344

Cory, Giles, case of, 575

_Cosha_, 344

Coucy, Enguerrand de, case of, 221

Coucy, Jacques de, case of, 516

Counsel, his assertion not binding on client, 70 allowed to accused in Castile, 469 denied by Inquisition, 486 in France, 517 allowed in 1788, 583 in Germany, 544 fined for frivolous appeal, 545 must testify against clients in witch-trials, 555

Court records altered by the duel, 135

Courtenay, Sir Piers, case of, 145

Courts, challenging of, 123 their right to refuse the duel, 140 ecclesiastical, duel in, 161 publicity of Carlovingian, 471 of feudal, 512

Covenant between the pieces, 27

Cowbridge, Margaret, cleared by compurgation, 92

_Crannchur_, 354

Crespy exempted from duel, 203

Cremona, case of bier-right, 359

Crime, torture to ascertain, 530

Crimes liable to duel, 147 excepted, in Roman torture, 439 under Wisigoths, 459, 460 in Castile, 464, 466 in Germany, 526

_Crimen majestatis_, torture in, 435, 438, 443 in France, 495 in England, 564, 570

Criminal cases, champions in, 192, 193

Cripples forced to provide champions, 152 champions allowed to, 181, 189 limitation on right to champions, 194

Crippling, torture not to cause, 465, 467, 523 caused by torture, 532

Cross, ordeal of, 336 relic of, tested by fire, 317

Crosses, oaths taken on, 30 suffice for clerics, 414

Crucet-houses, 476

Culm, synod of, on ordeal for witches, 322

Cunigunda, St., her ordeal, 287, 293

Dacia, purgatorial oaths in, 23

Dagobert I. revises the Barbarian laws, 113

Dalzell, Sir Wm., case of, 145

Damages allowed to champions, 188 of slaves in torture paid for by pleader, 433 paid to master in Rome, 445 among Barbarians, 452 under Wisigoths, 458 in Castile, 468

Damhouder approves the duel, 237 his _Praxis_, 524 his advice to accused, 553 on insensibility to torture, 557

Dante justifies the duel, 211

Darius, his savage punishments, 431

David and Goliath, their duel, 107, 209, 261

David I. (Scotland), his charter to Holyrood, 162

David, penitential of, 29

Deacons, number of conjurators for, 43

Dead, the, their evidence obtained by conjurators, 56 champions represent them in duel, 152 cleared by ordeal, 294 pardon asked of, 360 their repentance proved by ordeal, 412

Deaf-mutes, torture of, 528

Death, appeal of, 242, 245 in America, 246 invoked as an ordeal, 379 under torture, penalty for under Wisigoths, 460 in modern times, 504, 523, 532, 574

Debt, action for, negative proofs in, 74

Debts, compurgation used to escape, 85

Deceit, use of, by Inquisition, 485 use of, in witch-trials, 558

Decline of compurgation, 67

Decline— of the duel, 199 of the ordeal, 421 of the torture system, 575

Decurions exempt from torture, 438

_Deeyeh_, 29

Default in duel, penalty for, 173, 233

Defeat in duel is perjury, 167, 184

Defence, accused not heard in, 518, 547 facilities for, in Castile, 468 in Châtelet of Paris, 504 in Italy, 507 in Valtelline, 508 in France, 512 withdrawn in France, 513 in Germany, 544

Defendant (See also _Accused_). has choice of conjurators, 57 proof required of, 74 obliged to accept the duel, 140, 141, 143 swears to justice of his cause, 166 allowed choice of weapons, 177 use of champions by, 181 can demand ordeal, 387 allowed his own law, 394

Degradation inflicted on champions, 187

Degrees of kinship settled by ordeal, 410 of torture, five, 543

De la Barre, case of, 584

Delay accorded in duel, 173

Delfos, Bellido, kills Sancho II., 68

Del Rio, his explanation of bier-right, 369 on severity of torture, 532 approves deceit in witch-trials, 559

Demoniacal possession caused by perjury, 372

Denmark, levying of _wer-gild_ in, 18 kinsmen as compurgators, 41 selection of compurgators, 49 prolonged use of compurgation, 82 early use of duel, 110 duel abolished in, 200 converted by the ordeal, 295 bier-right in, 364 ordeals prohibited, 422 torture introduced, 562

Deposition of priests engaged in duels, 156

Des Guerres and Fendilles, duel of, 234

Deuterius of Constantinople, case of, 379

_Dharma_ and _Adharma_, 352

Diabolic illusions in ordeal, 408

Die, priory of, its relics, 373

Difference of rank prevents duel, 141, 149

Dinteville and du Plessis, duel of, 233

Diocletian, his torture of Christians, 437 forbids torture of soldiers, 438 allows torture of slaves in will cases, 442 masters not to offer slaves to torture, 444 his restrictions on torture, 446

Diodorus Siculus, his account of Egyptian courts, 430

Disabilities of women, 122 inflicted on champions, 187

Disability, bodily, averts duel, 144

Disbelief in ordeal, 400

Discretion of judge, everything left to, 533, 538, 541, 544 its abuse, 545

Disease as exemption from torture, 528

Dislocations generally result from torture, 532

Disowning of children in Wales, 55

Dispensations for clerical duellists, 160 for duellists, 207 for use of torture, 485

Divination condemned, 354 employed to justify torture, 539

Diviners tortured in Rome, 439

Divining-rod, the, 427

Divorce, compurgation in cases of, 93

Doctors exempted from torture in Spain, 463, 466 their exemption limited in Germany, 525

Dog of Montargis, story of, 228

_Dolum bonum_ and _malum_, 559

Domenico da Pescia, his ordeal of fire, 311

Dominic, St., his writing tested by fire, 313

Domitian, his use of torture, 439

Dortmund exempted from duel, 205

Doubtful results in the ordeal, 405

Douglass and Charteris, duel of, 239

Dower, no duel in cases of, 141

Drowning, punishment of, 321 for sorcery, 325

Dubos, Jehan, punished for suspicion, 519

Duel, judicial, 101 supersedes compurgation, 61 difference between it and modern duel, 103 in diplomacy, 129 legislative function of, 129, 133 state questions decided by, 130 penalty for refusing, 131 habitual use in criminal law, 135 explanations of its injustice, 136 limitations on it, 140 minimum limit of value in, 141 regulations of, 166 of women, regulations of, 153 ferocity of, 178 use of champions, 179 rendered a matter of chance, 195 its decline, 199 forbidden to clerics, 207 exemptions of the communes, 201 opposition of the Church, 206 influence of the Roman law, 212 reforms of St. Louis, 216 prolonged use in England, 241 traces of, in the United States, 246 used in Japan, 253 ordeal of cross substituted, 337

Dunning defends the appeal of death, 245

Dunstan, St., his formula for cold-water ordeal, 319

Du Plessis and Dinteville, duel of, 233

Durham, Bishop of, exempted from duel, 159

Dyaks, ordeals among, 257

Dyvnwal-moel-mud, ordeals ascribed to, 110

Earth, the, rejects corpse of criminal, 319

Earth swallowed as an ordeal, 258 from grave detects witches, 382

Earl Richard, ballad of, 361

Eastern Empire, ordeal used in, 277, 299, 304, 313

Ebroin of Burgundy, 29

Eccelino da Romano, his use of torture, 483

Ecclesiastical courts, duel in, 161 torture in, 510

Ecclesiastical law, disculpatory oaths, 28 value of oaths, 30 acceptance of compurgation, 35 number of compurgators, 43 selection of compurgators, 51 default of evidence requisite, 54 oath of compurgators, 59 modified, 72 retention of compurgation, 88 accusatorial conjurators, 95 clerics forbidden to fight duels, 156 exempted from secular law, 161 jurisdiction over duels claimed by churches, 162 _lex talionis_, 169, 513 the duel forbidden to clerics, 207 effect of dispensations, 208 denial of sepulture to duellists, 211 duels forbidden by Council of Trent, 237 use of ordeals, 409 Gratian’s hesitation about ordeals, 413 ordeals forbidden to clerics, 414 priests forbidden to conduct ordeals, 419 to be present at torture, 471 extorted confessions forbidden, 478 torture ordered In the Inquisition, 484 established in episcopal courts, 511 for discovery of accomplices, 516 of witnesses, 541 in monastic establishments, 560 known as, 511

Ecgbehrt of York, ordeal of the lot, 353 exempts priests from ordeal, 414

Edict of Theodoric, duel not referred to, 116 torture in, 457

Edinburgh, torture in 1652, 574

Edmund, St., intervenes in a duel, 137

Edward the Confessor and Queen Emma, 294 convicts Duke Godwin, 341

Edward I. refuses lists to Charles of Anjou, 106

Edward II. orders torture of Templars, 511

Edward III. enlarges the sphere of compurgation, 85 his challenge of Philippe de Valois, 104

Egeno accuses Otho of Bavaria, 133

Eggs, hot, used in torture, 588

Egil Skallagrimsson, 111

Egiza introduces ordeal among Goths, 275

Egypt, ordeals in, 259 use of torture, 430

Eisenach, duel limited in, 205

Ekkehardus Junior on abuses of ordeals, 417

Ekkehard of Munster forbids the ordeal, 418

Elfstan of Winchester, his faith, 282

Eldon, Lord, on champions, 192

Elizabeth, Queen, legislation on duel under, 244 torture under, 567, 568

Ellenborough, Lord, sustains the duel, 246

Elne, council of, 1065, recognizes the ordeal, 410

Emeric, St., power of his intercession, 378

Emma, Queen, undergoes the ordeal, 294

Emo of Wittewerum, 422

Employer, slave not tortured against, 442

Endurance, ordeal of, 336, 339

Engel, M. A., defends torture, 578

Engilbert of Trèves, 343

England (see also _Anglo-Saxons_). reduplicated oaths, 28 alternative number of conjurators, 43 rise of jury-trial, 48 extensive use of compurgation, 57 compurgation abolished, 67 its limited use, 70 its use prolonged, 84 finally abolished in 1833, 87 in ecclesiastical cases, 93 accusatorial conjurators, 95, 97 William I. introduces judicial duel, 115, 394 challenging of warrantors, 121 of courts, 123 the champion of England, 134 habitual use of the duel, 135 limitations on duel, 144, 146 minimum limit of value, 147 clerics exempted from duel, 158 no duel in mercantile law, 165 penalty for defeat in duel, 168, 169 _lex talionis_, 171 penalty for default in duel, 174 expenses defrayed by the crown, 175 approvers, 175, 243 equality of weapons, 176, 177 champions as witnesses, 182, 183 defeated, their punishment, 184 hiring of, forbidden, 190 salaried, 192 required in civil cases, 192 charters exempting from duel, 201 persistence of the duel, 241 duel of chivalry, 242 abrogation of duel, 246 red-hot iron an aristocratic ordeal, 292 use of cold-water ordeal, 322 for witchcraft, 330, 333 witch weighed against Bible, 336 ordeal of Bible and key, 357 of sieve-driving, 358 for all suspects, 388 for accuser or accused, 389 result of ordeal inconclusive, 400 ordeals forbidden in 1219, 421 torture used under Stephen, 476 of Templars, 511 unknown to common law, 563 used under royal prerogative, 566 in witch-trials, 570 _peine forte et dure_, 574

English and Normans, duels between, 115

English influence on duel in France, 231

Enguerrand de Marigny, his trial, 494

Epicharis, her endurance, 437

Epileptics, torture of, 528

Epilepsy caused by false oaths, 373

Episcopal courts, duel in, 162 unlimited torture in, 511

Equality of combatants, 144 of weapons, 177

Equalization of champions, 194

Equestrian duel among Goths, 117

Equity of redemption not subject to duel, 141

Erembors, ballad of, 68

Erfurt, citizens tortured by Lothair II., 475 Dr. Bobenzan tortured, 526

Eric VII. on levying of _wer-gild_, 18

Erik Hakonsen abolishes duel, 199

Erkenbald de Burban, case of, 346

Erwig, King, on abuse of torture, 461

Escape in ordeal, explanation of, 401

Estates, succession to, regulated by duel, 129

Estevenes li Barbiers, case of, 519

Estrapade, the, 485

Ethelwold, St., his test of Elfstan, 282

Ethiopia, ordeals in, 256

Eubule-Evans on use of torture in Prussia, 582

Eucharist preliminary to ordeal, 280 the, as an ordeal, 344 beliefs connected with, 345 a sacerdotal purgation, 348 used in 17th century, 351

Eugenius II., cold-water ordeal ascribed to, 321

Eulalius, Count, tried by Eucharist, 348

Eurik, his Wisigothic Code, 458

Evidence, difficulty of rating it, 21 of relatives, 38 compurgation in default of, 52 not admitted in Wales, 55 compurgation to confirm it, 56 conjurators give none, 62 negative, in Barbarian laws, 73 absence of, requisite for duel, 142, 145, 239 supersedes duel, 155 of women not admitted, 122 received in 1396, 228 reliance on, in China, 252 false, allowed in India, 268 weight of, in bier-right, 370 ordeal in absence of, 385, 386 requisite to justify torture, 487, 523, 537 of clergy, 527 torture in default of, 465 external, necessary for conviction, 489 retracted, witness tortured for, 550 of witchcraft unattainable, 554 withheld from accused in France, 514 in Germany, 544 under torture, estimate of, in Rome, 446 unknown to Barbarians, 453 in modern times, 542, 547 of slaves requires torture in Greece, 433 in Rome, 440 under Barbarians, 452 under Goths, 459

Evil looks do not justify torture, 537

_Examen pedale_, 287

Excepted crimes in Rome, 439 under Wisigoths, 459, 460 in Castile, 464, 466 in Germany, 526

Exclusion of women as witnesses, 122

Exclusive salvation, results of belief in, 589

Excommunication of duellists, 207

Exemption from secular laws for clerics, 414 from torture in Rome, 438 in Spain, 463, 466 in France, 495 in Germany, 525 of nobles in England, 570

Exile after success in ordeal, 401 for retracted confession, 549

Exorcism for hot-water ordeal, 280 for red-hot iron ordeal, 288 in fire-test of relics, 315 for the corsnæd, 340 in ordeal of Eucharist, 347 of witches on trial, 556

Expenses of prosecution, 552

_Experimentum crucis_, 339

Explanations of results of duel, 136 of injustice of ordeal, 401

Extorted confession invalid in the Church, 478 received in Inquisition, 485

Extortion in ordeals, 417 torture used for, 476 of confession is homicide in England, 565

Eye, loss of, in duel, 145

Ezpeleta, his use of torture, 583

Fachtna Tulbrethach, 272

Failure in compurgation, 65 in duel through other sins, 137 in ordeal through other sins, 403

Faith in the intervention of God, 135

False Decretals, extorted confessions invalid, 478 on accusation of accomplices, 515

False money, ordeal for issuing, 393

Family, organization of the, 13 solidarity of the, 14, 19

Family ties superseded by Church, 19, 35

Farfa, Abbey of, case of, 155

Farinacci on torture of sleeplessness, 535

Fasting preliminary to ordeal, 280, 288

Father, his purgatorial oath, 41 and son, rule as to torturing, 543

Feast days, torture not to be used on, 505 torture on, 551, 556

_Fechtbücher_, 238

Fees to champions, 190, 195, 196 derived from ordeals, 415 their enforcement, 416 for administering torture in Peru, 511 in Valenciennes, 548

Feini, levying of fines, 18 tribal responsibility, 42 judicial duel among, 109 their judges warned, 272 hot-water ordeal used by, 273

Felix, St., of Nola, oaths on his relics, 372

Felonies, duel for, 146 champions not allowed in, 192 tried by water ordeal, 322

Felton, Thomas, challenges Raymond de Caussade, 229

Fendilles and Des Guerres, duel of, 234

Ferdinand and Isabella furnish counsel to accused, 469

Fernando III. (Castile), his charter to Medina, 202

Ferocity of judicial duel, 178

Fetish, invocation of, in ordeals, 255

Feudal jurisdictions, 219 courts, their publicity, 473

Feudalism, its struggle with civilization, 78 undermined by the Roman law, 212 struggle for the duel in France, 216 torture under, 473 its resistance to torture, 494

Fian, Dr., torture of, 573

Ficino, Marsiglio, his belief in bier-right, 365

Fiefs, titles to, settled by ordeal, 324, 387

Figeac, Abbey of, its advocate, 198

_Fijodalgo_, privilege of, 24

Fines, distribution of, 18 for conjurators, 64, 417 for withdrawing from duel, 144, 145 for defeated combatant, 167 for challenging in Bruges, 204 for losing party in the ordeal, 384, 416 torture in cases involving, 529

Fire, ordeal of, among the Persians, 266 in the Ramayana, 267 in the Manava Dharma Sastra, 268 in Greece, 270 in India, 303 among Hebrews, 303 in Christendom, 304 employed on relics, 314 precautions against unguents, 408

Fisherman of Utrecht, case of, 402

Flamen Dialis relieved from oath-taking, 36

Flanders, selection of compurgators, 48 compurgation in default of evidence, 54 compurgation retained, 82 villein cannot challenge a noble, 152 penalty for default in duel, 174 charters exempting from duel, 201-3 merchants exempted from duel, 204 duel abolished by Philippe le Bon, 231 survival of duel, 237 ordeal for second accusation, 392 torture system in, 521 evidence refused to accused, 544

Fleta, multiple oaths in, 28 negative proofs in, 74 definition of _secta_, 85

Fleurant de Saint-Leu, case of, 502

Fleury, Abbey of, 343

Floating of sorcerers and witches, 325

Florence, church subjected to duel, 160

Flower-buds in fire ordeal, 303

Foix, Raymond Bernard of, his duel, 222

Fontaines, Pierre de, ignores compurgation, 76 on appeals, 124 on gladiators and champions, 187 his opinion of the duel, 221 no reference to torture, 489

Fontanelle, Abbey of, its ordeal-iron, 288

Foot, loss of, for hired warrantor, 131 for hired champions, 191

For de Morlaas, duels in the, 134

_Forath_, 95

Forchheim, case of bier-right, 362

Forez, fines for withdrawing from duel, 144

Formosus, pope, case of, 382

Formulas of compurgation, 58 in Lille, 78 in the Inquisition, 90 of application for duel, 142 for the corsnæd, 340 for bier-right, 368 for unguent against fire, 408 to protect from torture, 557

_Fort_ of Bordeaux, 98

Fortescue, Sir John, on use of torture, 566

Foulcher de Chartres on lance of St. Andrew, 309

France (see also _Merovingian Law_, _Salic Law_, _Carlovingian Laws_). judicial use of oaths, 23 reduplicated oaths, 28 oaths required of prelates, 36 evidence of kinsmen excluded, 38 selection of compurgators, 40, 47 clients responsible for advocates, 70 decline of compurgation, 76 accusatorial conjurators, 94 Henry II. prohibits wager of battle, 107 challenging of witnesses, 121 protection of witnesses, 123 challenging of judges, 124 conditions of the duel, 140 minimum limit for duel, 147 Jews exempted from duel, 149 duels between different ranks, 149 liability of clerics to duel, 157, 159 _lex talionis_ in duel, 170 club used in duels, 176 champions a matter of course, 181 defeated, their punishment, 184 employment of, 193 decline of the duel, 216 its disappearance, 235 cold-water ordeal for witchcraft, 326, 330 ordeal of sieve-driving, 358 bier-right, 366 iron bands for parricide, 378 ordeals become obsolete, 423 reappearance of torture, 479, 487 resisted by Feudalism, 494 use of torture becomes general, 499 adoption of inquisitorial process, 513 applications of torture, 515 Ordonnance of 1670, 517 _réserve des preuves_, 518 abolition of torture, 583

Francesco della Puglia opposes Savonarola, 311

Francis I. challenged by Charles V., 106 grants the duel, 233 perfects the inquisitorial process, 514

Francis, St., uses ordeal of fire, 307, 309

Franconia, use of purgatorial oaths, 24

_Frangens jusjurandum_, 46

Frankfort, duel in 1369, 171

Franks, use of compurgation, 34 use of judicial duel, 113 use of ordeal, 274 punish sorcery with drowning, 325 compounding for ordeals, 384 torture of slaves, 453 torture of freemen, 470

Fratricide punished with iron bands, 377

Fraud, torture in cases of, 530 use of, in witch-trials, 558

Fredegonda, her compurgation, 39 her use of torture, 455

Frederic I. (Emperor) overthrows Henry the Lion, 133 his charter to Austria, 134 exempts traders from the duel, 204 prescribes iron ordeal for slaves, 292 ordeal at discretion of accused, 387 master’s oath clears a slave, 390 prescribes torture for theft, 475

Frederic II. (Emperor) on compurgation, 41 rules for compurgation, 54, 56 ignores compurgation, 75 prohibits clerics as judges, 73 compels clerics to duel, 159 allows defendant choice of weapons, 177 on cowardice of champions, 185 provides champions at public expense, 190 his charters to Ratisbon and Vienna, 204 denounces the duel, 212 prohibits the ordeal, 422 prescribes torture for treason, 475 is use of torture, 482

Frederic of Mainz takes ordeal of Eucharist, 348

Frederic the Great limits use of torture, 579

_Fredum_, 16

Freeman not liable to personal punishment, 65 and serf, combat between, 122 cannot be challenged by serf, 140 red-hot iron ordeal for, 291 not tortured in Greece, 432 not subject to torture in Rome, 434 exceptions, 435, 437, 439 is a Roman citizen, 440 not tortured among Ostrogoths, 457 limitation on torture of, under Wisigoths, 459, 460 subject to torture in Castile, 464 inviolability obsolete, 470 presence required at the _mallum_, 472

Freedman not tortured in Greece, 433 not tortured against his patron in Rome, 442 among Ostrogoths, 457 against patron in Spain, 464

Freisingen, duels of women in, 153

Frese, Georg, his ordeal, 301

Friends, evidence of, excluded, 38

Frisian laws, oaths in, 23 use of compurgation, 34 rules for compurgators, 47 compurgation and ordeal combined, 61 penalties of conjurators, 64 judicial duel in, 114 facilities for judicial duel, 119 either party can claim the duel, 140 right of _litus_ to the duel, 148 hired champions allowed, 180 hot-water ordeal, 283 ordeal of the lot, 353 ordeal for defeated accuser, 385

Frisia, ordeals persisted in, 422 torture not used, 563

_Frithborgs_, 41

Frotho III. orders judicial duel, 110

Fuero Juzgo, no compurgation in, 75 torture in, 461

Fuero Viejo, compurgation in, 75, 80

Fulk the inquisitor, his abuse of torture, 486

Fulk Nera, his charter to Abbey of Beaulieu, 161

Fulvius Flaccus, case of, 448

Furstenberg, Count of, uses the ordeal, 300

Gaddi and Altoviti, duel of, 236

Gæum, ordeal used in the, 270

_Galanas_, 40

Galbert, his explanation of ordeal, 401

Galicia, hot-water ordeal in, 281

Gallius, Q., case of, 435

Gascony, land title decided by cold-water ordeal, 323

Gauls, torture of widows among, 452

Gauntlet, iron, ordeal of, 296

Gautama, ordeal unknown to, 268

Gavarret, revenue from ordeal at, 415

Geiler von Kaisersberg opposes torture, 575

Gelmirez, Diego, authorizes duel, 132

Gengulphus, St., his improvised ordeal, 286

George IV. abolishes torture in Hanover, 581

Geirröd, his torture of Odin, 454

Gerald, St., of Braga, case of, 379

Gerard of Cambrai on torture of heretics, 474

Gerberga drowned as a witch, 325

_Gerefa_, 48

Gerhardt, E., on ordeal for witches, 332

Germany (see also _Sachsenspiegel_, _Schwabenspiegel_, _Sachsische Weichbild_). purgatorial oaths, 23, 24 of father, 41 _sinodales homines_, 41 rules for compurgation, 54 _juramentum supermortuum_, 56 use of advocates, 70 clerics not to be judges, 73 compurgation retained, 80 accusatorial conjurators, 96, 97 judicial duel among ancient Germans, 112 challenging of judges, 126 legislative function of duel, 129 duel habitual in criminal cases, 135 theory of guilt, 136 limitations on the duel, 141 crimes liable to duel, 147 penalty of defeat in duel, 171 of default in duel, 173 weapons allowed, 177 champions a matter of course, 190 exemptions granted to the towns, 204 prolongation of the duel, 238 use of hot-water ordeal, 283 titles to fiefs settled by water ordeal, 324 cold-water ordeal in witchcraft, 326 ordeal of sieve-driving, 358 cases of bier-right, 362 formula for bier-right, 368 use of ordeal in civil cases, 387 ordeal for convicts, 392 persistence of ordeals, 423 mediæval use of torture, 475, 476 reappearance of torture, 479, 505 torture established, 522 disused, 579 substitutes for torture, 582

Gerode, Abbey of, its ordeal, 295

Geroldus converts Mecklenburg, 277

Gerstlacher, his defence of torture, 580

Getter’s case, bier-right in, 367

Ghent, laws of, no allusion to ordeal, 202 ordeal for slaves, 394

_Ghee_, boiling, ordeal of, 283

Giraldus Cambrensis on study of Roman law, 73

Gifts to hired champions, 191

Giuliano Rondinelli, his ordeal of fire, 311

Gladiators identified with champions, 187 subject to torture in Rome, 441

Glanville, jury-trial ascribed to him, 48 allusions to compurgation, 70 prescribes cold-water ordeal for slaves, 322 knows nothing of torture, 564

Glastonbury, Abbey of, its hired champion, 197

Gloucester, Statute of, 242 Thomas of, his duel code, 241

Glove as gage of battle, 245

_Gobereen_, ordeal of, in Rajmahal, 259

God, judgment of, faith reposed in, 102 tempting of, in the ordeal, 207, 411 his interposition expected, 250 appeals to, among Hebrews, 261

Godelmann on cold-water ordeal in witchcraft, 328

Godfrey, St., his charter to Amiens, 201

_Godi_, Norse priest and judge, 27 decides as to compurgation, 53

Godwin of Kent, his death, 341

Golden Bull, torture in, 505

Golden Calf, ashes of, as ordeal, 262

Gonsalvo de Cremona, 359

Gothic ritual defended by duel, 132 by fire ordeal, 313

Goths (see also _Ostrogoths_ and _Wisigoths_). compurgation not used, 34 use of judicial duel by, 115 their civilization, 456 their use of torture, 457

Gout cured by torture, 528

Gräfe, Johann, opposes torture, 576

Grágás (see _Iceland_).

Grammatico, Tomaso, on punishment for suspicion, 520

Gran, council of, 1099, prescribes the ordeal, 410

Grand jury, presentation by, 388

Grandier, Urbain, case of, 556

Grateley, council of, 928, regulation of ordeal, 406

Gratian does not condemn the ordeal, 413 on extorted confessions, 478

Greece, family organizations in, 15 oaths used, 26 traces of compurgation in, 34 traces of judicial duel, 108 ordeals in, 270 oath of the gods, 371 use of torture in, 432 varieties of torture, 434

Greeks, duels with Franks, 151

Gregory I. on oaths on relics, 372 extorted confessions invalid, 478

Gregory II. prescribes oaths for clerics, 36

Gregory III., penitential of, on oaths, 30

Gregory VII., his war on simony, 62 introduces Roman ritual in Spain, 132 tries cold-water ordeal, 324 takes ordeal of Eucharist, 349 his improvised ordeal, 350

Gregory IX., his Decretals, 419 on purgation of heresy, 484 prohibits counsel to accused, 487

Gregory XI. condemns the Sachsenspiegel, 210, 420

Gregory of Tours, his purgatorial oaths, 28 accused by Leudastes, 454

Grenoble, accused refused a hearing, 518

Grillandus on compurgation, 93 on torture of sleeplessness, 535 his five degrees of torture, 543 on charms against torture, 557

Grimkel, Bishop, tests relic with fire, 316

Grimoald, King, restricts judicial duel, 114 restricts right of slaves to duel, 148

Grossolano, Archbishop, convicted by ordeal, 306

Gualberto, St. Giovanni, urges the ordeal, 305

Guarantees required for oaths, 25 of compurgatorial oath withdrawn, 72

Guardians, required to provide champions, 153

Guardianship cases, slave torture in, 442

Gudrun, Queen, cleared by the ordeal, 385

Guelf, Bavarian house of, founded, 133

Guibert of Nogent uses ordeal for heretics, 410

Guido, Abbot, of Pescara, 157

Guy (Emp.) on duels of clerics, 155

Guilds to furnish conjurators, 82

Guillot de Ferrières, case of, 492

Guilt before God but not before man, 136

Guisbert, Ladislas, case of, 588

_Gulathingenses Leges_, partition of _wer-gild_, 18 selection of compurgators, 50 oath of compurgators, 59

Gundeberga, Queen, case of, 113

Gundobald, King, use of duel ascribed to, 112 the duel as remedy for perjury, 118

Gunner’s case, 86

Gushtasp converted by the ordeal, 295

Gustavus Adolphus, compurgation in his laws, 83

Gyda, Queen, duel for, 115

Hainault, penalty for default in duel, 173 charter of 1619, torture in, 556

Hako Hakonsen on division of _wer-gild_, 18 choice of compurgators, 49 oath of compurgators, 59 prohibits ordeal, 422

Hair may float in cold-water ordeal, 319

Hale, Sir Matthew, on the duel, 245

Hales, Alexander, on duel, 209 condemns ordeals, 420

Halle, citizens tortured by Lothair II., 475 punishment without conviction, 521 torture of aged in, 527

Hanche, Adolf, his duel, 171

Hand of bishop, oath taken on, 30

Hand, loss of, for perjury, 64 for hired champions, 191 wrapped up after ordeal, 280, 288

Hanover, torture abolished, 581

Hans Speiss, convicted by bier-right, 363

Hardening to torture, 558

Harold Blaatand abolishes duel, 200 converted by ordeal, 295

Harold the Simple abolishes duel, 200

Harry, slave, convicted by bier-right, 367

Haselwood, Wm., uses ordeal of sieve, 358

Hatchet used in iron ordeal, 289

Hatred excuses from duel, 146

_Haut-justiciers_, their rights over duel, 218

Haynokes, Susannah, case of, 336

Hearing refused to accused, 518, 547

Heaven, its interposition relied on, 251

Hebrew customs, sacrificial oaths, 26, 27 use of ordeals, 261 fire ordeal, 303 torture not used, 430

Hela, witch tried by ordeal in, 333

Hellenic _Patræ_ and _Phratriæ_, 15

Hen used in ordeal, 256

Henry II. (Emp.) accepts a duel, 134 restricts use of champions, 189 accords duel to the guilty, 131 hangs thieves convicted by the duel, 135 cold-water ordeal for slaves, 322

Henry III. (Emp.) on number of conjurators, 43 rules for compurgation, 54 challenges Henry I. (France), 130 charter to church of Volterra, 161

Henry IV. (Emp.) offers the duel, 133 his charter to Pisa, 200 refuses ordeal of Eucharist, 350

Henry V. (Emp.) his charter to Venice, 57

Henry I. (England), laws of, compurgation abolished, 67 his charter to London, 201

Henry II. (Engl.) exempts clerics from duel, 158 forbids hiring of champions, 190 his bleeding after death, 360

Henry III. (Engl.) prohibits the ordeal, 421

Henry VIII., compurgation under, 92 use of torture under, 566, 568

Henry II. (France) swears to grant no duels, 234

Henry III. (France) revises coutumier of Normandy, 79, 231

Henry IV. (France) edict against duels, 104 his pardons to duellists, 107

Henry II. (Navarre) grants the duel, 233

Henry of Bavaria buries a tortured pilgrim, 474

Henry of Essex, case of, 137

Henry, Duke of Limburg, 343

Henry the Lion, case of, 133

Henry of Lorraine claims jurisdiction of duel, 238

Henry I. of Mainz administers the ordeal, 295

Henry of Strassburg convicts heretics by ordeal, 419

Henry of Susa pronounces ordeals illegal, 420

Hepburn and Brown, duel of, 240

Hera, oaths taken by, 26

Heracles pays for murder of Iphitus, 15

Heretics, compurgators for, 88 conviction of, by ordeal, 297, 410, 419 ordeal forbidden in their trial, 419 torture used in 1025, 474

Heresy, no limitations on torture, 467 torture habitually used, 484

Herigarius, miracle granted to, 379

Herkia defeated in ordeal, 385

Hermann of Cologne, conversion of, 418

Hermann of Slavonia prescribes compurgation, 84

Hermann of Suabia challenges Henry II., 134

Hermes, mutilation of statues of, 433

Herzegovina, ordeal for witches, 333

Hidulf, St., power of his intercession, 377

Hildebert of Le Mans on torture, 475

Hinemar, his rules for compurgators, 47 his eulogy of hot-water ordeal, 278, 282 explanation of cold-water ordeal, 319 ordeals for witnesses and compurgators, 389 his suggestion of a champion, 398

Hindu customs (see _India_).

Hiring of champions, 190, 193, 195

Hirpi walk over burning coals, 287

Hoel Dda, his laws, 20 abrogation of ordeals ascribed to, 110

Holland, ordeal of balance in, 335 torture system in, 521, 576 disuse of torture, 577

_Holm-gang_, 111 abolition of, 199

Holstein, bier-right in, 364

Holy Coat of Trèves, 422

Holy Ghost, ordeal of, 381

Holy water used in ordeal, 281, 407

Holyrood, Abbey of, its jurisdiction, 162

Homicide, penalty of, at Arques, 13 duel necessary to prove it, 142 inferior can challenge superior, 151

_Homines sinodales_, 41

_Homo infamatus_ sent to ordeal, 392

Honor, duel of, 104

Honorius III. forbids clerical duels, 160 prohibits ordeals, 423

Honorius of Autun sanctions ordeal, 413

Horatii and Curiatii, preliminary oath, 271

Horatius, _wer-gild_ paid by, 15

Host, consecrated, power of, 347

Hot-water ordeal in Japan, 253 in Ethiopia, 256 in Madagascar, 257 among the Khonds, 258 in Rajmahal, 259 among the Mazdeans, 265 in Tibet, 269 among the Feini, 272 in earliest Salic law, 274 among the Wisigoths, 275 its use in Europe, 278 swallowing hot water, 283 its use in India, 283 miraculous cases, 285 used for trifling cases, 292 patrician or plebeian ordeal, 322

Household slaves, torture of, in Spain, 464

Hubert, Bishop of Worcester, 40

Huesca, ordeals prohibited in, 424

Hugh Capet challenged by Louis d’Outremer, 130

Hugh, king of Italy, 128

Hugh, legate, refuses bribe, 62

Hungary, liability of clerics to duel, 157 restriction of duel in, 237 ordeals introduced, 277 use of iron ordeal, 299 witches tried by ordeal in 1730, 332, 335 ordeal for all suspects, 388 preservation of purity of ordeal, 405 privilege of administering ordeals, 415 fees for ordeals, 416 ordeals prohibited in 1279, 423 torture legalized, 508

Husband and wife, rule as to torture of, 543

Hutten, Ludwig von, declines a challenge, 238

Iarnsida, partition of _wer-gild_, 18 selection of compurgators, 50 compurgation in default of evidence, 54 oath of compurgators, 59 use of compurgation, 82 no torture in, 562

Iceland, legal process in, 17 levying of fines, 18 sacrificial oaths, 27 use of compurgation, 35, 82 admission of compurgation, 53, 54 oaths of compurgators, 59 accusatorial conjurators, 97 use of duel in, 111 penalty for default, 174 duel abolished, 199 use of red-hot iron ordeal, 292 accused can demand ordeal, 387 ordeals abolished, 422 use of torture, 561

_Ictus capituli_, 163

Idol-water as an ordeal, 344

_Iesameh_, 29

Iglau, compurgation in laws of, 84 the duel in, 205

Illegal torture renders confession invalid, 550

Illinois, bier-right in, 368

Illusions, diabolic, in ordeal, 408

Imagination, influence of, in ordeals, 339, 396

Imbrico of Augsburg, his ordeal of Eucharist, 351

Immunity of clerics from secular law, 414

Imprecations, use of, in Assyria, 260

Imprisonment for retracting confession, 549

Incest, evidence of slave in cases of, 444

Incrimination of accomplices rejected in Rome, 443 accepted in modern times, 484, 515, 517, 546, 562, 570, 584

Incontinency, compurgation for, 87

India, communal organization in, 14 use of oaths, 25 evidence of friends and kinsmen excluded, 38 duel to avert battles, 104 judicial duel not used, 108 limitations on witnesses, 122 champions allowed in ordeals, 179 ordeals of pre-Aryan races, 258, 291, 344 oaths as ordeals, 267 ordeal of fire, 267 complicated ordeal system, 268 is a religious ceremony, 269, 280 ordeal of boiling oil, 283 of red-hot iron, 289 of fire, 303 relics tested by fire, 314 ordeal of cold water, 319 of balance, 334 of endurance, 339 of rice, 344 of cosha, or idol-water, 344 of chance, 352 of poison, 375 only for doubtful characters, 384 either party can undergo the ordeal, 384 minimum limit of ordeals, 391 torture unknown, 431

Infamy of champions, 187 ordeal in cases of, 388

Influence of torture on judges, 534

Informers, responsibility of, in Rome, 440, 446 under Wisigoths, 459

Injustice of ordeal, explanation of, 401

Innocent I. on use of torture, 477

Innocent II. prescribes compurgation, 62, 71 forbids clerics to fight, 156

Innocent III. modifies compurgatorial oaths, 71 orders purgation for heresy, 89 on failure in duel, 137 forbids clerics to fight, 156, 158 his relation to the duel, 208 suppresses the ordeal, 418

Innocent IV. forbids clerical duels in France, 159 orders torture to discover heresy, 484

Innocent VIII. on torture of clerics in England, 566

Inquest of Fame, 71

Inquests, torture not used in, 499, 512

Inquisition, its use of compurgation, 89 its use of torture, 483 extortion of confession, 485 its influence on use of torture, 486, 512 restricted by Council of Vienne, 511 torture to discover accomplices, 516

Inquisition of State in Venice, 507

Inquisitorial Process, the, 512 becomes general, 499 not used in Poland, 509 retained in Germany, 581

Inquisitors dispensed for use of torture, 484

Insane, the, exempt from torture, 528

Inscription of accuser in Rome, 440, 446 under Wisigoths, 459

Intervention of God expected in the duel, 135

Inundation of 1219 caused by ordeals, 422

Inverness exempted from duel, 201

Involuntary perjury, penance for, 31

Ipswich, selection of conjurators in, 49

Ireland, solidarity of the family in, 15 levying of fines, 18 tribal responsibility, 42 judicial duel among the Feini, 109 duel in 1583, 243 inspiration of judges, 272 hot-water ordeal in, 273 hot-iron ordeal for women, 292 ordeal of the lot, 354 of the oath, 374 use of the Clog Oir, 397

Irregular ordeals, 377

Irregularity of clerics, 484

Iron bands used as an ordeal, 377

Iron ordeal (see _Red-hot iron_).

Isaac, assassin of Charles the Good, 474

Isidor of Seville on perjury, 31

Islam, reduplicated oaths, 29 accusations of adultery, 46 oaths as ordeals in, 263

Italy (see also _Lombard Law_, _Sicilian Constitutions_). conjurators to confirm witnesses, 56 challenging of witnesses, 120 Otho II. enlarges the sphere of the duel, 131 cases admitting the duel, 141 the Church subjected to the duel, 155, 160 jurisdiction of the Church over duel, 163 oaths preliminary to the duel, 166 penalty for defeat in duel, 169 duels fought to the end, 178 champions always employed, 182 as a profession, 189 restrictions on use of, 189 equalization of, 194 abrogation of duel, 235 bier-right, 365 ordeals prohibited in Naples, 422 in 15th century, 425 reappearance of torture, 481, 484 its development, 506 its abolition, 586

Itzehoe, case of bier-right in, 365

Ivan III., torture introduced by, 509

Ivo of Chartres, distrust of compurgation, 61 refuses to grant the duel, 162 his opinion of the ordeal, 401, 412 claims exemption of ordeal for priests, 414 on extorted confessions, 478

Jacintus, his hot-water ordeal, 279

Jacob’s Review of the Statutes, 86

James I. grants the duel, 240 approves of ordeal for witches, 330 his belief in bier-right, 361 torture under, 567, 568 his torture of Dr. Fian, 573

Jamnuggur, ordeal in 1867, 284

Janssen, Hendrik, torture of, 578

Jardine on torture in England, 566

Jarnac, his duel with La Chastaigneraye, 106

Japan, judicial duel in, 108 ordeals in, 253 use of torture, 432

Jayme I. (Aragon) restricts torture, 462 prohibits the duel, 214

Jeanne de Bourgogne, offers the combat, 226

_Jeffniteed_, 97

Jehan de Warlus, case of, 501

Jerusalem, Assisses de, 75 on use of counsel, 70 reject negative proofs, 74 no compurgation, 75 women cannot be witnesses, 122 limitations on duel, 143 limit of value for duel, 148 discrimination of race in, 151 champions supplied to the poor, 152 no duel in mercantile law, 165 _lex talionis_ enforced, 170 penalty of defeat for women, 173 champions as witnesses, 183 punishment of defeated champion, 184 red-hot iron ordeal plebeian, 292 use of iron ordeal, 298 ordeal for all suspects, 388 reappearance of torture, 480

Jew, duel with, ordered by the Virgin, 209 ordeal to convert, 296

Jews (see also _Hebrews_). their liability to the duel, 149, 151 asking pardon of a corpse, 360 convicted by bier-right, 362 ordeal of brambles for, 382 torture of, by King John, 477 in Bourges, 492 mode of executing them, 503

John XII. challenged by Bishop Liutprand, 129

John, King (England), favors the duel, 241 tortures Jews, 477

John, King (France), abrogates compurgation, 78

John, Bishop of Avranches, recognizes the ordeal, 412

John, Bishop of Didymoteichos, 402

John of Coldinghame, 191

John of Freiburg on duel in episcopal courts, 165

John of Freiburg—denounces ordeals, 420

Jonah, use of lot, 262

Jonathan, case of, 262

Joseph II. abolishes torture, 581

_Jovem lapidem jurare_, 270

Judaism (see _Hebrews_).

Judges decide as to compurgators, 53 challenging of, 123 royal, not liable to appeal, 126 discretion in granting duel, 140, 146 inspiration of, in Islam, 263 inspiration of, among Feini, 272 responsibility for torture under Wisigoths, 458, 460 in Castile, 465, 467 in Italy, 507 in France, 515 in Germany, 523 responsibility elusory, 533 using torture liable for homicide in England, 565 cannot be witnesses, 509 everything left to their discretion, 533, 538, 541, 549 abuse of their discretion, 545 influence of torture on, 534 their abuse of torture, 539 their neglect of favoring evidence, 544

Judgment of God expected, 250 faith reposed in, 102 appealed to by Hebrews, 261

Judgment reversed, penalty of, 124, 126 of blood forbidden to clerics, 471

Judicial duel, 101

_Judicium_ means ordeal, 298

_Judicium crucis_, 336

_Judicium ferri_, 287

_Judicium offæ_, 339

_Juise_, 287, 298

Julius (Pseudo) forbids evidence of accomplices, 515

Julius II., his bull against duels, 236

_Jura de juicio_, 22

_Juramentum supermortuum_, 55

_Juratores_ (see _Conjurators_).

Jurisdiction over duel, profits of, 218 over ordeals, its advantages, 415

Jury and ordeal combined, 388

Jury-trial, rise of, 48 as substitute for duel, 144 for pleaders unable to fight, 192 in Denmark, 562 influence of, on the duel, 241 in England, 564

_Jus cruentationis_, 359

_Jus feretri_, 359

_Jus Provinciale Alamannicum_ (see _Schwabenspiegel_).

_Jus Provinciale Saxonicum_ (see _Sachsenspiegel_).

_Jusjurandum in jure_, 21, 22

Jusiers, church of, its exemption, 158

Justice, tardy recognition of, 13

Justinian orders torture for adultery, 439 enforces the _talio_, 440 orders torture of witnesses, 441

Kai Kaoos orders fire ordeal, 266

Kalabarese ordeals, 254

Katrington, his duel, 179

Kayser-Recht, duel limited in, 205 denounces the duel, 212 no allusion to torture, 480

Keller, Fried., opposes torture, 576

_Keure_ de Bruges, 203

_Keyser Retenn_, 563

Khandogya Upanishad, its explanation of the ordeal, 267

Khonds, ordeals among the, 258

Kilty on duel in Maryland, 247

Kincaid, a witch-pricker, 571

King _vs._ Williams, case of, 86

Kinship a bar to duel, 141

Kinsmen, responsibility of, 14, 18, 19 their evidence, 38 not admitted in Castile, 465 as compurgators, 38, 40, 45, 48, 50 as champions, 180 witness not tortured against, 542

Knighthood, oath of, 186

Knipschild on torture of nobles, 526

Knox, John, on Bothwell’s challenge, 240

Koran, accusation of adultery in, 46

Kraku Hreidar, 111

Kshatriya caste, oaths required of, 25

La Chastaigneraye, his duel with Jarnac, 106

Lactantius, his account of persecution, 437

Ladislas, St., prevents collusion in ordeal, 405 regulates fees for ordeals, 416

Lafon, Mary, on _affaire Calas_, 585

_Lag feste men_, 41

Lambert of Redenberg, case of, 401

Lambert of Tuscany, his duel, 128

Lamoignon on counsel for accused, 517

Lance of St. Andrew, case of, 308

Lancelotti prescribes compurgation, 93

Land, communal holding of, 14 acquired by duel, 111, 211

Land-titles decided by ordeal of cross, 339

Lang, J. P., on cold-water ordeal for witches, 330

Languedoc, use of torture in, 495

Laon, theft of sacred vessels of, 136, 324, 474

Lascaris, Theod., invents a torture, 554

La Seauve, Abbey of, its revenue from ordeals, 415

Lateran, council of, 1216, on heresy, 89 forbids clerics to fight, 156 forbids the duel, 208 forbids priestly ministration in ordeals, 419 on purgation of heresy, 484

Latins, ordeals disused among, 270

Lausanne, chapter of, adjudges the duel, 162

Law means compurgation, 57 personal, not territorial, 131

Lawyers, advantage of employing, 70 exempt from torture in Castile, 467

Laymen as compurgators for clerics, 44 sin of shaving by, 403

Lebanon, Ills., bier-right in, 368

Ledesma, case of bier-right in, 366

Legislation, secular, against ordeals, 421

Legislative functions of duel, 129, 133

Legitimacy proved by ordeal, 273, 381

Le Gris and Carrouges, duel of, 229

Lemarinier, Jehan, case of, 517

Lemgow, cold-water ordeal in, 327

Lent, ordeal administered in, 410

Leo III. (Pope) clears himself by compurgation, 35 cold-water ordeal ascribed to, 321

Leo IV. forbids ordeal of lot, 353

Leo X., his prohibition of duels, 236

Leopold, Gr. Duke, abolishes torture, 586

Leper cured by St. Martin’s relics, 380 battle not allowed to, 141

_Les cous lou roi_, 163

Lescar, Bishop of, uses the ordeal, 295

_Lèse majesté_, first recognition of, in France, 495 its appearance in England, 564

Lessingon, patronage of church of, 119

Leudastes, case of, 454

_Lex apparens and simplex_, 148

_Lex Gundebalda_, 112

_Lex Monachorum_, 412

_Lex talionis_ (see _Talio_).

Lhotka, assembly of, 355

Libo, prosecution of, 443

Lie as preliminary to duel, 229

Liége, Bishop of, demands the duel, 160 use of torture in, 505

Liguaire, St., quarrel over his relics, 354

Life not to be jeoparded in torture, 465, 467

Lilburn and Claxton, case of, 244

Lille, responsibility of kindred, 19 formula of compurgation in, 78 torture not used in, 498

Lillebonne, council of, 1080, on clerical duellists, 156 on fees for ordeals, 416

Lima, fees for torturing in, 511

Limitations on the duel, 140 on use of champions, 189 on torture in Rome, 445 in Castile, 465 none in Châtelet of Paris, 500 in Italy, 506 disregarded, 526

Limbs not to be crippled in torture, 465, 467

Lindisfarne, unchaste priest of, 346

Lioba, St., undergoes ordeal of cross, 337

Lists, biers placed in, 172

_Litus_, his right to duel, 148

Liutgarda forced to duel, 123

Liutprand (King), on perjury of compurgators, 63 restricts judicial duel, 114

Liutprand, Bishop, his challenges, 129

Liutprand convicts Grossolano by ordeal, 306

Livonians asked to be relieved from ordeals, 423

_Livre de Jostice et de Plet_ requires compurgation, 76 no reference to torture, 488

Ljot the Pale, 111

Loaf of bread, ordeal of, 357

Lombard law— rules for compurgation, 47, 50, 53 withdrawal of confession, 52 oath of compurgators, 58 ceremony of compurgation, 60 witnesses outweigh conjurators, 62 perjury of compurgators, 63 Otho II. limits compurgation, 67 judicial duel, 113 Otho II. extends use of duel, 118, 131 duel allowed to the guilty, 131 minimum limit for duel, 147 right of slaves to duel, 148 liability of clerics to duel, 155 penalty for defeat in duel, 168 kinsmen as champions, 180 champions always employed, 181 freedmen or clients, 186 restrictions on use of champions, 189 use of hot-water ordeal, 283 cold-water ordeal prohibited, 322 for slaves, 322 duel for cases of sorcery, 326 ordeal of cross prohibited, 338

London, exemption from duel granted, 201

Loquetier, Nicholas, case of, 493

Lord and vassal, no duel between, 146

Lorraine, Dukes of, their rights over duel, 238

Lorris, oaths in laws of, 23 fines for withdrawing from duel, 144

Lot, ordeal of the, 352 among Hebrews, 261 in Greece, 270

Lothair, King, his divorce from Teutberga, 281 dies of ordeal of Eucharist, 349

Lothair I. (Emp.), formula of compurgation, 53 prohibits cold-water ordeal, 322 prohibits ordeal of cross, 338

Lothair II., his use of torture, 475

Loudon, charter of, 391

Louis le Débonnaire tries Pascal I., 37 on selection of conjurators, 51 compurgation in lack of evidence, 53 on penalty for defeat, 167 condemns cold-water ordeal, 321 prohibits ordeal of cross, 338 orders freemen present at _mallum_, 472

Louis II. (Emp.), compurgation in lack of evidence, 53 decides cases in favor of Siena, 56

Louis IV. (Emp.), his charter to Dortmund, 205 punishes Ueberlingen, 363

Louis d’Outremer offers duel to Hugh Capet, 130

Louis VI. (France) grants charter of Loudun, 391

Louis VII., his charter to Lorris, 23 exempts the church of Jusiers, 158

Louis VIII., his charter to Crespy, 203

Louis IX. on use of oaths, 23 makes clients responsible for advocates, 70 his Établissements, 76 restricts challenging of judges, 125 prohibits duel between brothers, 141 enforces the _lex talionis_, 170 his struggle with feudalism, 216 his restriction of the duel, 217 punishes Enguerrand de Coucy, 221 torture not in his laws, 488 gives facilities for defence, 512

Louis X. endeavors to repress the duel, 227 orders cold-water ordeal for sorcery, 326 maintains use of torture, 494

Louis XIV. revises the torture process, 517

Louis XVI. abolishes torture in France, 585

Louis of Saxony, his use of the ordeal, 400

Lourdes exempted from duel, 202

Low _vs._ Paramore, case of, 139, 243

Lowe’s case, torture in, 571

Lubeck, introduction of torture in, 483

Lucerne, case of bier-right, 363

Lucius III. annuls judgment by ordeal, 418

Lucretius quoted for bier-right, 360

Ludlow, ordeal of Bible and key, 357

Luitzes, their duel with Saxons, 131

Lust, unnatural, torture for, in Rome, 439

Lycanthropy, prolonged torture for, 529

Lyons, council of, 1080, on simony, 62 Archbishop of, uses ordeal for heretics, 411

Macarius, St., his appeal to God, 251

Maci, Jehannin, case of, 501

Madagascar, ordeals in, 256

Madrid, compurgation in fuero of, 75

Magdeburg, thieves convicted by the duel, 135

Magi use fire-test on swaddling cloth of Christ, 315

Magic arts in duel, 139 in ordeal, 407, 410 torture in trials for, 469, 554

Magicians lose their specific gravity, 325, 334 tortured in Rome, 439 their evidence not received, 523

Magna Charta, no allusion to torture in, 564

Mahabharata, the, 14

Mahomet on accusations of adultery, 46 on interposition of God, 262

Mahuot and Plouvier, duel of, 232

Maiming, permanent, prerequisite for duel, 142

Mainz, council of, 847, ordeal for slaves, 394 council of, 848, prescribes iron ordeal, 291 councils of, 888 and 1028, prescribe the ordeal, 410 Templars offer the ordeal, 299

_Majestas_, torture in, 435, 438, 443 its extension, 436

Majjars, ordeals introduced among, 277

Majorca, duel prohibited, 214 ordeal prohibited, 424

_Mallum_, regulations for holding it, 471

Manasses of Reims deposed for simony, 62

Manava Dharma Sastra, village communities in, 14 oaths prescribed in, 25 on perjury, 267 ordeals described in, 268

Mandeure, ordeal of staff in, 396

Manichæan defeated by fire ordeal, 304

Manorial courts, compurgation in, 57

Mansuetus, St., power of his intercession, 378

Mantra in Hindu ordeals, 289 for cold-water ordeal, 319 for ordeal of balance, 335 for poison ordeal, 375

Manuscripts tested by fire, 313

Marches, Scottish, duel universal, 145 liability of clerics to duel, 158 death does not release from duel, 174

Marcus Aurelius, his exemptions from torture, 438

Maresca, Marc Antonio, case of, 520

Maria Theresa, torture in her laws, 580

Marguerite de la Pinele, case of, 503

Marmoutiers, Abbey of, case of, 404

Marne, jurisdiction of duel at, 163

Marriage, compurgation to prove nullity, 93 tested by ordeal, 336, 410

Marshal’s court, the, regulates duels, 241

Marschalck, his duel, 172

Marsigli, Hipp. de’, his case of bier-right, 365 his torture of sleeplessness, 535 on abuse of torture, 539

Martial, St., of Limoges, perjury on his altar, 373

Martin of Austrasia, 29

Martin, St., vindicates his relics, 380 his cope used in compurgation, 60

Martin II. forbids duel of Charles of Anjou, 106

Mary, wife of Otho III., story of, 293

Mary, Queen, torture under, 568

Maryland, compurgation in, 88 appeal of death in, 247

Mass as part of the ordeal, 413 mortuary, in ritual of ordeal, 394

Massachusetts, appeal of death in, 246 use of torture in, 569 _peine forte et dure_, 575

Masserano, Marquis of, 531

Master’s oath clears a slave, 22, 390

Master and serf, no duel between, 146 his consent necessary to his serf’s duel, 149 slaves not tortured against, in Rome, 442 except in treason, 443 other exceptions, 444 under Ostrogoths, 457 under Wisigoths, 459 in Spain, 464 repaid for damage to tortured slave in Rome, 445 among Barbarians, 452 under Wisigoths, 458 in Castile, 468

Maternal kindred as compurgators, 45

Mathieu le Voyer sues Louis IX., 219

Matthias Corvinus restricts the duel, 237

Maubourguet exempted from duel, 203

Maumarel, Guillaume, 157

Maur, St., perjury on his relics, 273

Maximilian I. restricts compurgation, 81

Maximus on crimes involving torture of slave against master, 444

Mazdeism, ordeals in, 265, 295 torture not prescribed in, 431

Mecklenburg, ordeal introduced into, 277

Medina del Pomar exempted from duel, 202 ordeals prohibited, 424

Melanesians, judicial duel among, 108

Men, hot-iron or water ordeal for, 292

Menelaus and Paris, their duel, 108

Mennonites, use of the lot by, 355

Mental torture efficacious, 543

Mercantile law, duel not recognized in, 165 adverse to use of torture, 483 torture used in, 530

Merchants, multiple oaths by, 28 exempted from the duel, 204

Merida, council of, 666, on torture by priests, 554

Merovingian laws, accusatorial conjurators, 94 ordeal for slaves, 453 of the lot prescribed, 353 in absence of evidence, 386 precautions against collusion in ordeals, 405

Merovingians, torture used by, 454

Merseburg, thieves convicted by the duel, 135

Messalina, her torture of patricians, 439

Metz, Bishop of, has jurisdiction over duel, 164

Mexico, ordeal of oath in, 259

Michael Palæologus condemned to ordeal, 299

Milan, disappearance of duel in, 236 fire ordeal in, 306 restrictions on torture in, 506

Miles the Stammerer, his duel, 138

Milhaud, torture used in, 499

Minimum limit of value for duel, 147 for ordeals, 391 for ordeal in India, 290

_Mir_, the Russian, 15

Miracle, endurance of torture is a, 504

Miraculous hot-water ordeals, 285 red-hot iron ordeals, 301

Miralles, Archbishop, tests relics by fire, 317

Mirandola, limitations on torture in, 507

Miroir de Souabe, ordeals in, 424

Modena, iron ordeal in, 299 Bishop of, claims jurisdiction of duel, 163

Modestinus, his estimate of torture, 446

Modestus tortured by Fredegonda, 455

_Moine de Caen_, 516

Monasteries, their interest in ordeals, 415 torture in, 560

Monks as compurgators for monks, 93 appear personally in duels, 156 torture of, 560, 568

Montaigne argues against torture, 576

Montano of Toledo, his ordeal, 305

Montargis, story of dog of, 228

Monte Cassino, test of relics by fire, 316

Montenegro, ordeal for witches, 333

Montesquieu denounces torture, 583

Montigny-le-Roi, ordeal for witches at, 331

Montfort, Simon de, restricts the duel, 208

Montpellier, limitation on duel, 146 on ordeal, 387

Montricher, Sire de, case of, 150

Monza, duel of abbey at, 158

Mt. Gerizim, its claims tested by fire, 314

Moore, Samuel, case of, 510

Morann, his miraculous chain, 272

Moravia, the duel in, 205

Mortuary mass in ritual of ordeal, 394

Motive extenuates perjury, 31, 268

Mowbray, Francis, condemned to the duel, 240

Mozarabic rite defended by duel, 132 tested by fire, 313

Mstislas Davidovich exempts merchants from the duel, 204

Muh-Wang, his instructions to his judges, 252

Multiple oaths, 28

Municipal champions, 196

Muratori on ordeal for witches, 332

Murder (see _Homicide_).

Mutilation of defeated champions, 184 under torture unusual, 532

Myagh, Thos., his torture, 569

Myrc, John, instructions to priests, 242

Name written on paper and used in ordeal, 398

Namur, council of, sustains the duel, 238

Naples (see _Sicilian Constitutions_). fire ordeal in 1811, 317 ordeals prohibited in, 422 punishment for suspicion in, 520 torture after conviction, 546 modern torture in, 587

Natives can decline duel with strangers, 141

Navarre and Castile, proposed duel between, 129 late introduction of torture, 469

_Neffn i kyn_, 41

_Nefninge_, 562

Negative proofs in Barbarian laws, 73 rejected, 74 unknown to Roman law, 272

Nehring, J. C., oil ordeal for witches, 331

_Nempdarii_, 563

Nero, his torture of Christians, 436

Netherlands, compurgation in, 81 ordeal of balance in, 335 bier-right in, 365 torture system in, 521 torture abolished in, 578

Neuwald on ordeal for witches, 327

New Granada, abuse of torture in, 540 modern use of torture, 582

New Hampshire, judicial duel in, 247

New Jersey, bier-right in, 367

New York, bier-right in, 396

Niam-Niam, ordeals among the, 256

Nicene creed, confirmation of, 379

Nicetius, St., power of his intercession, 378

Nicholas I. discourages the duel, 156, 207 forbids use of torture, 478

Nicholas, St., saves a convict from hanging, 381

Nicolas, Augustin, on torture system, 552, 577

Nieuport, laws of, on compurgation, 54, 66 no allusion to duel, 202 iron ordeal plebeian, 292

Nihilism, torture used to suppress it, 587

Nimrod exposes Abraham to fire ordeal, 303

_Nithstong_, 174

Nivard, Guillaume, case of, 493

Noailles, monks of, their duel, 196

Nobles can only be challenged by nobles, 150 allowed to employ champions, 193 subjected to cold-water ordeal, 323 their exemption from torture under Wisigoths, 460 in Spain, 463, 466 torture of, in Champagne, 496 their liability to torture, 499, 500 exemption limited in Germany, 525 claim exemption in England, 570 and villeins, duels between, 149

Nod-men, 45, 60

Norgaud of Autun, his trial for simony, 59, 66

Normandy, formula of compurgation, 58 survival of compurgation, 79 duels in real estate cases, 146 limit of value for duel, 148 penalty for defeat in duel, 167, 169 _lex talionis_ introduced, 170 champions as witnesses, 183 punishment of defeated champions, 184 hiring of champions forbidden, 190 duel legal till 1583, 231 ordeal for all suspects, 388 ordeals become obsolete, 423 torture not used in, 487 torture introduced, 495

Normans not liable to duel with Saxons, 115, 394

Norsemen, their use of oaths, 26, 27 form of oath used by, 25 compurgation used by, 35 duel supersedes compurgation, 61 accusatorial compurgators, 97 use of judicial duel, 111 ordeal used by, 274 hot-water ordeal, 283 use of torture, 561

Northampton, Assizes of, on the ordeal, 322, 400

Norway, selection of compurgators, 50 oaths of compurgators, 59 accusatorial conjurators, 97 duel abolished, 199 ordeals prohibited, 422

Nôtre Dame de Paris, its liability to duel, 159 chapter of, adjudges the duel, 163

_Nouveaux indices survenus_, 518

Novara, Bishop of, claims jurisdiction of duel, 163

Nucius, Nicander, on torture in England, 568

Nullity of marriage, compurgation in, 93

Number of compurgators, 39 for clerics, 36

Nuns, torture of, 560

Nürnberg exempted from the duel, 204

Oaths, 21 in Roman law, 21 their purgatorial power, 22 guarantees required for, 25 reduplicated, 28 relics necessary for, 29 simplicity of, in Spain, 32 of clerics, 36, 414 of denial, in Wales, 55 of conjurators, 58 value of conjuratorial, 62 of conjurators modified, 71 disculpatory, in Suabia, 98 preliminary, in duels, 139, 166 not required in China, 252 as ordeals, 32, 371 among the Khonds, 258 among Aztecs, 259 among Ostiaks, 259 among Samoiedes, 259 in Islam, 263 in Greece, 269 in Rome, 270

Oath and ordeal alternative, 391 of master clears a slave, 390 convicts not admitted to, 392 of discharged prisoner, 550

O’Connors, duel of the, 243

Odin, his torture by Geirröd, 454

Odum wood, ordeal of, 255

Oelsner, his explanation of bier-right, 369

Officials exempt from torture in Spain, 463 of cities, their exemption, 495

Oil, boiling, ordeal of, 283 in Ethiopia, 256 among the Khonds, 258

Olaf, St., his ordeal, 296 his relics tested with fire, 316 saves a convict from hanging, 381 his use of the ordeal, 404

Olaf Trygvesson, his duel with Alfin, 115

Olaus Magnus on water torture, 510

Oldenkop on cold-water ordeal in witchcraft, 328

_Olim_, the, compurgation in, 76 cases of duel in, 224 cases of torture in, 491

Oodeypur, ordeal in 1873, 290

Opstallesboom, laws of, no torture in, 563

Oracles as ordeals, 260

Ordeal, the, 249 for _roturiers_, 58 combined with compurgation, 61, 389 administered by priests, 276 varieties of, 277 of boiling water, 278 of red-hot iron, 287 of fire, 303 of cold water, 318 of the balance, 334 of the cross, 336 of bread and cheese, 339 of the Eucharist, 344 of the lot, 352 of Bible and key, 357 of sieve-driving, 358 bier-right, 359 oaths as ordeals, 371 poison ordeals, 375 irregular ordeals, 377 of Holy Ghost, 381 for witches, 382 of the staff, 397 as preparatory to torture, 329 conditions of its use, 383 for accusers, 385, 389 in default of evidence, 385, 386 at demand of accuser, 386 of accused, 387 of both parties, 387 for ill-repute, 388, 392 in failure of compurgation, 390 and oath alternative, 391 as a punishment, 391 and compurgation alternative, 392 ritual of, 394 as a torture, 394 replaced by torture, 395, 429 champions in, 295, 337, 390, 398, 400 confidence reposed in it, 399 explanations of its injustice, 401 efforts to preserve its purity, 405 usually results in acquittal, 406 its relation to the Church, 408 fees and profits derived from it, 415 abuses of, 417 prohibited by the papacy, 418 suppression by secular law, 421 used to supplement torture, 481

Ordeal-iron, 288

Ordeal nut, 254

Ordenamiento de Alcalá, 216

_Ordines_ for ordeals, 276, 413

Ordonnance of 1254, 487, 490 of 1670, 517

Orissa, ordeals in, 258

Orleans, limit of value for duel, 147 punishment for suspicion in, 521 Bishop of, grants the duel, 162 claims jurisdiction of duel, 163

Orphans not liable to duel, 141

Ostiaks, oath-ordeal among, 259

Ostrogoths, compurgation not used, 34 judicial duel not used, 116 their use of torture, 456

Oswyn, his relics tested by fire, 316

Othlonus, case related by, 403

Otho I. favors the duel, 128 punishes refusal of duel, 131

Otho II. limits compurgation, 67 extends use of duel, 109, 118, 131 minimum limit for duel, 147 subjects the Church to duel, 155 restricts use of champions, 189

Otho of Bavaria sentenced to duel, 132

Otto Premizlas, compounding for the ordeal, 384 fees for ordeals, 416

Oudewater, scales for weighing witches, 335

Outlaws, torture of, in Iceland, 562

Outlawry for refusal of ordeal, 383 after success in ordeal, 400

Outsworn, 61 ordeal in such cases, 390

_Overcythed_, 61

Owner of slaves (see _Master_).

_Pabulum probationis_, 339

Pachymere, George, describes the ordeal, 299

Pain, insensibility of witches to, 556 methods of acquiring insensibility, 408, 557

Palencia, council of, 1322, prohibits ordeals, 424

Palermo, abuse of torture, 587

Pallor may justify torture, 537

_Panis conjuratio_, 339

Papacy, its opposition to the duel, 207 it opposes the ordeal, 409, 414 its final assault on the ordeal, 417

Paper with names of accused submitted to ordeal, 398

Pardon, promise of, in witch-trials, 558

_Parikyah_, 269

Paris, church of, its liability to duel, 157, 159 council of, 1212, restricts the duel, 209

Parker and Vaughan, duel of, 242

Parlement of Paris rarely prescribes compurgation, 76, 77 extension of its jurisdiction, 220 discourages the duel, 224 on lie as preliminary to duel, 229 its right to grant the duel, 230 forbids ordeal for witchcraft, 330 cases of torture before, 491

Parliament, English, rejects the Roman law, 566 declines to abrogate the duel, 244 debate on appeal of death, 245

Parricide, red-hot iron ordeal for, 291 punished with iron bands, 377

Parsis, ordeal among the, 265, 295

_Partidas las Siete, jura de juicio_ in, 22 privilege of bishops’ oaths, 36 negative proofs rejected, 74, 424 use of champions, 195 restrictions on duel, 214 regulation of torture, 462

Partial confession, 46

Pascal I. clears himself by compurgation, 36

Paterculus, account of duels ascribed to, 112

_Paterfamilias_, authority of, 444

Paternal kindred as compurgators, 45

Paternity, proved by compurgation, 55 by water ordeal, 285 by iron ordeal, 294 by recognition, 381 torture to discover, 561

_Patræ_, Hellenic, 15

Patriarchate of Constantinople, test of, 313

Patricians exempt from torture in Rome, 438 tortured by Messalina, 439

Patrick, St., restricts judicial duel, 109 perjury on his relics, 374

Patron, freedman not tortured against, 442

Paul, St., his Roman citizenship, 440

Paulus Jovius on Russian torture, 509

Peacham’s case, torture in, 568

Peasants, their right to the duel, 148 champions not allowed, 193 accused, can choose ordeal, 387

Pedro the Cruel, compurgation in his _Fuero_, 80

Pedro III. of Aragon challenged by Charles of Anjou, 105

Pedro IV. (Aragon) grants duel to Thomas Felton, 229

Peers of accused as conjurators, 43

Pehlvi, the ordeal in, 266

_Peine forte et dure_, 574

Pelagius I., his purgatorial oath, 28

Penance for perjured oaths, 30 for priest engaging in duel, 156 for the _sortes sanctorum_, 354

Penitentials, the, on oaths, 29

Penniwinkis, torture of, 573

Pennsylvania, bier-right in, 367

Pepin le Bref orders ordeal of cross, 336

_Peregrina judicia_, 418

Périgord, secrecy of trials forbidden, 496

Perjurers sent to ordeal, 392

Perjury, degrees of, 29 penance for, 30 retribution for, 31 punishment of, 168 by demoniacal possession, 372 conjurators liable for, 63 temptation to, in compurgation, 85 duel used for its suppression, 120 defeat in duel is equivalent to, 167 divine punishment of, in India, 267 allowed with sufficient motive, 268 ordeal of cross for, 337

Persians, ancient, ordeals among, 265

Peru, fees for torturing in, 511

Pescara, abbey of, duel adjudged to, 157

Peter, St., his assistance in duel purchased, 138 oaths on his relics, 372 power of his intercession, 378

Peter, Bishop, case of, 65, 390

Peter Cantor denounces the duel, 162, 207 argues against ordeals, 310, 401, 418 on refusal of ordeal, 411 on fees for ordeals, 416

Peter Bartholomew, his fire ordeal, 308

Petrobatalla of Soavo, 196

Petrus Igneus, his fire ordeal, 305

Phelipot de Monine, case of, 501

Philadelphia, belief in bier-right, 368

Philippe II. (France) enforces the _lex talionis_, 170 regulates weapons in duel, 176 his charter to Tournay, 54, 202, 386 restricts use of ordeals, 421

Philippe le Hardi allows duels, 222

Philippe le Bel prescribes compurgation, 77 represses the duel, 222 his Ordonnance of 1306, 167, 223 remonstrates against torture, 486

Philippe le Long exempts Jews from duel, 149 duel becoming obsolete, 228 prohibits secrecy of trials, 496

Philippe de Valois restricts abusive appeals, 228

Philip II. (Spain), his torture of Don Carlos, 468 regulates torture in Flanders, 521

Philip of Alsace, his charters, 202

Philippe le Bon abolishes the duel, 231

Philippines, ordeals in the, 257

Philotas, his torture, 433, 448

Phocion threatened with torture, 433

_Phratriæ_, Hellenic, 15

Piacenza, disappearance of duel in, 236

Picardy, use of duel in, 227

Piedmont, bier-right in, 365 perjury followed by death, 372

Pietro, Bishop of Florence, convicted by ordeal, 305

Pilgrim, torture of, in Bavaria, 473

Pisa, duel limited in, 200

Piso, conspiracy of, 437

Pitto, his duel with Adalulf, 113

Pius IV., his trial of Cardinal Caraffa, 541

Pius V. orders torture to discover accomplices, 516

Plaintiff (see also _Accuser_). value of his oath, 98 obliged to accept the duel, 140, 141 punishment of defeated, 167 can demand ordeal, 386

Plantagenets endeavor to use torture, 565

Plead, torture for refusal to, 541 punishment for, 574

Plebeian ordeals, 292

Ploughshares, red-hot, ordeal of, 287, 289

Plouvier and Mahuot, duel of, 232

Poison ordeals in Africa, 254 in Madagascar, 256 among the Khonds, 258 Bitter Water among Hebrews, 262 in Greece, 270, 375 in India, 375

Poisoning, duel necessary in cases of, 144 red-hot iron ordeal for, 291 use of torture for, in Rome, 439

Poitiers, council of, 1100, on simony, 66

Poland, _wer-gild_ in, 16 prolonged use of compurgation, 83 duel abolished, 239 torture introduced, 509 modern use of torture, 588

Polus, Philippe, case of, 555

Pons of Andaone, his improvised ordeal, 285

Popes, their opposition to the duel, 207 to the ordeal, 409, 414 they prohibit the ordeal, 417

Poppo, Bishop, converts the Danes by the ordeal, 295

_Præjuramentum_, 95

_Prauda jeliezo_, 274

Prayer before duel efficacious, 138 preliminary to ordeal, 280 escape from ordeal by, 298 in fire-test of relics, 315

Pre-Aryan races of India, ordeals of, 258, 291, 344

Precautions before duel, 138 against magic arts in ordeal, 407

Prelates as temporal seigneurs, 161 assert jurisdiction over the duel, 162 their interest in ordeals, 415 liable to ordeal, 417

Prerogative, royal, torture under, 567

Presles, Raoul de, his torture, 494

Pressing to death, 574

Previous offences, torture to discover, 501 in Germany, 546

Pricking for witches, 571

Priest, hand of, oath taken on, 30

Priests (see also _Clerics_). disculpatory oaths of, 28 number of conjurators for, 36, 43 their oaths, 36 penance for engaging in duel, 156 administration of ordeals by, 276, 409 sinful, warning of Eucharist, 346 the ordeal part of their functions, 413 their control of the ordeal, 414 their influence augmented by ordeals, 417 forbidden to minister in ordeal, 419 their exemption from torture in Rome, 438 torture the slaves of their churches, 554

Privileges of administering ordeals, 415

_Procès ordinaire_ and _extraordinaire_, 499

Professional champions, 184

Profits of jurisdiction over duel, 218 derived from ordeals, 415

Proof required of accuser, 74

Property acquired by duel, 111 Dante approves of, 211

Prosecutor to be present at ordeal, 405

Protestant clergy degraded before torture, 527

Prussia, ordeals introduced by the Teutonic knights, 423 torture restricted, 579 still used, 582

Prudentius, his description of tortures, 449

Pselli, ordeal to prove legitimacy, 273

Psillus seeds, 408

Pseudo-Isidor on clerical immunity, 414

Publicity of criminal procedure, 471, 496 withdrawn in inquisitorial process, 513

Publius Syrus, his estimate of torture, 447

Punishment of conjurators, 64 of defeated witnesses, 120 for refusing duel, 131 of default in duel, 144, 145, 173 of defeat in duel, 167 of defeated champions, 184 of hired champions, 191 ordeal as, 391 torture as, 579 without conviction, 519, 528 for refusal to plead, 574 corporal, none in Barbarian laws, 451

_Purgatio canonica_, 37

_Purgatio vulgaris_, 282

Purgatorial power of oaths, 22

_Purrikeh_, 269

Pyrrhus, his indestructible toe, 314

Quæstors, their functions as torturers, 444

Quarrel over compurgation, 39

Quercy, secrecy of trials forbidden, 496

_Question avec réserve des preuves_, 518 _définitive_ or _préalable_, 515, 517, 547 not allowed in Rome, 445 used in Massachusetts, 569 in Denmark, 562 abolished in France, 585 _ordinaire_ and _extraordinaire_, 516 _préparatoire_, 515, 517 abolished in France, 585

Quintilian, his estimate of torture, 447

Quintus Curtius, his estimate of torture, 448

_Rachinborgs_, 53

_Radenicht_, 47

Raguald, code of, torture not used in, 563

_Raith_, 38

_Raithmen_, 39 their character, 45 their oath, 60

Rajmahal, hill-tribes of, 14 ordeals in, 258 red-hot iron ordeal, 291 ordeal of salt, 344

Ramayana, ordeal in, 267

Ramgur, ordeal of endurance at, 339

Ramon de Peñafort, his definition of duel, 117 condemns the duel, 209 denounces ordeals, 420

Rank, distinction of, in duel, 141, 149 prevents torture under Wisigoths, 460 high, entitles to use of champions, 194

Raoul de Caen on lance of St. Andrew, 309

Raoulin du Pré, torture of, 500

Rape, duels of women for, 153

Ratification of confession under torture required, 463, 482 in France, 514 of evidence given under torture, 542

Ratisbon, compurgation in, 80 exempted from duel, 204 Diet of, adopts Caroline Constitutions, 524

Raymond d’Agiles on lance of St. Andrew, 309

Raymond Bernard of Foix, his duel, 222

Rebellion, torture retained for, in Prussia, 579

Receiver and thief, duel between, 136, 171

Recipe for unguent against fire, 408

Records of court altered by the duel, 135

_Recreantise_, 168

Red-hot iron ordeal— in Ethiopia, 256 in Madagascar, 257 among the Khonds, 258 among the Arabs, 264 in Greece, 270 among Slavs, 274 its use in Europe, 287 in India, 289 a patrician or plebeian ordeal, 291, 293 cases of its use, 294 universality of its employment, 298 used for sorcery and witchcraft, 300, 409 miraculous cases, 301 used in cases of heresy, 411, 419

Red water, ordeal of, 254

Redemption of hand for compurgators, 64 for champion, 168

Reduplicated oaths, 28

Refusal of duel, penalty for, 131 of ordeal, burning for, 411 to plead, torture for, 541

Reginger accuses Henry IV., 133

Regulations of the duel, 166

Reims, the _jusjurandum in jure_ in, 22 champions denied to witnesses, 121 restriction on champions, 194 duel in archiepiscopal court, 162 Archbishop of, convicts heretic by ordeal, 411 Council of, 1119, on compurgation, 57 sanctions ordeal, 412 in 1157, uses ordeal for heretics, 411 council of, 1408, on torture, 505

Reinward of Minden, his murder, 363

Relics, importance of, in oaths, 29 necessary in Wales, 30 not required at the gallows, 563 oaths on, 372 tested by hot-water ordeal, 283 tested by fire, 314

Remy of Dorchester cleared by the ordeal, 295

Réné of Lorraine grants the duel, 233

Reparation of insults to champions, 188

Repentance secures escape in ordeal, 297, 310, 402

Repeated accusations, 45

Repetition of torture illegal in Castile, 466 three times in Britanny, 504 forbidden in France, 513, 517 practised in France, 515 authorized, 529 unlimited, 500 for retracted confession, 463, 548

Report, common, justifies torture, 537

Representation in succession, 129

Repute, liability to ordeal depends upon, 384, 388, 392

Reserving the evidence, 519

Responsibility of accuser, 384, 385, 386, 440, 445, 446, 449, 458, 460 of conjurators, 64 of judge, 458, 460, 465, 467, 507, 515, 523, 533, 565 of the kindred, 14, 18, 19

Restoration, torture under, in Spain, 583

Restrictions on the duel, 140 on use of champions, 189 on torture eluded, 529

Results of ordeal in doubt, 405

Retraction of confession in Sicilian Constitutions, 482 under torture, 463 questions concerning, 548 torture for, 522 absolves accused, 550 of evidence, witnesses tortured for, 550

Retribution for perjury, 31

Revenues derived from ordeals, 415

Reversal of judgment, penalty of, 124, 126

Rhine, ordeal of the, 273

Rhodians, use of torture by, 433

Rice, swallowing, as an ordeal, 258

Richard I. at the funeral of Henry II., 360 torture of his page, 474

Richard II. challenges Charles V., 106

Richardis, Empress, undergoes the ordeal, 293

_Richstich Landrecht_, on use of lawyers, 70 appeal from judgment, 127 duel necessary in homicide, 142 infamy of champions, 188 ordeal for convicts, 393 ordeals in 14th century, 424 no allusion to torture, 480

Rickius on hot-water ordeal, 283 on cold-water ordeal in witchcraft, 329 on ordeal of balance, 335

Riculfus tortured by Fredegonda, 455

Riga, its merchants exempted from the duel, 204

Rights connected with the duel, 219

Riom exempted from duel, 203

Ripuarian Laws, duel in, 113, 118 fire ordeal used, 305 ordeal of the lot, 353 ordeal in failure of compurgation, 390

Risbach, council of, 799, prescribes iron ordeal, 291

Rituals of ordeals, 276, 394, 413

Robbers not to act as champions, 186

Robbery, torture for, in Prussia, 579

Robert the Pious, his notion of perjury, 31 forbids ordeal of Eucharist, 349

Robert III. (Scotland), torture not used under, 572

Robert Curthose tests his sons by the ordeal, 294

Robert the heretic convicted by ordeal, 411

Rodolph I. limits the duel, 205 his charter to Styria, 213 intervenes against torture, 476

Rodolph II. confirms privilege of Lorraine, 238

Rodriguez de los Puertos, case of, 540

Roger of Naples, his charter to Bari, 201

Roman law, grades of proof in, 21 importance of oaths in, 21 its influence on compurgation, 72 rejects negative proofs, 74 its centralization, 78 its influence on the duel, 211 its influence on ordeals, 426 its regulations of torture, 435 its influence on the Goths, 456 its influence in Germany, 524 its influence in Scotland, 572 rejected in England, 566

Romans, traces of ordeals among, 270

Rome, guarantees of oaths, 26 oaths of priests in, 36 council of, 384, condemns torture, 477

Rosbach, Emerich von, his work on criminal law, 525

Rotharis, his law on compurgation, 47 forbids withdrawal of confession, 52 prescribes the judicial duel, 113 restricts the judicial duel, 114

Rotruda, St., her relics tested with fire, 316

Roumania, modern use of torture, 588

Royal courts not liable to appeal, 126

_Ruaille_, 168

Rumor suffices to justify torture, 537

Russia, the _Mir_, 15 _wer-gild_, 15 early use of duel, 110 no limitation of weapons, 178 duels with foreigners prohibited, 178 use of champions, 195 exemption of German traders, 204 duel abolished, 238 use of ordeals, 274 water and iron ordeals, 292 converted by ordeal of fire, 310 household ordeal for theft, 334 bier-right, 359 ordeal in all cases, 386 for accuser, 389 torture introduced, 509 abolished, 581 used in political cases, 587

Sachentages, 477

_Sachsenspiegel_— value or purgatorial oaths, 23 compurgation, 81 appeals from judgment, 126 limitations on the duel, 141 difference of rank, 151 champions for the dead, 152 guardians must provide champions, 153 penalty for defeat in duel, 171 penalty for default in duel, 173 weapons provided for the poor, 175 advantages equally divided, 177 regulations of use of champions, 181 disabilities of champions, 188 duel condemned by Gregory XI., 210, 420 use of hot-water ordeal, 283 accused selects the ordeal, 292, 383 land titles settled by ordeal, 324 ordeal for convicts, 393 no allusion to torture, 480

_Sachsische Weichbild_— formula of oath, 26 purgatorial oath of father, 41 compurgation, 81 kinship an impediment to duel, 141 wounds sufficing for duel, 142 difference of rank, 151 penalty for defeat in duel, 171 penalty for default in duel, 173 use of champions, 181 infamy of champions, 187 hiring of champions forbidden, 190 duel only in criminal cases, 204 the dead cleared by ordeal, 294 ordeal for convicts, 393

_Sacramentales_ (see _Conjurators_).

Sacrifices as guarantee of oaths, 26

Sacrificial ordeals, 258

_Saighi_, 18

St. Adrian of Zala, abbey of, 157

St. Aignan, chapter of, challenges a knight, 159

St. Albans, abbey of, its claims for the duel, 162

St. Andrews, bishop of, exempted from duel, 159 witch-pool of, 330

St. Aubin, abbey of, its duel, 158

St. Bascul, council of, 395

St. Bonnet, customs of, 219

St. Brieuc, Bishop of, orders the duel, 164

St. Disier, torture not used in, 497

St. Martin-des-Champs, use of torture, 499

St. Omer, its traders exempted from the duel, 204

Saint-Pé, abbey of, its fees for ordeals, 415

St. Quentin, challenging of courts, 124 council of, 1235, complains of St. Louis, 217

St. Remy, abbey of, decrees the duel, 163

St. Sergius, case of priory of, 137

St. Sever, abbey of, gains land by ordeal, 323

St. Vaast d’Arras, abbey of, 164

Saints’ tombs, oaths on, 372

Salaried champions, 192, 196

Salic law, use of compurgation in, 34 number of compurgators, 42 compurgation in default of testimony, 52 penalties of conjurators, 64 accusatorial conjurators, 94 judicial duel in, 112, 118 ordeal of hot water, 274, 282 hot-water ordeal for Antrustions, 323 enforcement of the ordeal, 383 compounding for the ordeal, 384 ordeal in failure of compurgation, 390 torture of slaves, 452

Salisbury, Bishop and Earl of, duel between, 139

Salt, blessed, used in ordeal, 281 lumps of, used as ordeal, 257

Salvation, exclusive, results of belief in, 589

Salzburg, council of, 799, prescribes the ordeal, 409

Samaritan legend of fire-test, 314

Samoa, punishment of perjury, 374

Samoiedes, oath ordeal among, 259

Sanballat, his triumph in fire-test, 314

Sancar, his ordeal, 290

Sanctio of Orleans, his trial for simony, 61

Sand-bag used in duels, 244

_Sandemend_, 562

Sanila and Bera, duel of, 117

Sapor I., his religious reforms, 267

_Saraad_, 55

Saracens, duels with Christians forbidden, 151

Saragossa, council of, 592, tests relics by fire, 315

Sardinia, perjury on relics, 374

Sassanids, ordeals under the, 267

Sassy-bark, ordeal of, 254

Satan, aids witches in ordeals, 300, 327, 328, 332 in torture, 555

_Satane_ ordeal, 258

_Sathee_, 344

Savonarola, his _Sperimento di fuoco_, 311

Saxon laws (see also _Sachsenspiegel_)— purgatorial oaths in, 23 reclamation of stolen horse, 26 judicial duel in, 114

Saxons offer duel to Luitzes, 130

Saxony, torture in 1130, 474 no defence allowed to accused, 544 exile for retracted confession, 549 abolition of torture, 580

Sayn, Count, his compurgation, 89

Scandinavian nations, torture not used by, 562

Scavenger’s Daughter, the, 569

_Scheingehen_, 365

Schoolmen on duel and ordeal, 209

_Schwabenspiegel_, value of oaths, 24 purgatorial oath of father, 41 compurgation retained, 80 faith in judgment of God, 102 judges must be vigorous men, 123 appeals from judgment, 126 theory of guilt, 136 limitations on the duel, 141 difference of rank, 150 cripples must provide champions, 152 duels of women, 153 penalty for defeat in duel, 171 penalty for default in duel, 173 penalty of bail of defaulter, 174 disabilities of champions, 188 hired champions forbidden, 190 use of hot-water ordeal, 283 accused selects the ordeal, 292, 383 ordeal in default of evidence, 387 for convicts, 393 no allusion to torture, 480

Schwartzenberg challenges von Hutten, 238

Schwerin, Synod of, condemns the duel, 210

Scialoja, his work on torture, 525

Scipio, oath administered by, 271

Scober, James, a witch-pricker, 571

Scone, abbey of, its jurisdiction, 162

Scotland, use of compurgation, 34 selection of conjurators in, 44 compurgation in default of evidence, 53 compurgation for the aged, 57 compurgation retained, 82 first evidence of duel in, 162 champions as witnesses, 183 use of champions, 192 charters exempting from duel, 201 restrictions on duel in towns, 203 persistence of duel, 239 cold-water ordeal for slaves, 323 cold-water ordeal for witchcraft, 330 cases of bier-right, 361 bribes in ordeal forbidden, 406 ordeals disused, 421 use of torture in, 572 abolition of torture, 574 witch-burning in 1722, 575

Scottish Marches, duel universal, 145 liability of clerics to duel, 158 death does not release from duel, 174

Scourging as torture, 466, 467 a torture for children, 528 for retracted confession, 549

Scribonius on cold-water ordeal in witchcraft, 327

_Scuz iarn_, 288

Sebakemsauf, violation of his tomb, 430

Secrecy of inquisitorial process, 496, 513, 546

_Secta_, 84, 96

Secular law, exemption from, for clerics, 414 jurisdiction of prelates, 161 legislation against ordeals, 421

Security required of combatants, 173

_Seguidors_, 51

Seigneur, his power over the villein, 490

Sejanus, plot of, 435

Selection of compurgators, 38 of mode of compurgation, 383

Selingenstadt, council of, 1023, prescribes the ordeal, 410

Semites, ordeals among, 260 torture among, 430

_Semperfri_, 150

Senan, St., his golden bell, 397

Senchus Mor, duel prescribed in, 109

Senckenberg reprints Zanger’s treatise, 578

Senlis, case of torture in, 491

Sens, Archbishop of, compelled to duel, 159

Sentence of torture, appeals from, in Castile, 465, 467 consultation over, in France, 507, 513 appeal from, in Germany, 545 deliberation required for, 547 its revision in Saxony, 580

Sepulture denied to duellists, 207, 210

Serfs allowed to bear testimony, 122 cannot challenge freemen, 140 and master, no duel between, 146 duels between, 149 cold-water ordeal for, 322

Servia, survival of the duel, 239

Servitude must be proved before torture, 438

Severity of ordeal, 394 of torture, limitations eluded, 532 of the strappado, 543

Severus, Sept., on evidence of slaves against masters, 444

_Sexhendeman_, 47

Shadrach, Mesach, and Abednego, their ordeal, 304

Shakespeare, his description of bier-right, 360

Shaving of witches to neutralize charms, 556

Shaving, sin of, in laymen, 403

Shells used in ordeal, 257

Sheriff selects compurgators, 48 his presence required at ordeal, 406

Shower-bath, punishment of, 510

Shrewsbury, Countess of, her case, 570

Shrift of combatant, 242

Shrines of saints, oaths on, 372

_Shu-king_, its theo-philosophy, 252

Siawush, fire ordeal of, 266

Sicily, modern use of torture, 587

_Sicularum Constitutiones_— no compurgation in, 75 defendant allowed choice of weapons, 177 champions as witnesses, 183 punishment of defeated champion, 185 champions provided at public expense, 190 severe restriction on duel, 212 ordeals prohibited, 422 use of torture, 482

Sieve-driving, ordeal of, 358

Sigurd Thorlaksson, case of, 404

Silanus, prosecution of, 443

Silence under torture does not acquit, 519

Simancas on compurgation for heresy, 89 on universality of torture, 468 disapproves deceit in witch-trials, 559

Simon de Montfort limits the duel, 208

Simony, trials for, 59, 62, 350 compurgation for, 92

Simple ordeals, 278, 287, 391

Simplicius, St., of Autun, his ordeal, 305

Sinking requisite in cold-water ordeal, 318

Sins, previous, cause failure in duel, 137 cause failure in ordeal, 403

Sita, ordeal undergone by, 267

Skevington, Sir Wm., invents a torture, 569

_Skirsla_ or ordeal of turf, 274

Slavs, communities among, 15 prolonged use of compurgation, 83 use of judicial duel, 110 ordeals used by, 274 of Mecklenburg, ordeal introduced, 277

Slaves cleared by master’s oath, 22 ordeal in default of master’s oath, 390 their right to the duel, 148 ordeal for, in Rome, 272 red-hot iron ordeal for, 291, 292 fire ordeal for, 306 cold-water ordeal for, 322 ordeal of the lot, 353 subjected to ordeal, 394 as vicarious victims in ordeal, 396 torture reserved for, in Greece, 433 their evidence requires torture in Greece, 433 tortured as witnesses in Rome, 441 restriction on, 445, 446 by their owners in Rome, 444 torture of, under Ostrogoths, 457 under Wisigoths, 458 under Barbarians, 451, 452 in civil suits in Germany, 530 of churches tortured by priests, 554 unprotected in Iceland, 562 not tortured against their masters in Rome, 442 except in treason, 443 other exceptions, 444 under Wisigoths, 459 in Spain, 464 tortured, damage paid to master in Rome, 445 among the Barbarians, 452 in Castile, 468 thief sold as, in Wales, 564

Slavery, its extent in Greece, 433 its extent in Rome, 441

Slavonia, use of compurgation, 84

Sleeplessness, torture of (see _Vigils_).

Smith, Sir Thos., on use of torture, 567

Snake-fang, ordeal of, 254

Soaper’s case, in appeal of death, 247

Soavo, champion of, 196

Soest, accusatorial conjurators in laws of, 97 exempted from duel, 202

Soissons, Bishop of, uses ordeal for heretics, 410 Chapter of, duel in its court, 224 council of, 853, uses the ordeal, 410 the vase of, 450

Solidarity of the family, 14 in Lombard Law, 48

Somali, ordeals among the, 256

Son to be tortured in presence of father, 543 his evidence against parents in witch-trials, 554

Sophocles, ordeals enumerated by, 270

Sorcerers, loss of weight by, 326, 335 tortured in Rome, 439 their punishment by Theodoric, 457 their evidence not received, 523 unconscious, 553

Sorcery forbidden in duels, 139 in ordeal, 407 duel in trial for, 230 red-hot iron ordeal for, 291, 300, 409 use of cold-water ordeal, 325 torture in accusations of, 469 used to justify torture, 539 detention after torture without confession, 551 torture necessary in trials for, 554

_Sortes sanctorum_, 354

Southampton, ordeal of Bible and key, 357

South Carolina, compurgation in, 88 appeal of death in, 247

Spain (see also _Wisigothic Laws_). _jusjurandum in jure_, 22 purgatorial oaths, 24 simplicity of oaths, 32 use of compurgation, 34, 75 selection of compurgators, 49 compurgation of Alfonso VI., 67 negative proofs rejected, 74 compurgation in the _Fuero Viejo_, 80 duel among Celtiberians, 108 introduction of Roman ritual, 132, 313 Catalonia, limitation on duel, 146 Aragon, limit of value for duel, 148 difference of rank in duels, 151 ordeals for women, 154 use of champions, 195 charters exempting from duel, 202 restrictions on the duel, 214 use of hot-water ordeal, 281 red-hot iron ordeal, 288 paternity proved by iron ordeal, 294 Arian relics tested by fire, 315 truce of God enforced by ordeal, 323 ordeal of Eucharist, 351 bier-right, 366 ordeal for loose women, 393 escape of adulteress in ordeal, 403 decline of ordeals, 423 torture under the Goths, 458 mediæval and modern, 462 irregular use of, 476 abolished in 1811, 583

_Speculum Saxonicum_ (see _Sachsenspiegel_).

_Speculum Suevicum_ (see _Schwabenspiegel_).

_Sperimento di fuoco_ of Savonarola, 311

Spies, use of in witch-trials, 558

Spiritual courts, duel in, 155 ordeal in, 409 torture in, 510

Spoon, ordeal of the, 264

Spot, insensible, of witches, 571

Sprenger admits lawfulness of duel, 213 objects to ordeal in witchcraft, 300 no allusion to cold-water ordeal, 326 his explanation of bier-right, 369 recommends deceit, 559

_Sringa_, 375

Staff, ordeal of, 397

_Stalla hringr_, 95

Stansfield, Philip, case of, 361

_Stapfsaken_, 274

_Stare ad crucem_, 336

Stars, duel to end when they appear, 178

Starvation and cold employed as torture, 530

State questions decided by duel, 130

Statute of Gloucester, 242

Staundford, Sir Wm., on ordeals, 426

Steil, historic duel at, 129

Stephen, St., supplies champions for abbey, 157 ordeals not in his laws, 277

Stephen V. condemns the ordeal as a torture, 395

Stephen VII. condemns Formosus, 382

Stercorarian heresy proved by ordeal, 411

_Stockneffn_, 49

Stonyng’s case, torture in, 568

Strangers, fire ordeal for, 306 subject to torture in Greece, 433

Strappado, the, 466, 467 description of, 516 five degrees of, 543

Strassburg, heretics convicted by ordeal, 297, 419

Stream of water, torture of, 510

Style’s “Practical Register,” 86

Styria, duel restricted in, 212

Styx, oath of the gods on its water, 371

Suabia, use of oaths in, 32, 24 accusatorial conjurators, 98

Subico of Speyer takes ordeal of Eucharist, 348

Substitutes in the ordeal, 295, 337, 390, 398, 400 for torture, 578, 580, 582, 583

Succession, law of, decided by duel, 129

Sudra caste, oaths required of, 25 cold-water ordeal used for, 320

Suidger of Munster, his improvised ordeal, 302

Sunset, duel to end at, 178

Superstition, its persistence, 427

Surlet, Gilles, case of, 505

Suspicion, ordeal for, 388 punishment for, 519 of incontinency, compurgation for, 87 of heresy, compurgation for, 88, 90

Swaddling cloth of Christ tested by fire, 315

Swantopluck of Bohemia, his use of torture, 476

Sweden, selection of compurgators, 49 prolonged use of compurgation, 82 accusatorial conjurators, 97 red-hot iron ordeal, 287, 298 paternity proved by the ordeal, 294 fees to priest for ordeal, 416 prelates liable to ordeal, 417 ordeals prohibited, 422 torture not used in, 563

Swinefield, Bishop, his hired champion, 192

Switzerland, torture abolished, 581

Synagogues, oaths taken in, 28

Syrians, duels with Franks, 151

Szegedin, witches tried by ordeal in 1730, 332, 335

Tacitus, his account of the Germans, 112

Tacitus (Emp.) on evidence of slave against master, 444

Tahiti, ordeal in, 257

_Talio_, the, applied to the duel, 143, 169 used in Ashantee, 255 in Rome, 440 applied to accusation of slaves in Rome, 445 for accusers under Wisigoths, 459 adopted by the Church, 513 rejected in inquisitorial process, 513

Tangena nut, ordeal of, 256

Tanner on number of witch-trials, 560

Taoism, its influence in China, 252

Tarbes, Cathedral of, its revenue from ordeals, 415

Tarragona, council of, 1244, on heresy, 89

Tassilo, allusion to ordeal by, 274

Tears, inability of witches to shed, 556

Teeth, question as to, in duel, 144

Templars offer to undergo the ordeal, 299 use of torture on, 486 torture of, in England, 511

Temple, the, oaths taken in, 27

Temporal jurisdiction of prelates, 161

Tempting of God in the ordeal, 207, 411

Terouane, torture in 1127, 474

_Testes synodales_, 41

_Testimonis_, 51

Testimony (see _Evidence_).

Teutberga, her divorce, 281

Teutonic Knights introduce the ordeal, 423

Texas, torture used in, 588

Thangbrand, Deacon, 199

Thebe, people of, float in water, 326

Theft, Russian ordeal for, 334

Theodore, penitential of, on oaths, 30

Theodore Lascaris prescribes the ordeal, 299

Theodoric tries to suppress judicial duel, 115 his use of torture, 457

Theodosius I. exempts priests from torture, 438

Thibaut of Champagne, his grant to church of Châteaudun, 415

Thief and receiver, duel between, 136, 171

Thieves convicted by the duel, 135

Thomas of Gloucester, his rules of duel, 171, 241

Thomas, Christian, opposed to torture, 577

Thumb, indestructible, of Pyrrhus, 314

Thuringians, kinsmen as champions, 180 minimum limit for duel, 147 red-hot iron ordeal, 291

Tiberius, his use of torture, 435 his devices to elude the laws, 443

Tibet, hot-water ordeal in, 269

_Tiers-État_, influence of, 200

_Tiht-bysig_ man sent to ordeal, 392

Tirel, Hugues, case of, 77

Tison, Marie, case of, 585

Tithes, contested, settled by ordeal, 410

Titles to land settled by duel, 182, 197 by cold-water ordeal, 324

_Tobbach_, 18

Toledo, council of, 683, on abuse of torture, 461

Tombs of saints, oaths on, 372

Tonga, punishment of perjury, 374

Tongue, red-hot iron ordeal applied to, 264, 289, 291, 293

Tooth-relic of Buddha tested by fire, 314

Toribio, St., limits fees for torturing, 511

Torture, 429 as preliminary to compurgation, 91 ordeal as preparatory to, 329 used as torture, 394 its influence on ordeals, 426 in Egypt and Asia, 400 in Greece, 432 limitations on, in Rome, 445 estimate of evidence under, in Rome, 446 under the Barbarians, 451 its use by the Goths, 456 in mediæval and modern Spain, 462 its repetition illegal, 466 under the Carlovingians, 469 its use for extortion, 476 condemned by the Church, 477 its reappearance in 13th century, 479 unlimited repetition, 500 to discover previous offence, 501, 546 is ecclesiastical law, 511 to discover accomplices, 484, 515, 517, 546, 562, 570, 584 of witnesses, 440, 453, 459, 533, 541 its influence on judges, 534 its abuse by judges, 539 in surplusage after conviction, 546 without confession is acquittal, 551 as punishment, 579 indispensable in witch-trials, 554 witches insensible to, 556 devices to elude, 558 use of, is homicide in England, 565 to compel pleading in England, 575 its decline and abolition, 575 substitutes for, 578, 580, 582, 583

Toulouse, duel forbidden there, 224 exempted from torture, 495

Tournay, charter of, 54, 392 exempted from duel, 202

Tours, council of, 813, on use of chrism in ordeal, 407 council of, 925, prescribes the ordeal, 410

_Tout Lieu de S. Disier_, 497

Towel of Christ tested by fire, 316

Towns, champions of, 196

Tower of London, torture in, 569

Townships, responsibility of, 42

Trade, its influence adverse to duel, 204

Trahent, André de, case of, 397

Trajan on evidence of slave against master, 443

Trallian laws, 15

Transylvania, witches tried by ordeal, 322

Travancore, ordeal abolished in, 284

Treason, duel necessary in cases of, 144 torture for, in Rome, 435, 438, 443 its extension in Rome, 436, 437 torture for, in Spain, 459, 463 torture of witnesses in cases of, 541 torture for, in Denmark, 562 torture for, in England, 568 nobles not tortured for, in England, 570 torture retained for, in Prussia, 579

Trebinje, ordeal for witches in 1857, 333

Trent, Bishop of, tried for simony, 62, 71 council of, prohibits the duel, 237

Trèves, Holy Coat of, 422 council of, 1227, forbids iron ordeal, 419

Treviño exempted from duel, 202 ordeals prohibited in, 424

Trial by jury, rise of, 48 by combat, 101

Tribal responsibility, 42

Tribur, council of, 895, on accusatorial conjurators, 96 prescribes the ordeal, 291, 410 ordeal for those outsworn, 390

Triple ordeals, 278, 287

_Triumviri capitales_, their functions as torturers, 444

Truce of God, enforcement of, 58, 323

_Trux iarn_, 287

Tucca, her ordeal, 271

Tudors, use of torture under, 566

Turks, divination among, 265 use of ordeal for witches, 333

Turf, ordeal of, 274

Tuscany, torture abolished, 586

_Twelfhendeman_, 47

Twins in Wales are one person, 177

_Twyhindus_, 47

Tyndareus, oath exacted by, 26

Tynemouth, priory of, its champion, 197

Uberto of Tuscany recognized by his son, 381

Ueberlingen, case of bier-right, 363

Ulpian, his estimate of torture, 446

Ulric of Cosheim, 133

Umbrians, judicial duel among, 108

Uncertainty of compurgation, 91

Unguents as protection in fire ordeals, 408

Unitas Fratrum, use of lot by, 355

United States, wager of law in, 88 appeal of death, 246 bier-right, 366 divining rod, 428 use of shower bath, 510 use of torture, 588

_Untersuchungschaft_, 582

Upstallesboom, laws of, ordeals obsolete in, 422

Upton, Nicholas, his work on the duel, 231

Urim and Thummim, 261

_Urpheda_, 550

Urraca, Queen, authorizes duel, 132

Usury, torture in cases of, 529

Uta, Queen, her compurgation, 40

Utrecht, case of fisherman of, 402 torture abandoned in, 577

_Vadiare legem_, 57

Vaisya caste, oaths required of, 25 cold-water ordeal used for, 320

Valdebran, abbey of, relic tested by fire, 317

Valence, council of, 855, represses abuse of oaths, 22 denounces the duel, 207 1248, denies counsel to accused, 487

Valenciennes, duel in 1455, 232 fees for torture in, 548 petitions for abolition of torture, 585

Valentinian I. exempts decurions from torture, 438

Valentinian II. applies _talio_ to accused slaves, 445

Valerius Maximus, his estimate of torture, 447

Vallombrosa, fire ordeal in, 305

Valtelline, limitations on torture in, 508

Value of conjuratorial oath, 62 of extorted confession, 462, 548, 550

Vannes, council of, 465, condemns the _sortes sanctorum_, 354

_Var nirang_, 266

Varieties of ordeal, 277 of torture, 536 in Greece, 434 in Rome, 449 in Castile, 465, 467 in England, 476 in Russia, 509 in France, 514, 516 in Scotland, 573 in Roumania, 588

Vasistha, ordeals unknown to, 268

Vassal and lord, no duel between, 146

Vaughan and Parker, duel of, 242

Vedas, ordeals in the, 267

Vehm-Gericht, accusatorial conjurators in, 99

Venezuela, use of torture, 583

Vengeance, legal recognition of, 13

Venice, rules for compurgation, 57 bier-right in, 365 use of torture, 507

Vercelli, Bishops of, their jurisdiction over duels, 164

Verdiersville, bier-right in, 368

Vermandois, appeals in, 125 nobles of, claim the duel, 227

Verona, council of, 983, on the duel, 131 limitation on duels, 146 penalty for defeat in duel, 169 champions appointed by the city, 189 regulations for champions, 195 ordeal of cross, 337 torture used in 1228, 481

Vestal virgins, exempt from taking oaths, 36 ordeals of, 271

Vezelai, heretics tried by ordeal, 411

Vicarious ordeals, 281, 295, 390, 398, 400 in Africa, 256 poison ordeal, 376

Vich, council of, 1068, orders the ordeal, 323

_Vidames_, 198

Vienna exempted from duel, 204 case of bier-right in, 364

Vienne, council of, 1311, case of Boniface VIII., 226 restricts torture in Inquisition, 511

Viescher, his treatise on the duel, 103

Viga Glum’s saga, 27

Vigils of Marsigli, torture of, 535, 552 insanity caused by, 588 severity of, in England, 570 severity of, in Scotland, 572 of Florence, 552 of Spain, 552

Villadiego, his description of torture,466

Village communities, 14

Villein not allowed to challenge judge, 124 and gentleman, duels between, 149 his subjection to his seigneur, 490

Villeneuve, case of torture in, 491 consuls exempted from torture, 499

Villon, his water torture, 514

Virgin Mary orders a duel, 209

Virginia, bier-right in, 366

Viry, jurisdiction of duel at, 163

_Vishanaga_, 376

Vishnu, his complicated ordeal system, 268

Vives, J. L., opposes torture, 576

Vladislas II. (Hungary) restricts the duel, 237

Vola, Zierkin von, his duel, 171

Voltaire opposes torture, 584

Volterra, Bishop of, his jurisdiction, 161

Voluntary perjury, penance for, 31

_Vomeres igniti_, 287

_Vorogeia_, 334

Vuillermoz, Guill., case of, 555

Wafer, consecrated, power of, 347

Wager of Law, the (see _Compurgation_). its derivation, 57

Wager of Battle (see _Duel_).

Waldemar II., his Constitutions, 41 prohibits ordeal, 422 jury-trials in his laws, 562

Wales, solidarity of the family in, 15, 19 compensation for injuries, 17 responsibility for children, 20 oaths of absolution, 24 reduplicated oaths, 28 oaths on relics, 30 reverence for relics, 32 compurgation, 38 number of compurgators, 40, 44 character of compurgators, 45 compurgation supplants evidence, 55 _juramentum supermortuum_, 56 oath of conjurators, 60 judicial duel not used, 110 difference of rank in duels, 151 twins, their advantage in duels, 177 champions, reward of, 186 ordeals in suits with Saxons, 276 confession of accomplice at the gallows, 563

Wang-i, his two servants, 252

Warfare, private, among the Barbarians, 16

Warning to accused before torture, 532

Warrantors, 121

Water Ordeals (see _Hot Water_ and _Cold Water_).

Water from idol as ordeal, 344 torture, 514 torture of stream of, 509 will not receive perjurers, 319 or witches, 326

Weapons of witnesses blessed, 120 provided for pauper combatants, 175 choice of, 176 equality of, 177

Weight, loss of, by witches, 325, 334

Welf II. of Altorf subjected to ordeal, 323

Welf of Bavaria, 133

Wells, poisoning of, in France, 503

Wenceslas of Bohemia abolishes torture, 473

_Wer-gild_, 14 its character, 17 in Greece and Rome, 15 in Russia, 15 in Poland, 16 in Iceland, 18 in Ireland, 18 in Denmark, 18 in Wales, 19 of clerics, 20 among Moslem, 29 its connection with compurgation, 38 in Frisia in 14th century, 563 oath rated by, 47

Werner, J. F., defends use of torture, 578

West Prussia, ordeal for witches in, 322

Westminster, Abbey of, claims jurisdiction of duel, 162

Westphalia, accusatorial conjurators in, 97 cold-water ordeal in witchcraft, 327, 328, 331

Whipping as torture, 466 torture in cases involving, 530

Widows, exemption from duel in Bigorre, 146 torture of, among Gauls, 452

Wier on cold-water ordeal in witchcraft, 326, 328

Wife to be tortured in husband’s presence, 543

William I. (Engl.), introduces judicial duel, 115 penalty for defeat in duel, 168

William Rufus utilizes the ordeal, 295

William the Lion forbids bribery in ordeal, 406

William Clito, his privilege to St. Omer, 204

William of Ely and the Archbishop of York, 70

William of Utrecht, his ordeal of Eucharist, 351

Wills, fraudulent, torture of slaves in cases of, 443

Wilson, Christian, case of, 362

Wisigothic Laws, their authors, 458 oaths in, 22 compurgation not used, 34, 75 exclude evidence of kinsmen, 38 influence of Roman law, 116, 457 judicial duel not used, 116 judicial duel revived, 117 late introduction of ordeal, 275 ordeal preliminary to torture, 395 use of torture, 458

Witch-bridle, 572

Witchcraft, its influence on criminal law, 553 evidence of, insufficient, 554

Witches, Satan aids them in trials, 300, 555 loss of weight by, 325, 334 tortured for confession in Russia, 509 their evidence not received, 523 detected by boys with greased boots, 539 escape by revoking confession, 548 detention after torture without confession, 551 cruelties practised on, 552 their insensibility to torture, 556

Witch-mark, 571

Witchpool in Bay of St. Andrews, 330

Witch-pricking, 571

Witch-trials, red-hot iron ordeal for, 291, 300, 409 use of cold-water ordeal, 325 special ordeals for, 382 all rules set aside, 554 torture indispensable in, 555 shaving in, 556 use of deceit, 558 torture in, in England, 570 severity of, in Scotland, 572, 574

Withdrawal from duel forbidden, 144

Witikind, his duel with Charlemagne, 130

Witness, judge cannot act as, 509

Witnesses, are not conjurators, 38, 51 compurgation in default of, 52 confirmed by conjurators, 56 outweigh conjurators, 62 challenging of, 103, 120, 121 penalty of defeated, 120 come armed to court, 120 must be capable of fighting, 122 champions not allowed to, 121 champions for, 194 their protection in France, 123 seven necessary to avoid duel, 142 must offer battle, 143 defeated, lose a hand, 167 become champions, 182 champions debarred as, 187 women admitted, 228 allowed to give false evidence, 268 must be of the same race, 275 subjected to ordeal, 389 names of, given to accused in Castile, 469 examined in presence of accused, 504 contradictory, tortured together, 542 confrontation of, with accused, 517 necessary to justify torture, 523 their uselessness in witch-trials, 555 torture of, in Rome, 440 unknown to Barbarians, 453 practised in Castile, 464 in Milan, 506 not tortured in Piacenza, 507 tortured in Germany, 530 in modern times, 541 in advance, 542 for retracted evidence, 550 in monasteries, 560 slave, tortured in Greece, 433 restrictions on torture in Rome, 445, 446 their torture under Ostrogoths, 457 under Wisigoths, 459

Women incompetent as prosecutors, 18 admitted as compurgators, 50, 92 not received as witnesses, 122 admitted as witnesses, 228 allowed champions in duel, 152 liable to duel, 153 ordeals for, in Spain, 154 hot-water or iron ordeal for, 292 buried or burned alive in capital cases, 503 buried alive for defeat in duel, 153, 170 burnt for defeat in duel, 173 abuse of, in cold-water ordeal, 417 tortured in Rome for poisoning, 439 pregnant, not subject to torture in Rome, 446 not tortured in Spain, 463, 466 exempt from torture in Germany, 523, 528 tortured in Iceland, 561

Worms exempted from duel, 205 council of, 829, prohibits cold-water ordeal, 322 council of, 868, on ordeal of Eucharist, 348

Wounds, severity of, requisite for duel, 142

Writings tested by fire, 313

_Wunden kampffbaren_, 142

Würtemburg, torture abolished, 581

Wurzburg, council of, 1298, prohibits ordeals, 423

Yahveh-worship, its seat tested by fire, 314

York, Archbishop of, and William of Ely, 70

York, miraculous escape in ordeal, 297

Ypres, selection of compurgators, 48 exempted from duel, 201 torture not used in, 497

Zabolcs, council of, 1092, on fees for ordeals, 416

_Zadruga_, the Slavonic, 16

Zala, Abbey of, its champions, 157

Zanger, Johann, his treatise on torture, 524, 578

Zends, ordeal among, 265, 295 torture not legally used, 431

Zerbst, effective torture in, 579

Zerubabbel, his defeat in fire test, 314

Zoroaster exposed to fire ordeal, 266 converts Gushtasp by the ordeal, 295

Zug, modern use of torture, 588

Zurich, priest of, uses unconsecrated host, 345

FOOTNOTES

[1] Legg. Villæ de Arkes § xxviii. (D’Achery Spicileg. III. 608).

[2] See Pictet, Origines Indo-Européennes (Paris, 1878, T. II. pp. 372-6; T. III. pp. 5-8), for the philological evidence of the development of society from the family in all the Aryan nations.

[3] Vendidad, Farg. IV. 24-35 (Bleeck’s Translation, Hertford, 1864, pp. 30-1).

[4] Manava Dharma Sastra, VIII. 295 sqq. Comp. Maine’s Ancient Law, pp. 260 sqq.

[5] Yajnavalkya, II. 272 (Stenzler’s Translation).

[6] Even among the remnants of the pre-Aryan races of India the same customs are traceable. Early in the present century Lieutenant Shaw described the hill-tribes of Rajmahal, to the north of Bengal, as recognizing the responsibility of the injurer to the injured; compensation was assessed at the pleasure of the complainant, and the kindred of the offender were compelled to contribute to it, exactly as among the barbarians who occupied Europe (Asiatic Researches, Vol. IV.).

[7] Dicæarchi Frag. (Didot, Frag. Hist. Græcor.).—Apollodor. Biblioth. II. vi. 2-3.—Diodor. Siculi IV. 31.—Plut. Quæst. Græc. 46.—Maine’s Ancient Law, p. 127.

[8] Tit. Liv. I. 26; V. 32.—Appiani de Bell. Hannibal. xxviii.—Dion. Halicar. II. 10; XIII. 5.

[9] Esneaux, Hist. de Russie, I. 172 sqq.

[10] Jo. Herburti de Fulstin Statut. Reg. Polon. tit. _Homicid._ (Samoscii, 1597, pp. 200 sqq.). In cases, however, of homicide committed by a _kmetho_, or serf, upon another, a portion of the _wer-gild_ was paid to the magistrate.

[11] See an abstract of Bojisic’s work on the customs of the southern Slavs, in the “Penn Monthly” Magazine, Phi’a, Jan. 1878, pp. 15 sqq.

[12] Gradually, however, a portion of the composition money was attributed, under the name of _fredum_, to the king or the magistrate, as a compensation for readmitting the criminal to the public peace.

[13] Ll. Edwardi C. xii. (Thorpe’s Ancient Laws, I. 467).

[14] Gwentian Code, Bk. II. chap. vii. §8. (Aneurin Owen’s Ancient Laws, etc. of Wales, I. 701.)

[15] Senchus Mor, I. 259 (Hancock’s ed. Dublin, 1865).

[16] Grágás, Sect. IV. cap. cxiv.

[17] Ibid. Sect. VIII. cap. lv.

[18] Jarnsida, Mannhelge, cap. xxix.—Cf. Legg. Gulathingenses, Mannhelgi, cap. xii.

[19] Constit. Eric. Ann. 1269 § vii. (Ludewig, Reliq. MSS. T. XII. p. 204).

[20] Dimetian Code, Bk. II. ch. i. §§ 17-31.—Bk. III. ch. iii. §4.—Anomalous Laws, Bk. IV. ch. iii. § 11.

[21] Dimetian Code, Bk. II. chap. xxiv. § 12.

[22] Roisin, Franchises, etc. de la ville de Lille, pp. 106-7.

[23] Charta Balduini Hannoniens. (Martene, Collect. Ampliss. I. 964.)

[24] Capitul. Lib. IV. cap. 15.

[25] Concil. Tribur. an. 895, can. iv.

[26] Dimetian Code, Bk. II. chap. i. § 32.

[27] Venedotian Code, Bk. III. chap. i. § 21.

[28] The oath may be regarded as the foundation of Roman legal procedure—“Dato jurejurando non aliud quæritur, quam an juratum sit; remissa quæstione an debeatur; quasi satis probatum sit jurejurando”—L. 5, § 2, D. XII. ii. The _jusjurandum necessarium_ could always be administered by the judge in cases of deficient evidence, and the _jusjurandum in jure_ proffered by the plaintiff to the defendant was conclusive: “Manifestæ turpitudinis et confessionis est nolle nec jurare nec jusjurandum referre”—Ibid. l. 38.

[29] Ll. Wisigoth. Lib. II. Tit. ii. c. 5.

[30] Concil. Valentin. ann. 855, c. xi.

[31] Ll. Ripuar. Tit. XII. § 1; ix. 17.—Capit. Ludov. Pii. ann. 819 add. ad L. Salicam, c. 15.—Capitul. L. IV. c. 29.—Ivonis Decr. XVI. 239.

[32] De presbytero vero, si quilibet sacerdos a populo fuerit accusatus, si certi non fuerint testes qui criminis illati approbent veritatem, jusjurandum erit in medio, et illum testem proferat de innocentiæ suæ puritate cui nuda et aperta sunt omnia; sicque maneat in proprio gradu.—Gregor. PP. II. Epist. XIV. ad Bonifacium. Cf. Hincmari Remens. Epist. XXII.

[33] Thus Alfonso the Wise endeavored to introduce into Spain the mutual challenging of the parties involved in the Roman _jusjurandum in jure_, by his _jura de juicio_ (Las Siete Partidas, P. III. Tit. xi. l. 2. Cf. Espéculo, Lib. V. Tit. xi. ley 2). Oddly enough, the same procedure is found incorporated in the municipal law of Rheims in the fourteenth century, probably introduced by some over-zealous civilian; “Si alicui deferatur jusjurandum, necesse habet jurare vel referre jusjurandum, et hoc super quovis debito, vel inter quasvis personas”—Lib. Pract. de Consuetud. Remens. § 15 (Archives Législat. de Reims, P. I. p. 37). By this time, however, the oaths of parties had assumed great importance. In the legislation of St. Louis, they occupy a position which was a direct incentive to perjury. Thus he provides for the hanging of the owner of a beast which had killed a man, if he was foolish enough not to swear that he was ignorant of its being vicious. “Et si il estoit si fox que il deist que il seust la teche de la beste, il en seroit pendus pour la recoignoissance”—Établissements, Liv. I. chap. cxxi.

A charter granted to the commune of Lorris, in 1155, by Louis le Jeune, gives to burghers the privilege of rebutting by oath, without conjurators, an accusation unsupported by testimony—Chart. Ludovic. junior. ann. 1155, cap. xxxii. (Isambert, Anciennes Lois Françaises I. 157.) And, in comparatively modern times, in Germany, the same rule was followed. “Juramento rei, quod purgationis vocatur, sæpe etiam innocentia, utpote quæ in anima constitit, probatur et indicia diluuntur;” and this oath was administered when the evidence was insufficient to justify torture. (Zangeri Tract. de Quæstionibus, cap. iii. No. 46.) In 1592, Zanger wrote an elaborate essay to prove the evils of the custom.

It is a noteworthy fact, however, that of all the medieval codes the one least affected by the influence of the Roman law was the Saxon, and in this the purgatorial power of the oath was admitted to a degree unknown elsewhere. The accused was allowed in certain cases to clear himself, however notorious were the facts, and no evidence was admitted to disprove his position, unless it were a question of theft, and the stolen articles were found in his possession, or he had suffered a previous conviction. (Jur. Provin. Saxon. Lib. I. Art. 15, 18, 39; Lib. II. Art. 4, 72.) Even this was an improvement on the previous custom, if we may believe Cardinal Henry of Susa, who denounces the practice in Saxony and Dacia, where a man can clear himself, even if he holds the stolen article in his hand and the loser has ample witnesses present (Hostiensis Aureæ Summæ Lib. V. De Purg. canon. § 3). This irrational abuse was long in vogue, and was denounced by the council of Bâle in the fifteenth century (Schilter. Thesaur. II. 291). It only prevailed in the north of Germany; the Jus Provin. Alaman. (cap. ccclxxxi. § 3), which regulated Southern Germany, alludes to it as one of the distinguishing features of the Saxon code.

So, also, at the same period a special privilege was claimed by the inhabitants of Franconia, in virtue of which a murderer was allowed to rebut with his single oath all testimony as to his guilt, unless he chanced to be caught with the red hand—Jur. Provin. Alaman. cap. cvi. § 7.

[34] “Ego solus jurare volo, tu, si audes, nega sacramentum meum et armis mecum contende.”—Ll. Ripuar. Tit. IX. § 3.

[35] Laws of Wihtræd, cap. 16-21. Comp. LI. Henrici I. Tit. lxiv. § 8.

[36] Anomalous Laws, Book IV. chap. i. § 11.

[37] Jur. Provin. Alaman. cclxiv. 7, 8.

[38] Fuero Viejo, III. ii.

[39] Book VII. 109-13 (after Delongchamps’ translation).

The corresponding passage in the Institutes of Vishnu (VIII. 20-3) renders this somewhat more intelligible. When the judge swears the witness—

“A Brahmana he must address thus, ‘Declare.’

“A Kshatriya he must address thus, ‘Declare the truth.’

“A Vaisya he must address thus, ‘Thy kine, grain, and gold (shall yield thee no fruit if thou wert to give false evidence).’

“A Sudra he must address thus, ‘Thou shalt have to atone for all (possible) heavy crimes (if thou wert to give false evidence).’”

[40] Institutes of Vishnu, IX. (Jolly’s Translation).

[41] Iliad. XV. 36-40.—Luciani Philopseud. 5; Cataplus 11.

[42] LI. 3, 4, D. XII. ii.

[43] Volundarkvida 31 (Thorpe’s Sæmund’s Edda). A curious remnant of this is seen in the burgher law of Northern Germany in the thirteenth century, by which a man reclaiming a stolen horse was bound to kick its left foot with his right foot, while with his left hand he took hold of the animal’s ear and swore by its head that it was his.—Sachsisches Weichbild, art. 135.

[44] Deuteron. xxi. 4-8.

[45] Pausan. III. xx. 9.

[46] Islands Landnamabok IV. 7; II. 9 (Ed. 1774, pp. 299, 83).

[47] Keyser’s Religion of the Northmen, Pennock’s Translation, p. 238.

[48] Gen. xv. 9-17.—Jer. xxxiv. 18-19.—I. Kings, viii. 31-2.—Chrysost. Orat. adv. Jud. I. 3.

[49] Anastas. Biblioth. No. LXII.

[50] Ecgberti Dialog. IV. (Haddan and Stubbs’s Councils of Great Britain, III. 405).

[51] Gregor. Turon. Hist. Lib. V. cap. xlix. Gregory complains that this was contrary to the canons, of which more hereafter.

[52] Dooms of Alfred, cap. 33.

[53] Dimetian Code, Bk. II. chap. vi. § 17 (Owen, I. 431).

[54] Fleta, Lib. II. cap. lxiii. § 12. The Moslem jurisprudence has a somewhat similar provision for accusatorial oaths in the Iesameh by which a murderer can be convicted, in the absence of testimony or confession, by fifty oaths sworn by relatives of the victim. Of these there must be at least two, and the fifty oaths are divided between them in proportion to their respective legal shares in the Deeyeh, or blood-money for the murder.—Du Boys, Droit Criminel des Peuples Modernes, I. 269.—Seignette, Code Mussulman, Constantine, 1878, p. lvi.

[55] Fredegarii Chron. cap. xcvii.

[56] Excerpt. de Libro Davidis No. xvi. (Haddan and Stubbs, I. 120).

[57] Si in manu episcopi ... aut in cruce consecrata perjurat III. annos pœniteat. Si vero in cruce non consecrata perjurat, I. annum pœniteat; si autem in manu hominis laici juraverit nihil est.—Theodori Cantuar. Pœnit. cap. xxiv. § 2. (Thorpe, Ancient Laws, vol. II. p. 29.) Cf. Haddan and Stubbs, III. 423; Wasserschleben, Bussordnungen, pp. 190, 226.

[58] Pœnitent. Pseudo-Gregor. III. vii. (Wasserschleben, p. 539).

[59] Pœnitent. Cummeani cap. V. § 3 (Wasserschleben, p. 477).—Gratiani Decr. c. 2. Caus. XXII. Q. v. In the fourteenth century this was repeated in the penitential canons of Astesanus (§ 23), which continued until the Reformation to be a recognized authority in the confessional. Astesanus, however, explains that the obligation is equal to God, but unequal as regards the church, whence the difference in the penance.—Astesani Summa de Casibus Conscientiæ, P. I. Lib. I. Tit. xviii.

[60] Anomalous Laws, Book IX. chap. v. § 3; chap. xxxviii. § 1 (Owen, II. 233, 303). The definition of relics, however, was somewhat vague—“There are three relics to swear by: the staff of a priest; the name of God; and hand to hand with the one sworn to.” Bk. XIII. ch. ii. § 219 (Ibid. II. 557).

[61] Regino de Eccles. Discip. Lib. I. cap. ccc. See also Jur. Provin. Saxon, Lib. III. c. 41. Notwithstanding the laxity of these doctrines, it is not to be supposed that the true theory of the oath was altogether lost. St. Isidor of Seville, who was but little anterior to Theodore of Canterbury, well expresses it (Sententt. Lib. II. cap. xxxi. § 8): “Quacunque arte verborum quisque juret, Deus tamen, qui conscientiæ testis est, ita hoc accipit, sicut ille cui juratur intelligit,” and this, being adopted in successive collections of canons, coexisted with the above as a maxim of ecclesiastical law (Ivon. Decret. P. XII. c. 36.—Gratian. c. 13, Caus. XXII. Q. ii.).

[62] Helgaldi Vit. Roberti Regis.

[63] Augustin. Epist. 78, §§ 2, 3 (Ed. Benedict.).

[64] Gregor. Turon. de Gloria Martyr. cap. 58, 103.

[65] Suppression of Monasteries, p. 186 (Camden Soc. Pub.). The Priory of Cardigan was dependent upon the Abbey of Chertsey, and the sum named was apparently the abbot’s share of the annual “alms.”

Perhaps the most suggestive illustration of the reverence for relics is a passage in the ancient Welsh laws limiting the protection legally afforded by them—“If a person have relics upon him and does an illegal act under the relics, he is not to have protection or defence through those relics, for he has not deserved it.”—Venedotian Code, Bk. I. chap. x. § 7.

[66] Espéculo, Lib. V. Tit. xi. leyes 14, 15. The oaths required of Jews and Moors were much more elaborate (Ibid. 16, 17).

[67] Patetta, Le Ordalie, Torino, 1890, p. 130.

[68] Yet compurgators appear in the Spanish laws of the twelfth century. See Fuero de Balbás, ann. 1135 (Coleccion de Privilegios, etc. Madrid, 1833, T. VI. p. 85).

[69] The primitive Scottish procedure appears to have been based on compurgation.—Neilson’s Trial by Combat, London, 1890, p. 78.

[70] First Text of Pardessus, Tit. xxxix. § 2, and Tit. xlii. § 5 (Loi Salique, Paris, 1843, pp. 21, 23). It is somewhat singular that in the subsequent recensions of the code the provision is omitted in these passages.

[71] Eginhard. Annal. ann. 800.—The monkish chroniclers have endeavored to conceal the fact that Leo underwent the form of trial like a common criminal, but the evidence is indubitable. Charlemagne alludes to it in the _Capitularium Aquisgranense_ ann. 803, in a manner which admits of no dispute.

The monk of St. Gall (De Gestis B. Carol. Mag. Lib. i. cap. 28), whose work is rather legendary in its character, describes the Pope as swearing to his innocence by his share at the day of judgment in the promises of the gospels, which he had placed upon his head.

[72] Capit. Aquisgran. ann. 803, cap. vii.

[73] Bonifacii Epist. cxxvi.

The subject of the oaths of priests was one of considerable perplexity during the dark ages. Among the numerous privileges assumed by the sacerdotal body was exemption from the necessity of swearing, an exemption which had the justification of the ancient Roman custom; “Sacerdotem, Vestalem, et Flaminem Dialem in omni mea jurisdictione jurare non cogam” (Edict. Perpet. ap. Aul. Gell. x. 15). The effort to obtain the reversion of this privilege dates from an early period, and was sometimes allowed and sometimes rejected by the secular authorities, both as respects promissory, judicial, and exculpatory oaths. The struggle between church and state on this subject is well exemplified in a case which occurred in 1269. The Archbishop of Reims sued a burgher of Chaudardre. When each party had to take the oath, the prelate demanded that his should be taken by his attorney. The defendant demurred to this, alleging that the archbishop had in person presented the complaint. Appeal was made to the Parlement of Paris, which decided that the defendant’s logic was correct, and that the personal oath of the prelate was requisite (Olim, I. 765).

In Spain, a bishop appearing in a secular court, either as plaintiff or defendant, was not exempt from the oath, but had the singular privilege of not being compelled to touch the gospels on which he swore.—Siete Partidas, P. III. Tit. xl. l. 24.

[74] Gratian. c. 19, Caus. II. Q. V.

[75] Eginhard. Annal. ann. 823.

[76] Atton. de Pressuris Ecclesiast. P. 1.

[77] Buchardus, Ivo, Gratianus, _passim_.—Ivon. Epist. 74.

[78] L. Longobard. Lib. II. Tit. xxi. § 9; Tit. lv. § 12.—L. Burgund. Tit. vii.—Laws of Ethelred, Tit. ix. §§ 23, 24.—L. Henrici I. cap. lxxiv. § 1. Feudor. Lib. V. Tit. ii.

This point illustrates the essential distinction between witnesses and compurgators. The Roman law exercised great discrimination in admitting the evidence of a relative to either party in an action (Pauli Sentent. Lib. V. Tit. xv.—Ll. 4, 5, 6, 9. Dig. XXII. v.). The Wisigoths not only adopted this principle, but carried it so far as to exclude the evidence of a kinsman in a cause between his relative and a stranger (L. Wisigoth. Lib. II. Tit. iv. c. 12), which was adopted into the Carlovingian legislation (Benedict. Levit. Capitul. Lib. VI. c. 348) under the strong Romanizing influence which then prevailed. The rule, once established, retained its place through the vicissitudes of the feudal and customary law (Beaumanoir, Coutumes du Beauvoisis, cap. xxxix. § 38.—Cout. de Bretagne, Tit. vii. art. 161, 162). In the ancient Brahmanic legislation the evidence of both friends and enemies was excluded (Institutes of Vishnu, viii. 3).

[79] Anomalous Laws, Bk. IX. chap. ii. § 4; chap. v. § 2 (Owen, II. 225, 233). This collection of laws is posterior to the year 1430.

[80] Anomalous Laws, Bk. V. chap. ii. § 117 (Ibid. II. p. 85).

[81] Ibid. § 144 (p. 95).

[82] Aimoini Lib. III. c. 29.

[83] Greg. Turon. Lib. VIII. c. 9.

[84] Herman. Contract. ann. 899.

[85] Spelman. Concil. I. 335.

[86] Venedotian Code, Book III. chap. i. §§ 1-10.—Dimetian and Gwentian Codes, Book II. chap. i. §§ 10-12 (Owen I. 219-21, 407, 689).—There is very great confusion in these laws as to the numbers requisite for many crimes, but with respect to the accessories of _galanas_, or homicide, the rule appears to have been absolute.—Cf. Spelman, Glossary s. v. _Assath_.

[87] Venedotian Code, Book III. chap. i. § 18. Anomalous Laws, Book IV. chap. iii. §§ 12, 13 (Ibid. I. 231, II. 23).

[88] Ibid. § 17 (p. 231); cf. Book II. chap. viii. § 4 (p. 137).

[89] Gwentian Code, Book II. chap. iii. § 11 (Ibid. I. 691).

[90] Leg. Cimbric. Lib. II. c. 9.—Constit. Woldemari Regis §§ 9, 52, 56, 86. Throughout Germany a minor son could be cleared, even in capital accusations, by the single purgatorial oath of his father, if it was the first time that they had been defendants in court.—Jur. Provin. Alaman. cap. clxix. § 1; Sachsische Weichbild, art. 76.

[91] Böhlau, Nove constitutiones Dom. Alberti, pp. 2, 6, 12, 38 (Weimar, 1858). “Cum duobus viris bone opinionis et integri status, sinodalibus hominibus.” The expression is doubtless derived from the _testes synodales_—men of standing and reputation selected in episcopal synods to act as a kind of grand jury and report the sins of their neighbors.

[92] This has been denied by those who assume that the _frithborgs_ of Edward the Confessor are the earliest instance of such institutions, but traces of communal societies are to be found in the most ancient text of the Salic law (First text of Pardessus, Tit. XLV.), and both Childebert and Clotair II., in edicts promulgated near the close of the sixth century, hold the hundreds or townships responsible for robberies committed within their limits (Decret. Childeberti ann. 595, c. 10; Decret. Chlotarii II. c. 1).

It is not improbable that, as among all the barbarian races, the family was liable for the misdeeds of its members, so the tribe or clan of the offender was held responsible when the offence was committed upon a member of another tribe, and such edicts as those of Childebert and Clotair were merely adaptations of the rule to the existing condition of society. The most perfect early code that has reached us, that of the ancient Irish, expresses in detail the responsibility of each sept for the actions not only of its members, but of those also who were in any way connected with it. “And because the four nearest tribes bear the crime of each kinsman of their stock.... And because there are four who have an interest in every one who sues and is sued: the tribe of the father, the chief, the church, the tribe of the mother or foster-father.... Every tribe is liable after the absconding of a member of it, after notice, after warning, and after lawful waiting.”—Senchus Mor, I. 263-5.

[93] See Mr. Pike’s very interesting “History of Crime in England,” Vol. I. pp. 61-2. London, 1873.

[94] First text of Pardessus, Tit. XLII. § 5.

[95] Marculf. App. xxxii.; xxix.

[96] Pact. pro Tenore Pacis cap. vi.

[97] L. Alaman. Tit. lxxvi.

[98] Capit. Car. Mag. IV. ann. 803, cap. x.

[99] Goldast. Constit. Imp. I. 231.

[100] Hartzheim Concil. German. II. 600.

[101] Lagrèze, Hist. du Droit dans les Pyrénées, p. 47, Paris, 1867.

[102] Pike, op. cit. I. 451.

[103]

Pontificem parium manus expurgat duodena. Sexta sacerdotem, levitam tertia purgat. Maior maiori, minor est adhibenda minori. Quem plebs infamat purgabitur in manifesto.

Hostiensis Aureæ Summæ Lib. V. Tit. _De Purgat. canon._ § 4.

[104] Ibid. § 5.

[105] Quoniam Attachiamenta cap. xxiv. §§ 1, 4; cap. lxxv. §§ 1, 4. In another subsequent code, in simple cases of theft, when the accuser had no testimony to substantiate his claim, thirty conjurators were necessary, of whom three must be nobles (Regiam Majestatem Lib. IV. c. 21). For the disputed date of the _Regiam_ see Neilson, Trial by Combat, ch. 30.

[106] Leg. Burgorum cap. xxiv. §§ 1, 3.

[107] Anomalous Laws, Book XIII. chap. ii. § 94 (Owen II. 521).

[108] Gwentian Code, Bk. II. chap. vii. § 10 (Ibid. I. 701).

[109] Anomalous Laws, Bk. IX. chap. ii. § 4; chap. xx. § 12; chap. xxi. § 3.—Book XIV. chap. xxxviii. § 16.—Book V. chap. ii. § 112 (Ibid. II. 225, 261, 709, 83).

Under the primitive Venedotian Code (Book III. chap. i. §§ 13, 19) only twelve men were required, one-half to be _nod-men_, two-thirds of paternal, and one-third of maternal kin; while in the Gwentian Code (Book II. chap. ii. § 10) and in the Dimetian Code (Book II. chap. iii. § 10, Book III. chap. i. § 24), fifty are prescribed.

The _nod men_, as will be seen hereafter, were conjurators who took a special form of oath.

[110] Anomalous Laws, Book XIV. chap. xxxviii. § 16; Book IX. chap. xx. § 12; chap. xxi. § 1.

[111] Leges Wallice, Lib. II. cap. xxiii. § 17 (Owen II. 848). It is worthy of remark that one of the few instructions for legal procedures contained in the Korán relates to cases of this kind. Chapter xxiv. 6-9 directs that a husband accusing his wife of infidelity, and having no witnesses to prove it, shall substantiate his assertion by swearing five times to the truth of the charge, invoking upon himself the malediction of God; while the wife was able to rebut the accusation by the same process. As this chapter, however, was revealed to the Prophet after he had writhed for a month under a charge brought against his favorite wife Ayesha, which he could not disregard and did not wish to entertain, the law is rather to be looked upon as _ex post facto_ than as indicating any peculiar tendency of the age or race.

[112] Anomalous Laws, Book XI. chap. v. §§ 40, 41 (Ibid. II. 445).

[113] Wealreaf, _i. e._, mortuum refere, est opus nithingi; si quis hoc negare velit, faciat hoc cum xlviii. taynis plene nobilibus.—Leg. Æthelstani, de Ordalio.

[114] Sacramentum liberalis hominis, quem quidem vocant _twelfhendeman_, debet stare et valere juramentum septem villanorum (Cnuti Secular. cap. 127). The _twelfhendeman_ meant a thane (Twelfhindus est homo plene nobilis i. Thainus.—Leg. Henrici I. Tit. lxxvi. § 4), whose price was 1200 solidi. So thoroughly did the structure of jurisprudence depend upon the system of _wer-gild_ or composition, that the various classes of society were named according to the value of their heads. Thus the villein or _cherleman_ was also called _twyhindus_ or _twyhindeman_, his _wer-gild_ being 200 solidi; the _radcnicht_ (road-knight, or mounted follower) was a _sexhendeman_; and the comparative judicial weight of their oaths followed a similar scale of valuation, which was in force even subsequently to the Conquest (Leg. Henrici I. Tit. lxiv. § 2).

[115] L. Frision. Tit. I.

[116] Hincmari Epist. xxxiv. So also in his Capit. Synod. ann. 852, II. xxv.

[117] L. Longobard. Lib. II. Tit. lv. § 5.

[118] Ibid. Tit. xxi. § 9.

[119] Proost, Récherches sur la Législation des Jugements de Dieu, Bruxelles, 1868, p. 96.

[120] Nominentur ei XIV., et adquirat XI., et ipse sit duodecimus.—L. Cnuti c. lxvi. Horne, who probably lived in the reign of Edward II., attributes to Glanville the introduction of the jury-trial.—“Car, pur les grandes malices que lon soloit procurer en testmonage et les grands delaies qui se fierent en les examinements, exceptions et attestations, ordeina Randulph de Glanvile celle certeine Assise ou recognitions et jurées se feissent per XII jurors, les procheins vicines, et issint est cest establissement appelé assise.”—Myrror of Justice, cap. II. sect.